It is strange to think that little over a month ago, words like “COVID-19” and “furloughed” were barely in our vocabularies and yet now they are at the forefront of many significant strategic business decisions. With the Coronavirus Act 2020 now in force, we have some clarity around many question marks that the global pandemic brings to the future of business. Almost overnight, many of our daily policies and practices have been forced in unchartered directions in a bid to keep businesses afloat usual during this extraordinary time.
We understand that the situation presents a whirlwind of challenges. It may change the face of your industry as you know it. Therefore, we have set out some of the wider implications that COVID-19 may bring to your Company in the coming months. This will enable you to get ahead and give consideration to more subtle areas in which the pandemic may create a shift.
The repercussions from COVID-19 will undoubtedly alter the pattern of recruitment in many sectors across the economy. One immediate impact is that government have confirmed in their guidance published on Thursday 26th March, that the Coronavirus Job Retention Scheme (CJRS) (which allows employers to designate employees as furloughed and reclaim some of their wage costs from government) covers those who have been rehired by their employer if their employment terminated since 28th February 2020.
COVID-19 has meant that thousands of candidates are pursuing emergency employment at distribution centres, supermarkets and voluntary positions. Employers should have awareness of the Good Work Plan which is still forecasted for implementation on the 6th April 2020. The reforms borne out of the Taylor Review require a Statement of Employment Particulars to be issued to every employee or worker on the first day of their engagement. Therefore, employers should review of their internal recruitment processes once a preferred candidate has been selected in order to remain legally compliant while still meeting demand.
Recruitment after redundancy
If, despite the CJRS, the company has a continuing diminished need for employees to carry out work, it may have to make redundancies.
Over time, the financial position of the company may improve again and employers may seek to engage employees to fill the positions that they were unable to support during the outbreak. If these circumstances arise employers should be aware that rehiring redundant employees is possible but not mandatory. Earlier payment of statutory redundancy pay (SRP) will break the employee’s continuous service for the purposes of the SRP scheme (meaning they would have to be employed for two further continuous years in order to be eligible for SRP again). A clear break of one week from Sunday to Saturday should be implemented between contracts to break continuity for other statutory purposes.
If a need for the redundant role later emerges, employers should be prepared to demonstrate the redundancy was genuine at the time it was implemented in case of challenge. When assessing whether or not there was a genuine redundancy situation and therefore a fair dismissal, an employment tribunal will look at the entire period from the start of redundancy consultation until termination. If an employer makes redundancies due to coronavirus then engages someone else in a particular role shortly afterwards, an aggrieved former employee may question the genuineness of the redundancy and bring an unfair dismissal claim. Although we would hope that the fluctuating degrees of uncertainty brought by COVID-19 would be considered, the employer would still need to demonstrate that conditions gave rise to a fair reason for redundancy, that it followed a fair procedure in arriving at the redundancy and that it applied its mind to any alternatives, presumably including the CJRS. They would then need to show that it was only after termination of employment that its economic position changed. There is not definitive period that an employer must wait to commence recruitment, provided dismissal was reasonable in the circumstances at the time it took effect.
Right to work considerations
With many companies facing workplace closures, it can be difficult to carry out a right to work check for a new start or a scheduled follow up check for a time limited visa. The Home Office has advised a flexible approach can be taken during these times although has urged employers to remain vigilant. As of 30th March 2020, the following temporary changes have been made:
• checks can now be carried out over video calls
• job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals
• employers should use the Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents
Increased demand of working from home
The coronavirus outbreak may have forced innovation upon many traditional sectors with employees working from home. We can expect remote working to remain on the rise after the demise of the pandemic as some benefits of remote working have been realised such as a reduction in overheads, expenses and office utilities. Zoom calls, hot-desking and remote access software has proved that the office environment can be replicated at home, allowing many meetings and transactions to carry on ‘business as usual’ during these testing times.
That said, many employers and industries will determine that home working is fine as a temporary measure but that it doesn’t produce optimum results. They may prefer to shift back to more traditional ways of working and it remains to be seen what reaction this will get from employees.
Flexible working on the rise
We can anticipate that flexible working requests may be widely sought after by employees who now, more than ever, are proving that many industries can be operational offsite. The future post coronavirus may see a divided workplace and employers may be encouraged to offer flexibility to their employees. Employees should familiarise themselves with the eligibility requirements to bring a flexible working request within their organisation. Employers should be mindful of their consideration timescales as well as the limited reasons for a fair refusal while weighing the request up against the business need. To ensure a diligent assessment, employers should be mindful of the background to the request in order to avoid any constructive dismissal, discrimination or flexible working penalties.
It remains to be seen how tribunals will handle post-coronavirus flexible working request claims. Will the fact an employer implemented short-term home working to ensure the survival of their business persuade a judge that refusal of longer term home working is unreasonable? We suspect not but, as always, each case will turn on its specific facts.
As employees working from home settle into their new surroundings and more permanent arrangements may be considered, prioritising team morale should be important. Prolonged working from home could create development issues and mental health concerns for employees who will often work less structured hours in isolated conditions. It is vital that managers check in regularly with their employees and it is recommended that HR and line management are familiar with making occupational health referrals and are aware of the procedures within the relevant policies. Wherever possible, we would encourage employers to try to inject some fun and light-hearted discussion into their communications and regular acknowledgement should be given to those continuing to work hard despite the pressures which coronavirus presents.
Finally, whilst we are loath to introduce additional worry at this time, it would be remiss of us not to acknowledge the impact all of this is having on the tribunal system. It is testing time for the judiciary with the widespread closures of courts and tribunals across the country. Many hearings have been converted to telephone calls in order to prevent a backlog of claims post-pandemic, although regrettably many hearings have been cancelled altogether. Tribunal offices up and down the country were under increasing pressure even before the pandemic with the withdrawal of fees resulting in a spike in claims so the additional delays will far from help matters.
In the near future, employment tribunals may experience a spike of redundancy and unfair dismissal actions, including those arising following periods of short-time working or temporary lay-off. Employers can anticipate coronavirus-related claims potentially arising from those who are shielding or vulnerable, couched as disability discrimination claims. We would hope that an employment judge would be pragmatic with their assessment of reasonableness during this time.
In these extraordinary and uncertain times we find ourselves, please be reassured our team are closely monitoring the guidance as it develops and posting regular updates to our dedicated Employer Resource Centre at https://www.lawatwork.co.uk/coronavirus. Please do not hesitate to contact us if you have any concerns about the CJRS or the effect of the outbreak on your business.