Question of the month: how should we consult with employees during Covid-19?

Some key legal considerations for employers carrying out formal consultation processes.

Many of our clients have asked if they can carry out consultation with staff during the pandemic, including queries on the implications of furlough, shielding and health and safety concerns on the usual individual and collective consultation processes. In this article, we consider the key legal aspects of this question and provide some practical advice for achieving meaningful consultation during Covid-19.

Must consultation be face to face?

There is no legal requirement for consultation with employees to be face to face. It will of course be possible for some employers and employees to agree socially distanced meetings in person which comply with employer risk assessments. However, in some circumstances, employees and their representatives will be understandably reluctant to attend face to face meetings while there continues to be a high risk of Covid-19 transmission through sustained face to face contact. In those cases, it may be reasonable to make arrangements for remote meetings or calls (see more on remote meetings below).

Consultation and representation during furlough

Consultation is not counted as “work” for the purposes of the Coronavirus Job Retention Scheme and employees can take part in redundancy consultation, disciplinary and grievance processes while on furlough. Acas has published useful guidance on running disciplinary and grievance procedures during Covid-19.

Trade union representatives and employee representatives can also carry out their duties while on furlough as they will not be performing services or generating revenue for the employer.

A matter of trust and confidence

Employees can resign and bring constructive dismissal claims if they believe that their employer has, without reasonable and proper cause, behaved in a way which is calculated or likely to destroy or damage the trust and confidence between employer and employee.

While it is always risky for employees to take the step of resigning, and perhaps particularly so in the current economic climate, employers should be aware that acting unreasonably in a consultation process could trigger such a claim. For example, undertaking a disciplinary process without enabling the employee to participate remotely or without making allowances for unreliable technology could feasibly found such a claim in current circumstances.

Processes ending in dismissal

When carrying out a process which may end with an employee’s contract being terminated, employers need to ensure that the process is reasonable in all the circumstances. Employers should be aware that employees with two or more years’ service can bring a claim for unfair dismissal on the basis that the process followed was not fair. (It is important to note that other claims can be brought in relation to alleged failings in processes without two years’ service.)

The impact of the current pandemic on dismissal processes and decision-making will be part of the employment tribunal’s assessment of whether the dismissal was reasonable in all the circumstances and ultimately whether the dismissal was fair or unfair. It is therefore essential that employers ask themselves during any relevant process whether it is reasonable at the moment to take a particular step or to expect employees, their representatives or companions to comply with certain requirements.

The right to be accompanied to meetings

The Acas Code of Practice continues to apply to disciplinary and grievance procedures. Employees going through such processes still have the statutory right to be accompanied by a trade union official or representative or a willing colleague.

There is no statutory right to have a companion at a redundancy consultation meeting. However, it is best practice to allow an employee facing potential redundancy to be accompanied to individual consultation meetings and your organisation’s redundancy policy may include this right regardless of the statutory position.

In normal times, it may be reasonable to extend the right to be accompanied beyond the statutory right, for example where the employee has a particular disability or does not speak English as a first language. In the current crisis, it may be reasonable to allow employees who are working from home or furloughed because of health concerns to be accompanied by a family member. This could also be a reasonable adjustment to the process which the employer has a duty to make for a disabled employee under the Equality Act 2010.

You will need to give careful thought to how meetings with the employee and their companion will work at the moment.  This should include a means for the employee and the companion to confer with each other privately.

Employers should not assume that employees or their companions have access to technology to enable them to take part in remote meetings. Employers should discuss what will be possible with employees to establish the best way forward. It may be reasonable to arrange a socially distanced face to face meeting with the relevant parties, particularly if employees are now attending the workplace for work. Hybrid arrangements where some parties are present in person and others are joining remotely may also be a good solution.

Health and safety related claims

Employees who refuse to attend work or take (or propose to take) appropriate steps to protect themselves or other persons in circumstances of danger which they reasonably believe to be serious and imminent are protected from detriment or dismissal for taking this action. It is possible that an employee who has refused to attend a face to face consultation meeting because of health and safety concerns and later been dismissed or subject to a change of terms could attempt to bring such a claim.

Employees might also bring whistleblowing claims based on the same circumstances. In order to do so, they would need to show, broadly-speaking, that they had disclosed information showing that a legal obligation was being breached or was likely to be breached, or that someone’s health and safety was, or was likely to be, endangered. They would also have to show that they reasonably believed that it was in the public interest to make the disclosure.

There is no length of service required to bring whistleblowing or health and safety related claims of this kind. The normal cap on unfair dismissal compensatory awards (the lower of £88,519 or 12 months’ gross pay) is lifted where dismissal is found to be for these reasons.

Discrimination claims

Employers have a duty to make reasonable adjustments, including to processes, ways of working, and physical features of a building which put a disabled employee at a disadvantage compared to colleagues without their disability.

Employers should consider the individual circumstances of disabled employees involved in consultation processes and make adjustments to the process where it is reasonable to do so. What is reasonable will depend on the employer’s size and resources as well as whether the proposed adjustment will actually assist in overcoming the disadvantage. It is likely that insisting that all employees attend face to face meetings will put employees who have been shielding (and potentially disabled) at a disadvantage because of the disproportionate impact on them of catching Covid-19.

It is also possible that some forms of remote consultation could indirectly discriminate against employees with protected characteristics. For example, women (who are statistically more likely to have primary caring responsibilities) may be disadvantaged by inflexible arrangements for online meetings while they have childcare responsibilities.

Employers should not assume that any particular means of remote consultation will avoid such disadvantages. Employers should discuss with employees their proposals for conducting remote consultation and respond to any concerns raised on a case by case basis. 

For further information, please see our previous article on discrimination risks and Covid-19. 

Collective redundancy consultation

If an employer is proposing to dismiss as redundant 20 or more employees at the same establishment over a period of 90 days or less, it will need to consult collectively with a trade union (where a recognition agreement is in place) and/or with elected employee representatives. Collective consultation must begin at least 30 days before the first dismissal where there are between 20 and 99 potential dismissals; it must begin at least 45 days before the first dismissal where there are 100 or more potential dismissals.

It is sometimes overlooked that “dismissals” for these purposes include those employees who are dismissed and re-engaged on new terms and those who accept voluntary redundancy. Employers who have not been able to reach agreement with their workforce and are unilaterally imposing a change of terms should ensure they allow enough time to comply with collective consultation obligations, including sending the statutory information to employee representatives at least 30 / 45 days before the first dismissal.

If there is no recognised trade union in place for the affected employees, the employer will need to consult with a standing staff forum with the remit to consult on redundancies or the employer will need to consult with employee representatives specially elected for the redundancy consultation. In the latter case, the employer will need to facilitate fair elections, allowing as far as possible for a secret ballot. It is possible that online voting systems can be utilised for this purpose, but employers should ensure that these comply with their data security rules and find ways to include those who cannot access these systems. 

As in normal times, employers should ensure that they take steps to include employees on various types of leave in their consultation, including those on furlough, maternity / paternity / shared parental leave and sick leave. It is possible that remote consultation will in fact be more effective at including these employees than the usual methods, as long as there are good lines of communication established at the outset with employees on leave.

Reasonableness is once again the watchword. Although the current circumstances may hamper normal ways of working, this does not mean that employers can escape their legal obligations to consult collectively. Employers should take what steps they reasonably can to comply with their obligations in the circumstances. The consequences of failing to carry out collective consultation can be very expensive. Employment tribunals can make protective awards of up to 90 days’ gross pay for each affected employee where there have been failings. If a failure to consult is found, the more an employer has tried to comply with the requirement to consult collectively, the lower the protective award will be.

Trade union procedural agreements / information and consultation agreements

Before entering into a consultation process, employers should check the requirements for such processes set out in any relevant trade union procedural agreements and/or information and consultation agreements. These are likely to include stipulations for how meetings will be organised and information shared. It would be sensible to discuss and agree with the trade union or employee representatives how procedures will be adapted due to the implications of Covid-19.

Whole staff meetings

Speaking to the whole staff, or to large groups of staff, at the same time will often be the starting point in a redundancy or changing terms process. 

Clearly, the current rules on mass gatherings, and social distancing measures in the workplace will impact on the ability of employers to speak to large groups face to face. They will also change the way employee representatives are able to speak to those they represent.

Many employers have already been making use of video conferencing technology to hold team meetings. It may well be that this can be adapted to address large groups on the business reasons for a proposed process. Employers should do what is reasonable to ensure that as many staff as possible can engage with these meetings. Re-running these video conferences at different times can help to maximise the number of staff who can engage in this way, helping to reach those employees on different forms of leave or with different working patterns.

Employers should also share information provided in the meeting in written form (either by email or by post) and consider recording the information-giving part of the video conference so that staff can access it later if they encounter any technological or other interruptions. It should be made clear to participants at the outset if the video conference is being recorded.

Employers should enable employees to raise questions and comments as part of these meetings just as they would if they were holding a face to face meeting. Using “hand-up” buttons and written Q&A functions can help to manage contributions from employees. Employers should make clear from the outset that, where answers cannot be provided in the conference, follow up responses will be made available.

We are living through extremely difficult times for both employers and employees and there is unfortunately no sure-fire way of avoiding all problems arising from consultation processes during Covid-19. However, careful forward-planning, having an open-minded approach to adapting normal processes and seeking legal advice when necessary will give employers the best chance of engaging positively with employees, running fair processes and minimising the risk of complaints and claims.