Navigating the ‘new normal’
We provide answers to some frequently asked questions that have recently arisen, helping employers navigate the new normal.
As we approach the end of the Coronavirus Job Retention Scheme (“CJRS”) on 31 October 2020, many employers are seeing business return to a ‘new normal’. Unfortunately, some will be hugely concerned by what comes next and large numbers have already starting the difficult task of making redundancies.
We have collected together and summarised some key questions which have arisen recently and provide the answers below:
Changing terms and conditions
We are looking beyond the CJRS and believe that we need to consider changing terms and conditions to ensure our business remains sustainable in the long term. Are there any key issues we need to think about?
Yes. Many employers may find themselves in a position where they need to cut costs by reducing pay, or reducing access to key benefits It is important to follow a full and proper process to make any changes, and where necessary involve any recognized Trade Union(s) or workplace representatives. It is vital to “manage the message” and ensure that employees understand why decisions are being taken. Consultation is important and it is recommended that time is spent planning. This can be complex and we recommend advice is sought if you are unsure.
Changes are vital to our business’ survival; can’t we just do what we need to do?
You can impose a change unilaterally if you want to, and leave it to employees to decide how to respond. However, this is likely to damage employee relations, and may result in claims for constructive dismissal (amongst other things). Generally speaking, this approach is not often recommended.
So what should we do?
It is usually preferable to seek agreement to any changes – by communicating with employees to explain; why changes need be made (e.g. to cut costs and safeguard jobs); whether changes are permanent or temporary; and how changes will impact employees in practice. It is often possible to secure agreement from a majority of employees, where the tone and content of communication is managed carefully.
This won’t work. Is there another option?
As a last resort, where agreement cannot be reached, you may choose to dismiss an employee and re-engage them on new terms. It is important to serve proper notice of dismissal in these circumstances to avoid claims for breach of contract. It is often overlooked that such a dismissal will fall within the meaning of ‘redundancy’ for the purposes of the employment law provisions that govern collective redundancy consultation which are referred to below (even though the employee is not being made redundant and will re-join the business).
So, it is important to note that, if sufficient numbers of employees are impacted, the duty to collectively consult over those dismissals will be engaged.
We work closely with a Trade Union. Does that make a difference?
Certainly. It is highly likely that a collective agreement will be in place governing terms and conditions. You should ensure that negotiation with the recognised Trade Union(s) takes place and they are involved in your decision making as required in any agreement between the parties.
If you do not recognise a Trade Union, you should consider whether any other employee representation group should be involved.
We continue to utilise the CJRS and plan to do so until it closes at the end of October 2020. Do we need to wait until the scheme ends to think about redundancies?
No. As difficult as it may be, you can start redundancy consultation now, and in some cases actually confirm some employees as dismissed by reason of redundancy before the CJRS closes.
There are some potential traps for the unwary, such as when you are proposing to dismiss 20 or more employees within a period of 90 days or less (which is addressed below). If you are unsure of what action should be taken to reduce risk, please seek advice as soon as possible.
We need to reduce our headcount by at least 20. Are there any special rules that apply?
Probably. You will need to assess matters further, for example, determining whether you are proposing to dismiss 20 or more at one establishment, remembering that an “establishment” may not be easy to determine.
You may need to undertake “collective consultation” with representatives of the affected employees and also notify BEIS.
You may also need to consider minimum periods of consultation - where more than 20 redundancies at one ‘establishment’ are proposed the minimum consultation period is 30 days; and where 100 or more redundancies are proposed, the minimum period is 45 days.
This doesn’t leave much time if you plan on dismissing employees at the end of CJRS - to fit in a minimum 45-day consultation period before end of scheme, consultation must start no later than 16 September 2020 (counted backwards from date of proposed dismissals).
What can happen if I don’t collectively consult when required? Can’t I just consult individually?
No. Consulting individually is necessary in all circumstances and cannot replace any collective consultation requirements that apply. When the collective consultation requirements apply, there is additional liability that can apply if the rules are not followed and it can be very expensive.
Failure to comply can impact on the fairness of any dismissals but a Tribunal can also award a “protective award” of up to 90 days’ gross pay for each affected employee. This is designed as a punishment for an employer who does not comply with their obligations, rather than as compensation for employees.
A failure to notify BEIS is also a criminal offence carrying potential fines of up to £5,000.
What is an establishment anyway? Surely every place of work is an establishment?
Not always, no. This can be a tricky and fact sensitive question to answer and does not focus exclusively on geography. Other factors can include management structure, nature and distribution of work, economic impact of redundancies.
We have started consulting about redundancies but our business is changing rapidly and we are having difficulty predicting the future. This makes sticking to the plan really hard. What can we do?
You don’t need to predict the future. You need to act on the information you have and do your best. Varying your own timescales, subject to business need, is always an option and may be necessary. For example, your business might actually suffer an upturn meaning that redundancies are not necessary or may be fewer in number.
You do not need to stick rigidly to a plan that was drawn up when things were, for example, looking worse than they do now.
Do not worry about starting consultation too early either. It will be very rare for a tribunal to criticise an employer for starting consultation early, whereas not adequately consulting will almost always increase risk.
Can I serve notice on an employee who is furloughed?
Yes. It has now been confirmed by the government that an employer can serve notice on a furloughed employee. In this situation the employer can claim the applicable percentage of their salary from the CJRS (70% in September, falling to 60% in October).
However, our view is that notice should be paid at 100% of an employee’s usual pay (which means that the employer will have to pay an element of ‘top-up’). The legal rationale behind this is that is that, when the parties agreed to reduce the employee’s pay during furlough, it was probably not in their contemplation that this furlough period would overlap with the employee’s notice period.
We intend to pay in lieu of notice. Does that make a difference to the above?
Yes, you cannot take advantage of the CJRS in respect of PILON.
All our employees are working from home or furloughed. Surely that means we don’t need to consult as they’re not in the office?
You do! And it is likely to be challenging. Remote working and furlough obviously make this a lot more difficult – as physical ‘town hall’ style meetings, or even team-based or site-based meetings are often out of the question due to social distancing.
Depending on the size and nature of your workforce, and the facilities you have to work with, you can broadly go one of two ways on this – either using innovative solutions or fall back on tried and tested methods.
If IT is universally available to staff, consultation could take place over online platforms such as Zoom or Microsoft Teams. However, even where employers have extensive IT infrastructure, it will be rare that all employees are set up to participate in video conferencing from home.
Consultation by e-mail may be an option – although obviously it may be more difficult to fully explain your position and its nuances over e-mail.
Also, not all employees may have access to their work email while on furlough. Indeed, some employees may not have a work e-mail address.
Telephone conferencing may be an effective way to reach large numbers employees without the need for specialist equipment, but feels impersonal and is difficult to practically manage where there are large numbers of participants.
There may be a great deal of pre-consultation work to do to work out the best way to communicate and to gather suitable contact information for affected employees. If it is not possible to achieve sufficient reach across the workforce in these ways, it may be necessary to fall back on conducting elections/consultation by post. Important to build in extra time for this. In the current context, it is even more important to think carefully about how many elected employee representatives you actually need. The more there are, the more unwieldy consultation will be. In circumstances where communication is more difficult, it may be preferable to elect fewer reps and keep things more streamlined.
We need to make redundancies. Are there any special rules about redundancy pay?
Yes. In contemplation of imminent job losses, the government has introduced emergency legislation, in the form of the Employment Rights Act 1996 (Calculation of a week’s pay) Regulations 2020 designed to maximise the payments redundant employees will receive.
The Regs. amend existing legislation around the calculation of ‘a week’s pay’ for the purposes of working out an employee’s statutory redundancy pay entitlement. Both the underlying legislation and the new Regs. are complex, and deal separately with employees who have normal working hours and those who do not.
Put really simply, the Regs aim to make sure that employees do not ‘lose out’ and receive smaller redundancy payments than they would otherwise be entitled to, simply because the working hours and pay have recently been reduced due to furlough. Essentially, the ‘ups and downs’ of furlough are ignored and calculations are made based on an employee’s pre-furlough earnings. If in doubt, seek advice.
If you are unsure of your obligations when considering redundancies, we suggest advice is sought at the earliest opportunity.
We’ve worked hard to make the workplace COVID secure – but some staff are saying we haven’t done enough and are refusing to return. What shall we do?
Every business, and every employee, is different, so there is no easy ‘one size fits all’ answer to this.
The key piece of legislation is the Health and Safety at Work etc. Act 1974 (HSWA), under which employers must “so far as is reasonably practicable” provide and maintain safe places of work, safe systems of work and adequate facilities for welfare. ‘Perfection’ is not expected, and in any event is difficult to identify in these novel circumstances.
That said, Government published guidance for working safely during COVID-19 is available and should be followed.
Free return to work checklists
Get a free, no-obligation trial of AuditComply to help you prepare for the post-lockdown return to work.Learn more
Employees may be reluctant to return to work for a wide variety of reasons, many of which are likely to be genuine and some of which may be supported by various legal protections. For example, an employee may have a disability or special vulnerability; may have caring responsibilities for a vulnerable person; or may be genuinely anxious about the risks of re-engaging with work. It is best practice to explore these concerns thoroughly, carry out an individual risk assessment and implement any special protective measures identified.
In other cases, however, employees may have no good reason for refusing to return to work, and you may be entitled to take disciplinary action. However, it is important to tread very carefully and seek legal advice before proceeding.
Some staff are refusing to undertake certain tasks which they perceive as less safe. How do I manage this?
Again, this is very fact-sensitive and there is no single easy answer. No matter how extensive your efforts to limit COVID transmission in the workplace, there may be some discreet tasks that raise ongoing concerns for staff.
If a particular activity poses problems, for example if social distancing guidelines cannot be followed in full, businesses should consider whether that activity needs to continue for the business to operate and, if so, take all possible mitigating actions to reduce the risk of transmission between their staff.
Examples of ‘mitigating actions’ in the government guidance include keeping the activity time involved as short as possible; using screens or barriers to separate people from each other; using back-to-back or side-to-side working (rather than face-to-face) whenever possible; and using fixed teams or partnering to reduce personal contact.
If employees must work face-to-face for a sustained period with more than a small group of fixed partners, then employers will need to assess whether the activity can safely go ahead. No one is obliged to work in an unsafe work environment.
However, if an employee continually refuses to undertake a task that is ostensibly as safe as possible (and there are no specific personal circumstances or vulnerabilities at play) you may be able to take disciplinary action (with caution, and after seeking legal advice).
One of our employees is pregnant. Can we still require her to come into work in the current climate?
Yes, you can ask a pregnant employee to return to work. However, it is important to remember that employers have a specific statutory duty to protect the health and safety of pregnant women.
An employee who is pregnant may be satisfied that your business has put really robust COVID-secure measures in place and be confident to physically return to work. However, if she is not, this is refusal is likely to be reasonable (given that pregnant women are categorised as vulnerable and currently advised to adhere especially stringently to social distancing measures).
You will need to consider whether there is alternative work available on site that poses reduced risk (e.g. away from the shop-floor) or even consider whether working from home is possible. Of course, in some environments, such alternative work may not realistically be available in which case, according to health and safety law, the pregnant employee should be suspended with full pay.
What if staff take shortcuts re H&S measures? Can we take disciplinary action?
Yes, you can take disciplinary action against staff who refuse to comply or take shortcuts with health and safety measures. Indeed, in light of your duty of care to keep other members of staff safe, it is important that any breaches of the rules are taken seriously.
Crucially, it is important that any new health and safety measures or expectations are communicated to staff clearly in advance of return to work, or implementation. Such communications should make clear that serious or repeated breach of COVID-safe procedures will be a disciplinary offence. Bear in mind that there may be a short period of adjustment while staff get used to new ways of working, and remember to consider individual circumstances. For example, an employee who has been spotted without a face covering may be medically exempt from wearing one.
Many parts of our business are much quieter than usual, although we anticipate that things will pick up towards the end of the year. Can we ask staff to take leave in the next few weeks while there is still limited work to do?
Yes, you can. Some employees may be happy to use holiday while work is quiet (especially if they have recently returned from furlough and have built up an excess of leave). However, others will have insufficient holiday entitlement to do this or may wish to reserve some holiday for later in the year.
You may be able to ‘force’ an employee to take annual leave if you wish, but it is important to check that your contracts of employment allow you to do this. You may need to give the employee a minimum amount of notice (usually twice the length of the proposed period of holiday). So, for example, if you want an employee to take 14-days annual leave, it is likely that you will need to give at least 4 weeks’ notice.
By contrast, we are experiencing localised spikes in post-lockdown activity, and some parts of our business are extremely busy. Can we ask staff not to take some of their holidays and roll them over to next year?
Yes. The government has recently made special provision for this situation.
In normal times, the statutory element of annual leave that derives from EU law (20 days) must be taken in the leave year in which it is due, otherwise it is lost (subject to certain exceptions – e.g. sick leave, maternity leave).
New regulations relax the carry-over rules so that the employee “shall be entitled to carry forward” EU law element of annual leave (20 days) for the two leave years following the year in which is due, if it was “not reasonably practicable’ for them to take it due to COVID reasons. These reasons include “the effects of coronavirus (including on the worker, the employer or the wider economy or society)". So, if you are exceptionally busy due to the economic ups and downs of COVID, especially (but not exclusively) if your business serves the COVID response or any key sectors such as health-care, you can ask staff to roll-over statutory annual leave.
Bear in mind though that it is likely to be a breach of the Working Time Regulations to force an employee to roll-over these 20 days if they do not wish to do so. Agreement is required and should be noted wherever possible.
The additional 1.6 weeks/8 days leave available under UK law, and any additional contractual leave you offer, may be also be rolled over into your next leave year (and potentially further into subsequent leave years) if a relevant agreement (e.g. contract of employment or holiday policy) allows for this.
Post travel quarantine
A number of employees are currently in post-travel quarantine, or will shortly need to quarantine on return from holiday, leaving us short-handed. Can we ask an employee not to observe quarantine and come into work?
No. The 14-day post-travel quarantine period is a legal requirement, introduced by The Health Protection (Coronavirus, International Travel) (England) Regulations 2020 or The Health Protection (Coronavirus, International Travel) (Scotland) Regulations 2020 If an eligible individual fails to self-isolate in breach of this requirement, they commit a criminal offence and will be liable to pay a fine. Therefore, you must not require an employee to attend the workplace during the quarantine period (or allow them to come into work when you know they should be in quarantine).
An employee has booked a holiday abroad, knowing that his destination is on the isolation list. Can we stop them from going? Do we have to pay them for quarantine when they get back?
It is not currently clear how long post-travel quarantine measures will remain in place, and the application of the rules to specific destinations may change. So, it may not be necessary to instruct employees to cancel foreign travel on an ongoing basis.
However, in any event, it is unlikely to be reasonable to dictate to an employee what they are able to do during their non-working leisure time.
You may be able to cancel an employee’s pre-booked annual leave. However, it is important to make sure that your contracts of employment allow you to do this, and you may need to give the employee a minimum amount of notice of the cancellation (usually the same amount of notice of the length of holiday to be cancelled). So, to cancel a two-week holiday, it is likely that you will need to give at least two weeks’ notice.
Of course however, cancelling an employee’s foreign travel is likely to cause considerable financial loss and disappointment to the individual. From an employee relations perspective, it would be preferable to focus wherever possible on agreeing a mutually acceptable arrangement to cover the post-travel quarantine period.
Where an employee has knowingly booked a holiday to a country on an isolation list, you might wish to consider requiring them to take the 14-day quarantine period as extra annual leave, or unpaid leave, to deter other employees from booking any last-minute cheap deals.
It is important to consider individual circumstances though, and you may wish to relax this approach and offer special paid leave where an employee has been forced to travel (e.g. due to a family emergency) or has been genuinely ‘caught out’ by changing quarantine rules.
Find more information about post-travel quarantine.
Get a free, no-obligation trial of AuditComply to help you prepare for the post-lockdown return to work.
Get a free, no-obligation trial of AuditComply to help you prepare for the post-lockdown return to work.Learn more