A law firm which offers more

Call us: 0113 246 0622

Coronavirus - Considerations for employers & HR teams

Comments

The current situation in respect of coronavirus and the implications on businesses are changing constantly. We appreciate that the situation will impact employers to varying degrees, depending on sector, business and workforce profile.

This note provides a general summary of the key employment law and people issues which are currently arising as a consequence of this ongoing situation. We hope this assists you with your business planning.

This situation is ongoing, and we will of course continue to keep you updated on the position as it progresses.

Update note:   14th April 2020 

Since this blog was originally published on the 13th March we have produced more up to date advice and guidance.  Please do also read our latest pieces of content: 

Homeworking - Making it work for your business

Are you reorganising your workforce through settlement agreements?

Coronavirus Job Retention Scheme (CJRS) & Furlough - Top Tips and Guidance

 

LEGAL CONSIDERATIONS

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 today which confirm that;

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.    

Employment Status

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.

Employee issues

Refusal to come into work

If an employee is refusing to come into the office, employers are encouraged to speak to the employee in the first instance and try and understand their concerns. There may be easy steps that the employer can take to reassure the employee and address these concerns.

Whether an employee’s refusal to come to work is reasonable, will depend entirely on the circumstances. We’d advise that employers assess this on a case by case basis.

Misconduct issues

There will of course be employees who try and take advantage of the circumstances and employers may experience difficulties with employees who unreasonably refuse to attend work, who fraudulently claim to be absent due to sickness or who refuse to follow management instructions to not attend work or follow company policies.

Employers should investigate any concerns regarding this type of misconduct fully, and in accordance with their normal disciplinary policies. Knee-jerk disciplinary sanctions or suspensions are not advised and could present legal risks of unfair dismissal or constructive dismissal.

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.

Holidays

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.

Carrying over holiday

Most companies may be reaching the end of their holiday years and dealing with employees who cannot take their holiday entitlement prior to the end of the year due to sickness, or because their employer has asked them to cancel holidays for fear of infection or to provide cover.

Employees have a legal right to carry-over holiday if they have been unable to take holiday due to sickness absence or family friendly leave (maternity, paternity, adoption etc). Some employees may also have an additional contractual right to carry-over holiday in other circumstances. You should check your company’s contracts and policies to ensure your approach to carry-over is contractual.

In the absence of any right to carry over holiday in your contracts or policies, any additional right to carry-over holiday will be down to agreement between the employer and employee. In circumstances where the employer has required the employee to cancel or change their holiday plans at their request, it will likely to be good practice for the employer to allow employees to carry over this holiday. 

PRACTICAL CONSIDERATIONS

Travel

Events

Health and Safety

Communication with staff

Home working

Strategy & Business Continuity

Business continuity planning

Get in touch

We recognise that the current situation and uncertainty may present new challenges to some of our clients, whilst hopefully also presenting new opportunities for other clients.

The Clarion Employment Team are available to support you with any employment or HR issues your business faces as a consequence of coronavirus. The above note provides you with a general summary but we are of course able to provide tailored advice specific to your business and workforce.

We have also assisted some clients with preparing a formal company policy for circulating to staff on this topic, and we would be happy to help you with preparing a company policy.

We are able to assist you via phone (0113 246 0622) or email to limit the need for a face to face meetings. 

Please see below some links to blogs by our other teams on the wider business impact and commercial considerations of the virus;

Coronavirus - Advice for employers in the UK

Coronavirus - The threat to business contract fulfilment and large public gatherings

 

Disclaimer: Anything posted on this blog is for general information only and is not intended to provide legal advice on any general or specific matter. Please refer to our terms and conditions for further information. Please contact the author of the blog if you would like to discuss the issues raised.