Update: Covid-19 and latest employment law issues
This week has seen two significant announcements being made by the Government in terms of employment issues:
- The announcement from the Prime Minister on Sunday that employees should be encouraged to return to work this week if their workplace is open and they cannot work from home; and
- The announcement from the Chancellor that the furlough scheme would be extended to 30 October and that part-time working for furloughed employees could be introduced from the beginning of August.
Eight workplace guides have also been published on the gov.uk website, setting out the ways in which workplaces should be made as safe as possible during the current pandemic.
What should employers be doing to manage these developments?
Maintaining good communication
- Communicate to non-furloughed employees that, if they can work from home, they must continue to do so. The Government guidance on that remains the same.
- Be ready to respond to enquiries from any employees who have been furloughed because they can’t work from home. Again, they should be asked to remain at home until such time as you have been able to take all necessary steps to make the workplace as safe as possible, maintaining social distancing measures and implementing the steps detailed in the workplace guides as far as possible. As an employer, you have a legal duty to provide a safe place of work and encouraging employees back too soon will expose you to the risk of legal claims, as well as an investigation by the HSE.
Planning to make the workplace safe
- Start considering and planning for the re-opening of the workplace (whenever that may be) and the return to work of those employees who cannot work from home. Whilst you may not envisage it being safe to re-open in the immediate future, the new workplace guides should help with advanced planning.
- Carry out a risk assessment of the workplace. Although only employers with 5 or more employees are legally required to have a written risk assessment, it would certainly be good practice for all employers to document their assessment. Any employer who is faced with a challenge from an employee who becomes ill will want to be able to provide a thorough, documented assessment as evidence of their considerations and efforts to minimise risk. Start consulting with your employees’ trade union or workplace representatives about your health and safety measures now.
- Consider in detail the Government’s guide that applies to your type of workplace and the sorts of arrangements, physical changes and preventative measures that you are expected to make, as far as possible, to provide a safe workplace. These measures are likely to determine whether you can get furloughed employees back into the workplace, the number that you can safely accommodate and the way in which a return to work, for some, is going to look. For example, the requirement to maintain a 2 metre social distance may limit you to re-introducing only those employees who cannot work from home and whose work is integral to the business at this point in time, so that work stations can be adequately spaced.
- Consider what additional equipment may be needed, such as cough screens, sanitizer and dividers between workstations, and what additional arrangements you should put in place. For example, more regular cleaning is likely to be required. Even if you are not in a position to re-open your workplace yet, it is unlikely that you are going to be able to re-open at any point in the near future without that sort of additional equipment, so start planning and budgeting for it.
- Consider what practices you are going to adopt and how to implement these in the workplace. Spaces that encourage congregating, such as kitchen areas, water stations, photocopiers may need to be closed off or rules put in place so that social distancing can be maintained and multiple users limited. You may well be dealing with employees who have varying levels of anxiety surrounding the safety of the workplace and it will be important to provide clear and reasoned guidance on the new working practices. A non-contractual policy document may be helpful here, and a clear message that compliance should be taken seriously and non-compliance may be treated as a disciplinary issue. The policy can be tweaked and amended in response to future developments. Alternatively, any existing health and safety policy could be updated to include the new procedures, following consultation with trade union or employee representatives.
Planning for employees
As well as planning to make the workplace safe, employers will need to consider how they are going to navigate the new commercial landscape once restrictions are eased. For many businesses and even on a best-case scenario, there is likely to be a significant delay between the easing of restrictions and a return to the levels of business that were typical before the lockdown. This is going to be incredibly difficult for employers to predict with any certainty, making it harder than ever for employers to determine their requirement for employees going forward and whether redundancies may be necessary.
The Chancellor’s announcement on the extension of the furlough leave scheme and particularly the flexibility for part-time work by furloughed workers is welcome news. It should help employers to manage the immediate period of uncertainty when restrictions relax, balancing their need to re-build the business with the fact that work levels and income are likely to be much lower during the transition period. Details of how that will work are expected from the Chancellor later this month. In the meantime:
- Consider which areas of the business are likely to have the greatest demand, or are likely to be the first to recover, when restrictions ease.
- Consider how you will select employees to return from furlough leave when the time is right, assuming that you will need some to return before others, albeit perhaps on a part-time basis. Care will need to be taken to ensure that selection isn’t based on a protected characteristic (age, sex, race, disability etc) or on any criteria that could amount to indirect discrimination. Use objective criteria, based on the needs of the business and taking into account Government guidance, for example in relation to continued isolation requirements for those most at risk.
- Keep in mind your duty to act fairly and reasonably so as not to breach the implied term of trust and confidence between employer and employee, giving rise to a potential constructive dismissal claim. Remember that reasonable adjustments may need to be considered for any employee with a disability and any changes to terms and conditions will need to be agreed.
- Identify the date on which collective consultation would need to start if 20 or more redundancies are likely to be made from a single establishment following the end of the furlough period. Decide how you will determine, at that time, whether or how many redundancies are needed and what information you will need available to you then.
- Decide on your approach towards annual leave. It may be unhelpful for furloughed employees to return with a full accrual of leave to take during the transition period. The Government’s amendment to the Working Time Regulations allows workers to carry over any leave they haven’t been able to take into the next 2 holiday years. You may therefore decide to refuse leave requests for a period, allowing the leave to be carried forward instead. The gov.uk guidance has also been updated to confirm that employers can require their furloughed employees to take leave during the period of furlough, provided they give twice as much notice of this as the period of leave in question, e.g. 2 weeks’ advance notice of 1 week’s leave. Consider whether to encourage or require your furloughed employees to take some of their leave before their return to work.
Keeping up to date
It remains more important than ever for employers to keep up to date with the latest developments and Government guidance as the Covid-19 situation develops, as well as remembering that the usual principles of employment law and good employee relations continue to apply.
Maintaining good communication and adopting a well-reasoned and collaborative approach with your employees is likely to be the best way forward and as good a key to short-term and long-term success as any during this difficult time.
The eight workplace guides can be found at https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19 and updates are published on the gov.uk and ACAS websites.
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