Whilst many employers will now be aware of the Government’s advice on when employees should be self-isolating and the sick pay regulations that have been amended in this regard, we are aware that due to the ongoing and escalating situation, some businesses are experiencing downturns in trade and face challenging times in the short term. One of the biggest issues at present is the uncertainty over how long restrictions will be in place making financial forecasting very difficult.
As a result, in certain sectors, there may be a reduced need for employees during this time and we discuss below some of the options which may be open to employers to ensure that they are able to comply with the guidance from the Government and help to protect jobs where possible to ensure that businesses and organisations are able to fully function again once the pandemic is under control.
Working from home
Depending on the nature and operation of the business, it may be that some employees are able to undertake their work remotely. The Government advised on 16 March 2020 that employers should try and accommodate working from home wherever possible in line with their advice on social-distancing in an attempt to try and prevent the further spread of Covid-19.
We would, therefore, recommend making suitable arrangements with employees which allow them to work from home as normally as possible. Measures could include providing equipment if employees do not have their own to use, arranging telephone and video conferences rather than face-to-face meetings and if this is not possible, ensuring that employees can work more flexibly to avoid rush-hour commutes or to ensure there are fewer employees in the workplace at one time.
Mobility clauses in employment contracts will usually allow employers to impose an instruction for employees to work from home. However, in this current unprecedented situation, there is also an argument that employers can rely on implied duties of trust and confidence to direct employees to work from home or flexibly.
Lay off/short-time working
Whilst the Government’s recent announcement of financial support packages for small businesses may avoid the need for employers to have to reduce staff, some businesses may still find that there is a need to temporarily close due to Government restrictions, for example in the hospitality sector or as a result of a reduced need for specific type of services.
In these circumstances, employers may be able to make their employees ‘temporarily redundant’ or reduce their working hours, if there is an express clause allowing them to do so in the employment contract. Lay off and short-time working clauses are not common in all contracts of employment but did become more popular after the 2008 recession. If such a clause is included in the contract, employees can be temporarily laid off and paid a statutory ‘guarantee payment’ of £29 per day (£30 per day from 6 April 2020) for a maximum of 5 days in any three-month period.
Employees should be kept regularly informed about what is happening with the business and should not be laid off for more than a period of 4 consecutive weeks. If the period lasts longer than this, employees may be entitled to treat themselves as redundant and claim a statutory redundancy payment. Alternatively, a short time working clause allows employers to reduce the hours or days on which an employee works, and therefore their pay, in line with the current needs of the business. Again, this is intended to be a temporary measure only.
If there is no express clause in the contract, employers may be able to discuss these arrangements with their employees to try and seek agreement to amend the contracts to include the clause but they should do so with caution. An employee should not be forced to agree to changes otherwise an employer faces the risk of a potential constructive dismissal claim. We are finding that many employers are seeking to discuss these matters as openly as possible with their employees to find a compromise which maintains the viability of their business whilst still providing some income to employees.
In the coming days and weeks, it is very likely that the Government will bring further emergency legislation into force which assists employers in this current situation. We will continue to monitor the changing climate and provide legal updates wherever possible. Should you require any further advice in respect of employment related matters please contact Sharney Randhawa (firstname.lastname@example.org) or Jonathan Moreland (email@example.com) or contact us by telephone on 0191 3842441.