Over the last few weeks we have been seeing a huge range of responses to the ravages of Covid-19 in the employment sector, from excellent adherence to fair process (even if the news is not good) to shoddy dealings, with the laws being flouted by employers.

The Covid-19 Emergency has not seen a suspension of employment laws, so the full force of sanctions will be available for breaches.

Forced taking of annual leave has been common, with no prior consultation and no written 14 days' notice. Employers following this line need to be aware that employees will be able to claim back leave, forced on them without consultation, and/or without the correct written notice, and so the employer will be liable to allow the employee to take that leave again and to pay the leave again, as it will not be regarded as "annual leave taken" by the law.

Putting people on unpaid leave (without consent) will open the employer to claims for unjustified dismissal as failing to pay employees will constitute a constructive dismissal. Payment of wages is a fundamental part of the employment bargain. Remedies for non-payment will include lost wages for the period the employee is out of work (that could be quite an extensive time in the current circumstances), plus damages for hurt and humiliation. There could also be penalties imposed.

Making people redundant without following the correct process (which involves putting the proposal to the employee and giving a reasonable opportunity for feedback) will also result in an unjustified dismissal with the full range of damages liable to be awarded, even if the redundancy itself was genuine. Making people redundant to get rid of an underperforming employee is also not the right way to go about things. A proper performance improvement process should be followed.

Any directors or other management involved in making unlawful decisions can also find themselves being held personally liable for penalties and unpaid wages and damages.

Don't make the situation worse by getting the employment processes wrong. The proper processes are not difficult to implement, but the consequences of getting them wrong can be very painful, not only to your business, but to you personally as well.

Alan Knowsley

Gender Equality
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