June 2020 Newsletter

Overview

The national lockdown in response to the COVID-19 pandemic is now in the process of being lifted (albeit gradually and at different rates in the devolved administrations). As part of this, the Government is encouraging employees to return to work.  Some businesses which were previously required by law to close are now reopening, whilst many more will follow in the coming weeks. The Coronavirus Job Retention Scheme (CJRS) which has supported more than 8 million jobs since March this year will be amended in July so that employees who return to work part-time will also be eligible for support. From August, employers will have to start contributing to the cost of furloughed employees with the scheme being fully wound down at the end of October.

In this month’s bulletin we consider the steps employers need to think about from an employment law perspective when returning to normal working conditions. Much of this is common sense, but there are some potential legal difficulties which employers can avoid by implementing government advice, listening carefully to employee concerns and adopting a flexible approach in response.   

1. Working from home

Despite a limited easing of the lockdown, Government advice remains that employees should work from home wherever possible. Encouraging employees to continue to work from home not only protects those employees (and any vulnerable members of their household) from the risk of infection, but also employees who have to come into work (and members of their household) by reducing the number of people on site at any one time.

Employees requesting to WFH or in the office

Under normal circumstances, employers dealing with requests from employees to work from home are generally free to refuse such requests if there are genuine business reasons for doing so. In the current situation, however, employers need to ask themselves whether home working is possible (rather than whether it is as productive or effective as employees coming in to work). The employer might prefer it if employees came in to work and might have good reasons for that view. However, if the work can be done at home, then under government guidelines it should be. Although employees have a contractual duty to obey reasonable management instructions, if the majority of their work is computer based, it is unlikely that a court or tribunal would view an instruction to come into the office as reasonable in any future legal claim.

On the other hand, an employee might prefer to come in to work rather than stay at home. The contract of employment may not have envisaged home-working and will most likely provide for a specific place of work. However, in the current circumstances, where the nature of the work allows it, an instruction to work from home is likely to be viewed as a reasonable one.

Facilitating WFH over the medium to long term

Given the additional workplace precautions for the foreseeable future and limits on numbers attending work, it may be a good idea to regularise home working arrangements that were initially improvised in response to the immediate crisis. As working from home becomes a longer-term prospect, employers will need to consider the health and safety implications.

As a first step, a desk top assessment could be arranged to facilitate good posture and physical health. Under the Provision and Use of Work Equipment Regulations 1998, any equipment supplied must be suitable for purpose, maintained in a good working order and inspected regularly. Employers must ensure that suitable lighting is provided where a person uses work equipment. Accidents at home are common, and should be reported to the employer wherever they occur. Employers should establish a proper procedure to allow homeworkers to report accidents. In addition, appropriate first aid provisions must be supplied to all employees, including homeworkers. The precise requirements depend on the nature of the work and the risks involved; - most homeworking will be of low risk and a simple first aid kit should suffice.

Employers will also want to consider the best way to manage performance and measure productivity as home working becomes more established, including communicating expectations around working hours. Home working provides an opportunity for a more flexible approach and this can benefit both sides – especially if the employee has child-care responsibilities. However, the employer may want to insist on certain core hours or specify when the employee must be available to participate in meetings or be contacted by a manager.

In addition, employees working from home may be incurring additional expenses as a result (e.g. using more electricity and their broadband capacity). Whilst there is no specific obligation on employers to contribute towards these additional costs, under the current tax rules a payment of £6 per week can be paid to employees to cover the additional expense of working from home.

2. Returning furloughed staff to work part time

The next stage of the Coronavirus Job Retention Scheme (CJRS) begins on 1st July. Employers will be able to bring employees back to work on a part-time basis, whilst the Government will continue to subsidise their pay so that they receive up to 80 per cent of their normal pay (to a maximum of £2,500).

This option will only apply to employees who have already been furloughed under the original scheme. The last applications under that scheme should have been made by 30 June, meaning that, to qualify, employees must have been on the scheme by 10 June.

Full details of the new arrangements are yet to be set out by Government. It is clear, however, that employers will need to pay in full for the proportion of a normal working week that an employee will be asked to perform. The CJRS grant will only be made in respect of that part of the week that the employee will not be working. Employers will need to provide details of the employee’s normal working week so that the appropriate amount of CJRS money can be calculated.

Employees who have been placed on furlough will have agreed that they will not perform any work for their employer. If the furloughed employee is being paid in full (that is, the employer is topping up the grant under the furlough scheme so that the employee suffers no loss in pay) then bringing the employee back on a part-time basis is straightforward.

However, in many cases, the parties will have agreed a lower rate of pay for the period of furlough in line with the funding available under the job retention scheme, so that the employee is only receiving 80% of their usual salary (capped at £2,500 a month) in line with the funding available under the scheme.

If the employer wants the employee to return to work on a part-time basis and continue to be paid less than their normal salary, this will require a fresh contractual agreement. The employee should be asked to work on a part-time basis in return for a salary made up of the employer’s payment for work done, together with the amount that will be funded by the CJRS. Employers should stress that such arrangements are temporary and that normal working will resume, either when the job retention scheme ends, or when the employer is ready to bring the employee back full-time.

If an employee is paid by the hour with no guaranteed minimum work, then there is no need for a separate agreement. Employers can ask employees to return to work for a limited number of hours, in accordance with their contract. The employee will then gain the added benefit of an additional payment from the CJRS based on their pay in the previous tax year.

3. Reducing the risk of COVID-19 transmission at work

Employers owe a duty to their employees to take all reasonable steps to provide a safe place to work and a safe way of working. The COVID-19 pandemic is unique in that it has an impact on the safety of every workplace in the country and all employers must develop a tailored response to it.

Firstly, if they have not already done so, employers must carry out a risk assessment to identify the risks of transmission of COVID-19 and identify any steps which could reduce that risk. Employers must inform employees of the results of the risk assessment and consult with either the assigned health and safety representative(s), or the employees directly, over any new safety measures to be introduced.

Central to these measures will be handwashing and hygiene. Enhanced cleaning regimes are required for busy areas, with particular attention paid to surfaces that are touched regularly. Employees should be given clear instructions about frequent handwashing and provided with hand sanitiser around the workplace (not just in bathrooms).

Facilitating social distancing is also essential. Wherever possible, employers should ensure that employees remain at least 2 metres apart and avoid the use of shared workstations. Appropriate signage, including floor-tape to mark out specific distances, will help employees to comply with the rules. Where appropriate, employers could also introduce a one-way system for employees walking around the workplace.

Where keeping people 2 metres apart is not reasonably practicable, employers must do everything they can to manage the risk of transmission. Consider using barriers or screens to separate people, staggering arrival and departure times, having employees work back-to-back (rather than face-to face) and reducing the number of people each employee interacts with (i.e. limiting group meetings in person).

One aspect employers cannot so easily control is travelling to work. The government guidelines advise avoiding public transport wherever possible. Where transport is available, it is likely to be at a significantly reduced capacity. Consider what measures you can take to assist employees to make their journey as safe as possible. This might mean providing enhanced parking facilities or making use of the government’s cycle to work scheme to help employees buy bicycles. Where employees have no alternative to public transport, consider flexible start and finish times to allow employees to avoid congested periods.    

4. Absences due to the Test and Trace scheme

The government is in the process of rolling out a new scheme to identify those who have been in direct contact with an infected person, and ordering them to self-isolate for 14 days. This means that healthy employees may be instructed to stay away from work for two weeks.

Absence from work as a result of this instruction will count as a period of incapacity for the purposes of Statutory Sick Pay (SSP). Many employees, if they can continue to work from home, will not need to draw upon this. However, where employees are unable to work from home, employers must treat the two weeks of isolation as a period of sickness absence. As well as SSP of £95.85 per week, the employee will also be entitled to any company sick pay that may be payable under their employment contract.

Employees who have been instructed to isolate as part of the test and trace regime are not in a position to choose whether or not to attend work. Therefore, such periods of absence should not be taken into account under any absence management procedure when assessing that employee’s overall attendance. Absence on these grounds should not be relied upon to trigger warnings or other measures (such as exclusion from bonus schemes) that may otherwise be provided for in the absence management procedure. Dismissing an employee who has been instructed to self-isolate under this system would very likely be held to be unfair by an Employment Tribunal in any subsequent claim.

Employers should be wary of taking any action against an employee in these circumstances which might also trigger health and safety issues (discussed below in section 6). An employee who takes steps to protect others from danger is protected in the same way as an employee seeking to protect themselves. An employee who stays away from work because they have been instructed to self-isolate under the Government’s test and trace scheme or because they believe they may be infected could argue that their absence is on health and safety grounds.

5. Employees who refuse to return to work

One concern many employers now face is how to deal with employees refusing to return to work when requested. Should this be treated as misconduct? In such circumstances, employers must tread carefully.

Firstly, employers should ensure that everything reasonably possible has been done to make the workplace safe and that this has been communicated to employees. Employees should be invited to raise any outstanding concerns with their employers which should be addressed individually. If the employer has not carried out a risk assessment and consulted on adjustments to be implemented, then asking employees to return to work is unlikely to be considered reasonable. Withholding pay in these circumstances may be a breach of contract and any dismissal is likely to be unfair. 

If an employee is unwilling to return to work and has a legitimate concern, such as an underlying health condition, then employers should try and work with them to find a solution. Could additional social distancing measures be arranged for that employee? Is it possible for the employee’s work to be done at home or to change working hours? Alternatively, employers may need to accept that the employee is incapable of work in the current circumstances and place them on sick leave. Employers should be live to any potential disability, age or race discrimination issues (see 7 below for further explanation).

If there is evidence to suspect that an employee is being dishonest and does not have genuine concerns about their safety, then going down the conduct route could be considered. This would usually entail not paying the employee for such periods of absence and may result in dismissal. A key risk here is a claim by the employee under the health and safety provisions of the Employment Rights Act 1996 (see section 6 below).

6. Health and safety claims

Employees have a right to protect themselves in circumstances of danger that they reasonably consider to be serious and imminent. Dismissing an employee in these circumstances will automatically be deemed unfair (under section 100 of the Employment Rights Act 1996). Unlike most unfair dismissal claims, there is no qualifying period of service for employees (ordinarily 2 years) and no cap on the amount of compensation that can be awarded. Employees who are subjected to a detriment on these grounds (such as disciplinary action, may also bring a claim (under section 44 of the same act).

Where an employee refuses to return to work due to COVID-19, they may make a claim under these provisions provided that they overcome several legal hurdles. Firstly, there must be a risk of actual danger. Given the lockdown measures, coronavirus would almost certainly be considered a serious danger to public health, but that does not necessarily mean each individual workplace presents “circumstances of danger” if no evidence suggests employees are likely to be infected. Even if an Employment Tribunal does accept that coming to work would have involved some danger, that may be insufficient. The employee must also reasonably believe that any danger was “serious and imminent”.  Importantly, it is the employee’s belief that matters, provided it is reasonable, rather than any assessment of the danger carried out by the employer. Even if such a belief was misplaced, a Tribunal could still find it to be reasonable in the circumstances.

In order to reduce the risk of such claims, employers should consider what steps they have made to prevent transmission in the workplace, and whether such steps are sufficient. If not, this might provide strong reasons to a Tribunal to find that an employee’s refusal to return to work was reasonable. If an employer demonstrates it has done all that could be expected it is unlikely that the Tribunal would find that there were circumstances of danger that the employee reasonably believed to be serious and imminent. The health and safety provisions under the Employment Rights Act were originally developed to deal with emergency situations that arise in the workplace. They are not intended to provide employees with a blanket right to refuse to come to work in circumstances where a background risk of infection exists whenever they leave home.

This is likely to be a hotly contested area in the aftermath of the COVID-19 pandemic and so a cautious approach is advisable. Employers should listen carefully to any concerns that employees raise about the prospect of returning to work and only take disciplinary action when they are satisfied that there are no proper grounds for those concerns.

7. Discrimination Risks

Unfortunately, the risk of contracting COVID-19 does not fall equally amongst the population at large. Different age groups and those with various underlying health conditions are more at risk from the disease. There is also increasing evidence to suggest that different ethnic groups face a much higher risk. A requirement to return to work, especially when full social distancing is not practicable, has the potential to amount to indirect discrimination, disability discrimination or to trigger a duty to make reasonable adjustments.

The best way to protect against such claims is to follow government guidance on creating a Covid-secure workplace and to listen to individual concerns from employees, taking additional measures when necessary.

Pregnancy and Maternity

Women who are pregnant or on maternity leave require additional consideration and support which should be specifically addressed as part of employer COVID-19 risk assessments. Whilst pregnant women are classified as a vulnerable group in relation to the virus, this is a precautionary measure and pregnancy is not, in itself, a ground for shielding or self-isolating. In most cases, there will be nothing to prevent a pregnant employee from working provided that government guidance is followed regarding marking the workplace Covid-secure. If the workplace cannot be made sufficiently safe, pregnant employees should not be placed on sick leave. In these circumstances, the employer’s general duty to either find suitable alternative work for the employee or to suspend the employee on full pay will be triggered.

Childcare

One of the practical difficulties employees may face on returning to work is where their children have not recommenced school. Whilst there is no general right for employees to receive paid leave to look after a child, employers should work with employees in this situation to find a solution. This may involve a working from home arrangement or a change in duties or place of work that allows the employee to accommodate childcare needs. Whilst parental status is not in itself a protected characteristic, employers should be alert to the fact that women are more likely to be placed in difficulties as a result of children not being able to attend school. An inflexible or unsympathetic approach to the issue could risk an allegation of indirect discrimination.