Reports in the press reveal that the Office of National Statistics' (ONS) latest statistics show that there have been 370,000 redundancies in the period leading up to the second lockdown, a record number; with the overwhelming majority as a result of the coronavirus pandemic. Many businesses are obliged to make the hardest of decisions, resulting in savage cuts to their labour force, with the hospitality and retail sectors the hardest hit.
The Minister for Employment, Mims Davies said "while there was another record rise in redundancies in the latest three months, as a whole, they began to ease during October.' She carried on 'It's been a truly challenging year for many families but with a vaccine beginning to roll out with more perhaps to follow and the number of job vacancies increasing there is hope on the horizon for 2021." She optimistically went on to assert that the current Plan for Jobs had already helped a wide range of people into work across the UK.
Businesses faced with the unpalatable fact that they must make redundancies or take some other steps that impact on their staff in order to survive must be very careful to avoid discriminatory pitfalls and provide absolute clarity to their staff about their decisions. Normal employment law principles must be applied and it would be wise to avoid rushed decisions, however urgent the position. The whole situation is not helped by the often ambiguous guidance provided by the government on several points related to this question. It is highly likely that many situations will evolve into Employment tribunal issues and whilst there may be a certain sympathy for employers placed in the position of having to make very quick decisions, any decision still needs to be as fair and objective as possible.
Daniel Theron, a partner, pointed out "one of the most common types of claim that comes before Employment Tribunals are unfair dismissal and discrimination claims arising from redundancy. In the current crisis, businesses are having to significantly reduce their workforce frequently with very little warning." Daniel further commented, "the announcement to put London into tier three in the run-up to Christmas has provided businesses with just three days' notice of the significant change to their ability to trade which will almost inevitably lead to employees being furloughed, made redundant and in some case dismissed, in some cases without the proper steps currently required by law being taken."
A large organisation with a Human Resources department may have laid contingency plans and can take action without a risk but small restaurant owner in South East London that was relying on being able to take advantage of the scant Christmas trade may have no choice but to act immediately when the rug was pulled from under them.
Another area of risk is the question of whether an employee can be forced to return to work in the current pandemic if they believe that to do so would not be safe for them. A member of staff may think that their employer has not applied the safe working practices demanded by the current situation. Employees are obliged to obey their employers' reasonable instructions. If they do not believe it is safe to do so they are protected from dismissal or any other detriment if they believe that there are "circumstances of danger" that they can reasonably believe to be "serious and imminent" in which case they can leave their workplace, refuse to return or take any other appropriate steps to protect themselves. The risk of contracting Covid-19 can be seen to be such a danger. The inevitable Covid-19 related employment tribunal claims that will arise following an employee's dismissal for refusal to return to work will pivot on whether the employee can truly be said to have believed that there was a "serious and imminent" risk.
The lawyers in Giambrone's employment law team have frequently encountered situations where critical financial issues have clouded an employer's view and they have taken hasty action without the benefit of expert legal advice and created an avoidable disaster with a far greater cost than seeking the advice of an experienced employment lawyer.
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