19 August 2020
Redundancy consultation in the COVID-19 era
Consultation is the cornerstone of a fair redundancy process and this remains the case in the COVID-19 era. This is the principle that an employer should consult affected staff with an open mind about any proposal to make their role redundant.
If the employer proposes to make 20 or more redundancies at one establishment in a period of 90 days or less, then it must follow the specified collective consultation process that we explained in this previous article: https://www.bpcollins.co.uk/knowledge-hub/article/collective-consultation-and-redundancies . Otherwise, the consultation will be on an individual basis.
Before initiating a redundancy process, check if your company has a redundancy policy as this may dictate steps you need to take before initiating the process or how you select which staff should be placed at risk.
The pre-cursor to consultation is the selection process. You may need to place staff doing similar jobs in a “selection pool” and apply fair and objective criteria to determine who is at risk. You should also consult with staff and, while COVID-19 has undoubtedly had a profound effect on business, you would be wrong to think that COVID-19 justifies a failure follow a fair redundancy process and meaningfully consult with employees who are at risk. Consultation is required unless it would be truly be futile, which is very rarely the case. If you have employees who can’t come to the office, think about alternative ways you could consult with them. Most people have embraced video calls during lockdown and this is a good alternative. If the employee doesn’t have the technology for this, maybe consult via phone and if that isn’t feasible, maybe visit them and socially distance. In short, do all you can to consult before reaching a decision to make someone redundant as it will save you time and cost in the long run. An employer which takes such steps as it reasonably can, particularly bearing in mind its size and resources and the impact of COVID-19/lockdown, will be far better placed than one which does not.
While the risk is reduced if the employee in question has less than two years’ service, you still need to be careful.
Could the employee claim that their redundancy was related to voicing a health and safety concern, a disability or their age?
While that might not be the case, employees sometimes make such claims regardless and consultation gives you an opportunity to flush out any such allegations and address them at a pre-litigation stage. Indeed, any employee who is dissatisfied at being selected for redundancy is rather expected to voice that dissatisfaction during consultation and this gives you an opportunity to address those concerns before you take the final decision. If they don’t say what is on their mind, they probably won’t be able to say you should have taken it into account in the decision making process. So, consultation shouldn’t be seen as just a necessary part of the process but an opportunity for you to reduce the chance of litigation arising out of the redundancy.