COVID-19 updates on the Job Retention Scheme, monitoring activities, decision-making and responding to your comments as we start to consider returning to the workplace.

 

The following  is for guidance purposes only and should not be regarded as a substitute for taking legal advice and keeping appraised of the Governments regular updates.

At present given the limited information available many decisions will be based on employers appetite for ‘risk’… we will get the answers to all of our questions sometime in the future – but unfortunately this will probably be when cases come to Employment Tribunal… and no one wants to be part of case law….

Whilst Government advice and guidelines remain sketchy one area that has consistently stood out during our research is the need to produce documentary evidence to support decision-making; in the short-term to facilitate the safe introduction of employee’s back into the workplace and longer-term to ensure there is an audit trail to explain and demonstrate how decisions have been made and selection criteria applied in a safe, fair, consistent and non-discriminatory manner.   This will be especially important in the unfortunate event that redundancy becomes an option to consider.

 

  1. Workplace Assessment

All employers must carry out a COVID-19 Risk Assessment in-line with Government Guidance. The objective is to identify sensible measures to assess and control the risks of COVID-19 in the workplace.

You should also consider involving your employees in making decisions about health and safety and you must consult with H&S Representatives of any recognised Trade Union.

Where there is an issue, address it and find a solution and share the results of the Risk Assessment with all employees. There is also a requirement to display a notice prominently in the workplace to confirm that this has been undertaken.

These Government links provide support and guidance, the first contains a copy of the workplace notice:

https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19

https://www.gov.uk/government/publications/coronavirus-covid-19-send-risk-assessment-guidance/coronavirus-covid-19-send-risk-assessment-guidance

https://www.hse.gov.uk/news/working-safely-during-coronavirus-outbreak.htm

In addition consider the following:

  • Nominating a person(s) responsible for auditing compliance to workplace safety and delivery of COVID-19 training and cross-training others to minimise disruption.
  • Taking reasonable steps to enable employees to work from home This is expected even if this does not enable them to be 100% effective.
  • Maximising the use of remote working tools, avoid hot-desking and in-person meetings.
  • Closing/suspending all non-essential work areas, tasks and/or operations.
  • Designing new workplace layouts to ensure social distancing, hygiene measures are in place.
  • Ordering safety equipment e.g. temperature test kits, masks, gloves, visors, close contact wristbands, hand sanitisers, putting up appropriate signage, tape on floor etc..
  • Introducing additional hygiene processes for; communal areas and facilities and high contact areas; door handles, telephones, counters, toilets etc..
  • How the use/sharing of equipment, tools, desks, phones can be minimised or avoided.
  • What restrictions (or bans) will be placed on visitors to the premises and how this be communicated. To ensure there is documentary evidence, some companies are implementing signed ‘visitor questionnaires’ or ‘declarations’ containing questions such as:
    • Are you suffering any flu like symptoms/symptoms of COVID-19?                    Y/N
    • Are you experiencing difficulty in breathing, shortness of breath?                     Y/N
    • Are you experiencing any fever like/high temperature symptoms?                    Y/N
    • How are you feeling overall from a health point of view?                                     Well/Unwell
    • Have you been in contact recently with someone who is self-isolating?             Y/N

 

  1. Employee Assessment & Selection

The aim of this section is to ensure that you have documentary evidence to support decisions taken, which will be especially important where not all employees are returning to work at the same time e.g. you are planning a staged furlough return to work.

Consistency is essential to avoid setting unmanageable precedents, where changes are made to employee working patterns these should be in writing to confirm that all measures are temporary and cannot be maintained indefinitely.

Ensure all decisions are based on genuine ‘business needs’ and compliance to the Government   restrictions on ‘essential businesses’ on-going restrictions.

Identify your key employees and which employees, departments, units etc., should return first.

Document the ‘legitimate business reason’ behind the selection of which employees should return to work first, this ensures you have evidence that decisions have been based on genuine business needs and that a fair and non-discriminatory selection criteria has been applied. (NB. This evidence can be used to justify decision-making should this be a point of challenge from an employment law perspective in the future e.g. redundancy selection, allegations of discrimination that the selection process was not fair/objective).

 

  1. Equality in the Workplace

It is recommended that the following is taken into consideration when making your decision:

  • Are any employees in the ‘vulnerable’ category, shielding or self-isolating? Those at the highest risk are recommended to shield (by the Government) and advised not to work outside of their home, therefore it is suggested that you stay in touch with these employees and make arrangements for their return when it is appropriate for them to do so.
  • Any employees that have known learning or physical disabilities, are new or expectant mothers, have a temporary disability due to injury, or whose protected characteristic could expose them to particular risk.
  • Have any employees experienced a recent bereavement?
  • Employees with childcare commitments, for some it may be possible to make alternative childcare arrangements – but this may not be the case for all employees.

Harassment is unlawful under the Equality Act 2010 and employers can be held liable for the harassing behaviour of its employees even if they were not aware of it.

You should remind all employees of their obligations in this regard by reissuing relevant HR policies. It may be particularly helpful to advise Line Managers of their responsibility to watch for, stop and report any harassment or any other form of discrimination.

When dealing with this particular allegation, you should follow your grievance or harassment procedure.

 

  1. Return to Work Options

The Governments position at the time of issue is that employee’s should continue to work from home where possible or commence a phased return to work.  NB. If home-working continues on a long-term basis it is recommended that a ‘home-working’ policy is introduced to ensure that you (the employer) fulfil your legal/H&S responsibilities.

Where continuation of home-working is not possible and/or you have been identified as a business that is able to open, consider the following:

  • Could certain categories of employees be allocated new tasks/duties that could be performed from home?
  • Fixing teams so that where contact is unavoidable this happens with the same people.
  • Plan for the minimum number of people needed to work and operate safely and effectively.
  • Consider staged/phased return to work, shift-working, revising rosters, splitting teams, staggering start/finish times, break-times etc..
  • Consider temporary flexible working arrangements, adjust or reduce working hours, change working times.
  • If employees rely on public transport to travel to work, can reasonable adjustments be made, or assistance provided to avoid public transport?

In the context of COVID-19 communication, working together and flexibility will be at the forefront of resolving employee issues for example: are there any other tasks that are commensurate with the employee’s skills and ability that they could perform in the interim that would allay their fears and safety concerns – and encourage them to return to work?

 

If you are not one of the businesses identified by the Government as being able to open or work, below are a number of options to consider:

  • Agree that furlough can continue at 80% of basic salary until end of July 2020.
  • Agree new furlough provisions from August to the end of October 2020 – see below.
  • Is asking employees to volunteer to return to work an option?
  • Employee takes unpaid leave.
  • Employee takes Parental/Shared Parental Leave (where they meet the eligibility criteria).
  • Employee takes Dependents Leave (unpaid).
  • Employee makes a Flexible working request.
  • Take accrued holiday (Refer to Section 6).

Ensure that all changes are fair and do not directly/indirectly discriminate any group or groups of employees.

 

Be prepared for a possible influx of ‘flexible working’ requests as many employee’s may have found working from home a positive and beneficial experience. It is important that such requests are dealt with methodically ensuring that decisions do not directly/indirectly discriminate any particular group – but at the same time being able to maintain business continuity and not setting unmanageable precedents that cannot be maintained. Such requests are covered by a statutory obligation to follow a set process so ensure this is followed and remember these are ‘permanent/contractual’ changes.

 

To avoid any confusion and possible repercussions, it is recommended that only employee’s with the relevant level of authority are permitted to discuss changes (temporary or otherwise) with individuals and that all agreements are confirmed in writing and counter-signed by the employee.

Employment law requires employee agreement when making amendments to employment terms and conditions, even on a temporary basis.  It is advisable to speak to employees first and explain the changes you need to make and the reasons for the change. Refer to Section 7 below.

 

  1. New Furlough Provisions

IMPORTANT: 10th June 2020 is the last date that employers can place employees on furlough for the first time.  The old Scheme will close on the 30th June and from this point forward employers will only be able to furlough employee’s that have been previously furloughed, or furloughed for a full 3 week period prior to the 30th June (the 10th June).

With effect from 1st July 2020 employers can bring back to work employees who have previously been furloughed for any amount of time, any shift pattern and rotate employees on furlough, whilst still being able to claim under the Scheme for their normal (contracted) hours not worked, as follows:

June: The Government will pay 80% of salary up to a cap of £2,500 as well as employer NICs and pension contributions but the employee cannot undertake any work during this time, with the exception of training, voluntary work or union/representation duties.   

July:  From the 1st July flexible furlough can be used and employers will be able to return furloughed employees on a part-time, or reduced hours basis whilst still claiming 80% of salary up to a cap of £2,500 as well as employer NICs and pension contributions.  Employers will have to pay employees for the hours they work. Employers can choose to top up salaries to 100%.

August: The Government will pay 80% of salary up to a cap of £2,500 and employers will be responsible for paying the employees total NICs and pension contributions for the hours they do not work.  Employers will have to pay employees for the hours they work, including NICs and pension contributions. For the average claim, this represents 5% of the gross employment costs that would have been incurred had the employee not been furloughed. Employers can choose to top up salaries to 100%.     

September: The Government will pay 70% of salary up to a cap of £2,187.50 for the hours the employee does not work.  Employers will also pay employer NICs and pension contributions and 10% of wages to make up 80% total up to a cap of £2,500. Employers can choose to top up salaries to 100%.

October: The Government will pay 60% of salary up to a cap of £1,875 for the hours the employee does not work.  Employers will also pay employer NICs and pension contributions and 20% of wages to make up 80% total up to a cap of £2,500. Employers can choose to top up salaries to 100%.

 

Summary:

 

July

August

September

October
Government contribution: to employer NICs and pension contributions

Yes

No

No

No
Government contribution: to salary:

80%

up to £2,500

80%

up to £2,500

70%

up to £2,187.50

60%

up to £1,875
Employer Contribution: Employer NICs and pension contributions

No

Yes

Yes

Yes
Employer Contribution: to Salary:

No

No

10% up to £312.30

20% up to £625
Employee Receives:

80% up to £2,500 per month

80% up to £2,500 per month

80% up to £2,500 per month

80% up to £2,500 per month
Implied Employer costs

0%

5%

14%

23%

Source: HMRC

 

Calculations for salaried employees pay is based on what they earned in the last pay period to the 19th March 2020, up to a cap of £2,500 per month.   If an employee has been employed for less than a year, claims are based on an average of monthly earnings since employment commenced. Calculations previously used to determine pay as at 28th February 2020 can still be used.

The new scheme will require employers to confirm new flexible furlough working arrangements in writing with their employees and claim the furlough grant for a minimum period of a week.  Further guidance on flexible furloughing and how employers should calculate claims will be published on 12th June.

 

  1. Holiday Provisions

The Government has amended the Working Time Regulations 1998 (The Working Time (Coronavirus) (Amendment) Regulations 2020) to allow employees to carry over a minimum of 4 weeks (or more with individual Company agreement) of their holiday entitlement into the next 2 leave years. This extension is to alleviate the concern for employers that employees have potentially a large amount of accrued holiday to take once the pandemic passes.

Employees should be given every chance to take their holiday and it not be replaced with pay instead, unless they are leaving the company.

The Government guidance is clear, that employers should not force employees to take their holiday but to consider whether the purposes of annual leave (rest, relaxation and enjoyment) would be met of the employee was under any restrictions e.g. lockdown.

The Government have confirmed that annual leave can be taken at the same time as furlough. However employers must pay the employee normal pay for any annual leave taken and only claim 80% of pay through the furlough scheme, the remaining 20% being ‘topped’ up by the employer.

Normal holiday policy and process rules apply to annual leave requests, which means that employers can decline a request and some employers may choose to do so on the basis that they are unable to pay the ‘top up’ pay to 100% during annual leave.

Clarification on Bank Holidays which fall during a period of furlough is that employees who would normally have worked on the Bank Holiday will continue on furlough, for those who would normally have taken annual leave there are 2 options:

  • Confirm to the employee they are on annual leave and ensure they are paid accordingly e.g. normal pay which may include the employer ‘top up’ to 100%, if that is the agreed rate of pay during the furlough.
  • Agree with the employee that annual leave will not be taken on that day and it will be a ‘normal’ day of furlough. The days leave will then be deferred and the employee must be allowed to take it later in the year, or carry it over.

 

  1. Employee Communication

It is essential that employees are provided with reasonable written notice of return, whether on a permanent or flexible furlough basis (even where furloughed employees were given an end date to the furlough) so they can make arrangements e.g. childcare, other caring responsibilities.

Write a letter to all employees to confirm the end of the furlough period or return to work date and include the following:

  • Return date.
  • Return arrangements.
  • Workplace changes and H&S strategies that have been implemented to ensure a safe return to work.
  • Advise them of their obligations, new processes.
  • Remind them of key company policies e.g. reporting concerns in the workplace, sickness absence etc…
  • Confirm any temporary changes e.g. working times/patterns in writing.

Employment law requires that all contractual changes are agreed by the employee, even if these are made on a temporary basis. It is recommended at all times that this placed in writing and counter-signed/dated by the employee to confirm their understanding and acceptance.

It is important to note that if an employer imposes contractual changes this could lead to the employee deciding to resign and making a claim for constructive dismissal, or, perhaps (which may be more likely in the current market) remain in post and claim damages for breach of contract, or compensation for unlawful deductions from pay.

Ensure that all changes are fair and do not directly/indirectly discriminate any group or groups of employees.

 

  1. Employee Training

All employees should receive COVID-19 training, to include the following topics:

  • The signs and symptoms of COVID-19.
  • How COVID-19 is spread.
  • Cleaning routines and hygiene controls (including respiratory hygiene, cough etiquette
    and handwashing and physical distancing).
  • What to do if an employee becomes unwell/believes they have been exposed to COVID-19.
  • When individuals in the workplace have had contact with a confirmed case of COVID-19.
  • Cleaning offices, public spaces where there are suspected or confirmed cases of COVID-19.
  • Rubbish disposal, including tissues.
  • Travel restrictions.
  • Restricted movement advice.
  • Familiarising key staff with the COVID-19 plan.

 

  1. First Day Back

Employee safety has to be the priority during the initial return to work period; requiring employees to work in an environment that puts their health/safety at risk could breach the employer’s duty of care.  Some employees may be cautious about returning to the workplace for fear that it puts them at a greater risk of contracting COVID-19. Employers should speak to them and try to allay their concerns by letting them know all of the measures that have been taken to ensure the workplace is as safe as it can be e.g. deep-clean workspaces, hand sanitizers, protective clothing, restricting visitors etc.

As previously established, it is essential that all actions taken are documented; the following are suggestions as to how this information can be captured, recorded and audited:

  • Consider a re-on-boarding meeting to welcome everyone back to the work place and cover:
    • Process changes.
    • Individual obligations and responsibilities.
    • Processes for social distancing (at least 2m apart) and hygiene measures.
  • COVID-19 training and a nominated person for training, monitoring and recording (evidence of compliance/competence).
  • Ensure all Line Managers have familiarised themselves with key policies e.g. absence, sick leave, harassment, discrimination, dress code etc., and their role to watch, stop and report any cases of alleged harassment or any other form of discrimination.
  • Remind all employees of their own personal obligations and refer to relevant HR Policies. Inform them that disciplinary action will be taken in regard to any allegations of harassment or discrimination.
  • Ensure processes are in place and clearly communicated to ensure returning employees are not potentially infected or have been exposed to the virus – and the escalation process for raising any concerns/issues in the workplace.
  • Can you offer health and wellbeing support for example through Occupational Health or your Employee Assistance Programme?
  • Issue wellbeing questionnaires (note your obligations under GDPR).
  • Line Managers to hold documented 121 meetings with all team members with the discussions focussed on employee’s health and wellbeing and include exploring whether any temporary adjustments or support is needed to enable the employee to carry out their role.
  • Be aware of any employees who may have experienced a recent bereavement and offer them support when they return to the work place.

 

One certain way to find out how employees are feeling is to ask them…

Many organisations are issuing Team Surveys or Questionnaires either prior to returning to the work environment – encouraging employee participation to contribute to workplace adaptations or on their return to work e.g. adjusted working arrangements, wellbeing, caring responsibilities, travel to work, training, support, concerns etc..

If this is something to explore – be cognisant of data harvesting and your compliance to GDPR.

 

  1. Managing Employees who do not want to Return to Work

Guidance on this at present is still ‘pretty grey’, however the most important and overarching factor is to ensure that all decisions and actions taken are fair, non-discriminatory and do not contravene employee’s statutory and legal rights.

It is also not advised that employers rely on some employee’s willingness to take the ‘risk’ and return to work, whilst others are unwilling to do so, as a valid argument to impose unilateral return to work.

Employee safety has to be the priority during the initial return to work period and the employer is responsible for ensuring steps have been taken to manage any transmission risk.  Where employees are expected to return to work it is the employers duty to reassure any nervous employee’s that you are not placing them at risk by asking them to return to work to an environment where their health and safety is at risk, as this could breach the employer’s duty of care.

The key here is ‘good communication’ to try and allay employee’s fears and ensure that these are dealt with sensitively by letting them know the measures that have been implemented in the workplace to protect health and safety.  A phased return to work, as suggested above, will further demonstrate you are prioritising employee heath.

Understanding individual reasons for being anxious to return to work will be an important contributor to influencing your decision-making, for example; an employee who is not ill, or vulnerable or a carer – but just too scared to return to work may be deemed to be suffering from any kind of mental condition which could render them a disabled worker, in which case the responsibility on the employer would be to consider any reasonable adjustments to accommodate the employee’s needs.

Employee’s requesting to continue to work from home or remain on furlough may not only be driven by convenience or a wish to spend more time with their children but a genuine fear of:

  • Contracting COVID-19 or exposing their family or other vulnerable people at home to the disease.
  • Their partner (or household) may have been advised by the NHS to shield for 12 weeks because they are in the extremely high risk category. In this instance, you may agree to allow a new or extended period of homeworking, or arrange for them to take time-off as holiday or unpaid leave.

The following process will enable you to ascertain the reason why an employee may be reluctant to return to work:

  • Speak to employee on the telephone to establish the reason.
  • Document the conversation so there is a record e.g. a questionnaire issued to all employees covering topics such as; underlying health issues, how will they get to work, carer/childcare responsibilities etc..

 

If an employee still does not want to return to work, you may agree to allow a new or extended period of home working, or arrange for them to take time off as holiday or unpaid leave, or one of the other options as detailed above.

If an employee is absent due to a fear of contracting the virus you must consider the risks and consider whether the employee is a vulnerable employee or if they have a valid reason for not wanting to return to work.

Where there is no increased risk for the employee, or a valid reason you can request that they return to work. If an employee refuses without a valid reason, you may wish to consider disciplinary action on the basis of unauthorised absence, although this decision should be carefully considered and advice taken.

Another option, should the employee refuse to return without a valid reason, is for the employer to cease pay, on the basis that the employee is demonstrating that they not willing to carry out their contractual duties, again this decision should be carefully considered and advice taken.

 

If however, an employee (for example) does not work a shift and the employer did not pay them for this – this would not be a ‘detriment’ as the employee did not undertake the work.

 

With all the current uncertainties about the pandemic, you should embark on the disciplinary route with caution, on the basis that the employee may seek to challenge that they have been unfairly dismissed for health and safety reasons (refer to H&S at Work Act 1974, Sections 44 & 100).  It should also be noted that an employee raising a claim based on H&S and concerns relating to their safety, does not need to have 2 years continuous service to bring a claim for compensation.

 

 

For example: The Government states that employee’s should be ‘encouraged’ to return to work, if an employee is told to return to work and that there may be negative consequences if they do not, this could be viewed as an ‘instruction’.  Therefore should it be deemed/or proven that the employer has not taken all possible precautionary steps this cannot be seen as a ‘reasonable instruction’ therefore contractually employees can refuse as the Company has not fulfilled their ‘contractual and legal obligation’ to provide a safe working environment.

 

Employees may use a similar claim in relation to having to travel to work on public transport.

 

Employment rights are cloudy – employee’s may use this as their response to being forced to return to work and/or being subject to withholding pay, disciplinary action or dismissal it would then be up to an Employment Tribunal to review Sections 44 / 100 of the H&S Act to determine the ‘test of reasonableness’.

 

 

Essential to all decisions taken is that they are consistent, are not detrimental or discriminatory, or in favour of any particular group or groups of people and do not set unmanageable precedents that cannot be maintained indefinitely.

 

  1. Managing Employees with Childcare Commitments

This will undoubtedly be a common challenge for many employees where many childcare facilities remain closed and family carers are unavailable.

Where employees are unable to work from home and your business is open, they should be encouraged to make alternative childcare arrangements – but this may not be possible for everyone.

 

 

Employees do not have a right to ‘paid’ leave for childcare responsibilities and childcare is not a ‘protected characteristic’ however it is more likely to apply to women – so it could be viewed as discriminatory….

 

 

Other considerations:

  • Temporary flexible working arrangements, which may enable childcare responsibilities to be shared.
  • Parental Leave (unpaid) where they meet the eligibility criteria.
  • Unpaid leave.
  • Taking accrued holiday (refer to Section 6).

 

Whether Dependency Leave is another option is questionable – as the purpose of this leave is to ‘make arrangements’ not to care for children.

 

Essential to all decisions taken is that they are consistent, are not detrimental or discriminatory, or in favour of any particular group or groups of people and do not set unmanageable precedents cannot be maintained indefinitely.

 

  1. Statutory Sick Pay

 

COVID-19 SSP Rebate Scheme: In March 2020 the Coronavirus Statutory Sick Pay Rebate Scheme was introduced to enable employers with 250 (or less) employees to recover 2 weeks of SSP paid to employees for absences due to COVID-19. The scheme applies to both employees with coronavirus and those who cannot work because they are self-isolating.

Employers do not need see an employee’s fit note to reclaim the payments. Employers who pay more than the current rate of SSP can only claim the current rate amount and refunds are handled by the HMRC.

 

SSP and Shielding Employees: In April 2020 special provisions were introduced to enable employees who are shielding to claim SSP from Day 1 for every day they are unable to work.

This group of people received letters advising them to shield by remaining at home for at least 12 weeks.  Shielding people are classed as extremely vulnerable and at very high risk of severe illness from coronavirus for example those with certain types of cancer or suppressed immune systems.

Employees who are shielding can be furloughed under the Coronavirus Job Retention Scheme or allowed to work from home. If employers choose not to furlough and home working is not an option shielding employees are entitled to SSP as they are deemed incapable of work for the shielding period.

The especially vulnerable who are shielding for 12 weeks in-line with public health guidance, can be placed on furlough or SSP if the employer agrees.

 

SSP and Furlough: If an employee becomes sick during the furlough period they can either remain on furlough or be placed onto statutory or contractual sick pay in the usual way and then back onto furlough pay (unless normal working has resumed) by the time they recover.

If you have any questions or require support navigating through these unprecedented times please get in touch.

Stay well and safe everyone!

Note: Source Material CIPD