Employment Newsletter July 2020

This newsletter covers:

  1. Flexible Furlough Scheme
  2. Returning to Work
  3. Discrimination
  4. Local Lockdowns
  5. Home Working

Flexible Furlough Scheme

The rules of the Coronavirus Job Retention Scheme changed from 1 July. There is now no longer a minimum period of three weeks nor is there a rule against working for the employer. This allows rotas to be set with employees working certain hours on certain days and spending the rest of the week on furlough.

But employees may only be furloughed from 1 July onwards who have been furloughed for a three week period in the lead up to and including 30 June, and employers cannot claim for more employees in any claim than they claimed in any period prior to 1 July.

An exception is made for those returning from parental leave. If an employee has been on maternity, shared parental, adoption, paternity, or parental bereavement leave they can be furloughed, even if they haven’t been furloughed before, as along as:

  • they started their parental leave before 10 June, and
  • are returning to work after 10 June, and
  • were on the PAYE payroll on or before 19 March, and
  • the employer has furloughed any other employee pre 1 July.

The maximum number requirement does not apply to this category.

Throughout July the scheme will continue to pay 80% of eligible employees’ wages up to a cap of £2,500 for the hours they are on furlough, together with employer NICs and pension contributions. However in August the responsibility to pay employer NICs and pensions contributions returns to employers. In September, the percentage Government will pay will fall to 70% with a cap of £2,187.50, and employers must top up to 80% of £2,500.  In October, 60%, with a cap of £1,875, with employers topping up. The scheme closes on 31 October.

An important reminder: claims for periods up to 30 June must be made by 31 July.

Returning to Work

Government has published guidance to help get people safely back to work in eight workplace settings (see the Working Safely During Coronavirus COVID-19 web page of the gov.uk site).

The five key points are:

  1. Employers should carry out a COVID-19 risk assessment, in consultation with employees or trade unions, and share results with workforce and on their website.
  2. Develop cleaning, handwashing and hygiene procedures, and increase frequency. Follow guidance on hand washing, provide hand sanitiser in workplace, frequently disinfect especially in busy areas, provide hand drying facilities.
  3. *Reasonable steps should be taken by employers to help people work from home.
  4. Maintain two metres social distancing where possible by putting up signs, avoiding shared workstations, using floor tape and paint, creating one-way traffic, seeing visitors by appointment if possible.
  5. If two metres isn’t possible, consider whether an activity needs to continue, keep activity time as short as possible, use screens or barriers, back-to-back and side-to side, stagger arrival and departure, fixed teams.

*On 17 July, Boris Johnson announced that from 1 August. ‘Instead of government telling people to work from home, we are going to give employers more discretion, and ask them to make decisions about how their staff can work safely.’ This could mean ‘continuing to work from home, which is one way of working safely and which has worked for many employers and employees.’

Employers have a legal duty to protect employees from harm. Public Health England have identified those more vulnerable to severe disease or dying of COVID-19. They have the following characteristics:

  • age – risk increases with age
  • being a man
  • living in a poorer area of the country
  • being from a black, Asian or minority ethnic (BAME) background
  • being borne outside UK or Ireland
  • certain jobs – nurse, taxi driver, security guard
  • underlying conditions

Additionally, see the nhs.uk page, Who’s at higher risk from coronavirus, for lists of who is at high and moderate risk.

People who are shielding because they are clinically extremely vulnerable have been advised not to work outside their homes until 31 July. But there will also be employees who are neither shielding, nor classed as vulnerable, who nevertheless have other health concerns or anxieties that need be addressed.

Employers should consult with all their employees to discover what would make them feel safe and secure and consider alternatives: different start times, rotas, alterations to the workplace. Can they work at home? Can they continue on furlough? There is also the question of controlling the risk for both those with vulnerabilities and those without because some workplaces may be capable of being rendered low risk. In order for employers to build trust in the workplace, they must communicate effectively with their employees, bring them back slowly, possibly in small groups.

Employers should be mindful of the particular needs of different groups of employees; Government reminds employers that they will be breaking the law if they discriminate directly or indirectly against anyone because of a protected characteristic. Employers also have particular responsibilities towards disabled employees and those who are new or expectant mothers.

Discrimination

Discrimination risks legal costs and damage to an employer’s reputation, especially at this febrile time. Risks run high when so many decisions have to be made. Unfair selection for redundancy, furlough, or return to work; or putting employees on unpaid or sick leave or early maternity leave without considering the option of furlough, might lead to claims in the Employment Tribunal. There are reports of a rise in discrimination against women with school age children.

Under the Equality Act it is unlawful to discriminate against anyone with any of the following protected characteristics:

  • age
  • disability
  • gender reassignment
  • marriage and civil partnership
  • pregnancy and maternity
  • race
  • religion or belief
  • sex
  • sexual orientation.

Employers must remember what they have learnt in less challenging times, and ensure there are non-discriminatory policies for furlough, redundancy, short time working, working at home, returning to the workplace, recruitment. Reasonable adjustments will need to be made. These can include finding alternative roles on a temporary basis or agreeing a salary reduction or deferral if furlough is not available. There will be disabled employees whose conditions have deteriorated because of the pandemic, and newly disabled employees. It is essential to achieve a level playing field.

Solutions will be found by means of successful communication with employees. Don’t make assumptions: employers will discover that many employees are unexpectedly anxious about returning to work and about the future, for themselves or for someone with whom they live, whilst others are unexpectedly eager. Some may now have mental health issues or worsened mental health issues. Everyone’s return to work will be different.

Line managers should communicate regularly with employees in order to know their concerns, even if there are no immediate answers or solutions. Bear in mind employees working from home have different needs to those in the workplace, and meeting times may need to be flexible.

A healthy workplace allows employees to socialise but gone are exchanges at the watercooler either because employees are at home or they have to socially distance. Perhaps a solution is to create virtual socialising because this will give employees a greater sense of belonging and will assist with creativity and collaboration in the workplace. Employees in their turn will have inputs on risks the business runs in the pandemic.

Despite the challenges of this difficult time, “one policy fits all” is not the answer. There are substantial benefits in putting diversity and inclusivity at the centre of COVID-19 policy: a diverse workforce has better understanding of its customer base and is more innovative and creative, and the organisation more resilient.

Local Lockdowns

Local lockdowns will become increasingly common. They could be an entire area or an individual workplace. Employers should prepare for them coming out of the blue: suddenly employees may be working at home or back on furlough.

Steps can be taken right away. New recruits’ employment contracts could contain provisions for lay-off, homeworking, flexible days and hours, redeployment to other sites, annual leave at short notice, reduced or deferred pay. Existing employees might be prepared to agree all or some of these, plus agreements to refurlough.

Employers should ensure that the channels of communication they have nurtured with their employees remain resilient in case of a sudden local lockdown

Home Working

As a new normal begins to be established, it seems likely this will involve a higher degree of home working. Reducing the size or the need for premises will certainly lead to savings but have employers listened to their employees?

Home working doesn’t suit everybody and this reflects the confusing and rapidly changing times we live in. Some employees may find working at home extremely productive and that it fits in with their lifestyles. They may be happy to avoid the commute, work flexible hours, exercise during the day, hang out with their pets and children. On the other hand, they may have inadequate space, suffer from isolation and mental health issues, and they may even be in danger because before lockdown their workplace provided them with a sanctuary from a domestic abuser.

The increase in home working may lead to an increase in employee monitoring. This might provide employees with confidence that they are doing a great job from home, alternatively, they may feel spied on and this may increase their stress.

Employers have a duty to ensure employees’ wellbeing. The Health & Safety Executive’s website has a page, ‘Protect home workers’. The advice is to stay in touch with lone workers, help them undertake workstation assessments, provide them with specialised display screen equipment. There will also need to be rigorous procedures to recognise signs of stress at the earliest possible stage.

Contact us for free advice on the issues raised in this Newsletter. In this thirty-minute session we will review your situation and how you can achieve your objectives.

The topics covered in this Newsletter are complex and are provided for general guidance only. Therefore, if any of the circumstances mentioned in this Newsletter have application to you, seek expert legal advice.

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