First published 3rd March 2020. Last updated 14th December 2020 at 1:00pm.
Following the announcement of new measures to ease the UK out of lockdown, employers have a lot of questions about the best way to get staff back to work safely. Here our employment law expert answers some of these complex HR and health & safety questions...
Q: We are now able to bring more people back to work but we do not need everyone to return. How do we decide who to bring back from furlough first?
A: Many businesses will have considered this either due to workload or the implementation of health and safety measures. First and foremost, you should consider the needs of the business and which departments need to return.
If you need to select between individuals in the same department or a similar job role, the decision should be based on objective criteria. Any decisions should be documented so you can justify your decision-making process if someone raises the concern that they have been discriminated against.
Q: When the furlough scheme ends on 31 October 2020, we will not have enough work to bring all our employees back to work on their current contracts. Can we keep them on leave?
A: It was announced that the job retention scheme will be extended to 31st March 2021. When the scheme does end, your options will depend on your contract of employment or reaching agreement with employees. Employees at this time should revert to their substantive terms of employment. However, if you have the contractual right to place employees on lay off or short time working, you may consider doing so. This is a temporary measure and advice should be sought before proceeding. Alternatively, you may look to seek agreement to vary terms in line with the needs of the business or agree to a period of annual leave or unpaid leave.
Q: The government announced that the social distancing measure would be reduced from 2m to 1m. We are looking at opening up again, are we able to open now with measures to support 1m social distancing rather than 2m?
A: As with all measures and for all businesses returning, you must first complete a specific risk assessment to determine what is possible for your business. The government announced that where it is not possible to stay 2m apart, people should keep a distance of 1m plus and therefore your aim should initially be to establish whether 2m is possible. Wherever it is possible for employees and customers or clients to stay 2m apart, they should and should be encouraged to do so.
Depending on the nature of your business, you may need to consider a range of measures including the installation of plexiglass shields or other barriers, protocols for the use of lifts, closing down smaller common areas or marking appropriate distances, and providing hand sanitiser.
Further information is available through BrightHR’s back to work navigator.
Q: I have an employee who I have some work for but not enough to cover their contract. Under the extension of the job retention scheme is it possible to furlough them for part of their contract and have them work the rest? So for example, they are able to work 2 days per week covered by the business and have the Government contribute 80% to the other 3.
A: Yes, employees will still be able to work part of their hours under the flexible furlough scheme. Under this scheme employees should receive their full pay for the hours they perform work and 80% for the time furloughed. A separate agreement will be required for each different pattern of work. However, the employee must have been on the payroll prior to 30 October 2020. If this was not the case, they cannot be placed on furlough and you may need to consider short time working, subject to your contract or agreement with the employee.
Remember, the furlough scheme ends 31st March 2021.
Q: Some of my employees had been required to self-isolate and I am aware that one employee was living with someone who was symptomatic. How do I check if my employees are fit to return to work?
A: Usually, it is possible to request a fit note to gain confirmation that an employee is able to attend work. However, in the current circumstances, this may not be possible and your normal procedures may need to be relaxed.
Employees may be able to gain confirmation of their fitness through forms or emails from local clinics. You can ask your employee if they’ve been symptomatic or are living with someone who has, to establish whether they have followed government guidance with regards to self-isolation. If the isolation period has passed, they should be able to return to work.
In determining whether an employee may return to work, questions should be limited to establishing symptoms related to COVID-19. Any questions that are unrelated, such as asking about underlying medical conditions or symptoms not associated with COVID-19, should be avoided.
Employees who were required to shield were able to return to work from 1 August 2020, subject to any local restrictions in place.
Q: With social distancing expected to remain in place, will we be required to reduce our employees’ hours of work?
A: It is expected that employers will be required to stagger work hours and shifts to assist with social distancing and ease congestion on public transport. Similarly, alternating days of work for different groups of teams may also be considered.
The full extent of what measures are required will be subject to ongoing guidance but if it is possible to achieve social distancing through staggered hours and other arrangements like home working, you may not necessarily need to reduce staff hours.
Remember, agreement is usually required from staff when you make amendments to terms and conditions, even if only on a temporary basis. You should speak with employees first and explain the proposed changes and the reason for these changes. You will likely need to take your employees’ individual circumstances into consideration when agreeing to appropriate changes to working hours.
Q: One of my employees has advised me that they will not return to work over the next few weeks, even though restrictions have lifted to allow us to return. How do we manage this?
A: The right way to manage this depends on the situation. But the first step should be to discuss the matter with your employee to understand their reasons for not returning. Many employees may be anxious about the prospect of returning to work at first and safety will be a priority for them.
You should inform all employees that you have made an assessment of the risks and implemented appropriate measures in line with government guidance. This should help to reassure employees that you aren’t putting them at risk by asking them to return to work.
Q: One of my employees has pre-booked leave and expects they will still be able to travel. Do we have to approve a further two week period of leave to cover the quarantine period and what if they don’t have enough leave balance?
A: This will be subject to contract but generally, when annual leave is requested, whether it is approved remains at the discretion of management. It’s important to have suitably worded contracts and policy documentation and a leave booking procedure in place to support to manage this.
If you are unable to approve further leave and there is no requirement to under your existing employment documentation you can consider other options with respect to the quarantine period. Any options will also be impacted to some extent by the employee’s contract but you should initially consider whether the employee may work from home or alternatively may agree that the period will be considered unpaid leave.
Q: One of my employees has just travelled back from overseas and some of my staff are refusing to come into work as a result. Do I have to give these employees time off work with pay?
A: Those who have travelled will be required to self-isolate for 10 days which means they must not go to work.
Provided this isolation period has passed and appropriate health and safety measures are in place, an employee who refuses to work may be in breach of the terms and conditions of their contract and isn’t entitled to payment for their time off work.
It’s up to you as the employer to assess the situation if an employee is returning to work from an affected area and make a decision based on the most recent information available.
Q: Several of my employees are unable to return to work or have requested time off because they are unable to arrange childcare. What are their entitlements if I approve time off?
A: As this is similar to other instances of school closures, the normal rules on unpaid time off for dependants will apply unless you provide greater contractual entitlements. If your contract does not provide pay for time off to look after dependents you may choose to, but don’t have to.
There is no set amount of time that an employee is entitled to be absent from work under this type of leave as it depends on the exact nature of the situation and each case will be different. Generally, employees are entitled to take a reasonable amount of time off to deal with the emergency and where possible make alternative arrangements.
If an employee is unable to make care arrangements in these circumstances you may discuss options with them including the use of annual leave, unpaid parental leave or alternative work arrangements where possible, such as working from home.
Government guidance does state that employees who are unable to work because they have caring responsibilities, such as looking after children, can be furloughed. However, in the absence of further information, it is likely that the overarching purpose of the scheme should still be considered, which is that the operation has been severely affected.
Q: I need to reorganise my business which may also result in redundancies. What do I need to consider?
A: If you believe the reorganisation will only be temporary, the furlough scheme has been extended until 31 March 2021 and lay-off or short-time working may be considered subject to contract.
Employees who have been laid off and have at least one month’s service are entitled to receive Statutory Guarantee Pay for a maximum of 5 days in a rolling three-month period. The rate of Statutory Guarantee Pay is currently £30 per day. Employees on short-time working will receive payment in accordance with their hours worked.
You may also consider temporarily redeploying employees to other parts of the business if employees are agreeable and can be trained. If these options are not feasible you may need to consider whether the role is redundant and commence consultation. You should continue to consider any redeployment opportunities throughout the consultation process.
Further information is available through BrightHR’s redundancy navigator.
Q. We are legally required to close because of coronavirus restrictions, is there any support in place for employers and employees?
A: Employers who have been legally required to close their premises can apply to the the extended Job Retention Scheme for wage assistance.
The employee will receive 80% of their normal pay to a maximum of £2,500 per month. The employer must pay this initially and claim back from the government.
A final thought…
It’s important to think carefully about any situation linked with the coronavirus outbreak before you make any decisions that impact your staff. If you have any doubts, seek employment law advice.
If you’re a BrightAdvice customer, call our employment law helpline. Not a BrightAdvice customer? You can find out more about this service by ringing us on 0800 783 2806.