There are a couple of topics dominating the agenda in HR at the moment, both of which link directly to the topic that has a monopoly on all conversations right now, COVID-19.
One of them is the remote/home working trend, which is creating a debate on everything from what technology you need to add to your stack to whether company culture faces an existential threat.
The other is, unfortunately, redundancies. Latest official figures show a record quarterly increase in redundancies in the UK and the highest year-on-year leap since the height of the banking crisis in 2009. In total, 673,000 people have lost their jobs since the start of the pandemic in March.
But what happens when these two topics collide? The sad truth is, with the government furlough scheme ending and the latest round of business support measures announced by the Treasury linked to the impact of local lockdowns, all forecasts point to a lot more companies having to make the difficult decision to let people go this winter.
But with large portions of the workforce operating from home, that puts employers in a delicate situation. Calling an individual into the office for ‘the talk’ when you have to inform them you are letting them go is not a pleasant business, but it is something professionals learn to handle with sensitivity and discretion.
What if you never get the chance to talk to someone you are about to make redundant face to face, thanking them for their contribution, and explaining your reasons? What is the best way to give someone working from home notice of termination – email, telephone, video call? And how do you do it in a way that both maintains your professional reputation and remains compliant with the law?
Right and wrong ways to use technology
These are important considerations. There’s a salutary lesson in why – and how not to go about things – in a recent story about Uber drivers suing the company for ‘dismissal by algorithm’. Uber claims that its systems detected fraudulent activity in the drivers’ apps, triggering automated deactivation without any right to appeal. Four drivers from London, Birmingham, and Lisbon, Portugal are now suing the company for breach of protections against automated decisions included in the GDPR.
This may be an extreme and, to date, unique example, but it highlights the changed legal landscape employers are entering when dealing with remote redundancies. Even if, as Uber claims in its defence, it hasn’t breached the terms of the GDPR because the decision to fire the drivers was “manually reviewed” before the automated message was sent, it is still a bad look. You might have thought Uber had learned its lesson – earlier this year, it was widely castigated for announcing the lay off or 3500 workers via a single Zoom call.
The impact of such reputational damage shouldn’t be overlooked, particularly in the era of social media. At a time when a spirit of collective endurance in the face of adversity is coming to the fore, companies perceived to treating employees callously will get short shrift, no matter how necessary financially making redundancies might be.
Nor should companies assume that having workers operating from home, on reduced hours, or on furlough somehow offers a shortcut to due process. It doesn’t. Even if you have had members of staff on furlough for several months, the terms of dismissal written into their contract still apply, and you must still apply rigorous, transparent, and consistent selection criteria.
Another area that needs careful consideration is the consultancy process. Government literature is very clear that any redundancies carried out without consultation are liable to be challenged as unfair at an employment tribunal. To date, there is not yet any clear guidance on what ‘virtual consultations’ carried out digitally should look like, so the safest course is to try as best as possible to replicate the normal consultancy process – notify the Redundancy Payments Service (RPS), inform staff via trade unions / elected representatives, accept and consider responses (including applications for voluntary redundancy) within the statutory timeframe.
If the fact that staff are working from home creates any communications issues with informing the workforce via elected representatives, it is important that employers take responsibility for informing all staff of the plans directly – whether by email, letter, video conference, or so on. Any claim that your attempts at consulting with affected staff were hampered by them all working from home is not likely to weigh in your favour before a tribunal – the law is clear that it is employers’ responsibility to consult with staff clearly and fairly.
Finally, how to make the redundancy notifications to the individuals concerned. It shouldn’t come as any surprise to employers that informing staff that they are being let go via text message, social media or mass conference call is not considered particularly sensitive or professional. But it happens. Research has also shown that employees take a dim view of the use of email to send redundancy notices because it is impersonal, it doesn’t invite opportunities to make comments or ask questions, and it suggests the employer is ducking out of an awkward face-to-face conversation.
With that in mind, there is no reason why employers should divert from the tried-and-tested method of holding face-to-face meetings with people they are about to let go. You might feel awkward holding a one-to-one video call to relieve a homeworker of their duties, but in the circumstances, it is by far and away from the best option available.