“Covid Secure” practical workplace guidance for employers

The Covid Secure guidance published by the Department for Business, Energy & Industrial Strategy (DBEIS), covers workplaces that can re-open this week, as well as some the Government hopes will reopen on 1 June 2020:

  • Construction and outdoor work
  • Factories, plants and warehouses
  • Homes
  • Labs and research facilities
  • Offices and contact centres
  • Restaurants offering takeaway or delivery
  • Shops and branches
  • Vehicles

The guidance relates to workplaces, rather than sectors. This means that a firm could have workers in several of these workplace categories and will need to take account of the guidance relating to each workplace category. For example, a construction business could have workers on a construction site, in vehicles, in other people’s homes and in offices.

DBEIS says that the key points underpinning the guidance in each type of workplace are:

  1. Those who can work from home should continue to do so, but those who cannot should return to work.

Clinically extremely vulnerable people who have been asked to shield should not return to work, but clinically vulnerable employees may do so if they cannot work from home. However, clinically vulnerable employees should be offered the safest roles available.

The guidance also reminds employers to be mindful of equality in the workplace and that they must not discriminate against anyone who has a protected characteristic, particularly highlighting responsibilities towards disabled workers and new or expectant mothers.

  1. Employers should carry out a Covid-19 risk assessment, in consultation with workers or trade unions.

The requirement to consult with employees means consulting the health and safety representative selected by a recognised trade union or a representative chosen by workers where there is no recognised union.

  1. Maintaining two metres social distancing, wherever possible.

Employers are advised to consider measures such as increasing the number of entry points to the building, staggering start and finish times and introducing one-way systems within buildings.

  1. Managing transmission risk where people cannot be two metres apart.

The guidance says that where two-metre social distancing cannot be maintained, employers should consider whether that activity is necessary for the business to continue to operate. Where such an activity must go ahead, employers should consider the use of increased handwashing and surface cleaning, keeping activities as short as possible, using back-to-back or side-to-side working instead of face-to-face and using small fixed-teams to carry out such work.

The guidance recommends against the use of face-coverings in most non-clinical settings.

  1. Reinforcing cleaning processes.

Employers should assess and clean workplaces before reopening. Once reopened, the guidance contains detailed advice on cleaning the workplace and ensuring effective hygiene at all times.

Businesses and organisations with more than 50 employees are expected to publish their risk assessments online, while all employers are expected to display a signed poster, which can be downloaded with the guidance here  https://assets.publishing.service.gov.uk/media/5eb97d30d3bf7f5d364bfbb6/staying-covid-19-secure.pdf .  This includes contact details for the Health and Safety Executive.

In some circumstances, bringing employees back into the workplace could create a risk of an employment dispute arising and so employers should seek advice to minimise the chances of a dispute arising.

Employer and employee obligations for homeworking

Hundreds of thousands of UK workers have made the move to homeworking follow the Government’s ‘stay at home’ guidance and have been fulfilling their work duties from home for weeks. 

However, the sudden change to homeworking means that some employers and their employees may not be fully aware of their legal obligations under these arrangements. 

To help you gain a greater appreciation of each party’s requirements and rights, we have looked at and provided answers to seem key homeworking questions. 

As an employer what are my health and safety obligations when it comes to home working?

You cannot monitor employees 24 hours a day while they are working at home or even carry out regular health and safety risk assessments, but you are still expected to meet certain obligations when it comes to health and safety.

As such, where possible, you should:

  • check that each employee feels the work they’re being asked to do can be done safely at home and that they have the right equipment
  • keep in regular contact with employees to make sure they do not feel isolated or under supported
  • make ‘reasonable adjustments’ for an employee who has a disability.

Where a change is needed, it is the employer’s responsibility to ensure it is carried out properly. However, it is not the sole responsibility of employers to ensure that health and safety rules are observed and employees must tell their manager about any health and safety risks and/or any homeworking arrangements that need to change as a result of health and safety concerns.

Health and safety typically focuses on physical health, but what are my expectations regarding employees’ mental health?

The social distancing measures needed to reduce the rate of COVID-19 infection has led to a significant rise in mental health issues among the UK population. Employers have a general obligation to ensure their employees come to no harm while working. 

As such they should be encouraging employees to take regular breaks, for example, to avoid sitting at a computer for too long.

They may also wish to, but are not required to, provide activities that alleviate stress and anxiety, this may be achieved their internal communications. Examples include hosting quizzes, holding lockdown bake-offs and video conferencing.

My employee requires certain equipment/technology to fulfil their role, am I required to provide this?

Employers are responsible for all equipment and technology provided to employees that allows them to work from home. As such, they should:

  • discuss equipment and technology requirements with employees and agree what is needed
  • support the employee to set up any new equipment or technology.

Employers should also regularly assess how systems and temporary arrangements are working and make improvements if necessary, to ensure employees are supported. 

The performance of an employee appears to have been affected by home working, what should I do?

Employers and managers have a responsibility to ensure that those working from home know what is expected of them.

As such they should agree:

  • hours of work
  • how they will communicate
  • how their work-life balance will be managed
  • rules around storing information and data protection
  • how performance is managed and measured.

Employers should recognise that some employees may find homeworking difficult or struggle to organise themselves while working at home. Employers should discuss this with employees at the earliest opportunity and put practical steps in place that are designed to improve their performance. 

How does homeworking affect pay and the terms and conditions of employment?

If an employee is working from home, they must still receive the same rate of pay, as long as they are still working their regular contracted hours.

During this period, their usual terms and conditions of employment still apply, apart from their place of work. It is also important that employers ensure staff follow the law on working hours and take breaks. 

My employee is having to juggle childcare and working from home, what are the rules regarding this?

With schools and nurseries closed and other family members unable to look after children, many working families may be finding it difficult to balance childcare and working from home. 

If this is the case, then employers and employees may be able to agree a more flexible homeworking arrangement. This could include:

  • working different hours
  • agreeing to a reduced working week
  • reducing work targets
  • being flexible about deadlines, where possible.

It is important that employees discuss any change in circumstance regarding care, be it for a child or vulnerable adult, with their employer so that they can agree on working arrangements and expectations. 

What if I need to make employees redundant?

Unfortunately, some businesses may be unable to furlough certain employees or they may feel that they are unable to retain a position after the furlough period ends and the organisation is therefore required to make a person redundant.

Many businesses are now considering whether they need to start the redundancy process when the Coronavirus Job Retention Scheme (CJRS) comes to an end on 30 June 2020.

The rules around redundancy are complex and so to help we have prepared a useful FAQ for you to follow.

Can I make employees redundant during this uncertain period?

As long as you do not intend to furlough a staff member, then yes you can make them redundant, as long as you follow the right procedures. 

Of course, many employers are aware that if they can make a person redundant then they could also furlough them to retain their position. Because of this, some employees may feel they have a claim for unfair dismissal if they have at least two years of service and you choose to make them redundant rather than furloughed. 

Any employment tribunal would consider an employer’s resources at the time of redundancy and see if the company had no or minor cash flow issues at the time or whether an employee had accepted a cut in pay or a delay in payment of their salary to assist the business.

Depending on the circumstance, a judge may decide that a business acted unfairly to make a person redundant instead of furloughing them to deal with the economic slowdown created by the pandemic. 

An employee could also bring a claim for discrimination if they think they were made redundant because of a protected characteristic, such as sex or disability. Employees do not need a minimum length of service to bring such a claim, so take care. 

Can I begin the redundancy procedure now?

A statutory redundancy situation arises where either:

  • an employer’s need for an employee to do work of a particular kind ceases or reduces; or
  • the business in which an employee is employed is shut down, either entirely or at a particular location.

What type of redundancy procedures do I need to follow?

Depending on the numbers of redundancies an employer needs to make they may have to consult collectively with affected employees under the Trade Union & Labour Relations (Consolidation) Act 1992.

The collective consultation period is 30 days if an employer is proposing to dismiss 20 or more employees within a 90 day period, rising to 45 days if it is 100 or more employees.

The CJRS is due to run until at least 30 June 2020, which means that if an employer wants to time redundancies to be effective from the end of the CJRS period before they are contractually bound to pay 100 per cent of the employees’ salaries again, then they will need to start considering commencing consultations shortly. 

This means they needed to have started this process on the following dates if they intend to make redundancies on the 30 June 2020:

  • 20 or more employees – 31 May 2020
  • 100 or more employees – 16 May 2020

If these dates haven’t been met then the employer would have to continue consultation after the employee has returned from furlough, if the CJRS is not extended, and continue to pay wages.

There is an exception to the collective redundancy rules. This rule provides that where special circumstances render it not reasonably practicable to consult in good time or provide the statutory information to employee representatives, the employer need not fully comply with the duty, but must still take such steps towards compliance as are reasonably practicable. 

It is not yet fully clear whether this applies to the current pandemic, but businesses should be cautious as they could be penalised if they get this process wrong.

What happens if I intend to make fewer than 20 redundancies?

There are no set rules to follow if there are fewer than 20 redundancies planned, however, it is good practice to consult employees and their representatives before undertaking any redundancies. If you don’t conduct any form of consultation with employees an employment tribunal could decide that you have dismissed your staff unfairly.

What penalties exist if I don’t complete the process properly?

Where an employer fails to comply with its obligations, representatives of those employees affected, or the employees themselves, can make a complaint to an employment tribunal. If the complaint is upheld, the tribunal could order the employer to pay a ‘protective award’ of up to 90 days’ pay per affected employee.

How do I choose who to make redundant?

If the redundancy is being made to reduce your workforce, rather than due to a total closedown of the business, you will need to carefully select who you make redundant. 

You can initially consult with your workforce to see whether anyone wishes to be made voluntarily redundant. This will help to reduce the potential pool of candidates and can make the selection and consultation period simpler. 

When selecting which employees face compulsory redundancy, employers must ensure they are objective and do not discriminate against the employee(s). 

They may wish to use the following criteria as a basis for making their selection:

  • qualifications;
  • experience;
  • performance;
  • timekeeping and attendance;
  • disciplinary record.

In the past, many redundancies have been conducted on a ‘last in, first out’ basis, but this has become less common due to the risk of indirectly discriminating by age against younger employees. 

It is recommended that you use a scoring process for each employee against these criteria, which is moderated by different scorers to ensure fairness and consistency. Make sure you record this process in writing.

How much will I need to pay a staff member who is made redundant?

When an employee is made redundant they will be entitled to notice pay. The statutory minimum period of notice is one week’s notice for each year of continuous employment, up to a maximum of 12 weeks. 

Employees are also eligible for statutory redundancy pay if they meet the qualifying criteria. The amount that they will receive can be calculated here. Some employees may be entitled to more depending on their contract.

Can I pay some staff members more? 

It is not uncommon for employers to pay an enhanced redundancy package where they intend to:

  • Preserve goodwill of both departing and remaining employees;
  • Match market rates or industry norms for such payment; or
  • Sign a compromise agreement.

Can I offer a staff member alternative employment?

It is strongly encouraged that you look at alternative employment options within a business for ‘at risk’ employees. If you operate across more than one site and have capacity at another then you may wish to offer them a position elsewhere, if practical. The employer should also consider whether alternative employment is available via an associated employer.

If you offer suitable alternative employment, and an employee makes an unreasonable refusal to undertake the work, then they may lose their entitlement to a statutory redundancy payment.

I have already made an employee redundant because of covid-19. Can I re-employ them and furlough them? 

This is tricky. If they were made redundant between the 28 February 2020 and the 19 March 2020 then employers are entitled to rehire employees that were previously made redundant, as long they were still on the payroll as of 28 February 2020.

Unfortunately, if you chose to make someone redundant from 20 March 2020, when you knew the CJRS would be in place, the employee will not be eligible for support. 

Next Steps

If you intend to make an employee or group of employees redundant it is strongly advised that you seek professional advice and assistance from a solicitor. To find out how we can help, please contact us.

Coronavirus Job Retention Scheme extended to end of June

The Chancellor, Rishi Sunak, has announced a further extension to the Coronavirus Job Retention Scheme (CJRS), which will see employers able to furlough employees for an additional month.

The CJRS allows employers to retain employees on the PAYE Payroll who are not carrying out work for them by placing them on furlough and to claim a grant of 80 per cent of a furloughed employee’s usual pay, plus employer National Insurance Contributions (NICS) and minimum employer auto-enrolment pension contributions.

It means that employers can retain their workforce while reducing their staffing costs, although furloughed workers cannot carry out any work for the employer.

Business groups had sounded the alarm that employers could start the ball rolling on the redundancy process if the scheme was not extended beyond the end of May, because of the requirement for consultation periods if employers expect they will have to make collective redundancies.

Employers expecting to dismiss 20 or more employees within a 90-day period must hold a 30-day consultation, while those expecting to dismiss 100 or more employees must consult for 45 days.

This means that had the CJRS ended on 31 May, employers expecting more than 100 redundancies would have needed to have started consultations on 16 April 2020 if they planned to make employees redundant at the end of their furlough period. Meanwhile, Those expecting more than 20 redundancies would have needed to begin consulting on 1 May 2020.

Coronavirus (COVID-19) more FAQs for Employers

Hayley Trovato, Senior Associate in our Employment team, has answered some more questions employers may have around coronavirus (COVID-19):

The Coronavirus Job Retention Scheme – What is it and How do I apply?

This was announced by the Chancellor on 20 March 2020. Under this scheme any employer can obtain a grant to cover 80% of the salary of employees who would otherwise have been laid off, up to a total of £2,500 a month for each retained employee. This will cover the cost of wages backdated to 1 March 2020 and initially is open for at least 3 months unless extended further by the chancellor.

The scheme is open to those on PAYE. This means it will cover many workers as well as employees.

What do employers need to do?

To obtain a grant the employer has to designate the affected employee as ‘furloughed’ and notify the employee of the changes. They then have to submit  information to HMRC about the furloughed employees and their earnings through an online portal. There is no further information about the portal available as yet.

What does “Furloughed” mean ?

This is not a word that many people will have come across until a few days ago, although it is a commonly used expression in the United States where it relates to the temporary leave on an employee due to the special needs of a company or employer due to economic conditions. However, there is no legal definition in Employment Law nor is there any definition or guidance provided on its meaning by the government

The concept of furlough is similar to a lay off, in the sense that the employee must remain an employee and remain on the payroll and is not provided with any work. However, unlike a lay off where the employee is provided with no work or pay, furloughed employees will receive some of their pay.  Employees who are furloughed must not complete any work for their employer during this time.

Do employers have to provide a top up of the 80%?

This is  up to the individual employer to decide. It is also important to note that the scheme specifically refers to it being “subject to existing employment law.” This means an employer cannot just inform or compel an employee they are being furloughed, this has to be agreed with them. However, if the alternative is redundancies then it is likely an agreement will be reached without much resistance.

For the full details please refer to:

HM Government: Business support: Coronavirus Job Retention Scheme

What if I am self employed?

The House of Commons Public Bill Committee has proposed an amendment to the Coronavirus Bill 2019-2021 which would require the government to introduce “statutory self-employment pay” for the “self-employed” and “freelancers” equivalent to furlough leave for employees and workers. The amendment proposes that individuals who are self-employed or freelancers would receive a “top-up” to ensure that their net monthly earnings do not fall below the lower of:

  • 80% of their monthly net earnings, averaged over the last three years.
  • £2,917 per month.

There has been considerable pressure placed on the government to provide a scheme of relief for the self employed and it has been promised that help for self-employed workers will come very soon. This was announced yesterday – for full details see www.gov.uk/coronavirus.

What assistance is  government offering for the self employed ? 

The government announced a new Self-employed Income Support Scheme on 26 March 2020. This will provide cash grants to the self employed of 80% of the average monthly trading profit over the last three years, up to £2,500 a month. The scheme will run for an initial three months and will be extended if required.

To be eligible, the following requirements must be met:

  • trading profit must have been less than £50,000 in the 2018/19 tax year, or the average trading profit over the last three tax years , this must be less than £50,000 a year.
  • More than have of the income must have come from self-employment during the the period above.
  • You must already be in self employment.

HMRC will contact those individuals they consider eligible and they will calculate their grant using the average of trading profits form their tax returns from the last 3 years. It is hoped that these payments will be made from the beginning of June.  We are expecting to receive further details of the scheme from HMRC shortly.

What about employees who have already booked annual leave and are now layed off, are they permitted to take this leave?

On the basis that the employment contract continues during the lay-off then the employees rights in terms of their annual leave will be unaffected.

What if employees are not able take all of their annual leave due to the impact of COVID-19 ?

The Working Time ( Coronavirus ) ( Amendment ) Regulations 2020 SI 2020/365 have been brought into force with immediate effect. They means that any untaken annual leave not take due to the COVID-19 can be carried over into the next two leave years. This new rule applies only to the four weeks of annual leave provided for by Regulation 13 Working Time Regulations, but not the additional 1.6 weeks which is subject to different rules on carry-over.

Can an employer withdraw an offer of employment for new starters in the light of the COVID-19 pandemic? 

Consideration must be given as to whether a contract of employment has been entered into with the new starter. If there is a binding contract of employment then instead of withdrawing the job offer, giving rise to a potential breach of contract claim, the employer could give the employee notice of termination and pay them for their notice period. In doing this it is important that the employer ensures the reasons for the decision are well documented to avoid any allegations of discrimination.

The existence of a binding contract also means that any change to the start date would be a change in contractual terms. This means that an employer could only change the start date with the agreement of the new starter or if the contract gives them a right to do so. Even if such a right exists in the contract then an employer should ensure that this is exercised reasonably and also ensure they give consideration to a possible discrimination issues.

What issues should be considered if we need to ask all our employees to work from home in the light of the government’s announcement on 23 March 2020?

Employers should refer to The Acas, Working from home guidance which sets out the following issues to consider, including:

  • Supporting employees to adjust to home working.
  • Employers and employees’ health and safety responsibilities, including looking after mental and physical health
  • Equipment and technology.
  • Ongoing assessment of home working systems and arrangements.
  • Setting clear expectations.
  • Keeping in touch.
  • Pay and terms and conditions of employment.
  • Working from home and childcare.
  • Expenses.
  • Insurance, mortgage or rent agreements.

For further information, please do not hesitate to contact me by email or on 020 8349 5487.