The COVID-19 pandemic has caused far-reaching changes to normal life. It has also led to dramatic changes at work which may cause employees to feel uncertain and worried about employment. Such feelings are understandable given the unprecedented challenges that everyone is facing. It can also be difficult to keep abreast of employment rights at the best of times let alone during a crisis when employment laws are being changed.
We have been helping employees understand their rights since the beginning of this crisis and answered queries related to lay off, redundancy, sick pay, health and safety, as well as the novel furlough scheme. Based on this experience, we have compiled the following list of employment law issues to help you to understand your rights and consider if you have a valid complaint.
The government have agreed to cover 80% of salary costs for staff on furlough leave, but employers have the option to pay staff at 100% salary. If there is no reduction in pay, consent is not needed, but where employers wish to limit pay to the amount covered by the government, currently 80% (capped at £2,500 gross pay), then a written record of the employees agreement may be necessary. The furlough scheme rules also require employers to keep a written record of the employee’s agreement to cease work it is considered best practice for employers to have obtained written agreement to furlough. If you are concerned in the way that your furlough was organised, get in touch.
Selection for furlough
You may feel singled out compared to others by being one of those kept on to work, or due to being furloughed. If this is due to you having a protected characteristic such as race, age or disability then you may have a claim. There may be other situations where you can allege selection was unfair such as if you have raised a whistleblowing complaint or asserted a statutory right and have been singled out as a result. If in doubt, get in touch.
Working during furlough
You should not be asked by your employer to carry out work during furlough. While training and some voluntary tasks may be acceptable, work generating revenue would not. For example, a well known sports store failed in its attempt to require that staff should return in order to complete and pack up online orders. If you believe your employer has breached the furlough scheme rules, get in touch.
Holiday and rights during furlough
If you have been denied, or, ordered to take holiday during a period of furlough, your employer is required to follow a fair process and notice requirements. You are also entitled to receive pay for a holiday period at 100% and this would require your employer should top up the furlough pay if they have opted to pay only 80%.
You also have rights related to the amount of notice pay and sickness pay due to you during a period of furlough. If you feel your rights during furlough have been breached, get in touch.
Returning to work from furlough
You may have concerns about your safety when you return to work. Employers have the obligation to carry out a COVID-19 risk assessment and to consult with you about this. They should refer government guidance on working safely and communicate this to you.
Employers should also continue to champion home working and give special consideration for some staff such as this considered vulnerable, at risk, shielding, or are pregnant.
Statutory Lay off
Statutory lay off has unsurprisingly been less common during this period due to the introduction of the furlough scheme but this is likely to change as the furlough scheme is withdrawn.
Employers should not normally lay off staff unless they have a contractual right to do so, or, have consent from the individual. This is because usually, the impact of such a decision would mean a loss to normal salary.
If you have been laid off without pay and/or without agreement then get in touch to discuss your options.
Statutory minimum guaranteed lay off pay is payable for the first 5 workless days in a 3 month period, but if you have been laid off for 4 weeks lay off or 6 weeks over a 13 week period you will have the right to request redundancy.
Sick pay changes
Employees who are incapable of work due to COVID-19 are entitled to be paid statutory sick pay. Changes to the law mean that 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 of a 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.
If you have been dismissed during COVID-19, the normal tests for unfair dismissal will apply. We can advise whether your employer can show a fair reason for a dismissal and whether they followed a fair procedure in doing so. Normally employees require two years’ service in order to bring an ordinary unfair dismissal claim, but there are exceptions to this rule and certain claims can be automatically unfair. For example, see health and safety unfair dismissals below.
Some businesses will likely need to make redundancies either during or after a period of furlough leave. Employers will have to follow a fair redundancy procedure before making an employee with more than two years’ length of service redundant. We can advise whether your redundancy was fair, for example, there should be a genuine business need for the redundancy, appropriate consultation and selection. For employers making more than 20 redundancies within a period of 90 days or less, there are more formal requirements for them to pursue in terms of minimum consultation periods. There are also employee rights surrounding minimum notice periods, statutory redundancy pay the right to be paid holiday pay that has been accrued but not taken. If you are unsure if your redundancy was fair, get in touch.
Health and safety dismissals
Your employer has an obligation to take reasonable steps to ensure your health and safety. This includes carrying out a COVID-19 risk assessment, consulting with you about this and adherence to government guidance issued from time to time.
If you have been dismissed in circumstances where you have raised a health and safety concern, or complaint, for example, to do with lack of PPE that you consider appropriate for your role, feeling your work meant you were unable to comply with social distancing, or, any other matter then this may be an automatic unfair dismissal with no limit on the maximum amount of compensation and no requirement to have 2 years service.
If having raised a health and safety concern, you have been subjected to unfair treatment from your employer such as hostile behaviour differing terms of your contract including pay or decisions about your employment like redundancy you may have a right of action.
Employers must treat staff fairly and consistently. If you feel that you have been singled out, or unfairly treated with regard to furlough or redundancy, for example, due to your age, health, sex, childcare issues, requirement to protect yourself or family members, we can advise.
WBW Solicitors has offices in Newton Abbot, Paignton, Torquay, Bovey Tracey, Exeter, Launceston, Exmouth, Sidmouth and Honiton.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published on the 28/05/2020.