Helen Watson: Business decisions during Covid-19

With little time to prepare or plan, businesses have needed to make critical decisions while having to navigate ever-changing legislation and guidance set out by the government. This has, in turn, left many employers potentially vulnerable, with lots of business owners and managers confused about what the correct duties and responsibilities to their employees now are.

There are a number of variables related to the effects of the Coronavirus pandemic that could result in several different kinds of claims from employees, especially as businesses begin the phased return to the workplace.

One of the greatest concerns for employees is their health and safety, and businesses will need to take all necessary steps to ensure the appropriate safety measures are in place including conducting appropriate risk assessments to identify risks for employees returning to work and planning the steps that will be taken to address those risks

We anticipate that there will be potential dismissals as a result of staff furloughs, pay cuts,  and redundancies. For example, if employees perceive that the reason they were or were not furloughed, or in some cases were made redundant, related to a protected characteristic under the Equality Act 2010, they may seek to make a claim for unlawful discrimination.

The latest indicators published by the Office for National Statistics (ONS) show that of the 6,000 businesses surveyed, 76% had applied for the government’s job retention scheme, with 31% of the workforce having been furloughed, making it the most popular of all the support schemes introduced by the government during the Coronavirus outbreak.

Employers should also be careful not to disclose the identity of individuals who have been infected with Coronavirus unless they are able to establish that it is absolutely necessary to ensure safety at work or to meet public health requirements.

Where transparency and privacy rights collide, employers are faced with potential safety risks on the one hand and potential risks of breach of privacy rights on the other.

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It is clear that employers must evaluate the potential issues that could arise in order to mitigate the risk of legal claims being brought against them. We would always recommend businesses seek legal advice during this time.

Helen Watson is head of employment at law firm Aaron and Partners.