1. Furlough compliance
With the coronavirus job retention scheme extended to 31 March 2021, businesses which are still using it need to make sure they are complying with the formalities for making a claim. The scheme’s use is no longer restricted to businesses and workers who have previously been on it. Employers need to ensure that staff are not working for the business during periods for which a claim is being made. For example, enthusiastic staff might engage in online marketing activities from home while furloughed.
Importantly, businesses must ensure that they have agreed the furlough arrangements with affected staff. There must be written confirmation of the furlough arrangement. There is a window of opportunity for employers to put in place retrospective agreements, but that ends on 13 November 2020.
Employers will have to keep the written confirmation of the furlough arrangement for 5 years and keep records of how many hours their employees work and the number of hours they are furloughed for 6 years.
Employees can be furloughed where they are unable to work because they are shielding in line with public health guidance (or need to stay at home with someone who is shielding) or they have caring responsibilities resulting from coronavirus, including employees that need to look after children.
The government guidance states that the scheme is not intended for short-term sickness absences. If, however, employers want to furlough employees for business reasons and they are currently off sick, they are eligible to do so, as with other employees.
Furloughed employees who become ill, due to COVID or any other cause, must be paid at least Statutory Sick Pay. It is up to employers to decide whether to move these employees onto SSP or to keep them on furlough.
The Job Retention Bonus will not now be paid in February, which may come as a bit of a shock to businesses which assumed they were going to get that payment then.
For the Policy Paper on the Extension of the Coronavirus Job Retention Scheme, click here.
2. Stopping workers who have tested positive from working
Where an adult is notified that they have tested positive for COVID-19 or they have been notified that they have come into close contact with someone who has tested positive, they must self-isolate. They must then tell their employer that they are self-isolating as soon as reasonably practical, unless they can work at the place they are self isolating (usually their home). They must also tell their employer the start and end date of the isolation period. It is a criminal offence for the employee to fail to do this.
If an employer knows a worker has tested positive (or lives with someone who has tested positive), it must stop the worker from working (unless they can work from home). Any employer who knowingly fails to do so will face criminal prosecution and can be fined a minimum of £1,000.
These rules only apply in England. Businesses in England need to ensure they educate their employees and managers on these new rules and put in place appropriate notification procedures. Employers also need to consider the data protection implications of handling sensitive data about employees’ health. See below.
3. COVID health and safety in the workplace
Businesses should get proper professional advice regarding the health and safety measures to maintain in the workplace. The government has published sector guidance here.
The COVID risk assessment 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 measures which the business puts in place, making them more likely to be willing to return to the workplace.
All organisations should have a COVID outbreak plan which they have shared with staff. This will include dealing with the question of which staff will be made aware of any staff infection.
Employers should also keep records of which staff are working from their premises and be able to justify why this was required, as opposed to home working.
4. Dealing with employees who refuse to return to the workplace due to COVID
Employees who refuse to return to work or, if they have been working from home, refuse to return to the workplace may well be protected from disciplinary action or dismissal by 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 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 threat, it is unlikely that any workplace health and safety measures will exclude the risk of contracting COVID. 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 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.
Implementation of the health and safety plan is key with the company 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.
Can employers refuse to pay employees who will not return to work for COVID 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 more solid argument that there is a serious and imminent danger to them from returning to work.
For others, the 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. See more on this above.
5. Data protection and health and safety measures
Data protection is a big issue for COVID issues because 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.
Under the GDPR, two separate grounds are needed to process health data. Consent is a very poor ground to rely on because it can be withdrawn and it may not be seen as freely given in the employment context. Businesses must have an appropriate policy document in place dealing with retention and erasure of personal data. Employers should update privacy notices to staff to take the processing of health data in connection with COVID measures into account.
The ICO recommends a privacy impact assessment in relation to any workplace COVID testing. It is also needed for any large scale processing of health data. The impact assessment should be a living document which is updated as required.
Temperature testing staff and visitors may well not be lawful. There is apparently little scientific evidence to support it as a sound method for identifying someone who is infected with COVID. Any temperature testing will involve the processing of personal data about health and have to be justified under the GDPR. A privacy impact assessment should certainly be undertaken before embarking on this.
The ICO guidance for employers is here.
6. Home working
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. Organisations need to think through issues such as whether home workers are allowed to print off materials and, if so, how they will then dispose of them securely, and consider how online meetings will be secured etc.
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 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 Midlands West 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.