Where 20 or more employees are involved, employers should also consult collectively for a period of at least 30 days (45 days if 100 or more employees are involved) with elected employee representatives or, where a trade union is recognised, with trade union representatives.
Where there will be a choice between accepting a pay cut or being made redundant, that should be made clear in the consultation processes.
Redundancies should only be proposed where a reduction (or cessation) in the requirements for employees to carry out work of a particular kind (or in a particular place) can be justified.
Redundancy selection criteria and procedures should be demonstrably “fair” and consideration should be given to any suitable alternative employment that could be offered to the employees, such as retraining them to work in another area of the business.
Failure to comply with the collective consultation requirements could result in employment tribunal awards of up to 90 days’ pay per employee.
Failure to comply with the other requirements referenced above could result in successful unfair dismissal claims, currently capped at £88,519 (or 12 months’ salary if less) plus a basic award of up to £16,140, per employee.
Care should be taken to avoid unlawful discrimination in the implementation of any such changes.
For example, if ability to work remotely is a criterion, it should not be assumed that female employees with children will be unable to work effectively on that basis.
Workforce changes should be made objectively on a business driven basis and records of decision making kept, to help protect against potential future claims.
Other contractual changes
Employers should also consider other changes to employment contracts and policies that could help the business adapt to the new environment, again through a careful process of consultation and consent.
Changes may include:
- greater place of work flexibility , including being required to work from home (or from dispersed locations) at the employer’s discretion;
- more focus on IT, security, reporting and supervision requirements for the purposes of remote working;
- greater flexibility as to job role, status and reporting lines, to enable the business to flex in response to market upheaval;
- clear references to the need to comply with health and safety requirements introduced by the employer, including social distancing protocols and reporting;
- amendments to data protection policies and privacy notices to cater for the processing of data relating to vulnerabilities to infections and symptoms of potentially infectious conditions.
Back to old office routine
We are not quite there yet but when a return to office working is more permissable the main problems for employers are:
- how to safeguard the health and safety of employees, clients and others; and
- how to convince people that it is safe to return.
