Zoom Straight To An Employment Tribunal: Is being made redundant via Zoom legal?
July 1, 2020
3 min read
What's going on here?
With the economic difficulties many companies are facing, redundancies are inevitable, but letting staff go via Zoom or other video conferencing services could open up employers to claims of unfair dismissal.
What does this mean?
Reflected by the unprecedented rise in people claiming unemployment benefits, businesses have been forced to lay staff off in an attempt to cut costs and remain solvent. But with many companies still operating work from home arrangements, lots of these redundancies have been made via Zoom and other video conferencing software. One example is Uber, which laid off 3,500 employees in May via a group Zoom call.
Although some might consider Uber’s call, which lasted three minutes, callous, it would be wrong to challenge its legality in the US or the UK. However, a right that English law affords to employees is the right to consultation. This is an obligation that is very important for employers and employees to understand (along with their other duties ), especially in the COVID-19 context.
What's the big picture effect?
In the wake of the industrial revolution, legislation, including the Employers and Workmen Act 1875, recognised the need for a greater level of protection to be granted to workers. Following almost a century and a half of adaptations, we are left with a body of law (and specifically the Employment Rights Act 1996) which seeks to safeguard employees’ interests.
Importantly, the law stipulates that employees being made redundant must have the opportunity to raise objections and ask questions; i.e. consultation. This is more than just a simple communication of an already made decision, requiring employers to consider alternatives to redundancy, to examine ways to reduce the numbers of redundancies and look at how they can mitigate the resultant hardship. The exact consultation process that an employer has to follow depends on the number of planned redundancies. A principle of good industrial practice that a reasonable employer is expected to adopt (established in cases such as Williams v Compair Maxam Limited ) is consulting with each employee individually when fewer than 20 are being made redundant. Failure to do so could amount to unfair dismissal.
But the legal problems do not stop at consultation: the option to record video calls could also prove problematic. If an employer did not agree to a recording, the employee could be in breach of the implied duty of trust and confidence in every employment contract. Although Peter Binning, partner at Corker Binning, stated that “consent granted or not, the recorded conversation could still be admissible in an unfair dismissal case”. Legal problems could also arise for employees if they joined a Zoom call where somebody else was being made redundant. This could be considered interception of communications which is a criminal offence under s3 of the Investigatory Powers Act 2016 (for an interesting discussion of a Financial Times reporter caught eavesdropping on private Zoom meetings, click here).
With a potential uptick in unfair dismissal claims, it is vital for employers to understand their obligations and for employees to understand rights. If an employee of two years or more believes that they have been dismissed in an unfair manner, they can contact the Citizens Advice or ACAS who can assist in filing a claim for unfair dismissal. As well as ensuring the employee receives what they are entitled to, such as statutory redundancy (or contractual redundancy) pay, any paid notice and any outstanding but accrued holiday pay. The maximum compensation available in unfair dismissal claims combines a basic award of £16,140 with £88,519 or 52 weeks gross salary (whichever is lower), which means an unfairly dismissed employee’s last payday could be a lucrative one.
Report written by Keir Galloway Throssell
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