On Sunday 10 May 2020, Bo-Jo made his infamous and ‘ground-breaking’ announcements for society’s rehabilitation ‘back to normalcy’ and Chancellor Rishi extended the government’s ‘Paid to Furlough’ scheme until at least September 2020; in the meantime the COVID-19 crisis has continued to ravage businesses, leaving extravagant disruption costs in its wake and aftermath.

Businesses and professionals are having to quickly change and adapt their operational procedures and processes in order to best suit and address the current, unsettling and uncertain status quo in order to survive.

Adding to the Melee is the current wrangling –‘about when is the best  time to return to work’ – between furloughed employees and their employers bubbling to the surface every week,  it is likely that employers will have to seek alternative measures to mobilise their workforce in order to get business operations up and running again. Some of these alternative measures will mean the consideration of such options as: redundancies, redeployment and ultimately, the release of unyielding employees – which will unfortunately become an increasing necessity in the coming months as the tensions between furloughed staff and employers rises to a crescendo.

These options – though available – raise tricky legal issues for employers to consider as the lacuna in the employment law framework in this little known area of ‘furloughing’ grows into a huge chasm.

As several businesses are forced to reduce or adjust the size of their personnel in order to survive, the time might now have come for employers to consider the option of redundancy. In doing so they will need to start reviewing the number and type of employees affected; as well as considering the pool and selection criteria which may be needed, when selecting those for redundancy. Whether we like to address the big elephant in the room or not – the harsh reality for many businesses is that even with the support of the Coronavirus Job Retention Scheme, favourable loans, government grants and business rate holidays etc. It has been challenging to retain their employees where cash flow – the lifeblood of any business – has rendered the business anaemic and in critical state. Business owners – especially SME’s are reporting in some anecdotal cases that those staff who have been furloughed seem to like remaining on furlough! even where the employer is trying to galvanise them back to work. Some cynical views have indeed been expressed about the lack of staff motivation to come off furloughing and yet other views demonstrate a keen concern about health and safety procedures for the safe return  workers to the working environment they left 10 weeks ago.

Whilst there is no doubt that the Coronavirus outbreak constitutes ‘extraordinary and unexpected circumstances’ – nevertheless, employers must still follow the normal employment law framework and legal provisions in place; and must continue to conduct their legal due diligence before taking any steps to commence redundancy procedures .

Pursuant to the Employment Rights Act 1996, an employee is dismissed for redundancy where the dismissal is attributable wholly or mainly to the fact that the employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by it, or has ceased, or intends to cease, to carry on that business in the place where the employee was so employed or the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where they were so employed, have ceased or diminished, or are expected to cease or diminish. As it stands  the COVID-19 situation has catapulted most if not all business into the realms of reassessing their business operations. There is no doubt that things will never return to the way things always were. There is the ‘new normal’ to consider and this will extend to business operations and trading practices. Businesses may need less physical space and less staffing manpower in order to survive – and to thrive in the Post Covid 19 Era.

If an employer proceeds with making an employee redundant, a careful review and consideration of the law in relation to redundancy is required. In the first instance, An employer should still (i) examine alternatives to redundancy, (ii) consult employee representatives or other employees themselves, (iii) consider the criteria of selection of that employee, (iv) have an individual consultation with said employee and (v) offer suitable alternative employment where possible with a statutory trial period of four weeks, as well as statutory redundancy payment. If the employer fails to comply with these checklist duties, then the redundancy may be found to be unfair and therefore, it could give potential rise to an unfair dismissal claim.

In order for employers to prevent or avoid redundancies, there are certain procedures that can be employed, such as implementing:

• ‘the last in first out policy;
• seeking applicants for voluntary redundancy or early retirement,
• allowing current workers to operate flexibly on reduced hours by agreement,
• freezing or limiting recruiting new employees,
• minimising or banning overtime, and
• reallocating existing personnel to another section of the company that is less impacted by the pandemic issues (if this is at all possible)

Employers can employ some of the following measures, in addition to the above,

• including short- time working,
• reduced pay or temporary lay-offs, i.e. when the employer does not have enough work, so they ask some of the workforce to stay at home.

Employees can still have employment rights during a lay-off, including the right to be paid. If an employee agrees to decreasing his working hours for a specified period of time, the employer should confirm the hours to be worked, the start date of the modified agreement, as well as when the employee will be able to return to work with his previous working hours and details of how his/her pay will be affected.

These are complex considerations and steps to be taken by employers. Therefore, advance planning is key.