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Last week the UK Government announced rescue plans for businesses comprising a number of loans which would be made available to cope with the economic impact of Covid-19. On Friday Rishi Sunak, the Chancellor of the Exchequer, revealed a plan to subsidise 80% of the wages for workers who are ‘furloughed’ (workers who are laid off but remain in employment) by paying these directly to employers. It is now clear that businesses who have made employees redundant after 1 March 2020 will be permitted to re-employ them and place them on furlough. Employers will also be able to claim backdated wages through the Government Scheme.

So what should employees who have already been dismissed, or put on notice of redundancy, do?

Employees who are dismissed and who have over two years’ continuous service with their employer have a legal right not to be unfairly dismissed. Generally an employer must do everything they can to avoid dismissal. Dismissals as a result of redundancy are lawful where there has been a genuine reason for the redundancy and a proper process has been followed. A genuine reason for redundancy requires that work of a particular kind has diminished so that an employee has become surplus to requirements.

An employment tribunal assessing the fairness of such a dismissal will also ask whether the employer acted reasonably in treating this as a sufficient reason for dismissing an employee. They will consider the size and the resources of that particular employer. Larger businesses with more resources are therefore expected to go further in seeking alternatives to dismissal.

An employee who would have considered being furloughed as an alternative to being dismissed may have a compelling reason therefore to appeal an employer’s decision to dismiss. There is now an alternative to dismissal- put the employee on the Government Scheme- and a reasonable employer should choose that alternative.

If you have been dismissed, or been put on notice of redundancy, in the midst of the Covid-19 crisis and you would accept being ‘furloughed’ then you should write to your former employer immediately appealing the decision to dismiss you by asking them if they would reconsider furloughing you instead. You should tell them that you may consider legal action against them unless they agree to put you on the scheme with immediate effect. You may have to accept that you won't get any payments immediately (the scheme does not pay out until the end of April) but might ultimately result in you being able to keep your job and receive 80% of your salary in the meantime.

Blog by Deirdre Flanigan, Employment Solicitor


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