COLUMN: What happens if your job is at risk after furlough

Last updated Nov 26, 2020

This article is written for the Stray Ferret by Harrogate employment lawyer Richard Port. Richard is Principal Solicitor and Founding Director at Boardside legal. In a series of articles, he explores the issues raised for employers and employees returning to work post furlough. This article is not legal advice – more a look at the complexities of the current situation.

This week Richard looks at what to do if you lose your job:

So, in recent weeks, I have written about necessary considerations for employees returning to work following the easing of lockdown. In this third article, we now look at the issue of restructurings and, sadly, the prospect of redundancies in the context of COVID-19.

Unfortunately, as the lockdown restrictions ease and employers slowly return to more ’normal’ ways of working, it is clear to us from instructions being received that the impact of the coronavirus means some businesses will have to seriously consider restructuring and the inevitable consequential risk of redundancies in order to survive.

The government’s furlough scheme has enabled employers to receive compensation from the government for certain employment costs. That scheme has been subject to amendment on a number of occasions, including by now allowing employers to take advantage of part-time furloughing. However, the scheme will end in its entirety on 31October 2020.

The fact that an employer has furloughed staff does not prevent that employer from dismissing employees on grounds of redundancy. However, the existence of the furlough scheme until 31 October means that employees could well challenge the need for redundancies. However, such a challenge may carry less force from 1 August from which date employers will be expected to shoulder more of the financial burden of the furlough scheme themselves.

Where a company is proposing redundancies in relation to any roles held by furloughed staff, it needs to ensure that the process is carried out fairly, thereby reducing the risk of tribunal litigation. Of course, such steps will include meaningful consultation, in line with legal obligations, taking into account staff may be working remotely.

In terms of consultation, it is clear from the guidance in relation to the furlough scheme that employee representatives can still act without being considered to be “working” but employers will be well advised to bear in mind the following:

if there is an established means of communicating with staff who are absent organisation (e.g. whilst on authorised leave including secondment), then can that be used in these circumstances?
What is the best way to convey relevant information, bearing in mind the employees’ access to IT?
Is it possible/appropriate for certain meetings to take place remotely? Or, if they are to take place in person, can adequate social distancing measures be put in place?
How is confidentiality to be maintained?
is the consultation time framework adequate, bearing in mind the potential use of video technology?
The employer shall acknowledge that the process may be more stressful than normal given the unusual circumstances, and look to provide appropriate support accordingly.

These are hard times for everyone, but it is important that employers plan their restructuring processes carefully, to support employees as best they can thereby to reduce the risk of future litigation.

Redundancy exercises are stressful but, conducted sensitively with effective communication and proper consultation that take into account guidelines and measures to deal with the coronavirus pandemic, are key.