Coronavirus has complicated many aspects of the employment relationship, not only introducing new concepts such as furlough but making certain HR processes more difficult due to restrictions on businesses.
In the realm of employee relations, some things are better done face to face. Dealing with people directly allows us to read their body language and facial expressions, reduces the risk of miscommunication, and enhances credibility and trust. In sensitive situations, this is incredibly important. Right now, however, this may not be an option, and with one in three UK firms expecting to make redundancies in the third quarter of 2020, you may need to find ways to conduct the process remotely.
The question is, is this legal? And, moreover, is it wise?
The legal position
When it comes to redundancy, there are a number of essential elements that employers must follow in order to ensure a fair process. One of these elements is the duty to inform and consult with affected employees, either individually or (in cases of 20+ redundancies) with appropriate representatives.
Redundancy law has not changed in light of coronavirus. As such, despite the current conditions under which businesses are operating, holding consultation meetings remain an essential part of the process and employers cannot simply overlook this stage because it is inconvenient. At the same time, we are in unchartered territory, and there is nothing in the legislation that explicitly prevents employers from conducting meetings virtually.
Indeed, employers would be expected to use whatever means are available to them ensure consultation takes place, and if an in-person meeting isn’t possible right now, then video link may be the only viable alternative. Whatever form consultation takes, the key is to ensure that all affected employees are consulted with meaningfully. In other words, consultation is about more than just informing the employee of a decision you’ve already made; it should open a two-way dialogue where views and information can be exchanged, with the ultimate aim of exploring ways that redundancy might be avoided, as well as discussing any selection process with the employee. In this respect, conducting that process via video link is likely to be seen as more reasonable than doing so over email – indeed, consulting via email only may raise questions as to whether it was meaningful.
Other things to think about
Of course, just because you can doesn’t mean you should. Remote consultation may end up being your only option, but it’s important to explore other avenues first. Are face-to-face consultations completely out of the question? Provided the necessary social distancing measures are in place, it may still be possible to conduct consultations safely within the workplace.
In addition to logistical challenges, keep in mind the human impact of redundancy and your obligation to your employees to be as fair and reasonable as you can during this potentially life-changing moment for them. In any redundancy situation, being compassionate and authentic in your communications and treating people with dignity and respect is paramount. Remember that credibility is undermined when your actions don’t align with your words, so making somebody redundant over email whilst offering your heartfelt condolences, for example, is likely seem disingenuous. On the other hand, taking the time to meet can help turn a challenging conversation into a trust-building interaction.
If you cannot adequately protect your employees and need to explore other options, think carefully about how this may impact the process. How will you ensure this doesn’t affect employees’ ability to share their views and have their input on potential alternatives to redundancy? Are remote methods of consultation likely to cause upset? What does the employee want to do? How might this look to an Employment Tribunal?
Not only could telling someone they have lost their job over the phone – or worse, via email or text – raise questions about whether consultation obligations have been met, but it may breed resentment, arguably making it more likely that the employee will pursue a claim.
These are exceptional circumstances, and while it may not be possible to consult in any other way than from a distance, it’s about working out what is reasonable in all the circumstances, taking into account the size of your organisation and the resources available to you.
Don't go it alone
Not only is redundancy a particular stressful time for all those involved but it is also a particularly complex area of employment law, meaning the margin for error is high.
Should you require advice, guidance or reassurance, our Employment Law specialists can help you to carry out a redundancy exercise confidently and compliantly. We can even manage key elements of the process for you, from reviewing your business case and execution plan for due diligence to full end-to-end project management, as part of our bespoke HR Consultancy service.