Employment lawyer Hannah Ford explains what employers need to do to meet their legal duties and avoid damaging employee claims.
These are challenging times for employers. Whether your employees are on furlough, working from home, or continuing to perform essential roles, there’s no blueprint for how to navigate a situation like this. But whatever your Covid-19 strategy, you need to follow Government Guidance and keep up with employment law changes in 2020 - both during the pandemic and beyond.
Hannah Ford, a partner at law firm Stevens & Bolton, specialises in offering employment law advice for employers. She expects companies who fail to stick to the rules to face a surge in Covid-19 employee claims and employment tribunals this year. Check out her answers to your questions about getting back to work, recruiting remotely, and preparing for the end of the Brexit transition period.
I have new employees due to start. How should I handle this while complying with Covid-19 restrictions?
Starting a new job can be nerve wracking at the best of times, so try to involve new starters in the business as much as possible, for example by running virtual induction days and systems training, setting up virtual welcome drinks, and having regular catch-ups. I would also recommend providing information on how the organisation is responding to Covid-19, and any financial, organisational or charitable response that has been undertaken.
Recruitment is ultimately an investment in the business and communicating regularly with new starters should instill confidence and prevent any negative initial impressions of the business and its culture. If you want to defer their start dates due to the practical challenges around remote onboarding, or the economic uncertainty, their rights to notice pay will depend on the terms of the offer and the contract.
Only those who were employed on 19 March are eligible to be furloughed under the Coronavirus Job Retention Scheme.
My business model is changing due to the pandemic. Can I change new recruits’ job descriptions accordingly?
Flexibility to amend or change an employee’s role, duties or responsibilities will depend on the terms of their contract. If a change is material or not permitted, then employee consultation and consent will be required. That said, during a probationary period or within the first two years of employment an employee is generally in a weaker negotiating position because they can be dismissed with notice and have no unfair dismissal rights (except in special circumstances).
What about existing employees? Can I force them to come back to work, or ask them to permanently work from home?
An employee’s place of work is usually a contractual term in their employment contract, which means you cannot change their place of work without their consent.
However, Covid-19 has turned this principle on its head because Government Guidance says employees should work from home if it is reasonably possible, regardless of their contractual obligations. To further complicate matters, this guidance is not binding, so there is room for dispute over how it is interpreted by both employers and employees.
But to permanently change an employee’s workplace to his or her home, you must undertake an employee consultation and obtain the employee’s agreement to vary the contract terms. You will also have to negotiate around any affected benefits such as a travel allowance or season ticket loan. Conversely, risks associated with bringing employees back to work prematurely include breaching your health and safety obligations and damaging employee relations and the company’s wider reputation.
I need to make some employees redundant. How does Covid-19 affect this?
The existing employment legislative landscape is unchanged, so employees’ statutory rights to notice, statutory redundancy payments and unfair dismissal are fully intact. However, there are a number of challenges around consultation requirements when people are working remotely and you have to negotiate with an employee online.
Dismissing employees who are on furlough may also bring with it complexities around selection, consultation, notice pay, and rights to holiday pay.
I’m more worried about Brexit than Covid-19! Will employment law in the UK change a lot next year?
With the government distracted by Covid-19, Brexit has been side lined in the news. But the lack of progress made in the last few months has led to increased concern that we are heading for “no-deal”. As it stands, UK employment law is a mix of EU laws and specifically UK laws. The government has denied it is planning a bonfire of employment law rights, but there will be some changes post-Brexit, for example around discrimination. Unfortunately, at this stage it’s impossible to predict exactly what these changes will be.
Will I be able to employ EU nationals or relocate UK talent to other EU countries once Brexit comes in?
Until 31 December 2020, Europeans nationals can continue to enjoy their freedom of movement rights in the UK as they did before Brexit. So, all you need to do when employing someone from another EU country is check their passport or ID card. To remain in the UK after this date, however, European nationals and their family members must apply for the right to stay under the EU Settlement Scheme by 30 June 2021. And to employ someone from another EU country after 11pm on 31 December 2020, they will have to qualify under the new future immigration system, which the government has said will be in place from January 2021.
Requirements will include you holding a Tier 2 sponsorship licence granted by the Home Office. The steps you will have to take to send a British employee to work in the EU from January 2021 will depend on the country and the deal, if any, it strikes with the UK. British employees already working in the EU will generally have to apply for residence status by 30 June 2021 to protect their right to continue living and working in Europe after the transition period.
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