Unprecedented times require creative solutions by employers

Apr 30, 2020

Helen Smith, of employment advice specialist Crescita HR-OD, assesses the new legislation and its implications for employer and employee in the wake of coronavirus.

Helen Smith

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2020 is panning out to be a distinctly unique year. The UK and the world are gripped in the midst of the Covid-19 pandemic and we are all facing unprecedented challenges in our work and personal lives.  All but essential businesses have been instructed to close by thegovernment and everyone who is able to, has been told that they must work from home.  

On top of this, all schools and childcare facilities have been closed down to all but the children of identified key workers and those children who are vulnerable in society. Parents are having to learn to be teachers.

The constantly shifting position means that it is difficult to provide advice and guidance in an article such as this because the chances are that the position will change at any time.  

What we can do, however, is to outline some key points and signpost to other sources of help and advice where applicable.

Job Retention Scheme

This is possibly the most complex of all areas so let’s get this out the way first. The basis of this scheme is that employees will be furloughed and the government will pay 80% of their salary up to a cap of £2,500 per month.

By offering employers this option, it is hoped that many will be able to retain staff throughout the period of lockdown and once business is resumed, whenever that might be.

Employees who are furloughed are not permitted to work for their employer who has furloughed them but they could seek or continue in employment elsewhere as a means to supplement their income.

For example, an employee who has been furloughed from a public house or restaurant due to the closure of all leisure sites could obtain employment in an essential retail store while they are furloughed and without having their pay from their main employer stopped.

Where employers have policies around secondary employment, they would be advised to relax these as appropriate. It would be advisable to permit a secondary job which is entirely unrelated to their primary employment but equally it would be acceptable to enforce the policy where an employee was proposing to work for an employer where there is a conflict of interest between their primary and secondary role.

When can employees be furloughed?

If you have within your contract of employment a clause which allows you to lay staff off or put them on short-time working, that provides employers with a straightforward process as there contract effectively allows staff to be furloughed.

However, where no such clause exists you would have to have the agreement of the employees before you could furlough them.  

The reality though; given the choice between being furloughed and receiving 80% of their pay up to the capped limit versus a probable redundancy scenario, most employees are likely to agree to the former.

Do employers have to top up employees’ pay?  

Employers can choose to agree to top up employees pay with the additional 20% of their salary but are under no obligation to do so.

The HM Revenue & Customs portal for employers to register for the job retention scheme opened on April 20 and employees can backdate the period of furlough to March 1 as applicable.

However, in order for employees to qualify for the scheme, they should have been registered on your payroll by March 19 2020. It is therefore not possible to have someone commence employment on April 1 2020 and be placed on to furlough.  

The scheme was originally due to run until May 31 but this has now been extended to June 30 and will undoubtedly be subject to further review as the situation with the pandemic continues to evolve.

Holiday

Numerous pieces of emergency legislation have been passed through Parliament in response to the COVID-19 pandemic and one such piece of legislation is an update to the Working Time Regulations.  

This update recognises that the current crisis and lockdown scenario will impact on an individual’s ability to take holiday. Employers who compel individuals to take their holiday entitlement during the lockdown period, when they are prevented from going anywhere, will not be viewed in good light!

Currently workers are entitled to 28 days’ holiday (including bank holidays), pro-rated for those working part-time each year. Under normal circumstances, leave cannot be carried over between leave years, meaning that workers will lose holiday entitlement if they have not taken this within the applicable leave year.

In recognition of this, the Working Time Regulations have been amended to allow individuals to carry-over up to four weeks of unused annual leave into the next two years and easing the pressure on employers to ensure that all workers have taken their statutory entitlement in any one year.

Working from Home

The current crisis has resulted in more people than ever working from home. Ordinarily there are a number of health and safety considerations to be made when allowing individuals to work from home to ensure that the employer’s duty of care for the health & safety of the employee is maintained while they are away from the workplace. 

These cannot be wholly bypassed during the lockdown period, but there is some scope for employers to implement alternative measures to satisfy themselves that the employee is able to work safely at home.  

One such measure is to use the Health & Safety Executive’s Workstation Checklist, to provide workers with advice on completing their own basic assessment at home.

Keeping in touch with the employee while they are working at home is key. This will ensure that they have a point of contact if they need help and assistance and will enable the employer to recognise if the employee is showing any signs of stress or sense of isolation.  

One positive about the current situation is that the vast majority of people have technology such as smart phones and tablets and numerous on-line meeting platforms have emerged which makes contact and communication very easy during the lockdown.

You should ensure that you have up to date contact details for employees working from home and employees should make themselves available to have remote meetings or telephone conversations with you during their time away from the workplace.

On a practical level, you should ensure that the employee has work that they can undertake away from the workplace – not all roles will lend themselves to this option. Where an employee has children who are at home due to schools being closed, this will need to be balanced with the employee’s ability to complete their work.  

This should not preclude them from working at home but employers may need to agree flexible working arrangements that allow individuals to perhaps do their work on an evening rather than during the day.

Self-Isolation and Shielding

At this time, there are a number of people who have either themselves been identified as being “at risk” or “vulnerable” or a member of their household has been identified as such. For those people, it is necessary to observe strict social distancing measures including self-isolation and/or shielding.  

Underlying health conditions which place people at greater risk include but not restricted to asthma, diabetes, Parkinson’s, HIV/AIDS, COPD, MS, ME, cancer and those who are on immunosuppressant medication. Women who are pregnant are also classified as being “at risk”.

Conditions which may result in individuals being classified as “extremely vulnerable” include but are not restricted to organ transplants, active chemotherapy, cystic fibrosis, lung cancer and blood or bone marrow cancer.

Individuals within these categories should exercise strict self-isolating and shielding measures, both of which require those individuals and members of their household to remain at home at all times. These are households who have been identified as such and who are being assigned volunteers to help with running errands and collecting medication and who can be prioritised by supermarkets to deliver shopping for them.  

Some individuals are also choosing to move out of their family home for the duration to enable them to continue being able to work. This is not an option for everyone and, save for exceptional circumstances, is not something which employers should require or expect individuals to do.

Employers are asked to look at what reasonable adjustments can be made to support these individuals. This might include working from home and in some instances furloughing those employees so that they can remain at work and continue to get paid.

There are also those who do not have underlying health conditions and who are simply ‘scared’ about leaving their homes but who work as key workers and/or in essential settings. Employers are encouraged to be empathetic and to try to work with them to find supportive solutions. This may include looking at home-working, reassigning their duties so that they can work in areas which are more comfortable for them and possibly giving them unpaid authorised leave.  

There will, though, be some instances where all reasonable and supportive measures have been taken with employees but where it becomes necessary to take disciplinary action.

There are so many issues arising out of the current crisis and new and updated guidance is being released every day. This article should in no way be seen to be a comprehensive guide and is just a snapshot covering a few key areas.  

These are unprecedented times and within the parameters of employment legislation and reasonableness, creative solutions may have to be found in order to deal with scenarios as they arise.

Stay safe and well.

Helen Smith is director of employment advice specialist Crescita HR-OD.

www.crescitahr-od.co.uk o@crescitahr-od.co.uk

Tel: 01234 301690 / 07947 01289

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