Redundancy unfair dismissal furlough

People professionals will need to rapidly adapt their practices and procedures to suit the current situation but also to ensure their business continuity and viability. Part of this response may unfortunately have to include redundancies or other cost cutting measures. The nature of the virus will mean that employers may need to consider adapting their usual redundancy procedures, taking into account the Job Retention Scheme known as furlough. Below, we have outlined how these schemes affect redundancy procedures.

For more specific questions relating to coronavirus, visit our Coronavirus hub. The Scheme has subsequently been extended and aims to help employers whose operations have been severely affected by coronavirus until it ends at the end of April The Scheme allows organisations to 'furlough' employees, ie place them on a temporary leave of absence.

There have been several phases of the scheme:. Employees have to agree to being furloughed and to any decrease in salary. After 1 July any pattern of working could be agreed and any furlough periods can be claimed for in blocks of at least 1 week.

The usual rules around redundancy have not been changed. However, whilst the furlough scheme is in place and other government assistance is available, there are some additional considerations to be borne in mind, such as:. An important point to bear in mind is that new government guidance is being published and updated on a regular basis.

redundancy unfair dismissal furlough

This means it is important for businesses to keep matters under close review and always read the latest guidance before beginning any processes. This guide will be updated when guidance is available.

Furloughed employees must receive redundancy in full

The usual obligation to consult staff both individually and collectively about any redundancy proposals and allow them to comment on these before they are finalised, and rules about what a fair consultation should entail, will continue to apply irrespective of whether staff are or have been furloughed or not.

While the furlough scheme is still in operation one of the primary issues to bear in mind when undertaking redundancy consultation processes with staff who are furloughed, will be the obvious logistical issues which are likely to arise from consulting with staff remotely. Employers will therefore have to consider how best to enable this, which could include an online 'town hall', online meetings or telephone calls.

They may also need to build extra time into the consultation process to allow for any logistical issues which may arise.

There is no statutory right for employees to be accompanied at redundancy consultation meetings but it is good practice for employers to allow this under their redundancy procedure.

Employees and staff representatives will still be allowed to 'accompany' colleagues to redundancy meetings even if they themselves are furloughed, as the updated employer's guidance on the Coronavirus job retention scheme confirms that 'whilst on furlough, employees who are union or non-union representatives may undertake duties for the purpose of individual or collective representation of employees or other workers. If the collective consultation is triggered because an employer will be making 20 or more redundancies in a 90 day period, the employer will need to ensure that they consult collectively with the appropriate Trade Union or existing staff representatives, and that they meet the 30 day or 45 day for or more redundancies deadline for commencing consultation.

These issues could be more pronounced where there is no recognised Trade Union or existing staff representatives meaning an election has to take place before consultation can begin. Employers should take every step to ensure consultation takes place, adapting the process to suit their own particular context. Part of consultation should always include assessing whether there are any other alternatives to redundancy.

Employers should bear in mind that the furlough scheme is due to come to an end at the end of April Consideration should be given to how this may impact on the timeframe for any redundancy consultation period whether that be on an individual or collective basis. More information is available in our returning to the workplace guide. The law provides a rarely used defence for employers who have failed to collectively consult.

Whilst unusual, the pandemic does not give employers an automatic excuse to avoid consultation. The defence applies to failures to consult at all, failures to consult in good time or to provide the required statutory information for consultation. The fact that the Coronavirus Job Retention Scheme has been introduced, along with other government support, makes it harder for employers to rely on the special circumstances defence.

It therefore seems unlikely that the current situation would qualify for the defence and employers should continue comply with their redundancy consultation duties to the greatest extent possible. A redundancy situation can have a significant impact on the morale, mental health and wellbeing of both those employees who are subject to such process whether they ultimately leave the organisation or not and other employees in the organisation.The Government Job Retention Scheme is designed to reduce the need for redundancy, therefore Tribunals are likely to take a dim view on any employer that leaps to redundancy whilst the furlough scheme is still operational, where there was a mechanism to delay the need to end employment and protect income for workers.

Therefore, the general guidance is that consultation can take place during the furlough, but employment should ideally not be terminated whilst furlough is still viable to avoid potential claims for unfair dismissal.

All employers have a duty to consult in cases of redundancy — if less than 20 there is no minimum consultation period, but any consultation should be fair and reasonable. If you plan to make 20 or more redundant within a 90 day period then you must undertake collective consultation for at least 30 days, and if more than then the collective consultation time frame is 45 days. There are no hard and fast rules around what consultation should look like — it needs to be meaningful i. If an employee is furloughed, they should still be available to interact with their employer — you are not asking them to work, but it would reasonable for them to take calls or attend virtual meetings.

If an employee refuses to participate in the consultation, you cannot force an employee to engage, but you can generate evidence to suggest you have tried if the decision is challenged in the future.

Pooling comes in to play where you have a group of workers with shared skills or abilities undertaking similar work. Most redundancies are small scale and affect less than 20 employees so in the majority of cases we have to establish what is a fair consultation time frame — whilst there is no minimum timescale, 4 weeks is generally held to be reasonable as this demonstrates thinking and opportunities for employees to engage with the business and challenge without being forced out of a role.

The same plan can be applied to situations where you need to consult with more than 20 but may need additional rounds of meetings if you have a large number of potentially at risk employees. Employees have the right to be accompanied at any meetings by a colleague or trade union representative — this should be extended to employees on furlough accepting this may require the application of technology solutions to enable people to be on a virtual meeting at once. In principle yes, as they are still employed but advised to stay at home for health reasons which would not exclude them from any processes where they are potentially at risk.

This is probably the most challenging part of the process as any selection should be fair and based on a degree of objectivity and not just based on gut feel. Typically, selection relies on either a matrix where the pool is assessed against a criteria using a scoring system or interviews where applicants are competing for a role. You can use one or both.

Technically employees with less than 2 years service have no right to claim unfair dismissal for not following a redundancy consultation process, so you could follow an informal termination process for those with less than 2 years service subject to any contract terms relating to how you manage redundancy. However, please be aware that you must still have fair grounds for putting them into the redundancy pool and have a fair method of selection, as the employee can bring a claim for discrimination if they feel the reasons for selection were based on a protected characteristic such as their gender, race age etc.

Where you have mixed pools of staff with some under and some over 2 years service, it is good practice to apply one method to the whole pool rather than treating people differently because of their service. It is widely held that an employee can be made redundant whilst furloughed, it can, therefore, be inferred that an employee can serve their notice whilst furloughed. If redundancy is concluded whilst the Government Job Retention Scheme is still in operation, then technically you could confirm that the role is to be made redundant and you would ask them to serve out their notice period whilst furloughed.

In simple terms yes, redundancy pay is separate to furlough and so an employee is still entitled to those payments if they have the 2-year qualifying service — this cannot be claimed back via the Job Retention Scheme as it is not classed as wages but compensation for loss of employment.

Redundancy is complex and very situation-specific in how it is planned and managed and prior to commencing any consultation you should always seek professional advice to avoid the risk of getting it wrong or treating people unfairly.

Previous Next. View Larger Image. NOTE The Government Job Retention Scheme is designed to reduce the need for redundancy, therefore Tribunals are likely to take a dim view on any employer that leaps to redundancy whilst the furlough scheme is still operational, where there was a mechanism to delay the need to end employment and protect income for workers.

redundancy unfair dismissal furlough

Consultation All employers have a duty to consult in cases of redundancy — if less than 20 there is no minimum consultation period, but any consultation should be fair and reasonable. There are no rules that say employees cannot be consulted with during periods of furlough. How to determine who needs to be consulted with? There are several reasons as to why someone may be at risk and the common ones are: 1. Change in what the business does and how it structures its operations 2.

Change location 3. Change how they work, for example, use new machinery or technology 4. Close part or all of the business What is the notion of pooling? Devising a consultation plan Most redundancies are small scale and affect less than 20 employees so in the majority of cases we have to establish what is a fair consultation time frame — whilst there is no minimum timescale, 4 weeks is generally held to be reasonable as this demonstrates thinking and opportunities for employees to engage with the business and challenge without being forced out of a role.

Can employees who are shielding be included? Selecting from the Pool This is probably the most challenging part of the process as any selection should be fair and based on a degree of objectivity and not just based on gut feel. Can an employee serve their notice period whilst furloughed? Would the employee still be entitled to Statutory Redundancy Pay?Sky News explains what the government is doing to ensure workers losing their jobs are not short-changed by their employers.

Business reporter SkyNewsBiz. New laws are to guarantee that furloughed workers who lose their jobs will receive redundancy payouts based on their full salaries. Sky News takes a look at what is being brought in and what it means to the millions of workers sweating over their income security as the coronavirus crisis drags on.

That scheme is being gradually wound down from next month and closed in October so ministers want to ensure people get what they should be entitled to. Please use Chrome browser for a more accessible video player.

The unprecedented furlough scheme has seen more than a million companies secure aid to support up to 9. However, the latest ONS data suggests almost a third returned to their jobs in the first two weeks of July as the crucially important hospitality sector started to reopen. An employee aged under 41 and above 21 must receive at least one week's pay for each full year of employment.

The incentive forms part of the government's efforts to ensure as many people as possible keep their jobs. The law adjustment on redundancy pay effectively forces additional costs on businesses who were looking to utilise the loophole. Official figures have shown a steep fall in company payrolls since March - with data covering June suggestinghad lost their jobs during the lockdown despite the wage support and wider lending schemes for businesses.

Redundancy vs Furlough

Watch Live. Fill 2 Copy 11 Created with Sketch. Thursday 30 JulyUK. Why you can trust Sky News. Coronavirus: The infection in real-time. Facebook Twitter YouTube Instagram.Furloughed employees will be entitled to redundancy pay based on their normal wages, not their furlough rate, from tomorrow 31 July.

Basic awards for unfair dismissal cases must also be based on full pay rather than furlough pay. Redundancies vs reduced hours: Juggling workloads through coronavirus.

Fair Redundancy Dismissals with Rebecca Tuck QC

But Kate Boguslawska of law firm Carter Lemon Camerons, said it appeared the law did not have a retrospective effect. Under the new rules, employers must treat any weeks an employee spent on furlough over the week reference period as if they were working on full pay.

Redundant on furlough leave?

The legislation also covers other employment rights that rely on average weekly pay, including notice pay, unfair dismissal, and short-time working.

Some 9. An estimatedpeople have so far been made redundant since the coronavirus pandemic hit the UK earlier this year but, with the furlough scheme due to end in October, the National Institute of Economic and Social Research think tank predicts that around 1.

Browse more human resources jobs. Name required. Email will not be published required. The government has A High Court judgment has provided clarity around how administrators should apply the Coronavirus Job Retention Scheme for employees whose Personnel Today has launched a new email newsletter forfocusing on all aspects of diversity and inclusion. Sign up here. Post a job Why advertise with us? Email sign-up. Previous Article. Next Article.

Leave a Reply Click here to cancel reply. Comment Name required Email will not be published required Website.Despite this investment from the government, we have seen a steady rise in the number of people made redundant on furlough leave.

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Therefore, any restructuring by an employer needs to be undertaken fairly with consultation for redundancy selection and in accordance with equality laws.

But redundancy can be a fair reason for dismissal even if the employee is absent on furlough leave. The first consideration by the employer is to focus on the type of work which is no longer needed and to identify those employees performing that work.

Employers must follow a fair consultation procedure and make dismissal decisions that are fair and reasonable in the circumstances. Where more than 20 redundancy dismissals are being considered within a day window this will require compliance with statutory collective consultation requirements too.

Employers should avoid the temptation of treating only those on furlough leave as the pool of candidates for selection. The selection pool should be determined objectively and without regard to which staff have been furloughed. To do otherwise raises the question of whether the selection process for furlough was thorough enough and opens up a potential unfair dismissal claim.

The traditional way is to identify those who perform the same or similar work and base the selection pool on this. If the number of redundancies required is less than the pool of candidates then the employer should devise a matrix criteria for scoring. This should consist of objective factors such as length of service and disciplinary records. Those selected for redundancy should also be afforded the right to appeal their redundancy and given the chance to challenge the process. This means the employer must consider whether there are job openings available internally to avoid a redundancy dismissal.

There should also be an investigation into whether it is possible to avoid or reduce the need for dismissals altogether, usually in consultation with the affected employees. You are entitled to a statutory redundancy payment if you have been in continuous employment for two years or more. The amount you will receive will depend on how long you have been in the job, your age, and your salary. You may be entitled to a greater redundancy payment if your contract of employment provides for it.

You are also entitled to receive notice of termination of employment.

Coronavirus (COVID-19): redundancy guide

You may be entitled to a greater length if it is provided for in your contract of employment. If you require any assistance with redundancy on furlough, please telephone our employment law team on and we will arrange an appointment for you.

Annual Leave and Furlough Leave. Furlough Scheme Explained. Settlement Agreements. Unfair Dismissal.We have heard a lot recently of mass redundancies when other companies have been taking advantage of government schemes to protect its staff. The airlinesespecially Virginhave come under great scrutiny and criticism as a result of its decisions. The changes announced have no effect on the current scheme and will not apply until the beginning of August.

More information will be released over the coming days. From August, the government will start asking companies to share in some of this cost. The scheme will continue to be open to all sectors but will provide greater flexibility as companies can bring back furloughed workers on a part time basis. As before, businesses must be on top of this scheme to ensure correct laws are adhered to.

Perhaps the most important thing to be aware of is changes to employment contracts. Any changes between furloughed, part-time and full-time status must be agreed between both parties in writing prior to the changes coming into effect.

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At A City Law Firm, we offer well priced and timely reviews, consultations, and amendments of all employment contracts. We can amend or draft contracts and agreements to this effect. As well as staff handbook and policy amendments. Any consultations or advice with regard to easing workers back even part time, again we can offer help and advice. Employees who agree, and this agreement must have been made in writing, are given a leave of absence and do not work for their employer although training is allowed for the period that they are on furlough.

This period is a minimum of 3 weeks and presently a max of 3 months. This brings into scope a large number of people who fell outside the scheme because they had recently changed jobs. The 19 March date is just before the Chancellor announced details of the scheme, meaning it is still effective to prevent fraudulent claims by businesses hiring ghost employees to claim furlough payments in respect of, as those ghost employees will not have been on PAYE on 19 March.

An employee must howeveragree to furlough, either because it is already set out in their employment contract, or through a process of:. If the staff member does not agree, then other options should be discussed, including potential redundancy. The benefit is you retain your talent despite these difficult times and your commitment to the staff hopefully will be rewarded after the lockdown is lifted.

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You can furlough all or just part of your staff so that you can survive this periodbut note their annual leave will still accrue. Notwithstanding the scheme, there are numerous redundancies still being contemplated and carried out. The coronavirus outbreak however has not had any impact on the laws of redundancy and so a fair process must still be followed. This only applies to those having been employed for 2 years or more with the employer so long as no discriminatory grounds can be claimed they can be dismissed with notice pay only.

Employers commonly use a selection matrix to ensure that a fair selection process is carried out; common criteria used by employers include skills, performance and disciplinary records.These are broken down into questions about furlough, redundancy and other variations such as pay reductions.

So, the normal deductions for income tax, national insurance, student loans, pension etc. Employers are not obliged to top up your salary but they can if they want. This is something you need to check with your employer. If they use our SeedLegals Furlough Notice to place you on furlough leave, your employer is given the option to top up your salary. As you are not working, you are not entitled to the National Minimum Wage and so may be paid less than that. Your employer is required to tell you how long you will be furloughed for.

From 1 July, employees will be able to split their time between working and being furloughed. You can be furloughed for any amount of time and then return back to work subject to your employment contract. The important information here is that you must be furloughed for at least three weeks under the scheme and if you are furloughed beyond October your employer will not receive any further reimbursement under the scheme.

It depends on what your contract variation agreement stated.

redundancy unfair dismissal furlough

In our Furlough Notice, we explain that the variations e. After that date, you would return to working for your company under the old terms of your employment contract, as if the variation never happened. However, be wary of other contract variation agreements that do not have a defined end date, as you may inadvertently be agreeing to receiving a lower salary indefinitely.

If what you have been given does not have an end date, it would be reasonable to request one. Your employer must formally notify you of the beginning of your furlough leave. Whilst you are self-isolating or on sick leave you should be getting statutory sick pay. Whilst receiving this you cannot be furloughed. Once you signed off and you are no longer receiving statutory sick pay, you can be furloughed. The scheme only covers your usual monthly pay. This includes wages, past overtime, fees and compulsory commission payments only.

Your contract can also be renewed or extended during the furlough period without breaking the terms of the scheme. It does not matter if your employer has a company or not, what matters is whether they have set a PAYE system and have paid you through it since 28th February If you have more than one job you can be furloughed for each job. If your existing employment contract allows this, you can work for another employer if you have been furloughed. Generally the answer is no.

In order to claim under the scheme you cannot do any work at all for your employer.

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The employer can agree to find furloughed employees volunteering opportunities if this is in line with public health guidelines. If you are undertaking training whilst furlough you must be paid at least the National Minimum wage or National living wage for the time spent training. However, from 1 July, employees will be able to split their time between working and being furloughed.

If you are genuinely unable to do your job because of your caring responsibilities, which includes looking after children being home-schooled, you are eligible and can be placed on furlough leave if your employer agrees even if your role could be performed. If you have holidays booked in the coming weeks that would fall within your period of furlough, your employer has the right to insist that you take it.