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Redundancy consultation with staff who are not in the workplace

15th November 2020
We are often asked about how employers should staff that are not in the workplace when a redundancy exercise is underway.

Traditionally, this issue has affected staff on long-term sickness absence or maternity leave. In current circumstances however, this issue affects a broader range of staff, and greater number of staff, including those on furlough leave.

There are many myths relating to employees that are absent due to maternity leave or long-term sickness leave. In this situation, many people believe that the employer cannot contact the employee concerned. There is also a common dilemma caused by varying views within the  workforce, where some staff would regard being contacted while absent as tantamount to harassment, and yet others would feel unappreciated or ignored if they were not contacted. You may well conclude that you are damned if you do and damned if you don’t contact them! Many employers therefore believe that they are taking a cautious and caring approach in not contacting the absent employee - because they believe it will be too distressing for the employee if they do contact them.

Although an employer may feel uncomfortable contacting an employee that is absent, and may indeed receive a blunt response from an employee that feels the employer is invading their privacy by contacting them while away from work, such an approach (ie of not consulting an absent employee) is certain to be criticised in any future Employment Tribunal hearing, and will count against the employer!

Put simply, an employer must include everyone on long-term absence, be that absence due to maternity leave, chronic illness, or furlough leave. It is well established in the case law that an essential element of a fair redundancy process (irrespective of how many staff are at risk of redundancy at that time) must involve consultation with the affected staff.

Obviously, some adjustments need to be made to the normal consultation process when dealing with absent employees. These adjustments may not only be adjustments to the method and means of consultation, but also to redundancy selection criteria and scoring systems.

With regard to adjustments to selection criteria, it is important that employers do not use (or at least adjust) criteria that effectively penalise staff for absence from the main workplace, they should also be adjusted to make allowance for changes to performance that may simply result from the absence from the main workplace. Clearly, there is a legal duty under the Equality Act 2010 to make “reasonable adjustments” to assist any disabled member of staff that may otherwise be disadvantaged by the criteria that have been adopted (for example by the employer ignoring absences required by the individual for medical treatment or other therapy, or simply to attend medical appointments).

It is worth remembering that the HMRC guidance indicates that employees on furlough can still be made redundant. This indicates that the employer is still expected to consult with any employee on furlough leave.

In light of the lockdown, and restrictions placed in different tiers, the traditional approach of face-to-face meetings to consult about redundancy, may not be lawful, let alone appropriate or desirable. In this case employers need to think of alternative means of carrying out the consultation. This can be done say by Zoom, Skype. Microsoft Teams, or other similar platforms. Alternatively, if that method is not possible for an employee, the employer will still need to make the effort to engage the employee in consultation, be that by telephone, email, or by post. In any event, whichever means of communication is adopted, the employer needs to make allowances for the time it will take for any individual to respond using the method that has been adopted. Employees should be given the chance to actually see any relevant documents, and to prepare their response in advance.

Problems can be avoided by employers taking a number of preliminary steps.
Firstly, the employer should ask each employee if they have any problems accessing or using any particular form of communication. For example, an employee may have very poor internet connection, or no internet connection at all. In such case a different means of communication needs to be used for that employee (such as telephone).

Employers need to send accessible copies of the relevant documents, such as scoring sheet. This could be done as attachments to emails for example, or screenshots.

It may be appropriate to record a consultation meeting. For example, the employer could record it, or agree for the employee to record it. After all, if the employer is going to handle it fairly, they have nothing to hide in agreeing to this!

Details of the consultation should always be confirmed in writing, and ideally coped to the employee concerned.

What do you do if the employee refuses to co-operate?

Obviously, you cannot force an employee to take part in the process. But in this situation, you must do all you can to involve the employee. You should explain that it is in the interests of both the business and the individual to co-operate and take part. After all, there is always a possibility that an individual may have a suggestion or proposal that will avoid or reduce the need to make redundancies! In any event, the business should still send all the relevant information to the individual, even if they do not respond and even if they express a wish not to take part in the process. If an employer fails to provide the relevant information they will certainly struggle to argue that they acted fairly or reasonably if they then went on to make that employee’s role redundant.

While an individual may say that they do not wish to be involved in the process at the time, it is known for such individuals to then have a change of mind, or later deny that they turned down the chance to be involved. So, to reduce the risk of this coming back to cause problems for an employer, the employer should do all they can to avoid that risk in the first place and send the employee the information anyway.

With the numbers of people being made redundant, and the reducing opportunities in the job market, it is more important than ever for employers to engage with all their affected staff in any redundancy exercise, and be able to evidence that involvement.            
If you need any further advice on any matter raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.

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