Following the increased numbers of coronavirus cases, the country is naturally panicked, so what happens in the workplace?
It goes without saying that the world is in turmoil over the COVID-19 pandemic, and its consequences for employers and employees are going to have a significant knock-on effect over the coming months. Here in the UK, it is likely going to result in mass redundancies and possible business closures, so is there any way to avoid this? Possibly if both employers and employees work together, with support from the government.
One possible alternative is for employers and employees to consider working from home. Employers should check their contracts to see if there are any mobility clauses and how they are worded. Typical clauses referring to an employee performing their duties in a ‘reasonable distance’ are likely able to rely on this to contractually force the employee to work from home. If there is no written clause, it may still be feasible as a ‘reasonable management instruction’.
What are the risks in staff working from home?
Clearly this won’t be practical for all and there are also factors to take into account, such as health and safety, data protection, equipment, costs, monitoring. However, it is potentially a temporary means to an end. Employers owe their staff a duty of care in the workplace to provide a safe place and system of working, risk assessments should be conducted for home working. Do the staff members have the equipment they can use (for office/admin etc this would be a computer, phone and possibly printer). If not, can the employer provide it? Whether any monies are paid towards the cost of working from home will depend on what is agreed between the parties. There is an argument for some that employees working from home can offset their costs from commuting. Will a contribution be given for utilities etc.
“…there is an element of trust needed.”
In terms of monitoring whether staff are actually working, this may prove difficult, however, remember this is only a temporary measure. It may be seen through performance but there is an element of trust. An employee is likely going to want to work from home than be made redundant so their performance should not be too unaffected.
What if the employee refuses to work from home?
If they are able but simply refuse without good reason, even if there is no contractual right to enforce home
working, employers may still be able to argue it is a reasonable management instruction. Failure to follow it, therefore, could result in disciplinary action up to and including dismissal. If the refusal is because it is unsafe or not practical, forcing the change could result in an employment tribunal claim for constructive dismissal or breach of contract claims.
Alternatives to redundancy can include lay off or short-time working. The downturn in work/business is hopefully only a temporary disruption and therefore, employers should not rush to make employees redundant. Alternatives can include Laying Off staff or placing them on Short Time Working (LOST).
“…employers should not rush to make employees redundant“
Lay off effectively is a temporary redundancy where the employee is sent home with no work and no salary.
Short-time working is where the employer has less work for the employee to carry out (usually less than
half a week’s work) and the employee, therefore, receives less pay. There does need to be a written
clause in the contract to allow this. If not, the employee would need to agree to it, as employees are
entitled to be paid if they are ready, willing and able to work. There is a statutory guarantee payment available but it is very low. Presently £29 per day (£30 from April) but it is only payable for 5 workless days in a 3 month period. At the employment contract is not suspended, holiday entitlement continues to accrue at the employee’s normal rate.
Can the employee claim for redundancy?
If an employee is LOST for 4 consecutive weeks, (or 6 weeks in a rolling 13 week period) then can resign by giving notice in accordance with their contract and seek a statutory redundancy payment. If employers want to prevent this, they can serve a counter-notice. If the employer does nothing, they have to pay the redundancy at the end of the employee’s notice period. There are strict procedures and time frames to follow for both parties so we recommend taking legal advice for claims for a statutory redundancy payment. It is also only payable to those employees with 2 or more years’ consecutive service. Redundancies If LOST / working from home is not possible and employers do have to resort to redundancies, place of work closures, and a reduction in the need for employees to carry out work of a particular kind are types of redundancy. There are minimum consultation periods for employers proposing to dismiss 20 or more employees or 100 or more employees. However, the legislation says that if that is not ‘reasonably practicable’ due to special circumstances, the employer needs to take reasonable steps. The present backlash of coronavirus may well qualify at the moment as a special circumstance.