Make sure you know your rights.
The Coronavirus pandemic has resulted in a lot of uncertainty amongst workers whose employers are severely impacted by the outbreak.
In response to the national lockdown, and enforced closures of businesses, many employers made fast and drastic decisions to terminate contracts, make employees redundant or place employees on furlough leave.
Depending on the reasoning for these decisions, and the speed of which they were made, could mean that the businesses have acted unlawfully. The effected employees may be entitled to make a claim for unfair dismissal.
This article outlines the main areas employers may have fallen short and what your rights are as an employee.
If an employer has only made a section of its workforce redundant, it is essential that a fair selection process was followed. A fair selection process includes; reviewing all appropriate roles, having an appropriate selection criteria, applying the criteria fairly and consulting with employees throughout the process. Your organisation must also have considered alternative employment before making you redundant.
While employers may be able to justify undertaking these steps in a shorter timescale than they usually would, it is essential that each step is still taken and communication throughout the process is clear. It is unlikely that an Employment Tribunal would excuse an organisation for failing to follow any process because of the Coronavirus pandemic.
Employers can ask you reduce your pay or hours of work that are stated in your contract, but this is only a request. You have the legal right to refuse or decline a pay cut or working hours.
Although, it is worth remembering that your employer may be struggling and without everyone pulling together, they may not survive the economic decline.
Any attempt by an employer to unilaterally impose a reduction to an employee’s pay will give grounds to the affected employees to terminate their employment and bring claims for unfair constructive dismissal.
Some employment contracts may have a ‘lay off’ clause, which means that employers can ‘lay off’ an employee without pay, or reduce their hours and pay, for an indefinite period (most employers do not have such clauses).
If you do not have this clause in your employment contract, your employer does not have the contractual right to lay you off without pay or reduce your working hours. By doing so, this will give you the right to terminate your employment and bring a claim for constructive unfair dismissal.
If an employer does have the contractual right to lay off their employees without pay, or reduce employees’ hours of work, and decides to only to lay off a proportion of their workforce, they must follow a fair selection process.
The process will have similar steps to the redundancy selection process. If your employer has acted with haste and without any consideration to a fair process, they are likely to face claims for unfair dismissal.
If your employer made the decision to furlough a group of employees, they must have had a fair and valid reason for their selection and they should have consulted with you prior to placing you on furlough leave.
If your employer can’t supply a valid and justifiable reason for placing you on furlough leave or not selecting you for furlough leave, then you may be entitled to make a claim.
It is important to remember that your employer cannot unilaterally place you on furlough leave without your consent.
Your employer must consult with employee representatives if they are proposing make 20 or more employees redundant at any one establishment. These collective consultation rules also apply if an employer wishes to vary their employees’ contracts of employment and there is significant opposition to the proposals.
If your employer fails to consult with you individually or with selected employee representatives, you may be entitled to compensation, which could be worth 90 days pay for each individual effected.
Whilst employers may have a defence to such claims if “special circumstances” existed that meant that they could not comply with the appropriate procedures, this does not absolve employers from failing to follow any procedure at all.
If your employer changes your role in any way, whether it’s your remuneration, working hours, placing you on furlough leave or making you redundant, you are communicated and consulted with. If your employer has failed to follow the correct procedures, then you may be entitled to compensation.
The employment law team at Parrott & Coales are on hand to advise and support you through this time. No matter your question, we are able to offer support and guidance at this uncertain time. Please contact us on firstname.lastname@example.org for confidential, expert advice.