Face up to pandemic aftermath

“Some employers may be making decisions about their existing staff as early as January, as the Government has indicated it will most likely expect them to start making a bigger contribution to the scheme as they did in September and October and sadly we have to anticipate a high number of redundancies next year,” says Employment Law Partner Sally-Anne Anderson at property, legal and financial firm Aberdein Considine.

She stresses that employers should anticipate the courses of action open to them now – and avoid waiting until decisions are forced upon them.

Employers, she explains, will broadly have three options open to them. “The first is simply to bring all their furloughed staff back into full time jobs or on what their pre-Covid arrangements were.

“That will be possible where work is expected to return quite quickly to the levels it was before lockdown but for many employers, unfortunately, that’s not going to be the case and it’s certainly not guaranteed.”

The second is to bring staff back on different terms and conditions – for example, on reduced hours and benefits or on zero hours contracts so that the employer is only committed to providing work when people are required.

She emphasises the importance of employers consulting with their employees about the changes they wish to make, explaining the reasons and agreeing to those changes in writing. “If more than 20 employees are affected, then it becomes a collective process and representatives have to be elected,” she adds.

“If employers can explain that the changes are being made to avoid redundancies and the lines of communication are good, many people will be prepared to be flexible.”

The final option, if it’s thought that work levels are not going to quickly recover is to make redundancies and that looks like being a prospect eventuality that many may have to consider. Already, in the three months to September 2020, there were 314,000 reported redundancies in the UK, higher even than the 227,000 recorded in 2009 after the Global Financial Crash.

“As a result of the recent chaos that everyone has been experiencing in many areas of work, we’ve been at pains to remind clients that employment law still applies as it did before and that if they intend to make redundancies all the same legal obligations to follow a fair process remain,” she says.

• Ensure that you follow the furlough scheme rules and timescales for submission of claims and that there are written agreements in place with all furloughed employees.

• Be aware that furloughed employees continue to accrue their holiday entitlement and decide how this will be managed.

• If your business needs to make changes to employees’ terms and conditions, plan the process with a view to securing agreement to the changes, failing which implement a reasonable and objective consultation process (being mindful of the need for collective consultation if more than 20 employees may be affected).

• If you must make redundancies, ensure that you follow a selection process that is objective and reasonable and that employees made redundant receive their correct entitlements. (Again be mindful of the need for collective consultation if more than 20 employees may be affected).

• If you have employees returning to work after a long period of furlough, consider how best to integrate such employees back into the business/organisation.

• Keep the lines of communication open. Try to be as transparent as you can about the commercial challenges you are facing and the reasons for any proposed changes aimed at overcoming them.

The first part of that is identifying if there is genuinely a reduced need for employees to carry out specific roles and then to follow the correct procedures with them, making sure that people receive their correct entitlements to statutory redundancy pay, notice pay and payment in lieu of any accrued untaken holidays while again remembering the need for collective consultation if more than 20 employees are affected.

Holidays may represent a major pitfall for some. “Employees on furlough – some potentially for as much as a year – are accruing holidays. While the Government guidance says employers should try to encourage people to take holidays during their furlough leave period that comes at a cost and could cause problems for businesses which have not decided how they’re going to handle that backlog of claims,” she says.

With most people currently working from home, health and safety is another issue as it is the employer’s responsibility to make sure that home is a safe place of work and if an employee  reasonably believes that there is a serious and imminent danger, they can refuse to return to the workplace. There are already cases, says Anderson, involving employees who have been dismissed for refusing to return to the workplace..

She further points out that claimants no longer have to pay a fee to lodge a claim (that was abolished in 2017) with little stopping those who feel their employer hasn't handled their redundancy fairly, or they haven’t been paid what they’re entitled to from lodging a claim at the tribunal, which can be very expensive and time consuming for employers.

“While employment law can often seem quite daunting, particularly for businesses that don’t have a big HR department or retained employment lawyers to help them, with a bit of advice it’s not that difficult to get it right,” she says.

“Crucially, always keep the lines of communication open as uncertainty is hugely stressful for employees and always be as transparent as possible so that employees feel their needs are being taken on board and can understand the commercial reasons for what you’re proposing to do.” 

For more information visit www.acandco.com

This article appeard in the December 2020 edition of The Herald's Business HQ Magazine