Rishi Sunak urges businesses to use furlough correctly
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Furlough and coronavirus restrictions have forced many workers to work from home, with many likely spending the better part of a year based at home. However, this reality may be ending soon with the Government’s “roadmap” out the pandemic illustrating restrictions could end as soon as June.
However, as staff head back to the office they’ll likely need to brush up on their employment rights as new research has provided insight on employers’ mindsets.
A recent survey of 306 business owners and directors, conducted for Cignpost Express Test by consultancy firm Yonder, aimed to explore UK businesses’ preparedness for returning employees to work post-lockdown.
This survey found just over half (51 percent) of UK businesses will only ask vaccinated employees to return to the office, with 48 percent planning to carry out regular coronavirus testing on their workforce.
The survey also showed just 31 percent are intending a full time return to the office and 46 percent haven’t formulated a return plan at all.
Vaccines became a point of contention in early 2021, as it emerged that Charlie Mullins, the chairman of Pimlico Plumbers, planned to rewrite their worker’s contracts to require them to be vaccinated.
This drew a lot of attention but in speaking exclusively with Express.co.uk at the time, Vanessa James, a Partner at Ashfords, broke down the legal legitimacy of this: “Whether an employer’s mandatory requirement for employees to have a Covid-19 vaccine places an employer at risk of legal action will be determined by the reasonableness of the requirement itself and how it is imposed on a case by case basis rather than just amending the employment contract.
“Changing employment contracts can normally be done subject to compliance with various legal hurdles, but the success in defending any legal challenge to imposing vaccines on employees means demonstrating clear business and operational reasons to establish the requirement is effectively a ‘reasonable instruction’ in the course of the employment.
“Some businesses may satisfy this relatively easily with a risk assessment – such as those in frontline care with vulnerable groups or even where the work involves entering peoples private homes – but for many employers this will be harder.”
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these types of changes: “Dismissing those who have over two years qualifying service who refuse the vaccine will result in unfair dismissal cases where the employer will have their grounds for declaring the requirement a ‘reasonable management instruction’ adjudicated upon by the Employment Tribunal.
“As there is no legal definition of what constitutes a ‘reasonable management instruction’ some employers in this situation will find themselves with adverse decisions where the Tribunal do not agree that the requirement was reasonable and justified in their case.
“Some of those who decline the vaccine will have Equality Act protection from discrimination – such as those who are pregnant, who cannot take it for medical reasons or due to religious belief – and the employer will need to consider adjustments to accommodate those people wherever they can.
“If these protected groups are not accommodated then claims for discrimination will follow that are likely to succeed.
“Complexities (and costs to the employer) will arise where ardent ‘anti-vaxers’ seek to establish their refusal as part of a ‘belief system’ that qualifies them for Equality Act protection from discrimination as well.
“Asking for proof of an employee being vaccinated and retaining such information will also have administrative challenges due to an individual’s rights under GDPR.”
On top of this, many furloughed workers may find themselves invited back into the office over the coming months.
It remains to be seen how employers will react to the end of the furlough scheme and Government support but ahead of any changes, Neha Thethi, the Head of Employment at Lime Solicitors, laid out what employees could expect going forward.
Furloughed employees’ employment rights
Neha started with the basics: “Furloughed employees retain the same employment rights as non-furloughed employees, including unfair dismissal, discrimination, redundancy and other statutory payments.
“For example, a furloughed worker has the same redundancy rights as a non-furloughed worker. There must be a consultation period for companies with 20 or more workers planning to make redundancies; a notice period and a statutory redundancy pay. To ensure those on furlough leave were not disadvantaged, the Government introduced a new law to ensure furloughed workers received their redundancy pay based on their normal wages and not at a reduced rate.
“It also ensured notice pay was based on a worker’s normal wage rather than what they had been receiving under the Scheme. As a result of this rapidly evolving legal position, employers are well advised to monitor the guidance from the Government as well as ACAS. Open discussion, pragmatic solutions and preferably agreement will be critical in using the Scheme to save businesses and reduce the risk of claims.”
Neha went on to break down how people can prepare should their fortunes turn sour.
How to prepare for a settlement conversation
Neha continued: “If an employer and employee have decided to part ways, often one or the other will ask for a Protected Conversation. This is usually a meeting or exchange of correspondence whereby both parties can agree to bring the employee’s employment to an end. They are usually ‘off the record’ and cannot be referred to in any later claim at the Employment Tribunal. The purpose of a Protected Conversation is to allow both parties the chance to openly negotiate the end of the employment contract. This Protected Conversation normally takes place in the form of an invite to a meeting where the intention of the meeting is clearly stated and possibly a reference is made to the Employment Rights Act 1996 section 111A.
“The best way to prepare for a Protected Conversation is to attend the meeting with a clear idea of the potential claims, their likely value and how the employee would like the situation to be concluded. If the employee has been invited to the Protected Conversation meeting without prior notice, then the best response is to say as little as possible and take full and detailed notes of what is being said. An employee does not have to agree to anything at the meeting and they should not feel pressured into responding.”
Neha concluded by breaking down the important rights furloughed staff should know they’re entitled to.
Unfair dismissal – sick and holiday pay
“COVID-19 is clearly presenting unprecedented challenges for both employees and employers. Therefore, it is important that we keep ourselves up-to-date with the current situation, especially with the evolving restrictions. However, there is always a risk that employers could use this situation as a smokescreen for what would otherwise be classed as unlawful. For example, if an employer exclusively selects employees for redundancy based on furlough status, this could be unfair selection. Similarly, a redundancy dismissal may be considered unfair if the employer did not fully consider other alternatives such as keeping the employee on furlough.
“To assist employers with various issues such as sick pay and holiday pay, the Government published guidance on the Coronavirus Job Retention Scheme. The guidance makes it clear that employers can furlough employees who are off sick if they have ‘business reasons’ for doing so. If an employee becomes sick while on furlough, it is up to the employer to decide whether to move them to statutory sick pay or to keep them on furlough. If the employee remains on furlough, the employer can continue to claim their salary through the furlough scheme. In relation to holiday pay, workers who have been placed on furlough continue to accrue statutory holiday entitlements.
“The scheme is clearly designed to help employers retain staff during the pandemic and assist with issues that may arise during the interim. However, the risk of employers taking advantage of the situation unfortunately remains and therefore effective communication with employees is key in order to avoid unlawful treatment or dismissal.”
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