Restructuring and other workplace changes
Workplace changes include restructuring (meaning that employees’ jobs change), but could also extend to redundancies (meaning that employees’ jobs end). Changes that may be made include the merger of positions, change of responsibilities, and redundancies, amongst other changes.
Any employer thinking of changing any employment arrangement should first review the relevant employment agreements and workplace policies. Employers are required to deal with all employees in good faith, and it is important that consideration is still given to this notwithstanding the COVID-19 situation. Without complying with their legal obligations and following a proper process, an employer could face a claim of unjustifiable dismissal.
There are two key considerations in any workplace change:
a genuine business reason; and
a fair process.
Genuine business reason
An employer must have a genuine business reason to make changes to their business and any previously agreed arrangements with employees. A workplace change cannot be used to manage performance issues of an employee, and an employee must not feel that they are unfairly targeted (to avoid the risk of a personal grievance being raised later).
An employer must show that any changes to an employee’s position are for genuine business reasons – this includes providing the employee with the relevant information (which includes financial information) showing the need for a change to be made. This will include disclosing to employees the effects that COVID-19 has had, and is forecast as having, on the business.
Fair process
Employers are not permitted to make pre-determined decisions; they are required to complete a fair process of consultation with affected employees and take the employees’ feedback into account.
The consultation should be a staged process, involving an initial discussion with employees as to the need for the change, the proposed change, and the provision of information, and a follow up after employees have had the opportunity to consider the information and suggest any alternatives to the employer’s proposal. The employer must then reasonably consider the employees’ proposed alternatives before advising the employee of the outcome.
Particularly in relation to redundancy or a reduction in pay, employers should first apply for the government’s COVID-19 wage subsidy scheme where possible with the aim of keeping employees employed where possible.
Get in contact
If you would like advice about the effect of COVID-19 on your workplace (as employer or employee), or you would like our assistance with another legal matter you are facing, please contact your usual point of contact at Kemps Weir or contact us here.
Disclaimer: This publication should not be construed or acted on as legal advice. It is brief and general in nature. Specific advice should be sought.