Editors Note: The following content was provided by the law firm, Harper James Solicitors – Commercial People reminds you all to follow the government guidelines – Stay at Home and Stay Safe.
This week marks a fortnight since businesses were asked to change the way they work. The COVID-19 crisis has not only pushed many firms to the brink. But it has left everyone having to adapt working practices.
Naturally, the scale of change has created many questions both for employers and employees. With this in mind, law firm, Harper James Solicitors have provided a special guide on six questions many businesses impacted may find themselves struggling to answer.
The questions are based on issues raised by the firm’s 1,000 plus clients. Toby Harper, CEO of the modern law firm, which was built to support businesses from start-up to scale-up, said: “For many companies, this is a period of huge uncertainty and strain. But by taking the right decisions early, many companies will come out of this.”
Do I Still Need To Be Thinking About Rules Around Annual Leave?
Yes. Workers will be allowed to carry over up to four weeks of annual leave into the next two leave years, under The Working Time (Coronavirus) (Amendment) Regulations 2020, if it is not reasonably practicable for workers to take some, or all, of the holiday they are entitled to, due to coronavirus. The remaining 1.6 weeks’ statutory leave is not included in this, but can already be carried over for up to a year by agreement between employer and employee. This should assist businesses in protecting workers’ right to paid holiday but also meaning that all staff who are well and not self-isolating can book leave at a later date and attend work when numbers at work may be depleted over the coming weeks and months.
I Don’t Want To Make An Employee Redundant But I DO Want To Lay Them Off Temporarily. If They Agree, Can I Do This?
Depending on an employee’s contract of employment, there may be a ‘lay off’ clause allowing for employers to do this. If so, this could legitimately be exercised where there is a downturn in work. If there is no such clause in an employee’s contract of employment, it is unlikely that an employee would agree to this given the above commitment by the government to pay 80% of wages where an employer applies to HMRC through the Coronavirus job retention scheme, and the employee is placed on Furlough leave instead of being ‘laid off’ or being made redundant.
All My Staff Are Working From Home – Do I Still Need To Observe Health And Safety Rules?
Yes, under the Health and Safety at Work etc. Act 1974 an employer is responsible for an employee’s welfare, health and safety, so far as is reasonably practicable and must conduct a suitable and sufficient risk assessment of all the work activities carried out by their employees, including homeworkers, to identify hazards and assess the degree of risk under the Management of Health and Safety at Work Regulations 1999. If you would like assistance with drafting a homeworking policy, our specialist employment solicitors can provide a comprehensive policy for you.
What about travelling for business? Where does an employee and an employer stand then?
Employers have a duty of care towards employees at work and on business travel. As part of this duty of care, employers are expected to take sensible action to protect their employees. Because of this, it’s now important to stop any non-essential business travel. Previously, the government stated that travel to areas where there has been a serious outbreak of COVID-19, or where the government or your insurer has warned against it, should be stopped. But this has recently been stepped up to include all non-essential travel.
The government has released and is constantly updating advice on travel to reduce the spread of the virus. If you don’t comply with guidelines, you could be at risk of a negligence/personal injury or health and safety claim being brought against you, in the instance of an employee contracting coronavirus on a work-related trip. If you go ahead with non-essential business travel, then you could also invalidate your insurance policy.
Are we likely to see employers and employees going to court over the issue?
It’s possible. Refusing to allow employees to stay at home, or disciplining them for not attending work, could potentially lead to legal claims. For example, an employee might try to claim constructive unfair dismissal if there is a genuine health and safety risk arising from attending work. However, this kind of claim isn’t likely to succeed if the employer has acted reasonably and not placed the employee at undue risk.
How should businesses deal with the return of a worker who has had the virus?
Once the employee has recovered, businesses should seek confirmation from a doctor before their return, to make sure no risk is posed to other members of staff. Employers must respect employees’ health data privacy: information about an individual’s health will amount to ‘special category data’ under the General Data Protection Regulation (GDPR). You should seek employee consent to process such information.
As an employer, if you require advice on the issues that could arise from a coronavirus outbreak or creating a special sickness policy, our employment law specialists can help.
As the current situation continues to unravel, you may have further questions about your business. Visit our dedicated hub providing legal advice for businesses during the COVID-19 outbreak, where you will find information and resources to help you and your business navigate this difficult time.