Redundancy and Covid-19: 5 pitfalls HR must avoid

After several weeks of lockdown, the stark reality for some HR managers is that redundancies are now unavoidable. Here are the top 5 pitfalls for HR to avoid when managing a redundancy process amidst the Covid-19 pandemic.

Collective redundancy consultation with ‘appropriate representatives’ is subject to a strict statutory timetable. This is triggered where at least 20 redundancies are being ‘proposed’ at the same establishment within a 90-day period. Failure to comply can result in unfair dismissal claims and protective awards of up to 90 days’ pay per affected employee.

If business plans are not yet solid enough to count as ‘proposing’ redundancies, take care that any staff communications, particularly regarding the economic outlook, don’t give the impression that redundancies are inevitable. This could unintentionally trip you up on the statutory timetable.

In the absence of a recognized trade union, employers might be in a position to choose between employee representatives elected directly by the affected employees or an existing standing employee body, such as a staff forum. Think carefully if there is a choice. Running employee elections at work with social distancing (or, remotely, but without sufficient IT support) could be problematic. Alternatively, is any standing body of representatives up to the job, and do they have a mandate? Consider also if you have enough employee representatives to keep the process moving if anybody falls sick.

Covid-19 has a heavy impact on the logistics of managing collective redundancies, particularly in relation to consultation meetings and communications. Consider carefully social distancing options for key announcements or meetings at work and how best to communicate with absent employees or homeworkers – Skype, telephone or post, etc? Factor in employees’ access to IT and the timing of any contact, bearing in mind home-schooling and caring responsibilities.

If managers and employee representatives are currently furloughed, can you bring them back to help run the redundancy process? Is this ‘work’? Government guidance has clarified that furloughed employee representatives may undertake collective representation duties but there are some grey areas.

Remember that discrimination laws still apply to a Covid-19 redundancy process in the usual way. Avoid the trap that is automatically selecting furloughed employees for redundancy without following an objective process. This could result in a disability discrimination claim, for example, from a furloughed employee who has been shielding due to a serious medical condition.

Calculating statutory and/or contractual redundancy payments for furloughed employees is not going to be straightforward. Considering the complexities of determining working hours, flexible furlough arrangements, and accrued annual leave entitlements, definitely allow extra time for crunching the numbers!