It is all too easy for an employer to get a redundancy exercise wrong – especially when someone is absent from the workplace.

Some employers disregard staff on maternity or family leave – or on long-term sick leave, or those currently furloughed. Some employers even choose not to consult with those on maternity leave or long-term sick leave. No matter how distressing it for everyone, it still has to be done. Getting it wrong will lead to a claim for unfair dismissal.

Employers must always include everyone on long-term absences. You may need to make special adjustments when scoring them for factors like performance and absence — especially if it is related to a disability and remember that special rules apply to women on maternity leave when it comes to being offered suitable alternative employment.

HMRC guidance says that employees on furlough leave can still be made redundant. They must still be included in the consultation process.

What should employers do with absent staff?

There is nothing to prevent you from  inviting  the absent staff in to meet and discuss the situation you are facing. If writing or emailing,  it is always worth a follow-up text or phone call just to make sure they’ve definitely received what you have sent.

Given social distancing, it is often going to be desirable to avoid face-to-face meetings with pregnant women or those on long-term sick. If is the case, you should consult using Zoom, Skype, or a similar platform, and make sure the employee has the chance to look at documents and prepare their response in advance. Failing that, use the telephone.

How do you consult online?

  • Always ask the employee if there are any access issues. Some people may not have a laptop, or a decent internet connection. If is the case, you may have to have the meeting by phone.
  • If they are online, use screensharing for documents, such as scoring cards, so everyone can see the same thing at the same time.
  • Record the meeting. Acas advises against this but, we think it should be recorded unless the employee has a good reason to object. But do make sure the employees know it’s been recorded.

What if an absent member of staff doesn’t want to join in with the consultation?

You can’t force an employee to engage in consultation with you. All you can do is make sure they’re kept fully informed and have the opportunity to engage, and that you have kept clear records of your attempts to consult with them.

The important thing  is to ensure the employee can’t later say they were excluded from the process because they were not at work. If they choose not to engage, you are entitled to proceed with a redundancy.

 

13th August 2020

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