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Coronavirus: latest updates for employers

25/07/2020

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Alexandra Mizzi , Legal Director

The Government has announced the Coronavirus Job Retention Bonus scheme, under which employers can claim a 'bonus' payment of £1,000 for each furloughed employee whom they keep on after the furlough scheme ends. In order for the employer to receive the payment, the worker must have been furloughed, must be continuously employed between 31 October 2020 and 31 January 2021 and must earn above the Lower Earnings Limit (£520 per month) on average between those dates. Some guidance was published on 31 July but more is expected in September. It remains to be seen whether this will have much impact on employer's decision-making about possible redundancies, particularly with some large employers already announcing that they won't participate in the scheme. It will have most take-up in sectors with relatively low-paid staff and which can expect some increase in demand in November and December. But the level of payment probably won't make much difference to employers' cost-benefit analysis when it comes to potential redundancies among high-paid staff. It may have an impact on which staff are selected for redundancy, with previously-furloughed staff less likely to be selected, but this approach could result in unfair dismissal claims.

Following the Prime Minister's announcement on 16 July 2020, the Government's guidance on home-working is set to change from 1 August 2020. In a reversal of the current guidance, it will advise staff who are able to return to work safely to do so. That leaves a great deal of discretion in the hands of employers - many of whom seem to want clear guidelines rather than a broad discretion. With widespread uncertainty about the safety of mass commuting by public transport, the idea of returning to 'normality' by Christmas seems somewhat optimistic. Most employer surveys show reluctance among employees to return to the office. We anticipate that employers who seek to require home-working staff to return in the next few months will face a deluge of requests for flexible working and claims for reasonable adjustments, so they will need to prepare carefully.
From 6 July individuals deemed 'extremely clinically vulnerable' to coronavirus have been advised that they no longer need to shield (and so no longer need to avoid face-to-face contact or stay at home). From 1 August, those individuals will be advised that they can return to work (providing their employer has complied with the guidance on 'COVID-secure' workplaces) and will no longer be eligible for statutory sick pay. We anticipate that some staff in this category will be anxious about the prospect of returning to work, and employers will need to handle discussions with these staff carefully. We would suggest that employers take the following practical steps:
- Get in touch with staff who have been shielding and set a time for a discussion about a potential return to work;
- Make sure they have a copy of your workplace risk assessment and details of the measures you are taking to mitigate risks;
- Many staff in this category will be disabled for legal purposes and so the duty to make reasonable adjustments will apply. You will need to consider whether any aspect of the proposed working arrangements will place them at a disadvantage and what adjustments can be put in place to mitigate the disadvantage.
- When you meet with them, you should explore their views on returning to work with a view to agreeing a return to work plan. This should include discussion of any adjustments you propose to put in place for them and any further adjustments they may request.
- If they are not willing to return from 1 August for health reasons, you will need to consider your options carefully, bearing in mind the risk of potential disability discrimination claims. If they have previously been furloughed for at least a 3 week period, you may be able to use the furlough scheme to provide some financial support as they return to work on a phased basis. If not, you may wish to agree a period of paid or unpaid leave with them, with a view to having a further discussion a later date when (hopefully) the infection rate has continued to drop.
- These discussions will need to be handled sensitively, balancing business needs against individual concerns and the potential risk of claims. There won't be a one-size-fits all approach