During 2020 millions of UK employees have been away from the workplace – whether operating at home or furloughed The coronavirus pandemic has placed a different set of pressures on businesses in all sectors. New support packages, such as the Coronavirus Job Retention Scheme, were designed to reduce some of the financial and operational stresses being felt, but they have also presented separate issues to address.
In partnership with international law firm Morrison & Foerster , Be the Business has looked at some of the significant employment changes that businesses around the UK may have been made and the issues being faced as a result. Breaking it down into “key issues”, “action items” and “enforcement”, use our expert advice to make sure your business is operating ethically, legally and effectively in this very different economic climate.
Some of our explanations may seem quite detailed, but it’s vitally important to make sure your business is addressing crucial compliance considerations. We’ve broken it down into scenarios you might now face yourself in so it’s easier to digest and take any relevant actions away.
We’ve also got an article looking specifically at legal compliance relating to technology changes made during the pandemic. Make sure you see if there’s something you need to be looking at there.
This information, brought to you in partnership with Morrison & Foerster, is provided for general information only. It is not intended to amount to advice on which you should rely. Neither we nor Morrison & Foerster act as legal advisor for those who accesses the content on our site. Please see our full terms and conditions below and our more detailed website terms of use .
Here are the scenarios we have some advice about below:
So you’re starting to bring staff back into the office but staff are concerned about returning So you’ve decided you need to start making some redundancies So you’ve had some people on reduced hours and pay and you need to work out a long-term plan to ease them off that So you don’t know what support you have to give home workers in the long term and you’re worried about your legal standing with mental health issues So you don’t know what to do about the build-up of holiday and leave So you don’t know how to deal with grievance/disciplinary measures while staff are working from home So you don’t know how to develop a robust flexible working scheme for the future
So you’re starting to bring staff back into the office but staff are concerned about returning
Key issues
Employer health and safety obligations. Have you followed government guidance in ensuring a safe workplace? Employee consultation. What comms/consultation process have you put in place? Have you carried out any surveys/assessments of employees’ preferences or commutes? Employee concerns. How will you respond to employee concerns? How will you deal with vulnerable employees or employees who have caring responsibilities? Employee testing. Can you compel employees to take coronavirus tests? If not, can you offer these on a voluntary basis? Could you regularly check employees’ temperatures or ask them to respond to medical questionnaires?
Action items
As an employer you have both statutory and common law duties to ensure, so far as is reasonably practicable, the health, safety and welfare of your employees, customers, visitors and any others who it might be reasonably foreseen could be harmed as a result of your business activities. In the midst of the coronavirus pandemic, the obligation to make the workplace as safe as possible could pose a challenge. Before asking your staff to return to the workplace you must first carry out a coronavirus risk assessment to identify what sensible measures can be taken to control the risks in the workplace. The government has prepared detailed guidance for different types of workplace (including factories, labs and research facilities, restaurants, shops, etc.) as has the Health and Safety Executive (“ HSE ”) If you haven’t already done so, you should start talking to your employees about any plans to return to work at the earliest opportunity. Discuss when you would want employees to return to work, whether the return will be phased and, if so, which roles are to be prioritised. It might be helpful to circulate a survey or some form of questionnaire to assess employees’ commutes, caring responsibilities, protected characteristics or other individual circumstances, all of which should form part of your determination as to who can come into the workplace safely. You may also need to consult with employee representatives (if there are any in place), including trade union and/or health and safety representatives Employees may be nervous about returning to the workplace and their concerns could relate to a number of issues. Some may be reassured by an explanation of the steps you are taking (in line with the guidance above) to minimise the risk of virus transmission in the workplace, but others may have caring responsibilities or may be at a higher risk if they were to catch the virus (or live with someone who is). You need to prioritise those who are vulnerable and work with these employees and any others who have concerns to either accommodate them to continue working from home or to find on-site roles that are as safe as possible. If this is not an option you may need to discuss whether the employee could take holiday or unpaid time off or, in extreme situations where an employee refuses to return to work without a valid reason, consider disciplinary action. Seek advice from a legal professional before reducing/suspending employee pay or taking any disciplinary action Employee testing is a tricky area and should be discussed with a legal professional prior to implementation of any compulsory or routine testing. This is because you need to consider both employment and data protection law due to the sensitivity of employee health data and the potential severity of the implications for the employee. Requesting employees take a coronavirus test before returning to work may be justifiable but there are a number of issues to consider, such as whether a data protection impact assessment is required, whether there are less intrusive ways to address health and safety concerns and the risks of taking disciplinary action if an employee refuses to comply with a request to undergo a test. A more straightforward option may be to provide guidance/training on the symptoms of coronavirus for employees and encourage them to self-report (but ensure that any data collected in this reporting is limited to the minimum amount needed to identify the health and safety risks posed)
Enforcement
In certain extreme situations, breach of an employer’s statutory health and safety duties could constitute a criminal offence and either the HSE or a local authority could pursue an action against the employer (see “So you don’t know what support you have to give home workers in the long term and you’re worried about your legal standing with mental health issues” below). Breach of an employer’s implied health and safety duties could also incur liability under the tort of negligence or as a breach of contract (as a breach of the employer’s implied obligations under the employment contract) If changes are imposed too rapidly, without consultation or without good reason, employees could also claim that you have breached the duty of mutual trust and confidence. This would be considered a fundamental breach of contract, entitling the employees to resign and claim constructive dismissal To the extent there are any agreements with employee representatives requiring consultation in these circumstances and these are not complied with, penalties under such agreements may apply If employee health data is mishandled or processed without a valid legal basis/in accordance with data protection law, this too could lead to enforcement action by the Information Commissioner’s Office and/or further employee claims
So you’ve decided you need to start making some redundancies
Key issues
What is the reason for the proposed redundancies? Redundancy is a “fair” reason for dismissal for the purposes of unfair dismissal law (see below), and employees that are dismissed by reason of redundancy may be entitled to statutory redundancy pay How much service do employees have? An employee with at least two years’ continuous service is entitled to a statutory redundancy payment, which takes into account the employee’s age, length of service and weeks’ pay. It is also worth noting that employees will only be able to claim unfair dismissal after two years’ service with their employer Are certain roles being considered for redundancy or is a general reduction in headcount costs required? Having identified the reasons for the proposed redundancies, employers must ensure that they carry out a fair redundancy process in order to avoid claims for unfair dismissal How many employees are likely to be made redundant and over what period? Where an employer proposes to make 20 or more employees redundant within a period of 90 days or less, known as “collective redundancies”, the employer has a legal duty to consult the representatives of the affected employees (known as “collective consultation”) and notify the Department of Business, Energy and Industrial Strategy (BEIS) of the proposed redundancies How will you carry out consultations with a remote workforce? The fact that an employer has a remote workforce due to coronavirus (or otherwise) does not extinguish their legal obligation to consult its employees – or, if necessary, their representatives – regarding proposed redundancies
Action items
As a first step in any redundancy process, you must ensure that your proposals fall within the statutory definition of a “redundancy”, namely: 1) business closure, 2) workplace closure (e.g. the closing of a site), or 3) diminished requirement of the business for employees to do a particular type of work A “fair” redundancy process would include: forming a selection pool of employees performing similar roles who are at risk of redundancy, selecting at-risk employees based on objective criteria, carrying out individual consultations with each employee and considering any suitable alternative employment Collective consultation must last a minimum of 30 days in the case of 20-100 dismissals, or 45 days in the case of more than 100 dismissals, and the employer must not carry out any dismissals before this period of collective consultation has concluded. If collective consultation is triggered, you must also ensure that the BEIS is notified of the proposals by submitting an HR1 Form Consultations do not have to take place in person: you can (and many employers do) carry out consultations remotely, by email, telephone and/or video call
Enforcement
If an employee is found to be unfairly dismissed, an employment tribunal may order the employer to reinstate or re-engage the employee, or (more usually) provide compensation to the unfairly dismissed employee. Damages for unfair dismissal are currently capped at the lower of one year’s pay and c.£88,000 Breach of the collective consultation process can lead to an order of a protective award, where the employer could be required to pay up to 90 days’ gross pay for each dismissed employee. Failure to notify BEIS amounts to an offence and is punishable by an unlimited fine Employers can use the Gov.uk website, here , to calculate employees’ entitlement to statutory redundancy pay
So you’ve had some people on reduced hours and pay and you need to work out a long-term plan to ease them off that
Key issues
Employee consultation. On what terms were employees’ hours and pay reduced? Was it clear that the changes were only temporary? What comms/consultation process have you put in place? Employees who would prefer to remain on reduced hours. What if some employees need to continue to work reduced hours due to caring responsibilities? What about employees who refuse to return full-time? Equal treatment. Have you allowed some employees to remain on reduced hours but not others? Can you justify this? Have you set a precedent?
Action items
Your first step will be to look back at the terms on which the employees agreed to reduce their hours/pay. If it was made clear that these arrangements would be temporary and that there was either a fixed end date or an agreement that employees would be given a set period of notice prior to returning to their previous hours/pay, then in most cases you should be able to rely on these provisions to require that the employees resume full-time work. That said, even where there is a contractual agreement to this effect, you do need to exercise any such provisions in such a way as to avoid breach of your duty of trust and confidence to your employees (see q. 1 above). Clear communications should be sent to employees ahead of any change notifying them of the proposals and, where an employee voices concerns, you should consult with them to ascertain what adjustments (if any) may work for both parties If the terms of the reduced hours/pay were not expressly documented, you will need to engage in consultation with the employees to determine how best to revert to their full-time arrangements, outlining the business need and the company’s long-term plans. If your employees are represented by a trade union or other elected representatives you may need to discuss your plans and the impact on the employees with them too. In any case, you should discuss how to document the change to employees’ terms and conditions, and whether any other changes may be required to the employees’ contracts, with a legal professional While many employees will be keen to return to work on a full-time basis, there may be others who prefer to remain on reduced hours due to caregiver responsibilities or other personal circumstances. It may be the case that the employee could benefit from time off under your parental leave policy or unpaid time off for dependants. For more long-term solutions, you are obliged to reasonably consider flexible working requests (see further below). If, on the other hand, it is the case that an employee does not wish to resume their previous hours and they do not have a valid reason or you simply cannot accommodate them continuing to work reduced hours, you may need to consider disciplinary action or redundancy. We would strongly recommend you consult a legal professional prior to taking any such action When you are deciding which employees to ease off reduced hours first, ensure that this decision is not based on factors that could be considered discriminatory such as age, race, gender, disability or other protected characteristics. You also need to ensure that any decisions you make do not disproportionately impact certain groups (e.g. those with childcare responsibilities) and you should be mindful of the need to consider making reasonable adjustments if any employees have a disability. You should take care to document these decisions in the event any complaints are subsequently made and you need to justify the actions taken. Another thing to remember is that being lenient with a few employees could set a precedent if it turns into a pattern; if you have any concerns as to whether any of your actions may be considered contractual through custom and practice, discuss these with a legal professional
Enforcement
As outlined above, breach of the duty of trust and confidence is considered a fundamental breach of contract, entitling an employee to resign and claim constructive dismissal To the extent there are any agreements with employee representatives requiring consultation in these circumstances and these are not complied with, penalties under such agreements may apply Where an employee is dismissed without fair reason or proper process and that employee has two years’ service, they could bring a claim for unfair dismissal (see above) Lastly, an employee could also seek to bring a claim for discrimination. This does not require any minimum period of service
So you don’t know what support you have to give home workers in the long term and you’re worried about your legal standing with mental health issues
Key issues
What are your obligations under H&S legislation? As noted above, employers remain legally responsible for the health, safety and welfare of all their employees, even if they are working from home . This obligation extends to mental – as well as purely physical – health and welfare Are employees currently provided with equipment for their role and/or any supplements to purchase equipment they may require for a home workspace? Employers are not legally required to provide equipment to employees, but are responsible for such equipment and technology they do provide to employees so that they are able to work from home Have you put in place clear communications to employees on who they can speak to/an Employee Assistance Programme? It is important that effective communication channels have been implemented to allow employers and employees to keep in touch regularly. This will be particularly important as employees continue work from homeHave you carried out any surveys/assessments of employees’ mental health throughout coronavirus? Conducting surveys and assessments will allow employers to understand how their employees are coping and whether the current situation has had a detrimental effect on employees’ mental health, thereby putting the employer in a position to properly respond to/deal with any such issues
Action items
Employers have a duty to do whatever is reasonably practicable to ensure their employees are safe when working. Whilst it will be difficult to carry out the usual health and safety risk assessments at an employee’s home, employers should still take measures to ensure that each employee feels that they are able to work safely at home, including making reasonable adjustments for an employee who has a disability. This will require regular communications with employees You should discuss with your employees what equipment and technology (if any) is required to allow them to work effectively from home and assist in the setting up of new equipment and technology. Further, you should regularly monitor and assess your IT systems and the employees’ working from home arrangements and make any improvements, if appropriate You should explain to employees who they can contact if they feel that their mental health has suffered and how these issues can be discussed, for example, this might involve the use of video or conference calling technology. You should also consider putting in place a suitable Employee Assistance Programme that fits the culture of your organisation if one is not already in place. An Employee Assistance Programme may be useful to assist employees resolve problems that may be having an adverse effect on their work performance – and, in turn, their mental health – by participating in confidential counselling You could consider preparing a questionnaire using the CIPD template, here , and adapting it to fit your own organisation. You should carefully consider individual employees’ needs, especially if they have particular caregiving requirements or other challenging circumstances The ACAS guidance, here , provides further information on various homeworking concerns including employer and employee responsibilities whilst working from home, and the HSE guidance, here , on equipment risk for home workers The ACAS guidance on mental health, here , provides further advice on how to support workers’ mental health and wellbeing
Enforcement
If found to have breached its legal H&S obligation, a company employer could (in the worst cases) face an unlimited fine In extreme circumstances, an individual director or officer of a company employer can also be held criminally liable for H&S offences, facing up to two years’ imprisonment or an unlimited fine or both , and be disqualified from being a director for up to 15 years Employees can bring a civil claim for compensation against employers who fail to comply with H&S regulations You should check that your employer’s liability insurance policy extends to employees who are working from home
So you don’t know what to do about the build-up of holiday and leave
Key issues
Do employees have a right to carry over untaken holiday? No – broadly speaking, employees must take annual leave in the relevant leave year and there is no right to carry over untaken holiday unless :
The contract of employment expressly provides for carry over The employee has been prevented from taking annual leave due to sickness It has not been reasonably practicable for the employee to take holiday due to coronavirus (see below)
Can you require employees to take holiday? Yes. Unless the contract of employment provides otherwise, employers must give employees at least twice the amount of notice as the required leave ( i.e. 10 days’ notice for five days’ leave) What if an employee has been unable to take holiday due to coronavirus? The government introduced emergency legislation in March to provide that employees can be permitted to carry over any untaken annual leave into the following two leave years where it was not “reasonably practicable” to take that leave due to the pandemic (e.g. if business need has increased such that it is not feasible for the employee to take all of their annual leave in the current calendar year). Note , however, employers should still do all they reasonably can to allow employees to take their annual leave What about employees who have been unable to take annual leave due to sickness? Employees in such circumstances must be permitted to carry over any untaken leave
Action items
You should check when the current holiday year comes to an end and the current state of any accrued but untaken holiday across the workforce You should consider whether any employees have been unable to take holiday due to coronavirus or sickness and, if so, whether there is scope for them to take any outstanding leave before the end of the holiday year. If not, bear in mind the obligation to allow carry over You should provide clear communications to employees: remind them of the health and safety reasons for taking leave and encourage all employees to book annual leave (in accordance with the organisation’s holiday policy). If you anticipate that there are likely to be any particularly busy periods (e.g. financial quarter end), remind employees of these dates and ensure that holidays are planned around them You should explain to employees that if they do not take all of their leave you will not be able to agree to carry over (unless required by law or the employment contract/holiday policy provides for a certain amount of carry-over) If employees do not voluntarily book holiday, consider requiring them to take time off (see notice requirements in previous column). You should ensure that employees are treated fairly and consistently if imposing any such requirements You should bear in mind that holiday pay must be calculated by reference to an employee’s “normal remuneration” (which could include, for example, commission payments, guaranteed overtime and certain performance-related bonuses) You should also consider the government’s guidance on holiday and coronavirus, here
Enforcement
Employees who have been prevented from taking annual leave and/or have not been paid the correct amount of holiday pay can seek compensation in the employment tribunal
So you don’t know how to deal with grievance/disciplinary measures while staff are working from home
Key issues
Have you considered the ACAS statutory Code of Practice on disciplinary and grievance procedures? Employers must ensure that any disciplinary procedure is fair and reasonable – notwithstanding that it might have to be carried out remotely. If the procedure must be carried out remotely, any limitations on the ability to carry out a fair and reasonable procedure should be considered and eliminated, if possible How do you deal with evidence? Evidence is key in any disciplinary or grievance process and steps should be taken to ensure that evidence is shared in an appropriate and consistent manner Can adjustments be made to usual procedures? Employers should ensure the effective use of technology in order to make the procedure as ‘normal’ as possible
Action items
The ACAS Code of Practice, here , which applies whether the employee is working in the office or from home – should be followed (as a minimum) in any grievance or disciplinary hearing Individual circumstances and the sensitivity of each case should be considered when deciding whether to proceed with a disciplinary and grievance procedure You should take extra care to keep a record of any disciplinary or grievance hearings conducted remotely. Do not secretly record hearings – recordings should only be made if expressly agreed to by you and the employee. Make it clear to the employee at the start of the hearing that making covert recordings would amount to misconduct. It would be advisable to circulate any notes of the hearings for sign-off by the parties to reduce the chance of challenge in the future You should ensure that all parties involved have the same set of documents during remote meetings/hearings. Documents should be sent in advance and, if possible, you should use the “share screen” video function to ensure that everyone can refer to the same documents. You might also consider the number of witnesses, bearing in mind the practicality of interviewing them – how many are actually required You should be particularly conscious of any reasonable adjustments that might be needed for disabled employees. For example, an employee with hearing difficulties – who relies upon sign language or lip reading – should be invited to a video conference rather than a telephone hearing The ACAS guidance, here , provides further information on disciplinary and grievance procedures during the coronavirus pandemic
Enforcement
Failing to follow a fair process could result in a claim for unfair dismissal (if an employee is ultimately dismissed at the end of the process) This could also give rise to claims that the employer has breached the mutual duty of trust and confidence Any unfair dismissal award could be up-lifted by up to 25 per cent if an employer is found to have failed to follow the ACAS Code of Practice Failure to consider reasonable adjustments can give rise to claims of disability discrimination, for which the potential compensation is un-capped
So you don’t know how to develop a robust flexible working scheme for the future
Key issues
What are your legal obligations relating to flexible working requests? Employees with at least 26 weeks’ continuous service can request flexible working and employers must respond to any such request within 3 months, and can only reject requests where they can be justified by reference to one of the statutory business reasons
Action items
If an employee has made a flexible working request, you should discuss it with the employee and consider other options if granting the request is not possible. If you reject the request, it must be for one of the statutory business reasons Employees must be given a right to appeal any such rejection
Enforcement
Where an employee claims that a flexible working request has not been properly considered/the proper procedures have not been followed, an employment tribunal could require you to reconsider the request or award compensation of up to eight weeks’ pay (subject to a cap on weekly pay) Unreasonably refusing a flexible working request can also give rise to claims of sex, disability and/or religion or belief discrimination. Employees could assert a breach of the employer’s duty of mutual trust and confidence, which, in turn, could give rise to constructive dismissal claims A failure to follow the ACAS Code of Practice on flexible working requests will be taken into account by employment tribunals considering such allegations of discrimination and/or breach of trust and confidence
Employees 
