Returning to work, and what that might look like, has been the topic of the nation during this past week. Following the Government’s announcement of the possible “roadmap” out of lockdown, and the subsequent publication of the “recovery strategy”, employers have been working out how to do business in this new, socially-distanced world.
In our recent update regarding the “recovery strategy”, we set out the Government’s principles in providing a “safe” workplace, which were common to all eight of the COVID-19 Secure guidance documents for different sectors (NB there is now an additional publication directed at the transport sector). In summary, these were as follows:
The initial guidance which accompanied the “recovery strategy” is fairly basic in its detail. However, as we have seen with the guidance regarding the furloughing scheme, the Government’s approach appears to be the publication of a high-level, fairly broad-brush initial document, followed by more detail at a later date.
Over the past week, the Government has provided further information to assist employers in their return strategy. The “guidance for employers and businesses on Coronavirus (COVID-19)” was updated on Friday 15 May 2020. Whilst some of this guidance has been in place since the start of the crisis, in order to help those employers who remained open and operational, it has been updated to reflect the wider cross-section of employees who may now be returning to work. The Government’s “good practice” checklist contains the following recommendations:
Notwithstanding the list of suggestions proffered by the Government to ensure safety in the workplace, the Health and Safety Executive (HSE) has been clear that businesses which cannot enforce adequate measures to protect their employees should stay shut. Sarah Albon, Chief Executive of the HSE, stated that companies which could not take adequate steps to minimise the risk of spreading the virus should “individually not open”.
As discussed in our “Return to work” digest, employers not only have to ensure compliance with Government guidelines, but have to ensure that they are adequately discharging their duty of care, whilst being mindful of employees’ rights to remain away from a workplace if they perceive there to be serious and imminent danger (ss44 and 100 Employment Rights Act 1996).
Our view is that the more you can engage with employees about the potential measures you are taking to make their workplace safe, the less likely you are to face significant push-back. In addition, it is important to consider what will work for your business – this is not necessarily a one-size-fits-all approach. Some creative thinking will go a long way, and we have seen many of our clients and contacts devise inventive ways of ensuring safety in a COVID-19 world. We set out a selection, below:
Now more than ever, it might be difficult for businesses to find funds to implement some of the more costly measures suggested, above. Others might wonder whether it is proportionate action to take given that the prevalence of Coronavirus (COVID-19) will, we hope, be minimised within the year. If it is possible to implement these more permanent measures, we would suggest that it is a sound investment to do so.
Whilst Coronavirus (COVID-19) may be brought under control in the medium term, the fact that we have suffered such a pandemic in the first place demonstrates that there is the possibility that something similar will happen again. The key for businesses going forward might well be to “future-proof” themselves against another “attack” of this kind; something for which, unlike terrorism or cyber security, the business world had not really prepared. Even if we are lucky enough to escape a similar crisis in the future, think about the productivity which is lost each year through the common cold. Limiting the spread through more stringent workplace practices will only be of benefit in the long term.
It was announced on Wednesday 13 May 2020 that five, ministerial-led taskforces have been established to develop work safety guidelines for those sectors which are likely to be the last to re-open – pubs and restaurants, non-essential retail, recreation and leisure (including tourism), places of worship and international aviation. These taskforces have been set up to ensure that the requisite consideration is given to the very specific challenges that these sectors will face in re-opening.
We will update you with developments.
Last Wednesday, 14 May 2020, Twitter announced that it would allow its employees to work from home “forever”, even once the lockdown measures are eased fully. The social media platform said that widespread working from home during the pandemic had been a resounding success. It did, however, indicate that employees would be permitted to return to the office once it reopens, if that was their preference.
The announcement follows those from Google and Facebook, both of which have stated that their staff can work from home until the end of the year.
Experts have commented that the pandemic has highlighted the benefits to employers of flexible working arrangements, many of which were reticent to allow their employees to work from home until Coronavirus (COVID-19) forced their hand. There have been widespread reports of an increase in productivity amongst those workforces which are now operating primarily from home.
On 27 April 2020, Chancellor Rishi Sunak announced a new 100% Government-backed loan scheme for small businesses.
The “Bounce Back” scheme went live on 4 May 2020, and small businesses will be able to apply for loans of between £2,000 and £50,000. The loans will be interest-free for the first 12 months, and will be provided by mainstream lenders.
With the number of new announcements issued by the Government last week, it would be easy to miss some of the updates. We provide a round-up of the latest news items, below.
Extension to Job Retention Scheme
On 12 May 2020, Chancellor Rishi Sunak announced that the Government’s Job Retention Scheme (the Scheme) will continue to operate until October 2020.
At present, details of how the Scheme will operate going forward are very scant. However, it appears that the rules of the Scheme as they stand will remain in place until the end of July 2020. After this point, there are plans to allow “greater flexibility”, including the introduction of a “partial furlough” category, where employees will be able to return to work part-time, whilst continuing to be furloughed for the remainder of their normal hours. Crucially, it seems that, from August 2020 onwards, the Government will be looking to employers to foot at least some of the payroll bill. It has been intimated that at least 50% of wages will continue to be reclaimable through the Scheme, but the Government is looking to employers “to share the costs of paying people’s salaries”. For employers in sectors which have received little to no income so far this year (such as the holiday and leisure industry, due to its seasonal nature), it will be difficult, if not impossible, to find the cash to contribute in the way that the Government envisages.
We await further details in respect of the new iteration of the Scheme, which should be released by the end of May.
Employers may now require employees to take holiday whilst on furlough
The interaction between furlough and annual leave is something which has not been afforded particular clarity by the Government since the Coronavirus Job Retention Scheme (the Scheme) began.
The Scheme guidance had seen multiple iterations before we had confirmation that employees were permitted to take holiday during a period of furlough. During any such holiday taken, employers would need to “top up” the 80% Government grant to ensure that employees’ normal holiday pay was paid throughout. This option was attractive to some employees, given that they would receive full pay during the holiday period.
However, others preferred to hedge their bets, saving their accrued holiday entitlement for a time later in the year when the travel industry might reopen, rather than using annual leave to continue to sit in their homes whilst on furlough.
This raised the question of whether employers could compel their employees to take annual leave during furlough, a question on which, until now, the Government has refused to be drawn. Some employees were forging through the holiday year with the majority of their annual leave entitlement intact. This could cause huge operational difficulties upon a return to normal business levels, where (particularly with a reopening of the travel industry), employees might be clamouring to take 100% of their leave in 20% of the usual time.
The widely-held view was that employers could not compel their employees to take annual leave during furlough, as it conflicted expressly with the EU-derived provisions relating to holiday. These require that the primary purpose of the leave be “‘rest, play and away” – i.e. a period of rest and relaxation away from the place of work.
It followed that, if an employee was placed on furlough which, although likely to be subject to consent, was not necessarily a choice made willingly by the employee, and was akin to a “lay-off” situation as a result of the current crisis, this was not consistent with the spirit of the annual leave provisions.
However, the Government has now sought to clarify the position. In what is likely to be a policy decision, rather than a strict interpretation of employment legislation, it has issued guidance entitled “Holiday entitlement and pay during Coronavirus (COVID-19)”. This states:
“If an employer requires a worker to take holiday whilst on furlough, the employer should consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday.”
This is perhaps not as clear as employers would have hoped. Whilst it now seems unequivocal that there is a right for employers to require employees to take holiday (“if an employer requires a worker to take holiday whilst on furlough…”), this is qualified by the words “the employer should consider whether any restrictions…would prevent the worker from…enjoying…the fundamental purpose of holiday”.
What are the practical implications?
This seems to suggest that, where an employee cannot properly utilise their annual leave in the usual way, the employer may not be able to force them to take such leave. The guidance states expressly that social distancing might be a factor in this decision. As this is something that the entire population is likely to need to continue to observe for some time, it is unclear how any employees will be able to enjoy the “fundamental purpose” of holiday and, by implication, the precise circumstances in which employers will be able to impose it.
The guidance does comment that furloughed employees are unlikely to need to take advantage of the recent expansion of the leave carry-over provisions (where it has not been reasonably practicable for an employee to take some or all of the EU-derived 4 weeks’ holiday due to the COVID-19 pandemic.it can be carried forward into the following two leave years). This is because they will “be able to take it during the furlough period“.
However, this does not give extra weight or clarification to the ability of employers to compel their employees to take annual leave during furlough, as this could relate to voluntary leave only. All that the guidance does make certain is that it would not be reasonably practicable for an employee to take annual leave during furlough where, due to cash flow issues, the employer is unable to fund the “top-up” in order for the employee to receive their normal full holiday pay.
What approach should employers take now?
Given that employers are likely to want to enforce the taking of annual leave in order to avoid future operational issues, we would suggest utilising a broad interpretation of the guidance to facilitate this. It is likely that the Government’s intention was to give employers as much flexibility as possible, although the communication has been somewhat muddled.
However, employers should be alive to the fact that employees may use the contradictory elements of the guidance to contest any unilateral imposition of annual leave. From a financial perspective, given that they will have been paid their full, normal holiday pay, there will be no monetary loss for the employer to worry about.
Having said that, the action may cause wider staff engagement issues, so any instruction to take holiday during furlough should be dealt with sensitively. There may be discontent regarding the lack of clarity and, as with previous guidance, the Government may bow to the pressure to publish revised guidelines in the coming weeks.
[CONTENT CORRECT AS AT 18 MAY 2020]
If you would like to discuss any of the issues raised in this briefing or have other concerns about the impact of Coronavirus, please contact Rachael Lloyd, James Baker or Andrew Tobey in Michelmores’ Employment team.
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This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact our specialist lawyers to discuss any issues you are facing.