CORONAVIRUS – latest update 07/05/2020
ADVICE FOR EMPLOYERS
The roadmap regarding how the “lockdown” will be eased is eagerly anticipated and the UK Prime Minister is set to explain this on Sunday 10th May 2020. However there has been much comment via social media and the news as to what steps will be taken as well as the dates for certain industries and business to reopen – not all of this is relevant or necessarily correct!
Unfortunately, there has also been much speculation that as of Monday 11th May 2020 everything will return to normal and that is absolutely not going to be the case, so please continue to exercise appropriate measures around cleanliness and social distancing.
In the interim as some businesses are seeking to return some or all of their employees back to the workplace in the near future, it is important to highlight some key discussion points:
HEALTH & SAFETY
Any return to work will require all employers to ensure they have put in place the appropriate COVID-19 safety measures to protect their workforce and minimise the risks of further spreading of the Coronavirus.
There is already some sector specific guidance which details how different industries are able to work to ensure there is appropriate social distancing measures in place via the link: https://www.gov.uk/guidance/social-distancing-in-the-workplace-during-coronavirus-covid-19-sector-guidance. It is important and relevant to note however that the UK Government guidance is actually stated as being “illustrative examples” and not a definitive health & safety plan.
This is because the responsibility lies with you as the employer to ensure you have a safe workplace, and for your employees to abide by those rules and processes.
- You must have a Coronavirus-specific written risk assessment if you have 5 or more employees. It is recommended that even if you are a sole trader you still have one of these so that if challenged on a safety audit, you can show what steps you have taken to keep safety a priority
- You must maintain social distancing among your workforce of at least 2 metres – as the employer you should seek to enforce these – and using physical barriers and markings on the ground may support this
- Putting in place appropriate Safe Working Arrangements, Safety Systems and Processes, Toolbox Talks and relevant PPE (Personal Protective Equipment) is also essential to support your employees back to work
If you need assistance with sector specific guidance or audits of your Safe Working Arrangements, then our sister company We do Health & Safety Limited can support you with this too.
WHAT TO DO WITH YOUR EMPLOYEES
There is no doubt that the lockdown measures implemented by the UK Government in March 2020 have been successful. It has been suggested that it has been too successful, but part of this was due to the Coronavirus Job Retention Scheme (CJRS), which allowed employers to “furlough” their employees, i.e. effectively send them home on paid leave with instructions NOT to work at all, and in doing so would be able to pay 80% of their wages (up to £2,500 per month and reclaim this back from HMRC.
Issues are now being experienced among employers when they try to bring their employees back to work, because they appear “addicted” to being furloughed. This is hardly surprising if your employees can stay at home, not working AND still receive 80% of their wages.
However, the decision as to whether employees are furloughed or not is YOUR decision not the employee’s. Nor is being furloughed and receiving the 80% of wages an employee entitlement. These misconceptions by your employees is one of the biggest issues you will face when telling your employees they have to return to work. The second biggest issue is their concerns regarding their safety.
Let’s deal with the first of these:
Please note that whatever you do with your employees all current employment legislation is still in force and must be applied when dealing with them – we can advise you on specifics so please call if you need us.
You may be concerned that contacting your employees on furlough would breach this, which is just not true. You should be checking in with your people from a welfare perspective regardless, to make sure they are okay and managing the self-isolation and social distancing restrictions. Just remember they are NOT allowed to do any work or services for you whilst furloughed, or you won’t be able to claim the money back, so for example, please don’t use the check-in call for planning your future sales strategy.
Remember that it is your decision to keep your employees on furlough (currently the scheme ends on 30th June 2020), or to tell them to return to work. Your options are:
- you can cease the furlough of your employee at any time
- it is recommended that you give them “reasonable” notice
- any employee on furlough must not be working for periods of not less than 3 weeks long, or you will not be able to claim for them
- you can bring employees off furlough for short periods of work and then re-furlough them – remember it must then be for at least 3 weeks or you cannot claim for them
- when you bring an employee off furlough, you have to bring them back to their normal working hours and pay them 100% of their wages unless:
- you have a signed lay-off clause in their contract and can place them on temporary lay-off or short-time working hours, OR
- you get agreement to a temporary change in their working hours
- in all cases, any changes should be regarded as an alternative to redundancy and necessary to protect the future of your business. Contact us for advice if this is something you need to think about.
If you have employees who are working from home and you do not have to bring them back into the workplace, then this should continue for now. If working from home becomes prolonged, then you may need to consider your safe working arrangements for home working.
As mentioned above, do not just leave your employees at home with no contact during furlough. You still have a responsibility to consider their mental and physical well-being and checking-in to see they are okay, will not breach their furlough. After all they are still employed by you.
You may also suggest they carry out some training or development to ensure they are still up to date with their role, as getting started again after a prolonged period of not working may prove difficult for some and generate anxiety in others. This also does not breach their furlough.
What happens when you tell an employee they are being taken off furlough and they refuse?
I am frightened to return in case I catch Coronavirus
It is important to be empathetic around an individual’s anxiety, but ultimately they have a job and if you require them to work then it is reasonable that you can expect them to come back to work, so:
- reassure your employee that you have put in place the necessary safety protocols to protect them, such as re-purposing the workplace to maintain social distancing, PPE and hygiene systems
- consider staggering working hours so they are not all travelling to and from work at the same time, or arrange for more car parking so they don’t have to use public transport, or get them to walk/cycle to work
- discuss reducing their working hours so they are not in work as much
Note if the employee still refuses to return to work and they have no symptoms, then you:
- “can”, not “must”, leave them on furlough until the scheme ends, OR
- make them use holiday giving notice of this (you must pay at 100% of wages), OR
- place them on unpaid leave – note you may also consider disciplinary action for refusal of a reasonable instruction but please seek advice before you take this step
If they continue to claim they are unwell through stress and anxiety due to Coronavirus, then you require medical certificates from their Doctor, AND also commence your capability processes to support them back to work, which may include an Occupational Health Assessment as to their fitness to return to work.
I have childcare issues and have to stay at home to look after them
- employees have the right to unpaid time off to deal with an emergency relating to childcare issues (or carer responsibilities)
- you may also decide to keep the employee on furlough (can, not must)
- you may have to consider a request for flexible working
- if they have no symptoms and it is just about them being unable to come to work because no one is able to look after the kids, then you may need to consider them using holiday or taking unpaid leave
- if their child is unwell or “at risk” then the above still applies as the individual is not unwell and so cannot be paid SSP (Statutory Sick Pay)
I’ve been told by my doctor to self-isolate
After the initial tranche of individuals (1.5 million) who were issued with letters from the NHS telling them they were acutely at risk and must “shield”, there are a number of individuals who have since received similar letters. This is what you should do:
- request a copy of the letter – if they have been told to “shield” then it will be clear and that this will be for a period of 12 weeks from the date of the letter
- you can furlough employees who have been instructed to shield
- however, the employee MUST NOT GO OUT and if they do so they are in breach of the guidance and potentially breaching their contractual obligations under health and safety as they are placing themselves and others at risk
- you may consider removing them from furlough and placing on SSP in such cases, but you will have to pay this as it is not reclaimable (except for the first 2 weeks which is)
- if they do not have a letter, then they may have been told they are in the “at risk” category and should self-isolate for 12 weeks – these employees should be placed on SSP for 12 weeks
Where the employee just states they feel unwell, not related to Coronavirus, then SSP is payable but after the first 7 days you should request a medical certificate, and deal with as normal for sick leave.
Note that an employee who is on long-term sickness will be able to produce medical certificates and can receive SSP for up to 28 weeks, although it is recommended that you commence some welfare and capability process before too long and not just leave them to it.
I’m not coming back to work and you have to furlough me
The employee does not have the right to be placed or remain on furloughed as this is your decision and commencing furlough must also be by agreement with the employee
- if they still refuse to return to work and you have all safety protocols in place, then they may be placed on unpaid leave or they may use their accrued holidays – you may also consider disciplinary action for failing to follow a reasonable instruction
- reinforce the fact that the purpose of furlough should be in order to avoid redundancies or lay-offs and the employee’s actions are placing them and their colleagues “at risk” of these
- if they have less than 2 years’ service, or you feel you have to make redundancies, then you may decide just to terminate their employment (see below)
Can I dismiss the employee?
Some employers have used the time of the lockdown to consider what their business may look like after the end of the furlough scheme. In some cases, this has been around reorganisation and re-purposing of their business for survival and growth. In other cases, this crisis has brought both the best and worst out in some employees, giving thought around whether employers still wish to employ some individuals after a return to “normal”.
You must fully consider all options regarding a return to work, such as leaving employees to work from home; leaving them on furlough; the cost of putting in place safe working practices; the balance of staff costs at 100% versus revenue generation; as well as many more potential factors that surround your business getting going again.
The UK Government guidance regarding the CJRS is clear in that there is no obligation to bring employees back to work and that redundancies may be necessary despite the scheme. You must however follow relevant and current employment practices when dealing with any redundancies. You must therefore consult; follow a fair selection process; and do not discriminate when selecting individuals for redundancy. If you need advice, please call us.
Less than 2 Years’ Service
In most situations, employees who have less than 2 years’ service cannot bring a claim to Employment Tribunal, but you should consider the following:
- if there is any disability or discrimination involved, then they accrue Day 1 rights and can bring a claim
- if there is an unlawful deduction of wages, then they can bring a claim for this
- you should always have a reason for termination regardless of how long an employee has worked for you AND
- you must give the reason for termination to the employee in writing
Refusing to Return to Work after Furlough – Health & Safety
The details of how to manage some of the situations of an employee refusing to return to work after furlough are given above, but there is one other situation that may create issues for you as an employer.
Where an employee refuses to return to work and states the reason for refusal is because they are concerned about the health and safety provisions in place, then you cannot just terminate their employment, even if they have less than 2 years ‘service.
If you dismiss an employee for raising a health and safety concern this would result in a claim for automatic unfair dismissal, so this is what you need to do …
- leave the employee on furlough
- ask the employee to write down and submit the reasons for their concerns
- this is now a formal grievance and requires you to hold a grievance hearing to go through each of the issues raised
- you can hold the hearing on Zoom or in-person (with social distancing measures of course) and they have the right to be accompanied by a work colleague or trade union representative (union representative duties do not breach furlough)
- document your findings and give the employee the right of appeal
- after the appeal, if there are no substantive failings and you can show your safety protocols are safe, then the employee may be subject to a disciplinary procedure relating to their “failure to return to work when reasonably required to do so”, or you can adopt one of the above situations for unpaid time off, holidays or keep them on furlough
- if the employee does not wish to hold the hearing in-person or on Zoom, then you can choose to deal with this in writing, but this should be after all other means have been exhausted
CALCULATION OF WAGES
Some confusion has been raised regarding how to calculate the average wages for variable and non-fixed hours workers:
- for the purpose of furlough and holiday – when calculating the average working weeks’ wages you must use
- the previous 52 weeks earnings period
- the same monthly earnings from the previous year i.e. for April 2020 use the earnings from April 2019
- average monthly earnings in the 2019-2020 year
- when using the previous 52 weeks, then only valid work periods are to be used and weeks of non-work should not be counted when calculating averages
- if some of those 52 weeks were non-work periods, then you should go back further up to a maximum of 104 weeks
- if the employee has worked less than 52 weeks, then use the earnings from all the weeks where work has occurred within the employment period
- if the employee has been on maternity or other statutory paid leave, including SSP, then do not count those earnings in the calculation and go back to the period prior to the start of the leave period
- note that where holiday time off has been paid, then holiday pay can be used as earnings for the purpose of calculating average wages, although unpaid time off cannot
Ensure you retain all calculations and methods of doing so in case of a later HMRC audit.
Note that for normal average hours calculation for an employee’s notice period, 12 weeks is still currently the calculation period to be used.
The decision whether to place someone on furlough, or retain them on furlough, is yours as the employer as this is a reimbursement scheme which means you are responsible for paying the employee wages and claiming 80% back. It may be that you have to justify your decision to HMRC at some time in the future and if you should not have furloughed the employee, then you may have to repay the money to HMRC. As to whether this will happen or not, we will just have to wait and see.
Finally, what is important is that you keep communicating with your employees. We are in uncertain times and there is much misinformation being circulated on media channels and via the internet which means that employees may think they know something, but which is not necessarily correct. Adverse reactions from them may be caused by their misunderstanding, their fears and anxiety over the Coronavirus itself and/or their job security, so we should try to be mindful of this when aiming to getting the best out of them.
Please also retain any letters, agreements, text messages, emails and file notes, including those relating to phone calls made with your employees.
This advice is being reviewed and updated regularly and is currently in line with HMRC, UK Government and ACAS guidance as updated 7th May 2020.
Should you require any further advice or guidance please call us on our usual HR number of: 01325 488425 or email: firstname.lastname@example.org