September 8, 2020
Phil Cookson, a partner at leading law firm Roythornes, discusses solutions to some of the common challenges that businesses are now facing as workers return from furlough or head into the office for the first time since early 2020.
As with all areas of life, coronavirus has raised many new and novel issues for employers and employees – many of which employment lawyers get to witness and help solve.
The dominant area of questioning is now unsurprisingly around redundancies – both from employers looking to make their workforce as lean as possible, or from employees asking questions and appealing decisions. This is now back into familiar employment law territory following the surge of furlough enquiries during a time which, for all involved, meant adapting and learning as things developed daily.
But – what does furlough look like now?
Questions from employers specifically in relation to the Coronavirus Job Retention Scheme (“furlough scheme”) have certainly slowed now that a general understanding of the furlough scheme has bedded in. When queries are raised, they are often about how furlough impacts notice periods and accrued holiday, particularly in relation to a planned redundancy.
The furlough scheme timeline is a drop to 70 per cent government support from 1 September 2020, with a further reduction to 60 per cent in October with employers needing to continue to top this amount up to 80 per cent.
We are all waiting for further guidance on the job retention bonus scheme (which is due in the autumn), but my experience is that not many employers are seriously considering the potential of a £1,000 bonus per retained staff member when costs, including salary, will far outweigh the benefit of the bonus. For me, this scheme is mainly gloss from the government following the generosity of the furlough scheme.
I have been asked a few times whether furlough will be extended for specific sectors such as entertainment venues, theatres, and night clubs which are still unable to open. The answer is no and, realistically, I think this sector needs to start planning for a world where they will have to work differently until there is any sort of vaccine available.
There is also no current extension of the furlough scheme in the case of local lockdowns. I do, however, think this would be a sensible thing for the government to consider avoiding an increased risk of people going to work because they cannot afford not to.
The government has also recently announced the introduction of a self-isolation payment of up to £182 (£13 per day for up to 14 days) for people on low incomes who need to self-isolate and are unable to work from home, in particular geographical areas with high incidence rates of Covid-19. Sadly, that is not going to impact on middle- or higher-income workers.
Can people be on furlough leave when fulfilling their notice period?
At the start of the furlough scheme there were many questions around notice pay and redundancy. Could employers give staff notice but keep them on furlough? The government clarified the answer to this as yes – but whether it is 80 per cent or 100 per cent notice pay depends on the contract in place.
Currently, this is the only way that furlough impacts normal redundancy procedures. Otherwise, it is the usual process of proving that there is a reduced need for the role, identifying the selection criteria, completing a consultation, and making sure everything is documented.
I am continuing to warn employers about the increased likelihood of redundancy challenges at the moment – mainly due to the fact that those who are still on furlough leave are very likely to be the ones not brought back to a business. Employers need to be careful with how this is handled from a process point of view – a process needs to be in place to give the employee a fair chance to come back to work, with the employer demonstrating that the staff member hasn’t been put at a disadvantage by being furloughed. For example, for a sales representative, this might mean when looking at past achievement having a cut off period pre-furlough as it hasn’t been possible for them to hit their original targets.
What is the first thing employers should do to prepare for employees returning to an office environment?
I’ve had plenty of calls from employers worried about how they can reassure staff who haven’t been in the office for weeks or months to now come in and be assured that it is safe to do so. Now that the government has given the green light for people to get back to work, this is going to be an even more pressing area of advice. Look to those businesses that have continued to operate safely throughout lockdown and take lessons from them. There is government guidance on how to make operations Covid secure, and employers simply need to demonstrate that this has been followed.
It should be a priority for all businesses to have their own secure and well-thought out process in place. Appoint someone as a chief Covid officer; someone who is charged with putting a plan together of getting people back to work. This plan needs to include a robust risk assessment of the workplace, consultation with the workforce, and assurance that the safety measure being implemented align with government guidance.
This plan needs to be approved by the senior team and they then need to learn it and live by it. Fundamentally, the senior team must ‘play by the rules’ and set an example. We know from the construction sector that if a site manager goes out without his hard hat, for example, it sends the wrong message and bad habits can quickly form –the same principle can be applied here.
The plan needs to be reviewed regularly as things can change quickly. New lessons need to be added, and the things that work well need to be recognised and built upon. I would recommend setting up a dedicated email address for staff to send their feedback and make suggestions as and when needed.
Once this is in place, I would urge businesses to work hard at trying to understand their workforce. This process has demonstrated to me that there are always more people than you realise with underlying health conditions or that are acting as carers, for example. Their approach to Covid security will of course be different to those at a lower risk and so there is a balance that needs to be struck between both parties.
What can you do if someone doesn’t want to or can’t return to work because of a vulnerable person at home?
There needs to be a degree of compassion demonstrated by the employer but, equally, a business has a need for individuals to work. That means that, if the reality is that the employee isn’t as effective working from home as they would be from the office, then the employer has a right to insist they come into a workplace that adheres to government guidelines.
The law remains that an employee has no right to insist they must work from home.
Government guidance purely requires there to be demonstratable steps taken to make a Covid safe workplace with no mention of any exceptions to that rule. There is, of course, still the option of the employee taking emergency dependents leave with no pay, which is what standard employment law rules would recommend.
Thankfully, most businesses now have around six months’ worth of evidence to know how effective staff are at home working. This presents an opportunity for a clear and honest conversation between the employer and employee to find a suitable resolution.
Equally, in terms of flexible working, the answer is that the agreement must work for the business after the request has been given due consideration. I am seeing an increasing number of cases of employees who are unhappy after the furlough or lockdown process, and are looking for reasons – such as a denied request to flexible working – to bring a complaint. Therefore, employers just need to be alert to any underlying motives.
As in normal circumstances, employers should document all discussions and try to maintain consistency with any requests.
Now is a great time to dig out the policy book and check whether there is a flexible working policy included and if it is fit for purpose right now. Most policies will allow one request to change the working agreement each year. If this is refused, then the employee must wait another 12 months, or if it is accepted, begin the new arrangement on a permanent basis. Therefore, businesses might want to revise this standard policy so that a request can be made, say, twice a year or be agreed as a temporary change only as things are still changing rapidly. Remember that most policies are not contractual and so they can be changed as needed.
I would recommend trying to avoid any conflict by implementing a staff survey as soon as possible to discover a team’s working preferences. If a business can work with everyone’s first preference, then I don’t see any reason why they wouldn’t want to do that. A good employer will at least ask the staff the question and consider the result.
What happens if an employee catches Covid and there is a related fatality?
First and foremost, employment liability insurance exists and will apply for any claims as it normally would. However, I would expect insurers to ask the employee to prove that the virus was contracted in the workplace and go from there. To be frank, I suspect that the employee is going to have a difficult time proving that they did not pick up the virus elsewhere.
How can employers discipline at a distance?
Again, this is a case of following the normal process of investigation, documenting, and reporting. Employers need to look carefully at why productivity has dropped without making assumptions.
What do employers need to do if the schools close again in the future?
I strongly believe that the government will continue to do whatever it can to keep the schools open as it allows parents to go back to work. Employees can request the use of unpaid emergency dependants leave if short term notice is needed to arrange additional child-care. With higher levels of annual leave also left untaken, this might be a good option for the employee if it also works for the employer. It’s important to state that the onus is on the parents to solve this problem and not the business.
How can an employer bring together furloughed and non-furloughed staff?
Employers are now facing a unique cultural challenge of having to bring people back from furlough to work alongside those who have stayed active throughout lockdown.
It seems that in some cases, workplaces are seeing two distinct camps – with those on furlough leave seen as having had a paid holiday, while those who remained having worked harder than ever to maintain a functioning business. The result is the potential for friction on both sides.
For managers, it is really a case of trying to explain the realities to both camps. For many on furlough leave, it has been an anxiety-ridden time with mental health suffering as a result of being away from work and colleagues. For those in work, it has been both physically and mentally exhausting.
As well as encouraging an open dialogue, it’s worthwhile going back to what worked during the height of lockdown – whether that’s increased internal communications or the virtual social activities that seemed to become almost the norm for many businesses.