How can I select staff for furloughing in a way that means I am compliant with discrimination law and can avoid future claims for discriminative behaviour?
The Coronavirus Job Retention Scheme (Retention Scheme) was set up to assist employers who would otherwise look to make compulsory redundancies given the impact which the coronavirus has had on businesses as a whole.
The government has produced some accompanying guidance but this is not so comprehensive as to cover everything which employers may need to know. In particular, it is silent on the methodology for selecting employees for furlough, which creates something of a grey (risk) area for employers when dealing with this new concept.
It would seem logical to us that in deciding which employees to furlough, employers should, as a starting point, carefully and objectively consider which departments' workload have been affected by Coronavirus leading to a reduction in work. This should be a familiar concept to businesses, as it is essentially an assessment of staffing levels against operational demand. For example, in a business where a department deals with online sales, and those sales are still strong, or employees' workloads have not been impacted, those employees should not be considered for furlough.
Once relevant department(s) or areas have been identified, the company should consider whether all roles within that business area have suffered a reduction in work, or whether it is certain roles only. For example, where the government has banned dining in at restaurants, waiting staff will likely see a huge reduction in work and could be considered for furlough, but as a restaurant may still sell food to customers to consume off the premises, most kitchen-side staff could still be busy and would therefore not need to be furloughed (or perhaps not to the same extent).
The next step would be to meet (perhaps virtually) with those potential employees to explain the company's circumstances, particularly in that business area, the proposal to use the government scheme, and what it would mean for any furloughed employees, with a view to gaining their consent to being furloughed.
This step is necessary not only as furloughing counts as a change to terms and conditions (and so consent is necessary), but also so that employees can be taken on the difficult journey that the company is going through and so they can understand the reasons behind the employer's actions in using the scheme. At this stage, if it is not necessary to furlough all of the potential employees, the company may wish to ask for volunteers to consent after having explained the scheme and only furlough those employees who have consented.
If employees do not consent to furlough, the company cannot put them on it and will then need to consider the alternatives, which may include either negotiating other cost savings (perhaps reduced hours, shared roles or lay offs), or possibly consulting about redundancy. Note, however, that considerations for redundancy would likely involve a broader assessment of the roles and the business, applying the usual rules concerning a fair process. Employers should also be alive to collective consultation requirements if there is a proposal to dismiss as redundant 20 or more employees in a 90 day period.
If employees volunteer or otherwise consent to be furloughed, they may be furloughed in line with the CJRS guidance, and employers would do well to document the changes to terms and conditions during furlough.
Finally, employers should be careful with their messaging, and ensure that any decisions about certain business areas (or roles) being considered for furlough can be objectively explained. Employers should also take care in ensuring that the selection for furlough does not inadvertently discriminate on grounds of gender, age, maternity/paternity, or any other protected characteristic.
About the Author
Kevin Lau is a member of Foot Anstey’s employment team and an experienced adviser to clients on employment law matters and day to day HR issues. He has worked with both small employers without an HR officer, as well as larger organisations with several HR sub teams.
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