Covid-19 presents an unprecedented challenge to the employment sector. Further to our March employment bulletin, this article offers a legal perspective on some additional key issues employers will face in the light of the pandemic. We have published full guidance for employers on our website, which can be found here.
- Data protection
Can an employer disclose that an employee has coronavirus?
Employers should be mindful of the data protection implications of disclosing that an employee has Covid-19. This relates to an individual’s health and so is ‘special category data’ – it can only be processed in limited circumstances. Employers can disclose that there is a case of coronavirus in the workplace but the individual employee’s identity should not be disclosed. The ICO has confirmed it will take a pragmatic approach to enforcement.
What are the data protection implications of home working?
Employers are now obliged to facilitate homeworking where possible. Employers should have regard to the increased data protection risks and note that the protection of personal data will remain the employer’s statutory obligation under GDPR, regardless of whether it is being processed onsite or from an employee’s home. Consideration should be given to the shredding of confidential files, home security and video conferencing – is it secure? Now is a good time to review data protection policies.
- The Job Retention Scheme
What is it and when does it apply?
The new Job Retention Scheme (JRS) provides government funding to employers so that they can retain employees where the business has been seriously affected by the coronavirus. To be eligible, selected employees must have been on the PAYE payroll on 19 March 2020 and can be on any type of contract including; full time, part-time, agency and flexible/zero hours.
The JRS applies to all UK employers and all employees (and some workers) on the PAYE scheme. Employees who were made redundant on/after 28 February 2020 may be re-engaged and placed on furlough. The minimum furlough period is 3 weeks – there is no maximum period.
How to furlough an employee
To action the JRS, employers should consult and upon agreement designate the employee as a furloughed worker. There does not need to be any formal redundancy style selection, but employers should be careful not to base criteria for selection on any of the protected characteristics. A letter should be issued, confirming furlough and requesting written confirmation of consent – this is particularly important because furlough will usually alter the contract of employment. Where an employer intends to vary the contract of 20 or more employees, collective consultation may be triggered. This may be operationally difficult at the moment - it may be possible to circumvent consultation by using the special circumstances defence. The employer will then submit information to HMRC through the new online JRS portal. HMRC will reimburse 80% of the furloughed workers wage, capped at £2,500 per month. The employer may agree to pay the remaining 20%.
The introduction of JRS has created a host of complicated issues, many of which are outside of the scope of this article include furlough rotation, TUPE and employees on maternity/paternity. Employers are recommended to take legal advice before furloughing employees.
- Annual Leave
Can an employer require an employee to take annual leave at a particular time?
Yes – the employer should give notice specifying when the required period of paid annual leave will be, and should be twice as many days as the annual leave period required. For example, an employer requiring the employee to take 5 days’ annual leave must give 10 days’ notice. This position is subject to any alternative agreement in the contract of employment.
What are the implications of furlough on annual leave?
Employees can take annual leave whilst on furlough however, this should be paid at full rate as opposed to the 80% payment through the scheme. Organisations can still claim for the 80% through the Job Retention Scheme if their staff are on furlough leave.
How much annual leave can employees now carry forward now?
New emergency measures to extend the carry-over period will amend the Working Time Regulations 1998. Employees (and some workers) may now carry forward up to 4 weeks’ unused leave into the next two leave years, where it has not been ‘reasonably practical’ to use leave due to coronavirus. This will hopefully avoid operational issues for employers and protect employees’ rights. Additionally, where an employee’s employment is terminated, pay in lieu must include carried-over leave.
- Conducting disciplinaries remotely
In principle, most disciplinary hearings should be able to go ahead as scheduled via videoconferencing, telephone or even via written submissions. An employer must ensure that a fair process is followed. Some key considerations may include:
- Is the employee fit to attend?
- Does the employee have the capacity to undertake the hearing from home, with consideration given to childcare requirements, lack of equipment…?
- The need for a timely resolution.
- The seriousness of the issue – suspension may be necessary in very serious disciplinary cases.
- The organisation’s internal policies/procedures.
If in doubt, apply the basic rules of natural justice that an employee must know the case against them and be given a chance to state their case in the light of that.
Please note that the information contained in this article is a summary of the law and should not replace legal advice. Stone King LLP’s team of solicitor and HR consultants are operating business as usual and will continue to support our clients fully through the Coronavirus pandemic.