How can companies avoid discriminatory actions in the redundancy process?
By Emma James, Senior Associate, JMW Solicitors LLP
With the furlough scheme finishing in October, many businesses are now considering their options, including whether to continue to furlough staff, ask them to return to work, or make redundancies.
If the latter is being considered, employers will need to adopt a fair process to select employees, consult with them and offer suitable alternatives where available.
Businesses should not assume that everyone who has been furloughed should automatically be selected for redundancy. This is especially important where a higher proportion of furloughed staff have childcare arrangements or health conditions, because those groups could be disproportionately affected.
To select fairly, you should instead look at where there is a reduced need for employees to do work of a particular kind in the business.
Here are some practical tips to help businesses avoid potential discrimination:
- When scoring employees in a redundancy process, ensure you adopt objective criteria and avoid indirect discrimination. For example, if considering attendance records, ignore disability related absences or absences linked to pregnancy.
- Consider if adjustments to the consultation process are needed for those with health conditions or childcare commitments, including changes to the timing and format of meetings, or additional breaks.
- Don’t forget about employees on long-term leave (e.g. maternity or sick leave) and the need to engage or include them as appropriate. Even if they are not in the redundancy process, they should be kept up to date with key business developments.
- If in doubt, seek legal advice (especially if the redundancy process will involve 20 or more employees).
In addition, when deciding who to keep on furlough or not, speak to staff to understand their particular needs and circumstances. For those in Covid at risk groups or with children, additional adjustments are likely to be needed for returning to work.
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