Understanding Coronavirus and Employment Law
Coronavirus (COVID 19) has pushed many businesses to the brink and beyond. In desperate effort to stay afloat staff are being furloughed and laid off. Many more face cuts in hours and pay. As the song goes, “there may be trouble ahead” for those that have rushed in.
Concrew Training’s courses on employment law are bang up to date and cover the latest key issues and challenges including:
- Selection for furlough: Decision-making to be scrutinised?
- Redundancy: Selection process and informing and consulting
- Breach of contract when cutting furloughed employees’ pay.
Selection for furlough: Decision-making to be scrutinised?
There will be employees who are aggrieved at being placed on furlough, particularly where this is accompanied by a pay cut. Equally, there will be employees who would prefer to have been furloughed, but their employer has turned down their request. Normal employment law principles should have been applied to any furlough selection process, so employers may face discrimination claims and arguments that their furlough decision-making has breached the implied term of mutual trust and confidence. While employment tribunals are likely to be sympathetic to employers that have had to make quick decisions, furloughing decisions still need to be as fair and objective as possible.
Redundancy: Selection process and informing and consulting
With many employers having to make large-scale redundancies often with little warning because of coronavirus, will tribunals be inundated with these claims in the next few years? Both individual and collective redundancy issues should feature. Employers need to bear in mind that: > a failure to warn and consult individually with an employee about their proposed redundancy could result in an unfair dismissal claim; and collective consultation obligations are triggered when they are proposing to make redundant 20 or more employees at a single establishment over a period of 90 days or less, and that failure to comply can result in a protective award of up to 90 days’ pay for each affected employee.
Breach of contract when cutting furloughed employees’ pay.
The lack of clarity within the Government’s guidance on agreement to furlough means that there is trouble on the horizon for employers that have unilaterally imposed a pay cut on furloughed employees. For example, the guidance on the extended Coronavirus Job Retention Scheme, states that employers must “have confirmed to their employee (or reached collective agreement with a trade union) in writing” that they have been furloughed, but “the employee does not have to provide a written response”. Strictly speaking, employers that are reducing an employee’s pay to furlough them should have obtained the employee’s explicit written agreement, as this constitutes a variation to their terms and conditions of employment.
The Law by smlp.co.uk used under CC BY