COVID-19: Coming out of Lockdown – What are the key Employment law issues for businesses?

It is difficult to envisage a return to “normality” in the old sense but with the relaxation of restrictions in other European countries, many UK employers are starting to consider how to get employees back into the workplace safely. There will inevitably be HR and legal challenges in doing so but the key considerations are likely to be as follows:

1. Health and Safety

Employers must be guided by Health and Safety advice and employers in Northern Ireland can find very useful guidance on the NI Health and Safety Executive (HSE) website: https://www.hseni.gov.uk/topic/covid-19-advice-and-guidance-places-work.

The HSE has also produced a very useful generic Workplace Risk Assessment template which outlines the main issues for employers.

Precautions will very much depend on the type of workplace with no one size fits all solution but at a minimum, businesses should think about the following:

• Can you comply with social distancing requirements? In an office environment for example, can you space desks and other equipment? Can you erect screens?
• Will you need to bring employees back on a phased basis with staggered working hours to comply with social distancing requirements?
• What cleaning materials and PPE will you need?
• Will an increased cleaning schedule be needed?
• Will you have to disable your air conditioning system to reduce risks?
• Can you limit contact with members of the public, conducting virtual meetings or moving to online payments?
• What support can you offer to employees from a mental health perspective?

2. Flexible working

All employees with 26 weeks’ service have the right to request flexible working. Employers may have to deal with an increase in flexible working requests as a result of COVID-19. For example, employees with caring responsibilities, or who may be nervous about returning to the workplace may request a more flexible way of working. School closures in particular have been particularly challenging meaning that some employees may be interested in adopting a flexible working pattern.

3. Holidays

Many employers are concerned about high levels of holiday accruing, particularly in businesses that are availing of the Job Retention Scheme (JRS). In addition, employees can now carry over statutory annual leave into the next 2 leave years where they have been unable to take it in 2020 due to the COVID crisis.

Businesses will want to avoid a situation where they are deluged with holiday requests when work has returned to normal. Government Guidance indicates that holiday can be taken during the furlough period (provided that the employer tops up pay to the normal weekly rate).

Some employers may consider requiring employees to take some contractual annual leave, bearing in mind that an employer must give adequate notice which is usually double the period of leave being taken (for example 5 days holiday will require the employer to give 10 working days’ notice). Some employees may argue that this is not annual leave in the true sense if they can’t go anywhere but for others it may be attractive as it would result in a top up of pay in situations where they are in receipt of the JRS reduced rate of pay.

4. Redundancy 

Whilst the JRS has been a much needed lifeline for businesses, the end is in sight with the JRS due to end on 30 June 2020. The impact of COVID-19 has been so far reaching that many employers will now need to undertake a review of their business to consider whether it remains fit for purpose and whether redundancies might be necessary. In the unfortunate event that redundancies are likely, you should consider:

• Who might be in scope
• What process you need to follow.
• How you will formulate pools for selection
• What your consultation requirements will be
• Whether a collective consultation requirement will be triggered (proposing to dismiss 20 or more employees in a period of 90 days)
• What selection criteria will apply
• How will you meet the costs of redundancy with depleted cash flow

To summarise, whilst there are conflicting opinions as to when lockdown should be lifted and what it will look like, it is clear that we will not be reverting to business as usual anytime soon.

This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Employment team at Cleaver Fulton Rankin for further advice or information.

---