As businesses are slowly emerging after lockdown there are several considerations for getting back to “normal operations”. Things may not happen straight away, or they may be operating in a different fashion to their pre-lockdown identity. Depending on their trade, demand may have spiked or slumped during the crisis and there may now be a time for adjustment required to align the business to the new circumstances.

Apart from the physical hygiene requirements that will be necessary there may be a need to look at staffing for the business under possibly altered conditions. Lower demand or enforced changes due to social distancing requirements or shorter opening hours may mean that the full complement of staff is not immediately required. Such considerations need to be very carefully examined and properly dealt with by any business to avoid another potential headache of an employment dispute.

The Return to Work Safely Protocol published by the government on 9th May outlines in very clear terms for employers and workers the steps that they must take before a workplace reopens, and while it continues to operate.

Every employer should read and follow this protocol. By working within this they can determine what staffing levels are required. For some, it may mean that fewer staff are required initially. It is important to note that the Temporary Wage Subsidy Scheme and the Pandemic Unemployment Benefit payments are to remain in place until at least the 31st August, so employers should continue to utilise these if not bringing all staff back straight away.

Bringing staff back from lay-off should be done on either a longest-serving first basis or by using a selection scoring matrix to avoid potential discrimination claims arising from those not initially selected. Document the process and keep records of the decisions. As the business recovers the remaining staff may be brought back in a staggered fashion.

If a business has been more seriously impacted renegotiation of contracts or changes to conditions may be a necessary measure. These cannot be imposed on staff but should be done via consultation and agreement. A detailed, documented process is vital to ensure the business is protecting itself from subsequent potential employment disputes. Discussion with staff on the impact of such changes is key, as is discussion of the consequence of not making changes, i.e. could it lead to closure or redundancies? It is imperative however that an employer considers all other viable options for dealing with such issues before redundancy is considered.

The Redundancy Payments Acts 1967 to 2014 set out circumstances in which an employer is permitted to dismiss employees on the basis of redundancy. There are 5 genuine redundancy situations identified and the employer should ensure their situation falls within one or more of these.

Individual circumstances of a business may determine whether voluntary or compulsory redundancy is most suitable. The numbers involved will determine if it is a Collective Redundancy situation requiring the engagement in an information and consultation process with employees’ representatives and notification to the Minister for Employment Affairs and Social Protection under The Protection of Employment Acts, 1977 – 2014.

As this is such a complex area to navigate it is vital that a business seeks advice before embarking on any redundancy process or even to determine whether it is the right option rather than others noted above.

An ARAG Commercial Legal Protection policyholder will have access to free legal advice on such matters to help make the decision which is right for their business.


Please contact your ARAG Account Manager for further information on all Legal Expenses policies.

Disclaimer - all information in this article was correct at time of publishing.

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