Uncertainty prevails on the likely length of the pandemic, the level of government support available for businesses and the severity of the recession that will likely result. Redundancies are on the rise. The latest labour market statistics show in Northern Ireland, 1,150 workers have been notified of proposed redundancies in September alone.
With compulsory workplace closures and many businesses implementing essential restructuring, redundancies are inevitable. Many employers are proceeding on the basis that the COVID-19 pandemic means that the majority of dismissals will be deemed to be genuine. However, this does not obviate the need for careful planning by employers with an already sensitive process being complicated by emerging issues relating to COVID-19.
A recent study carried out by Citizens Advice has shown that parents, disabled people and carers face twice the risk of redundancy than their counterparts. Many of these workers are furloughed owing to their personal circumstances or to facilitate childcare, shielding etc.
Employers risk discrimination claims if they automatically selected furloughed employees for redundancy or place them at a disadvantage during the redundancy process. Whilst government guidance indicates that furloughed employees can be made redundant, care should be exercised to ensure that employees are not indirectly disadvantaged on the basis of a protected characteristic.
This is especially true as employers should not assume that the selection process deployed to selecting staff for furlough will be sufficient for the purposes of redundancy. Particularly, given the haste with which the furlough scheme was introduced.
As such careful consideration should be given to selecting the criteria for redundancy in light of the COVID-19 pandemic.
Selection criteria should be fair, objectively justifiable and discount the disadvantages faced by furloughed employees. Where performance is selected as a criteria furloughed employees may be disadvantaged compared to their counterparts. Consideration should be given to excluding the period of time spent on furlough from performance assessments. Equally, where absence is used as a criterion for selection, consideration should be given to situations where employees have been absent owing to shielding or self-isolation in line with government advice.
Employers should be mindful of their duty to engage in meaningful consultation with employees and the implications for staff who cannot attend the office. Care should be exercised to ensure that employees are not disadvantaged in the consultation, redundancy meeting or appeal stages by virtue of the fact they attend remotely. This is of particular relevance when employers adopt a hybrid approach of meeting with some staff remotely and others in person.
Without doubt, we are in an era of uncertainty where employers are seeking to protect the viability of their business and the employment of their staff with ever changing rules and guidance. Preparation and planning are key to ensuring legally compliant redundancy process and avoiding unnecessary costs for businesses considering restructuring and legal advice is pivotal to examine this.
If you require assistance, please contact the Employment Department on 028 9043 4015.
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