7:35 am, May 31, 2020
Dealerships are being forced to make some tough decisions as they plan for the future, and with an uncertain level of revenue they may no longer be able to keep all their staff.
Redundancy isn’t an easy issue at the best of times, and at the start of the pandemic some businesses made jobs redundant before the furloughing scheme was brought in.
However, if an employee’s job was made redundant on or after February 28, 2020, their employer was legally entitled to re-employ them and put them on furlough, aka the Coronavirus Job Retention Scheme – it should be noted, though, that the government said that an employer could only claim for furloughed workers who were employed on March 19, 2020 and who were on that employer’s PAYE payroll on or before March 19, 2020.
It was always the hope, of course, that the furloughed staff would eventually be able to come off furlough and resume work. Unfortunately, though, it’s possible that won’t be the case for everyone, so what can an employer do about making them redundant again?
We spoke to Lawgistics, whose legal adviser Kiril Moskovchuk told us: ‘Those employees who were redeployed and put on furlough may pose a tricky problem.
‘If they were simply taken back, then dismissal/resignation would very likely have been superseded and their employment will be on the terms as they were before.
‘This means that the employment will be continuing and the redeployed employees will have to be dismissed at the end of furlough, which may be subject to the fairness test, if two years of continuous service has been accumulated.
‘The employers should have been careful to offer a temporary contract for the duration of the furlough only. It is possible that the expiry of furlough will be deemed as ‘‘some other substantial reason’’, making dismissal fair in the circumstances. Following the normal redundancy process will be a safer option.
‘If the employee is on furlough, the employer may still go through the redundancy process. The employer will have plenty of time to consult with the employees.’
Moskovchuk said: ‘I would recommend that the notice terminating employment should be given to expire at or shortly before the end of furlough. This will ensure that the notice pay can be reclaimed through the furlough scheme and the employee cannot argue that redundancy was premature.’
If an employer needs to make someone redundant who was furloughed without having been redeployed, then the normal redundancy process will need to be followed, ie, with consultations, a notice period and, where entitled, redundancy pay.
More: Furloughed workers not wanting to return could face disciplinary action
Guide: Redundancies – Everything car dealers need to know about laying off furloughed staff
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