As businesses begin to think about how they will resume operations post-lockdown, we have drawn together 10 key people issues that will need to be borne in mind.
We will also be hosting a free webinar with Q&A session on Monday 11 May from 4pm–5pm to discuss and answer questions following the Government’s anticipated announcements about lockdown relaxation measures due on Sunday 10 May.
- What measures are employers likely to have to put in place to comply with health and safety duties/Government guidance?
Based on leaked reports about draft proposals that the Government has issued to businesses and trade unions for comment, we can anticipate that this will include:-
- Continuing to work from home where possible
- Implementing social distancing for those who do have to come into work
- Reconfiguring space so that people are not face-to-face
- Use of screens and PPE where 2 metre distances cannot be observed
- Extra protections for those in shielded and vulnerable groups
- Adjusted working hours to spread out when people are commuting, taking breaks etc
- Maintenance of protocols that have already been in place for operatives attending people’s homes, e.g. cleaning surfaces before and after, opening windows to allow for good ventilation and asking the occupier to remain in another part of the property
- More frequent cleaning
Businesses may need to conduct a risk assessment where they wish to reopen.
- How do we bring furlough to an end?
The furlough period can be ended in accordance with the written terms agreed with the employee to furlough them. Depending on the drafting of the terms agreed, the furlough period may end:
- automatically on an agreed date without the need for notice;
- automatically on the employer ceasing to be eligible for funding under the CJRS (i.e. on 30 June 2020 when the CJRS ends, unless extended);
- on notice being served on the employee to terminate the furlough period.
On termination of the furlough period the employee will be required to return to work and will revert to their normal terms and conditions of employment that applied immediately before furlough.
Just as employers had to carefully consider the selection criteria on which they would decide who to furlough where they only needed to furlough part(s) of the workforce, they will also need to carefully consider who will be brought back from furlough first if it needs to be staggered.
- What if we need to make redundancies?
The COVID-19 pandemic will have a different effect upon different organisations but a common theme is a need to cut costs. Where such a cost-cutting exercise means reducing headcount, the normal rules around redundancies will apply.
Where you are proposing to make 20 or more employees redundant at one establishment in a 90 day period, collective consultation rules will apply. It has been widely reported that there needs to be a 30 or 45 day collective consultation period in this scenario (depending on the number of proposed redundancies) but this is not strictly correct. All the legislation requires is that there is a period of either 30 or 45 days between the consultation starting and HR1 notice being served, and the first dismissal taking effect. Nonetheless, employers need to be prepared as collective consultation run remotely is likely to be a more difficult and time-consuming process than normal, particularly if there is no existing body of representatives that can be used.
Some employers may wish to start a redundancy consultation with employees whilst they are still on furlough and we consider the coronavirus job retention scheme permits this as participating in redundancy consultation would not be deemed as work.
- Where will staff work after the lockdown rules are relaxed?
Unless peripatetic workers (travelling to and from home to their first and last job), employees will generally be contracted to work at one place. The lockdown has forced temporary changes to employees’ place of work but as lockdown rules are relaxed, employers will likely look to bring their workforce back to their contracted place of work when it is considered safe to do so. We consider it unlikely that any relaxing of the rules will result in all offices re-opening on mass and employers will need to consider which roles are necessary to be carried out from the office and which can continue to be carried out at home.
Employers may find that employees, having got used to working from home and gaining time they would otherwise have spent commuting, may not want to return to their place of work. Strictly a refusal to return to work is a conduct matter but each case will need to be considered on its own facts – see questions 5 and 6 for more insight.
Subject to meeting the relevant eligibility criteria, employees will be free to make a flexible working request which can only be refused for one of eight business reasons. Employers are likely to find it harder to justify refusing flexible working requests for home-working if it has been operating successfully for many weeks.
- Can we test employees to see if they have Covid-19?
The Government recently expanded the rules on who can be tested as part of its testing programme – please refer to our previous article for further information. Employers who want to test more widely would need to do so privately, assuming they could find a reliable testing source. However few employers will have an express contractual right to subject employees to medical testing so therefore employee consent will be required. There are data protection issues which would need to be considered which are also raised in our article on this specific issue.
- Can we discipline an employee who does not want to come back to the workplace?
There may be some employees who are worried about returning to their workplace and have fears in relation to their safety, even where an organisation has taken steps to ensure social distancing or provide protective equipment to staff.
We anticipate that the Government’s advice will be that working from home should continue as much as possible so this issue may not rear its head for many employees. However, where the employer does want to bring employees back into the workplace then, in the first instance, they should seek to understand the employee’s concerns and ensure they are informed of all steps the organisation has taken in relation to reducing the spread of Covid-19. It may be possible to agree a period of unpaid leave but if the employer needs the person to do their job then a failure to follow an instruction to return to the workplace would give grounds for a disciplinary process.
The key considerations for the organisation in this scenario are the reasonableness of the instruction to return to work and the reasonableness of the refusal to do so. Each case will turn on its own facts. Employers will need to be mindful that employees may assert that their complaints about inadequate measures being put in place amount to a protected disclosure for whistle-blowing purposes.
- What about staff who can’t or don’t want to come back to work because of childcare responsibilities/shielding/other underlying conditions?
With those falling within the shielding category advised to continue shielding until at least 30 June, and many employees having to look after children whilst schools and nurseries remain closed, employers will have to continue being flexible about working arrangements even where steps start being taken to reopen workplaces.
Where employees in these groups can continue to work from home then they should do so. Some in these groups may already have been furloughed and so could remain on furlough until the CJRS ends (currently 30 June). However, if the CJRS does end at that point but the shielding advice remains in place, then shielded employees who cannot work from home will revert to sick leave and SSP. Employees with children who have struggled to juggle work with childcare will fall back on using annual leave, parental leave and unpaid leave where they can’t work from home and look after children at the same time. However given that many children may not be able to return to school until September, annual leave will run out and many families will not be able to survive without a salary coming in for any real length of time. Equally many employers will not be able to afford to maintain discretionary full pay arrangements that they may have implemented when lockdown restrictions were first enforced. It will, therefore, be in the interests of employer and employee to have honest conversations about what work can be done around childcare commitments.
- Can we reward employees who have continued to work on the frontline through all of this?
Despite many organisations needing to implement cost savings at this time, some are considering rewarding staff who have continued to come into work during the lockdown period in order to boost and maintain morale and ensure staff feel that their efforts are valued. This is particularly so where other colleagues may have been furloughed on full pay and therefore it is perceived as unfair that working staff exposed themselves to additional risk ‘for nothing’.
Rewards may be in the form of a one-off discretionary bonus payment, but could also include additional holiday or other non-financial benefits.
The key consideration in introducing something like this is the risk of indirect discrimination claims, for example from a shielded employee with an underlying disability. Indirect discrimination is capable of being objectively justified where there is a legitimate aim and the measure (in this case the reward scheme) implemented to achieve that aim is a proportionate means of doing so.
We think it will be possible to lawfully introduce such schemes in certain circumstances but employers should keep an audit trail of their aim and the options they considered for meeting that aim.
- How do we manage annual leave?
A common concern is how employers will be able to build operating capacity back to normal when a lot of employees suddenly want to be able to take a period of holiday. Many employees will have booked trips away that had to be cancelled and will expect that those days of holiday are added back to their entitlement.
Some employers have been requiring employees on furlough to take at least part of their holiday entitlement whilst furloughed in order to manage the amount of holiday that they will have to take when they return to work. However statutory holiday has to be paid at an employee’s normal rate of pay and therefore is not recoverable in full via the CJRS grant.
An employer has the right to refuse requests from employees to take holiday so can seek to manage the impact through exercise of that right. Where a refusal results in a worker being unable to use up all of their holiday in the relevant holiday year, the temporary amendment to the Working Time Regulations will allow a worker to carry-over their EU derived 4 week holiday entitlement to be used in the next 2 holiday years. A 1-year carry-over could be agreed in respect of the statutory 1.6 week UK derived holiday entitlement.
- What sort of ER/ET issues are likely to spike in the coming months?
We anticipate that employers will face:-
- Unlawful deduction of wages claims where they reduced pay during furlough but didn’t do it properly;
- An increase in whistleblowing disclosures relating to health and safety matters;
- An increase in unfair dismissal cases – for example following redundancies or disciplinary dismissals conducted remotely during lock-down. Where the prospects of finding a new job quickly are tougher then more employees look back to their previous employer to see what money they can get through them;
- Increased absence for reasons other than Covid-19, in particular amongst those who have worked throughout this crisis looking after other people. The mental health toll on all employees is likely to be something that continues for a long time.
Sign up to our free webinar on the 11 May or if you want a 1:1 conversation about the lawfulness of your organisation’s plans then please contact a member of the Employment & pension team in the usual way.