Hi everyone, I'm Esther Maxwell, the legal director and the employment team here at Shakespeare Martineau. Welcome to today's webinar on Redundancy, Consulting, and Remote World. Before we start, just a few pointers on how this online session will work, On your screen, you'll see a question and answer icon. Please use this to ask your questions. We will respond to those directly after the session.
Sadly, as a result of the current situation, which our CEO is calling the new abnormal, many companies are having to consider cost saving measures, which unfortunately may involve redundancy. Now this session only relates to redundancy of up to 19 employees. I'm not going to cover collective redundancies. My colleague John Hoover will cover this on the 15th of June. That webinar is on our website. So do feel free to watch it at your leisure. The current pandemic has caused some practical difficulties with conducting the redundancy process, and this webinar will take you through how to deal with those difficulties in shorts. However, it is possible to go through a failure redundancy process we might be and this webinar will show you how. First, if your organization is considering redundancies, it's worth asking yourself the following questions, is there a genuine redundancy situation? On the slide, we have an overview of the legal definition of redundancy. And that is three options.
Number one is, is there a closure of the business which the employee was employed? Number two, is the closure of the place of business, where the employee was employed to work, and number three, is there a reduced requirement for employees to carry out work of a particular kind?
If the answer is yes to one of those three bullet points, then this is likely to be a redundancy situation.
This is important because employees with at least two years service have the right not to be unfairly dismissed and a genuine redundancy is one of the potentially fair reasons for dismissal provided. The employer X fairly in the process to be followed.
In order to dismiss an employee fairly by reason of redundancy, an employer is expected as a minimum to warn and consult employees individually, adopt fair selection procedures, and consider alternative employment for those affected.
Key to a fair redundancy process is planning and preparation. And this has become far more important in this new abnormal well that we are now living in. What is important to understand is that the current pandemic does not change and employees rights in relation to their employment. In fact, the coronavirus job retention scheme clearly states that employees retain that ongoing employment law rights that will therefore be no relaxation of employers legal obligations towards their employees. With this situation, there will also be particular challenges where employees are working remotely or sick or if you are considering making redundancies. I would suggest that you go through the following thought processes.
Number one is put together your business case for the redundancies. This is an important document and can be used in communicating the current situation that's facing the organization to employees.
If things do end up in employment tribunal, this document is one that a judge will be interested in seeing. Notes, however, the tribunal will not interrogate the business case in too much depth. It just needs to be logical and understandable.
Number two is, establish how many redundancies on proposed. If there were 20 or more, go and watch ... Webinar on collective consultation, If there are less than you are still required to follow refer process, but things are less prescriptive in terms of timeframes and the consultation process itself.
Number three, consider if it's appropriate to pool employees and a selection is necessary, if so, established to propose sense of objective selection criteria.
Number four, there's still an obligation to consider whether there are any alternative roles available for employees who are at risk of redundancies. So, you will need to put together a list of alternative vacancies on a great wide basis if there are any.
Finally, be mindful of the risk of discrimination claims. Consider whether there are any employees who are pregnant or on maternity adoption or shared parental leave, a special rules apply to them on redundancy. Note the employees must not be selected for redundancy based on certain protected grounds, for example, pregnancy, Maternity, Health and Safety reasons, etcetera. And in such cases, they may claim unfair dismissal without the qualifying period of employment. Also, know that employees on maternity leave have a preferential right to alternative employment.
Also, consider whether you have any employees who are shielding. I remember that discrimination laws apply to a covert 19 redundancy process in the usual way. The process must be objective and thorough, and it will be important to consider that if an employee is shielding for medical reasons. And the employer then selects them for redundancy without following an objective process, the employer could find themselves facing a disability discrimination claim.
Once you've done all that preparation, the next step is to sketch out your redundancy process and put together a timeline of the steps that you need to follow. Given the new abnormal world that we're living in, the redundancy process itself is likely to take longer than it would do normally, and this should be factored into your planning. There will be inevitable delays to this process so you need to be prepared for this. Now what I will discuss on the next set of slides are particular challenges that the pandemic has caused the consulting and remote world has created. The first question may seem obvious, and of course the answer is yes, You can make followed employees redundant. But notice however, that the coronavirus job retention scheme grant cannot be used to substitute redundancy payments.
I will come to the question later, whether employers can use that fact that someone is on furlough leave as part of the selection criteria for redundancy. Question number two, can you consult with someone on furlough leave?
This is an interesting question because the current iteration of the Coronavirus job retention scheme states that employees on leave cannot work. The question is whether an employee taking part in redundancy consultation process amounts to work. Updated guidance clarifies the Trade Union or other employee representatives participating in consultation won't break their fellow leave, as long as they don't undertake revenue generating activities for the employer. However, the guidance doesn't specifically address the position of furloughed at risk employees themselves owning the Representatives. My view is that it is unlikely to amount to work because the employee is not generating revenue for their employer. My View, therefore is that consulting with someone on furlough leaf is unlikely to be a breach of the coronavirus job retention scheme. However, note that this is a developing area.
Question number three: How do we consult with someone on furlough leave or who is remote working?
Now for remote and fellow employees establishing from the outset how to communicate with them effectively and reliably will be key. First, think about how you contact your employees and how you will send them the relevant paperwork. Do you have the whom e-mail addresses? Do you have the home mobile telephone number, and do you know if your employees have access to a computer? For people without access to a computer, you could post or career documents. If individuals will be reading e-mail documents on a smartphone, consider formatting issues, and what type of documentation to send.
If you propose to carry out the individual consultation meeting by videoconferencing such as why I assume a Microsoft Teams, check the employee will have access to a computer or smartphone.
If the employee is to be accompanied at the meetings by a trade union representative or a workplace colleague, you'll also need to check that the companion has access to the relevant technology.
Alternatively, you can consult by conference call, but bear in mind that it's going to be harder to see how people are going to be reacting to the news.
If someone is on Flexible Fellow and in the workplace for some of the time, consider whether some or all of the consultation can happen face-to-face with appropriate social distancing on, days that they are working. Also consider liaising with your employees beforehand to find out the best time for a meeting to take place. Especially as many may be homeschooling and have childcare responsibilities. All of this will need to be factored into how you manage the redundancy process. You'll also need to prepare a comprehensive communication for managers to facilitate meaningful consultation. And there's no doubt will be something that will fall to HR teams to help school and managers.
Number four: What are the practicalities of consulting with someone who is remote working on furlough leave? So I'm just going to run through some practical pointers on conducting a redundancy process remotely.
Firstly, ensure that only relevant parties receive an invitation to an online meeting, and let alone or online portal for hosting the meeting is secure and compliant for data protection services.
I would also suggest you ask the employee to attend the virtual meeting from a private and quiet room if possible, when they won't be disturbed, and asked the parties to speak clearly. Vietnam ask questions when necessary and confirm their understanding.
Practically speaking, parties should also be asked to mute themselves when they're not speaking to avoid any distractions and feedback. And you can also make use of online tools, such as screen sharing to refer to documents.
As you would do with a normal redundancy process, explain that you'll be taking notes of the meeting and share a copy of the notes with the employee and remind them that they can also take their notes notes during meetings.
I'd also suggest the start of the meeting you ask the employee to confirm that lay all their companion are not recording the meeting if you're worried about this Remind them that they did not have legal rights to record the meeting. You could also explain that covert recording may be in breach of data protected protection, legislation, but, however, and a note of warning with that, remember, that recording might be a reasonable adjustment for someone with a physical or mental impairment.
So, I would check that before proceeding during the meeting, as you would do in with a meeting in person, check with the employee whether they need to take a break in the same way. Also, allow employees' time to speak privately with a companion during the meeting.
So that's just a practical impacts. A practical overview of the impacts of a process on individual employees, so, as well as the individual employees, you also need to think about the willing to work force.
Bear in mind The reputational impacts of Regency process on the wider workforce. Employees may well be working remotely and feeling isolated. So guessing employee communication, right or critical, given that they may be feeling quite anxious. How is communication being handled currently? What works well? What can be improved? Communication tool employees, including those who aren't affected by the redundancy process, will be critical in maintaining trust, my rental, at a time where employees are potentially feeling insecure and isolated.
Point number six is data privacy. As mentioned earlier, ensure that data privacy and business confidentiality is protected during remote consultation. Consider revisiting your policies and procedures and IT security generally to see if managers may need training to safeguard employees in the organization as you go through this process.
Point number seven: Think about the support that you can offer your your employees. Consider your employees' well-being. Is there any other support available for employees to mitigate the impact of the current circumstances? For example, will a Bully Employer provide out placement assistance over a longer time period, and can employees be pointed to access to the Employee Assistance Program, for example? Now finally, I just want to cover off selection criteria. And the question here is whether being on furlough leaf is being on fellow leaf affair basis for a selection for redundancy. Now lists remains something of a gray area.
What you need to consider as an employer is whether it would be reasonable in the circumstances to wait until the fellow skin comes to an end before affecting any redundancies.
Now, whether this is reasonable in practice, will depend on a whole host of issues affecting you as as an employer.
But you just need to bear in mind that employees may try and argue that it's reasonable for them to stay on the fellow scheme and telephoto scheme has ended, and that if you did make individuals' redundant whilst the feather scheme is present, they might point to that as not being reasonable. So you just need to turn your mind to the question of, of that and, and consider what's best for the company and for the organization.
This, of course, assumes that the reason for the redundancy was always the Korean or virus. If it was unrelated, then this is less likely to apply, but she's still be considered.
Finally, I hope this webinar has been useful and has shown that it is possible to fully redundancy process in these abnormal times.
We're all hopeful that we will get through this difficult period, and that there will be some light at the end of the tunnel.
So that brings us to the end of this webinar, and I hope you found it relevant in the current circumstances. If there's something that you'd like further information on, or have a specific query, on any matter you'd like to discuss, please do let me know, and I'd be happy to help. In the meantime, we've launched a free legal help line, given you direct access to a senior team of experts for free legal guidance over a 20 minute, telephone, or video call.
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