Employment Law pitfalls and COVID-19

The Government announcement that essentially put the UK in lockdown shook many businesses.

The current Coronavirus pandemic is concerning for employers, some of whom have felt the need to act swiftly to safeguard their business. Many employers will look to make employees redundant or place them on furlough leave.

However, the faster these decisions are made the more this increases the risk of employers being exposed to unfair dismissal claims.

This is particularly so for smaller employers that may not have access to professional employment law or  HR advice, and those who act in haste, without any legal support, may find that they are opening their business up to costly consequences further down the line.

Redundancies because of COVID-19

If you’re looking to make an individual or team redundant, it is essential that a fair process is followed.

As an employer, you must give adequate consideration to who you are selecting for redundancy and why. Implementing fair selection criteria, applying it without bias, consulting openly with employees and considering alternative employment are all essential steps in the redundancy process.

Employers may be able to justify a shorter timeframe for the redundancy process, but it is vital that each step is still taken and it is unlikely that an Employment Tribunal would accept the Coronavirus pandemic as an excuse.

Changes to terms and condition of employment

If you are considering placing employees on Furlough leave or reducing an employee’s working hours or pay, you must have their consent. 

Trying to implement this without an employee’s consent may result in the affected employees terminating their employment and pursuing a claim against your business for constructive unfair dismissal.

That said, the current situation is seeing people pull together in many ways, and in our experience, many employees are willing to be flexible when it comes to pay and working hours. Communicating openly and honestly with employees at this time is of utmost importance, and may help promote a stronger, healthier working relationship in the future.  

Lay offs

You may have a ‘lay off’ clause in your standard employment contract, which will entitle you to lay off an employee without pay for an indefinite period.

If you do not have this clause in your employment contact, you do not have the contractual right to lay off an employee without pay. If you do this, it will give an employee the right to terminate their employment and bring a claim for constructive unfair dismissal.

Where an employer does  have a contractual right to lay off employees without pay may find they only need to  lay off a proportion of their workforce.  If so, the redundancy principles of selection and consultation will still apply and a fair selection needs to be made. Employers who act with haste and without any consideration to a fair process are likely to face claims for unfair dismissal.

Selection for Furlough leave

If you choose to Furlough selected members of staff, this can potentially  create grievances as among those chosen for furlough and those not selected.   In order to avoid claims for unfair dismissal, an employer should be able to justify why a particular employee has  been selected for furlough leave and ideally should have engaged in some form of consultation with all affected employees. 

Selecting employees for furlough leave on an arbitrary basis could lead to problems in the future.

Collective consultation

If your business unfortunately needs to make 20 or more employees redundant, you must consult with employee representatives. If an employer needs to vary their employees’ contracts of employment and there is a risk that an employer will dismiss those who don’t accept the changes, then the same rules on collective consultation apply.

It is essential that employers recognise that the present crisis does not change their employees’ legal rights. Employers will still be required to comply with the relevant legislation concerning unfair dismissal, redundancy and collective consultation. 

If you have any questions regarding any of the Employment law matters discussed in this article, please get in touch with our Employment law team on 02392 98 1000 or email connect@verisonalaw.com.

Here are the types of cases we handle:

  • Contracts of Employment
  • Employer Staff Handbooks
  • Redundancy Process
  • Breach of Contract
  • Breach of Restrictive Covenants
  • Tribunal Claims
  • Settlement Agreements
  • Consultancy Agreements

Sports and Football Law

  • Contracts of Employment
  • Service Agreements
  • Contractual Issues
  • Executive Departures

"Over the years, I have developed a great trust in my working relationship with Mike Dyer, Head of Commercial Law at Verisona. One of the things I value most is that he is always at the end of a phone. On the rare occasions he is unavailable, his secretary is always well informed and very helpful. Through Mike, I have met many other members of Verisona and, just like in the recruitment industry, they understand the importance of being treated like an individual. They make me feel valued and important to both them and their business. At Verisona, you always deal with real people who you know and are in a position to help. Most importantly, Verisona delivers. We recently had an urgent situation regarding the restrictive covenants of new members of staff. Employment specialist Susan Ball came in on a day off to listen to us, dissect and analyse the situation, and translate what we wanted to achieve into the best possible legal language and solution. This is just one example of the calm, efficient professionalism I have come to value from Verisona over the years. Verisona has a refreshing approach to the law. They are there when we need them, always easy to talk to, go out of their way to make sure that we understand what they are doing for us and why, and always get the best results".

Stuart Cox

Legally enforcing the tribunal award

To enforce the Tribunal award we applied to the Defendant’s local County Court for it to be registered and for permission to enforce the award.  

The Court granted the application and on the Register of Judgments, Orders and Fines.  As a result the Tribunal award would appear as a County Court Judgment which would likely affect the Defendant’s credit rating. 

Time limits for enforcing Tribunal awards

It is worth noting that there is no time restriction for registering or enforcing a Tribunal award. You can enforce one even if it is several years old.  In addition, it is usually possible to claim interest on the amount until you receive payment.

A commercial business

"Thanks for all your help on this - you've been so helpful to me in guiding and explaining everything, so just to say thank you for obviously helping represent my case but also allowing me to understand the process and giving me greater awareness of what I need to be mindful of when signing future contracts".

Former employee of professional football club

Sue was easy to deal with and offered all options available. Jane was in contact beforehand to tell me what information was needed and Sue was prepared for our meeting. I cannot praise Sue and Jane enough and would have absolutely no hesitation in reommending Sue and her team.

Mr B

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