It has been some time since my last COVID-19 employment update but, given the recent “freedom day”, I thought it may be useful to provide an update and set out some answers to the most frequently asked questions.
Flexible Working
The government are no longer advising employees to work from home and it is anticipated that there will be a gradual return to offices/ workplaces over the summer. This has led to a vast increase in the number of flexible working requests with employees wanting to continue working from home.
It is vital that each application is properly considered and a reasonable procedure is followed in determining the outcome. You should therefore meet with the employee to discuss their application. Ideally, you should allow the employee to be accompanied by a work colleague or trade union representative. Many employees will claim that they have been able to work well at home so believe that they should be permitted to continue. What they may not see is the impact that homeworking has had on other areas in businesses with reduced communication between departments and reduced opportunities for training. You may be able to reach an agreement about the request and there has been a lot of press coverage about hybrid working. Ultimately however, if you do not wish to grant the application for flexible working, you must refer to at least one of the following business reasons to justify your decision:-
- The burden of additional costs;
- An inability to reorganise work amongst existing staff or recruit additional staff;
- A detrimental impact on quality, performance or on our ability to meet customer demand;
- Insufficient work for the periods you proposed to work; or
- Where we intend to reorganise or change the business, and consider the flexible working changes may not fit with our plans.
Extra care must be taken where the request is made under the Equality Act 2010. Please contact me if you have any queries about the correct procedure to follow.
Mask Wearing
This is an extremely emotive subject and one that is already causing difficulties with reports of people being abused in supermarkets for continuing to wear masks.
Regardless of the fact that there is no longer a legal requirement to wear masks or face coverings, as an employer you still have a duty to care for the health and safety of your staff. You will still be required to carry out risk assessments and consider the impact of COVID-19. If the outcome of your risk assessment is that your employees will still be required to wear masks at certain times or in certain locations, you should notify them of this requirement and the reasons for it.
Once employees have received this instruction they should wear a mask as directed. Failure to do so could result in disciplinary action being taken which could ultimately lead to dismissal.
If you have any employees refusing to wear appropriate PPE/ facemasks etc, please contact me so that I can advise you on an appropriate procedure to follow.
Clearly, if the employee is exempt from wearing a mask, that exemption must continue regardless of your risk assessment. In this case, if you are concerned for the health and safety of other employees, you may decide it is appropriate to reassign them to areas where mask wearing is not so critical.
Self-Isolation
There has been a lot of press coverage about the impact of Track and Trace on businesses with employees being forced to self-isolate. Some of the most common issues are:-
- Can I insist on seeing evidence of a positive test? – Yes you can. Results can be sent to employees by email or text message
- Can I insist on seeing evidence that an employee has been told to self-isolate as a result of being in close contact with a positive case? Yes you can require evidence of their self-isolation status
- Can I appeal against an instruction to self-isolate? – Unfortunately, there is no way to appeal against an instruction by Test and Trace to self-isolate.
- If an employee has been “pinged” by the NHS COVID app, do they need to self-isolate? – Legally there is no obligation to self-isolate but, given that they will have been in close contact with a positive test and given an employer’s overriding duty to care for the health and safety of all employees, there is a strong moral argument that they should self-isolate.
- I am aware that an employee who is meant to be self-isolating has been seen out at the shops. Can I do anything? – If you genuinely believe that they are breaking self-isolating rules and, in doing so, putting your other staff at risk, you can take disciplinary action. You should however allow them to explain why they were out of their home as there are some limited circumstances where it is permitted to leave your home even if self-isolating.
- What pay is an employee entitled to if they are self-isolating? – Subject to any contractual entitlement and my comments about furlough, an employee is entitled to SSP. For COVID related absences, this entitlement arises from day 1. There is conflicting information on whether an employee can be furloughed during a period of self-isolation.
The government guidance states that short term illness or self-isolation should not be a consideration when deciding to furlough yet a recent BBC article suggested that the treasury had confirmed that employees could be furloughed during any period of self-isolation. https://www.bbc.co.uk/news/business-57515232. If you do decide to furlough employees who are self-isolating I suggest that you keep a copy of the BBC article on file. In the event that HMRC carry out an investigation into your furlough claims, you can refer to this article to justify your decision.
End of Furlough
As you are aware, from 1 July 2021, the level of grant was reduced and employers were asked to contribute towards the cost of furloughed employees’ wages. To be eligible for the grant employers must continue to pay the furloughed employees 80% of their wages, up to a cap of £2,500 per month for the time they spend on furlough.
From 1st July 2021 the 80% payment is split with 70% government contribution and 10% employer contribution.
From 1st August 2021 the 80% payment is split with 60% government contribution and 20% employer contribution.
The scheme ends on 30th September 2021.
If employers are concerned about the end of furlough and the impact that it may have on their workforce, there are a number of options:-
- Ensure that contracts of employment are updated to include confirmation that the employer can lay off employees or introduce short time working if necessary – this allows you some flexibility moving forward in the event that you have insufficient work for all employees, but please see my notes about lay off and short time working below.
- Commence redundancy consultation. In that regard, it is vital that a fair and reasonable procedure is followed. Again, please see my notes below.
- Consider proposing a permanent or temporary reduction in working hours for employees – in order to achieve this you will need the consent of all employees but, in the event that redundancy is the alternative, you may find that some are willing to agree.
Lay off and Short Time Working
In order to lay off employees or introduce short time working, it is vital that the employer has a contractual right to do so. In the first instance, you should therefore check your contracts. If there is no relevant clause, you may wish to consider introducing one, but you will need the consent of employees before doing do. Please contact me so that I can explain the process that you will need to follow.
Once there is a contractual right to introduce lay off or short time working, you can do so by merely giving reasonable notice to the employees.
It is important to appreciate that if an employee is laid off or placed on short time working (meaning that they are paid less than 50% of their normal weekly salary), they have a right to claim for redundancy if they are laid off for a period of 4 weeks (or 6 weeks in any 13 week period). They have to make the claim by giving notice to the employer. The employer can give a counter notice if they reasonably believe that work is likely to increase in the next 4 weeks to the extent that the employee will be invited to return to work. This is therefore only a short term solution but it may be enough to allow businesses time to assess their position after the end of the furlough scheme.
Employees who are laid off are entitled to guaranteed statutory payments but these are extremely low (£30 per day for a maximum of 5 days in any 3 month period)
Redundancy
In some cases, redundancy may be the only option. If your business is in this situation, the first thing to consider is whether you have employees with less than 2 years’ service. Provided any decision to terminate their employment is not discriminatory or made because they whistle blew or asserted a statutory right, such employees will not have a claim for unfair dismissal. Their employment can be terminated by giving them their contractual notice entitlement or by making a payment in lieu.
For all other employees, a proper consultation process should take place. I can advise on a proper process but, given that the furlough scheme ends on 30th September 2021, it is important to be aware of the following minimum consultation periods:-
- Where an employer proposes to make less than 20 people redundant within a 90 day period, the consultation period must be reasonable – usually about 2 weeks
- Where an employer proposes to make between 20 and 99 people redundant within a 90 day period, the consultation period must be at least 30 days
- Where an employer proposes to make over 100 people redundant within a 90 day period, the consultation period must be at least 45 days
I hope that this assists but, as always, please do not hesitate to contact me if you have any queries or require any additional information.
Amanda Pillinger
Pillinger & Associates Solicitors
E: amanda@pillingerandassociates.co.uk
T: 01789 336957 / 07764 764806