Coronavirus has challenged business owners to keep up with emerging and changing government policies initiated under the Job Retention Scheme. Just as we’ve all got to grips with it, we’re now preparing for reopening our businesses and bringing our staff back into the workplace. If you’re struggling to get your head round the latest rules and regulations, chamber board member Sandhya lyer of The HR Dept has a breakdown of what they mean for you and your team.
We are in the fourth month since the government announced the lockdown and the furlough scheme. It has been quite a journey for everyone within business, including business owners, their staff, and us HR people trying to keep everything together with the piecemeal guidance which is dished out to us. I will be explaining not only the latest guidance, but also the hottest topics amongst employers currently: bringing employees back to work, and in some other cases, sadly, redundancies.
The updates to the Job Retention Scheme
It has been a welcome surprise to know that not only can businesses now plan towards the end of the furlough scheme, but also get staff to work on a flexible furlough basis. What this means is that employers no longer need to worry about the minimum three-week period to furlough an employee, to be eligible to claim the grant – or any minimum period for that matter. Instead, any claim of furlough in any given month must be for a minimum of one week. You may now get an employee back to work for part hours of the week, furlough them for the remaining hours, and thereby claim your grant for the unworked contractual hours. In any given month, you can have up to a maximum of four furlough claims and not one for each calendar day!
There are many other changes to the furlough grant itself and I’m sure your accountants will be updating you on all of these changes in relation to the actual figures. The key thing to bear in mind, however, is that all changes to the furlough scheme and variations to the hours of work must be confirmed in writing with the intent to seek the employee’s agreement to these changes.
Steps to enable a return to work
This is less of an issue for businesses whose staff can continue to work from home, and hence I am not going to focus on these enterprises. However, for those businesses who need employees to return to the workplace, it is key that employers take all reasonable measures to make the workplace as safe as possible for them to return to work. In practice, this means a comprehensive risk assessment of the workplace in relation to COVID-19 risks, and specific risk assessments where necessary to protect any staff who are at risk or within the vulnerable category – if you need specific advice then have a look at our Health and Safety page HERE
Rebuilding staff confidence about returning to work
It is quite possible that despite all the efforts taken by the employer, staff may refuse to return to the workplace if they perceive it to be dangerous (Section 44 of the Employment Rights Act, 1996). For instance, this could happen if they encounter another member of staff coughing or sniffing, and therefore believe this employee could be a carrier of COVID-19 leaving them feeling unsafe to return to the workplace.
So what steps can you take to give your staff confidence to return to work? My advice is always to ‘prevent people problems’, which is applicable to this situation: proactive communication is likely to be key here:
- It’s worth sending out a guidance note to your staff ‘before’ expecting them to come back to work, communicate what steps you have taken to make the workplace a safer and a COVID-19 secure area. Clarify that specific employee requirements, where applicable, have been taken into consideration.
- Your guidance should also set out clear expectations to all staff about the importance of of adhering to the national guidance on social distancing, not just whilst at work, but also outside, because their actions on a social level can have an impact on their availability for work, besides compromising the health and safety of their colleagues.
- Communication must be forthcoming and open from the side of an employee at all times. However, the primary onus will be on the employer to clarify their expectations to their staff before any staff member returns to the workplace after lockdown; this will eliminate ambiguity and hopefully further assuage staff fears about returning to the workplace after lockdown. Where an employee starts coughing or sniffing at the workplace, this may pose a challenge for any employer. You have a duty of care to eliminate the threat; whilst this is not possible in relation to Covid-19, your guidance must be clear about what the employee is expected to do if they present themselves with symptoms either whilst at the workplace or outside. In general, the seemingly unwell employee must inform the NHS track and trace system, remain home on self-isolation for 14 days, and will be entitled to Statutory Sick Pay. The same rule applies if an employee were to be contacted by an NHS track and trace system, asking them to self isolate.
As well as regaining staff confidence, such proactive communication also puts an employer on a more positive and confident wicket to expect staff to return to work.
What if your staff still don’t want to – or can’t – return to work?
However, if – despite all of the above measures – your staff still refuse to return to work, or are unable to return to work due to childcare restrictions until September, then it would be a business decision either to leave them on unpaid leave, parental leave or furlough leave – but this would need to be a management decision taken in tandem with professional HR advice, strictly based on individual circumstances. The issue of an employee who is unable to return to work due to childcare demands cannot be treated in the same manner as someone who refuses to return to work because they perceive it to be dangerous. Sometimes the issue may present itself as a combination of these two situations. As mentioned in one of my previous blogs , this is not the time to turn around and dismiss staff who refuse to return to work, although that may have to be the last solution in a rare case. Most employees, have been very positive and cooperative regarding returning to work.
There is always a risk of a constructive dismissal claim by an employee who perceives a workplace to be unsafe; unfortunately, furlough law is unchartered territory for all of us and only future case laws can decide where we stand against a constructive dismissal claim. For now, what is within our control as employers, is to do all the above because it puts you in a good position should you be faced with any claims.
Sadly, my advice line has started to see a clear spike in redundancy-related enquiries during the last month. We all knew that this was on the horizon at some point; if you are one of the employers who unfortunately find yourselves in this difficult position, it’s worth taking note of some of the common pitfalls I notice businesses almost walking into:
- Redundancy is not the golden opportunity to get rid of a problem employee – remember redundancy focusses on the need to eliminate a specific ‘position’ within the business, and not on the employee. If you need to get rid of a problem employee you need to be following a performance management process, not looking to buy the employee out through a redundancy package, as that can open a Pandora’s box of issues down the line. Seek professional HR advice if unsure.
- Consultations for redundancy need to be based on forward-looking data – this means that you need to start consulting with your staff NOW if you think your business will not be able to sustain the current headcount, vis-à-vis business demand, once the Job Retention Scheme ends in October. Redundancy consultations can commence whilst staff are on furlough based on your business case for proposing such redundancies. It is not prudent, nor advisable, to wait until the Job Retention Scheme ends to commence consultations, if you already know that you will have to go down that route eventually. The latter will be any employment lawyer’s nightmare come true!
- Reasons for selecting staff for redundancy – these cannot be based on staff needing to shield or having caring responsibilities, as such reasons in all likelihood will be in breach of the Equality Act, 2010.
In general, the road ahead for employers is bumpy but not impossible. Among the biggest challenges facing employers are: health and safety at the workplace, making offices COVID-19 secure and pitfalls to be aware of when considering redundancy. These are quite tricky areas of the law and the golden test of ‘reasonableness’ is key in putting an employer in the strongest situation. Remember always to seek advice before you leap – it will be the most prudent thing to do and money well spent.