As both employers and employees try to come to terms with the changing workplace in the post Covid-19 world, many employees may not like changes that have been made, or may feel that they have been treated unfairly. Being unfairly selected for furlough or being forced to return to work when they do not feel it’s safe, especially for those who have been shielding, are two of the issues they may face.
These are new circumstances, but employers’ core responsibilities remain the same – the concepts of fairness and reasonableness underpin most areas of employment law, both in terms of their statutory duties and the implied term of “trust and confidence” incorporated into every employment contract.
Furlough/changing terms and conditions
The Coronavirus Job Retention Scheme (CJRS), which brought us ‘furlough’ is not in itself law, but interacts with many areas of law and this is where disputes can arise.
Under the scheme the government reimburses 80% of workers’ wages up to a cap of £2,500 per month – employers choose whether to fund the remaining 20%. For those who have not done so, their employees have therefore been asked to take a 20% pay cut as a result of being furloughed. Whilst many employees have been happy to accept this, others have not, particularly those on higher earnings where the cap of £2,500 has meant taking a significant pay cut in any case.
Such a cut can only be made with an employee’s agreement, but since this option has often been offered to an employee as a means of avoiding redundancy, they may have felt they had little option but to accept.
If an employee objects to being furloughed, they cannot automatically be selected for redundancy as a result – an employer will still need to demonstrate that they have followed a fair process in making that selection.
Some employers have asked employees to accept a reduction in salary or working hours as a result of a reduction in work or turnover during the crisis. To impose this without consent will be a breach of contract unless they already have clauses in their contracts covering this.
If employers push ahead, even though employees object, staff who resign as a result may have a claim for constructive dismissal. Alternatively, if the employer dismisses the employee and offers to take them back on new terms, they could also have a claim, but the employer may be able to demonstrate that their actions were fair if the change was necessary for the business’ survival.
However, in this scenario most employees may be reluctant to risk unemployment even when they feel their employer is acting unfairly.
Returning to work
Many people are now being asked to come back into work – some will be worried about going back, particularly when the number of infections remain relatively high and scientific advice on the risks seems to be divided. Some employees may feel that their employer is being unfair in asking them to return to work in their particular circumstances. What are their rights and what are the obligations on employers?
The government has issued guidance on working safely during the crisis which sets out five steps which all employers should take, along with eight sector specific guides. The general guidance includes provisions on allowing people to work from home where possible, undertaking risk assessments, managing hygiene, ensuring workplace distancing of at least two metres or taking alternative steps where this is not possible.
This is guidance and does not in itself have any statutory force. However, there are various statutory provisions which place a statutory duty on employers to maintain a safe workplace e.g. the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999. The guidance is therefore in addition to these provisions and does not replace them.
In Wales employers have a statutory duty to maintain workplace distancing of at least two metres where possible. Guidance has also been issued further to these regulations.
This requires employers to take “all reasonable measures” to maintain a distance of two metres between those in the workplace and requires employers to undertake an assessment to establish what measures may be necessary to achieve this. Where this is not possible, employers should consider what alternative safeguards can be put in place. The regulations and guidance are in addition to existing health and safety law, such as that contained in the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999, and does not replace it. There is further guidance for those working in some sectors and for those working in health and social care, there is also a workforce assessment tool to identify those who may be at higher risk from Covid-19.
Those who are shielding will feel particularly at risk if they are required to return to work – they are likely to have serious health conditions and may meet the definition of disability under the Equality Act 2010.
At present, the guidance is still that such employees should remain at home as much as possible, and it is likely to be unreasonable for an employer to require them to come into work. If they can’t work from home they may now be furloughed but once the scheme ends, that presents a dilemma since they may still be at increased risk.
Employers may have duties towards the employee under both the health and safety legislation and the equality legislation. They will need to undertake an assessment of the risk posed to the employee in returning to the workplace. Under the Equality Act they will also need to consider whether reasonable adjustments could be made which would allow the employee to remain in employment.
Insisting on shielding employees returning to work, even when they could work from home, may lead to a disability discrimination claim. Employers would need to be able to show that their decision was ‘objectively justified’ in order to defend these claims.
Many employers have insisted that employees should take some of their annual leave when they are furloughed. This is understandable – they do not want employees returning to work with their full annual leave allocation left to take before the end of the year. However, many employees resent this as they cannot currently spend their annual leave in the way they would wish.
Employers who want staff to take annual leave at particular times must give the employee notice of this and the period of notice must be at least twice as long as the length of the annual leave they are required to take. There has, however, been some debate as to whether employers can do this when employees are furloughed – this is not yet entirely clear, though government guidance suggests that they can.
This continues to be a difficult time for both employers and their employees. Employees may be understandably anxious regarding their livelihoods and income whilst many employers will be fighting to keep their businesses afloat. Some understanding and compromise may be required from both parties, although the safety of employees should always be maintained as far as possible.
Tribunals will have some sympathy towards employers in this situation, particularly those who appear to be acting reasonably. However, they will also be alert to any unscrupulous actions by employers who may be using Covid-19 as an excuse for unfair or unlawful practices.