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COVID-19 and Employment Law Q&A

03 December 2020

The coronavirus pandemic has created new risks for employers. Do you know where your obligations lie?

My employee previously alleged we are not doing enough to make the workplace Covid-secure. I need to make him redundant now. What are the risks?

If the redundancy is completely unrelated to the allegations made, and you follow a proper process, you should be able to resist any claims, but there is a risk that the employee will allege he was made redundant because of his allegations, and that would allow a claim to be pursued, even if he has under 2 years’ service.

I have not obtained written employee agreement to reduce pay to furlough levels, is that OK?

Unless there is a clear contractual right to unilaterally reduce hours of work and salary, you need to obtain employee agreement to reduce their hours and wages (if you are only paying the 80% furlough pay). If you don’t keep a written record of this agreement, you will struggle to defend claims for unlawful deductions from wages, from employees who are unhappy about being paid less than normal salary. HMRC will also need to see written evidence, and records must be kept for 5 years.

My employee has a health condition and is refusing to come to work due to Covid; Can I dismiss them?

If an employee has a genuine and reasonable fear of serious and imminent harm, then any attempt to discipline or dismiss them could lead to claims, including automatically unfair dismissal, which could be pursued even if the employee has limited service. Whether the fear is reasonable is a key issue and will depend on the employee’s particular vulnerabilities, the state of the pandemic in your area, and the steps you have taken to minimise risk. Some commentators suggest that employees who refuse to work, for this reason, might still be entitled to pay, even if they cannot work from home

Can I re-hire employees who have been made redundant in order to furlough them?

If an employee was on payroll on 23 September, and stopped working after that date, you are entitled to re-hire them in order to put them on furlough. Beware though that there is a cost to doing this (ongoing employer NIC and pension, plus top up of accrued holiday pay). It is also vital to agree what will happen when the furlough scheme ends, and the employee’s entitlement at that stage to notice pay, redundancy pay, and possible unfair dismissal claims.

What health and safety issues should I beware of?

Firstly, and most obviously, your health and safety obligations will extend to making the workplace as Covid-secure as possible to minimise the risks posed to employees who attend work. You should also be cautious about insisting that employees attend work if not actually necessary.

Another significant health and safety issue is the need to take reasonable steps to ensure the health and safety of staff while working from home. While it may not be practical to do on-site inspections of working areas, you do still have a duty to safeguard health, so should be taking steps to ensure that staff have a proper working environment, desk/chair/screen set-up etc.

There may also be staff whose mental health is adversely affected by home working and the lack of interaction, and measures to address these health risks will need to be considered.

Our business has been severely hit by a downturn in demand due to Covid and we need to urgently make staff redundant. What are the issues?

On a practical basis it makes sense to consider and weigh up the costs of the alternatives – Could you retain staff, using the furlough scheme, until business picks up?

At present, employers can use the furlough scheme to cover the wages for the statutory notice periods of employees who are made redundant, but that will come to an end on 1 December 2020.

From a legal perspective it is vital not to rush any redundancy process. Take the time to get it right and minimise risks. A fair process will require consultation, identification of correct selection pools, the use of fair, non-discriminatory and appropriate selection criteria, applied fairly, and the consideration of any alternative vacancies. You should also consider whether the collective consultation regime applies, and ensure you comply with any redundancy policy that you have in place. Unfair dismissal compensation can be up to a year’s salary, but no cap applies if there is a discriminatory or “automatically unfair” reason for dismissal.

My employee refuses to wear a mask. What do I do?

Instructing an employee to wear a mask is likely to be a reasonable instruction, as a measure to safeguard the health and safety of all staff (and it may be misconduct not to comply), but remember that some people are exempt from the requirement. You need to be particularly aware of any disability issues. These types of issues will need to be sensitively handled and should be fully discussed with the employee so that you can make an informed decision.

Contact a member of our Specialist Employment Team if you have any questions about this topic or any other employment issue.

This update contains general information only and does not constitute legal or other professional advice.

Employment law:

Caroline Carr, Partner: E: cac@bto.co.uk / T: 0141 225 5263
Laura Salmond, Partner: E: lis@bto.co.uk / T: 0141 225 5313
Jacqueline McCluskey, Partner: E: jmcc@bto.co.uk / T: 0131 222 2936
Douglas Strang, Senior Associate: E: dst@bto.co.uk / T: 0141 225 5271

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