Sunday’s statement by the Prime Minister had been built up by his colleagues (inadvertently as a result of them deferring responses to questions in TV interviews and the daily briefings) and the press to the point that there was an expectation that something more substantial would be forthcoming. However, that lack of substance in both this and the associated strategy document that was published the day after could end up doing more harm than good in terms of the response of businesses to the message that where working from home isn’t possible, their workforce should be “encouraged” to return to work / ‘should travel to work if their workplace is open’. This was an indirect reference to the hundreds of thousands of furloughed workers, the message to them appearing to be “Get back to work!”.
Of course, in reality, it’s not that straightforward. Many, if not most, businesses are in a position where they have experienced a downturn in trade as a result of the current situation and therefore the Coronavirus Job Retention Scheme is providing an alternative to having to instigate a redundancy programme in response to that downturn. As such, those employers obviously need to know the Government’s plans for the continuance of that Scheme beyond the current expiry date of 30 June 2020.
If, as has been reported, furlough payments are to be reduced from 80% to 60% of salary (up to £2,500 per month) and there are to be top-up grants for employees returning to work on a part-time / reduced hours basis as businesses slowly crank up again, employers will be more inclined to hold off redundancy consultation. Unfortunately, the announcement was completely silent in this regard…which was always likely to be the case where the PM was going it alone instead of being flanked by the Chancellor and having some newly published guidance that employers could be referred to for the detail.
Therefore, our overriding advice to employers is to avoid a knee-jerk reaction to the aforementioned “Get back to work!” message where possible.
To move from a situation in which most staff have been working from home or on furlough for the last couple of months to one where a large proportion are required to return to the workplace over the next few days could expose both the employer and employee to high levels of risk. Instead, a more measured response should be adopted, one which begins with establishing (but hopefully, continuing) meaningful dialogue with the individuals concerned, much of which should be geared towards establishing their precise circumstances, e.g. in respect of:
- children and childcare arrangements (including whether their partners are key workers to the extent that they cannot assist on the childcare front);
- whether they (and / or someone they live with) are in a high-risk category and shielding;
- whether they are anxious at the prospect of returning to work (including whether they have or have had mental health problems that need to be taken into consideration in this context); and
- whether, if furloughed, they are currently volunteering or have taken on secondary employment.
By gathering the above information, employers will put themselves in a more informed position to determine those that it would be most appropriate to return to the workplace. Granted, operational requirements and the ability to observe the prescribed social distancing guidelines also need to be factored in, but they will need to be balanced against the circumstances of the employees concerned in order to suitably mitigate risk.
Of course, talk of a return to work needs to done in tandem with discussion around what steps the business needs to take in order to ensure it is in a fit state to return to in the first place. In this regard, the Government has now developed guidance on the protective measures it expects employers to take. Some of the measures covered in this are as follows:
- completing a COVID-19 risk assessment and sharing it with the workforce;
- completing individual risk assessments for employees who are classed as vulnerable / have underlying health conditions;
- offer such employees the option of the safest available on-site roles;
- increased workplace cleans and additional office cleaning facilities;
- availability of PPE where necessary in the context of operations / particular roles;
- limiting passengers in corporate vehicles, including leaving seats empty;
- additional parking provision and measures;
- controlling / limiting site entry / exit for staff, customers, suppliers and contractors;
- staggering start / finish / lunch / break time arrangements (e.g. where social distancing guidelines cannot otherwise be followed);
- implementing one-way systems and provision of visual aids for maintenance of social distancing.
- fixing teams / shifts to limit the number of contacts each employee has;
- staff training / briefings on any new procedures; and
Notwithstanding the above arrangements for returning people to work, we know that many employers will have redundancies in mind in any event. However, it would be prudent to wait until details of the continuance / changes to the Job Retention Scheme are announced before any final decisions are made in this regard. Employment Tribunals are likely to take a dim view of related dismissals being effected when government support remains available, something that could be perceived as a failure to explore an available alternative.
This is likely to cause concern to those employers who are contemplating making 20 or more positions redundant, as they will likely be mindful of collective consultation periods (i.e. 30 days where 20-99 redundancy dismissals are possible and 45 days where 100 or more are on the cards). However, statements made by the Government to date indicate that it is aware of this and so it is probably reasonable to presume that it will clarify what will happen with the Job Retention Scheme in the coming days, but by the end of the week at the latest.
Even if organisations are content to delay redundancy programmes, it is quite possible that they may be looking to amend terms and conditions of employment in order to maximise the chances of their businesses surviving, e.g. in respect of pay / bonus / benefits, hours, work location and / or role.
If such changes involve material / substantive variations to employment contracts (whether temporary or permanent), employers will need to consult on these with a view to reaching agreement with the staff concerned. It is also important to remember that, depending on the employee numbers involved, such consultation could be subject to the same timescales as collective redundancies.
If you require support in navigating your way through the continuing HR, Employment Law and Health & Safety implications of the Coronavirus situation, please do not hesitate to get in touch with us by phone (01942 727200) or via email (firstname.lastname@example.org).