Zoe Roberts, associate in Clarion’s employment team, takes a look at the current fast-changing situation regarding coronavirus and its implications on businesses... full blog here: http://bit.ly/33uwKIg
Reduction in Work & Lay-off
It is anticipated that the virus will have a wider impact on business and supply chains and may result in a downturn of work. It is also appearing likely that the Government will require certain businesses to close completely for a period.
The situation may, therefore, result in employers needing to introduce short time working or lay off staff, in the short-term. Longer term, there may be a need to restructure the workforce, or reduce headcount through a redundancy programme.
Lay-off or short-term working are only lawful if provided for in the contact of employment. We’d encourage employers to check this position within their contracts.
If there is no contractual right within the contract, then employers will need to consider whether a change in the working pattern can be achieved through consultation and agreement with the workforce.
If that is not possible, but the business need is critical, then employers may need to consider a unilateral imposition of short-time working or lay-off. There will be legal and employee relations risks attached to this approach, including risks of constructive dismissal or breach of contract claims. However, given the acute and unique circumstances that employers currently find themselves in it, this may be the only available option. It may be that some of the potential risks can be minimised with proper communication and consultation and reasonable decision making.
Larger employers may also wish to work with their body of employee representatives (either union representatives from a recognised union, where applicable, or internal employee forums/works councils) or consider creating this type of employee body if they don’t currently have one in place. Having an open dialogue with these employee bodies can be a helpful way for large employers to easily maintain communication with employees and support employees during these uncertain times. It may also assist these large employers to have an employee body in place in case formal collective consultation is required in the near future - whether around contractual variations or redundancies.
We’d advise employers who are considering any of the above options in relation to laying off employees or reducing working hours or headcount, to take legal advice.
Sickness Absence & Pay
The current Government guidance is that employees with any of the key symptoms of coronavirus (e.g continuous cough or high temperature) are advised to self-isolate for 7 days.
The Government have issued new regulations which confirm that;
· statutory sick pay (SSP) will also payable to employees who are self-isolating in accordance with this guidance; and
· SSP will be payable from the first day of absence (rather than 4th day) in coronavirus or self-isolation circumstances.
With this in mind, employees who are absent due to the virus or self-isolation in accordance with this guidance, will be entitled to SSP.
They may also be entitled to enhanced company sick pay under their employment contract or company policies.
Most company sick pay policies require employees to provide sick notes from their GP to certify their absence. Employees who are self-isolating may find it difficult to obtain a sick note, so it may be reasonable for employers to consider making exceptions to their policies in these cases.
Self-employed consultants and some workers will not be eligible for sick pay. Employers should therefore be mindful that in circumstances where employment status is not clear cut, workers or self-employed individuals may seek to argue that they are employed to benefit from sick pay provisions, particularly where the Company operates an enhanced company sick pay scheme.
Leave due to childcare and in the event of school closures
Employees are legally entitled to dependant leave to deal with emergency needs of dependants and children.
The statutory right entitles employees to ‘reasonable’ unpaid time off to deal with emergencies.
There is no legal right to paid dependant leave, however you should check your company policy on dependant leave and see if your contracts or policies offer paid leave in these circumstances.
What is ‘reasonable’ leave in the circumstances will be fact specific but arguably this is only likely to be sufficient time to deal with the emergency and make alternative childcare arrangements. Arguably this will only be the case for the first few days of absence.
As well as dependants leave, employees with children may also be entitled to parental leave if they meet the legal eligibility requirements. This is statutory leave which is unpaid and can be for a maximum of 18 weeks. Your company policies or contracts may entitle the employee to paid parental leave.
In the alternative, employees may wish to utilise holiday or take unpaid leave to deal with childcare arrangements, or utilise home-working where possible. Employees may also submit flexible working requests.
Where temporary flexible or home-working arrangements are agreed, we’d advise that you make it clear to employees that such arrangements are temporary in the circumstances, and that these arrangements are documented in writing and regularly reviewed.
Discrimination & Harassment
Employers should be mindful of vulnerable employees such as those with long-term health conditions, compromised immune systems or pregnant employees. It’s likely that vulnerable employees will be more anxious about the risk of catching an infection, and are likely to require more reassurance and consideration.
Employers may wish to ask employees to let them know if they feel particularly vulnerable or are concerned, and the employer can then assess this on a case-by-case basis.
Employers are under a legal duty to make reasonable adjustments to disabled employees. Employers should therefore consider whether any additional adjustments may need to be made in the current circumstances to support the employee at work, and whether any risk assessments need to be conducted for vulnerable employees.
A failure to make reasonable adjustments by an employer, or placing vulnerable employees in an environment that puts them at a disadvantage (such as an increased risk of infection), could give rise to a discrimination claim against the employer.
It may be necessary for employers to treat employees differently, based on their susceptibility and personal circumstances. The current guidance states that individuals over the age of 70 are more at risk from the virus than younger individuals.
Employers may therefore be nervous about treating employees differently based on their age, as this could give rise to age discrimination complaints. For example, younger employees may complain that the business is treating older employees more favourably in these circumstances. Alternatively, older employees may complain that by being asked to self-isolate or work from home, they are being treated less favourably than younger employees on the basis of their age. However, any differences in treatment are likely to be justified if it is a proportionate means by the business to protect the health and safety of employees and the business is following Government guidance.
In addition, employers should also be mindful of treating employees of different races and nationalities less favourably, or putting them at a disadvantage, as this might amount to race discrimination. An example of this could be an employer singling out employees of Chinese origin to work from home, because they assume they may be more likely to have or contract the virus.
In addition, employers should be mindful about making comments to employees about their nationality, as this may amount to be harassment. For example, making a comment to an Italian employee about the virus which may cause offence.
Employers should take reasonable steps to prevent any discrimination or harassment, and ensure that any inappropriate or potentially discriminatory behaviour is tackled. Reminding managers and employees of their obligations here, by circulating equality and diversity policies and providing refresher training on equality and diversity, is likely to be helpful.
Requiring employees to take, cancel or change holidays
Employees have a legal entitlement to 5.6 weeks holiday each year (or pro-rata equivalent if part-time). Employees may also have contractual entitlements to additional holiday in their employment contract or company policies.
Employers can specify when employees take holidays, or require them not to take holidays at certain times, providing that employees still receive their holiday entitlement throughout the year. Clearly when refusing holidays or asking employees to change or cancel holidays, employers should take care in how this is communicated and explained to the employees.
· Employers should advise employees to follow the Government’s guidance not to undertake personal travel to high-risk areas and avoid non-essential business travel to high-risk areas.
· Employers should consider whether it is appropriate to cancel large meetings or conferences and whether these can be replaced with virtual solutions or need to be postponed.
Health and Safety
· Employers are advised to follow the Government health guidelines and ensure there is good hygiene in the workplace and review practices where necessary.
· Employers may wish to regularly clean or disinfect common touchpoints around the workplace such as doors, door handles, photocopiers, phones used by multiple people, taps, toilets, kettles and kitchen areas. Providing tissues and antibacterial wipes around the workplace should also encourage good hygiene practice. Deep cleaning would need to take place during any such office closure following a diagnosis.
· Displaying signage around the workplace may help to reinforce hygiene messaging, and reassure staff on the Company’s approach to tackling infection.
Communication with staff
· We’d encourage companies to be communicating with their staff regularly, as the situation progresses.
· It may be helpful to communicate and reiterate relevant company policies, such as those on sickness absence, home-working, family leave or holiday requests.
· Employers should recognise that the situation may become very worrying for employees and try to be sensitive in dealing with them, for example where staff or their family members are advised to self-isolate. Employers should be particularly mindful of employees who suffering from anxiety or mental health issues, who may find that the uncertainty of the situation exacerbates their existing conditions.
· Communication should be measured and clear to avoid causing alarm to staff.
· Employers may wish to encourage home working straight away and should deal with requests for home-working from employees reasonably.
· Employers should be prepared to have to adapt to widespread home working as we move towards this being enforced by Government. They should ensure workers have access to the equipment they need to be able to work effectively at home, including laptops.
· Employers should ensure IT security, data protection and related policies are up to date and circulated to staff to address the increased risks associated with increased home working.
· Employers should trial IT systems for remote working in advance of any office closure and consider providing relevant training to employees who may not be used to home working.
Strategy & Business Continuity
· Employers should keep themselves informed about any developments around coronavirus. This could be achieved by setting up a team or designating a person who will be responsible for ensuring that updated Government and NHS guidance is clearly communicated to employees.
· Employers should keep themselves informed about any new or updated guidance being published by regulatory bodies in their sector, for example the Care Quality Commission’s guidance for care home businesses.
· Up-to-date contact details on file for each employee are likely to be needed, as well as having an emergency communication system in place.
· Employers may want to explore creative options for reducing the risk of the workforce being affected by the virus, for example splitting staff into groups and keeping them physically segregated for a period in an attempt to avoid a full workforce being affected, asking some employees to work from home, some from the main office, and some from other designated locations, or implementing flexible working or shift patterns to allow employees to avoid crowded public transport where the risk of contagion may be higher.
Business continuity planning
· Employers should try to plan ahead and anticipate new challenges, as far as possible. Full office closure may be become advisable if this becomes common practice with other businesses. This may be required if an employee is diagnosed with coronavirus and depending on the circumstances, other employees may be advised to self-isolate at short notice. Having a plan in place and being as prepared as possible will assist with business continuity.
· Large businesses should consider and take account of the time it takes to formulate, disseminate, and apply new policies.
"Wed advise employers who are considering any of the above options in relation to laying off employees or reducing working hours or headcount, to take legal advice."
Zoe Roberts, associate at Clarion