Employers must deal fairly with staff at risk of redundancy – Ben Doherty

The usual procedures may need to be revisited in these strange times, says Ben Doherty

Monday, 21st September 2020, 7:30 am
Ben Doherty is a Partner and Head of Employment at Lindsays
Ben Doherty is a Partner and Head of Employment at Lindsays

To be treated fairly is often all that any of us can ask for, particularly in some of life’s most challenging situations.

But when it comes to issues surrounding potential redundancies, it’s not just morally right for us to ensure that everyone is treated fairly – it’s a legal necessity.

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Over the past five months, employers have generally proved themselves to be fair when dealing with the different circumstances in which employees have found themselves, whether those circumstances have been due to positive cases of Covid-19, shielding or the demands of balancing work with home learning for children.

The focus on fairness, however, may soon step up a level – fuelled, in a number of ways, by the furlough factor.

None of us can have avoided hearing the predictions that many companies will find themselves in a situation where they are bringing forward proposals for redundancies when the Westminster government’s Coronavirus Job Retention (furlough) Scheme comes to an end next month.

And no-one should lose sight of the fact that fairness and transparency are the principles which effectively underpin any redundancy process.

Yet the question of how to ensure fairness if you have affected staff who are on or who have had a period of furlough leave adds a new dimension to this and is something that I would urge all companies in this position to carefully consider – and seek advice on – before beginning any consultation.

As a starting point, if you have employees who you are placing at risk of redundancy while they are on furlough leave, you must consider how you inform them, given that general practice has previously been to inform all of those at risk together. Is an online meeting the solution?

Then, if you find yourself in circumstances where scoring is necessary, you must find a level playing-field on which to benchmark everyone. Everyone should be judged equally, with scores on productivity – for example – not skewed by the fact that one employee at risk may have worked through the pandemic while another has had a period of furlough.

All of this must also happen against the backdrop of ensuring that an appropriate pool of people at risk of redundancy has been selected, that a selection criterion – one that’s more objective than subjective – is applied and that any scoring connected to a protected characteristic is adjusted. Any pregnancy-related absence, for example, should be discounted.

What we must all stay alert to is the fact that the world continues to turn and be aware of the changes which are coming all of the time right now. All companies need to be aware of their obligations at what can be an emotional time for all involved.

One of the key bits of advice I give to any employer considering redundancies is to pause and consider whether the strange circumstances that we have lived through in the last six months mean that they need to amend their usual redundancy process to ensure that everyone is treated fairly. That pause and consideration should reduce stress for all involved – and reduce the risk of tribunal claims.

Ben Doherty is a Partner and Head of Employment at Lindsays

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