Employment Law Cases
COVID-19: redundancy, furlough, consultation, and Facebook
A complete lack of any consultation or selection process, allied to notifying staff of redundancies via a Facebook post, led to unfair dismissal.
Mr Riney worked as a Service Chef for Javacrest. In February 2020 he broke his shoulder and told his employer he’d be off work until April. In March 2020 the business closed because of the lockdown. In April, at his request, Mr Riney was furloughed (his sick notes having expired). The business suffered a very serious decline in turnover. In July the general manager posted on the firm’s Facebook page that they were hoping to reopen with limited hours and a restricted menu – and that they’d need fewer staff and redundancies would be necessary. Certain staff attended work to prepare for the reopening and they continued to work when the business did in fact reopen. All other staff remained furloughed. In August, because of still much reduced turnover, the employer concluded it didn’t have enough work to continue employing the 19 staff. This was compounded by the fact that in September the cost to the employer of keeping staff furloughed would increase. It decided to retain the team that prepared the business for reopening and make redundant all the other staff on furlough (which included Mr Riney). On 15 August Mr Riney’s dismissal for redundancy was confirmed. He appealed, focusing on the lack of consultation/selection process and a lack of procedure. The appeal wasn’t heard because by the time the employer had reopened again in November, Mr Riney had begun tribunal proceedings. (His notice and redundancy pay had been calculated wrongly and the tribunal made an order for the correct amounts to be paid.)
The complaint of unfair dismissal was upheld.
There was clearly a redundancy situation and the employer had shown that the reason for Mr Riley’s dismissal was redundancy. However, when considering the fairness of the dismissal, the tribunal noted that there had been no exercise to group the employees into pools for selection. Mr Riley and the eight others were selected for redundancy because they remained on furlough and the cost of keeping staff on furlough had become prohibitive for the business. In the absence of the employer being able to explain the basis upon which employees were asked to come in to help prepare the premises for re-opening, and conversely the basis upon which some employees were left on furlough (and thereby selected for redundancy), the clarity and transparency of the basis for selection did not exist.
Turning to the procedure used to dismiss Mr Riley, the tribunal was critical of the way in which staff had been notified – via a message on a Facebook group page. The message contained no information to inform staff when the redundancies may take effect or how employees would be selected for redundancy. While it acknowledged that the employer was coping with a pandemic and lockdown, it held that no other reasonable employer would have notified staff of impending redundancies by posting a message on Facebook. A remote meeting could have been arranged to enable the employer to provide information to staff and to answer questions. The consultation process was inadequate. As regards the appeal, Mr Riley was notified in his dismissal letter that an appeal should be made within seven days. In the event, he didn’t appeal until a month later. The tribunal would have accepted an argument by the employer that the appeal had been received too late. However in circumstances where the employer acknowledged and accepted the appeal, it considered no other reasonable employer would simply have ignored the matter without providing some explanation or confirmation they no longer intended to arrange a hearing.
The flawed consultation process and procedure - and the fact the employer could not explain why Mr Riley had been left on furlough and thereby selected for redundancy - rendered his dismissal unfair.
In circumstances where the employer has not undertaken a proper redundancy process, it is open to them to argue that if a proper process had been followed, the employee would still have been made redundant and although this does not turn an unfair dismissal into a fair one, compensation is limited. However, in this case the tribunal has concluded that due to the serious flaws in the process, it would be difficult to say that the employee would have been made redundant in any event.