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It is rare we are able to write “this is unprecedented” without subsequently having to qualify such absolutism. However, this is one of those times.
For many businesses, every aspect of their operations has been disrupted (and not in the fashionable sense). The rules governing the relationship between employers and the employed, whether statutory or contractual, were not designed to provide quick answers in a global pandemic. Businesses will need to be quick to adapt and alert to the challenges this period of uncertainty will create.
At Hardwicke, we are already considering and advising on a range of these issues. What follows is a brief overview of some of issues we expect to come up in the next few weeks and months.
It is difficult to start anywhere else than the creation of the Coronavirus Job Retention Scheme (the “CJRS”), being the first time in British history that the UK state will pay a large proportion of the salaries of private sector employees.
Not all of the specifics of the CJRS have yet been finalised, but the basic effect of the CJRS is that the government will pay employees 80% of their salaries up to a total of £2,500 per month by way of grants for an initial three-month period (to run from 1 March 2020).
Note, however, that as things stand:
For many employees, this will be a welcome relief in the face of potential redundancy. It effectively incentivises (and supports) employers in retaining large numbers of their workforce so that, once the outbreak has been contained, it will be ‘business as usual’ as far as reasonably possible.
The CJRS will not be enough to save everyone, however, and we are anticipating a large number of redundancies, including (and perhaps particularly) for those working on zero hours contracts and other unstable contractual arrangements.
Among other things, if an employer is considering making redundancies of 20+ members of staff within a 90-day period, they may need to comply with section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”), which requires employers to consult and provide information to certain representatives of employees who may be affected.
As employment lawyers will appreciate, there is rarely scope to argue the defence under s.188(7) of TULRCA – where there are “special circumstances which render it not reasonably practicable for the employer to comply” in full or in part with the above duty. They may still be required to take all steps to comply which are reasonably practicable.
For obvious reasons, Covid-19 may provide such circumstances, although it would be prudent for employers to take legal advice on their redundancy processes before pressing the button. It is important that steps are not taken prematurely.
In normal circumstances, if your employer told you it was in the public interest for you not to come into work, you are probably justified in taking offence. However, these are unusual times, and there may be occasions where (i) working from home is not possible, but (ii) your employer considers that you do not need to attend work. Such instances clearly become more likely in the short-term following the announcement of the CJRS mentioned above.
The reverse question arises, however: what if an employer insists on an employee attending work where the employee considers that such attendance would be unsafe or improper in the circumstances?
The government’s position appears to be that, if employees cannot work from home, employers are entitled to insist on their attendance at work with appropriate ‘social distancing’ measures in place. Construction sites have come under particular scrutiny in recent days, where it appears that on many sites (i) employees have been told to attend work, but (ii) distancing measures have not been taken (or enforced).
In addition, there appears to be no special exception for employees who live or have unavoidable social or caring contact with people who are vulnerable to the effects of the virus. This may well prove to be an unfortunate and cruel lacuna in the government’s current position.
The government’s position is also consistent with the view currently being taken by ACAS, whose recent guidance (https://www.acas.org.uk/coronavirus) states:
“Some people might feel they do not want to go to work if they’re afraid of catching coronavirus. This could particularly be the case for those who are at higher risk.
An employer should listen to any concerns staff may have and should take steps to protect everyone. For example, they could offer extra car parking where possible so that people can avoid using public transport.
If an employee still does not want to go in, they may be able to arrange with their employer to take the time off as holiday or unpaid leave. The employer does not have to agree to this.
If an employee refuses to attend work without a valid reason, it could result in disciplinary action.”
It is worth noting, however, employees’ general right not to not to be subjected to any detriment or dismissal for leaving or refusing to return to a workplace where an employee is in danger which he/she “reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert” under the ERA 1996.
Employers’ common law duties to provide a safe system and place of work also come into play. There have been instances of employers not providing adequate PPE or prohibiting their employees from bringing their own PPE to work. Two issues arise: (1) Can an employee refuse to attend work in the circumstances? (2) Would the employer be liable for personal injury or even death if the employee contracted Coronavirus? As to (1) there is certainly an argument that by not providing adequate PPE the employer is in breach of the employee’s employment contract and that the instruction to attend work is not reasonable. As to (2), subject to causation being established, an employer would probably be liable for personal injury or death caused by an employee contracting Coronavirus at work.
The courts may have to grapple with this and other issues in the Covid-19 context once the outbreak has finally concluded, and the government’s guidance may not be enough to protect an employer.
Finally, it is worth giving some air time to ACAS’ sensible general good practice advice for employers managing their workforce during this difficult time.
ACAS says it is good practice for employers to:
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