Coronavirus & Redundancies – What Are My Rights?

With the Coronavirus Job Retention Scheme (CJRS) set to change at the beginning of August, waves of redundancies are forecast to take place over the coming months, meaning it is vital that employees at risk know their rights.

The CJRS was introduced as part of a package of measures to safeguard jobs and alleviate the impact of COVID-19 on businesses across the country. However, from 1st August 2020, employers will be required to start contributing under the scheme.

Faced with uncertain trading times for many businesses and partial financial responsibility for all employees from 1st August, many employers will be reviewing their workforce and requirements to consider whether current levels of staffing are sustainable.

If someone is going to be made redundant, they should be treated fairly by their employer and there are certain steps they would be expected to follow.

Coronavirus and redundancies – FAQs by employees regarding employment rights

What is redundancy?

When someone is made redundant, it’s because there is no longer a business need for the work they are doing, and their role no longer exists. Employers aren’t able to fire someone because priorities have changed or the company is having a tough time financially – they have to go through a step by step redundancy process and ensure it has been handled in a way that’s fair, considerate and respectful.

What is non-compulsory redundancy?

This is where employers ask their employees if they would like to volunteer for redundancy. This may be an attractive option for some people and helps employers protect staff who are more dependent on their job.

What is my employer legally required to do when making redundancies?

The legal obligations on any employer contemplating redundancies depend on the numbers of staff that they envisage letting go of. If an employer anticipates that it will have to make 20 or more people redundant at the same location within a set period, it will have a legal obligation to consult with employee representatives (these could be trade union representatives or colleagues elected for this purpose).

Regardless of the numbers, employers should also follow a fair process where they meet with employees that are at risk of redundancy and listen to any suggestions the employees have for avoiding redundancies.

If only a number of employees are going to be made redundant, employers should explain how they are going to score the employees and what criteria they will use. Employees that are selected for redundancy are entitled to be given their contractual notice or a payment in lieu.

What are my rights as an employee regarding redundancy?

You should be given an opportunity to say why you don’t think there should be redundancies or why you don’t think you should be made redundant. You have the right to be accompanied by a colleague or a trade union representative at any meeting where you could be dismissed.

If you have more than two years’ service, you are entitled to redundancy pay. All employees will be entitled to their notice or payment in lieu. You should also be offered the right of appeal against the decision to dismiss.

Should I be consulted with?

If you have been provisionally selected for redundancy, your employer should consult properly with you before reaching a final decision on whether they need to make you redundant. This will usually mean your employer will hold meetings with you to discuss the situation in more detail.

At the end of the consultation period, your employer will confirm whether they are making you redundant, or whether an alternative to redundancy has been found. If you are dismissed for redundancy, you will usually have the right to appeal that decision.

If your employer fails to adequately consult with you, or fails to offer you the right to appeal the decision to dismiss you for redundancy, you may have a claim for unfair dismissal, depending on the circumstances.

If your employer is considering making 20 or more employees redundant within a 90-day period, they will also have a duty to undertake a collective consultation with representatives of affected employees, rather than just meeting with you and every other affected employee on an individual basis. The representatives will be either elected employee representatives or trade union representatives.

If the collective consultation requirements apply, your employer will also need to begin the consultation process at least 30 days before any dismissals take effect (or 45 days if the employer is contemplating dismissing 100 or more employees) and notify the Secretary of State that they are contemplating making large-scale redundancies.

If your employer does not comply with the collective redundancy requirements, the employee representatives can apply to the Employment Tribunal who can order your employer to pay compensation of up to 90 days’ pay to each person affected.

Do I have a right to an alternative job with my employer?

During the consultation period and at any time before your dismissal takes effect, your employer is obliged to consider you for any suitable alternative vacancies that become available in the business or in any associated companies. Any employee on maternity leave or shared parental leave has the right to be offered any suitable alternative employment first.

Otherwise, if an employer has more than one other potentially redundant employee interested in an alternative role, they can undertake a competitive interview process to decide who to offer the role to. You can accept an alternative role on a four-week trial basis to decide whether it is suitable for you.

How much is statutory redundancy pay? Can I claim more if I have excess annual leave?

Statutory redundancy pay is calculated using a formula based on

• Complete years of service;
• A capped amount for a week’s pay; and
• An age factor.

If you have accrued untaken holiday entitlement, you are also entitled to be paid in lieu of that.

Within your contract of employment, your employer may also have included an entitlement to an enhanced redundancy payment and set out the process for calculating that, known as contractual redundancy payment. An enhanced redundancy payment may be payable regardless of whether or not an employee has reached two years’ continuous service, depending on the wording of the employment contract.

It is always worth checking your contract when you first become aware that you are at risk of being made redundant to know where you stand with regards to any redundancy payment. Employees may also be entitled to an enhanced redundancy payment if it can be established that an employer had a reasonable, notorious and certain custom and practice of paying enhanced redundancy payments.

What should I do if I don’t think I’m being treated fairly/legally?

You should raise any objections or counter arguments during the consultation process or at any meetings you attend. If your employer doesn’t take these on board, you should use your right of appeal against the decision to make you redundant. You can also lodge an early conciliation matter with ACAS, the independent government body that deals with employment disputes.

If I think I’m being made redundant for the wrong reasons, can I have my say?

You should have the chance to have your say during the process or, failing that, during your appeal. Beyond that, you can lodge an early conciliation matter with ACAS and ultimately, consider whether you wish to bring an Employment Tribunal claim forward.

If I don’t have access to funds for a lawyer, are there any organisations that can help?

ACAS has lots of really helpful information on its website. The conciliation service is free of charge too and in most cases, you will have to register matters with the public body before it can bring an Employment Tribunal claim in any event.

The gov.uk website also has information about employment law and employee rights. If you are a trade union member, your union should support you and provide access to legal advice.