Blog

Alongside supermarket queues, handwashing, deep cleaning and Furlough, homeworking has been one of the defining features of the Covid-19 lockdown. The most recent ONS statistics on homeworking (2019 – published at the very start of lockdown) showed that of the UK’s 32.6 million in employment, only 1.7 million people reported working mainly from home. And, while there are no up to date statistics on the rate and number of homeworkers during Covid-19, there is little doubt that they are far higher than before. Many employers and employees expect home working to become more established, if not the norm.

So, what should you be thinking about if you want your workforce to work from home more regularly? The starting point must be an agreement in principle for homeworking to take place. This may have already been set out in your employment contracts, handbook or policies. But, if not, you will need to amend your documentation with the agreement of (and following consultation with) the workforce.

Issues to consider when establishing homeworking include:

• The employer’s health and safety obligations (these apply to remote workers in much the same as to those at the workplace);
• The government’s temporary relaxation on working at home assessments was based on the need for businesses to make emergency arrangements to meet the guidance. It is now clear that the period of working at home will be longer than anticipated and, in some cases, the ‘new normal’.
• Employers should review whether the initial measures that they took to support staff working from home are still sufficient. If an employee raises a concern about their home working arrangement, the employer should take action.
• In order to comply with health and safety obligations, the employer should carry out a risk assessment to identify and mitigate potential risks to their employees whilst working from home and to establish safe working practices in agreement with their employees.
• Check the employer’s liability insurance to ensure cover extends to employees working from home and any special conditions that the insurer may require.
• Provision, ownership and access to equipment. For example, will you supply a work laptop or other office equipment and, if so, how will you ensure its retrieval on termination of employment;
• Confidentiality and data protection issues;
• Expenses, tax and insurance. Employees will need to have and maintain adequate home and contents insurance policies. They may seek to recoup some expenses related to homeworking and some may be entitled to limited tax breaks. These issues ought to be determined in advance; and
• Communication, supervision and support of employees. Not everyone will find homeworking easy and some employees will miss the social element of work and/or the discipline intrinsic to the workplace. To ensure productivity remains high and employees’ well-being is unaffected, various safeguards will need to be introduced.

The Government may introduce a new legal right for employees to work from home, which would mean that employers would only be able to reject a working from home request if a staff member’s job could only be done in the workplace. Watch this space for more information once we know more.

The Government’s recent announcement that employees who cannot work from home should return to work has given rise to more questions than answers. Without doubt, the current situation is unprecedented. Many employees who cannot work from home may not, in reality, be able to return to work for a number of reasons. These may include childcare difficulties, transport concerns, medical limitations (e.g. a need to shield if vulnerable) as well as substantiated or unsubstantiated fears that the workplace will be unsafe.

Without specific legislation in place, employers, HR professionals and their advisers need to turn to existing legislative and contractual principles for answers.

In brief, where an employer is keen and able to reopen its business, it should, as first steps:

• Identify and implement the necessary health and safety measures that will enable it to be “Covid-compliant”. Without these measures in place, the employer is likely to breach Health and Safety legislation and will not be able to insist on the return of the workforce. It will not be reasonable for an employer to expect its staff to provide health and safety equipment to facilitate Covid-compliant work – the onus is on the employer.
• Identify the number and identity of employees which need to return. Now is also a good time to consider which employees have interchangeable skills which the business may need to utilise.
• Identify and, if necessary, revise working patterns. For example, where an employer operates a shift pattern, it has been suggested that it should “bubble” together the same employees into a shift unit, to minimise the risk of exposure to a limited number of individuals. Staggered start and end times, alternate working days and location may also be needed (and may require employees’ agreement).
• Speak to the workforce early to identify those employees who may have difficulty returning to work. Whereas under normal conditions an employer can insist on an employee being at work despite, say, childcare difficulties, this is unlikely to be the case for the foreseeable future. Disciplining or dismissing an employee who cannot be at work due to the need to look after young children who cannot attend school is likely to be regarded as unfair and, potentially, discriminatory.
• If only part of the workforce is needed, tread carefully as to who is asked to return, to avoid the risk of discrimination (e.g. compelling young people to return before older employees may be discriminatory on grounds of age, albeit potentially justified in the current climate).
• Finally, consider the need to update absence management procedures, e.g. for employees to get in touch regularly to update their availability for work and/or confirm why they may still not be able to attend.

In these uncertain times, going back to basic principles of employment law and good HR practice is essential. Both employers and employees are experiencing uncertain and unsettling times and getting things right at the onset will be beneficial in the long-term, and reduce the risk of future disputes.

Employers have been able to make claims on HMRC’s Coronavirus Job Retention Scheme’s Portal since 20 April 2020. It is reportedly fairly easy to use the portal, although heavy traffic and an the odd site crush should be expected.

Shortly before the Portal went live, the Government issued important updates and clarifications as to how the Scheme operates. In particular:

• The Scheme was extended to cover employees and workers who were on the payroll by 19 March 2020. Previously, the cut-off had been 28 February 2020.
• There had been conflicting information as to whether employers had to obtain employees’ and workers’ written agreement to be Furloughed, or whether a written notification from the employer to the employee would be sufficient. To be on the safe side, it is advisable for the employer to obtain written consent (which can be made electronically via email), even in retrospect.
• HMRC guidance to employees (but strangely not to employers) states that workers continue to accrue annual leave while on Furlough, and that they are entitled to take leave during this time. It goes on to state that holiday pay should be at the worker’s “usual holiday pay in accordance with the Working Time Regulations 1998”. This indicates that Furloughed employees who take holiday while Furloughed are entitled to be paid 100% of their normal wages for the period of annual leave. Employers may want to exercise their powers to restrict annual leave uptake during Furlough, in accordance with their statutory and contractual powers.
• Conversely, whilst there is no formal clarification as to whether employers can require employees to take holiday during Furlough, we believe that this is permissible and eminently sensible.

HMRC has updated its Statutory Payment Manual to provide that Furloughed employees do not qualify for SSP. In addition, new Regulations confirm that employees will be deemed to be incapable of work if they are unable to work because they fall within the extremely vulnerable category and have been advised to shield. These Regulations came into force on 16 April 2020.

As the Furlough scheme reaches its first anniversary, Michal Stein of Boddy Matthews has successfully defended a claim brought by an ex-employee against one of its construction contractor clients. While the facts of the claim are straightforward and, likely, not unusual, the legal points at issue are of utmost importance and likely to affect many employers, facing redundancy situations despite the Coronavirus Job Retention Scheme.

As a result of the Covid-19 pandemic and lockdown, the employer client placed some of its workforce on Furlough, paying employees 80% of their contractual pay subject to the Scheme’s £2,500 monthly salary cap. When redundancies had to be made, the employer paid employees’ notice pay at the furlough rate. The contractual rate of pay was paid only for the part of the notice period which fell on or after 31 July 2020, when the Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) Regulations 2020 (“the 2020 Regulations”) came into force. The 2020 Regulations required furlough notice pay to be at the pre-furlough rate.

Based on Boddy Matthews’ legal advice, our Construction contractor client took the view that:

• up until the introduction of the 2020 Regulations, the statutory provisions on notice pay (under the Employment Rights Act 1996) entitled it to pay statutory notice pay at the furlough rate;
• the contractual principles governing the furlough agreement allowed it to pay employees the furlough rate of pay for the duration of their notice period; and
• the 2020 Regulations changed the legal position as it understood it to be, were not retrospective, and only apply to notice periods from 31 July 2020.

The client sought to reassure its workforce of the legality of its actions, setting out the legal position in clear communication.

Nonetheless, possibly due to the complexity of the law at play, and the considerable media discussion (and misinformation) on this issue, the client faced an employment tribunal claim from one of its ex-employees. That individual believed he was entitled to his pre-furlough rate of pay for the duration of his notice period and the matter came before the Employment Tribunal in a virtual hearing.

Michal Stein represented our client before the Tribunal, which accepted our client’s position in full, dismissing all elements of the claim.

As far as we know, this is the first time the Employment Tribunal has dealt with the question of the rate of furlough notice pay. And, while employment tribunals are not bound by this decision, it is likely to be of considerable value to other employers faced with similar complaints.

For more information, please speak to Michal Stein or Helen Boddy.

Workplace discrimination and harassment instances are distressing to all concerned. They can have serious implications on employment relations and employees’ wellbeing and can result in Employment Tribunal claims. More often than not, while a claim is brought against an employer (e.g. the employing company), the employer is not the perpetrator of the conduct in question. Rather, the act complained of is likely to have been committed by a colleague or a manager of the complainant. The employer is treated as vicariously responsible for the wrongdoing because it employs the perpetrator and (broadly speaking) the act took place at work. In recognition of the potential unfairness to employers, the legislation provides for a “reasonable steps” defence which enables employers to avoid liability if they can show that they have taken all reasonable steps to prevent the perpetrator from doing the objectionable act or acts of that kind.

But what must employers do to benefit from the defence? As a first step, employers ought to have equality policies and procedures in place, supported by suitable training for all staff.

However, this is only the start and a recent Employment Appeals Tribunal decision confirms that, when assessing whether an employer has done enough to escape liability, focus will be firmly placed not on what the employer has done but, crucially, what more it could have done. Where more could be done, the defence will not be made out, even if the additional steps would not have prevented the harassment or discrimination from occurring.

In assessing the additional steps employers may have to take, a tribunal will take into account the size and resources of the employer, the cost of the additional steps, their potential effectiveness and the practicability of providing them. If, having looked at these issues, the tribunal concludes that there were further steps that the employer should have reasonably taken, the defence will fail.

The case sends an important message to employers about the nature and extent of the commitment they must have (and display) to preventing workplace discrimination and harassment. Employers are advised to adopt and regularly review high quality policies and training. In addition to regular and periodic assessment of the steps taken to prevent discrimination, where discrimination or harassment is observed or becomes known, the policies and training must be reviewed, adapted and refreshed.

Large scale redundancies, by no means unknown pre Covid19, have featured heavily in recent months. Employers who propose to make collective redundancies are subject to stringent legal requirements which originate from EU legislation and which, at least for the time being, continue to apply unchanged despite the UK’s departure from the EU.

Briefly, an employer who proposes to make 20 or more redundancies within a period of 90 days must collectively inform and consult with its workforce, as well as inform the Insolvency Service in advance of carrying out its plans (using from HR1). Failure to meet the former duty can result in an award of 90 days’ gross pay per affected employee. Failure to meet the latter duty without justification is a criminal offence which may result in prosecution and/or fine for the employer and, potentially, any of its officers.

Despite some mismatch between the UK’s and EU’s legislation, these duties have been understood and interpreted by the UK courts to be forward-looking. This meant that if an employer made 10 employees redundant one month and then proposed to make 10 more employees redundant the following month, it only had to consult with the second batch of employees and only had to inform the Insolvency Service once it had made the second proposal. 

A recent judgment of the European Court puts an end to this.

At the end of last year, the European Court held that, to properly protect employees, the law must be understood as requiring employers to look both backward and forward and take into account redundancies within any period of 90 consecutive days, whether backward or forward looking.

The practical effect of this decision is yet to be fully understood. Strictly speaking, however, an employer is now expected to collectively consult about redundancies which have already occurred if, within the 90-day period surrounding of these dismissals, additional redundancies are made with the total exceeding 20. In addition, form HR1 will have to be submitted to the Insolvency Service referring back in time to the earlier redundancies.

It remains to be seen how employers are to comply with these duties in relation to employees who already departed the business and to what extent they may rely on the statutory defence of special circumstances. The factual circumstances of each case will need to be closely examined and assessed. At this point, it is more important than ever to implement timely consideration of all relevant plans, present and future, as well as possible risks, before taking any action to implement such plans.

For specific advice, please contact Helen Boddy or Michal Stein.