Termination under 2 years’ service Q&A

Q: If company finance improves and allows for re-employment in similar areas, how quickly can a post be advertised? And, is it just a case of offering the person initially made redundant back to interview alongside fresh candidates, or is a company duty bound to reinstate them to the vacant position?
A: If the role presents itself again during the notice period, you would be duty bound to give them priority, otherwise there is a risk of unfair dismissal. If, however the opportunity arises post termination, there is no time limit to advertise again or to give the terminated employee first refusal, although they can apply if they want to.  The only risk is that an employee can look to make a claim for unfair dismissal within 3 months of termination and if they saw the post again within the 3 months, they may consider it was not a genuine redundancy. That said, as long as you can evidence that the situation has changed and it was actually a genuine redundancy at the time, there should exist an arguable defence to any such claim.
Q: Can you offer a 3 day week as an option to redundancy and then do we pay furlough based on working 3 days and furlough 2 days or do we immediately go down to a 3 day week, no Furlough from that point.
A: Short time working is certainly an option to consider as an alternative to redundancy.  You would need to check that you have the “lay off/short time working” clause in your contract to enforce this, otherwise you would need to consult and gain consent from the employee.  Short time working is only a temporary measure to avoid redundancy and after 4 consecutive weeks or 6 weeks in a 13 week period, they could then look to make a redundancy claim.
Currently you can utilise the flexible furlough scheme (subject to eligibility requirements), which would allow you to bring your employee back on a part time basis, pay them in full for the hours they do, and continue to claim the 80% back for the hours they remain on furlough. Do remember that you will be contributing more from September when the government reduced the funding through the JRS.
Q: What if an employee has taken sick leave as she doesn’t want to come back to work. How long can she be on sick leave for? What can I do to get her back to work? Can I terminate her whilst on sick leave? She has been less than 2 years of service.
A: There is no limit to sick leave, however after around 4 weeks when typically they would be regarded as on ‘long term’ absence, we would be suggesting holding a welfare meeting to discuss their intentions and what adjustments you can make to get them back in. It is also worth noting that taking such action earlier than four weeks can help a speedier rehabilitation in appropriate circumstances. On the back of the initial welfare meeting, if they had a disability within the meaning of the Equality Act 2010, then you would be under an obligation to not only considerable reasonable adjustments but also to seek medical advice as to how you can get them back into work or what support you can offer.
You could look to terminate on grounds of medical capability as long as you have followed a capability process, put in place any support or reasonable adjustments and sought medical advice. If after following this process, they are still not capable to return, then the risks are lowered if at this point you dismiss.
Q: Could I ask how probationary periods / disciplinary warnings are affected by the lockdown period (if they have expired during that time)?
A: If someone is within their probationary period and they are on furlough, which means you cannot monitor their performance, as long as you have a clause in your contract, you could extend a probation period on the basis you have not had the chance to fully assess their ability to do the work.
Alternatively where there is no clause in their contract, you could have the conversation with the employee to explain you are looking at extending their probation, to reduce any risks of a breach of contract.
With regards to disciplinary warnings being effected by furlough, you could also look to extend the period of time the warning is ‘live’, but if you have a disciplinary policy which is contractual and there is no provision, then ultimately it could be a breach of contract.
Q: Any advice re making redundancies for staff who are on furlough with under two years’ service please?
A: Whilst having under two-years service, an employee has not gained what you might call ‘ordinary’ unfair dismissal rights, there are still a number of other claims an employee of such service can bring. Therefore best advice and practice is to treat such employees in the same way you would employees with over two years’ service, by following proper redundancy procedures based on a sound and justifiable business case. The fact an employee is on furlough or not would have no bearing on the redundancy process save for practicalities of organising meetings and communicating with them.
 
Note: During the live webinar there were some questions asked which were either more akin to specific advice than of a general nature, or require further information in order to provide any meaningful answer. Therefore if you attended the webinar and feel your question hasn’t been addressed, or there are any further questions you would like answering, please do not hesitate to contact a member of our HR and Employment Advisory team
Disclaimer: Please be advised that this is information of a general nature and not specific legal advice. For accurate advice and guidance please call a member of our team on 01274 864 999.