Some employers want to keep staff at work and are worried that COVID-19 absence will prevent them from fulfilling orders. Others want to minimise staff attendance in the face of declining business caused by the outbreaks. So what are the options?
This article is intended for guidance only and does not constitute legal advice which should be sought for particular cases.
Consult, Consult, Consult
In all of the following scenarios it is very important to consult with staff or their representatives (if you have a union recognition agreement or a works council for example.) Wherever possible emergency leave measures should be agreed with staff rather than imposed upon them.
Remember that even when you have a contractual or lawful right to require staff to attend or abstain from work these rights should only be exercised when it is necessary to do so and when the requirement is reasonable and applied objectively ideally through thorough consultation* with employees – a heavy handed ill thought out approach could give rise to breach of trust & confidence claims against employers.
*NB, ‘consultation’ in this context means discussing proposals with employees, listening to their views and considering their suggestions. While employers are not mandated to accept suggestions or indeed agree with employee views, a genuine attempt should be made to seek agreement prior to making final decisions. Employees are more likely to accept measures under these circumstances, even if they don’t fully agree with them.
IF THE OBJECTIVE IS TO KEEP PEOPLE WORKING:
Can I stipulate that staff don’t take holiday over the next e.g. 12 weeks?
Yes, provided notice is given to staff and provided it is a reasonable measure to achieve the legitimate aim of being able to continue with your business. Remember though that if staff are required to self-isolate they will not be able to come to work.
Can I cancel previously granted holiday requests?
In theory an employer can cancel holiday providing it gives notice to do so – notice must be at least as long as the holiday requested (e.g. if the employee has a week’s holiday coming up, the employer should give a week’s notice to cancel it.) This measure should be used with caution however – it may be reasonable (not always legally necessary, but reasonable) for the employer to compensate the employee for the cost of their holiday if they are unable to cancel without penalty. Common sense would suggest that the employer should consult with all staff who have booked holidays and prioritise those for whom cancellation would cause the least disruption and always ask for volunteers for cancelling holidays first.
I suspect malingering self isolation – what can I do?
Stay in touch with your employee and check with them that they have a genuine reason for self isolating – keep in touch with government advice (changing almost daily now.) If there appears to be no genuine reason then you may try to persuade your employee to return to work and may consider withholding sick pay. At the moment people are only being asked to self isolate if:
- They are returning from designated coronavirus areas
- They are waiting for a COVID-19 test result
- They’ve been advised by 111 to self isolate having been in contact with an infected person
Disciplinary action might be an option, though in the present COVID-19 climate employers and employees have enough to worry about and this may not be a time for a vigorous enforcement of the rule book.
It is not currently the case (11th March) that others with cold/flu symptoms are being asked to self-isolate, but this may be the case in coming days/weeks.
IF THE OBJECTIVE IS TO REDUCE STAFF AT WORK:
Can we require staff to take holiday?
Yes, but unless the employee agrees to less notice, the minimum notice the employer should give is double that of the holiday required e.g. if you need staff to take 1 week leave, give 2 weeks’ notice.
Can we require staff to take unpaid leave?
This can be agreed with staff of course but requiring it is only possible if your employment contracts contain clauses that enable you to lay staff off or invoke short time working with a commensurate reduction in pay (see below.)
Forcing staff to take unpaid holiday is likely to amount to a breach of contract….however if an employer needs to do this our advice would always be to consult with staff and try to arrive at a fair compromise e.g. 1 week unpaid, 1 week paid.
Can we lay staff off for a period?
The law allows employers to lay staff off for a period, but they must be paid unless the employer has a contractual right to reduce wages in these circumstances. Check employment contracts first. In the case of a lay off, if the period is for 4 or more continuous weeks or 6 weeks in a 13 week period employees will be entitled to claim redundancy – they will need 2 years to qualify for a statutory redundancy payment however.
If laid off without pay staff will be entitled to statutory guarantee pay, but this is for a maximum of 5 whole days in 3 months @ £29 per day currently (£30 from 6th April 2020.)
Can we invoke shorter working weeks?
Short time working is defined as less than 50% of a normal working week and can only be invoked if the employment contract allows for it, or otherwise in agreement with the employee. If your contract allows for it and states that pay may be reduced then this is possible, if the contract doesn’t allow for it then employers should seek to agree the measure with their employees and record the agreement made, signed by the employees.
When does redundancy come into play?
In the face of a reduced requirement for work redundancy will be an option, though redundancy consultation may be required and minimum time limits apply in the case of collective consultation. Redundancy comes with a cost – statutory redundancy pay is normally 1 or 1.5 weeks’ pay per year of service, a weeks’ pay is capped at £525 per week (£538 from April 2020) and notice pay will apply too – at least 12 weeks for employees with 12+ years of service at the employee’s normal weekly pay. Contact your myHRdept HR advisor if you think you might need to let staff go on redundancy grounds because of COVID-19 (or indeed any other reason.)
Are there any other measures we might consider to reduce staff costs?
By agreement: unpaid sabbaticals, unpaid holiday, discretionary additional paid holiday, shorter working weeks.
By design: Home working, mandated paid holiday, lay off, redundancy.