Live Webinar: Redundancy Q&A
Q: When making someone redundant, can you advise if their notice pay whilst on furlough should be paid at 100% ?
A: Whilst there is a legal argument to say that in some cases an individual will only be entitled to notice pay at the rate of furlough pay, the best advice is to ensure that the notice pay is topped up to 100% of the employee’s normal weekly pay. Although the question has not been tested in any Employment Tribunal yet, it is likely that rulings affirming this approach will be delivered in due course given that the intention of the CJRS was never to penalise employees unexpectedly when it comes to notice entitlement should they be dismissed during the furlough period.
Q: We have multiple sites approximately 10-15miles apart. If we need to consider redundancies, can we do it by each location or are there some region/area limits we would need to adhere to?
A: This question will be very much dependant on the facts of the case but there could indeed be an argument to say that all or some locations should be treated in the same way for the purposes of pooling on the basis that it can be said that the employees all undertake the same work of a particular kind at a particular location. There are no fixed geographical limits in any statute or case law to rely on here, it will very much depend on what happens in practice and where the employees work and how they work during the course of normal day-to-day operations, along with the provisions of any employment contract.
Q: If we’re looking at making just one role redundant, due to that role’s tasks being absorbed by other staff, do we need to do any type of pool if there are no similar roles?
A: Pooling depends on who carries out the work of particular kind which is ceasing or diminishing. There is nothing wrong per se, with pools only containing one employee but employers must also have proper regard to the question of pooling.
Q: Could you advise how an appeal process should be run?
A: Although there is no specific right for an employee to raise an appeal against an redundancy, it remains good practice to afford this right. The appeal process is run in the same way as advised by the ACAS Code of Practice on Disciplinaries and Grievances with the employee submitting their grounds in writing with a follow up appeal hearing being convened for the purposes of properly investigating and considering the employees points. The majority of redundancy appeals revolve around the matters of selection, scoring and pooling.
Q: What are the requirements around offering alternative employment? For example, where we have one vacancy in another area of the business but three redundancies. Are we obliged to retain one or is an open interview process acceptable to which we would invite them to apply? Just to clarify that short time working would not constitute a change in Ts & Cs and would therefore not be included in the 20 roles for collective consultation?
A: Employers are under a duty to conduct a search for suitable alternative employment for employees who are at risk of redundancy. This can involve offering current vacancies, but it can also involve looking at changing terms and conditions, bumping, job shares and other measures. The question of suitability is subjective and employees should be given an amount of discretion as to whether an alternative is indeed suitable for them. When it comes to open vacancies, employees at risk should usually be given first refusal over others who are not at risk even where this comes to a competitive recruitment exercise. Short time working will not constitute a change necessitating collective consultation if the employer already has a contractual right to place employees on short time working.
Q: Do you have to undertake the collective consultation process if you are making less than 20 employees redundant?
A: Potentially, yes. Collective consultation will apply when an employer is proposing to dismiss as redundant 20 or more employees in a 90 day period. The definition refers to the numbers of employees who are at risk, as opposed to the numbers actually being made redundant and will also apply in cases involving variations to terms and conditions.
Q: We have provision for lay off and short time work stated within our contracts – What are the practicalities of both and how does the selection criteria work?
A: Both measures are intended to be short term measures to address temporary downturns in work. Employees on lay off will have no work in any given week and employees on short time working will only have fewer hours of available work. There is no minimum or maximum amount of time an employee can be placed on either, but after 6 continuous weeks or 13 non-consecutive weeks an employee can make a request for a redundancy payment. The selection process should be akin to the redundancy selection process and be based on non-discriminatory, objective criteria based on the work which is affected by the overarching downturn in work.
Q: We intend to put at risk both of our Team Leaders and will be pooling and scoring them. However, we also have a Line Leader who is basically an apprentice Team leader in training (the plan was for them to step up to Team Leader in the future) – should that person be included in this pool or not?
A: With apprentices there are complex rules regarding their selection for redundancy and advice should always be sought before placing an apprentice at risk. When it comes to pooling however, the general principle in that anyone who carries out the work of a particular kind which is ceasing or diminishing should be included in the pool with skills and interchangeability of roles also being considered.
Q: Is it a reasonable “business case” to say the role is simply no longer required?
A: Potentially yes, but an employer must be able to explain why the role is no longer required with reference to the requirements of s139 Employment Rights Act 1996 which refers to and requires a reduction or cessation in work of a particular kind.
Q: Do we have to pool part-time & full-time employees even though we only want to reduce the workforce by the part-time hours?
A: The best advice on this would be to do so. The issue is vexed and there is no satisfactory authority on whether part time work can be distinguished from full time work as work of a particular kind. Employers should pool all employees irrespective of hours worked if they carry out the work of a particular kind which is ceasing or diminishing.