We are in unprecedented times; unchartered waters for employers. When some businesses are focused on simply keeping themselves afloat, it is important not to lose sight of the biggest asset to any business: its employees.
How businesses manage their employees today is going to have a profound impact on how those same employees perform on the other side of the current pandemic. This is not just about the survival of the fittest, it is about the survival of the most adaptable and below are some of the burning questions that employers have been asking.
What flexible-working options are available?
The current government guidance provides that people should only be leaving their home for the purposes of work if it is absolutely essential to do so. This has resulted in an explosion in the number of home workers. To make the most of such opportunities, we are reliant on technology.
Where roles cannot be performed at home, some employers reserve an express right to implement a period of lay-off or short-time working in their employment contracts. In this situation, an employee can be placed on lay-off or short-time working in accordance with the terms and conditions of their contract and the statutory provisions. Others have already started the more draconian redundancy process.
Whether an employer seeks to change hours, pay, location of work or any other fundamental term of an employee’s contract, the starting point is always the same: dialogue. Consultation is key. If an employer gets the communication piece right, it will both mitigate the effects of the current pandemic on the business and preserve future prosperity.
Can employers instruct employees to use their annual leave entitlement?
Again, this comes down to both the terms of the contract and dialogue. Communication with employees is absolutely key. If employees are laid-off, it may be preferable for them to use some of their accrued annual leave entitlement in a similar way to how employees may previously have asked to use annual leave entitlement during a period of sickness absence.
Workers who have not been able to take annual leave due to the Coronavirus pandemic will be able to carry their entitlement over for the next two years. The government has announced changes to the Working Time Regulations in an effort to ensure people do not miss out on their earned holiday. No employer should be penalised for keeping workers on duty during Coronavirus response efforts.
Can employers reduce hours of work, lay-off employees or make them redundant?
The short answer is yes but it is not always straightforward. Most employers will have staff handbooks. Those handbooks, together with the employee’s contract of employment should always be the starting point. Employers need to grasp what contractual rights they do or do not have before taking any action.
A reduction in hours (short-time working) or period of lay-off are often used to avoid a compulsory redundancy situation. In the current climate, employers may find that some employees will be considerably more flexible in their approach to suggestions than they may have been previously. Do not underestimate the value of job security in the medium or long term.
Redundancies should be the very last resort if all else fails in the face of adversity.
The provisions of the government schemes (such as the Job Retention Scheme) appear to have been well received by many but they are complex and they will take time to come to fruition. I would urge patience and understanding. Take legal advice.
David Jones is a barrister at St John's Buildings Chambers
