At the end of June the UK government's job retention (furlough) scheme is scheduled to end and the government has announced that it will shortly publish its roadmap out of the lockdown. While for the time being most of us remain at home, employers need at least to start thinking about how they will handle some of the very tricky issues they are likely to face when their offices re-open. Normal working patterns could be fundamentally altered by the lockdown, as some employees express a preference to continue working from home, or are simply too scared to return to the office when COVID-19 is still a lurking danger. Employers need to consider carefully how they will protect their workforce from the risk of contracting the virus in an office environment, whilst others, suffering from a severe drop in business volumes, may find they need either fewer employees, or employees working on fundamentally changed terms.
HEALTH AND SAFETY ISSUES
Even with the current lockdown, the law permits employees to attend their workplace if their work cannot be undertaken remotely. However, as the lockdown lifts, an increasing number of employers will require their employees to come into work. A return to work, however, cannot be "business as usual" because employers have a duty to take steps that are reasonably necessary to safeguard the health and safety of their workers.
Temperature tests and heath questionnaires
Already many companies are consulting us about their ability to install technology to take the temperature of employees coming to work and to make entry to the workplace conditional on satisfactory answers given to basic medical questionnaires, designed to ascertain if the employee may be displaying coronavirus symptoms. These are sensible precautions that can be justified by the employer's duty to protect health and safety, and could be extended to other visitors attending the workplace. However, merely having a good reason to screen employees is not enough: the employer will end up capturing and processing their employees' health data and therefore the employer should carry out a data privacy impact assessment to demonstrate to any regulator that its approach is proportionate. In addition, the employer should have appropriate privacy notices in place at the point of entry. That way, before the screening starts, employees understand, among other matters, the purpose of the screening, what will happen to their health data, the legal basis for processing the data, how the data is to be protected and how long it will be retained. These notices should comply with all the strictures of the EU General Data Protection Regulation and the UK Data Protection Act 2018.
Risk assessments and other health and safety measures
Once employees actually access the office, further health and safety measures are likely to be needed for the foreseeable future. Employers should be undertaking risk assessments to identify and reduce the risks of their employees contracting coronavirus at work. They will probably need to plan for: social distancing measures in the workplace, which may require them to roster employees very differently from in the past and possibly to stagger the return to work over a longer period; the regular disinfecting of tables, worktops, keyboards and telephones; the display of posters advising staff to wash their hands regularly; and the provision of sufficient sanitisers and hand-washing facilities. We wait to hear whether face masks and other forms of PPE (personal protective equipment) equipment will be recommended for the majority of workplaces and whether there will be any kind of mandatory testing introduced.
Employers should also determine whether they can reduce the need for face-to-face meetings, using technologies such as Zoom, webinars and video conferencing. Employers should also be prepared with a well-communicated action plan as to what to do if an employee at work develops symptoms of COVID-19. Remember that any such action plan needs both to safeguard the health and safety of the workforce at large, whilst having reasonable regard to the employee's privacy.
At the end of the day, employers who ignore guidance issued by the government and by organisations such as Public Health England and the Health and Safety Executive, do so at their peril. Those employers are the ones most likely to end up facing legal claims for breach of their health and safety duties.
The right to request flexible working
All employees who have at least 26 weeks' service already have the right to request flexible working. The employer is under a duty to handle requests in a reasonable manner, which normally involves meeting with the employee, discussing the request and deciding whether it can be accommodated. An appeal process is strongly recommended. Most prudent employers will have a policy in place to ensure firstly that the request is valid and then, that it is handled in accordance with the legal process and the permitted time-frames.
Can employers refuse a request?
Employers can refuse flexible working requests on one or more of eight grounds for refusal established by the relevant regulations. These include: the burden of additional costs, inability to organise work among existing staff, impact on quality or performance and detrimental effect on the employer's ability to meet customer demand.
Even if employers can reject a request on one or more of the permitted grounds, they also need to consider whether refusing the request, for example to work part-time, or compressed hours, could give rise to a claim of discrimination. This is most likely where the employee seeking a more flexible working pattern is disabled and argues that the new pattern is a reasonable adjustment, or is a female employee with childcare childcare responsibilities, looking to reduce her hours or to work part-time from home. A blanket ban on part-time working may amount to indirect sex discrimination because it disproportionately impacts women who make up the vast majority of the part-time labour market. The assessment of whether a refusal of a request actually amounts to discrimination is outside the scope of this advisory.
A new approach following the lockdown experience?
In the recent past, many employers have rejected flexible working requests on the grounds that the requested working pattern, particularly home working, will affect the quality of performance. However, if employers' experience with home working during the lockdown has been reasonably successful, it is likely to be more difficult going forward to refuse requests on the traditional grounds. In some cases, employers may be better off trying to reach a compromise with the employee and making a virtue out of being seen to be accommodating.
Most important, if the employer harbours doubts as to whether the requested work pattern will prove to be workable, but does not have sufficient evidence to reject it out of hand, the employer should consider agreeing to a trial of the working pattern for a limited period. This would be on the clear, written understanding that if the trial does not work out, the employee will revert to their original working arrangements.
Agreed conditions for working from home
As part of any trial of homeworking, employers should introduce working from home policies and agree to changes to the employment contracts of home workers in order to address issues likely to arise. These may include health and safety rules relating to the home office and a requirement for employees to complete ergonomic questionnaires; requirements to attend work for particular meetings or training which cannot be conducted virtually; changes to normal working hours; mandatory check-ins with the employee's line manager and a host of other matters. Merely agreeing to an employee's request to work from home without these precautionary measures is most unwise.
THE FEARFUL EMPLOYEE
The importance of good communication. Requests to work from home will not only be driven by convenience or a desire to spend more time with children, but they may also be spurred by a genuine fear on the employee's part of contracting COVID-19 and/or exposing vulnerable people at home to the disease. It will be important for employers to be able to address these fears sensitively and to communicate clearly to employees the measures in place at work to protect health and safety. Employees should meet with employees to discuss their fears, help them re-adjust to coming back to work and remind anxious employees of the availability of any employee assistance programs.
Vulnerable employees. If the employee is within the vulnerable or extremely vulnerable category, as defined by the government, employers should not be requiring those employees to come to work. Likewise, employees who have coronavirus symptoms, or share a home with someone who does, will need to self-isolate for 14 days.
Carers. The position where an employee is caring for someone who is vulnerable is less clear-cut. If home-working is feasible, employers should permit it in line with government guidance. If working from home is not possible, then as long as the employer has introduced prudent health and safety measures and complied with government guidance, it probably can require such employees to come to the workplace. Alternative options are available, however. For example:
- the employer could agree to furlough the employee whilst the government's job retention scheme remains in place. The employer could then apply for a government grant to cover 80% of the employee's wage cost, capped at £2,500 per month. (For an outline of the scheme see our March Advisory on " Coronavirusand Declining Work - What Options Are Open to UK Employers," although note that some of the detailed rules of the furlough scheme have recently changed). However, employers are not obliged to furlough staff just because the employee requests it;
- a qualifying employee could take up to 4 weeks' unpaid parental leave to care for a child - the leave may be paid if the employer's policy so provides;
- if the employee has dependents at home for whom they have caring responsibilities, they could take unpaid dependents' leave, albeit this will probably only cover the time needed to make alternative care arrangements. Employers should have policies in place on both parental and dependents' leave; and
- The employee may be able to take annual leave to enable them to spend additional time at home.
Employee too scared to attend work. What about the employee who is not ill, or vulnerable, or a carer, but is just scared to come to work? Here the employer will need to evaluate whether the employee is suffering from any kind of mental condition that might render them a disabled worker. If that is the case, the employer will have to consider reasonable adjustments that might be needed to accommodate the employee. These might, for example, include assistance with travel to work to avoid public transport, or allocating the employee new duties that could be performed from home.
In other cases, the employer can probably insist on the employee coming to work, provided it has suitable health and safety measures in place, unless some of the alternative options discussed above are feasible. If the employee refuses, then the employer would appear to have the option of simply stopping pay, as the employee is demonstrating that they not willing to carry out their duties. Alternatively, the employer could go further and implement disciplinary procedures, leading ultimately to dismissal. With all the current uncertainties about the pandemic, employers may be reluctant to go down the disciplinary route and ultimately face the aggravation of an employee seeking to argue that they have been unfairly dismissed for health and safety reasons.
CHANGING TERMS OF EMPLOYMENT
Many employers will sadly be facing a considerable drop in business volumes. They may have furloughed their staff, but when the government's job retention scheme ends, they may well find they cannot afford to keep them all on the payroll on their current terms of employment. That is likely to lead to some hard choices, usually between reducing hours and/or salaries on the one hand and making redundancies on the other.
Reducing hours and pay
However dire the business' financial circumstances, employers do not generally have the right to change employees' terms of employment unilaterally. Therefore, an employer wanting to reduce working hours, or to cut pay for the same hours, will need to negotiate the changes with the employees. This generally means that the employer should "propose" the desired changes, carefully explain the rationale and offer to consult with employees or employee representatives about introducing them. An employer who simply imposes contractual changes may find either that employees resign and claim constructive dismissal, or, perhaps more likely in the current market, remain in post and claim damages for breach of contract, or compensation for unlawful deductions from their pay.
What if our contracts contain a flexibility clause allowing us to make changes?
Occasionally employees' contracts may contain a flexibility clause covering the change the employer wants to make. In that case the employer is in a much stronger position to make the desired variation. However, such cases are relatively rare and if the clause is drafted in very general, all-encompassing terms, perhaps permitting the employer to make any variations it considers reasonable, the clause may well be considered too vague to be legally enforceable. That said, employees may be more amenable to changing terms if the alternative is redundancy in a market where there may be few job vacancies and they could be out of work for a considerable period of time.
What if some of our employees simply refuse to agree the changes?
Ultimately if the employees, or some of them, resist any form of accommodation, the employer may have the option of terminating the employees' employment and offering them re-employment on the changed terms. If the employer has a sound business reason for making the proposed change and has demonstrated a willingness to engage in consultations and listen to employee feedback, such dismissals may be regarded by an Employment Tribunal as fair. However, forcing through changes in this way is a tactic of last resort: the move will likely be unpopular and foster bad feelings. Further, bear in mind that if 20 or more employees at any one site are proposed for dismissal in this way within a period of 90 days or less, the collective redundancy regulations will be triggered. The employer will then be required to consult with employees' representatives for a mandatory period and to file an HR1 notice with the government before the terminations can be effected - see section below on Collective Redundancies.
Ultimately we envisage that as the government's furlough scheme ends, many employers may be forced to contemplate redundancies/reductions in force. Redundancy is a significant topic in its own right, but for more detail, please refer to our March Advisory on " Coronavirus and Declining Work - What Options Are Open to UK employers." Our UK employment team is available to assist employers plan for redundancies, can help draft the requisite paperwork and announcements, ensure employers provide the necessary information to staff, and assist with planning and implementing the consultation strategy. So for now, just a few tips to bear in mind:
- Announcements. Be very careful before announcing job cuts globally, or on a purely UK basis. In virtually all cases, employers should consult employees before carrying out dismissals. Announcements suggesting that redundancies have already been decided upon could well render your UK dismissals unfair.
- Consultation. Consultation with employees forms a critical part of any redundancy program. Employers need to vet the language in their communications with staff to ensure that redundancies do not appear to be a fait accompli. Employers should present their plans as "proposals" on which they are seeking employee feedback. Take care to avoid creating documents behind the scenes, such as organisational charts showing the organisation's final structure, which indicate that the outcome of the consultation process has been pre-determined. Such documents are not privileged and will be disclosable in any litigation. Employers should mark documents "provisional and subject to the outcome of consultations with employees."
- Unique redundancies or reducing the size of a team. It is critical to determine if the employee proposed for redundancy is in a unique role—the only employee doing that kind of work - or is part of a team doing broadly similar work. If the employee is genuinely unique, consultations can take place with that one employee. If the employee is part of a group, just picking on him/her because they are the weakest performer, is very likely to be unfair. Instead the employer should implement an objective selection process. Such a process will require the employer to develop proposed selection criteria and a scoring system and then consulting with all those in the team before any scoring is actually undertaken. The employer will also need to include individual one-on-one consultations with the lowest scorer(s). Only once that process is completed should employees be dismissed. If there is simply no time for that kind of procedure, we can advise on truncated processes. These are not risk-free, but may provide an acceptable compromise in the circumstances.
- Collective redundancies. Where the employer is proposing to dismiss 20 or more employees at any one establishment within a period of 90 days, "collective consultations" will be required. Where no union is recognised by the employer, consultation should be undertaken with specially-elected employee representatives. The election of the representatives must follow certain prescribed rules; mandatory information must be given to the union/representatives; and consultation is required to cover certain core matters. No dismissals should be carried out for 30 days to allow time for proper consultations. The 30-day period is extended to 45 days if 100 or more employees are proposed for redundancy. Therefore, employers wanting to make large numbers of employees redundant once the government's furlough scheme ends, need to be planning that process as soon as possible. Further, the fact that an employer has consulted with employee representatives for the requisite period, does not excuse the employer from conducting individual consultations before dismissals are carried out.
- HR1 notice. Employers must notify the government of any contemplated collective redundancies within the mandatory time limits. It is a criminal offence to fail to do so. Individual directors and managers can be and have been prosecuted for offences committed by their employer, if the offence was committed with their consent or connivance, or through their neglect.
The government seems to be planning for a gradual return to work after the lockdown and all eyes will be on the announcement of its roadmap to achieving this, which is expected during the week of 4 May 2020. That said, we expect the issues raised in this Advisory to be at the forefront of most employers' minds as they prepare for the lockdown to ease.
Employers need to start the planning process now. How will work need to be arranged and employees rostered in the light of the continued need for social distancing? What health and safety measures may be required to help prevent the spread of the virus? How will the employer cope with an expected spike in the number of employees wanting to continue working from home? Will the employer have the capacity to retain staff at current levels or will changes to terms and redundancies likely be required once the government ends its job retention scheme? Our employment team is available to support businesses on all these issues.
Originally published by Arnold & Porter Kaye Scholer, May 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.