The Impact Of Covid-19 (Webinar & Summary)
Our Partner, Tim Grainger is hosting a webinar on the impact of COVID 19, this weekend in Kensington Temple. For those unable to attend we have shared the webinar below and created a summary of topics we think are important to share with those returning to work and what to expect over the next few months.
employees previously placed on furlough and subsequently being selected for redundancy for economic reasons. What are employees rights/options?
As a result of the economic impact of the COVID-19 pandemic, the government introduced the Coronavirus Job Retention Scheme (CJRS). The scheme is intended to avoid redundancies by alleviating the pressure on employers to continue paying wages in full during the crisis period. The CJRS online claim portal opened on 20 April 2020.
The Scheme is open until the end of October and from 1st July, a flexible aspect of the scheme comes into force allowing employees to return on a part-time basis.
The Employees’ CJRS guidance confirms that an employee can be made redundant while on furlough or afterwards and that an employee's redundancy rights will not be affected by being furloughed.
Although the guidance seems to confirm that a furloughed employee may be made redundant, there has been criticism of employers that have taken this approach. The aviation minister, Kelly Tolhurst, suggested in response to British Airway's decision to dismiss employees on furlough that the Treasury should review the CJRS to ensure that it is not used to pay the wages of employees on redundancy notice
Home working - “the new normal”- can an employer force it’s employees to return to the workplace?
Google has extended its work-from-home policy for the remainder of 2020. After previously telling employees that they would be working remotely until June 1st CEO Sundar Pichai has told employees that they’ll likely work from home until the end of the year.
Government guidance remains, if you can work from home, then work from home. In normal times, a requirement for an employee to attend work would be a reasonable management instruction and failure to do so could lead to disciplinary action against the employee. However, with social distancing now likely to be in place (whether 2 metres or 1 metre) for the foreseeable future, different considerations now arise.
Settlement Agreements - employees signing a Settlement Agreement as part of a Covid-19 exit package-matters to consider
Settlement Agreements (formerly known as Compromise Agreements) are very common. An employer will ask an employee to sign a Settlement Agreement to waive any employment claims, in exchange for this, the employee will receive various payments, typically 1.)contractual payments (salary up to and including Termination Date, Payment in Lieu Of Notice, accrued but untaken holiday up to and including Termination Date) 2.) An ex-gratia payment. This is a tax free compensatory payment, which can include a redundancy payment.
Settlement Agreements will also usually include an agreed reference and confidentiality clauses. The benefit to an employee can be that they receive a monetary sum which avoids the need for Tribunal and legal costs that would be incurred in pursuing matters to Tribunal. Settlement can also avoid animosity.
For a Settlement Agreement to be valid, it requires the employee to take independent legal advice. Usually the employer will make a contribution to legal fees, typically between £250-£500 plus VAT
Is a valid reason for not returning to work the risk of high infection through use of public transport?
Facemasks on public transport became mandatory on 15th June 2020.
https://www.gov.uk/government/news/face-coverings-to-become-mandatory-on-public-transport
For that reason, it is likely to be a less compelling argument for an employee to make for not returning to work. However, if an employee has a genuine concern about this, he/she should let the employer know (in writing) and allow the employer an opportunity to respond.
Racism in the workplace - what do you do if you believe that your employer is using the Covid-19 pandemic as a reason to discriminate against you?
Race is a “protected characteristic” under the Equality Act 2010. As such certain conduct is prohibited (sections 13-27), including Direct Discrimination (s.13), Indirect Discrimination (s.19), Harassment (s.26) and Victimisation (s.27).
Discrimination law is complex and fitting the facts with the law is not straightforward and requires careful thought. For example, if you consider you are being treated less favourably because of your race, (a s.13 claim for Direct Discrimination) be specific, what facts support this proposition? What detriment is suffered? Also be aware of need to have a comparator (real or hypothetical), and if a claim is to be brought it must be within 3 months less one day of the last discriminatory act. Tribunal may be prepared to extend that time limit if it is “just and equitable” to do so. S.19 claim requires a PCP which puts a person with a protected characteristic at a disadvantage when applied. S.26 claim is broader, ie to do with the conduct of another which creates an intimidating, hostile, degrading environment. S.27 claim is regarding suffering a detriment as a result of doing a “protected act” ie, raising a grievance.
If you feel you are being discriminated against and that the Covid-19 pandemic is being used as a ‘smoke screen’, you should:
Raise concerns informally firstly with your Line Manager;
If matters aren’t resolved, raise a formal grievance;
If the internal process is exhausted and you are not satisfied with the outcome (after appealing the decision), start an ACAS Early Conciliation https://www.acas.org.uk/early-conciliation (being mindful of time limit of 3 months less one day from discriminatory act).
The contents of this article do not constitute legal advice and are provided for general information purposes only.