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Employment update: COVID19 and the next steps for your business

05 May 2020

With restrictions on lockdown expected to be eased within the next few weeks, many businesses are now considering their return to work plan.

A safe workplace?

Risk assessments are of course key in establishing compliance with public health guidance and to ensure employees work within a safe environment. Consider your strategy for planning and implementing a comprehensive safety plan, which will include high levels of cleanliness, including the potential use of gloves and masks and access to hand washing facilities/sanitisers being a must. Consideration also needs to be given in respect of how to implement the current 2 metre social distancing requirement (including in communal areas) and shift working/rotas may become relevant (see ‘Changing Terms’ below).

How do we tell employees to return to work?

There is no strict requirement to advise employees in writing that their return to work is required or to give them a minimum period of notice of their return.  However, if your employees are on Furlough leave, we would recommend this in the event that you wish to re-furlough them in the future, so that there is a clear paperwork trail in place for HMRC of start and end dates of Furlough leave.  Further, if employees refuse to return you have written confirmation that they were asked to return. We can provide wording for you.

Although there is no minimum period of notice to give of an expected return, a notice period of 48 to 72 hours would seem reasonable particularly if employees have child care or other caring responsibilities.

What if you don’t need all employees to return?

Furlough leave is subject to an employer’s discretion but employers should be seen to be acting fairly and consistently to avoid allegations of unfair treatment and discrimination. The position is more straightforward if an employer needs certain employees to return due to their particular skills or knowledge.  If you have several employees who are Furloughed and who do the same or similar jobs, you could consider implementing a rota system (remembering of course that each period of Furloughed leave must last a minimum of 3 weeks) or asking for volunteers to return.

What if employees refuse to return?

Ordinarily any employee who refuses to work could be considered as being absent without authority with the employer then being justified in withholding their pay and subjecting the employee to disciplinary action.

 

Coronavirus

 

Employers do however need to tread carefully where health and safety concerns are an issue and we would recommend that full advice is taken from us before taking any such steps.

Employees who are self-isolating or shielding or who have childcare or other caring responsibilities may also need to be considered differently.

Are redundancies proposed?

If redundancies are being contemplated, consider how you can time this with the Furloughed leave scheme. The scheme is currently due to end on 30 June 2020 and whilst many businesses are hoping the scheme will be extended, there has been no confirmation of this as of yet.  If you are planning on making redundancies, there may be collective consultation duties to comply with (depending upon the number at risk). We recommend taking full advice from our team as to the steps that need to be taken to ensure you comply with your consultation obligations and the requirement to follow a fair redundancy procedure.

Changing terms?

If you are proposing to ask employees to change their terms and conditions of employment in an attempt to avoid redundancies e.g. a pay decrease, again full advice should be taken to minimise the risk of claims being pursued. Many businesses are also considering whether to introduce more flexible ways of working with changes in working hours being proposed. We are to circulate further updates on this subject and redundancies in due course.

If you have any questions in relation to this article, or any other employment law issue, please contact our Employment Team, who will be very happy to help you.