Last reviewed 18 August 2021
What should employers consider when managing a redundancy process as the furlough scheme comes to an end on 30 September 2021? Opeyemi Ogundeji, researcher and employment law writer at Croner-i, explores the issues.
The furlough scheme has been somewhat of a saving grace for a lot of employers whilst coronavirus lockdown restrictions have been in place. As these restrictions are slowly eased and the scheme winds down, employers may find that they have no other choice but to make some roles redundant.
What is redundancy?
A redundancy situation exists where:
you shut down a business or part of it completely
you shut down at a specific location (even if you are moving to a new location)
your requirement for employees to do work of a particular kind has reduced or come to an end.
There are various steps that will need to be considered in any redundancy exercise. These are:
careful initial planning and preparation
considering if there are alternatives to redundancies
notification to the Department of Business Innovation and Skills (on form HR1) if there are to be more than 19 employees affected
collective consultation will be required in all cases where more than 19 employees are affected, but should be considered even in smaller exercises too
statutory duties to consult and inform appropriate representatives of affected employees
the method and unit to be used for selection along with the selection process
individual consultation will be required in all cases
ending the contract of employment through the proper use of notice or payment in lieu of notice
the payments that will be due to any employees who are made redundant
offering a right of appeal to anyone who is selected for redundancy.
The planning stage in a redundancy exercise is crucial. Employers should give particular consideration to:
defining why redundancies are necessary — in case there are alternatives options they can explore
preparing a timetable for the steps that will need to be taken, when they will be taken and by whom
preparing in advance the draft documentation you will need at each of these stages and ensuring at all times that such documentation is securely stored and kept confidential
checking in advance all affected employees' contracts of employment and other details, for example as regards length of service, notice periods, whether you have the right to make a payment in lieu of notice, the employee's age and their salary and benefits packages
explaining to managers the legal timescales involved; for example a large scale (more than 100) exercise will involve a 45-day consultation period and a notice period of up to 12 weeks depending on the terms of the contracts of employment, plus time needed for elections of staff representatives; the process can take around 5 months in total and even a single redundancy involving just one post will take a few weeks to handle fairly
lining up your team, for example payroll, lawyers, accountants, outplacement consultants, job centre and so on (you may have to wait until after the initial announcement is made for reasons of confidentiality)
whether you have got employee representatives in place to consult with in the case of collective consultation or you need to build in an election process
managing the human element; redundancies invoke many emotions and you must be prepared that even the most skilled person can find it hard to make the announcement or sound genuinely concerned when what they have been told to say is scripted; they will go “off script” and you will have to be prepared to clarify things; a “frequently asked questions” document for managers may help to keep them “on message”
the strategies to be put in place for those who are left and who will need clear leadership and direction; and who at a senior level you will keep free for the appeal stage so there can be no allegation of prior involvement.
Employers should first consider if there are alternative measures that could be put in place to reduce the need for redundancies. These might be:
introducing a freeze on recruitment
reducing the use of temporary workers
re-training employees into other areas (redeployment)
temporary lay-offs or short-working
changing terms and conditions such as a wage freeze, wage cut, reduction in bonus or pension contributions.
As part of the consultation process, you will need to discuss these alternatives with staff. You should not assume that staff would not be willing to consider alternatives to redundancies.
Legal risks with redundancy
The main legal claims that an employer in a redundancy situation might face are for:
a “protective award” where the employer has failed to consult collectively with employee representatives: this award starts at 13 weeks’ pay (actual pay, not the statutory capped sum of a week's pay) per affected employee and a tribunal will only reduce that figure where it believes there is a good reason to do so; such claims can be brought by the employee representatives until three months after the last dismissal
unfair dismissal: any employee with two years’ service can bring a claim; those with less the appropriate length of continuous service can bring a claim where they believe the reason for their selection for redundancy was unlawful (perhaps on the grounds of discrimination or because they were pregnant or on maternity leave or because they acted as an employee representative); claims can result in a basic award which is calculated in the same way as statutory redundancy pay and a compensatory award which is based on the employee's financial losses up to a maximum of £89,493 from 6 April 2021
discrimination on the grounds of sex, sexual orientation, race, ethnic origin or nationality, religion or belief, age, disability or on the grounds of being a part-time worker or employee on a fixed-term contract: in the redundancy context, it is unlawful to select candidates for redundancy on these grounds or to treat them differently on these grounds; in particular, care needs to be taken to ensure that any selection criterion used do not have the effect of treating a particular group less favourably
an injunction to prevent you from breaching a collective agreement: trade unions are most likely to bring such a claim, arguing that there is a binding agreement dictating how a redundancy situation should be dealt with that you should honour; such an action would be brought through the courts
statutory redundancy pay: employees with two years' service are entitled to a redundancy payment based on their age, length of service and their weekly pay (up to a maximum of £544 from 6 April 2021); such claims can be made for six months following the dismissal; the maximum payment is currently £16,320 from 6 April 2021
contractual redundancy pay: if you have promised to pay an enhanced payment to employees, this contractual entitlement can become binding as a matter of custom and practice.
To avoid these legal risks, careful planning of any redundancy exercise will be important.