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Lockdown and beyond: employment law tips to navigate the latest COVID challenges

We set out some employment law tips and reminders to guide you through the difficult weeks ahead.

Here we go again. Just when we thought it was safe to get back to the workplace, UK employers have been dealt a difficult hand with the imposition of another period of national lockdown.

While we have undoubtedly all learned lessons from previous lockdowns in 2020, this time around feels as challenging as ever. With current restrictions set to last until late February and potentially far beyond, we set out some employment law tips and reminders to guide you through the difficult weeks ahead.

Furlough

Extended many times in 2020, the Coronavirus Job Retention Scheme (furlough) remains available until 30 April 2020 to provide financial support if your business has been impacted by COVID-19.

After being closed to new entrants in June 2020, the scheme was reopened to all at the end of October 2020. You can furlough any employee who was employed by you on 30 October, as long as you have made a PAYE RTI submission for that employee between 20 March and 30 October 2020. You do not need to have accessed the furlough scheme before, in respect of an individual employee, or at all, to be eligible to claim.

It remains the case that you can choose whether to ‘fully furlough’ employees or to furlough them flexibly. Where an employee is ‘fully’ furloughed, you will claim for all of their normal working hours from HMRC, and the employee will not be permitted to do any work at all for you during the furlough period.

Where an employee is furloughed ‘flexibly’, they can work for any amount of time and any work pattern. You will need to pay them in full, as normal, for any hours they work, and may make a claim to HMRC for the hours they do not work. It remains possible to ‘mix and match’ your approach – fully furloughing some employees while flexibly furloughing others, or to furlough different groups of employees on a rota basis.

Remember that the previous requirement that each individual period of furlough must last for at least three weeks has been scrapped, enabling employers to use the scheme in a more agile way to meet business need. Now, there is no minimum period for which an employee can be furloughed, although any claim to HMRC must cover a period of at least seven calendar days.

After tapering down its contribution to the wages of furloughed employees between August-October 2020, the government has now reinstated its original, more generous offering of meeting 80% of employee wage costs for any hours the employee does not work, up to a maximum of £2,500 per month (note that this maximum will apply pro-rata if an employee is flexibly furloughed, and is working some of their normal hours). Importantly though, the employer remains responsible for paying NICs to HMRC on the full amount paid to the employee (including any scheme grant) and must also continue to fund contributions to the employee’s pension. As far as we are aware, there are no plans to review or reduce this level of contribution before the scheme comes to an end on 30 April.

The most important change to the original furlough rules is that, for claim periods starting on or after 1 December 2020, scheme funds cannot be used to cover employee notice periods. This includes both statutory and contractual notice periods, and will cover people serving notice of retirement or resignation, as well as notice of redundancy.

You may still carry out redundancy consultation and scoping while employees are on furlough – but must stop claiming when notice of redundancy is served. Remember too that, if an employee is made redundant, their statutory notice pay and statutory redundancy payments should be based on their normal pay, rather than any reduced pay they have received due to furlough. If you need any support with managing redundancy during this period of lockdown or beyond, please do not hesitate to contact us.

Life after furlough: what comes next?

In short, we don’t know. Employer’s do have the government’s assurance that any support available from 1 May 2021 will be announced at last 45 days in advance, to allow employers to carry out a full consultation exercise if current staffing levels cannot be maintained once the furlough scheme ends.

Exactly what any future support may look like is unclear. The government has set a definite end date for furlough on numerous previous occasions, only to subsequently announce extensions; so a continuation of furlough beyond the end of April cannot be completely ruled out (especially if infection levels remain high). Alternatively, the government may choose to resurrect its complex Coronavirus Job Support Schemes (which were placed on pause indefinitely when furlough was extended in November). We can only wait and see.

Shielding

Harking back to the lockdown of Spring/Summer 2020, the concept of ‘shielding’ has been re-introduced for employee’s who are ‘clinically extremely vulnerable’ (CEV) for the current lockdown period.

The updated Government guidance on shielding stresses that shielding employees should work from home if at all possible and, if they cannot do so, should not attend work.

We know that many employers have worked extremely hard over the past ten months or so, to make workplaces COVID secure. However, no matter how robust your arrangements, you will need to engage with any CEV staff to facilitate work from home, even if that means temporarily adjusting their work patterns or duties. Shielding employees who are able to work from home, should be paid in full as normal to do so (even if they are not able to perform 100% of their usual role at home). Remember that many CEV staff are likely to be disabled for the purposes of the Equality Act 2010, so it is important to mindful of discrimination risks in the arrangements you make with shielding employees.

If CEV employees are genuinely unable to meaningfully work from home, the government has confirmed that they will be eligible for furlough. It does not appear that there need be any underlying business reason to furlough these employees; the fact that they are required to shield is enough. As in the first lockdown period, shielding employees who are not furloughed will be eligible for Statutory Sick Pay (SSP).

The government has stated that CEV individuals will be provided with a ‘formal shielding letter’ as proof of the requirement to shield, and as proof of eligibility for SSP. However, be mindful that, due to current pressures on primary care services, such letters may take some time to materialise. It is important to exercise an element of judgment where staff are at higher risk.

Some CEV employees who shielded in the last lockdown, and found it difficult, may not wish to do so again. While shielding is personal choice, remember that as an employer you have a duty of care to provide employees with a safe working environment; the risk cannot be passed back to the employee. If a CEV employee strongly wishes to attend work, you will need to carry out a personalised risk assessment to carefully think through whether you can accommodate them safely. Alternatively, you may need to enforce work from home arrangements. If you need advice or support with a specific, difficult case, please do not hesitate to contact us.

What if employees don’t obey the rules or take shortcuts?

Although it is more important than ever to comply with COVID-safety rules, we have heard anecdotally that, in the current lockdown period, some employees are becoming fatigued with ongoing workplace requirements and that enforcement is becoming increasingly difficult.

In the first instance, we recommend that employees are reminded of the rules and the importance of complying with them. Find out if there is a particular reason why they are failing to stick to the rules. If employees are failing to comply with no cogent reason, they can ultimately be dealt with under your workplace disciplinary procedure. Repeated failures (or one-off serious failures) could ultimately lead to dismissal. Bear in mind that every case will turn on its own facts.

In extreme cases, workers who repeatedly ignore important rules could be in breach of their own personal health and safety duties to others in the workplace, under Section 7 of the Health & Safety at Work etc. Act 1974. Conviction could result in a custodial sentence. A reminder of this may effectively encourage compliance.

If there is a particular reason why an employee is failing to comply with the rules, you will need to engage with them and consider whether the rules can be adjusted to accommodate their concerns, without compromising the health and safety of others. There are a wide variety of reasons why employees might fail or refuse to stick to the rules: religious reasons (for example refusing to be clean shaven to allow the proper fitment of a face mask); fear/phobia (for example, of wearing something over their face and mouth); allergies (for example to hand sanitiser or safety gloves); or human rights (for example an objection to being ‘forced’ to have a temperature test) to name but a few. It may be necessary to adjust the employee’s duties or remove them from the workplace whilst a decision is made, where that is necessary to protect the health and safety of others.

For further consideration of whether an employee can be required to take a mandatory COVID test, take a look at our update by Helen Leppert, Associate. 

If you decide that an adjustment is not reasonable and/or cannot be made safely, the way forward will very much depend on individual circumstances. There are a number of options available which may include suspension from work, home working or changing duties. Where these options are not feasible, resulting in an impasse, dismissal for ‘some other substantial reason’ (SOSR) may be appropriate.

It is important to tread carefully though. Remember that employees who are dismissed or suffer a detriment as a result of making a protected disclosure (whistleblowing), for raising health and safety concerns or who feel that they have been discriminated against by their employer’s implementation of any new rule or procedure, can bring employment tribunal claims regardless of their length of service. If you have any concerns, take advice.

With a long winter lockdown ahead, spring and any changes it may bring, still feels very far away. Remember, we are always on hand to support you if you have any questions or concerns.

If you require guidance and support on any employment issues, please contact our employment law solicitors.

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