The Covid-19 outbreak provides significant challenges for staffing.
Here, Ami Naru – Partner and Head of Employment at Travlaw, provides some guidance
There is no doubt that the Travel Industry has been hit hard by the outbreak of Covid-19. Clearly, keeping staff safe and staff welfare are a top priority for all of us.
Unfortunately, I’m receiving a lot of requests from clients, both old and new, for employment law advice in light of some very difficult discussions they feel forced to make. This is the area of my job which I dread and while I am able to support my clients during these difficult times, it is also difficult for me personally to see our loyal clients go through this.
I thought it would be helpful to share with you some options to avoid redundancies, where possible.
1. Alternatives to redundancy
Redundancy should be a last resort and tribunals will expect employers to have explored all possible ways to stop redundancies happening first. Below are a few alternatives (the list is not exhaustive):
- Ask volunteers to reduce hours and pay on a temporary basis. If you do this, any agreement needs to be recorded in writing. If staff won’t agree and you’re asking 20 or more staff to change their terms and conditions of employment, then you need to go through a period of collective consultation. Please take appropriate advice.
- Ask staff to agree to take unpaid leave.
- Consider whether there are agency workers or contractors whose contracts could be terminated.
- Pay freezes.
- Ask staff to take their holidays – employers can usually insist that staff take holiday at particular times by giving them notice. Such notice has to be twice as long as the holiday being taken.
If despite the above measures you still unfortunately need to make redundancies, you will need to start consultations for redundancy. If the number of redundancies is 20 or more within 90 days, you’ll need to collectively consult first and we recommend you take legal advice for this.
2. Lay off
This means that you provide staff with no work and no pay for a while. During the period of lay off staff remain your employees, which means you can retain them for when business picks up again.
You can only contractually lay off if there is a provision in your contracts of employment to do so. Historically, such lay off clauses have been absent from contracts of employment in the Travel industry, but with the recent challenges the industry have faced over recent times it may be worth incorporating such clauses in your contracts moving forward.
If you have a contractual lay off clause and there’s no work your staff can do, you do have the option to lay them off. You’ll need to write to them to explain why you need to lay them off, how long you anticipate it lasting (there’s no maximum period and the concept of ‘reasonableness’ doesn’t apply here), how much they will be paid (not much in most cases) and when they can apply for a statutory redundancy payment.
If you do not have an express contractual term to lay off, but you have done it before, you may be able to rely upon an implied term to do so again.
Before laying off staff I would recommend that you take appropriate advice.
3. Short -term working
Effectively this means less work and less pay. Again, either you will need an express contractual term to do so in your contracts of employment or, an implied term because it has been done historically.
If you go ahead to lay someone off or put them on short-term working and there is no express contractual term or implied term to do so, then such employees may be able to bring claims of breach of contract, constructive unfair dismissal, redundancy pay and unlawful deduction from wages. Indeed, some employees may work under protest and, by not accepting the breach, bring unlawful deduction from wages claims later on.