Nathan Thomas from Horizon Solicitors
Latest figures show there were 484,000 employers with 1.6 million staff on furlough on 31 July 2021, so when 30th September comes, what’s next?
Put simply, employers will have 4 options:-
• take back their furloughed workers;
• continue to work from home or hybrid working;
• use lay off or short-time working; or
• make them redundant.
Let’s explore each in turn.
Return to Work
Businesses don’t legally have to give furloughed workers notice that they are being called back to work, but it’s recommended that they do, and employees are being advised to contact their employer if they haven’t heard from them.
The government’s advice envisages that forms of hybrid working will remain, and for many businesses this will make commercial sense, drawing on their experience over the last 18 months. However, for those planning a full return “to the office”, a hybrid pattern or phased return will give workers time to adjust. Every business will need to be prepared to continue their flexible and adaptable approach to working, however, because in areas where the case rates rise or are already high, employers should be considering continued home working and be ready to roll back any loosening of restrictions at short notice.
Risk assessments
Employers should revisit their risk assessments and review their return to office and working from home arrangements. The risk assessment will be a dynamic document, and given the new government advice, coupled with developments in vaccination, testing and information on increased virus transmissibility rates, the mitigating actions may need to be adapted accordingly. For example, different regions and different employees may have varying risk factors which will need to be identified and acted upon.
Consultation
Latest government advice encourages consultation with staff on the health and safety measures to be taken to reduce the risk of COVID-19 spreading. In addition, employers should discuss longer term plans concerning any return or hybrid working and the timing of any phased return. Employers could have virtual collective discussions with staff, perhaps using online town halls, and I can help facilitate these. Discussions should take place with any employee representatives as well, particularly for unionised organisations. Employers must also consult with employees individually taking account of any risk factors and concerns they raise.
Actions
For staff remaining in or returning to the workplace, employers will have to follow the Government’s new working safely guidance. Overall, this guidance emphasises a higher degree of responsibility on employers to care for employees and customers. The suggestion is that many of the previous precautions should continue, including social distancing, screens and other measures. It can easily be found on the gov.com website under Guidance on Working Safely During Coronavirus, which was updated on 17th September 2021.
As always, extra consideration should continue to be given to those people at higher risk. Although many people will now be fully vaccinated, this should not automatically be assumed to be the case. Employers should consult with employees on an individual basis, taking account of any risk factors and concerns they raise.
Clinically extremely vulnerable employees (CEV)
The government’s advice on shielding has ended in England. However, employers should still discuss with CEV employees how they are feeling about a potential return to the workplace and provide support and a phased return to help them do this. The latest guidance advises employers to give extra consideration to people at higher risk and also any workers facing mental or physical health difficulties.
Home and Hybrid Working
Many employers have already planned and adopted long-term flexible working arrangements and hybrid working with staff e.g. three days per week from home and two days in the office. Employers should not just rely on their existing contracts of employment. There are many practical and legal matters to address for any period of homeworking, and I can help with these. Some of the most important considerations include:
• Selection of staff
• Supervision
• Monitoring of performance and output
• Guidance for line managers
• Equipment
• Insurance
• Security
• Video conferencing software
• Motivation techniques / culture / employee engagement
• Working time
• Health and safety
• Salary and expenses
• Data protection
• Pay
• Tax
• Employees who work from other homes or overseas.
Picking out a couple of these issues, reimbursing staff for utility expenses is entirely at an employer’s discretion. Due to the current economic pressures, many employers will decline any requests they receive to reimburse employees for these home expenses. If employers do reimburse heating and lighting etc. for staff working regularly from home, then they can however pay a tax-free set sum to help with these expenses.
HMRC accepts a flat rate allowance of £6 per week or £26 per month without evidence to support the actual real costs = £312. Employees with provable higher costs can claim more if they have evidence of the actual costs incurred.
By contrast, a pay cut due to employee’s reduced transport costs would be a significant detrimental change to an employee’s terms and conditions, and employees may refuse consent. This could not just simply be imposed. Whilst in the current situation employees may feel that they have little alternative but to agree, as it may be difficult for them to find employment elsewhere, prior consultation, notification and express written agreement to such changes. is always the safest option.
Lay Off and Short Time Working (LOSTW)
If your contract of employment has an express clause allowing lay off or short-time working, then employers may invoke these clauses and will not be in breach of contract if they then cut pay or hours. These clauses were traditionally incorporated into contracts used in the automotive, manufacturing and construction sectors, but are now being considered by a range of other employers. If you are using LOSTW, please drop a comment below.
In the absence of a contractual provision, then such actions would be in breach of contract, would constitute an unlawful deduction from wages, and employees could resign and claim constructive unfair dismissal.
Employees are entitled to receive full pay during LOSTW unless the contract of employment allows unpaid or reduced pay lay offs.
This is a really technical area, so drop me a DM if you would like some support.
Lay off is when an employee is off work for at least one working day, and short-time working is when their hours are reduced.
Employees with greater than 1 month’s service are entitled to statutory guarantee pay during LOSTW, which must be paid by the employer, even if the contract states that it is unpaid. The maximum amount is £30 per day for 5 days in any 3 month period, so a maximum of £150. Guarantee pay cannot be claimed for any day that an employee does some work for you.
Although there is no limit to the time that an employee can be laid off or put on reduced hours, the right is not open ended. An employee can take matters into their own hands and seek a redundancy payment if the situation persists for either:
• 4 weeks in a row, or
• 6 weeks in a rolling 13-week period.
To claim redundancy the employee must write to the employer with a notice of intention to claim redundancy within 4 weeks of the last day of the 4 or 6 week period of lay-off or short time working.
An employer can resist the claim for redundancy by serving a counter notice to the employee stating that they contest the claim, in writing within 7 days of the claim.
The employer can only resist the claim for redundancy on the ground that there is a reasonable expectation of:
• work for the employee commencing within 4 weeks of the claim; and
• the work is expected to continue for at least 13 weeks
The employer must then ensure that the employee is taken off lay off or short time working during the four week period following the claim, otherwise their defence will fail.
Redundancy
In most cases, an employer should have already started the redundancy process if it is planning to let employees go by 30 September. If you haven’t, and you are planning redundancy, get in touch !
If you need any help or have any queries, drop me a DM.
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