I hope that you are all well. I have not provided an update for a couple of weeks as things seemed to settle down.
Following Sunday’s announcements and the recent publication of “OUR PLAN TO REBUILD: The UK Government’s COVID-19 recovery strategy” (the Plan), I thought a brief update may be useful.
In addition, after the initial relief of the Coronavirus Job Retention Scheme and other financial support available to businesses, many are having to reassess how things will look in the future.
As always, please contact me if you have any queries or require any further advice.
Much has been made of the apparent change in focus to get people back to work. Actually, not much has changed.
It is still the case that workers should continue to work from home rather than their normal physical workplace, wherever possible.
It is also still the case that workers who cannot work from home should travel to work if their workplace is open. The Plan specifically states that “Sectors of the economy that are allowed to be open should be open”.
Clearly, such workplaces should carry out risk assessments and put measures in place to reduce the risk of infection. The government will be publishing new “COVID-19 Secure” guidelines this week and I will provide an update about these as soon as possible.
Travel to work
Whilst I expect this will be covered in the new guidelines, we are already being advised that employers should consider staggering working hours to allow employees to avoid rush hour on public transport. In addition, to support the use of bicycles and cars, employers should look at increasing parking capacity to allow employees to travel to work this way.
One area where the guidance has changed relates to the use of facemask. The updated advice states that “people should aim to wear a face-covering in enclosed spaces where social distancing is not always possible and they come into contact with others that they do not normally meet, for example on public transport or in some shops. Homemade cloth face-coverings can help reduce the risk of transmission in some circumstances. Face-coverings are not intended to help the wearer, but to protect against inadvertent transmission of the disease to others if you have it asymptomatically.” I believe that this guidance is likely to apply to workplaces too, so employers may need to obtain a stock of face-coverings for their employees to ensure safety.
These do not need to be of the same specifications as surgical masks. Indeed, the guidance states “A face covering is not the same as a facemask such as the surgical masks or respirators used as part of personal protective equipment by healthcare and other workers. These supplies must continue to be reserved for those who need it.”
Refusing to work
I have seen a number of social media posts suggesting that employees should merely refuse to go to work, citing section 44 of the Employment Rights Act 1996. The social media posts state that, in such circumstances, employees are entitled to full pay.
The relevant section of the legislation states that an employee has the right not to be subjected to any detriment by their employer where they leave work or refuse to return to work in circumstances of danger which the employee reasonably believed to be serious and imminent and which they could not reasonably have been expected to avert.
Clearly this is causing great concern to employers. Some will be forced to close if employees refuse to return to work, as they will have no way of generating income. Unfortunately, that is likely to result in large scale redundancies which we all want to avoid.
Employees quoting this legislation should be asked to specify why they believe there is a serious and imminent danger. Employers should set out the steps that they have already taken to address any risk associated with returning to work and discuss other possible options. These steps should take into account all current government guidance. The employee should be asked to specify why they believe the danger is serious and imminent in this particular workplace, given that many other businesses are operating safely and given the steps taken.
Once reassurance has been given about the level of risk, if an employee continues to refuse to return to work, citing section 44 of the Employment Rights Act 2020, I believe that it would be reasonable to require them to take holiday or unpaid leave. At this point, provided adequate explanation has been provided about the level of risk, l believe that they will find it harder to establish that they still reasonably believed that there was a serious and imminent danger.
Clearly, there are some employees where the risk may be higher, including those who are within the group that has been designated as vulnerable. I anticipate that the majority of these employees will already have raised concerns about working and arrangements will already have been made. Some will be taking advantage of the Coronavirus Job Retention Scheme which allows employees to furlough those who have been advised to shield, together with members of their households.
Unfortunately, I am advising on increasing numbers of redundancies. Employers are realising that, even with the support available, there is a reduced requirement for employees carrying out certain work. Whilst employers want to do what they can to avoid redundancies, it is inevitable that there will be job losses.
Although it is harsh, an easy way to reduce staffing costs is to terminate the employment of all employees with less than 2 years’ service. There are limited circumstances in which such employees can make a claim for unfair dismissal. These include circumstances where an employee has been discriminated against. You will appreciate that where all employees with less than 2 years’ service have been dismissed, an employee will struggle to prove discrimination.
For the remaining employees, any redundancy procedure must be fair and reasonable. For the avoidance of doubt, consultation can take place whilst employees are designated as furloughed. In addition, once redundancy has been confirmed, employees can continue to be designated as furloughed during their notice entitlement. That way HMRC can fund at least part of the notice pay, although the money cannot be used to fund any statutory redundancy entitlements. In certain circumstances, employees are entitled to receive 100% of their salary during their notice period so employers will be required to top up the HMRC contribution – that will depend on the length of their contractual and statutory entitlements.
I am unable to give detailed advice about a fair and reasonable redundancy consultation within the limits of this document, as each situation is different. Please contact me if you require any advice or support.
This information is correct at 7pm on 11th May 2020. Given the fast-changing situation, up to date advice should be sought after that time.
Pillinger & Associates