Covid-19 Employment Law Update August 2020

As we head into our fifth month of coronavirus pandemic restrictions and disruptions employers are facing unprecedented tough decisions – whatever the financial position of their business. Many employers who placed staff on furlough to protect jobs will need to consider whether they can continue to support those staff, or whether to begin a redundancy process, or look to end employment with protected conversations and settlement agreements. Meanwhile, for employers who are able to maintain staff numbers, there will be decisions to make around ensuring a safe physical workplace and returning staff who have been working remotely; or alternately, embracing remote working as the new normal for the foreseeable future.

All these decisions come with their own risks and challenges, which will also be unique to each business and sometimes to each individual employee. I give a brief summary of headline issues to consider below – please don’t hesitate to reach out to me or one of my colleagues if one or more of these issues is on your mind this month.

Furlough scheme changes:

• No new employees can now be furloughed (unless they are returning from statutory parental leave). From 1 July, the scheme has become more flexible – allowing for part time furlough – and from 1 August employers will need to begin paying employer pension contributions and National Insurance Contributions again.
• In September and October, employers will also need to pay an increasing percentage of wage costs, and under current plans the scheme will end at the end of October.
• There is new government guidance on correcting furlough scheme claim errors, and a clear line from HMRC that they will take a tough approach to any intentional misuse or fraud. I covered this in more depth for HR Magazine (https://www.hrmagazine.co.uk/article-details/government-announces-plans-for-a-30-day-window-to-confess-to-furlough-errors-1.)
• Additional rules also now apply to claim periods and cut off dates.

Covid-safe workplaces:

• Employers’ duty to carry out health and safety risk assessment remains, and must address how to make a workplace “covid secure”. There are government and Health and Safety Executive guidelines on this, but they are quite general.
• From 1 August, employers will have greater discretion over whether staff should return to the workplace from homeworking. If employers plan to ask staff to return, they must ensure the workplace is as safe as possible; for example, with additional hygiene and distancing measures.
• Thorny questions remain about the best approaches for staff who do not feel safe in the workplace or public transport, those who are especially vulnerable, and those who do not have childcare in place. Each situation will be different.

Remote working:

• Many businesses and their staff are accepting that home-working is no longer a temporary emergency; for example, RBS has announced that 50,000 staff will remain home-based until 2021. For many it has worked much better than feared, but systems may now need to be regularised and formalised.
• Risk assessments apply to home-working environments, just as they do in the office, and after several months of home-working, longer term risks such as repetitive strain injuries will be becoming more likely.
• Many employers will also be thinking about communicating effectively with staff, performance monitoring, and in some cases performance management.

Redundancies:

• Unfortunately, for many businesses there will be a need to cut staffing – either as soon as possible or in the coming months. Some businesses will be making enough redundancies to engage their collective consultation obligations, others will only need to have regard to fair individual process.
• Some businesses in the current climate are seeking to avoid formal redundancies where possible by holding protected conversations with at-risk employees and offering settlement packages.
• What’s right in each case will depend on many different considerations, and our three partners Angie, Meredith and Jonathan covered the topic in depth in our 11 June Redundancies webinar thomasmansfield.com/training-events/

Allison Crabtree, Solicitor

[email protected]

For more COVID-related updates, see our previous briefing notes: