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Employment & Personnel - June 15th, 2021
As restrictions gradually ease and it is possible that remaining ones may be lifted towards the end of July, many people will be returning to work patterns more like they were before the virus struck.
There’s no doubt that the last 16 months have been very difficult ones. Everyone has been affected to some extent by the Covid-19 pandemic and it seems like we will all continue to be for some time to come.
But, as restrictions gradually ease and it is possible that remaining ones may be lifted towards the end of July, many people will be returning to work patterns more like they were before the virus struck.
So this is a brief guide to some of the legal and practical considerations surrounding employment. For more detailed information which will relate directly to your own personal circumstances, our employment law experts will be able to advise you more fully.
Many employers will have seen how well staff have adapted to working from home and may well be more flexible about this in the future. However, once the restrictions have fully lifted, it’s very likely that many employees will be obliged to return to their places of work, if only for a few days a week at first.
Once an employer decides that it is time for staff to return to a place of work, they are legally obliged to follow instructions. While failure to do this is a disciplinary offence, the sensible first step would be to have a discussion with an employer to reach an acceptable compromise.
There’s no set notice period required for an instruction to return to work but at least 48 hours seems reasonable in most cases, although employers may well be able to pass on this information more in advance.
There are some circumstances in which it is possible to refuse to return to work and these include being categorized as being extremely vulnerable or caring for someone who is, having coronavirus symptoms or if facing childcare issues. In all of these cases, except for when displaying coronavirus symptoms when it is mandatory to stay at home and isolate, it is a case of having a discussion with an employer in order to reach an agreement.
In order to have employees back on their premises, employers will first have had to carry out a full risk assessment and put measures in place to keep everyone safe. Unless they have done this then employees are within their right to refuse to return.
Among the measures that should be in place are:
It may be that some people are also concerned about the health risks associated with commuting to work. Although employers are under no obligation, it may be that they will be able to offer flexible working times to avoid travel at rush hours or to provide extra free parking for employees who would prefer to travel to work by car. It may be that they could also fund, or part fund, travel to work by taxi or company bus service.
The Furlough scheme that was set up to provide an income for those unable to work during the pandemic officially comes to an end in September 2021. Already, many people who have been on it are coming off the scheme and this throws up number of potential legal and employment issues.
The first of these is that an employer may well want to change some of the elements of a contract when staff come off furlough. These might include pay, working hours or even the days that employees work. Whether tor not they can do this depends if the original contract of employment includes a so-called “flexibility clause” which allows for the terms and conditions to be varied.
It is also necessary that the employee in question agrees to these changes, as does their representative, for example the trade union that they are in. What’s more, if more than 20 people will be affected, the employer will also need to collectively consult with staff representatives.
There may be instances before the end of September when some employers want to gradually phase in staff through a flexible furlough scheme in which they work part time and are furloughed for the balance of their contractual hours.
Pay for the time that employees are working will be as specified in their contract while the time that they are on furlough will be 80% of their pay, up to a cap of £2,500 a month. Tax and National Insurance are also payable on all furlough payments. Employers are responsible for making all of their necessary NI and minimum automatic employer pension contributions throughout the furlough period.
As to who can be furloughed, the following groups qualify:
The purpose of the furlough has always been to give employers an alternative to making redundancies during the pandemic and to provide an income for employees who are affected. Therefore it is illegal for employers to ask any employees to carry out work that benefits the business in any way when they are on furlough.
However, it is still possible for employees to continue to receive training while on furlough. Employers must also pay at least the National Minimum Wage or National Living Wage for time spent training. This applies even if this is more than 80% of the full wage that would be being received if the employee in question was not on furlough.
Unfortunately, there is no automatic right to extend the furlough period if an employer asks an employee to return to work and they are unable to make alternative childcare arrangements. In this situation, the best course of action may be to negotiate with an employer or an HR department to arrange more flexible working hours or another possible solution.
Understandably, there has been quite a lot of confusion about holiday entitlements and rights for staff who are on furlough.
The first point to note is that holiday entitlement continues to accrue throughout a furlough period, although employees can agree to take less time off than they are entitled to, as long as it doesn’t fall below the statutory entitlement of 5.6 weeks.
It is also permitted to take holidays during a furlough period and still receive payment while the employee is away.
Employers may find it necessary to ask employees to either take or cancel holidays in some circumstances. They are allowed to do this but have to give set notice periods in each instance.
When requesting employees take holiday this must be at a time that is the equivalent to double the length of the holiday – so if asking the employee to take a week’s holiday it must be at least two weeks before the start date.
To cancel a holiday, the request must be made an equal length of time in advance of the holiday – so the demand to cancel the week’s holiday must be made at least a week before it is due to begin.
Many people’s holiday and travel plans have been greatly disrupted over the last 15 months and options for getting away have been limited. Therefore, the government has changed the rules temporarily about carrying entitlements over. Up to four weeks’ holiday can be carried over to the next two years provided that it’s not been “reasonably practicable” to go away for reasons caused by the pandemic.
Anyone travelling to any countries on the government’s amber list have to quarantine for ten days on their return to this country.
It is wise for employees to discuss this with their employer before they go away, and they may well be asked if this is a necessary trip and whether it will affect their ability to carry out their job on their return.
Provided the employee is able to work from home, or from a quarantine hotel, their employer should allow them to do this. If they are in a job where remote working is not possible then it’s likely that they will have to take the additional time off as holiday or as unpaid leave.
Although a great many unfortunate people have been made redundant as a direct result of the Covid -19 pandemic, there is no doubt that the government’s furlough scheme has helped to avoid this for many others.
When the scheme ends in September and companies have this safety net removed, it’s almost inevitable that there will be many more people made redundant. Therefore, it will be important for anyone who is in this position to be fully aware of their rights, as well as the responsibilities that employers have when they start the process of making staff redundant.
The process will be exactly the same as it is in “non-pandemic” times with the key considerations for employers being:
The benefit from full redundancy rights, employees need to have been with the company for at least two full years before receiving the notice of redundancy. They are then entitled to statutory redundancy pay at the following rates:
Length of service is capped at 20 years and weekly pay is the average the employee involved earned per week over the 12 weeks before the day they got their redundancy notice. They are also due any holiday pay outstanding at the time of redundancy.
There are a number of courses of action open to anyone who feels like they may have been unfairly made redundant. The first would be to air this grievance with the employer. Members of unions can get them involved at this stage and Citizens Advice can also offer useful information and support.
It may also be useful to consult a solicitors such as Eatons who are highly experienced in all areas of employment law. They will also be able to advise whether there may be a case to be brought in an employment tribunal.
If this is the case, then it will also be essential to contact the impartial arbitration service ACAS as no claim can go ahead without doing this.
In the event of wanting to take action, it is important to act quickly as there is a 3-month time limit from the time of dismissal, although the clock is generally stopped for anyone using the ACAS mediation service as an alternative to going to a tribunal.
There are obviously many more issues that may well arise as the furlough scheme comes to an end. So it is likely to be a difficult time for both employers and employees who are affected. To make things easier, it may well be useful to call on the services of one of our employment experts who can give all the legal advice needed.
So, if you believe that we can help in any way at all, please don’t hesitate to get in touch.