Home Working Update – How Boris’ Announcement Affects Employers

Posted on May 11, 2020

On Sunday the Prime Minister, Boris Johnson, announced that unless employees can work from home, they are to go back to work with effect from Monday 11th May and primarily this seems to be aimed at the construction and manufacturing sectors of the economy.

No doubt this announcement has been precipitated by the fact that if businesses are considering making redundancies and the Coronavirus Job Retention Scheme is coming to an end at the end of June (having been extended by Rishi Sunak from its original termination date of 31st May), then employers will need to start consulting for those redundancies to take place.

Employers who have more than 99 employees will need to consult for 45 days which runs out, more or less, at the end of June.

But what about those employers who fall into the categories within the government’s contemplation?

How are they to plan for the immediate return of their employees, following this sudden announcement, if they do not anticipate making redundancies within the period of time that their employees can remain on furlough?

In the short term, employers are going to have to grapple with the problem of how to get employees back to work and what they will need to do at the same time to meet their obligations to safeguard their employees’ health and safety.

Matters such as carrying out risk assessments of work environments, enabling and enforcing good hygiene practice such as providing handwashing facilities, insisting on facemasks (employers will be obliged to provide face masks and suitable PPE), and enforcing social distancing will be important.

It remains to be seen whether many employers will go to the lengths of performing temperature tests on returning employees or taking other inventive steps to minimize the risk to the workforce.

All of this needs to be considered within the context of obtaining the employees' consent and ‘buy-in’ to any measures which might invade the privacy of an individual and/or require additional monitoring by employers over and above the norm for that workplace.

Some of questions raised by the Prime Minister’s announcement (and there are bound to be many) are these:

a) What of the employer who wishes to enforce a return to work but is faced with a number of employees who are unable to do so, for childcare reasons (schools are not open yet, under the new measures), or because of transport issues (the PM has discouraged use of public transport to travel to work)? Would it be reasonable for an employer to discipline an employee for refusing to attend work in these circumstances? The answers to the foregoing are likely to be “no” (childcare) and “ it depends” (transport)!

b) What of the employee who wishes to return to work, but whose employer is not ready, in terms of having put in place adequate safety measures, for the employee to return? Is the employer then obliged to pay the employee full pay (assuming the employee is currently receiving 80%), because he or she is “ready and willing” to return? The answer here is “Possibly, depending on what the contract of employment states!”

c) What of the employer who has only recently placed employees on furlough leave? If the employees have not served the minimum 3 weeks on Furlough, does this mean that, by getting employees to return, the employer will be unable to claim the furlough pay back via the CJRS, as they did not meet the criteria? The answer is “hopefully the government will provide more clarity!” and “most employers will probably allow the 3 week period to elapse in these circumstances, to give them time to assess and prepare properly for a return to work!”

d) What of the employer whose employees wish to return to work, but who have no work for their employees to carry out? Does this mean that, along with paying full pay, employers have to start redundancy consultation? The answer is “probably unless the employer can reasonably show that work is available beyond the end of the Furlough period”!

We expect that most employers will come to an accommodation with their employees over the next few weeks, as an agreed, planned, safe and coherent return to work is likely to ensure the most harmonious industrial relations.

Watch this space over the next few days and weeks, as we will be providing more updates as more developments and information come to light.

If you need advice on any aspects of employment law contact one of our team, Susan Mayall on 0161 785 3500 or email enquiries@pearsonlegal.co.uk

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

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