“If infection levels are low enough that employees, particularly those who can’t work from home, can get test results within 24 hours of developing symptoms, this will bring forward and sustain the reopening of the economy.”
How businesses managed and mismanaged the furlough scheme
The furlough scheme has been a needed, generous and unprecedented lifeline which has allowed countless businesses to retain their skilled workforce and has saved millions of jobs. Businesses have had to walk a tightrope when deciding who to furlough. It has been crucial not to make furlough decisions as if running a redundancy selection process or based on assumptions about employees’ personal circumstances, such as caring responsibilities. The great majority of businesses deserve a lot of credit for how well they have managed this in the circumstances. Although the scheme was, by necessity, introduced in a very hurried manner, after the first moment of crisis passed there have been numerous extensions and changes to the scheme at unhelpfully short notice.
“Businesses have had to repeatedly consult with employees and remake decisions on retaining employees while keep up with shifting compliance requirements.”
To pick one example, when the furlough scheme was due to close in October many businesses had to enter into new agreements with employees so they could make use of the less generous job support scheme which was due to replace it. When that policy was reversed, those businesses had to scramble to make sure they had viable furlough agreements back in place in order to be able to use the extended furlough scheme. The decision in December that the scheme will continue in the same form and with the same level of support until April 2021 has now given some breathing space to plan ahead. On the enforcement side, it is hoped that HMRC will continue to take a common-sense approach where there has been unintentional non-compliance due to minor technicalities or interpretations of the scheme.
“Of course, that very small percentage of businesses that set out to abuse the scheme should not be surprised to face potentially very stringent penalties.”
Ways in which business can continue to provide an adequate work from home environment
For those roles that can be done from home, this has been one of the biggest challenges. Businesses first have to meet their legal obligations. They have to conduct risk assessments to ensure that each home working set up is safe, suitable and to mitigate any risks identified. In normal circumstances, employers would usually carry out assessments themselves, but Covid-19 means this is not possible, so self-assessments or assessments via video link have become the norm. There is no direct legal obligation on employers to provide equipment to facilitate homeworking. However, a duty to provide equipment may arise if such equipment is necessary to ensure health and safety. Employers should also be mindful of their duty to make reasonable adjustments for disabled workers, which could include providing equipment or additional help to facilitate self-risk assessments for disabled employees working from home.
The human impact is equally important
Many employees who never worked from home before the pandemic will have been working from home for at least a year by the time it becomes possible to work from offices again.
“While a high proportion of these employees don’t have a room they can use as a dedicated office, most employees appreciate the relative good fortune of being able to work from home during the pandemic.”
At the same time, enforced working from home over the last year has been unwelcome for many and is often detrimental to team working and individual development. Businesses also need to actively make it clear to employees that they will support them to maintain a delineation between home life and working life. This includes actively discouraging working at unprofessional hours of the day. To address all of these issues, businesses and employees have needed to find new ways to facilitate management and peer communication, as well as making sure that days of back-to-back hour-long calls are avoided.
The legacy of the pandemic on employment law
Because of millions being on furlough, or working from home, interactions between colleagues have been reduced. There have been far fewer disciplinaries and grievances. However, it has been important for employers to make sure that employees understand the need to remain professional when communicating online rather than slip into the type of social media chat they might usually have with friends. Most seriously, a very large number of employment tribunal hearings have had to be postponed. The courts and tribunals service is doing everything within its resources to rectify this, including holding hearings remotely wherever possible. But there is no getting away from how negative this has been to employees and businesses. We have also seen record numbers of redundancies, with many more to follow, which will inevitably lead to large numbers of employment tribunal claims.
“I anticipate that a common allegation will be that a redundancy was preconceived because the employee had previously been selected for furlough.”
In terms of working practices, the pandemic will have left at least one very positive legacy. Old presumptions about the value working from home have been swept away. It is very likely that a requirement to work five days per week from the office will no longer be the default setting. One concrete improvement this should bring is reducing the perception that being a working parent with caring responsibilities means you are less able to contribute to the success of a business.
Why employment rights matter more than ever in this time of crisis
In normal times, many employees who are unhappy about the termination of their employment choose not to bring grievances or employment tribunal claims because they prefer to focus on their new jobs. However, the impact of the pandemic on the economy is going to make it very difficult for a lot of people to find a new job at the same level as a job they have lost. For this reason, how businesses treat their people matters more than ever. The employers that are likely to come out of this the best are those have been open with their workforces throughout the crisis about the extent and limit of what they have been able to do to mitigate the impact of the crisis and have genuinely consulted with them about changes to working practices. About Russell Dann Russell specialises in employment and discrimination law and has spent his entire legal career in leading employment law teams. He works closely with clients to understand their commercial and practical needs and always aims to give cost effective and clear advice. Work includes advising employers and individuals on all aspects of the employment relationship: Employment Tribunal claims, disciplinaries and grievances, incentives, negotiations before and during employment, restrictive covenants, dismissal, settlement agreements, discrimination, flexible working, off-payroll working, restructures and TUPE, data protection, data subject access requests, working time and holiday pay. Russell also deals with large scale litigation in the Employment Tribunal and civil courts. As part of Clarkslegal’s strategic support to UK employers, Russell is a member of the UK delegation to the International Labour Organisation: representing UK businesses on cross-jurisdiction employment matters, international labour standards and supply chain governance.
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