Furlough factor adds new dimension to ensuring fair play with redundancies


14th October 2020

When it comes to issues surrounding potential redundancies, it’s not just morally right for us to ensure that everyone is treated fairly - it’s a legal necessity.

Over the past five months, employers have generally proven themselves to be fair when dealing with the different circumstances in which employees have found themselves, whether they have been due to positive cases of Covid-19, shielding or the demands of balancing work with home learning for children.

The focus on fairness, however, may soon step up a level - fuelled, in a number of ways, by the furlough factor.

Many companies will find themselves in a situation where they are bringing forward proposals for redundancies when the Westminster government’s Job Retention (furlough) Scheme comes to an end this month (October).

And no-one should lose sight of the fact that fairness and transparency are the principles which effectively underpin any redundancy process.

Yet the question of how to ensure fairness if you have affected staff who are on or who have had a period of furlough leave adds a new dimension to this and is something that all companies in this position should carefully consider - and seek advice on - before beginning any consultation.

If you have employees who you are placing at risk of redundancy while they are on furlough leave, you must consider how you inform them, given that general practice has previously been to inform all of those at risk together. Is an online meeting the solution?

Then, if you find yourself in circumstances where scoring is necessary, you must find a level playing field on which to benchmark everyone. Everyone should be judged equally, with scores on productivity - for example - not skewed by the fact that one employee at risk may have worked through the pandemic while another has had a period of furlough.

All of this must also happen against the backdrop of ensuring that an appropriate pool of people at risk of redundancy has been selected, that a selection criterion - one that’s more objective than subjective - is applied and that any scoring connected to a protected characteristic is adjusted. Any pregnancy-related absence, for example, should be discounted.

Employers need to be aware of their obligations at what can be an emotional time for all involved.

Any employer considering redundancies should pause and consider whether the strange circumstances that we have lived through in the last 6 months mean that they need to amend their usual redundancy process to ensure that everyone is treated fairly. That pause and consideration should reduce stress for all involved and reduce the risk of tribunal claims.

Ben Doherty is a Partner and Head of Employment at Lindsays

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