Facing the risk of redundancy – what are my rights?
So, you’ve been furloughed since late March 2020, and as the lockdown is slowly being eased, your employer starts talking about redundancy.
If you work in retail, leisure, the travel sector, for airlines, pubs, restaurants, theatres, cinemas and shops, you would be understandably worried.
So, what do you do?
What are your rights?
You might be owed salary during furlough
Many employers put staff on furlough without checking the contract of employment. As you can imagine, at the very heart of the employment contract is the deal that “you pay me – I work for you”.
So, in the rush to furlough staff, many employers followed the government scheme of not paying full salary, but only 80%. An employer can only reduce your salary if you agree to it in writing, and even then, they have to consult with you, or staff representatives, before doing so.
Many lawyers think that employers, by failing to consult or seek your consent or agreement, have committed a breach of contract, and you could have an unlawful deduction of wages claim against your employer for the unpaid 20% and claim compensation. This is quite separate from any redundancy rights that you might have.
Can my employer make me redundant?
The short answer is yes, so long as they have followed the correct process.
If they have, then the dismissal will be fair. If they have not, then your dismissal will probably be unfair, so long as you have worked there for at least 2 years, and you can claim compensation in the Employment Tribunal.
What is the correct process?
If your employer proposes to make 20 or more redundancies in one go, they have to comply with very strict rules for “collective consultation”. Usually, the employer will enter into negotiations with unions and employee reps to try to agree on a way forward.
If they fail to follow collective consultation obligations, you could be entitled to compensation of up to 90 days’ pay.
Even if they have followed collective consultation rules, the employer can only select you for redundancy if they have followed a fair selection process, and also consulted directly with you.
So in a large redundancy, first there is collective consultation, then selection and finally individual consultation. After that has been concluded, you can be given notice of redundancy. Some employers will also give you a right to appeal.
Usually, if you are made redundant, you will be paid your notice and receive a redundancy payment.
If the redundancy is not a large one, then the process will be the same, except there would be no obligation to do collective consultation.
In either case, you can’t be selected if your “face doesn’t fit” or because of your race, sex, age, sexual orientation, pregnancy, maternity or disability as this would be discrimination. You might be able to challenge the selection as unfair because your manager scored you unfairly. If your selection was unfair, then you will have a claim for unfair dismissal and claim compensation.
What redundancy payment will I be entitled to?
All qualifying employees will be entitled to statutory redundancy. The Government has a useful site that allows you to calculate what that might be – follow the link:
Some employers have enhanced redundancy schemes. You need to check with your employer if one applies to you.
So what do I do now?
No doubt this is a worrying time. If you want to take some legal advice about your rights, please contact us, and we can put you in contact with a lawyer who specialises in employment law. They can check if you have a potential claim and advise you how to proceed.
NOTE: Nothing in this blog constitutes legal advice. It summarises the law. If you need advice about your rights, you need to seek legal advice from a qualified lawyer.