Changes to the furlough scheme
The Government has announced the following changes to the furlough scheme:
For our 27 April Newsletter on COVID-19 and the workplace click here.
New Treasury Direction on the Furlough Scheme
In our last newsletter, we commented on the first Treasury Direction on the furlough scheme and differences with the HMRC published information on the scheme. The Treasury has now updated its Direction. Many employers will be relieved to know that the new Direction removes the requirement for the furlough agreement to be in writing. Instead, it says that it must be made in writing or confirmed in writing. The employer must retain the agreement at least until 30 June 2025.
The new Direction also amends the rules on the interaction between SSP and furlough. Furlough cannot start until after the end of the period of incapacity for work for which the Statutory Sick Pay is payable. However, the timing of the end of the period for which SSP is payable is to be agreed between the employer and employee. IE The business and worker can agree that the employee will come off SSP and start furlough.
Access the new Treasury Direction here.
For our 27 April Newsletter on COVID-19 and the workplace click here.
SSP entitlement widened
From 28 May, entitlement to statutory sick pay was extended to people who have been told to isolate under the new 'Test and Trace' system.
Challenges on the return to the workplace
The biggest challenge for employers is likely to come from employees who refuse to return to work or, if they have been working from home, refuse to return to the workplace. Can employers discipline, dismiss or stop pay?
A little used piece of law is going to have its day. This is s44 Employment Rights Act 1996 (ERA). This allows employees to bring a claim for compensation if they are treated detrimentally for refusing to return to their place of work (or if they leave their place of work or say they are going to leave) because they reasonably believe there is a serious and imminent danger. Similarly, if an employee is dismissed in these circumstances, their dismissal will be automatically unfair and they will be able to bring a claim of unfair dismissal even if they have less than two years’ service (s100 ERA).
An employee who is treated detrimentally or dismissed because they say their workplace is dangerous due to the COVID-19 threat may also be “whistleblowing” and get protection for making a “protected disclosure”.
There is no limit to the amount of compensation which employment tribunals can award in these circumstances.
In the current Government assessment of the COVID-19 threat, it is unlikely that any workplace health and safety measures will exclude the risk of contracting COVID-19. Therefore, a refusal to work in the workplace may well be viewed as reasonable. Employment tribunals will have a difficult balancing exercise to determine whether the employee’s belief in the circumstances of serious and imminent danger was reasonable. Employers are not going to want to get caught on the wrong side of this balancing exercise.
In practice, this seems to mean that most employees will currently have the green light to refuse to return to the workplace. As the COVID-19 risk is assessed as reducing, the situation will change.
So, what can employers do? Ultimately, employers are unlikely to want to risk a s44/100 claim or a protected disclosure claim by penalising workers who refuse to return to work. However, there are steps which employers can take.
Properly follow health and safety requirements, including a risk assessment of the COVID-19 risk which should be in writing if there are more than four employees. The Government says that it would expect all employers with over 50 workers to publish the results of the risk assessment on their website. No matter what the size of the business, publishing the results makes sense to show employees that the issue is being addressed.
Staff consultation should form part of the risk assessment process, and this will help to give staff confidence in the COVID-19 measures which the business puts in place, making them more likely to be willing to return to the workplace.
Implementation and review of the health and safety plan is key, with the employer disciplining those who do not follow it. It is never going to be reasonable to insist that an employee returns to the workplace if proper health and safety measures have not been taken.
Government guidance on COVID-19 health and safety is here.
Can employers refuse to pay employees who will not return to work for COVID-19 reasons or dismiss them? On the face of it, this could be detrimental treatment under s44 ERA or unfair dismissal under s100 ERA, which we explained above.
Effectively, it is not going to be possible for employers to insist that the extremely vulnerable (those who received a letter telling them to shield) return to work, without the real risk of severe liability. Those who are merely vulnerable, for example because they are elderly or obese or have a less serious respiratory condition, are likely to have a solid argument that there is a serious and imminent danger to them from returning to work.
A key question will be: What was the reason the employer stopped payment/dismissed? It may be that employers will be able to argue successfully that they stopped payment/dismissed because of the absence, not the refusal to work, but this is a tricky argument which may not succeed.
The employer’s best course may be to furlough the employee, remembering that there can be no new furloughs after 10 June. Furloughing will also become increasingly unattractive as employers have to make bigger contributions from August.
It is certainly likely to be too risky to insist that employees return to work when they can actually do their job from home.
Employment Law Plus can advise on any particular situations.
Data protection and health and safety measures
COVID-19 does not let employers off the hook of their data protection obligations. Information about health is a special category of personal data which employers have to justify using more stringently. Employers need to think about what data on health they may receive as a result of health and safety measures to combat COVID-19, update privacy notices to staff to take this into account and undertake a privacy impact assessment in relation to the processing of the sensitive personal data. The Information Commissioner has published guidance on workplace testing for COVID-19 here. Contact us for more advice.
The first rush to cope with COVID-19 saw huge numbers of employees working from home for the first time, without much thought being given to the implications. Now that home working is becoming entrenched, employers need to take stock of whether they have covered all bases.
One important area is protection of confidential information and personal data. The Information Commissioner has published guidance on data protection and working from home here. Another issue is health and safety of the home worker.
If the organisation does not already have a home working policy, it should now put one in place. This should be supported by relevant clauses in the contracts of home workers. Employment Law Plus can help with both of these.
This newsletter does not represent legal advice and you should take legal advice before taking action.
About the author
This newsletter is written by Jill Kelly who is the founder Director at Employment Law Plus and a solicitor. Jill was a partner in two leading regional law firms before setting up Employment Law Plus in 2006. This was just after she was appointed as a part-time Employment Judge, sitting in Birmingham Employment Tribunal. Jill is recognised as an expert in employment law in both Chambers Directory of the Legal Profession and the Legal 500. She has over 20 years experience in advising employers and employees on employment law.