COVID-19 – A Guide To Essential Policies And Procedures For Employers

We are faced with unprecedented times as the spread of Covid-19 across the world dominates headlines.

The virus has seen the UK go into lockdown as the government attempts to limit its impact, and the disruption to normal everyday life cannot be understated. Businesses across all sectors have been faced with challenging circumstances in recent weeks, including:

• a rapid decline in sales and trade;
• forced closures for non-essential services in line with government guidance;
• some or all employees moving to remote working;
• a reduced workforce due to sickness and Covid-19 related self-isolation measures; and
• requirements to implement and ensure the preservation of effective social distancing measures where businesses are still permitted to operate.

This crisis has therefore thrown up a myriad of HR challenges for employers to grapple with.

In this article, we will examine the key policies, procedures and guidance that employers may need to look to in challenging times such as this.

While this article has a focus on the current pandemic, a lot of the guidance could be applicable to other scenarios that may result in business disruption. This included adverse weather, health and safety or security related business closures, or damage/destruction to business premises.

The Job Retention Scheme

Also known as the “Furlough Scheme”, the government announced measures on 20 March 2020 that are designed to support employers whose operations have been severely affected by the coronavirus.

The aim of the scheme is to secure jobs during the Covid-19 crisis by supporting employers with wage costs up to a maximum of 80% (subject to a cap of £2,500) in circumstances where they are “unable to operate or have no work for [employees] to do because of coronavirus”..

The scheme has been developed specifically to deal with the ongoing challenges arising as a result of Covid-19 and employers will not therefore have a policy or procedure to look to on how to deal with this new and temporary scheme.

However, the process of furloughing employees must be done with the consent of employees in order to legally vary the terms of their employment. It is therefore important that, as an employer, clear guidance is provided to employees on how the scheme will impact on terms and conditions, including:

• the impact on their pay;
• how their pay will be calculated, and what might be excluded;
• whether the employer intends to top up pay, and if so for how long;
• how other benefits provided under the contract will be impacted, if at all;
• the impact on pension payments (for those who operate an auto-enrolment scheme, the government has confirmed it will cover employer pension contributions up to the statutory minimum but if you operate a trust based defined benefit or defined contribution scheme, this may require specialist pensions input);
• restrictions on working for the employer and for anyone else; and
• the duration of furlough leave. This may be open ended and subject to the government’s continued operation of the scheme, or the employer may consider operating a rotation in which employers will be placed on and off furlough at regular intervals (subject to ensuring that a single period of furlough leave lasts no less than three weeks).

In this situation, as a minimum, employers should tell employees where they can access government guidance on the scheme and provide a point of contact in the organisation for any queries. You may also find it useful to create a ‘frequently asked questions’ document to provide to employees for consideration.

Importantly, employers should ask employees to confirm their understanding of the changes to their terms of employment and provide the necessary consent to being furloughed. HMRC has clarified that the agreement to furlough must be in writing, and a record kept of it for 5 years. During periods of increased remote working, it is expected that employee consent may be provided via e-signature or via confirmatory email or even text message. As government guidance on the scheme continues to develop, it is recommended that in the letter to employees, employers reserve the right to change furlough arrangements in line with government guidance and any other related legislative or regulatory requirements that are issued  

If faced with a situation where you may need to furlough some but not all of the workforce or team, you may need to give consideration to what selection criteria you will use to identify those who are to be furloughed. This may not be necessary if you are able to get volunteers in the first instance.

The government has not provided any guidance on how persons may be selected for furlough but noted that “equality and discrimination laws will apply in the usual way.” Criteria based on previous performance and relevant skills may provide an objective basis for selection.

The general rationale for selection should also be communicated to employees, as well as the rationale for the selection of individual employees, so they understand how the process of selecting them for furlough leave has been carried out.

Working from home

Moving your workforce to working from home brings a number of practical considerations. These can broadly be summarised under the areas of:

-        Health and safety

-        Technology

-        Keeping people connected

-        Supervision and monitoring

-        Balancing home life

Where your Employee Handbook already includes policies around home working, IT use and/or remote access, these should be circulated to your employees as soon as possible. If you do not already have policies for home working practices, then pulling together guidance you can share will help set expectations and remove some of the uncertainty for those working at home.

As an employer you have a statutory duty to ensure the health, safety and welfare of your employees wherever possible and as far as reasonably possible. Without going into detail, the regulations generally dictate a risk assessment should be carried out to assess potential hazards and/or required equipment. 

This duty does extend to home working but the sudden and abrupt way many firms are having to adapt in the current climate may make it more difficult to comply. Undertaking individual risk assessments at employees’ homes is unlikely to be feasible so you may wish to consider asking employees to complete some form of online risk assessment or confirm whether they are able to work safely. At the very least, you should ensure you are:

• talking to employees about homeworking issues;
• recording any issues and concerns; and
• doing what you practically can in these circumstances to set employees up for safe home working.

Keeping people connected and communicating when working apart will be key – not only for productivity, but also for employee wellbeing.

This is an unsettling period and many employees will be working from home for the first time. You may wish to share guidance on the technology your firm has available and the ways you encourage teams to keep in touch. Line managers should be encouraged to communicate using video conferencing, online messaging and phone, not just emails. Access to wellbeing benefits (where available currently) or employee assistance helplines, for example, can also be shared to help employees.

Asking employees to use their own technology in the absence of sufficient company laptops, for example, is likely to be considered a reasonable request at this time. This means any unreasonable refusal could be considered misconduct under your disciplinary policy and procedures. You should nevertheless take any steps you can to support them in setting up their technology and maintain some flexibility around what may be possible.  Additional cost incurred by the employee in order to work from home should be met by the employer, but most costs – such as phone lines and internet access – will be fixed; any other additional costs are likely to be small and could, in any event, be offset against savings on travelling to work, such as fuel, public transport costs and parking.

With employees working remotely from line managers, supervision and monitoring becomes more challenging. Managers will likely be able to keep tabs on work via output, phone calls and video conferencing facilities. Stringent data protection regulations mean anything other than ‘light touch’ monitoring of output is unlikely to be lawful. Employers may need to accept that a drop in productivity during this period of emergency home working is still preferable to employees not working at all.

Even if successfully set up to work from home and communicate, many of your employees will likely be facing a daily juggle with a newly blended work and home life. With schools and childcare facilities shut, many parents will have children at home while they are continuing to work. This may prove challenging. Others may be caring for vulnerable relatives or dependants who have become ill.

Employers may therefore need to be more accommodating of parents who are working alongside caring for their children or people taking care of others, even though this would not be acceptable in normal circumstances.

Flexibility around working patterns and expectations will help to preserve good employee relations during what will be a difficult and highly stressful time for home-based employees faced with conflicting commitments.

Emergency leave – time off for dependants

Emergency leave has always been available to employees in circumstances where they need to take time off suddenly to look after a dependant, for example to care for a sick child or relative.

This is covered under Article 85A of the Employment Rights (Northern Ireland) Order 1996, which provides for a reasonable amount of unpaid time off to take action necessary to provide assistance for dependants. “Dependants” covers a spouse, civil partner, child, parent or someone living in the same household who reasonably relies on the employee for assistance or to make care arrangements when they fall ill or are injured or assaulted.

This is available to all employees with no minimum service requirement. However, it is only intended to cover a reasonable period of time off in order to allow employees to deal with an emergency or put other arrangements in place for care of dependants.

Unless you have a relevant policy that expressly provides for pay during these periods, or there is a general pattern of paying employees in circumstances where short term emergency leave is required (which may give rise to an implied right to pay), there is no obligation on you to pay employees for those days when they are unable to work.

In the current situation, employees may be struggling to balance home and work obligations. The government updated its guidance over the weekend to now include provision for employees who cannot work “because they have caring responsibilities resulting from coronavirus (COVID-19)” to be furloughed. The guidance provides the example of employees that need to look after children.

However, while emergency leave may provide a workable solution for short term emergencies e.g. when adverse weather has resulted in a school closure, the prolonged nature of the current crisis is unlikely to make emergency leave to look after a dependant a viable option. Therefore, some may seek to avail of parental leave.

Parental leave

By law, any employee with one year of continuous employment is entitled to 18 weeks’ unpaid leave to care for a child for whom they have, or expect to have, parental responsibility.

Each parent has the right to take 18 weeks’ leave for each child up to their eighteenth birthday. Unless your policies specify otherwise, each parent cannot take more than four weeks leave per child in any single year and parental leave in respect of a non-disabled child cannot be taken in blocks of less than one week. Entitlements are adjusted for part-time employees or calculated from an average if employees are on irregular working patterns. 

It is important for employers to note that save in respect of pay, other contractual terms and conditions will continue to apply for the duration of parental leave. This will include, for example, continuous service and holiday accrual.  

In the current situation, this could provide employees who are unable to work for childcare reasons with the opportunity to request up to four weeks’ leave in one block for each child. It is likely to be particularly attractive if employer policies provide for some payment to be made during a period of parental leave. In considering any requests, employers should be mindful of the challenging circumstances that current restrictions have thrown up for working parents, and work with employees to find a solution that works for them and the business. 

Updated Government Guidance

The government updated its guidance on the Job Retention Scheme over the weekend to now include provision for employees who cannot work “because they have caring responsibilities resulting from coronavirus (COVID-19)” to be furloughed. The guidance provides the example of employees that need to look after children – and it seems that it only applies where employees cannot work from home and look after children. However, ultimately the decision to furlough requires both employer and employee consent, and in businesses where operations are still running and where potentially large numbers of employees have caring responsibilities at home it simply may not be feasible to consider furloughing all those in this situation. The guidance does not offer any further detail here so it will ultimately be for the employer to treat requests on their own merit, taking the particular circumstances of each employee into account. In any decision-making process however, employers should be mindful of ensuring that selection is on non-discriminatory grounds.  If you are selecting from a group of employees, it may be worth undertaking an audit of the profile of that group to check that there is no adverse impact on people with protected characteristics – and, if such an impact is found, analysing your justification, for example, the operational needs of the business.  

Lay off, short time working and redundancy

The government’s Job Retention Scheme is intended to try and preserve jobs during the crisis by supporting businesses with wage costs. However, the longer-term damage to business and the economy as a result of the pandemic is uncertain, and the repercussions could mean that employers may still have to make difficult decisions to lay off staff or make redundancies.

If there is provision to do so in the contract, an employer can ‘lay off’ an employee without pay where there is temporarily no work available. Short time working allows employers to enforce reduced working days or hours as a means of cost saving.

Lay off/short time working clauses do not tend to be a common feature in the contract of employment, save in industries where work tends to fluctuate. Therefore, it is recommended that employers review employment contracts in advance to check if relevant provisions are included.

If you do not have short-time working or lay-off clauses in your contracts, it may be possible to obtain employee agreement to incorporating these, as a more palatable alternative to redundancy. This may be sought at the time you seek agreement to place employees on furlough leave.

Employees who are laid-off may be entitled to a statutory guarantee payment of up to five ‘workless days’ in a three-month period. An employer may have their own contractual provisions in respect of a guarantee payment, which offer an enhanced rate of payment. However, this is purely discretionary. 

Employers should be aware though that employees can resign and make a claim for a statutory redundancy payment where they are laid off or put on short-time working for four consecutive weeks, or a total of six weeks in any thirteen week period.

If there is a need to make redundancies, employers should consider ahead of any process what their legal obligations are to employees so as to limit their exposure to future claims. Key points to note are:

• All employees with two or more years’ continuous service will be entitled to receive a statutory redundancy payment.
• A period of consultation should take place, noting that where 20+ redundancies are proposed within a 90 day period, the duty to collectively consult will arise.
• Where collective consultation obligations arise, a HR1 form must be completed.
• The statutory dismissal procedures will apply to dismissals by reason of redundancy. It is therefore important to remember to incorporate the three steps into the consultation process, and ensure a right of appeal is given.
• Consideration should be given to pooling and selection processes, and employers should apply their mind to these matters ahead of starting any redundancy process.

Not all employers will have a policy on redundancy, but if you do, it needs to be considered. Where the redundancy policy is a contractual one, particular care should be given to ensuring compliance so as to avoid the risk of claims of breach of contract.

Having a redundancy policy gives employees clarification on the general approach their employer will take if there is a need to reduce numbers, and will also ensure consistency of approach from management.

However, where employers are considering putting a redundancy policy in place, it is recommended that it sets out very broad parameters in terms of the steps an employer will endeavour to take to avoid redundancies, without being too prescriptive. This will allow employers to tailor their approach somewhat depending on the particular circumstances at that time.

Annual leave

Employers also have the right to tell their employees when to take holidays, and to cancel pre-booked holidays. The Working Time Regulations (Northern Ireland) 2016 permit employers to require workers to take annual leave, or not take leave which has already been booked provided they give twice as much notice as the amount of leave the worker is being required to take (or had already booked).

This may allow employers to operate temporary business closures while providing employees with payment during that period. In the context of the current crisis and given the uncertainty over how long it will last, it will also allow employers to manage accruing holiday entitlement. This could present issues for business operations later in the year if many employees are seeking to take periods of accrued annual leave at the same time.

At this time, the government guidance remains silent on the question of whether annual leave can be taken whilst on furlough leave However, temporary legislation has been introduced that will allow employees to carry over up to four weeks’ paid holiday over a two year period if they have otherwise been prevented from taking it because of the coronavirus outbreak. As well as ensuring employees do not lose out on their holiday entitlement, this will also help employers to manage volume annual leave requests from those trying to take their remaining entitlement before the leave year runs out.

Employers may wish to separately agree to allow for carryover of the remaining 1.6 weeks of working time entitlement or any additional contractual entitlement in excess of that. If an employer decides to offer anything over and above what has been stipulated by the government, it is recommended that this is set out in writing.

Conclusion

While robust policies and procedures are important to help manage disruption, demonstrating flexibility and that you understand the challenges employees face is critical, particularly at this time of crisis and uncertainty.

Communicating and considering wellbeing is more important than ever. Notwithstanding your statutory obligations, flexibility is to be encouraged. Regular discussions with employees and within teams is advised, and many employers are using video conferencing technology to make team meetings more interactive. Employees should be encouraged to share any problems or concerns they have, so that you can work through a plan of support. 

For many employers, this pandemic may be the first time they have dipped their toe into the world of remote working, and could open up the possibility for them to provide agile working options for more employees on a regular basis in the future. Homeworking and IT policies will be important to the future success and sustainability of those plans.   

In addition, it is important that employers are aware of and understand the options available to their employees in times of emergency, including time off for dependants and parental leave. Being able to work with employees to find solutions during these will cement good employee relations and promote trust and loyalty within your workforce in the long term.

Bringing people together to see the long term benefit to your organisation of adapting to this unprecedented situation and continuing to act in a way that reflects your organisational culture will help maintain your operations.

The employment team at TLT continues to be on hand to support employers as they work their way through the sea of rapid change during the Covid-19 pandemic. All of our fees earners are set up to work from home and can engage with clients in a variety of ways, including by telephone, email and video conferencing. Our 15 minute free of charge initial telephone consultation service remains available to all subscribers to Legal Island, and please do check our coronavirus hub regularly.