Another furlough and redundancy question

tjc999

My partner has been with their employer for just over 10 years, working alongside around a dozen people doing the same job. He was given the title "senior" two years ago but still does the same job - he was told that clients like to have their meetings attended by "senior" people!

My partner was placed on furlough and signed agreements for 2 periods, 1 April to 31 May and 1 June to 31 July. They have taken 10 days annual leave and 3 days public holidays during this time and have been paid those days at their usual full salary rate albeit a month in arrears. Their employers pension contribution (9%) and their own contribution (5%) have been calculated usually their full salary and have been paid throughout the furlough period. 

The company is now working through a redundancy consultation and my partner has been provisionally selected for redundancy. This seems to be based on personalities rather than skill set or experience but we realise that this is the way things work - if the criteria was applied fairly, it seems unreasonable that someone who was promoted over their colleagues just 2 years ago now finds themselves being scored as less skilled than those same people. No performance reviews have been carried out for at least 3 years and was partner was never spoken to regarding their work performance.  

The questions we have now are, given the employer acknowledged the contracted rate of pay throughout furlough when paying pension contributions, is it reasonable to expect redundancy will be paid at this rate. Also, as it appears that notice period can be paid at furlough rate, could my partner refuse to agree to another furlough period at the end of July and force the employer to pay notice at full rate assuming of course that they are required to work notice and not be paid PILON.  Also, are we correct in thinking that benefits such as company car/fuel allowance must be provided throughout the notice period?

Many thanks for any thoughts on our situation. 

Jeremy535897

This is quite a comprehensive explanation of the issues:
https://www.cipd.co.uk/knowledge/fundamentals/emp-law/redundancy/coronavirus-guide

To cover some of your specific questions:

• any redundancy procedure has to be fair https://www.citizensadvice.org.uk/work/leaving-a-job/redundancy/check-if-your-redundancy-is-fair/
• redundancy would normally be based on pre furlough pay rates. The contract of employment may offer enhanced rights compared to the statutory minimum. Statutory information is here: https://www.gov.uk/redundancy-your-rights
• notice pay is a difficult issue. See https://www.employmentcasesupdate.co.uk/site.aspx?i=ed40723
• your partner can refuse to be furloughed, but the issue of furlough, what work is expected during notice, and accrued holiday pay all need to be addressed as part of the leaving process. If your partner needs a reference, take that into account
• while your partner's contract of employment applies, if it provides for car/fuel allowances these should continue

tjc999

Thank you. The CIPD link is very good. 

We've just realised that with respect to redundancy pay, as the weekly amount is capped, this is exceeded by the maximum furlough rate so it doesn't matter if the furlough rate is used for this. 

It will be difficult to prove that the criteria was not scored fairly as it is all very subjective and would be difficult to evidence - areas such as attitude, punctuality, appearance, asking for help and advice when needed etc.  ACAS have noted that written evidence to support the score given should be provided so we shall ask for that however we don't expect anything to change and assume that redundancy will be confirmed after the initial meeting. 

We also expect that PILON will be given instead of notice being worked due to the nature of the business.  

The reference may be a sticking point, but then how good would it be anyway given that 30 years of experience has effectively been disregarded and colleagues with less than 10 years experience and fewer qualifications have been deemed to be stronger members of the team.  It appears that now is the time to accept the circumstances and move on. 

Jeremy535897

tjc999 said:

Thank you. The CIPD link is very good. 

We've just realised that with respect to redundancy pay, as the weekly amount is capped, this is exceeded by the maximum furlough rate so it doesn't matter if the furlough rate is used for this. 

It will be difficult to prove that the criteria was not scored fairly as it is all very subjective and would be difficult to evidence - areas such as attitude, punctuality, appearance, asking for help and advice when needed etc.  ACAS have noted that written evidence to support the score given should be provided so we shall ask for that however we don't expect anything to change and assume that redundancy will be confirmed after the initial meeting. 

We also expect that PILON will be given instead of notice being worked due to the nature of the business.  

The reference may be a sticking point, but then how good would it be anyway given that 30 years of experience has effectively been disregarded and colleagues with less than 10 years experience and fewer qualifications have been deemed to be stronger members of the team.  It appears that now is the time to accept the circumstances and move on. 

One of the areas to look at very carefully is any restrictive covenants in your employment contract or redundancy agreement.

tjc999

Jeremy535897 said:

One of the areas to look at very carefully is any restrictive covenants in your employment contract or redundancy agreement.

That's a very good point, I believe there is a restrictive covenant in the contract which I will check this morning. 

Jeremy535897

There's lots of advice on this, for example:
https://www.landaulaw.co.uk/restrictive-covenants/

tjc999

The covenant appears to be fair, applying to a 3 month period post termination. Actually, the whole process appears to have been carried out properly and fairly (depending on how the notice period is paid!) however I do think that the criteria scoring is subjective and will have been manipulated so that managers can keep whomever they like. It will be interesting to see what evidence they come up with for determining the scores. 

On a slightly different note, is there any guidance as to how a company decides which employees are placed on furlough. There doesn't appear to have been any selection criteria for this and now only those on furlough are the ones who have been provisionally selected for redundancy.

Many thanks for your help and thoughts. 

[Deleted User]

tjc999 said:

On a slightly different note, is there any guidance as to how a company decides which employees are placed on furlough. 

It is entirely at an employers discretion as to who they offer furlough to, of course people can decline and then will likely be made redundant.

tjc999 said:

There doesn't appear to have been any selection criteria for this and now only those on furlough are the ones who have been provisionally selected for redundancy.

The logic may follow (and it is just logic, there are is no guidance) that those without enough work to do were placed on furlough, as that work continued to not be there then those roles were made redundant as the continuing lack of work meant that those employees were no longer needed. If it were done by the managers choice then it would likely be that they kept the ones they liked the most and were most productive, on the basis that those people were least likely to be chosen for redundancy should things progress that way.

If there was a pool of people on furlough, people who there was not enough work to keep them working, which is why they were on furlough, and a pool of people who were working, because there was enough work to keep them working, it would potentially follow that the pool you would choose to make redundancy from would be the group without enough work, rather than the group with enough work. Although it would also have to be fair in terms of the redundancy procedure, eg if they all did the same role, but half were chosen randomly. As you have mentioned it is entirely likely and possible for the employer to manipulate the process to retain who they want and in all likelihood they can probably justify their position legally if they are smart about it by using some subjective criteria in the process which benefits their chosen employees. 

Jeremy535897

It is for the employer to decide whether or not to furlough staff, although it has been suggested that employers have a duty to use the scheme if there is no significant detriment to them. Once the decision to furlough has been made, the guidance states that all normal employment law rules must be followed, including those applying to discrimination and equality. It's not really any different from the selection process for redundancy.

kaMelo

tjc999 said:

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On a slightly different note, is there any guidance as to how a company decides which employees are placed on furlough. There doesn't appear to have been any selection criteria for this and now only those on furlough are the ones who have been provisionally selected for redundancy.

Many thanks for your help and thoughts. 

I don't think there was any official guidance however  CJRS was implemented to prevent redundancies and save jobs. As such the same criteria should be applied when selecting people for CJRS as would be used in selecting people for redundancies, as they would have been made redundant if CJRS had not been introduced. I appreciate that over time it's evolved beyond what it was initially set up to do to become a sort of catchall but the basic premise was to prevent businesses starting mass layoffs.
Therefore, if using the same criteria for CJRS as would be used for redundancy,  it logically follows that those who were furloughed are also those at most risk of redundancy if and when it happens. 

tjc999

kaMelo said:

Therefore, if using the same criteria for CJRS as would be used for redundancy,  it logically follows that those who were furloughed are also those at most risk of redundancy if and when it happens. 

Unfortunately, no criteria was applied for those put on furlough. My partner had work to do, this was given to a younger member of staff and my partner placed on furlough - younger member of staff costs considerably less per month. 

First redundancy meeting soon so will just wait to find out details of the package and ask some questions regarding evidence to support the scores given and query a couple of criteria that favour the younger members of staff.  Nothing will change, the course has been set, thankfully my partner has a few meetings set up with other companies so waiting to find out if notice is to be worked or PILON. 

Thanks to everyone who took the time to comment.