The Coronavirus pandemic has, caused panic and uncertainty amongst many workers whose employers are severely impacted by the outbreak.
In response to the national lockdown many employers made fast and drastic decisions to terminate contracts, make employees redundant or place employees on furlough leave. The speed of which these decisions were made, and the reasoning for them, could mean that businesses have acted unlawfully.
For the employees affected, they could be entitled to make a claim for unfair dismissal.
Many employers will have acted within the law and followed the correct procedures for furlough leave, lay off and redundancy. However, there will be some employers who acted in haste and without regard to the proper procedures.
This article outlines the main areas employers may have fallen short and what your rights are as an employee.
Where an employer is deciding to make only part of its workforce redundant, it is essential that a fair selection process is followed. It is highly unlikely that an Employment Tribunal would excuse an employer for failing to follow any process because of the pandemic.
Therefore, your employer must review all appropriate roles, have appropriate selection criteria, apply the criteria fairly and consult with you throughout the process. They must also consider alternative employment before making you redundant. While employers may be able to justify undertaking these steps in a shorter timescale than they usually would, it is essential that each step is still taken and communication throughout the process is clear.
Terms and conditions of employment
Employers can ask you reduce your pay or hours of work that are stated in your contract. You have the right to refuse or decline a pay cut or working hours. However, it is worth remembering that your employer may be struggling and without everyone pulling together, your employer may not be able to survive the economic decline.
Any attempt by an employer to unilaterally impose a reduction to an employee’s pay will give grounds to the affected employees to terminate their employment and bring claims for unfair constructive dismissal.
Lay off and short time working
Some employees contract’s will have a ‘lay off’ clause in their standard contracts of employment that means that their employer can ‘lay off’ an employee without pay, or reduce their hours and pay, for an indefinite period.
It is unusual for employers to have such clauses in their contracts. If you do not have this clause in your employment contract, your employer does not have the contractual right to lay you off without pay or reduce your hours, and doing so will give you the right to terminate your employment and bring a claim for constructive unfair dismissal.
Fair selection for Lay off and short time working
If an employer does have the contractual right to lay off employees without pay or reduce employees’ hours of work and decides to only to lay off a proportion of their workforce, they must follow a fair selection process. The process will have similar principles to the redundancy selection process. If your employer has acted with haste and without any consideration to a fair process, they are likely to face claims for unfair dismissal.
If your employer chooses to furlough a group of employees, they must have a fair and valid reason for their selection. Your employer should have consulted with you prior to placing you on furlough leave. If your employer can’t supply a valid and justifiable reason for placing you on furlough leave or not selecting you for furlough, you may be entitled to make a claim. Furthermore, in most cases your employer cannot unilaterally place you on furlough leave without your consent.
Your employer must consult with employee representatives if they are proposing make 20 or more employees redundant at any one establishment. These collective consultation rules also apply if an employer wishes to vary their employees’ contracts of employment and there is significant opposition to such proposals throughout the workforce.
If your employer fails to consult with employee representatives, you may be entitled to compensation (90 days pay for each individual effected).
Whilst employers may have a defence to such claims if “special circumstances” existed that meant that they could not comply with the appropriate procedures, this does not absolve employers from failing to follow any procedure at all.
It remains to be seen what view the Employment Tribunal will take when considering such defences. There may be a range of different outcomes, depending on the circumstances, for example, a business has been forced to close down suddenly compared to a gradual reduction in revenue.
It is important that if your employer is changing your role in any way, whether it’s your remuneration, working hours, furlough leave or redundancy, you are communicated and consulted with. If you employer has failed to follow the correct procedures, then you may be entitled to compensation.
The employment law team at Linder Myers Solicitors are on hand to advise and support you through this time. No matter your question, we are able to offer support and guidance at this uncertain time. Please contact us on firstname.lastname@example.org today for confidential, expert advice.