While there is no question that a lot of businesses are severely impacted by the pandemic and face difficult choices about their workforce, it is becoming more and more obvious that there are companies assuming the situation enables them to by-pass or fully ignore legislation around redundancies and dismissal.
Newsflash: It doesn’t.
Tiger HR and Tiger Law have seen a large increase in enquiries from employees who have been made redundant or simply dismissed “because of Covid”.
So far, the documents we have reviewed do not paint a pretty picture with issues ranging from there having been no consultation, no apparent genuine reasons for redundancy, all the way to quite apparent discrimination on ground of age or sex.
There also are a number of technicalities which have been ignored – for example no breakdown of how redundancy pay has been calculated. While this may seem a minor issue – it isn’t! A failure to provide what is called “Written particulars of redundancy payment” as set out in section 165(1) of the Employment Rights Act 1996 is in fact a criminal offence and attracts a level 3 (£1,000) fine. This is independent of any claim an employee may bring at the Employment Tribunal and independent of any potential award they may be awarded further down the line.
Where an employee believes they were discriminated against when being chosen for redundancy over other colleagues, then by default the burden to provide proof this wasn’t the case rests with the employer. Discrimination award at the tribunal can be extremely costly so it is advisable to follow due process when selecting staff for redundancies and to keep records of score sheets comparing employee in a redundancy pool.
Needless to say, that the scoring exercise should be carried out in a fair manner and the score given to each employee must be justifiable. For example, when assessing absence records, any absences linked to an employee’s disability or a pregnancy should be ignored.
Redundancies are a minefield at the best of times and it is important to follow due process without mistakes. Even making subconscious choices (let’s face it – there will always be employees who are liked better than others) can have severe and costly consequences.
If you’re unsure please seek advice before starting the process.