Remote collective consultation during the coronavirus
As an employer you may be starting to think about what your workforce might look like following the end of the furlough scheme and a return to work. There are several options available for restructuring the workforce or reducing operating costs if needed, including redundancies. Depending on the size and shape of your organisation, this may involve collective redundancies.
In this guide we consider the unique circumstances that will impact redundancies during the coronavirus pandemic. Specifically, we outline what to consider when undertaking remote collective redundancy consultation in the context of the coronavirus, including practical tips.
Collective consultation – why, when and how?
Collective consultation is needed if you propose to dismiss 20 or more employees at one establishment in a 90-day period. You may be considering redundancy dismissals in the traditional sense or as a result of a ‘fire and rehire’ exercise in which you aim to impose less favourable terms.
Consultation must start ‘in good time’ to allow the relevant discussions to take place and, if 100 or more employees are likely to be dismissed, this means at least 45 days before the dismissals take effect. Otherwise the minimum period is 30 days. You will still need to inform and consult as normal with people whose jobs are at risk, even if collective consultation is needed as well.
Consultation should take place with appropriate representatives (reps). If you recognise a trade union, you must consult with their reps. If not, you can either consult with existing employee reps who have the appropriate authority, like a staff consultative forum, or reps elected expressly for the consultation.
The reps must be given specific information and consultation should cover:
- ways of avoiding the need for dismissals;
- reducing the number of employees to be dismissed; and
- mitigating the consequences of the dismissals (e.g. support for dismissed employees).
Minutes of meetings with the employee reps must include reference to the fact that consultation has covered these three main issues. It is important that consultation should take place with a view to reaching agreement, but you do not have to agree with the reps’ views.
Redundancy consultation during furlough
Government guidance is not explicit about whether redundancy consultation can be carried out during the furlough period, or whether it would fall under the ban on doing work. However, as it is not making money for you or providing services, we believe it is highly likely to be permitted.
As the guidance also states that employee reps can perform that role, and this is not considered work (see below), this strongly indicates that individual and collective redundancy consultation is also allowed.
Reasons to consider collectively consulting during furlough
You may wish to collectively consult if you already know that you are likely to need to make redundancies post-furlough and want to begin consultation ‘in good time’ as required. Doing so will provide some certainty and clarity for staff in an uncertain time.
In addition, another benefit is that you can use the time people spend on furlough to absorb some of the cost of the consultation process. You may also wish to use the process to push for other changes, such as reduced pay, as an alternative to redundancy.
Furloughed employee representatives
Employee reps can be furloughed and continue to act in that role if they are only being consulted in respect of possible redundancies or related matters. Government guidance states that employees who are reps may undertake duties and activities for the purpose of individual or collective representation of employees while they are on furlough, provided they are not providing services or generating revenue. The reps are not providing services to you, so this should not fall under the ban on doing work while on furlough.
How to carry out remote collective redundancy consultations with furloughed or remote employees
Coronavirus means that many people are on furlough, working from home, self-isolating or practising social distancing. This makes collective consultation a real challenge as it is normally done in person. However, choosing to fulfil consultation obligations remotely is allowable, and is very unlikely to be considered problematic in the current, highly unusual circumstances.
For initial ‘town hall’ meetings informing groups of employees about proposed measures, there is a range of technology available to hold these online. We suggest running several to ensure the whole workforce is notified properly rather than through the grapevine.
Remember that collective consultation with employee reps can be done remotely using technology, but at the right time could also be done in person (with appropriate risk assessments, protective measures and consideration of government guidance).
If done remotely, it is up to you as the employer to ensure that all reps have the technology and facilities required to participate. It is vital that only relevant parties are invited to the online meeting, and that the line or portal for hosting it is secure and compliant for data protection purposes.
Voting during remote collective redundancy consultation
If employee reps have not already been elected, there is no specific timeline for seeking nominations and voting. The voting process is supposed to be secret as far as reasonably practical, which is obviously a challenge remotely. However, there are several arrangements you can make to ensure any election is fair and accessible. In addition, staff are unlikely to be present to put ballot papers in a box and a need to have reps urgently may mean that postal voting is not appropriate.
So, some possible options are:
- using a third-party online voting platform, like an app, which ensures anonymity;
- designing your own internal system e.g. nominating one respected, trusted and independent person who will remain confidential to run the ballot (although strictly not secret); or
- setting up a consultation body in advance, which can later be used for redundancy consultation.
What to do after remote collective redundancy consultation
Once collective consultation with reps is suitably far advanced, individual consultation with affected staff is likely to be required as well. Government guidance states that ordinary redundancy principles continue to apply during this time, although where collective consultation has taken place you can follow a shorter one-to-one individual process.
Practical considerations when individually consulting with furloughed or remote employees
It is important to consider how you will communicate with your staff and send them relevant paperwork. Do you have their home email address (if they no longer have access to office email) and a home/mobile telephone number? Do you know if they can access a computer? If they can’t, you may need to make special arrangements like agreeing to make contact through a friend or to post/courier documents.
In addition, if you plan on carrying out individual consultation meetings by video conferencing, check the employee (and any rep) will have access to a computer or smartphone. Alternatively, you can consult by phone conference call, but this does lose the human touch when neither party can see each other.
It is common practice to allow the employee to be accompanied at redundancy consultation meetings (and any appeal meeting) by a colleague or trade union rep, although this is not a statutory right. Colleagues who are furloughed can still act as a companion to others at risk.
Although you are under no legal obligation to allow staff to be accompanied by a friend or a family member, this may be allowed under your redundancy policy. If not, you may wish to consider agreeing to it as a goodwill, discretionary measure in these unusual circumstances.
Six tips for consulting with remote employees
- Ensure that only relevant parties receive an invitation to the online meeting, and that the line or portal for hosting is secure and compliant for data protection purposes.
- When conducting individual consultation meetings, ask the employee to attend the virtual meeting from a private and quiet room if possible, where they will not be disturbed.
- Ask people to speak clearly, let them ask questions when necessary and confirm your, and their, understanding. They should be asked to mute themselves when they are not speaking to avoid any distractions. Make use of online tools, such as screen sharing, to refer to documents.
- In individual consultation meetings, explain that you will be taking notes of the meeting and will share a copy of the minutes/notes with the employee. He/she may also take their own notes during the meeting.
- At the start, ask the employee to confirm that he/she (or any companion) is not recording the meeting. They do not have a legal right to record the meeting and this may be viewed as a breach of trust and confidence or misconduct and in breach of data protection legislation. Remember that recording may be a reasonable adjustment for someone with a physical or mental impairment.
- During the discussion, check with the employee whether they need to take a break in the same way as you would during a face-to-face meeting. Allow them time to speak privately to their companion during the meeting.
Employee wellbeing when consulting remotely
A redundancy process is always stressful but will almost certainly be more so in the current circumstances given the nature of the pandemic. The impact of lockdown and feelings of uncertainty and anxiety about the future and finances may be impacting employee wellbeing. When consulting remotely, employees are often isolated from their colleagues and they may also be struggling with their mental health.
Take this into consideration and ensure that all communications and consultation meetings are conducted fairly. Recognise the impact of present conditions and employees’ personal circumstances. Ensure that staff are supported appropriately after any meetings and that you keep in touch with them and check how they’re doing. Have a clear way that staff can raise questions or discuss concerns such as a central email address or contact name.
Where possible, you may wish to provide counselling or to highlight available employee support helplines such as your Employee Assistance Programme. Consider offering redundancy outplacement services and point staff to useful websites and resources.
Final thoughts on remote collective redundancy consultations during coronavirus
The coronavirus has created a situation in which you may find it difficult to collectively consult. Despite this, it is important that, if you need to make collective redundancies (or changes to terms by way of a ‘fire and rehire’ process), you comply with the legal requirements to inform and consult as best as you reasonably and practicably can.
Please get in touch if you would like advice on your particular circumstances and how best to approach this for your business.
