How To Fire An Employee During The Coronavirus Crisis?
In this article, we explained how to fire an employee during a coronavirus crisis. During these last months of the coronavirus crisis and, probably, during the entire de-escalation period, many businesses have not been able and will not be able to carry out their activity normally.
This is logically having an impact on their ability to generate income and to meet the payments of, for example, their employees’ payroll. In many cases, the survival of the company depends on dispensing with the staff. But, is dismissal due to COVID-19 allowed?
On March 23, the Government approved prohibiting dismissals for economic, technical, organizational or force majeure reasons related to the coronavirus, to prevent companies from laying off their workers during the pandemic.
Initially, this limitation was to be maintained for the duration of the State of Alarm; However, even without knowing how long this situation will last, at the beginning of May it was announced that the veto on dismissals will be valid until June 30 .
This does not necessarily mean that a contract cannot be terminated, but rather that the dismissal will be declared inadmissible by a Social Court and the company must pay compensation to the employee. Dismissal due to coronavirus, therefore, can be executed but it will be more expensive for the company: it will have to pay compensation corresponding to 33 days per year worked instead of 20, which is usual in case of fair dismissal.
Labor Law professor explained it this way, in an interview for Diario.es : “Companies are going to be able to continue laying off workers, but the consequence of the dismissal is different. It will be considered at least as a dismissal not adjusted to law, in which there is no cause and compensation for unfair dismissal would have to be paid.
It is necessary to clarify that the company may benefit from other types of objective dismissals :
- Due to unexpected ineptitude of the worker.
- Lack of adaptation to technical modifications.
- Loss of final grants (in cases of public contracts).
However, these must be duly justified to be valid.
What About Temporary Workers?
The Decree of March 27 establishes the interruption of the calculation of the maximum duration of temporary contracts. As indicated in article five “ the suspension of temporary contracts , including training, relief and interim contracts, will mean the interruption of the calculation, both of the duration of these contracts, and of the reference periods equivalent to the suspended period. , in each of these contractual modalities, with respect to the workers affected by them”.
This means that temporary contracts are suspended during the State of Alarm and must be automatically resumed once completed and for a time equivalent to the remainder of the service.
The ERTE: The Alternative To Dismissal
As an alternative to dismissal, companies can request to benefit from an ERTE or Temporary Employment Regulation File in order to weather the crisis resulting from the pandemic. With this procedure, the company temporarily suspends an employee’s employment contract or reduces their working hours (with the corresponding salary cut) alleging force majeure, economic, technical, organizational or production causes.
It is very important to emphasize that an ERTE is not an ERE (Employment Regulation File). The main difference is that, in this case, the worker is not fired but his contract is temporarily suspended. And, in addition, the company has the obligation to return your job after the agreed period and not to fire you in the following six months .
Therefore, this mechanism allows the company to reduce labor costs for a time (long enough to recover) and thus avoid more drastic measures such as dismissal of workers. That is why the Government relaxed, at the beginning of the crisis, the requirements for the application of the ERTE of this type. Companies will be able to take advantage of these “facilities” until June 30 .
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Types Of ERTE
We can determine that there are two types of ERTE according to the causes of its justification:
ERTE For Economic, Technical, Organizational And Production Reasons
The economic causes correspond to negative results, losses or a continued loss of the level of income or sales. The situation is understood to be persistent when the level of income or sales is lower than the same period of the previous year for three consecutive months.
Technical and organizational causes are included: changes in the means, changes in the instruments of production, changes in the systems and working methods.
Finally, the productive causes correspond when there are circumstantial changes in the demand for products or services.
ERTE Due To Force Majeure
For an ERTE due to force majeure to occur, exceptional events or circumstances must occur caused by events unrelated to the activity of the company. For example: pandemics, fires, earthquakes…
In turn, companies will be able to choose between applying a:
- ERTE for reduced working hours : the employee continues to carry out their activity but with reduced hours (between 10% and 70% of the working day). This will receive the proportional part of his salary and a part (70%) of the remaining amount must be paid by the SEPE (Public State Employment Service).
- ERTE for suspension of the contract : with this modality the total suspension of the contract is exercised during the application of the ERTE. The employee will not go to work and may apply for unemployment benefit.
Tips For Firing A Worker
If your company is one of those affected by the coronavirus crisis and you are forced to fire a worker or apply for an ERTE, the Human Resources department will be an active part in decision-making and communication to each of the affected.
It must be remembered that the way in which this type of situation is addressed greatly affects the company’s employer brand and, of course, the work environment within it, so it is important to find the best way to carry out this such a delicate process, as well as the consequent offboarding process .
Here are some tips to handle layoffs in the best way:
Inform Employees One By One
Laying off a worker or temporarily suspending their contract is bad news. The best thing, in these cases, is to hold an individual and private meeting between the affected person, the person directly responsible for him and a person from the Human Resources department. Logically, in the current circumstances, in which the work centers are closed, it is impossible to hold it face to face, so it will have to be via video call.
Let Them Know As Soon As Possible
Once the decision has been made, start all the machinery to inform the affected workers as soon as possible. It is, first of all, a gesture of transparency and empathy but, in addition, it can mean, for the employee, finding another job. Once this is done, you can release a statement to the rest of the company.
Take Time To Explain The Situation
The coronavirus crisis has put companies, large and small, on the ropes. Explain personally to the team what is happening, what are the problems you are facing and what has led you to make this decision . Although your team is surely aware of the situation, take the time to explain it to them.
Show Empathy And Respect
The circumstances we are experiencing are difficult for everyone. Most of us professionals have been forced to change our routines and deal with the uncertainty that this pandemic has brought with it. That is why, when giving bad news, try to convey empathy and respect towards the worker. Listen to those who want to talk and show them that you understand them.
Prepare To Answer Their Questions
During the meeting, or after it, important questions will arise in the worker’s mind. Your ability to resolve them clearly and quickly will help them process the situation. For example:
- When will I receive the last salary?
- Will I get severance pay?
- Will I be able to collect an unemployment benefit?
- What do I have to do to receive it?
- When will I start receiving the benefit?
The conclusion is, therefore, to try to do the best possible given the circumstances, explaining what happened and offering all possible help to those affected. Humanity, empathy and camaraderie are key to getting through this situation both inside and outside the company.
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