Back to school (and the workplace)........issues for employers

As the school holidays have ended and more employees return to the workplace in line with government recommendations, we outline some of the issues employers may be faced with in coming weeks.

1. Health and safety in the workplace

First and foremost, if employees are expected to return to the workplace, employers need to ensure their premises are safe.  This applies to all employees from the first day of their employment.  

As highlighted in our July employment briefing, an employer has a duty under the Health and Safety at Work etc Act 1974 to provide for the health and safety of its staff.  In addition, there is an implied contractual duty in every contract of employment for employers to take reasonable care of their employees’ safety and working conditions.

These duties exist regardless of the coronavirus pandemic, but the pandemic has certainly brought them into sharper focus.  

Whilst the government’s updated guidance on working safely during coronavirus is ’guidance’, as opposed to a legal obligation; if employers adhere to the same, they should be well placed when it comes to complying with their duties as far as coronavirus is concerned.  The guidance contains six main guides, each one being tailored to a specific workplace setting.  Common to each of these guides are six priority steps which employers are advised to implement:

1. Complete a health and safety risk assessment that specifically addresses the risk posed by Covid-19, which should be done in consultation with unions or workers;
2. Provide adequate ventilation;
3. Clean more often;
4. Turn away people with Covid-19 symptoms;
5. Enable people to check in at your venue;
6. Communicate and train staff on safety measures and how those are updated.

A failure to provide for a safe workplace could give rise to enforcement action from the Health and Safety Executive or claims by employees for personal injury.  Further, where staff raise concerns about health and safety and employers fail to address those concerns appropriately, it could lead to litigation in the employment tribunal for claims including unfair dismissal and discrimination.  Whether or not such claims will succeed is fact specific.

A case from recent months involved a claimant who allegedly left his workplace over concerns about infecting his children with coronavirus.  Whilst he was dismissed, his dismissal was not held to be automatically unfair.  The Tribunal accepted that the employee had significant concerns about Covid-19 generally, but in these particular circumstances, it was not enough to support a reasonable belief that his workplace posed a serious or imminent threat.  This case highlighted the importance of employers implementing sufficient measures to mitigate the risk of coronavirus.

2. Working from home and hybrid working

Prior to the pandemic, the default position for many employees was that their normal place of work was their employer’s premises.  However, the pandemic has demonstrated that it is possible for businesses to operate with all, or the majority, of their staff working remotely.

This has given rise to much debate for employers as to what might be the most effective and cost-efficient operating model as we emerge from coronavirus restrictions.  For some, the message to staff has been clear, with the CEO of Goldman Sachs, reportedly having called remote work, “an aberration that we are going to correct as soon as possible.”  Other employers however, such as Twitter are understood to be embracing the ‘new normal’ and making remote working a permanent option for employees.  The third option is a hybrid approach, where staff divide their working time between home and their employer’s premises.

There are a number of considerations for employers when determining where and how employees should work, including culture and identity, recruitment, learning and training, communication, costs, productivity, and employee performance and discipline.  

If employers do embrace working from home and hybrid working going forwards, it would be prudent to consider certain practical steps if they haven’t already.  These include:

• The review and development of homeworking or hybrid working policies;
• Amending, negotiating and implementing amendments to employment contracts to capture home and hybrid working.  This will potentially include amending not only the place of work, but also giving consideration to amending terms relating to remuneration and in particular, location allowance or weighted pay.  It may also include providing for other business considerations such as the preservation of confidential information;
• Issuing staff with written statements containing particulars of changes to their terms of employment within one month of any change;
• Reviewing health and safety arrangements of homeworking and carrying out a risk assessment;
• Ensuring all necessary and appropriate equipment is provided;
• Considering any insurance arrangements or tax and immigration consequences as a result of staff working from home (and potentially abroad);
• Taking steps to ensure the protection of confidential information and personal data;
• Making home or hybrid working subject to a trial period

3. Flexible working requests

Where employees have become accustomed to a new preferred way of working, this could give rise to requests for permanent changes to their contractual hours, times or place of work.

Whilst it would be prudent for employers to carefully consider all such requests (primarily owing to the risk of discrimination claims), they are only legally obliged to consider the same where they constitute formal flexible working requests made by eligible employees pursuant to the Employment Rights Act 1996.  Eligible employees are those with at least 26 weeks’ continuous employment and who have not previously made an application in the last 12 months.  Employers are under a duty to consider requests reasonably and to inform the employee of their decision within three months or any longer agreed period.  Further, employers can only refuse requests for flexible working on a number of grounds:

• Additional costs;
• Detrimental effect on ability to meet customer demand;
• Inability to re-organise work among existing staff;
• Inability to recruit additional staff;
• Detrimental impact on quality;
• Detrimental impact on performance;
• Insufficiency of work during periods the employee proposes to work; and
• Planned structural changes.

If eligible employees are dissatisfied with their employer’s decision, it could lead to claims in the employment tribunal.  Whilst it is not within the power of the tribunal to redetermine the outcome of a flexible working request, the tribunal is able to make an order for reconsideration and make an award for compensation of up to 8 weeks’ capped pay.

Employers should also be alive to the risk of related claims for discrimination, perhaps on grounds of disability, sex, or race, together with claims for detriment, unfair dismissal and constructive dismissal.

Complications can also arise where employers receive requests for changes to working patterns from more than one employee at the same time.

4. Vaccination

As of 6 September 2021, 48,270,113 people in the UK had received their first dose of the COVID-19 vaccine, whilst 43,455,083 people had received the second dose.  The number of people who have received their first dose is estimated to represent close to 70% of the population.

Employers will inevitably be considering whether they should require employees to be vaccinated or otherwise request details of their vaccination status before permitting their return to work.

Save for workers in the care sector, who must generally be fully vaccinated by 11 November 2021, the government has not mandated that staff should be vaccinated (it is anticipated that mandating vaccination in the care sector will be subject to judicial review).

As far as existing employees are concerned, employers are unlikely to have a clear contractual right upon which they can rely to oblige employees to be vaccinated.  Instead, they would be left to either issue a (reasonable) management order, with failure resulting in potential disciplinary action, or seek to amend contracts to include a contractual obligation.

Mandating vaccination again gives rise to potential claims including unfair dismissal, constructive unfair dismissal and discrimination.

Alternatives to mandating vaccination include encouraging employees to get vaccinated, which is in line with government guidance.  Employers might even consider offering incentives, perhaps by way of vouchers or extra holiday.

If employers ask or encourage employees to share details of their vaccination status, they should again be mindful of their data protection obligations and ensure that if they are collecting the information it is deemed ‘necessary’ and there is a lawful basis under the GDPR for doing so.

Ultimately, whatever policy employers adopt to vaccination, they should ensure that it is clear, communicated and applied consistently.  Employers should also make exceptions for those who might be unfairly prejudiced in complying with their policy, by reason of protected characteristics (such as those with disabilities or with religious beliefs which act as barriers to vaccination).  Lastly, they should seek to ensure that their policy is proportionate and justifiable in all the circumstances.

5. End of government Coronavirus Job Retention Scheme (furlough scheme)

For many employers and employees, there can be little doubt that the furlough scheme has been a lifeline.  It was introduced by the government at the outset of the pandemic with a view to avoiding mass redundancies, as businesses were forced to close and the country was ordered to ‘lockdown’.

The furlough scheme is now due to end on 30 September 2021.  Given the progress which has been made with vaccinations and the management of infection levels, it is not presently anticipated that the furlough scheme will be extended.

For those employees who are still on furlough, the hope is that, gradually, employers will be able to facilitate their return to the workplace.  With that in mind, employers should consider how they will go about triggering the end of furlough.  An employer’s first consideration should be what, if anything, it has previously agreed with its employees about returning to work from furlough.  Indeed, if there are written furlough agreements with employees, employers should check any relevant provisions.  Subject to any required period of notice specified in a furlough agreement, there is no minimum notice period which is required to be given to employees when bringing furlough to an end and inviting them back to work.  However, it would be prudent to give reasonable notice.

ACAS recommends that when employers end furlough, they should give staff notice in writing that they are doing so.  It also recommends consulting with staff as soon as possible about plans to end furlough and inviting staff to raise any concerns they may have about returning to work sooner rather than later.

6. Redundancies

The pandemic has been particularly damaging to businesses in the retail, aviation and hospitality sectors.  Despite the progress made by the country in recent months, some businesses will continue to struggle in coming weeks and months.  For those businesses with staff still on furlough, they are faced with significantly increasing payroll costs, both in terms of increased furlough contributions and then the end of the furlough scheme on 30 September 2021.

Should employers consider making redundancies, they should ensure that there is a genuine redundancy situation and implement a fair redundancy process.  This will involve warning and consulting employees, operating a fair selection process, and considering alternatives to redundancy, such as alternative employment or reducing working hours.  Additionally, it is generally considered prudent to offer employees the right to appeal.  If an employer fails to operate a fair redundancy process, it could be liable for claims for unfair dismissal.

Notably though, for those employers with larger workforces who are proposing to dismiss as redundant 20 or more employees ‘at one establishment’ in a period of 90 days or less, they should bear in mind their additional collective consultation obligations.  Here employers are obliged to collectively consult with appropriate employee representatives about the proposed redundancies.  Consultation should begin in good time and if 100 or more employees are to be dismissed, consultation must begin at least 45 days before the first dismissal takes effect.  Where 20 to 99 employees are to be dismissed, consultation must begin at least 30 days before the first dismissal takes effect.  It should additionally be noted that before an employer can begin consultation, if there aren’t existing employee representatives in place, an election of employee representatives should be facilitated.

A failure by an employer to comply with its collective redundancy obligations could give rise to related legal claims and punitive awards; with each employee potentially being awarded a week’s (actual gross) pay for each week of the protected 90-day period.

Lastly, a failure by an employer to formally notify the Secretary of State on Form HR1 that it is proposing to make collective redundancies is a criminal offence.

7. Changing terms and conditions of employment

Managing the return to work of employees may lead to employers giving consideration to seeking to amend terms and conditions of employment.

A desire to change employment terms could arise for a number of reasons.  For example, it could arise as a result of the employer introducing home or hybrid working arrangements on a permanent basis.  Alternatively, it might be driven by financial concerns, with the employer seeking to reduce pay or amend hours of work.  The employer may also contemplate introducing an express contractual right to lay-off staff (providing employees with no work and no pay for a period while retaining them as employees) in the event of future business interruption or an economic downturn.  Otherwise, there may be concerns about the threat of competition and existing employees moving to new employers as we emerge from the pandemic; this could prompt employers to review notice periods and post-termination restrictions. Employers will also be keen to attract new employees which may lead them to review the incentives offered under their existing policies and contracts.    

When seeking to amend employment terms, firstly, an employer should review existing contracts to see whether it can operate within the ambit of any existing contractual provision.  Otherwise, it could seek to rely on an express right to unilaterally vary terms and conditions of employment.  In practice though, even if an express right to vary is specific and clearly drafted, it will usually be difficult for the employer to safely rely on it unless it is seeking to vary a relatively minor contractual provision and, in any event, employers could still face related employment tribunal claims.

Therefore, when varying a contractual provision, in general, an employer should consult with staff and/or its representatives and attempt to secure their express consent to contractual changes.  Thereafter, employers could consider seeking to unilaterally impose contractual changes, but this could give rise to claims for breach of contract, unauthorised deductions from wages, unfair dismissal and constructive unfair dismissal.  In conjunction with this, employers could consider terminating existing contracts of employment and offering to re-employ staff on new terms.  However, this would again give rise to potential claims including unfair dismissal.  If the employer is proposing to terminate the contracts of 20 or more employees, it could also trigger the duty to collectively consult.

8. Annual leave

According to an article published by ACAS on 30 July 2021, around 39% of employees have taken less paid time off during the pandemic than before it started. This is likely to have been influenced by a number of factors including workers not wanting to use their annual leave whilst being unable to travel abroad, or being subject to coronavirus restrictions.  Others may not have seen the benefit of taking leave whilst on furlough, whilst some will have been prevented from taking holiday owing to business demands.

With effect from 26 March 2020, the government amended the Working Time Regulations 1998 to permit the carry-over of 20 days (for those working five days a week) for up to two years where it was not reasonably practicable to take in the leave year as a result of the effects of coronavirus.  This might be the case, for example, where an employee was required to continue working as a result of increased demand during the pandemic.

Consequently, a number of employers are likely to find themselves with employees who have accrued a significant amount of accrued but untaken holiday.  In the circumstances, it would be sensible to review holiday accruals, communicate with employees and encourage staff to take holiday at mutually convenient times.  This is not only to ensure that that employees receive and make best use of their entitlement.  It is also to mitigate against the risk of a backlog of annual leave and the potential costs and interruption that could be caused to the business in the future by trying to accommodate extended periods of holiday or overlapping holiday requests.

If seeking to encourage employees to take annual leave does not have the desired effect, then it is possible for employers to give notice to employees that they are required to take their statutory leave on specified dates.  This is subject to the notice being at least twice the length of the period of leave that the employee is being required to take.  If employees are contractually entitled to take holiday over and above their statutory entitlement then consideration should be given to how this holiday should be managed too, bearing in mind any relevant contractual provisions.

Government guidance indicates that although employees should not be placed on furlough because they are going on paid leave, it is possible for employees to take holiday whilst they are on furlough.  In this instance, particular care should be taken with calculating holiday pay, in general, employees would be entitled to their normal pay (as opposed to reduced furlough pay) whilst on holiday.  But, the employer would still be able to claim the government’s contribution to wages through the furlough scheme for the same period.  Therefore, if it is reasonably practicable for an employee who is already on furlough to take holiday, and the employer gives notice for the employee to do so; it may be more cost effective than the employee returning to work and then taking holiday.

Please note that this article is not intended to be exhaustive and should not be taken as legal advice on any of the subjects covered.

If you require legal advice in relation to any of the issues addressed in this article, please contact a member of our employment team.