The latest developments and points to note for employers in relation to the coronavirus pandemic.

Furlough

As it stands, the Coronavirus Job Retention Scheme (furlough) is currently due to end on 30^th April 2021. However, the end date has been extended a number of times over the past year, as such we cannot rule out that it maybe be extended further, in line with the gradual lifting of lockdown restrictions.

There are currently two types of furlough:

• the employee stops work altogether, but remains employed; and
• the employee works some of their usual hours and is on furlough the hours they do not work (known as flexible furlough).

Employers can claim 80% of the employee’s usual wage whilst on furlough, up to a maximum of £2,500 per month per employee.

To be eligible for furlough leave, the employee must have been on the payroll on or before 30 October 2020. Eligibility extends to employees, workers, agency workers, zero-hours contract workers and apprentices.

The government has recently confirmed that employers can (not must) use furlough for staff who are temporarily unable to work due to:

• childcare responsibilities;
• caring for a vulnerable person in their household; or
• shielding.

Whilst on furlough leave, employees are not permitted to carry out work for their employer. However, they may volunteer for another employer or organisation and undertake training.

Sick Pay

To qualify for statutory sick pay (SSP), the employee must be absent from work due to incapacity. The definition of incapacity has been amended in the last year, to account for COVID-19 and to capture the different ways in which an employee could be incapacitated due to the pandemic.

The SSP regulations have been extended to cover employees who:

• are shielding because they are at very high risk of severe illness, and not able to work from home (with a formal shielding letter acting as evidence to the employer);
• are self-isolating because they have symptoms, or live with someone who has symptoms;
• have been advised to self-isolate by the contact tracing system; and
• have been advised to self-isolate of up to 14 days before admission to hospital for a procedure or surgery.

It is important to note that SSP is only payable if the employee has self-isolated for at least 4 days. This means that, if an employee isolates for 3 days and then receives a negative test result, the 3 days of isolation would not be covered by SSP.

SSP is currently £95.85 per week and can be paid for up to 28 weeks. Employers can offer more if there is a company sick pay scheme in place, but they cannot offer less.

Changing Terms of Employment

Employers may be looking to make a number of changes to their employee’s terms and conditions in order to accord with changing business needs in light of the new lockdown.

There are a number of reasons why an employer may wish to change an employee’s terms in the current situation, including:

• reducing hours and pay on a temporary or permanent basis;
• changing shift patterns to account for flexibility in start and finish times, to reduce the risk of congestion;
• changes to job roles; or
• inserting provisions for lay off or short-time working, in anticipation of further lockdown periods.

Employers looking to change the terms of an employment contract should first consider whether the existing contract is sufficiently broad to accommodate the alteration. If it is not, and the employer is required to make a change to the existing contract, then they should check whether there is an express term which allows the employer to vary the contract in the proposed way. If there is, then the employer simply needs to notify the employee of the change in writing.

If there is no express right for the employer to change the contract in the desired way, then the employer has the following options:

• Obtain the express agreement to the change – this would mean either the individuals agreement or through a binding collective agreement if a trade union is involved. This would be the preferred option when seeking to change terms, as it reduces the likelihood of a dispute about the change later on.
• Unilaterally impose the change – the employer could implement the change without the express agreement of the employee, and argue that the employee has accepted the change by continuing to work. This is a less favourable approach as there are options open to employees to resist the change, should they be minded to).
• Terminate the employment contract and reinstate the employee on new terms – employers should note that if they are planning on terminating and re-engaging 20 or more employees, they will need to consult with trade unions.

When changing terms and conditions, employers should be careful not to inadvertently disadvantage a particular group, as this could lead to discrimination claims against the employer.

Redundancy

The coronavirus pandemic has already caused significant economic hardship, and unfortunately, the third lockdown will inevitably have a further adverse effect on businesses. As a result of this, many employers may be looking at restructuring their business, which could lead to a redundancy situation.

When considering making redundancies, employers should be mindful that the process should be conducted in a fair and transparent way. The five principles to follow are as follows:

• be open with employees – communicate clearly about what is being considered from the start;
• be thorough – ensure you have trained staff representative in the redundancy process, to enable them to guide the employees being considered;
• do it genuinely – consider alternatives to redundancy and listen to employees views before making a decision;
• be fair – you should not discriminate when selecting employees for redundancy, for example making all employees over a certain age would be considered discriminatory; and
• conduct the process with dignity – ensure you consider the best way to deal with difficult conversations without causing distress to the employee.

Employers should ensure they have a redundancy policy in place, and that the policy is followed when selecting employees for redundancy. It is important to note that, if an employer fails to conduct the redundancy process fairly, it could lead to unfair dismissal claims against them. For this reason, employers should be careful to thoroughly document the redundancy process and the reasons for the decisions made.

If you would like further information about the topic discussed above, or any other employment-related matters, please contact our employment law solicitors. Get in touch by emailing online.enquiries@la-law.com or if your query is urgent, please call 01202 786135.