During recent months, employers have had to adapt to new ways of working and learn fast about government guidance, including the furlough scheme. Amongst this, there are important considerations around employment law.
We spoke to Partner and Employment Solicitor Maria Gallucci of Woodfines Solicitors in our recent Talent in Logistics podcast to get advice around some of the key challenges employers are facing and their legal requirements.
Can an employer make someone go back to the workplace? Even if they are anxious about returning to the workplace or have a health concern.
It really depends on the circumstances, and there is some ACAS guidance around this which employers should read, as well as the government guidance – in employment tribunals when they’re looking at claims, they really give weight to ACAS guidance, so following this should reassure employers that they are not going to go far wrong in terms of good employment relations and good employment processes. The guidance says that an employer should listen to any concerns that staff may have and try to resolve them in order to protect the health and safety of their staff.
Employers have to consider whether employees can continue to work from home, or whether they need to look at other options such as holiday or unpaid leave. Or if they could be regarded as on sick leave, particularly if an employee has a health condition, such as severe anxiety. That type of condition can bring them within the definition of a disabled person under the Equality Act, which gives them certain protections.
The employer has to ensure that it doesn’t discriminate against those people, so particularly those with special health care needs, including acute anxiety. Requiring employees to continue to attend work in a pandemic, could constitute the provision criterion or practice which is indirectly discriminatory against disabled employees. There is an obligation on the employer in those circumstances to consider whether it’s possible to make reasonable adjustments, such as adjusting workplace arrangements like the place of work, or hours. It could be providing, appropriate equipment, such as a screen, to reduce the employee’s concerns and the barriers that are preventing that disabled person from coming into the workplace.
Employers need to carry out risk assessments to make sure that they’re protecting health and safety of their staff, but particularly those who have health care concerns.
What about where the employee has childcare needs?
Where employees have childcare needs, they don’t necessarily have the same protection under the Equality Act, so there isn’t a legal obligation for employers to consider reasonable adjustments. But the guidance says that they should be dealt with sympathetically as well. Consideration should be given to allowing them to continue to work from home or to have flexible working.
It’s really all about communication and speaking to the individual about what you can do, rather than demanding an employee must work of they won’t be paid, or will be dismissed. Ultimately, if you’ve done everything you possibly can to allay that person’s concerns and they still refuse to come into the workplace, an employer can consider things such as not paying or dismissing them but those are very much last resorts and should be approached with extreme caution. The advice is to communicate and try to be as flexible as possible.
What support does the employer need to be providing for people working from home?
It is the employer’s duty of care and responsibility for the employees’ welfare, health and safety and that extends to homeworking. Employers are supposed to conduct a suitable and sufficient risk assessment of all the work activities carried out by their employees, to identify hazards and assess the degree of risk. So, in the same way as they carry out those risk assessments in the workplace, they are supposed to carry those out for homeworkers as well.
Employers also need to think about putting in place homeworking policies. Whilst there’s not necessarily any obligation to provide equipment or to, for example, pay for broadband, they should be putting in place a good, home working policy that addresses all of those things, so that the employee knows where they stand in terms of who’s going to provide the equipment, who’s going to pay for it, who’s going to insure it, and so on.
The other thing also that the employer has a responsibility for, and that we shouldn’t forget about is mental health. ACAS has produced a Coronavirus Mental Health at Work Guide, which is to help employers spot and handle mental health problems in the context of homeworking and furlough as well.
There’s potentially going to be a lot of people with lots of annual leave leftover – what are the rules around this?
Annual leave continues to accrue during lock down for those people who are working and also those placed on furlough leave.
Employers can give employees notice to take their holiday at specified times. They have to give twice as much notice as the length of the period of leave. So, if the employer wants them to take a week’s holiday, they must give the employee two weeks’ notice.
The purpose of leave is to allow period of rest and relaxation and there’s been some debate over whether it counts whilst people are in lockdown and essentially confined to their own home. As we start to see the lockdown ease, then it might become possible for employers to give notice to employees to take some of that leave. Employees themselves can also choose to take leave if they want to.
There has also been some new legislation that came in on 26th of March. The government amended the working time regulations so that those workers who haven’t been able to take the working time directive annual leave entitlement (which is the four week entitlement) due to the Covid-19 pandemic, have now got two years to take that leave.
There are a number of considerations around this. One is that employees can only carry over what was not reasonably practicable to take, as a result of the effects of the coronavirus. Then there is government guidance that relates to holiday entitlement during coronavirus, which sets out factors that should be considered so whether it’s practicable to take the leave in the relevant year. There is also further ACAS guidance around this.
There is another tricky issue – the amendment to the regulations applies only to the Working Time directive, which is four weeks annual leave. However, under the working time regulations there’s an additional 1.6 weeks of annual leave. To carry that over, employers will have to put in place the relevant agreement so they may have to think about temporarily changing their annual leave policies.
Have more questions?
Learn more about what you need to consider as an employer post-lockdown by listening to the full interview with Woodfines Solicitors in our recent podcast. Listen now or download from your usual podcast platform.
The Talent in Logistics Annual Conference
The agenda for our upcoming online Talent in Logistics Annual Conference on 23rd September has also been designed to put people at its heart, and address the key concerns logistics employers are facing in the ‘new normal’. See the full agenda here and book your place now to secure access to guidance from leading industry experts.