The new normal: Employment law considerations for the return to work

Return to Work

What do I need to tell employees about the end of furlough leave?

Government guidance does not specify any particular mechanics to bring furlough to an end. Depending on any notification arrangements set out in your furlough letter, you should give as much notice as reasonably possible of an intention to bring furlough to an end.  You should confirm in writing the date on which the employee is expected to resume duties, confirming that they shall be permitted to work only from that date, and will revert to their original terms or such other terms as you have agreed with them.  It would be useful to get them to acknowledge this in writing in return.

The Government’s furlough scheme is due to end on 30 June, although the Government may extend it, at least in some sectors.

What options do we have if we need staff to work, but are not yet ready to get back to full workforce capacity?

Many employers who have furloughed staff will be in a position where they are ready to re-open the workplace and to start ramping up activity but, due to financial constraints and/or operational circumstances, cannot yet have all staff working at full capacity.  Possible options in such circumstances include:

• Operate furlough rotation (bearing in mind the minimum 3 week furlough period required under the Coronavirus Job Retention Scheme (“CJRS”)), allowing for a handover period between employees/teams to enable continuity of work but with a reduced workforce.
• Take employees off furlough and place them on reduced pay/hours, with both increasing as work picks up.
• Temporarily increase hours for working employees to provide cover (in part) for furloughed and sick employees. Increasing their pay or offering an overtime incentive to such employees may encourage their agreement to this.
• Where both work and finances are particularly uncertain, consider seeking agreement to change employment contracts to zero hours contracts. Employees could be asked to work at their hourly rate as and when work comes in, although they do not necessarily have to agree and they can work for other businesses. This may be more beneficial than a resource on furlough who cannot be used at all.  Depending on the circumstances of the business, this may also be a good alternative to compulsory redundancies.

Given the employer’s duty of care, and the necessary relationship of trust and confidence that is implied into all contracts of employment, it would be wise to take into account an individual’s personal circumstances when considering which employees are first brought back into the workforce. Employers should also bear in mind discrimination issues which may arise as part of the selection process.

Of course, what may work for one business and its workforce does not necessarily work for another.  We imagine that there will be a number of combinations and flexibility required in staffing arrangements over the next few months.

Unless employees have a lay off or short term working clause in their employment contract enabling the company to reduce hours/pay, any contractual changes will need to be agreed with the employee.  This may be a hard sell for some, particularly those employees who have been in receipt of more money when on furlough than would be given on reduced hours. Consultation with employees in good time about any proposed changes – why, how and especially for how long – will be key.

And if an employee refuses to accept the change?  There is always the option to dismiss and offer to re-engage on the new terms. If this involves 20+ employees, please seek advice as you may fall under the collective consultation regime. Whilst there may be some risk of unfair dismissal claims in this approach, employees may think twice about trading a temporary reduction in hours/pay for no job at all.

Can we offer incentives to those who return to work?

Employers will want to avoid causing tension between employees who continue to work/return to the workplace and receive no extra compensation compared to those who continue not to work. One solution employers might be tempted by is offering incentives, such as increased bonuses or holiday allowances.

If you are considering increasing incentives, you should be wary of potential discrimination issues in offering this to certain employees to the exclusion of other groups.  For example, offering incentives for younger employees to return to work first risks age discrimination claims from older employees.  Offering incentives more generally to resume normal working in the workplace could indirectly discriminate against certain groups such as those with childcare responsibilities (who are historically more likely to be female) or against those with disabilities.  Any such practice would need to be justified in accordance with the Equality Act 2010.

What if redundancies are necessary?

Despite these unusual times, usual employment law rules apply with regards the fairness of both the redundancy decision and procedure.

Where employees have more than 2 years’ continuous service, employers should be able to demonstrate that they have tried to mitigate the effects of compulsory redundancies by considering alternatives – should you ask for voluntary redundancies first? Could some employees be encouraged to work reduced hours?  Can furlough be utilised?

The CJRS guidance confirms that furloughed employees can be made redundant.  Nevertheless, for so long as the CJRS runs, there is the potential that furlough could be seen as an alternative to redundancy, thereby rendering the redundancy unfair. This may not be relevant, however, for a genuine redundancy situation which is expected continue beyond any temporary hiatus in operations.

Employers should also ensure their selection pool and selection criteria for redundancy are fair and based, so far as possible, on objective criteria.  Furlough should not be seen as the precursor to redundancy selection, particularly as there may be a variety of reasons why employees were put on furlough.  The selection process for furlough may not have been as rigorous as is necessary where dismissal is a consequence.  There will also be a risk that you would have followed an unfair process by giving priority in selection criteria to those employees who have stayed working, or not stayed working.

Collective consultation will be necessary if proposing to dismiss 20 or more employees at one ‘establishment’ within a 90 day period.  The regime requires a consultation period, generally with elected representatives.  30 days (if there are 20-99 redundancies proposed) and 45 days (for 100+ potential redundancies) must pass before the first dismissal takes place, although the actual consultation itself need not be for that long. There can be significant financial penalties for non-compliance so it is worth seeking advice where you are proposing to dismiss 20+ employees.

Can employers require staff to use up holiday entitlement?

In March the Government announced that the 4-week statutory annual leave entitlement can be carried over into the next 2 years where it is not “reasonably practicable” for the worker to take some or all of their leave because of coronavirus.  This is likely to include where the worker is not permitted by the employer to take annual leave or has been sick or in self-isolation.

Employers are, however, more likely to want employees to take accrued holiday sooner rather than later this year, for fear they may find themselves short-staffed towards the end of the year when travel restrictions ease (hopefully) and when operations ramp up (hopefully).

Employers can require employees to use their holiday entitlement on certain days, provided they give notice twice as long as the holiday period (unless the employment contract states differently). This is provided the employer has ‘good reason’ for doing so – an argument could be made that preventing staff shortages is ‘good reason’ enough.  It would not be reasonable, however, for an employer to require employees to take all of their entitlement so none can be taken later this year. We suggest that the number of days that the employee is required to take should be approximately proportionate to the rate at which they accrue holiday.

What happens with holiday where staff move from full-time to part-time?

For workers who change their contract from full-time to part-time work part way through a holiday year, workers should not suffer a reduction in annual leave that has been accrued but untaken while working full-time. The accrued days should still be paid at the full time rate. However, the Working Time Regulations are contradictory, and stipulate holiday pay should be calculated by reference to the workers’ contract at the time leave is taken, rather than the time that the holiday was accrued.

It is recommended that annual leave accrued while working full-time be paid at the higher rate to mitigate any risk of a claim.  Or the employee be allowed to take their accrued full time holiday entitlement based on their part-time hours, which may give them a lot of time off. Alternatively, employers may want to ensure that accrued untaken leave is taken before the switch to part-time working is made.

Return to the Workplace

What health and safety issues are there to consider?

Employers have a duty of care to their employees in relation to health and safety and a duty to provide a safe system of work.  Employers must take care to review and assess risks. Some foresee the rise of health and safety claims in the employment tribunal off the back of this pandemic, be it for lack of PPE or working in what an employee believes to be unsafe conditions.  The following considerations will therefore be of particular importance when returning to the workplace:

Who should return to the workplace first?

There may be staff who have been unable to work from home, so employers might consider their return to work a priority. It may be that some employees require access to equipment in the office more than others, or have been more socially isolated and would benefit from the interaction. Consider individual cases and, where appropriate, consult with your employees to establish who ought to return first.

Do you really need people in the office?

If home-working is effective, is it necessary to resume a full workforce in the office? It may be wise to continue with a policy that those who can work from home, continue to do so until lockdown restrictions are lifted further, particularly if a large number of your workforce could be at risk travelling by public transport or mixing in the workplace itself.

Consider a voluntary questionnaire for staff to inform you if they have underlying health conditions which means that they could be at greater risk in returning to work and therefore should stay at home.

Changing work patterns to continue social distancing

Dividing workforces into groups with no physical interaction between them and rotating shifts might be one way to maintain social distancing. Offices/work sites should consider keeping close track of entrants, avoiding overlapping shifts and reducing crowding at break times by staggering workers’ lunch hours. Logistics such as handling mail and other deliveries will have to be considered to minimise contact. Common areas may have to be rearranged to allow for social distancing.  Consider also staggering start and end times to allow staff to travel on public transport outside peak hours.

Staff with childcare issues

Many employees due to return to the office may have childcare issues where they might normally rely on grandparents or care providers and are currently unable to do so.  It may be reasonable for employers to continue to allow these employees to work from home (where possible) or remain on furlough, particularly where schools and nurseries are not operating as usual.

If homeworking is not practical, employees have a statutory right to take a ‘reasonable’ amount of unpaid time off to take necessary action where there is unexpected disruption to childcare. While ordinarily a ‘reasonable’ amount of time is considered to be a few days, it is likely the boundaries of ‘reasonable’ will be extended while the pandemic continues. Some employees may also want to make use of statutory parental leave (employees with at least one year’s qualifying service may take up to four weeks unpaid leave per child in any 12 month period.)  Employers will need to consider how to manage these gaps in the workforce.

Providing PPE

Based on current commentary, workers may be asked to wear masks and other COVID-19 related personal protective equipment when returning to work. As there will be large demand for these items, the onus may be on the employer to source PPE, which will likely prove difficult in the current climate. If PPE cannot be provided, and health and safety would be at risk as a result, employers should think about delaying a return to the workplace for some or all, and particularly for those who have or are living with people with underlying health conditions.

Hygiene and health

Employers should implement and communicate policies such as discontinuing the use of shared items, set clear policies for social distancing, establish disinfectant procedures, consider temperature testing and promote protocols such as hand-washing and mask/glove use, subject to Government guidance. The risk of not doing so could mean that employees are more likely to claim they have a genuine fear for their health and safety and therefore had grounds for refusing to attend the workplace.

Coming out of lockdown and returning to the workplace may also affect employee’s mental health.  Employers ought to be developing plans to mitigate anxieties workers may have and take care to protect their workforce’s mental health by keeping lines of communication open and offering support where needed.

Can we discipline staff who refuse to return to the workplace due to health concerns?

If an employee raises concerns about returning to work due to health and safety concerns about COVID-19, whether that concern be for themselves or for others they live with, where possible, it would be reasonable to consider allowing the employee to work remotely or take time off work as paid holiday or unpaid leave.

If employees are unreasonable in their refusal to attend work and are unable to work from home, disciplinary measures may be considered. Aim to be consistent in dealing with similar cases, but note employees’ individual circumstances. Fears concerning coronavirus may well be a justifiable reason to refuse to return to work, particularly if self-isolating with someone considered vulnerable. Disciplining workers who express such concerns may also have an effect on wider staff morale. Further, disciplining employees where they genuinely and reasonably believe themselves to be in imminent and serious danger, regardless of whether the employer agrees with that belief, might be unlawful detriment or give grounds for unfair dismissal.

We will be running a webinar on the ‘return to work’ employment law issues on 21st May (1230-1330). Please email Barbara Ashley (barbara.ashley@rbgls.co.uk) to register to your interest in attending the same.