When Process Goes Out the Window

The basic principle is “everything HR starts with HR processes”. Love them or hate them, processes are the fundamental essence of most things HR.

Tiny parts of a HR process can be the subject of days and days of scrutiny in a tribunal assessing whether the full spirit of the processes was adequately or reasonably applied.

So what happens when an employer urgently needs to close down half their business with no time to consult, or needs to layoff hundreds of staff without the process of a layoff clause? Is the law forgiving? Can you ditch a process to save a business or are UK tribunals in for a massive backlog of breach and discrimination claims resulting from Corona based breaches?

Whilst most companies have HR policies, there are few equipped to deal with anything like the current Corona Crisis.

Proving to those obsessed with needing a policy for every scenario, that this isn’t possible, the closest useful policies are ‘Business Continuity or ‘Disaster Recovery Plans’. These have all failed to hit the mark and left their organisations in a worse position than those with nothing in place given the speed or severity of action required.

Redundancies are usually known for being one of the most complex of processes, including identifying business grounds, those at risk, assessing selection pools, suitable alternative roles, selection criteria, consultations and terminations. So what happens legally when business grounds are clear and obvious, the situation unavoidable, there are no alternatives and no time to consult?

All the elements of the process are not only useless but seek to waste valuable time so does that justify the breach? By and large, the answer is, surprisingly, yes.

If you are in a position where all staff are being treated the same (so there is no discrimination) there are no alternatives and you are fighting to save your business then arguably not following your policy is to act reasonably.

Decisions and justifications must be noted and communications with staff evidenced to show reasons, considerations, appeals and an opportunity to consult, but this is a unique situation where following the policy of following the policy has risked entire businesses compared with those who have been able to make decisions and move faster.

We do not, nor would we ever, advocate breaching statutory entitlements (eg notice, holiday, contractual sickness or emergency leave), these are not the same as processes and must not be ignored.

To conclude, whilst every situation is different and must be viewed on its own merits, the last few weeks are a stark reminder of the clear importance for employers to act reasonably, communicate properly, assess risks accurately and ensure they are acting fairly. This is, we would suggest, far more important than following pointless policies.

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