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Coronavirus – The next 4 weeks…

Crikey! The world is changing before our eyes. Only a few weeks ago, a typical commute to work on the train was an environment full of people in various states of boredom, tiredness or, alternatively, being noticeably transfixed with their phones or Kindles. Now, in the midst of the coronavirus outbreak, it is a place of tension and anxiety, where the smallest cough by an individual (this morning by a frail-looking elderly lady) draws dagger-like stares and instant seat shuffling.

On sight of the most recent medical guidance, it seems near inevitable that things will get worse before they get better (to put it rather mildly) and that the new few months are going to present innumerable challenges to businesses, employees and the overall economies of the UK, Europe and beyond.

Obviously, I’m going to leave the medical stuff to the Doctors but, even within the bubble of employment law, it isn’t hard to see that this outbreak will cause terrific hardship at all levels within the UK. From the sporting event that is cancelled and the loss of revenue for the stadium and surrounding hotels and restaurants, to the laying off (or future redundancy) of staff at the stadium, hotels and restaurants, to the airline cancelling 50% of their flights due to low demand, to the staff members going home on temporary lay off (with minimum, if no, pay) and having nothing to pay the mortgage with, to the remaining staff members who may have coronavirus but will try to ‘soldier on’ and attend work because they can’t afford to be on SSP whilst on the breadline, thereby putting their colleagues at risk.

The list of potential examples is endless and, whilst measures to prevent the spread of the virus, on the most part, shouldn’t be criticised, it is hard to avoid sight of the human suffering it will cause on a financial and mental health-based level.

So, what is a potential ‘worst-case scenario’ within the next 4 weeks within the UK? Well, it doesn’t take too much imagination to see the following events becoming more and more likely:

  • Businesses seeking to ‘lay off’ staff (or reduce their contractual hours) in an attempt to try and avoid permanent redundancies
  • Staff increasingly ignoring self-isolation advice because of the fear of receiving SSP pay only
  • Workplaces learning of a staff member having a positive coronavirus diagnosis and having to decide on whether an active precaution is to close the workplace and/or try to enable staff to work from home
  • Nurseries struggling to remain open if schools close for a considerable period of time and requesting financial help from the Government
  • Businesses without infection having to decide whether to ask staff to work from home to avoid them travelling to work on public transport
  • Supermarkets coming under criticism for reported stories of staff members being unwell with cold- or flu-related symptoms but being told to come in because of the increased strain caused by panic buying
  • Companies adapting meetings to be held by Skype or conference call rather than face-to-face
  • Potential rules or guidance being put into place by the Government in relation to older staff members (particularly those working within customer-facing roles)

Some of the above will definitely happen, whilst some are very likely. Overall, however, the hardest thing for employers and employees alike to adapt to are the challenges that can’t be predicted in advance. For now, I hope everyone stays safe and, if you are one of our employer (or employee) clients, please don’t hesitate to contact us for up-to-date guidance and legal advice on any coronavirus-related issues.

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Coronavirus – More questions than answers…

I’ve not written much about coronavirus previously because, frankly, whilst my blogs tend to be topical, it felt overly opportunistic. However, in the last 7 days, the number of calls and emails I’ve received from concerned employers and, in recent days, from employers with fears of members of staff displaying potential symptoms, has sky-rocketed.

Overall, in the majority of situations, there is no one-size-fits-all answer because the answer to many questions is largely dependent on the individual circumstances of the staff member and the approach, and Health & Safety restrictions upon, the employer itself.

In addition, different employers tend to have varied and wide-ranging questions depending on their particular industry and sector and, given all of this, it seems more apt to focus on the right questions to ask as an employer at the moment. Suitable questions tend to include:

  • What if an employee says they ‘can’t afford’ to self-isolate on SSP?
  • What steps do I need to take in relation to home-working in case the virus outbreak worsens?
  • I think an employee is lying about a GP telling him ‘not to self-isolate’. Can I instruct him/her to self-isolate and avoid work?
  • Is it wise to pay a higher rate of sickness pay if that sickness absence is most likely coronavirus-related?
  • When is it suitable for me to inform a staff member to self-isolate upon return from annual leave abroad?
  • Should sickness absence triggers apply for periods of self-isolation?
  • How will we claim back the first two weeks’ of SSP pay from the Government?
  • If an employee shares a house with someone who is currently self-isolating, should they attend work themselves?
  • Do we need to consider lay-off or short-time working arrangements and, if so, how are these actioned?
  • What is the status of Fit Notes for coronavirus and/or self-isolation?
  • Is self-isolation upon recent return from a ‘risk zone’ abroad, but where the employee states that they ‘feel fine’, classed as emergency leave or sickness absence?

In all honesty, as above, the answer to some of these questions can depend to a large extent on the individuals and business concerned, hence the lack of ‘template’ answers to accompany these questions.

The main wisdom at present is that employers may need to be more flexible in relation to how work is performed and how to apply their usual rules and procedures during this coronavirus outbreak. I hope everyone stays safe and, if you are one of our employer clients, please don’t hesitate to contact us for up-to-date guidance and legal advice on any coronavirus-related issues.

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What is a reasonable period to ‘lay off’ your employees?

bored manOne of the most important and often useful clauses within a contract of employment for employers in any trade is the ‘lay off/short-time working clause’.

For those that are not aware, such a clause would usually entitle an employer who suffers a downturn in the work available, to either reduce the hours of the affected employees or alternatively, completely ‘lay off’ such employees without pay – subject of course to the employee’s right to receive statutory guarantee pay in qualifying circumstances.

If an employer attempts to take this action without such a clause being present, the employee may be entitled to resign and claim constructive unfair dismissal.

Section 135(1)(b) of the Employment Rights Act 1996 provides further guidance as to the rights of the employee in a lay off situation, and explicitly states that provided the below criteria are satisfied, the employee’s employment will be terminated and a redundancy payment must be made:

  • The employee must have two year’s’ continuous service;
  • The employee must have been laid off or kept on short-time working for a period of at least four consecutive weeks or, or a total of six weeks (of which no more than three are consecutive) in a thirteen week period;
  • The employee must thereafter follow the procedure as set out in sections 147 – 154 of the ERA 1996, declaring their intention to claim a redundancy payment.

If the employer reasonably believes that work will become available in the next four weeks, it must serve a ‘counter-notice’ (section 149 ERA) meaning that the employee will not be eligible for the redundancy payment at this time.

Previously there have been conflicting decisions in the Employment Appeal Tribunal as to whether an employer can only lay off an employee for a ‘reasonable period’. 

In the recent case of Craig v Bob Lindfield & Son Ltd UKEAT/0220/15, the EAT was asked to consider whether a ‘reasonableness term’ could be implied into a lay off/short time working clause within a contract of employment to allow lay off and short-time working for an indefinite period without pay.

The facts of the case were that in July 2014 following a reduction in work available, the Respondent, a design and technology company, advised all affected employees that they would be laid off as of 21 July 2014.  The contracts of employment of the affected employees did allow for this course of action, albeit the relevant clause was actually contained within the Employee Handbook rather than the Contracts of Employment, which was incorporated into the Contracts.

The Claimant, a designer, was one of the aforementioned affected employees and on 22 August 2014, sent an email to his employer advising that he had found alternative employment elsewhere and was due to start on 1 September 2014.  The Claimant further advised that given he had now been laid off for almost five weeks, he felt he was entitled to a statutory redundancy payment to which the Respondent replied that this was not the case as he thought that work would resume shortly.

The Claimant thereafter informed the Respondent that he felt he had no alternative in the circumstances, than to resign and bring a claim for constructive dismissal.  The Respondent subsequently issued him with a section 149 counter-notice and advised the Claimant that his role was still required by the Company and was therefore not redundant.

The Claimant brought a claim at the Employment Tribunal claiming constructive dismissal on the basis that the lay off period was unreasonable.  The Employment Tribunal found for the Respondent, stating that there was no implied term in respect of the reasonableness of a lay off period and even if there were, the period in these circumstances was not held to be unreasonable.  In addition, as there had been no repudiatory breach of the contract of employment the Claimant was not entitled to claim constructive dismissal.

The Claimant subsequently appealed against the Employment Tribunal’s decision on the basis that the Tribunal was incorrect to find that the lay-off clause was not subject to a term that lay-off should be no longer than was reasonable, and that it further erred in concluding that four and a half weeks was not an unreasonably long period.