Employment – The COVID-19 Chickens are Coming Home to Roost

Many businesses confronted by the existential crisis of the COVID-19 pandemic took swift steps to shed staff. However, as an Employment Tribunal (ET) ruling showed, the requirements of employment law were not suspended and, for those who failed to comply with them, the chickens are now coming home to roost.

The case concerned a graphic designer who was made redundant a few days after the first lockdown came into force. His employer, a small company, experienced a precipitous decline in sales and, having decided not to partake in the furlough scheme, there was no dispute that it needed to cut staff numbers fast.

Ruling on the man’s unfair dismissal complaint, the ET acknowledged that a genuine redundancy situation had arisen, that the employer was facing a fast-moving and truly unprecedented crisis and that its resources were limited. It found, however, that the situation was not so exceptional as to permit the abandonment of proper redundancy procedures.

In upholding the claim, the ET noted that there was no consultation whatsoever prior to his selection for redundancy. He was given no real opportunity to challenge the decision before or after it was made and he received no explanation as to why he, rather than a colleague who performed a similar role, was being selected. His dismissal fell outside the band of reasonable responses open to an employer.

He was entitled to receive six weeks’ notice pay and a further three months’ pay in respect of accrued holiday allowance. However, the ET ruled that his compensatory award for unfair dismissal should be reduced by 60 per cent on the basis that, even had a fair procedure been followed, he would probably have lost his job. If not agreed, the amount of his award would be assessed at a further hearing.