My first post in this series, based on updated guidance from the Chartered Institute of Personnel and Development (CIPD), outlined redundancy procedures under the Coronavirus Job Retention Scheme, and highlighted some additional considerations for employers. Today’s post explores the ins and outs of redundancy consultations.
Logistical and representation issues
The usual obligation to consult staff both individually and collectively about any redundancy proposals and allow them to comment on these before they are finalised, and rules about what a fair consultation should entail, will continue to apply irrespective of whether or not staff are or have been furloughed.
While the furlough scheme is still in operation, one of the primary issues to bear in mind when undertaking redundancy consultation processes with staff who are furloughed will be the obvious logistical issues that are likely to arise from consulting with staff remotely.
Redundancy consultation meetings will still need to take place individually and/or collectively. Employers will therefore have to consider how best to enable this, via methods such as online meetings or telephone calls. They may also need to build extra time into the consultation process to allow for any logistical issues that may arise.
There is no statutory right for employees to be accompanied at redundancy consultation meetings, but it is good practice for employers to allow this under their redundancy procedure. So employees can still be given the right to be accompanied to redundancy meetings (if that is your normal practice), even if such meetings are carried out remotely and/or virtually.
Employees and staff representatives will still be allowed to accompany colleagues to redundancy meetings even if they themselves are furloughed. The updated employer’s guidance on the Coronavirus Job Retention Scheme confirms that: “Whilst on furlough, employees who are union or non-union representatives may undertake duties for the purpose of individual or collective representation of employees or other workers.”
If the collective consultation is triggered because an employer will be making 20 or more redundancies in a 90-day period, the employer will need to ensure that they consult collectively with the appropriate trade union or existing staff representatives, and that they meet the 30-day (or 45-day for 100 or more redundancies) deadline for commencing consultation.
However, the effect of the pandemic, including current ongoing advice that people should work from home where they can, may mean that there are practical difficulties with appointing representatives in the normal way and/or undertaking full consultation. These issues could be more pronounced where there is no recognised trade union or existing staff representative, meaning an election has to take place before consultation can begin. Employers should take every step to ensure consultation takes place, adapting the process to suit their own particular context.
Part of consultation should always include assessing whether there are any other alternatives to redundancy.
Employers should bear in mind that the furlough scheme is due to finish at the end of March 2021, and should consider what impact this may have on the timeframe for any redundancy consultation period (whether that be on an individual or collective basis). More information is available in the CIPD’s returning to the workplace guide.
“Special circumstances” defence
The law provides a rarely used defence for employers who have failed to collectively consult. Employers have to prove “special circumstances” that made it not reasonably practicable to comply with the collective consultation requirements.
While the pandemic is unusual, it does not give employers an automatic excuse to avoid consultation. The defence applies to failures to consult at all, failures to consult in good time, or failures to provide the required statutory information for consultation. The fact that the Coronavirus Job Retention Scheme has been introduced, along with other government support, makes it harder for employers to rely on the special circumstances defence.
It therefore seems unlikely that the current situation would qualify for the defence, and employers should continue to comply with their redundancy consultation duties to the greatest extent possible.
My next post in this series will explore the role of compassion during a redundancy situation. If you would like further information in the meantime, email me or call me on 020 7099 2621.