Legal

Keeping up with legislation amid Covid-19

22 Jul 2020 By Katherine Maxwell

Katherine Maxwell outlines why it’s essential for employers to stay on top of government guidance during the coronavirus crisis

The business world is a spinning ball: employers are dizzily beset with constantly changing government guidelines and legislation, while employees, just as they get their heads around working from home, are now being asked to return to the office after all. Furlough is in fashion for now, but as the focus shifts inexorably back to the workplace, Covid-19 has set an Olympic-high bar for health and safety standards at work.

The further social distancing constraints – two metres one month, one metre the next – the harder it is for businesses to adjust, but adjust they absolutely must, because costly legal claims against them could be just around the corner if they fail to protect their employees. Negotiating this nervous new world requires careful thought and serious planning, so we’ve outlined key areas businesses must be mindful of, and how they can address them without delay. 

Health and safety

Alongside the easing out of lockdown-related restrictions come concerns regarding managing the return to work, and at the forefront of many minds is health and safety and fears of corporate manslaughter. The return to work planning brings with it the requirement to carry out workplace risk assessments and the implementation of measures to minimise any risk of Covid-19 transmission. Essential to this is making sure symptomatic workers don’t turn up for work and put their colleagues at risk.  

Businesses must also think carefully about how they manage employees who are reluctant to return to work. Some will have childcare responsibilities, or may be shielding vulnerable family members – or are vulnerable themselves. Employers should be extremely cautious about disciplining or dismissing any employee who fails to turn up for work without first considering carefully the reasons for that. 

Redundancies 

As furlough funding comes to an end in October, now is the time for employers to review current staffing levels and decide whether or not they can continue to employ all furloughed staff and have work for them to return to. Their business may need to reduce costs and ways of working for many have changed as behaviours have shifted during lockdown. Difficult redundancy-related decisions may need to be made, and employers mustn’t be complacent in their approach. 

With large job losses looking likely, and the ability to find replacement roles ever harder, disgruntled employees may be more inclined to bring claims as their losses are higher. Employers must follow procedures and processes fairly if they’re to protect their business and reduce the risks associated with such claims. Employees who feel respected and treated fairly are less inclined to challenge the decision and this will reduce the risk that cost savings are lost to costly compensation awards. 

Reviewing the businesses future requirements early will also help to save costs and reduce risk. If, for example, an employee is furloughed, that period of furlough can continue for their period of notice thereby reducing notice costs, whereas if an employer waits until the end of furlough, they must pay 100 per cent of the worker’s salary for that period. If consultation begins now, some of that notice salary could be saved. 

Employee holiday entitlement is another area where employers should consider how furlough could help them to reduce costs. Some employees will have been furloughed all summer if they remain furloughed until the scheme ends at the end of October. They will be accruing holiday all that time if they are not given notice to take holiday during the period of furlough. If an employer finds that they have to make decisions that result in furloughed employees being made redundant, and they have not managed holiday during the period of furlough, they may have to pay out for large accrued holiday entitlements on termination of employment. Planning and managing holiday accrual in this way will again help to manage costs.

In a world grappling with Covid-19, businesses across the UK are constantly adjusting their business models not only to survive, but to thrive. Maybe the welcome reappearance of football on our screens and reopening of pubs is a wake-up call for all organisations to stay focused on the ever-shifting goalposts of government guidance and legislation, and avoid the costly consequences of not keeping their eye on that spinning ball.

Katherine Maxwell is an employment law specialist at Moore Barlow 

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