When can you start recruiting after a redundancy exercise?
I’m often asked this question, and the answer I always give is - ‘it depends’. The reason I am asked is because many employers fear a potential unfair dismissal claim from recently dismissed employees saying ‘how can you be recruiting when you’ve just made me redundant?’
That’s a fair comment and employers will have to show a good reason why, one minute they’re terminating staff and the next they’re recruiting.
Assuming an employer has followed the correct process, particularly in respect of looking for suitable alternative employment for affected employees, in the normal course of events it would be unwise to re-advertise a position within a couple of weeks of the redundancy. There may be occasions though where this would be acceptable.
I have a client who, in the past, had to make a couple of redundancies because of the loss of a major contract. It was the right thing to do at the time to keep the business afloat. However, literally two weeks after the affected staff had left he picked up a new contract and needed at least four more employees to service it. He was concerned the redundant staff would smell a rat, but I assured him that at the time of the dismissals, because he had no knowledge of the new contract, the dismissals were fair. As it happened he managed to coax back the two redundant staff and recruit two more.
However, I have also had enquiries from employers who have ‘engineered’ a redundancy simply to remove an employee from the workplace because, for whatever reason, they didn’t fit and the employer had someone else waiting in the wings to fill the role.
This is not an uncommon scenario, so despite the rights or wrongs of the redundancy, how long should they wait? I would suggest at least three months because after that period an ex-employee is out of time to make a claim for unfair dismissal (or six months for a statutory redundancy payment claim).
So, as I say at the beginning, it depends. If there is an unforeseen uptake in work after the dismissals are effected there is no problem in re-advertising the positions. To be on the safe side I would seriously consider offering the ex-employees their jobs back as it would save the cost of recruitment and probable training to get new recruits up to speed with the job. And, more importantly, it would protect the employer against any potential claims.
If the employer was to go ahead and advertise shortly after the redundancies were effected and there was no sound reason to justify the new recruitment drive, they shouldn’t be surprised if they have a tribunal claim landing on their desk shortly afterwards.
ACAS Fire and Rehire advice
Recently I wrote a piece on the Fire and Rehire Bill which ultimately failed to progress, but undoubtedly the issue will continue until a change of sorts is made. In the meantime, ACAS has published new advice: Making changes to employment contracts – employer responsibilities.
Acas Chief Executive, Susan Clews, said:
Our new advice is clear that fire and rehire is an extreme step that can seriously damage working relations and has significant legal risks for organisations.
Employers should thoroughly explore all other options first and make every effort to reach agreement with staff on any contract changes.
Organisations that consult with their workforce in a genuine and meaningful way about proposed changes can help prevent conflict at work and stay within the law.
Acas advises that the practice of fire and rehire is an extreme step that can damage staff morale, productivity, working relations and can also lead to industrial action. Take note!
Making vaccination a condition of deployment in health and wider social care sector
As we are all no doubt aware, staff working in CQC registered care homes must be vaccinated or be medically exempt as of yesterday to continue in their work. The government has published their response to the consultation in respect of mandating that NHS staff now follow suit.
Analysis from Public Health England indicates that the COVID-19 vaccination programme has directly prevented an estimated 24.1 million infections, over 261,500 hospitalisations, and 127,500 deaths.1
These are substantial figures and the government has responded as such:
In response to the consultation, and in order to help protect people receiving health and social care, who may be more clinically vulnerable to COVID-19, the government will be introducing regulations to only allow providers of CQC-regulated activities to deploy individuals who have been vaccinated against COVID-19 to roles where they interact with patients and service users.
These regulations will require workers who have direct, face to face contact with service users to provide evidence that they have been vaccinated, subject to limited exceptions. This will include front-line workers, as well as non-clinical workers not directly involved in patient care but who nevertheless may have direct, face to-face contact with patients, such as receptionists, ward clerks, porters and cleaners.
The government have stated that the regulations will not come into force until 1st April 2022 in order to provide the health and care sector with enough time to implement the requirement and help minimise risks to workforce capacity over the winter period.
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