RETURNING TO WORK AFTER COVID-19

The Government is currently preparing a plan to what life is going to look like after the COVID-19 lockdown is lifted and we return to some form of normality. It seems certain that life will continue to look very different to a few months ago and employers need to prepare for what the future is going to look like. Here we look at what issues employers should be considering now:

  1. Health and Safety of Employees

This should always be prevalent in the minds of employers, but employers will need to take extra steps to protect the safety of their employees when they return to work whether this be in an office, building site, factory or shop. Every situation will differ but a few practical issues to consider are:-

  • Can you comply with social distancing?
  • Can employees continue to work from home?
  • Can you stagger starting times?
  • Will you require any PPE?
  • Will you require any protective screens?
  • Who will conduct the extra cleaning necessary?
  • Continuing to look after employees’ mental health, including those working from home.

There is very useful guidance on the NI Health and Safety Executive (HSE) website:  https://www.hseni.gov.uk/topic/covid-19-advice-and-guidance-places-work

  • Holidays

The Government guidance makes it clear that employees annual leave is accruing whether your employees are furloughed or not. Employers may not wish for all their employees to request annual leave when they return to work for business reasons so employers should inform employees now that requests may not be granted as they normally would have. Employees are entitled to leave so employers need to balance the business need with the need for the employee to obtain “rest” from their employment. Employers can, subject to the contract of employment, require employees to take leave provided they provide them with twice the amount of notice, i.e. if asking them to take 2 weeks leave then they need to give them 4 weeks’ notice. Employers should be aware that demanding employees to take leave during a lockdown situation may not be regarded as leave so there is a possibility of claims being made against them by employees.

Furthermore, changes in legislation now mean that employees can carry over statutory annual leave into the next 2 leave years if they have been unable to take the leave in 2020 due to the COVID crisis.

  • Redundancy

Unfortunately, it seems inevitable that there will be many job losses when the Job Retention Scheme ends. Conducting a redundancy process requires a careful and considered approach to ensure it is fair and to limit the employer’s exposure to claims of unfair dismissal. Employers should use a fair selection process and are free to decide their own selection criteria. The most commonly used reasons are:

  • Firstly, asking for volunteers
  • Disciplinary records
  • Sickness records
  • Staff appraisal – using objective criteria such as skills, qualifications and experience

Employers also need to consider what their consultation requirements will be and whether a collective consultation requirement will be triggered if proposing to dismiss 20 or more employees in a period of 90 days.

It will be unfair if an employee is chosen for redundancy for discriminatory reasons e.g. because someone is on maternity leave or because they are a part time worker. Part-time workers should be treated in the same way as a full-time worker would be for redundancy.

The Government continues to publish updated guidance and so employers should ensure that they are acting upon the most up-to-date advice when making decisions.

This article is for general purposes only. Should you require advice, please contact our Employment Department: at the following email addresses:

John.McShane@mtb-law.co.uk  or Judy.Hamilton@mtb-law.co.uk