Employment Law May 2020 Update

Employment law, as with all areas of every day life, is now focussed on the fall out on the employment world of COVID 19.  Some of the main questions raised are:

  1. Coronavirus JRS extended to October 2020

The Job Retention Scheme has been extended to October 2020.  We know that until the end of July 2020 there will not be any changes to the scheme.

From August the scheme will continue but there will be some changes:

  • Workers who have been furloughed will be able to return to work part time
  • Employers will be asked to contribute a percentage towards the salary costs of furloughed workers but as of yet, we do not know what this percentage will be.
  • Commentators are at the moment of the view that the likely contribution from employers will be 20%.
  • Returning employees to work

Guidance on working safely has been issued by the government.  Employers should ensure that they refer to the latest guidance when carrying out risk assessments and implementing measures.

Any risk assessments must be site specific, task specific, and individual specific.  Employers must consult on any proposed measures.

  • Should an employer publish the results of their risk assessment?

Yes, this is important and employers with over 50 employees must publish it on their website. 

Communication of the results will also help with any challenge from a Health and Safety perspective where an employee asserts that they will not return because they reasonably believe the workplace is unsafe.  It is important to communicate the results as this may go some way to showing that an employee’s belief is unreasonable. 

  • Can an employer require employees to return to work?

First of all consider if the role can be carried out at home.  Then ensure that the business can meet the current government guidance on protecting the vulnerable, shielding and social distancing. Thirdly, ensure the business can protect as far as reasonably practicable the health and safety of its employees and make adjustments where necessary.

  • Can an employee be sacked if they refuse to return to work?

Employers will have to tread very carefully here.  Many individuals are likely to be scared to return to work and employers will have to look into any objections carefully and consider many different options before even considering some form of disciplinary action. 

Disciplinary action should only be considered if an employer considers an employee who does not have reasonable grounds to object to returning to work and the business has complied with Health and Safety duties and current guidance.  It will be a careful balance between individual concerns, the need to have them back in the guidance, risk and any wider impact on the business.

  • What if someone fails to follow company policies on social distancing and health and safety?

Consider how you want to treat such breaches.  Make sure your policies are clear and that your disciplinary policies are clear on possible sanctions.

  • In other news, can an employer avoid paying out on a COT3 agreement where an employee breaches confidentiality?

No, according to a recent case, unless confidentiality is made a strict and genuine condition of the agreement. 

This would effectively mean that confidentiality would have to be at the core of the agreement.  If it is a relatively standard employment dispute where neither side is high profile, this may well be a high hurdle to clear. 

COT3 agreements will have to be carefully worded to try to ensure that confidentiality clauses are adhered to as this case risks making confidentiality clauses unenforceable.

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