The BBC reported on 1 July 2020 that employers had announced over 12,000 coronavirus redundancies. Redundancies driven by a coronavirus downturn in business are fraught with legal danger.
Government employment law advice states that a redundancy happens when there is no need for an organisation to retain a particular job. This can happen because a business: changes what it does, does things differently, or changes location or closes down a workplace. Yet, redundancy done incorrectly turns into an unlawful unfair dismissal. Employers have to demonstrate that the job will no longer exist. Employment lawyers advise that employee rights include: redundancy pay, time off to look for jobs or training, and not to be unfairly selected for redundancy.
The Equality and Human Rights Commission (EHRC) wants redundancies that do not breach the Equality Act and decisions based on business need rather than prejudice. EHRC warns against prejudice based on ‘protected characteristics’, which are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
The EHRC also warns employers of decisions that appear to be common sense but are actually discriminatory. Direct discrimination happens, for example, if an employer decides male employees can work from home but women cannot because they could be distracted by their children. It would also be discriminatory if an employer decides not to recruit black people or people over 60 because they are more vulnerable than others to coronavirus.
EHRC recommends that employers should take into account individual needs when making decisions about coronavirus redundancies. This would include decisions about:
• setting up home working stations
• risk assessments for groups particularly affected by coronavirus such as racial minorities, and pregnant women
• expanding flexible working to accommodate employees with childcare responsibilities.
Employers need to be aware of employment law when applying a rule to address coronavirus that also disproportionately affects people with protected characteristics. This could be indirect discrimination under the Equality Act, for example older or ethnic minority workers.
So, if an employer requires all employees to work on the frontline with customers or carry out key worker roles, this may impact on groups that need self-isolation because they are vulnerable.
Another problem may be deciding to make redundant those people with the lowest sales figures over the past two years may be unfair to women who have been on maternity leave. Employers should consider when taking over rooms to enable social distancing whether those rooms are used for religious observance. Such rooms should only be requisitioned if there is no other option.
EHRC also recommends preserving detailed records of decisions such as who has been made redundant, who is on furlough, and who has been asked to return to the workplace.