Coronavirus: Q&As for employers, what steps do I need to take now?

Insights 23.03.2020 Author: Andreja Okamgba

Employers are understandably becoming increasingly worried about the developing Coronavirus outbreak and the impact of the situation on their employees and businesses. Below we explore some of the common issues in more depth. If you have any questions, please don’t hesitate to get in touch.

Workforce changes

We need to look at temporary reductions in staff numbers – what is “Furlough” and can we use this?

By virtue of an employment contract the employer is obliged to provide work for the employee (unless they are on a zero-hours contract) and if the employer is unable to provide work because business has dried up or the supply chain has failed, then employees should still be paid as normal, even if they are not working.

Continuing to pay staff if there is no money coming into the business during the Coronavirus outbreak will be impossible for most companies and they will be looking for alternative options. The Government has introduced Coronavirus Job Retention Scheme to help employers avoid the needs for redundancies, unpaid leave and layoffs. Reimbursement of 80% of salary costs up to £2,500 per month will be available to all UK companies for any employee who is not able to continue working and is classed as “furloughed” or on “furlough leave”. This is a new concept under the UK employment law and we are awaiting Government guidance regarding the details of the qualifying criteria and how the scheme will operate. What we do know is that employees will not be allowed to work at all during furlough and the scheme will not be available to employees whose hours are reduced.

We know that the furlough process is still subject to employment law which means it cannot be imposed unilaterally. A consultation process will have to take place and their express agreement obtained before furlough is implemented. In most cases employees will have little choice, as the alternative will most likely be redundancy and losing their job completely or unpaid leave or layoff.

Can we lay people off work?

Lay-offs (not providing work and not paying for a period of time) and short-time working (providing less work and consequently lesser pay for a period of time) are alternative options. You will only be able to rely on these provisions if the relevant clauses are part of employment terms and conditions; unfortunately, they are rarely included in standard contracts. In the absence of such contractual clauses you can still ask staff to agree to lay-off or short-time working arrangements, but they will have to expressly confirm this before you are able to proceed.

When the Coronavirus Job Retention Scheme was announced these options have become significantly less attractive for employees who could continue to receive at least 80% of their salary if they are placed on furlough leave instead.

My business is just not viable anymore; how do I go about making redundancies?

A normal redundancy process should still take place for any redundancies in these unprecedented times. This will require a meaningful consultation to take place where you will have to explore alternatives to redundancies, so it is worth thinking about these now. This may involve measures to redeploy staff to other parts of the business or to another business in the group, encourage staff to take annual leave, seek their agreement to reduce their hours, cut pay or benefits, or look at temporary lay-offs instead of redundancies.

Where the alternatives don’t work and 20 or more employees are to be made redundant, this may mean the mandatory collective consultation period of 30 or 45 days (depending on the number of staff to be made redundant) will still apply. Employers may be able to defend non-compliance with the collective consultation provisions where special circumstances exist – the threshold for this is set high although a worldwide pandemic is likely to be accepted by the Tribunals as a sudden disaster, allowing redundancies to proceed and be considered fair even without the required consultation period.

Statutory rules regarding paying the notice and statutory redundancy pay will all still apply but there is help available with these costs where the business in going through insolvency.

Annual leave

Can I ask my employees to take annual leave as we don’t have any work to give them?

In many cases employment contracts will allow the employer to require employees to take annual leave at times chosen by the employer with appropriate notice given. This is most widely used for Christmas closures or summer closures but could also be used in this situation.

While this can prove useful in the interim until further plans are put in place and we have more clarity on the situation, it is unlikely that annual leave will be sufficient to cover the entire period of business downturn.

I have been asked to grant leave and cancel leave at short notice and it is causing even more disruption. How much flexibility is expected from employers regarding paid annual leave?

Various scenarios have arisen in regard to annual leave and employers are advised to be as flexible as possible but be careful to apply the same rules to everyone. Some rules that you could look at relaxing include:

  • Allowing short notice cancellation of pre-booked annual leave periods as borders close and travel plans get cancelled
  • Allowing booking of annual leave at short notice especially for those who are finding it hard to cope with working from home
  • Allowing carry over from this holiday year to the next where staff are prevented from taking their balance in the coming months
  • Absence

The Government warned that up to a fifth of the UK’s workforce could be off work sick at the peak of the virus outbreak. What can we do to prepare?

Many sectors have already seen a significant downturn in business, so staff absences may not pose an issue, but it is a serious concern for key sectors like healthcare, social care, supermarkets, delivery companies, etc. With little time to recruit additional workers, companies will have limited option to deal with staff shortages.

The focus should be keeping the workforce healthy, providing suitable protective equipment and ensuring the workplace is clean and safe. This will mean different measures for different businesses and sector specific advice is being issued by the relevant bodies.

Transferrable skills training and colleague shadowing may prove a valuable investment before the worst levels of absences hit, so that those who are well enough are able to fill in for absent colleagues. Office workers may need to be asked to move into frontline positions and where possible you should train them to be able to do so now.

The Government is also reported to be considering emergency legislation which would allow skilled, experienced or qualified volunteers up to four weeks’ leave from their usual jobs in order to work temporarily in the NHS or care homes. If you employ qualified staff this may also be something you should plan for.

In what circumstances do I need to pay sickness pay to my employees?

Emergency legislation has been passed to change the Statutory Sickness Pay (SSP) rules and to ensure this is available from day one (rather than after the usual three day waiting period). Even though those self-isolating are not strictly speaking sick, anyone self-isolating will also qualify for SSP under the new rules.

Your normal rules regarding company sickness pay will continue to apply unless you amend them.

Should we still request employees to provide a doctor’s certificate (fit note) for sickness absences of more than seven days?

A typical sickness absence policy will ask for a doctor’s note to be provided for absences over seven calendar days. It may be reasonable to relax this rule as doctors are struggling to keep up with demand, are seeing more patients on a video link and may not always be able to issue a note. Furthermore, not everyone will even get to see a doctor and will follow the advice to stay at home, especially if their symptoms are mild. If you are concerned about a large number of employees taking advantage of this, you are entitled to keep the requirement for the fit note to be provided as the NHS 111 service is still able to issue the required notes. There may however be a delay and some employees may genuinely not be able to get hold of a note.

Flexible working

How should we handle those employees who don’t wish to work from home?

Asking employees to work from home is likely to be considered as a reasonable request that the employer is allowed to make, especially once the Government has issued the advice that employers should enable staff to work from home where possible. Refusing to comply could therefore be a breach of contract, though it would be prudent of any employer to carefully consider the employee’s reasons behind the refusal and try to find a mutually acceptable solution.

Can we require staff working from home to utilise their own IT equipment?

The current Government advice is that employers should enable staff to work from home where possible. Employers who are ahead of the game in supporting and encouraging flexible working, agile working and working from home arrangements can feel quite smug about the investment they have put in, because allowing people to work from home will very likely go a long way in keeping the business running. Many businesses, however, will not have the required systems and IT equipment in place for everyone to work from home. While strictly speaking the employer should provide the necessary equipment the employee needs to work from home, it will be reasonable to ask employees if they have such equipment and would be willing to use it for work purposes.

Many roles in my company are not suitable for home working. What should be do about these?

Even those positions who would not normally be suitable for home working (such as receptionists or office assistants) could still be given work on various projects, perhaps not normally included in their duties, to maximise value should they need to stay at home.

Often the most important jobs are those that can’t be done from home and the focus here should be on ensuring everyone’s safety and putting all the measures in place to prevent the virus spreading.

A lot of staff working from home will also care for their children at the same time. We don’t want them to be distracted but is there anything we can do about this?

The legislation provides for emergency leave for dependants in order to put arrangements in place for the care, and it is not designed for employees to stay at home to care for dependants. There is no special entitlement for such a situation where schools, nurseries or childminders cannot open. Flexibility would be expected from employers in these circumstances – you could allow annual leave to be taken at short notice or approve unpaid leave, however there is no legal entitlement to any time off.

To help employees manage the childcare alongside work you could look at flexibility around their hours, allowing them to start and finish earlier or later and to take a longer lunch break if this helps.

Travel

All our staff are required to travel extensively. Are we within our rights to continue to require them to do so until the Government advice changes?

The current Government advice is for employees to work from home if possible and to limit all social contact. Technically speaking, employers are entitled to ask staff to travel, especially where travel is part of the job, and employees cannot refuse travelling subject to official travel advice, nevertheless any concerns from staff should be taken seriously. With the Government advice in mind it would probably be irresponsible for employers to continue to expect employees to travel and meet customers or clients. Several businesses have taken the decision to cancel or postpone all business travel and this trend is likely to continue with international travel shutting down and borders closing. Video conferencing or phone calls could replace personal visits as an interim measure.

Workplace health and safety

Above everything else, employers have a duty of reasonable care to their employees, not to put anyone at risk and to do everything reasonable in their power to minimise the spread of the virus, and limit its effect. The most obvious way to achieve this is to allow employees to work from home where possible. Those who cannot work from home can expect to be provided with cleaning equipment to clean their workstation and other areas where they work, but employers should also ensure the general office cleaning is increased. Offices and working areas should be fully stocked with equipment needed for everyone to frequently wash their hands with warm water and soap and use alcohol hand gels where appropriate. Personal protective equipment should be provided where necessary. It is important to listen to medical experts as the situation is changing rapidly.

Elderly employees, those with underlying conditions and pregnant employees should be assessed as a priority to ensure continuing to work and/or coming into the office is not putting them at unnecessary risk. To mitigate the risks, you may be able to reassign duties to avoid those at risk being in direct contact with the public or allowing them to work from home where possible.

Mental wellbeing

Some employee who have been asked to stay at home and avoid contact with other people may find it more difficult than usual to take care of their mental health and wellbeing. Losing the routine of going to work and seeing colleagues can have a significant impact and it is important that employers address this before it becomes a problem.

Many resources are available online and it is about finding something suitable for your employees and communicating this to them. Providing advice on eating healthily, staying active, designing a home-working routine, getting some fresh air and sunshine, breathing exercises and desk yoga are just some examples of how to stay positive.

What next?

If you have any further questions on the impact of the growing epidemic on your company’s existing HR policies and how to deal with specific situations with your staff, please contact out HR Consultancy team.