Employers often need to consult with staff and there may be an increased need to do so given the current pandemic of the coronavirus (COVID-19).

Employers may need to consult about changing work arrangements, including the Government job retention scheme, reduced hours or even redundancies. You may also have ongoing consultations which need to be concluded in an effective way. With no confirmation of when social distancing measures will be withdrawn, delaying consultations is unlikely to be an option for most employers.

Effective consultation is important at any time, but the impact of the coronavirus outbreak has made the process more challenging at an already stressful and uncertain time. As the situation continues to change rapidly, it is vital that employers communicate clear information to staff promptly.

Steps to delay the spread of the coronavirus include social distancing measures, such as a shift to remote working, the cancellation of events, the temporary closure of certain organisations and schools and strict limitations on when people are allowed to leave their homes, currently in place until mid-April. Employers may have a number of employees off sick or self isolating, and steps should be taken to include them in the consultation process in an appropriate way.

Practical Steps

You will need to adapt practices so that you can continue to carry out effective consultations whilst all or some of your employees are not on site. Face-to-face meetings will not be possible and so you should consider the following options:

  • Can you hold consultation meetings using video or conference calling technology? You would need to ensure that the staff have all the necessary information via email beforehand, so that they can participate effectively.
  • For one to one consultation meetings, can you do these via Skype, use other video conferencing software or on the phone?
  • For consultations around less significant issues, could you consult with staff in writing, allowing them the opportunity to come back to you, and perhaps have a phone call, if they have particular issues to discuss?

Remember that there are limitations of these options which you will need to work around, such as:

  • It may be more difficult to discuss complex issues without face to face meetings, so you may need to adjourn and have additional calls to consider issues.
  • Note taking may be more complex, particularly if meetings are held over the phone rather than via video conferencing.
  • Thought should be given as to whether HR or Union Advisors can join consultation telephone calls or video conferences to provide support for employees. If they can’t, then employees should be given the opportunities to consult with the representatives separately and come back to employers with any further points.

Consultations for Lay-Offs or Short-Time Working Arrangements

For employers needing to deal with an unexpected downturn in business as a result of the current uncertain environment who do not have a contractual right to introduce lay-offs or short-time working arrangements, consultations with employees (and trade unions/representatives where appropriate) should be undertaken to try and agree a temporary solution.

There are no specific legal requirements surrounding consulting staff when introducing lay-offs or short term working.

Best Practice

  • Communicate changes with employees to keep them engaged during difficult times.
  • Give regular updates about the changes being made and the challenges the business is facing. Employees are more likely to accept difficult decisions and changes to the way they work if they understand the reasons behind them.
  • For significant changes, carry out consultations by telephone or video conference with employees who are working remotely or self-isolating to unsure that employees understand and are engaging with the proposals being put to them.
  • Employees should be given the opportunity to adjourn consultations, if they feel the need to go away and discuss any points with HR or a Union Advisor.

Consultations for the Introduction of the Government’s Job Retention Scheme

The scheme has been introduced to allow employers to temporarily lay-off or ‘furlough’ staff, with the Government stepping in to pay 80% of the wages up to £2,500. The scheme is currently in place for three months from 1 March but may be extended. The scheme is subject to existing employment law , which would indicate that there should be a level of consultation to gain employee agreement to the changes proposed to their status.

Best Practice

  • Consider asking for volunteers for furlough. You do not necessarily need to accept those that volunteer if you deem they are needed but it may avoid the need for you to have to select between staff.
  • Communicate with staff who you intend to furlough and those you may need to retain, so that they understand what this means for them and the timescales involved.
  • Document the process you have undertaken to select those staff who you think can be furloughed and those who you need to retain, and any factors you have taken into consideration.
  • Inform staff of the decision on furlough but allow them to provide feedback or to raise any concerns. Ask them for their agreement to the proposed changes to their status.
  • Keep the situation under review and keep in communication with staff, both those continuing to work and those who have been furloughed.

Consultations for Redundancies

If employers do not consult employees, any redundancies made will almost certainly be considered unfair by an employment tribunal.

For redundancies of fewer than 20 people, there are no prescribed rules on how consultations should be carried out. However, it is best practice to properly consult with employees and their representatives in order for the process to be fair. Conference or video calls may be an effective way to engage with staff who are working remotely or self-isolating.

For redundancies of more than 20 employees within a 90 day period, there are specific regulations which must be followed and advice should be sought under those circumstances.

How Can We Help You?

Narrow Quay HR is run by experienced employment lawyers who now work as HR consultants. We can fully support you with implementing consultation processes for your business and assist with the process, as follows:

  • provide you with compliant and effective communications for your staff
  • calculate redundancy entitlements
  • timetable the consultation process and provide scripts for consultation meetings
  • support consultation meetings remotely, either by being part of a consultation meeting held on the phone or via video conferencing, or by being available on the phone should you want to adjourn to speak to us
  • take a note of consultation meetings where these can be arranged remotely
  • identify when legal advice may be necessary and quickly put you in touch with the right people

For more information, please contact our Employment and HR specialists Caitlin Anniss on 07909 683938 or Sarah Martin on 07799 136 091 at Narrow Quay HR Consultancy.