The COVID-19 pandemic has created unprecedented challenges for employers to overcome. The number of legal and practical employment issues that they must navigate has increased dramatically. As well as having to make dramatic changes to their workforce, they have also had to keep abreast of changes in employment law and government guidance on keeping staff safe. To help navigate these issues and we have compiled the following list of employment law pitfalls for employers to avoid during this time. Avoiding these pitfalls will ensure your relationships with employees are protected and you avoid time-consuming and expensive employment disputes.
Lay off and short-time working pitfalls
- Don’t reduce working hours or lay staff off unless you have reserved the right to do so or have the employee’s written agreement. Reducing working hours or laying staff off without this could amount to a breach of contract and/or constructive dismissal claim.
- Remember to pay statutory guarantee pay. Employees who are laid off or whose hours are reduced are entitled to be paid statutory guarantee for the first five workless days every three months.
- Remember that some laid off employees will have a right to request statutory redundancy pay. Employees with more than two years’ length of service will have the right to end their employment and request statutory redundancy if they are laid off for more than 4 weeks or 6 weeks in a 13 week period. The implications and cost of making employees redundant should be therefore considered before laying any staff off.
Don’t furlough without a written agreement. The furlough scheme rules require employers to keep a written record of the employee’s agreement tocease work for five years. Having a written agreement also provides more clarity about the terms of furlough and can include additional terms that protect the employer, such as reserving the right to vary payments to the employee if the amount received is different than claimed.
Select who to furlough in a fair and lawful way. Employers are generally free to decide if they furlough staff and who to furlough but normal employment law will still apply. Employers must, therefore, take care not to breach the laws that protect employees against discrimination and detriment for whistleblowing or asserting certain statutory rights when selecting employees for furlough.
Adhere to the furlough scheme rules if you furlough staff. Not following the rules may result in claims being withheld or having to need to be repaid.
Ensure the correct information is used when making furlough claims. There is a risk of prosecution for fraud if where claims are based on dishonest or inaccurate information.
Don’t re-employ former employees to furlough them without understanding the risks. Re-employing employees is not cost-neutral. Employees will still accrue holiday entitlement whilst on furlough and re-employing employees could have cash flow implications. Any employees continuity of employment will also continue which could give the employee additional employment rights (such as unfair dismissal and redundancy rights) or entitle them to additional redundancy or notice pay. An employer may also risk an unfair dismissal claims, where one did not previously exist, as the employer may no longer be able to rely on the original reason for dismissal.
Remember that employees will still accrue holiday. Holiday will still accrue at the normal rate when they are laid off, put on short-time working or furloughed.
Pay employees who take holiday during furlough at their normal rates. Employers can claim a contribution to an employee’s wages whilst they are on holiday but will need to ensure that they are paid at 100% of their normal rate of pay during any holiday. This will likely mean the employer has to top up their pay during holiday.
Ensure the correct notice is given before requiring employees to take or cancel holiday. Employers may require employees to take holiday, including during furlough, but must give notice equivalent to twice the length of the holiday that the employee is being required to take. This is the same notice that must be given if an employer requires an employee to cancel holiday.
Take care before requiring employees who are at vulnerable to a severe COVID-19 illness to take holiday. Employee’s who are at a higher-risk or extremely vulnerable to suffering a severe COVID-19 illness may be required to follow more stringent self-isolating measures, including shielding. They may therefore not be able to be free to rest, relax and enjoy leisure time whilst on holiday. Requiring them to take holiday during this time could, therefore, risk claims from the employees that they have not received their full holiday entitlement and, in cases where the employee is also disabled, suffered disability discrimination.
Allow employees to carry over holiday. The government passed emergency legislation relaxing the restriction on carrying over holiday. Employees now have the right to carry over holiday where here it was not reasonably practicable to take it in the leave year ‘as a result of the effects of the coronavirus’.
Ensure the rules on training furloughed employees are followed. Furloughed employees are permitted to undertake training whilst on furlough provided that it is not used by the employer to generate revenue or for the provision of services. If the training is directly relevant to the employee’s employment then they must be paid the National Minimum Wage (but the furlough payment will be taken into account in determining whether the National Minimum Wage has been paid) Records of any agreed training undertaken by furloughed employees should also be kept.
- Remember unfair dismissal rights when making redundant. If an employee has more than two years’ length of service, they will have protection against unfair dismissal and the employer will need to follow a fair redundancy process before making them redundant. A fair redundancy process will include conducting a meaningful consultation with each employee, following a fair selection process, searching for alternative employment opportunities, and giving the employee the opportunity to apply for any vacancies.
- Determine if collective consultations are required before making any redundancies. Where an employer proposes to make large scale redundancies of 20 or more employees within a period of 90 days or less, it must consult on its proposal with representatives of the affected employees and notify the Secretary of State for BEIS (and it is a criminal offence not to do this). There are strict rules on the process of consultation that must be followed and a failure to follow these rules can result in compensation of up to 90 days’ gross pay being awarded to each affected employee.
Health and Safety pitfalls
- Take reasonable steps to ensure employee health and safety. Employers have a duty to take reasonable care of the health and safety of employees and take reasonable steps to provide a safe workplace and a safe system of work. A breach of these duties could lead to grievances, breach of contract claims, constructive dismissal claims and personal injury claims. Any employer is not obliged to do everything within its power to prevent injury but must take reasonable precautionary steps.
- Follow government guidance. Employers will be expected to following government guidance that is regularly updated. Specific guides have also been issued for different workplaces which detail the measures that employers should put in place. A failure to follow government guidance is likely to amount to a breach of the employer’s duty of care. Records should be kept to evidence compliance with government guidance and an employer’s duty of care.
- Undertake risk assessments and put in place measures to minimise risks. The government guidance confirms that all employers will need to undertake risk assessments. Employers should publish the results their risk assessments on their website and the government expects all businesses with more than 5 employees to do this. This can include providing PPE.
- Consult with employees on Risk Assessments. Employers are required to complete risk assessments in consultation their workers or trade unions to establish. It states that where there is no existing health and safety representative, a representative should be chosen by workers (employers cannot decide who the representative is).
- Identify employees that are at higher risk and consider putting in place extra measures. Government guidance states that extra measures should be put in place to protect clinically vulnerable (but not extremely clinically vulnerable) workers who cannot work from home, including offering them the safest available site roles. It appears that extremely clinically vulnerable workers should only work from if possible.
- Take extra care with pregnant employees. Pregnant women have also been “strongly advised” to socially isolate. Where the nature of the employee’s role means that they cannot work from home and there is no suitable alternative work available that they could do from home, the employer may have to consider suspending the employee on full pay or furloughing the employee.
- Take care when dealing with an employee’s refusal to attend work because a relative who is shielding. An employee in these circumstances may be protected against direct discrimination, harassment and victimisation if the relative who is shielding is disabled within the meaning of the Equality Act. Reasonable steps should be taken to ensure that the employee does not suffer repercussions because of their association with who is disabled.
- Ensure employees who raise concerns about health and safety do not suffer. All employees have protection against detriment and dismissal because they raised a concern about unlawful activities, including health and safety breaches. Employees will be involved in risk assessments and encouraged to raise health and safety concerns. Employers will, therefore, need to be extra careful during this time to avoid a dismissal or treatment that could be considered detrimental from being associated with concerns raised by the employee.
- Ensure employees are paid on time and correctly. A failure to do this will risk unlawful deductions from wages or breach of contract claim from the employee. The employee may also be permitted to resign and claim constructive dismissal if they have two years’ length of service.
- Ensure employees who are deemed “incapable” of working are paid sick pay. Employees who are incapable of work are entitled to be paid sick pay. Changes to the law mean that employees statutory sick pay is also paid to employees who are self-isolating because they or someone in their household is displaying symptoms of COVID-19 or they are staying at home because you’re at high risk of severe illness from COVID-19. The start date for statutory sick pay was also changed so that it is paid from the first day that an employee is self-isolating.
Data Protection pitfalls
- Ensure medical information kept private. Information about an employee’s health as a “special category of personal data” so it can only be processed by the employer in defined and restricted circumstances. Employees must be notified of the infection risk as soon as possible. However, the identity of the individual should not be disclosed if possible, and the employer should not provide more information than is necessary.
- Consider data security issues when working from home. Data protection legislation requires employers to put in place measures to protect personal data. Employers should consider whether additional measures need to be put in place when employees work from home to protect against unauthorised or unlawful processing and against accidental loss, destruction or damage.
Employment Terms and Policies pitfalls
- Don’t impose changes to employment contract terms. Contracts consultation with a view to obtaining the employees agreement.
- Ensure social media policies are in place and up to date. Employees who are anxious or upset during these uncertain times are more likely to seek support and advice during from others online whilst social distancing measures are in place. This may result in the employee making postings on social media about their employers which could result in the employer’s business being seen negatively. A social media policy can help to avoid such postings and enable the employer to take disciplinary action when necessary.
Please contact us if you require assistance any of the issues discussed above or any employment related matter.
WBW Solicitors – offering employment law advice in Newton Abbot, Bovey Tracey, Torquay, Paignton, Exeter, Exmouth, Sidmouth, Honiton and Launceston.
DISCLAIMER: This note reflects the law at the date of publication which is 22nd May 2020. The content of this note is for general information only. Nothing in this note constitutes legal advice. You should also consult a qualified lawyer on any specific legal problem or matter.