15 July 2020

Keep your business on the right side of employment law

COVID-19 has created fundamental changes to the way we live and work and has affected the obligations, rights and responsibilities of both employers and employees. We look at what’s changed and what hasn’t to help keep your business on the right side of the law.

When the UK went into lockdown in March 2020, many businesses had to stop trading or adapt to new ways of working. The prolonged and uncertain nature of the pandemic’s pathway means that an increasing number of businesses are feeling the effects as society adjusts to what’s being termed the ‘new normal’. From Government support schemes to different health and safety requirements, the obligations of employers and the rights of employees have shifted. James Eden, Solicitor at Ashtons Legal, explains the impact on businesses.

Navigating furlough

“By far the biggest change is the introduction of the furlough scheme (the Government’s Coronavirus Job Retention Scheme). And one of the biggest challenges with that is that it keeps changing and many aspects of it are open to interpretation,” says James.

As events have unfolded and the UK has passed through different phases of the pandemic, the nature and scope of the scheme has adapted. “One of the biggest changes was that, from 1st July, employers can bring people back from furlough on a part-time basis, as long as they were placed on furlough for at least three weeks preceding 30th June. Further changes, which will require employer contributions, will mean the scheme is no longer cost neutral, so businesses need to be aware of that. From 1st August, employers need to pay national insurance and pension contributions; and then in addition to this from 1st September, 10% of the scheme cost, and from 1st October, 20%, with the scheme due to end on 31st October.”

The key thing is to ensure you’re communicating clearly with your employees about how the business is being affected by the economic situation and your plans for addressing that, as well as their role within those plans.

Changing terms of employment

Businesses and employees not eligible for the furlough scheme or those needing a more flexible solution to meet demand, may find that a change in terms and conditions is more appropriate. “Whilst employers can make changes to the terms and conditions of employment, for example, reduced hours or place of work, employment law states that these can’t be unilaterally imposed on employees,” says James. “Agreement has to be reached, which to date has typically been an easy buy-in as staff are aware of the difficult national and global situation and there’s a sense that in agreeing to those changes, they are protecting the long-term viability of the business.

“However, with the financial effects of the pandemic on businesses likely to be felt for some time, and particularly as furlough ends, this could be a situation that more businesses find themselves in, and that buy-in may become more difficult to achieve. The key thing is to ensure you’re communicating clearly with your employees about how the business is being affected by the economic situation and your plans for addressing that, as well as their role within those plans.”

Communication is also vital for those businesses who find themselves in the difficult position of having to make redundancies. “The law hasn’t changed in this regard,” explains James. “Businesses still need to consult with all affected employees within statutory timeframes and objective and fair criteria need to be applied to the selection process.”

Maintaining health and safety

As the economy starts to reopen, businesses can face new challenges, says James. “Health and safety is a big one,” he points out. “Employers’ duty to protect workers from harm remains unchanged, but of course, there are huge changes to the way we work, with social distancing requiring adaptations in the workplace. Businesses need to review their health and safety risk assessments in light of the new controls required.

“There’s also been an acceleration in the adoption of technology and virtual or home working, which has meant a need not just to practically support employees with equipment to work safely, but also to extend the confidentiality provisions that employers typically have in place, address expectations around physical and online security of data, and protect the wellbeing of employees. The success of homeworking in many sectors means we’re anticipating government legislation down the line to make homeworking and the right to request it, easier, so businesses need to consider how that will affect them.”

Supporting employees back to work

As more normal service resumes, businesses may be ready to reopen workplaces but that can create additional issues. “A common difficulty employers face is workers who are unable or reluctant to return to work. This may be driven by practical issues such as the lack of childcare or concerns around their health.

“Whilst ultimately, if an employee isn’t willing to come into work, businesses can follow normal disciplinary procedures, we’d advise them instead to listen and reassure staff. Options include extending furlough if available, allowing staff to continue to work from home where possible, or providing assurances that safety measures are in place. The important thing is to be consistent, and make sure that all staff are treated fairly so resentment isn’t built up.”

What’s important when you’re planning how to get your operations back up and running, is not to lose sight of the human relations side of the business.

Safeguarding your business

That message of consistency is important, particularly as uncertainty continues. Businesses that don’t have clear policies and processes for their workforce are encouraged to adopt these, whilst those that have existing policies would do well to review them to ensure they meet future needs. “It can be attractive, particularly after a period of lockdown or reduced business, to just get on with things,” says James. “However, ensuring that you have documented any changes to employment status, furlough details or staff and risk assessments and that these are retained is essential.

“Employment law is fast-moving, and regulations, codes and legislation change frequently, so keeping abreast of that by taking professional advice and guidance is a good idea. As unemployment increases, we tend to see an increase in the number of employment claims, so getting things right is very important to safeguard your business from potential financial and reputational loss.”

Considering specific industry guidance alongside core responsibilities, can help businesses take decisions around reopening and returning to normal, including practical support such as how to position desks, permit employee interaction or manage shifts. “What’s important when you’re planning how to get your operations back up and running, is not to lose sight of the human relations side of the business. Acknowledging the wellbeing and goodwill of your staff and their support during tough times, communicating openly, and providing a safe environment are the marks of a good employer.”

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