COVID-19: What Employers Need to Know. Thursday, 18 June 2020 Employment Law Webinar

COVID-19: What

Employers Need

to Know

Thursday, 18 June 2020 Employment Law Webinar

Carl Vincent

1) A brief history 2) New flexibility 3) Tapering of relief 4) Agreement 5) Annual leave 6) Sickness Absence

Summary

•

A leave of absence from duty granted especially to a soldier

• Announced – 20 March

• Start date (back-dated) – 1 March

• HMRC Portal opened – 20 April (140,000 applications relating to more than 1m employees received on day 1) • Last date for ‘new’ furlough – 10 June

• 8.9 million employees • End date – 31 October

A Brief History

• ‘Abusive’ claims or claims ‘contrary to the exceptional purpose’ of CJRS

• Furlough = employees instructed to cease work by reason of circumstances arising as a result of coronavirus or

coronavirus disease

• Payments in respect of furloughed employees arising from the health, social and economic emergency in the UK

resulting from coronavirus and coronavirus disease

Purpose

•

HMRC reimburse the lower of

80% of salary or

£2,500 per month plus

Employer NICs &

Employer pension contributions

Reimbursement

• Pre 1 July – ‘cease all work’

• Post 1 July – furloughed staff able to work part time without jeopardizing furlough status

• No 3 week minimum period

•

Begins from 1 August

Tapering

•

Reimbursement of employer NICs and pension contributions stop

• HMRC contribution falls to lower of 70% of wages or £2,187.50; employer must top up to 80% of

wages (subject to the £2,500 cap)

September

• HMRC contribution falls to lower of 60% of wages or £1,875; employer must top up to 80% of wages (subject to the £2,500 cap)

• Must be agreement on furlough • Specify main terms

• In writing or

• Confirmed in writing by the employer

• Keep record until 30 June 2025

• Update to reflect any post 1 July changes

Consent

• Holiday accrues

• Can be taken during furlough • Normal remuneration

• Timing - Reg 15 WTR • Carry over (4 weeks)

• Relationship with SSP • Long term sickness • Shielding employees

Sickness Absence

• Generous scheme • Well conceived • Well executed

• But what next?

Redundancy and

Furlough

David Morgan Girlings Solicitors

• How does the CJRS impact redundancy dismissals? • How does furlough affect redundancy procedures? • Pitfalls and practical advice

Can I make furloughed

employees redundant?

 Early stated aim of CJRS

was “to avoid redundancies”

 This was revised – now:

“The scheme is designed to help employers whose

operations have been severely affected by

coronavirus (COVID-19) to retain their employees and protect the UK economy.” COVID-19 What Employers Need to Know: 18 June 2020

employees redundant?

• Guidance to Employees:

“Your employer can still make you redundant while you’re on furlough or afterwards.”

• But little explicit government guidance on redundancies

Does furlough change the law

relating to redundancy?

• No – the contract of employment of employment is unaffected except with regards to the agreed terms of furlough leave

• An employee’s statutory rights are unaffected

• The law relating to redundancy remains in full force and is unamended

Does furlough change the law

relating to redundancy?

• Still need to meet the definition of redundancy (s139 Employment Rights Act 1996)

• Cessation of business

Does furlough change the law

relating to redundancy?

• Still need to meet the requirements of a fair dismissal under s98 Employment Rights Act 1996

• The determination of whether a dismissal is fair will still depend on whether the employer acted

reasonably in treating it as fair reason for dismissal

Does furlough change the law

relating to redundancy?

• Still need to use a fair procedure

• Informing and consulting employees regarding the redundancy proposal is fundamental to a fair

procedure

• Employers need to consider how to conduct a fair procedure while employees are furloughed

Furlough and Collective Consultation

• Where it is proposed that 20 or more employees are dismissed with a 90 day period then the Trade Union and Labour Relations (Consolidation) Act 1992 is

engaged.

Furlough and Collective Consultation

• Employers must:

• Facilitate the nomination and election of employee representatives

• Collectively consult with those reps for a minimum of 30 or 45 days

Furlough and Collective Consultation

• Consultation can take place during furlough

• It is explicit within the guidance that employees can undertake representative duties for the purposes of individual or collective consultation while furloughed • NO explicit confirmation that employees can be

consulted – this is implied from the fact that they can be made redundant

Furlough and Collective Consultation

• The traditional model of redundancy consultation with face to face meetings, paper ballots and group meetings between representatives and their

constituents may not be possible where employees are furloughed or are self-isolating

Furlough and Collective Consultation

• Points to consider (1)

• How to communicate the proposed redundancy to

employees who are on furlough and alternatives to a face to face meeting

• How to facilitate the nomination and election of reps where

employees are furloughed

Furlough and Collective Consultation

• Points to consider (2)

• How to hold meetings with elected reps given the requirements of social distancing

• Is face to face possible or will online meetings take place? • Do reps have the necessary IT access and knowledge?

• How to provide access for reps to the employees they represent

Furlough and Collective Consultation

• Points to consider (3)

• How are selection pools and criteria impacted by furlough • Take care to identify selection pools

• Simply identifying furloughed employees as at risk may lead to unfairness and/or potential discrimination

• Take care with selection criteria and the assessment period

 Similar issues arise for the

individual consultation process  Remember the right to be

accompanied and the need to make provision for a companion and a

note taker at any meeting, whether face to face or online

Should dismissal be delayed to

the end of the CJRS?

• This may not result in an unfair dismissal but it is

something an employer should consider, particularly if it is put forward by the employee in consultation

• The employer may have a good reason for rejecting such a proposal, particularly given the increased costs of the

furlough scheme over the coming months

• But consulting about how the consequences of the redundancy can be mitigated forms part of a fair procedure, so employers should give this careful consideration

Furlough and Notice Pay

• No government guidance as to the rate at which notice pay should be paid

• Employees with a statutory entitlement to notice or a contractual entitlement which is no more than a week longer than the statutory entitlement are entitled to “a week’s pay” for each week of notice (s87(4) ERA 1996)

Furlough and Notice Pay

• Where employees have normal working hours this will be a “sum not less than the amount of

remuneration of that part of their normal working hours” (S88(1) ERA 1996)

Furlough and Notice Pay

• Employees who have a longer contractual entitlement may only be entitled to the pay it was agreed they

would receive in the furlough agreement

• But employment law commentators are speculating that tribunals would be sympathetic towards claims from employees that they are entitled to full pay

Pitfalls

• Beware of the temptation to assume that furloughed employees can be selected for redundancy because they have been furloughed

• Some employees were furloughed because they were more at risk because of a

disability, or because they had childcare issues, which could lead to discrimination claims

Pitfalls

• Do not assume employees check email

• Do not assume that all employees have access to the technology needed for online meetings or the

knowledge needed to take part

• Do review your data protection policies and

procedures and update employees whose details may be passed to employee reps

Pitfalls

• Do take care with the number of employees affected. The definition of the redundancy for collective

consultation purposes is wide

• For example if you propose to make 12 employees

redundant and require another 12 to change working hours then you may trigger a collective consultation

managing the return

to work during

COVID-19

Paul McAleavey Girlings Solicitors

Topics we’ll cover

• The law and government guidance • Preparing the workplace

• How to deal with employees’ rights to rely on

“reasonable belief of serious and imminent danger” protection

• Dealing with employees who are:

• Extremely vulnerable • Vulnerable

• Living with someone who is extremely vulnerable/vulnerable

• Data protection considerations

The law

• Employers are responsible for ensuring the health and safety of their employees and those that are affected by their activities so far as reasonably practicable (sections 2

and 3, Health and Safety at Work etc. Act 1974).

• An employer must assess and review the work-related

risks faced by its employees and by others affected by the company's activities. This risk assessment must be

"sufficient and suitable" (regulation 3, Management of

Health and Safety at Work Regulations 1999 (SI 1999/3242)).

Preparing the workplace

• Government guidance • Risk assessments

• Requirement to publish • Communicate with staff

Practical steps

• Plan carefully

• Increased hygiene • Respiratory control

• Manage transmission risk • Cleaning

Sections 44 and 100 of the

Employment Rights Act 1996

• s.44(e)

An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that in circumstances of danger which the

employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

• s.100 – the remedy

In practice

• Circumstances of danger – objective test

• Reasonable belief of serious and imminent danger –

subjective test

• What if employee insists on wearing PPE?

Vulnerable employees (1)

Three categories:

“Extremely vulnerable” • Examples:

• Very serious respiratory conditions • Pregnant women with underlying

health conditions • Certain cancers

• Monitor government guidance • Equality Act 2010 considerations • Risks of forcing to work

• Alternative roles?

Vulnerable employees (2)

“Vulnerable individuals” • Examples:

• Over 70 years old

• Pregnant but no underlying health conditions • Less serious respiratory conditions

Vulnerable employees (3)

Employees living with someone who is vulnerable or extremely vulnerable

• Consult and discuss

• Inevitably fact sensitive

• Associative discrimination risks

Data protection considerations

• Don’t forget the GDPR and Data Protection Act 2018 • Do you need temperature

checking?

• Record keeping

• Minimise intrusiveness and record keeping

• Privacy assessments • ICO guidance

Contact the Employment Law team

COVID-19 What Employers Need to Know: 18 June 2020

Carl Vincent – Head of Employment Law

T: 01233 664711

E: carlvincent@girlings.com

Paul McAleavey – Senior Associate Solicitor

T: 01233 664711

E: paulmcaleavey@girlings.com

David Morgan – Associate Solicitor

T: 01233 664711