by ALEC COLSON Employment partner, Taylor Walton Solicitors
IT SEEMS a long time ago since I wrote my article in the May edition regarding the implementation Coronavirus Job Retention Scheme. While the rules of CJRS change on almost a weekly basis, employers are now looking at the bigger picture in order to put in place measures to shape their businesses going forward when the CJRS ends on 31 October 2020. Unfortunately, this means in many cases staff being made redundant.
Before any redundancies can take place, however, employers are legally obliged to engage in meaningful consultation with their employees affected by the redundancy proposals to explore ways to avoid, reduce or mitigate the effects of the proposals. The President of the Employment Tribunals recently stated that that he was expecting to see an influx of redundancy-related unfair dismissals claims when CJRS comes to an end.
Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days, the employer is required to consult on a collective basis for 30 days – or 45 days where the proposal is to dismiss 100 or more employees – with trade union representatives where there is a recognised union or with elected staff representatives, as well as on an individual basis with the employees affected.
Where an employer is proposing to dismiss fewer than 20 staff, there is still a requirement for the employer to consult with individuals affected by the redundancy proposals. In my experience, many small and medium-sized businesses fail to recognise the importance of meaningful consultation. If there is a failure to consult in a meaningful way, the resulting dismissals are likely to be unfair.
In order for an employer to consult properly, they must have an open mind and carefully consider any counter proposals made by employees. It is important to remember that redundancy is about the need for the role not about the individual’s performance or conduct.
A redundancy proposal must be presented as a proposal, not a fait accompli. Therefore, to inform employees that they are redundant and then consult about the decision to make them redundant is unfair from the outset.
The key components of fair consultation are:
- Consultation when the proposals are still at a formative stage;
- Providing adequate information to the employee about the reasons for the proposal;
- Allow adequate time for employees to respond;
- Conscientious consideration of the employee’s response including any counter proposals.
Where the employer is proposing to use a selection criteria to select employees for redundancy from a pool, the criteria should be included as part of the consultation process.
Unlike for a collective redundancy consultation, there is no legal timescale for individual consultation. However, in order for it to be meaningful, I recommend a minimum of two weeks. In relation to furlough staff and employees working from home, consultation can take place by telephone or video conference.
Although an employee has no legal right to be accompanied by a trade union representative or work colleague, it is recognised as good practice to allow them to do so. Likewise, an employee selected for redundancy should offered the right of appeal.
And finally – it is important for the employer throughout the whole redundancy process to keep a paper trail including notes of consultation meetings and correspondence in order to have documentary evidence in case the process is challenged by the redundant employee.