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Whilst no end date has yet been set for the UK’s lockdown, there is now clear indications that the UK will shortly be moving into a new phase of its COVID-19 (Coronavirus) response.

The transition as businesses re-open and employees return from home-working or furlough leave will lead to new challenges for employers to manage, and these will arguably be more difficult and elongated than the initial lockdown. Below, we consider a number of these, and some of the considerations employers should have in the weeks and months ahead.

“Un-Furloughing” Employees – Selection, Timing and Fairness

On even a basic level, the challenge for employers will be huge. The Chancellor in his statement to the House of Commons on 27 April, revealed that over 4 million jobs had been placed on the Coronavirus Job Retention Scheme (“CJRS”), showing the sheer volume that the transition will entail.

CJRS

The CJRS is due to end on 30 June, though this may of course be extended by the Government. A number of issues could arise here:

• Bringing employees back before the CJRS ends – Assuming the lockdown ends before 30 June, employers will likely wish to use the period up to 30 June to transition and slowly re-integrate employees. Employers may have amended their working practices, or may open in an altered form (cafés becoming takeaway stores for example), and therefore employers may wish to bring back some members of staff only.

Employers will then need to consider who to bring back and when, the cost of doing so, and how to select these employees fairly and with minimal risk of discrimination. They may also need to consider how to alter roles or other parts of employee contracts as discussed below;

• End of the CJRS Scheme – Once financial support ceases, employers may need to consider options such as voluntary arrangements for reducing hours of work, restructuring roles, or in extreme circumstances redundancy. Any voluntary arrangements should be carefully considered, and agreed rather than imposed, especially in the case of salary reductions. Employees may be less willing to accept such alterations in the recovery phase as they would have been at the outset of the crisis, especially as they return to normal working practices and the perception is that it is now business as normal

Selecting and timing an Employees Return, Re-Assignment or Redundancy

When employers have furloughed employees, it has been advised that they do so through consultation and agreement to minimise the risk of claims, discrimination and also, on a purely managerial and workplace unity approach. The same approach should be applied when considering who should return from Furlough, when, and in what capacity.

• Remain Objective – objective criteria should be used to determine who should return, and in particular look to employees who are required to meet the demands and needs of the business, such as employees who may be able to re-open the business;
• Consult and agree – As when furloughing employees, seeking agreement will be the best way to minimise the risk of claims. It is also likely that many employees will have seen changes in their personal and work lives, and knowing the availability and concerns of each employee may help employers not only avoid unfair decisions and reduce the likelihood of claims, but potentially be more effective post lockdown, as they match their business needs to the various set-ups, locations and adaptations employees now have available;
• Remember Furlough Requirements – To claim back 80% of an employee’s wage under the CJRS, the employee will need to have been on furlough for at least three weeks. Therefore, selecting an employee before they reach this point will stop an employer being reimbursed for that employees’ wages;
• Consider your Furlough Agreements/Letters – Many employers will have signed written Furlough Leave Agreements or Furlough Leave Letters, stipulating the terms for an employee’s furlough period. These may contain provisions for the return to work, and employers should be careful in following any terms or processes therefore already agreed with their employees.
• Employee dis-agreement and Furlough - There may be scenarios where an employee does not want to accept a new or varied role, which mean you wish to bring back another employee instead from Furlough. Employers should carefully consider whether employees could assist the needs of the business within their current role, or with agreed alterations, rather than simply moving onto a different employee who will agree to all the employer’s ideals, as this could risk discrimination claims if the employee’s reason is based on a protected characteristic.

The “New Normal”

The phrase the “New Normal” is becoming more widespread and has no definition, but it is almost impossible to see how the economy and the world will return to exactly how it was before the outbreak. Outside of social and societal changes, employers and employees alike have adapted to find new ways of working, and in some cases this has produced more effective, convenient and efficient practices.

Changes to employment contracts

Employees have the right to request a change to their employment contract under the Employment Rights Act 1996, provided they have at least 26 weeks service. Most notably following the outbreak, they can request a change to:

• the hours they are required to work;
• the times they are required to work; and
• Where between their home and their place of business they are required to work.

Following the introduction of homeworking, and potentially with the practical issues and personal health concerns that may follow the end of the lockdown (see below), employees may more readily make requests for amendments in these areas, especially in respect of homeworking. Employers will need to engage with any request, and meet with the employee to discuss the practicalities of such a change.

Employees may only make one request every 12 months, and an employer is not required to accept or implement any request. However, employees can bring claims to the Employment Tribunal if employers do not act reasonably, do not notify employees of a decision on a request, or reject the request for a reason which is not permitted. There are a limited number of reasons to deny such a request, including but not limited to:

• detrimental effect on ability to meet customer demand;
• burden of additional costs;
• inability to re-organise work amongst staff; and
• detrimental impact on performance.

Whilst each of these and the other decisions could be used as good reason to deny homeworking and other alterations (in the right circumstances) as lockdown is eased, this may not be as easy as before. Whilst we will not know how a Tribunal will respond going forward, employers should consider now that homeworking and other alterations have been tried and used, it may not be as easy to suggest there would be additional costs or a detrimental impact on performance, if arrangements have worked well during the lockdown period and are now readily available having been arranged during this period.

Employment Tribunals or the Government may yet distinguish between the effectiveness of such measures in a reduced period of economic activity and normal working practices, but how they will treat any period of transition, and balance business needs against employee protections, is yet to be determined. An employer who is therefore faced with a request for amended working during lockdown transition or otherwise, should carefully consider if such a request can be accommodated, and should seek advice where required on how best to handle the process, and what rights they and the employee have.

Role and Responsibilities upon Return

Given that many businesses will open in a revised form, many employees will not return to the same role they held before being furloughed.

The first port of call is an employee’s contract, which may allow for some changes, but there may be limitations on this or a process that needs to be followed, and each contract should be read fully and advice sought where needed. If there is no express provision in the contract to permit changes the employer will need to agree any changes, temporary or otherwise, with the employee. Even where there is an allowance in the contract, consulting is advised to ensure that the proposed change will work for both employer and employee, and to avoid potential practical issues that may arise.

Health & Safety (including Mental Health)

Social Distancing

It is likely that social distancing will remain in place post lockdown and employers may need to consider how many employees they can have return, with consideration to office space, resources and potential customer or clients coming to the premises.

Balancing Concerns

There have been no post-lockdown measures announced, but we know a contract tracing application is being developed, and testing increased. Employers may need to be careful about imposing restrictions on employees such as requiring that they take an infection or anti-body test, or that they must possess any contract tracing application, and balance this with the health and safety of their colleagues and clients.

Not selecting an employee to return or requiring an employee to work in a certain way using such criteria is arguably not objective, and in the absence of any legislative requirement, may be deemed discriminatory. However, there will be employees who will not want to return to work if colleagues are not tested or traced, or other health and safety measures are provided. Employers will want to carefully consider how they wish to approach this, and strike a balance between not imposing requirements on employees with the needs of health and safety.

Employee Requests 

Some employees are already known to have resigned from roles or refused to work for employers forcing them to work or not making adequate adjustments. Employers should carefully consider any request where an employee stresses a health concern, be that physical or mental, and always take legal advice.

Testing & Isolation 

This is already something employers have been grappling with, and employers should be prepared to not only allow time off for employees to receive tests, but also for the continuation of self-isolation.  An employee may be perfectly well and have no symptoms but could in all probability be forced to self-isolate if the contract tracing data informs the employee that he or she has been in close contact with someone who has tested positive for coronavirus. 

Whilst the end of lockdown would naturally lead to the conclusion that self-isolation and absences will reduce, this may not end up being true. Contact tracing means more people could be alerted to a potential exposure to COVID-19, and be sent for testing. Those who test positive will be asked to isolate, as will family members, and furthermore every time a person tests positive, it will likely alert more people to needing to go for a test. This could cause a chain reaction where rather than long-term absences, we see more short term disruptions. Of course there will be some from there who then isolate, meaning long term absences will not be removed either. Employers should have plans in place, including informing and agreeing with employees why and when they may be required to amend their roles to deal with such potential absences.

It is also likely that the Government will expressly provide statutory protections for employees to undertake testing and self-isolation, as they have done with Emergency Volunteer Leave (“EVL”) (see below), and the provision of Statutory sick Pay (SSP).

Practical Concerns

The government may allow businesses to open in the near future, but the practicalities of making that a reality are more complex than simply removing the restrictions:

Personal Decisions & Volunteering

• Temporary jobs – The CJRS allows employees to engaged by other employers whilst they are on Furlough Leave (where their contract allows), and it is possible that this may prevent an employee immediately returning to work, or requiring notice of their returning to work (consider what any furlough agreement/leave letter also states);
• “Volunteer Leave” – The CJRS guidance allows for furloughed employees to take part in volunteer work or training throughout their period of furlough leave. This includes EVL under the Coronavirus Act 2020 (“CA 2020”), being a period of two to four weeks where a person can volunteer with a health or social care authority if they possess an Emergency Volunteering Certificate. Whilst the leave is unpaid, the CA 2020 says they will be compensated, and therefore employees may not be desperate to return to work due to a lack of earnings;

They also have the right not to suffer detriment for taking EVL or for being likely to do so, and it is now automatically unfair under Section 104H Employment Rights Act 1996, to dismiss an employee where the reason or principal reason was the employee taking, or seeking to take EVL. This is also the case where an employee is selected for redundancy due to their taking or seeking to take EVL (Section 105 (7BC);

Employers will therefore have to take consideration of the fact that employees may not only be unavailable to return to work immediately, but may leave to undertake EVL in the future if the need arises, and adapt accordingly.

Transport & Costs

Many public transport links have been reduced throughout the pandemic, and they will not be able to just start up again. This may lead to employees struggling to reach premises, or other required destinations. At the same time, employees may not want to take public transport due to health concerns. Employers should consider homeworking arrangements or alternative means of transport if they wish to bring an employee off of furlough leave.

Finally, it should be borne in mind that transport is a cost burden on employees as are other matters (attire and food and drink for example), which are accepted by the employee as part of their employment. However, where an employee has perhaps accepted a voluntary reduction in salary or benefits, they may be less agreeable to these when costs begin to be incurred.

Family Matters 

• Schools and nurseries may not open immediately upon restrictions being eased, and it has been suggested any re-opening before 1 June will be almost impossible. The Government has also said schools will be re-opened in phases, so many employees will still have difficulties in returning to work as normal;
• Co-parenting arrangements – Many separated parents will have altered their plans to overcome the changes lockdown has brought upon them, including childcare restrictions. Where this has happened, employers may have to consider that employees’ previous working patterns will at least have temporarily changed and alterations may be needed when returning to work. Furthermore, the ability of one parent to return to work, may be influenced by the other parent returning to work and vice versa, so further changes and arrangements may be needed between employers and their employees.

Conclusion

The employer - irrespective of how significantly their financial position has been impacted by coronavirus - is almost certain to continue to face challenges in the coming weeks and months.  Many employers will understandably be under huge pressure to extract maximum revenue out of their re-opened business and will require their employees to return to work in a way that will assist that financial necessity; many employees, though, will continue to face significant personal and practical issues that will affect their ability to work.  Both sides are going to need to understand the perspective of the other but many employers will require legal advice to assist them in the unchartered waters ahead.  Here at Leathes Prior, we like to think that the Employment Team have been at the cutting-edge of this crisis, providing our clients with real-time, pragmatic and modern advice.  An employer needs not just legal advice but commercial guidance, taking the benefit from our Team of the overall perspective we gain from seeing what many employers and businesses are doing. 

If your business needs help as you strive to get back to business – please be in touch via email or call us on 01603 610911.