Jane Fielding: Good morning everybody. I am Jane Fielding and I am head of employment labour and equality here at Gowling in the UK. I am very pleased that you can join us for what is the fourth and final webinar in our series of webinars that we have been running over the last couple of weeks, to replace our normal 'in person' mid-year review seminar. Bringing you up to speed with developments at the half year point.
Our topic for today is redundancy, and redundancy of course, like everything else at the moment, in a COVID-19 context. Judging by the 300 or so of you that have registered for the webinar today and the announcements last night in the news about 12,000 redundancies in retail and manufacturing for example, we are confident it is a very topical subject, if a difficult one.
What we are going to cover is: how do you know you are in a redundancy situation? What is the legal definition of redundancy? If you are in that situation what processes do you need to follow to make sure you are compliant with the law and avoiding triggering claims? And then finally, as I said, all of this at the moment is being looked it in a very changed environment potentially. What if anything, has changed and needs to be done differently in a post COVID-19 context or in an ongoing COVID-19 context perhaps?
Our speaker today is one of my fellow partners and friends, Martin Chitty who has a huge amount of experience of dealing with redundancy situations through various difficult periods in the economy and otherwise. He is going to speak for about 30 minutes and then we will have some time at the end for questions.
We will finish at about 11:40 so you can get on with the rest of your day and just before I hand over to Martin, a couple of housekeeping points – not as many as if we were in person, do not need to do a fire alarm for example.
If you do want to ask a question, then please use the Q&A option at the bottom of your screen. You will see it is a little Q&A thing, if you press on there and type in your question I will monitor those as we go through and we will try and pick up as many as we can at the end, but we cannot give any guarantees.
If you post your question anonymously then we will not be able to come back to you because we will not know who to come back to. So if you want a reply, then please do put your name in there and I will have your contact details.
At the end of the session, you will receive a request for feedback? Please do fill that in. It only takes a couple of minutes and we do read those and take them into account when we are looking at future topics and formats. So, as I say, please do fill that in before you log off.
I will hand over to Martin.
Martin Chitty: Good morning everybody. Hello and welcome. It is often said that the period coming out of a recession is actually harder than the recessionary period itself. I think there are some broad parallels.
We probably have to accept we are going into a recession at this point rather than coming out of it, but I think there are some broad parallels with what we now face as employers and business managers as we come out of the lockdown period and the government's job retention scheme has had the effect of providing a very effective subsidy for – figures vary, somewhere between six and eight million people in the workforce, and some sectors would have failed already were it not for that level of support, but now as that starts to decline over the next few months and despite the fact that we have got the facility to bring people back on a part-time basis with some declining level of support, there is a need to act and we have already started to see that – with our clients and your businesses as well.
Some of what I am going to talk about today is a bit of a recap on the theory of redundancy and how it works and what our various obligations are and what we need to be looking at, and some of it is actually informed by the work that we are doing at the moment for existing clients.
Some of our clients started planning this – as I am sure you have – at a relatively early stage because they could see that there was going to be a substantive and long-term change in their business needs. It might not just be about short-term reductions in the head count but there might be a longer-term structural change in the market as a result of all that has gone one.
I am going talk about two or three basic topics as Jane has described. So, what is a redundancy? Just to make sure we are all on the same page, it is slightly broader than sometimes people realise. Secondly I am going to talk about consultation, what that looks like from a collective and an individual basis and then I am going to try and bring that together in terms of, well what is very different or different at all about this sort of post-COVID-19, post-lockdown period.
So let us start with the entry level question if you like which is, what is a redundancy? And I think here I just want to pick up on the breadth of this because it will come back as a recurrent theme as we talk this morning. And it is an issue which can cause problems on occasion if we are not wary of it.
So, the three standard definitions taken from the Employments Rights Act are about place of work, type of work and a reduced need for work of a particular type. So bringing that into a sharper focus, place of work is that the place at which you work is going to close down and there is probably a no more absolute or clearer way of describing a redundancy situation so the shop, factory, office, whatever it might be is simply going to close. And there is certainly quite a lot about at the moment, we are seeing it in the retail environment and particularly the hospitality sector. Clients have been very clear that they are not going to go back to full opening. In fact some closures of some stores will never re-open. Even John Lewis have suggested that some of their stores may not re-open at all. And that represents a significant structural change. It may be that that was coming anyway and the period of closure we have had recently with what has been going on with reduced demand in the market has simply brought that to fruition earlier than it might have otherwise have happened. So that is the first type.
The second type is that a particular strand of work is not going to carry forward. Historically this was about a particular product buying, a particular area of the business is going to cease to operate. So a type of work in which a group of people are employed is not going to be continued with in the business going forward. And we might see that in manufacturing and all sorts of environments. And that tends to be again relatively straightforward because if you are engaged in that type of work, clearly your job is redundant. What then happens is a separate issue and we will come back to that in terms of alternative work.
And the third type historically is reduced need for work of a particular type. So we are still going to do it, and we are still going to do it in the same place, but we are not going to need as many people to do it. And this in many ways is the most difficult sort of redundancy in procedural terms simply because we have to identify a proportion of the workforce who we no longer need and to them it is the equivalent of being told, "well it is not about you it is about us - we do not need you, we do not want you, you are surplus to requirements and we have preferred other people over you". That in my experience is the most difficult area to deal with because of the emotional impact of that. If everybody is in the same boat, so everybody on your production or everybody in your office or shop or factory is losing their job, somehow the impact is not as great because other people have not been preferred over you. Management has not chosen to retain them, you have been dumped.
Now the fourth point here is the one I just want to dwell on for a moment and it is about non-fault based dismissal. But what do I mean by that? Well it is any termination which is not down to the conduct or a qualitative issue about the individual. And where it comes into play here I think is two-fold and we do need to think about it. One is that, if we are dealing with non-fault based dismissals then, as I will talk about later, there is an obligation to consult collectively either with trade unions if you have them or their elected employee representatives. Why might that be relevant here? Well, non-fault based dismissal is in fact how redundancies are described for consultation purposes. And you might get to a position where as opposed to reducing headcount, let us say from 100 to 75, you simply look to achieve a 25% cost reduction. So you decide to keep everybody in the business, you do not want to lose the skills you have built up over a long period, but what you want to do is to reduce the cost of employing those people. And you might want to negotiate reductions in wage cost against a backdrop that, if individuals do not accept that, then their employment will be terminated because it is either everybody or nobody onto the new deal. And in those circumstances, you would need to be looking at collective consultation because those would be non-fault based dismissals in these circumstances. So, when this has happened over time we have dealt with a number of exercises of this type where we have had to go through the process, or at least opened up a consultation process, around the possibility of dismissals where people will not agree to revised and therefore reduced pay package and wage costs from the company's point of view. It is an alternative to a headcount reduction because everybody shares some of the pain rather than only a proportion of the workforce taking all the pain.
So that is the theory part about what is a redundancy and now we are going to move on to look at what we need to do in terms of consultation and process.
So the first of these is around the collective piece. Now for some of you, you will have been through this a number of times particularly where you have recognised trade unions. For others this may be the first time you have had to think about this. And there are some ground rules we just need to be aware of because if we do not, it can become very expensive. The reason for that is that, under the 1992 Legislation, if you get the process wrong or if you do not observe it at all, then there is what is called a protective award. And protective awards are pretty expensive things because it is 13 weeks' gross pay per person affected by the process. So it is a quarter of the annual wage cost for the people involved. Now you might decide having thought about it that you are prepared to take that risk. It does not invalidate the redundancies but it is awkward, it is embarrassing, it is time consuming and costly. But needs must, you might decide not to go through the consultation process at all on a collective basis and there is a cost to that. I will leave you to think about that one yourselves.
The other thing to think about it is that, if we are in a collective process, July and August are, in my experience, absolutely the worst months to try and do this in normal circumstances because as I will explain, if you have got lots of people on holiday it is very difficult to run a compliant process. So we will come back to that in due course. So there are some things we need to think about here. And the starting point is about numbers and then we will talk about some timing issues.
So, the legislation talks about the numbers of affected people and that is what triggers whether you have to go to collective consultation. And the important numbers to remember are: 19 and 100. So if you have 19 or less affected employees, that is people who will be made redundant or jobs will change so significantly that you need to consult about it, then there is no collective consultation. And then if it is between 20 and 99, then it is a 30 day period and if it is 100 or above then it is a longer period, it is 45 days - it used to be 90. So that is the key in numeric terms, and then you have to look at this question of an establishment and this has been the subject of quite a lot of litigation because it is not really well defined or defined at all in the legislation itself.
So some of you will remember some years ago Woolworths went bust, and that is the authoritative case on this area. Because what they decided there eventually, having gone through every conceivable area of the court process, was that an establishment should be equated with basically, where someone works. So if I work at a branch of Woolworths, if I work at a particular office at the business or a particular factory unit, particularly that is what my contract says, then that is the establishment to which I am tagged. And so you then look at how many people at that establishment are affected by the possibility of redundancy. And that is the key. There are some variations, some nuances around that, and they are probably worth discussing more specifically with particular examples. There is some issue around the degree of autonomy that an establishment has from the mothership. So if it is really just a satellite with no autonomy of its own, no control and indeed hardly any functions other than sitting there doing work, then it may be that that is not a separate establishment. And let us assume for the sake of argument this morning that it is.
So, having identified how many people are likely to affected and what our establishment is, we look at the timeline. What I want to talk about is the trigger even in all of this because for some of you, and I say this advisedly, some of you will already have missed the starting gun for this in my expectation and indeed based on experience. And what do I mean by that? Well, the legislation in the UK talks about the trigger even being when redundancies are proposed and because all of this derives from some EU legislation, we do need to look at what the EU legislation also says because it is still relevant and that talks about when they are being contemplated. Now if you are contemplating doing something that normally precedes actually proposing to do it or indeed doing it. So that arises at an earlier stage. But in the UK it is certainly the case that the accepted definition of what is proposed and therefore what the trigger event is, is when you have made a decision which makes these things inevitable. Now in circumstances around redundancy, if we have got to the position where we have decided in any event we are going to make a headcount reduction. We do not know how many it is going to be and we do not know specifically the range across all of our operating sites, then we are definitely at the proposed stage because the decision in principle has already been taken. So if you find yourself in a position where a decision is handed down from head office and particularly head office abroad to say, you are to do this by the end of August, although we have got 30 days from now to do it, the fact is we should start straight away. So you do need to be thinking about that.
Other things to think about, and this does affect the timeline as well, are issues around representation. If you have a recognised trade union, then you have no choice. You have to consult with the union, that is what the legislation provides for. There is actually an advantage in my experience to that because the unions are definitely more aware than lay-elected representatives of what they are meant to do. They understand the process, they probably have their own game plan and approach which they want to take. So in some senses it is more straightforward. If you need to elect representatives, you need to allow more time because you have to ensure that all of those affected have an opportunity to stand and all of those affected have an opportunity to vote and many of these people, because of furlough arrangements and the like, may not be in the office, they may not be on email, they may not be as contactable as easily as they would have been in normal circumstances. So you do need to allow more time and that is my I made the comment earlier about July and August being the worst time of year to be trying to do this. In normal circumstances it may be, despite the air bridges that have been announced in this last week, that this will be an easier summer to try to do this than might otherwise have been the case. And you do need to think about the elected representatives. You have very little control over who actually stands or who gets elected, and because it is actually very difficult because they are acting as representatives for the group but will also be seen to be there to do the best they possibly can for both sides, they are caught in the middle, they are right in no man's land. And they do need some training and support in terms of what they can and must do, and you need to factor that in to a plan chart when you start planning ahead just to how quickly we can get this done. So quite a lot of work to be done, and if you are inefficient in the part of this process then the risk of a protective award obviously goes up.
And the final point here is about the mandatory elements you have got to cover. The basic purpose of the collective consultation process is to look to see how redundancies can be avoided, reduced or their impact mitigated. That is set out in the legislation, what is your overarching objective. It does not mean that they are not going to happen and it does not mean that the process can be blocked in any way because that is your decision, you can decide how you chose to run your business but, there are some elements that you need to ensure are got across to elected representatives, union or otherwise, and that is about the why, the how many, the selection process, the methodology, the level of redundancy payment and rather bizarrely, the number of agency workers in the business, that is the whole business, and that has to be set out in writing.
The other point to remember is this, you need to file a form called an HR1 with the Department of Employment which puts them on notice that a significant number of people are going to come on to the labour market in the short term. If you do not do that, and it needs to be done quite early in the process actually just before you start giving formal notice to the elected representatives or the union, you can be prosecuted and fined heavily for it and we have seen instances in the last couple of years where that has actually started to happen, probably for the first time really in living memory.
So quite a lot of process. I would like to think about some basics when you are trying work out the numbers involved in the establishments.
So we will move on next to the process of consultation as regards individuals. Very familiar I am sure to almost everybody on this call. Let us just have a look at these basic points.
The first is the question, what is the pool from which we are going to take our candidates? The pool plainly on a closure or removal of a particular product is the people involved in it. The pool in relation to the reduction is sometimes more difficult. It is functional and but indeed, it is something which you can control. You get to decide what the pool is going to be, and provided that you can defend that decision based on reasoned criteria, you will be pretty safe. It is actually very difficult for employees to challenge the pool. But what you need to guard against is taking arbitrary decisions in terms of how the pool has been set. If it looks like you have set it to achieve a certain end then it is certainly open to challenge. And what I would say, and we will come back to this again later on I think, is there is a danger based on my experience in this sort of furlough period, of people equating those on furlough with the pool for redundancies. And that is dangerous. It is not an absolute prohibition but I would say, guard against it in your thinking and analysis.
The second question deals with, what are the criteria? Well, nothing has changed here in terms of selection criteria. We are looking at objective criteria, measurable criteria, preferably historic so not things that we have just had to think of now but which we have had to … evidence only based on criteria and figures we have brought together recently so performance, attendance, contribution and those sorts of things. The normal issues here which we have talked about before on previous webinars about double counting. It is very dangerous so flexibility and breadth of skillset may be the same. They may not because flexibility may be an attitudinal thing, but the risk of identifying attitudinal criteria is that they are very subjective to the person actually carrying out the assessment. As a word to the wise, I would suggest you discount absence since 23 March simply because many people may have been either on furlough or on some sort of lockdown and do consider very carefully periods of absence where they relate to individuals who have been self-isolating or shielding members of their family.
Assessment and moderation are two sides of the same coin. The key is who is going to carry out the assessment? Who is going to score these people? How well do they know them and are they objective, are they independent in their thinking? And moderation is a good idea simply because it is always useful to have somebody else look at the figures just to see if anybody who has done the primary assessment has actually misunderstood, misapplied criteria, have scored people with a certain either overt or subconscious bias, just to see what patterns are coming out there. I had a case a few years ago where there were two families who worked in the same business, quite a significant business, who were feuding and the assessment was carried out by a member of one, and lo and behold all the members of the other family got selected even though on an objective assessment they should not have been and that was fortunately picked up in the moderation process. Any selection process like this needs to account for some sort of appeal so you need to build that in and there is a legitimate question about when and at what point in the process that appeal would actually take place. Do you allow people to appeal at every stage about being in the pool at all, about the criteria, about the way they have been assessed. Would you leave it all to the end? And the danger actually of leaving it all to the end to a final decision is that by then other people have breathed a huge sigh of relief and assumed that they are safe and you have got to re-open the whole process so far as they are concerned. I mean clearly that is not going to go down very well. So mapping the whole thing out, seeing where your pinch points are is going to be very important.
And the last part of the process with individuals is that you do have to consider whether you have suitable alternative employment. And that is not just in the unit they work in but across the company and indeed across any associated companies. So when you are look at this, and this I accept will be difficult in the current circumstances, you need to be thinking about this in the context of, can I show that I actually made those enquiries? Can I produce an audit trail of emails to leaders in other parts of the business in other areas that I have these people with this skill set would you need any of them? And it may be of course that people would not want those jobs. They may not suite them in terms of location or pay. You are not obliged necessarily to replicate terms and conditions or subsidise a move to another site if you do not want to. So those alternatives can be made more or less attractive.
And just as a final point, if you have any women on maternity leave who are impacted by this redundancy process, obviously they have particular and enhanced rights which you do not want to forget, although there is probably a whole other webinar we can do one day on maternity and parental leave legislations and regulations about the degree of that protection and how that works in practice.
OK, so here ends the lesson the theory, let us look at some of things which may have changed as a result of COVID-19 and as we come out of the lockdown period.
The four points on this first slide I would say broadly, and in principle certainly, have not changed at all. We still need to have clarity about our rationale and what we are doing and why we are doing it but are we thinking about this purely in a sort of an historic 1970s, 1980s mind set about the only way of cutting cost is to cut people. Are we looking at longer-term changes in our approach for instance, would people be amenable to a long-term pattern of working, going on to a 4-day week and achieving that 20% cost reduction as a result? Yes it might require more thought and possibly more exploration but you might be able to keep that skill set, that base of people together in a way that you could not before. Let us think as well about what our numbers are going to be. Do we have clarity around that before we start this process? It is absolutely legitimate to work to the letter of the law in terms of what is an establishment, what are our numbers at establishments and are we going to go for a single exercise or is this going to be a series of processes over a longer period. And we need clarity as far as possible, and I accept absolutely the world is not perfect in this respect before we start out on all of that.
As I have said before, how we meet our collective obligations is really a significant challenge if we get to that point simply because of the timing. We are fine where there is the union you can get in touch with them, you all know who to speak to. We need to get our HR1 in in good time with the greatest degree of clarity we can manage in the circumstances. We need to be thinking about that. Are we yet at the proposed stage? Some of you will be I think. In terms of the elected representatives, I have already talked about how we deal with that around holidays. Do think about how we are going to deal with that communication and what the timeline is going to be, and I realise absolutely that you will be getting pressure from the business to say how soon and how quickly can we take cost out. Because the cash flow is, in many respects, everything at this point. It is worth thinking about and indeed sourcing some training for the representatives because people, as I have touched on very briefly previously, do have a slightly strange view of what their role is. They are there to represent. They are there to advocate. They are there to negotiate and may need some guidance. But they may also need to understand that they cannot necessarily stop the process, they can simply influence it or try and negotiate and get better terms. So some training in that respect is useful. And what you also need to look at, and this is a challenge particularly in manufacturing in my view, is how the representatives are going to be able to communicate with their constituents. How are you going to cascade that information down to them when not all of those people will necessarily be on email in the workplace. It is much easier if you like in white collar jobs and professional service type environments where everybody is hooked up to their email all the time. Now not much of that has changed, there are some nuances particularly about the collective process and getting our timing in place.
So if we move on to possible further changes. The sort of redundancy we have, again there are three primary sorts I was starting out with, but nothing has really changed beyond that. But do think carefully if you want to go for a more nuanced approach in terms of cost reduction by long term reduced working hours so the no-fault dismissal. There is always a tendency in those situations I think to see whether we can get to an agreement without having the spectre of dismissal sitting behind it. But if ultimately we cannot get enough people over the line and we would dismiss those who refuse to take a reduction in hours and/or pay, then it is better to have that out in the open initially so that we make sure that we de-risk the process as far as we can in terms of collective consultation compliance.
How we consult in furlough is potentially quite complicated because of the communication issue but what we do know and what is very clear from the HMRC guidance on this point, is that people being on furlough and in benefit with the job retention scheme does not mean that they cannot be made redundant. In fact it is made very clear in the guidance that they can. What you do need to think about almost as an end point is how you are going to deal with notice in that context because, if people are employed even though they are on furlough and not working, you can still claim for them under the job retention scheme. There is an argument or a concern actually that HMRC will challenge that at some point on the basis that that is patently an abuse but the guidance does allow it, well it does not certainly prohibit it, and it does not do so expressly. So do think about that. What you cannot do which we would do in normal circumstances, is say to people we will pay you in lieu of notice. You cannot then claim for them under the job retention scheme so that you would have to self-fund, so you are going to have to take a decision about that.
There is an issue about consultation in furlough in terms of how do you do that. Normally you will get people into a meeting room and talk with them, but you might have to do this by correspondence, you might have to get them to come into the workplace or meet with them somewhere. You have to start that process off by letter. I cannot contemplate having a redundancy consultation over the phone, although theoretically it is possible. You could do it over Zoom because that is the equivalent or the best equivalent we have to a face to face meeting in the current circumstances. Or you could do it, I suppose, by way of a home visit although for most of us as employment lawyers and many of you are HR professionals, home visits are very dangerous territory indeed in all sorts of respects, they are very invasive and also you lose, as the employer, control of the environment to an extent. All of those things are going to mean that this takes longer than normal and you do need to factor that in. So if we are looking at process flow, if we are looking at potential cost savings and realisations, then we are going to have to allow more time before they all arise.
Our criteria for selection I think is still the same as they were before subject, as I mentioned in passing, to discounting absence, certainly for anybody who has been shielding or self-isolating for health reasons because almost inevitably we then fall into concerns or potential problems around disability, and it is a good idea I think to discount that entire period anyway.
So finally before we get onto your questions, a couple of points about furloughed staff selection and pre-determination. And I am speaking in very general terms here. There will be a reason, in an organisation where you have furloughed but not all people, you will have furloughed me as opposed to Jane for a variety of reasons to do with comparative usefulness I am sure. When it comes to the longer term and selection for redundancy, I think there is a risk that you will simply, or the employers broadly, will assume wrongly that in the long term simply because I was furloughed that is still the right decision to make me redundant as opposed to Jane. Now that is something you need to guard against in my view because if you simply go along with that you cannot possibly have … you cannot show that you have properly exhibited an analysis by relative merits not unless you did it on the furlough and wrote it down at the time with suitable selection criteria scoring and moderation.
The final point I wanted to latch on to this and this is basically for organisations who have realised in this extraordinary period that they can change the way they do things really very fundamentally. This is not just about cutting down a few people or reducing a few heads, it is actually a whole brave new world. Now in that situation we do need to think about what is meant by affected employees and this is why I raised this issue earlier and one of the reasons for doing it. If we have 100 people in the organisation and we are going to do a combination of things, we are going to take some heads out, we are going to lose 15 people so no collective consultation, but actually another 35 people's jobs are going to disappear but 35 finely reconfigured jobs are going to emerge, 50 people are affected by the process. At least 50 people. So we do need to enter into collective consultation to deal with that and there is case law around that. It is not the net figure, it is the people who are affected by the change. Now a lot there is going to depend on things (we have not got time to talk about this morning) in terms of the extent of change, whether it is 10% or 90% of the job is changing. You certainly need to look at that. And there was a case reported only last week in fact in local government where an organisation had got that spectacularly wrong because they did not bother to engage properly and consult with the individuals on how that was going to work. The one advantage that the old role against new role process does have is that, where people can apply for new jobs and you may get a far greater breadth of applicants internally for the newly configured jobs, it is not quite as hierarchical or progressive in terms of experience because the jobs are going to be different. You can select those you want to appoint as opposed to having to select those who want to leave and that does give you more flexibility if you go about it in the right way but you do need to adhere to the process to make it work properly.
So that is enough from me. Jane, back to you. Let us see if we can pick up on some of the questions.
Jane: Thank you very much Martin. Now we have had lots of questions coming through, some of which you already covered in the session so we will park those ones. There is a couple around the interplay between individual and collective consultation. So it probably makes sense to take those together. One is, in what circumstances is individual consultation alone acceptable i.e. well it is phrased as 'as opposed to collective' and does the same trigger for consultation apply if fewer than 20 employees are at risk so you are in individual consultation territory.
Martin: OK, let us try and bolt those together. So, one way of describing collective and individual is that they run in parallel but that is not entirely right. They are separate processes but they overlap. So where you have got an obligation to consult collectively, one of the issues you are looking at is selection criteria. So that has to be established and agreed at a collective level and then it is implemented at an individual level. There are no redundancy exercises in which individual consultation - you are exempted from it frankly. It is arguable that if you were doing a complete site closure of a small site with fewer than 20 people then that would be fine because what is there to consult about? Well, do not take the risk would be my advice. So there is never a circumstance where individual consultation can be ignored, and collective consultation is not enough because the fact that you have spoken to my union or my elected representative about the process, does not mean that I have been engaged in it, you have not talked to me, you are doing things to me without me from that point of view. So I think hopefully that explains the first one.
The triggers, well, individual consultation is about the fairness and the process. So there are not absolutes in terms of timelines, there is no minimum consultation period. The tribunal is an example. It is not written down anywhere but you learn quite quickly, they expect to see it last for two or three weeks so they are interested in quantity not quality. If you have all the meetings done and they would generally anticipate three or four meetings in that process, they want to see that input from the employer's point of view. Throwing them all into one week is not going to get the job done properly and therefore it can be procedurally deficient. So the broad process is going to be an initial meeting to explain what the process is going to be, then a meeting with the individual to explain well these are the criteria and this is how we have scored you, the individual gets an opportunity to go away and think about and come back with alternative points, possibly to come back with an alternative idea, challenge that. And at each stage the employer needs to show that they are actually listening. That is what a consultation is, it is a bi-partisan process and exchange of views. It does not have to act on it but it has to show that it is thinking about it and you cannot do that if you bang the process through 1 day, 2 day, 3 day, 4 day and everybody leaves on Friday. So you do have to be cautious from that point of view. And as a word to the many wise people on this call, experience suggests that if the tribunal wanted to find fault with what you are doing, they will find a procedural fault somewhere.
Jane: Obviously as you said earlier, in this environment, well people are going to have to do it by largely probably by Zoom, Webex (other platforms are available) more than in person depending on their sector. The whole things is going to take longer. So there are a couple of questions around the impact of Zoom. One is, which we have just got time to take I think before we close, what if somebody refuses to engage in the process and refuses to log on to the Zoom call to be consulted with?
Martin: Yes, well I think as with any other refusal to engage in the process, that the refusal cannot just be taken as an absolute at face value. It does not excuse you from not trying. You have to offer them another alternative. And maybe a reason why they do not or cannot do that, there may be some issue about the tech or the reliability or the time. We cannot just take a knee jerk view in those situations. And I think we have all got used to using Zoom, I mean, until all this started I certainly had avoided it frankly like the plague, but now I use it all day, every day and it all seems perfectly natural but that will not be everybody's experience. And certainly lots of people will not have necessarily the facility to do it. So we have to go back to basics and a bit more old school, about can we meet them somewhere. I mean it is legitimate to invite people back into the workplace provided it is a COVID-19 safe environment if they are not working. In way of providing, we have taken into account there very legitimate and proper concerns about personal safety either there or in getting to and from the meeting because that is something as an employer we do have to contemplate. From an employment perspective if not from a health a safety perspective.
Jane: Great, thanks Martin. So we have come to our full time so I will have to draw it to a close now and apologies to those of you whose questions we did not get to. We will do our best to come back to you separately on those if you have left your contact details. So I hope that was an informative sessions and helps you in your planning.
So just to say, thank you very much to Martin for the session and for fielding the questions and just a reminder to all of you, if you could fill in the feedback questionnaire which you will get, that will be much appreciated. Otherwise we will say goodbye and wish you a good rest of the day. Goodbye.
Martin: Goodbye.