It is safe to say that during the Coronavirus pandemic businesses have been thrown many curve balls that they have never experienced before, this has meant that businesses have adapted to new ways of working and restructured and streamlined their workforces instigating redundancy processes.
In our latest news, we look at the rise in Covid Related claims that have been submitted to Employment Tribunals, and how you can act to eliminate the risk in your business.
Managing Working Hours
We take a look at working hours, this is a common claim at tribunals and on the rise due to underpayments for Holiday entitlements and the non-payment of rest periods, and breaching working time hours.
What can you do to reduce the risk, let’s take a look:
- Plan Holiday leave for all Employees, even whilst on furlough, remember holiday during furlough is payable at 100%.
- Where Employees have not had the opportunity to take leave, you can allow for untaken entitlement to be carried over into 2021/2022 leave years, this is where an Employee has not had a reasonable opportunity to take their leave due to Covid.
- Organise rotas for your Employees to ensure they are taking the appropriate rest periods in any working day, for example, a rest break after 6 hours of work, and an 11-hour break between each working day.
- Check your 48-hour Opt-in/out documentation, this will ensure that you don’t have Employees working in excess of 48 hours on average each week, you may find this more relevant with home/remote workers, or where you have had an influx of work.
- Set parameters with your Employees, to limit the use of out-of-hours emails/messages and or communications, this may be for your home/remote workers.
One word that we heard so much about, and still do is Furlough, the Coronavirus Job Retention Scheme (CJRS) has allowed Business owners to claim for a percentage of their Employees furloughed wages, there has been, and still is much controversy in relation to just who should have been placed on Furlough.
This could lead to Employees bringing their furlough claim to tribunal leading to discrimination claims. It is widely publicised that many Employees have been unhappy they were selected for furlough, ultimately this in many cases resulted in a cut in their pay of 20% as Employees did not need to top payments up to 100%. Similarly, there are many that are unhappy they had not been selected if they needed to make provisions for childcare, had to take care of vulnerable family members and Employees who had health issues but were not considered critically vulnerable themselves.
If we take a look back to the beginning of the scheme, it was apparent that a loose phrase around consent was a requirement, this would be to place them on the scheme and make the necessary cut in pay, in employment terms this may be relied upon in an Employees terms and conditions, where an agreement is reached through trade unions or consent is sought. In many instances, this may not have been the case.
If normal employment law principles were not applied to any furlough consent, and or selection process, it may mean that consequently, Employers will face discrimination claims with the argument being that their furlough decision-making breached the implied term of mutual trust and confidence.
Whilst some of this is unchartered waters the likelihood is that Tribunals will be sympathetic to Employers, our advice is that as an Employer you:
- Check that you are/have acted as fairly and reasonably as possible in the circumstances
- Clearly document your business reasons when placing Employees on the scheme
- Ensure you have consent in place.
Managing Long Covid/Post-COVID-19 Syndrome
Whilst we may not have all the answers right now an important issue over the coming years will be “long COVID or post-Covid-19 Syndrome”, time will tell how this will pan out but have been seeing the effects of this for some time, this will mean Employers will need to manage Employees who are suffering from the long-term effects of coronavirus.
Every individual varies and each person’s recovery is unique, the length of time is variable, it may take a couple of days, weeks, even months. It has been reported that long-term symptoms do not appear to be linked to the severity of when you first contracted Coronavirus, in fact, individuals with mild symptoms may still experience long-term effects.
In the long-term the question for Employers and Employment Law is, if a case is brought to tribunal for Long Covid, this would be a disability discrimination claim, so was the individual disabled at the time of the Employers ‘alleged mistreatment or inaction’?.
It is safe to say that Employers and Employment Tribunals will be placed in difficult positions and challenged to answer this question and whether an individual’s Long Covid symptoms do meet the definition of a disability as set out in the Equality Act 2010, as we see below it states:
“Under the Equality Act 2010, a person is disabled if they have “a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities”. An impairment is “long term” if it has lasted 12 months or is likely to last 12 months or for the rest of that person’s life.”
Managing Redundancies, Selection and changes to terms and conditions
It is a fact that unfair dismissal and discrimination claims relating to redundancy have always been common in Employment Tribunals. During the Coronavirus pandemic, redundancies have rocketed, in some cases, this has meant that Employers who have never dealt with the complex process previously will have handled the process without following the correct processes.
With the Coronavirus Job Retention Scheme (CJRS) now tapering off, it is inevitable that more redundancies are likely, we can never advise enough that there are very prescribed rules surrounding consultation if there has been a failure to warn and consult individually with an Employee about their proposed redundancy this could result in an unfair dismissal claim.
Similarly, and equally important collective consultation obligations are triggered when as an Employer you are proposing to make redundant 20 or more Employees at a single establishment over a period of 90 days or less, and that failure to comply can result in a protective award of up to 90 days’ pay for each affected Employee.
Collective consultation must begin ‘in good time’, this should be at least 30 days before the first termination takes effect (this period increases to 45 days if you are proposing 100 or more terminations).
It may be in certain circumstances that Employers citing ‘special circumstances’ as a means of defense where they failed to comply fully with their collective consultation obligations?
It may be that tribunals are in receipt of many claims over the coming months, with both individual and collective redundancy matters.
We suggest when carrying out a restructure/Redundancy program you:
- Ensure you warn and consult individually with each Employee about their proposed redundancy, your failure to do so could result in an unfair dismissal claim.
- Where possible, and or necessary use non-discriminatory criteria when selecting people for redundancy (you should include areas such as, standard of their work, disciplinary record, relevant skills, aptitude, teamwork, etc).
- Invite to consultations, consult individual Employees, seek their feedback, proposals and discuss alternatives to redundancy (eg furlough, reduction in hours, vacancies).
- Subject to the number of proposed redundancies, where necessary, comply with the collective consultation rules.
- Where you are proposing changes to terms and conditions, consult with Employees or negotiate with their trade union, or representative and try to obtain agreement for the changes.
- Correspond with your Employees throughout the process.
The list is not comprehensive, it is provided as a guide only, restructuring and Redundancy is a complex area, please contact a member of our team for support.
Can my Employees refuse to attend work – Health and safety
We do know that Coronavirus has been a threat to our daily lives, as Employers, Business owners have had a duty of care during the pandemic to ensure that their workplaces are ‘Covid-secure’, a battle has also been in place at times whereby Employers have struggled to get Employees back or stay at work.
In most cases, these situations have arisen where the Employee does not believe or feels that it is safe or there are safe working practices.
Employees are protected against detriment or dismissal were in “circumstances of danger” that they reasonably believe to be “serious and imminent”. Upon reading that we then may assume that an Employee has the right not to attend work then, it is agreed that the danger exists/s during the Covid-19 pandemic of contracting the potentially deadly virus, but, and this is key, there must be actual “circumstances of danger”.
Tribunals have been testing this area already and will continue to do so, recently a tribunal ruled that an Employee was not unfairly dismissed for refusing to attend work due to Covid fears.
Should and do we need to continue to work Flexibly and what about Flexible Working Requests
Legislation surrounding the right to request flexible working has been changed in any way, what Employees and Employers do need to take note of is that during the pandemic expectations have changed, it may also be that swift action may be needed again in the future.
At the start of the pandemic, we may have seen a home/remote working boom, many Employees cited this as their No1 benefit, we now hear of hybrid working, 4-day working weeks, and work anytime hours. As a business whatever your approach to working in the future you legally cannot just disregard Flexible Working Requests from your Employees, without a business reason, by doing so as an Employer you may find you need to justify your action/s, decisions later in an employment tribunal.
- We strongly advise that as a business you adopt:
- A clear and concise Flexible Working Policy and that you introduce this to your team.
- Your policy is fair, reasonable, and consistent for all, that way you will not discriminate.
- You have a procedure to follow for all Flexible Working Applications, this will ensure you are acting fairly and reasonably with all.
- You follow the Application process, using correspondence and clear communication.
We know that as a business you may need to rethink your approach, this may be if you have in the past been less reluctant to adopt flexible working practices, whether that be some or all of the time.
To refuse Flexible Working Requests as a Business you need a strong reason, failing to do so may mean you are required to respond to a claim/s of indirect disability, sex, or age discrimination.
The Handling of Discipline, Capability, and Grievance Procedures
As we reach the end of this post, I suppose we could say that Employers, Businesses, and Employment Law has had a grim time during the pandemic, one final area that Employers need to be mindful of is the way in which you handle disciplinary and grievance procedures, it is likely that these will be looked at in detail by Tribunals.
Areas that are speculative at the moment, but it is viewed that claims will follow:
- Any disciplinary action that is taken against an Employee where they refuse, fail to comply with your Covid-19 rules (this will include any Jab/testing enforcement related matters);
- Any non-Covid related disciplinary/capability and or grievance action that may be ongoing, and or currently ongoing during the pandemic;
- The underperformance of Employees Home/remote working.
It may be that Employees concentrate on delays affected by the pandemic and with that, they make further allegations, they may allege the process is tainted, by way of overall fairness, or may cite remote hearings/meetings have been conducted unfairly, or no process was in place.
We always advise that as an Employer you follow a fair procedure for dealing with problems, to do this you must follow the ACAS Code of Practice.
We are Here to Help
If you have any further questions about any of the topics detailed in this latest news, or any other HR, and or Employment Law matter do not hesitate to get in contact with us – our phone lines are open 24/7 and we would be more than happy to help.
We are here to provide full advice, support, and guidance, you can contact a member of our team on 0333 006 9489 or [email protected]
Author: Fran Crossland
8 August 2021
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