26 October 2022
During one of our recent Employment Matters events we asked employers what their main people concerns were for 2023. Unsurprisingly, the cost of living and staff wellbeing ranked highest. Other concerns included hybrid working, managing performance and redundancies.
Hybrid working and managing performance
Hybrid working can provide significant business benefits – it can boost productivity, and improve staff morale and wellbeing.
But not all employers have a positive view of hybrid working. They may have team members who are unreasonably resisting a return to the office, or who aren’t performing to the expected standards.
While it’s important to consider the legal risks around hybrid working, employers who allow it should also:
- have a hybrid working policy that sets out clear expectations of staff when they’re working from home;
- ensure that managers regularly check in on people working from home and document performance concerns in case a paper trail is later required;
- be aware of risk areas around an employee’s performance. They could have a hidden disability, for example. Employers should sensitively ask appropriate questions to find out if they have obligations to the employee under the Equality Act 2010; and
- remember that if an employee’s contract states that their workplace is on-site, their refusal to attend can be treated as a misconduct issue.
Redundancies and reorganisations
1. Establish whether there is a genuine redundancy situation
Employers need to establish a genuine case for redundancy. Section 13(1) of the Employment Rights 1996 identifies three circumstances for a redundancy:
(a) the closure of the entire business;
(b) the closure of one of several sites, or a relocation to a new site; or
(c) a diminished requirement for employees to do work of a particular kind.
2. Consider any collective redundancy obligations
Establish how many proposed redundancies there are. Collective consultation obligations will apply if there are more than 20 proposed in a 90-day period.
These obligations impose certain rules and timescales that must be met in the consultation process, and the Secretary of State must be notified of the proposed redundancies.
3. Identify ‘at risk’ employees
Consider the appropriate ‘pool’ of employees at risk of redundancy. If an employer recognises a union, it will be expected to discuss this with the union.
Factors that are likely to be relevant in identifying a pool are:
(a) what type of work is ceasing or diminishing;
(b) the extent to which employees are doing similar work (possibly even those at other locations); and
(c) the extent to which employees’ jobs are interchangeable.
Special rules apply to employees who are pregnant, or on maternity, adoption or shared parental leave so employers need to factor them in too.
4. Apply reasonable selection criteria
Establish a reasonable and objective selection criterion prior to making selections for redundancy. Potentially fair selection criteria include:
(a) performance and ability;
(b) length of service;
(c) attendance records; and
(d) disciplinary records
The criteria should be measured by reference to HR records such as appraisals and attendance records. There should also be more than one manager involved in the scoring process and evidence of the reasoning applied to each score.
5. Consider suitable alternative roles for at-risk employees
The law requires that:
- wherever available, employees at risk of redundancy be offered a suitable alternative role; and
- suitable alternative roles must first be offered to at-risk employees on maternity leave.
6. Hold redundancy consultation meetings
An employees at risk of redundancy should be:
- told why their role is at risk;
- given the opportunity to suggest an alternative to redundancy;
- informed of their right to paid time off to seek other employment.
If collective consultation applies, redundancy consultation should be held via employee representatives elected for the purpose or a recognised trades union. Consultation is required to take either 30 or 45 days, depending on the number of at-risk employees.
If you are an employer who requires support with performance management or redundancy, please contact Jennifer Mansoor.