COVID-19: Homeworking may be the new normal, but what are the Employment Law challenges?

In the space of weeks, remote working has moved from being a privilege enjoyed by the few, to a new way of working for those of us who are lucky enough to be able to work from home (WFH). Many of us have now been mandated to work from home for the foreseeable future in an effort to stall the spread of the coronavirus.

WFH brings many benefits, not only from a personal perspective with reduced commuting time allowing us to spend more quality time with family, but also from a global perspective with the reduction in carbon emissions and pollution which can only be a good thing. Some employers have a more negative view of homeworking and believe that WFH has a detrimental impact on productivity and hampers creativity but in reality that will very much depend on the person, the job and the employer.

Whilst we all navigate our way through this new way of working, what are the issues from an employment law perspective that we should be mindful of? I have outlined below a sample of some of the questions that we are likely to see in relation to remote working:

1. We are in the middle of disciplinary investigation into employee misconduct. It is a serious matter and the employee has been suspended on full pay. Can we furlough this employee and what can we do to progress the disciplinary matter during the furlough period?

If you are facing a furlough situation in relation to the business as a whole, and the position held by this employee is one that would ordinarily have been furloughed had they been at work, then there is no reason in principle why you can’t furlough the employee and avail of the Job Retention Scheme (JRS).

Once furloughed, then the next question to consider is whether you can proceed with the disciplinary investigation during the furlough period. Government Guidance in relation to the JRS states quite clearly that a furloughed worker cannot provide services to or on behalf of, or generate revenue for an employer. This could be open to interpretation but would partaking in a disciplinary interview for example constitute the provision of services? Probably not. Whilst the disciplinary issue may arise as a consequence of employment, it does not involve an employee undertaking work for the employer and does not provide any benefit or generate any revenue for an employer.

That said, not every disciplinary matter will be capable of progression during a furlough period in any event and it will very much depend on the particular facts of the case. For example, if a disciplinary matter involves numerous witnesses, all on furlough, or complex and serious allegations such as fraud it may be more appropriate to wait until the end of the furlough period.

2. We have furloughed some staff but we still need to make drastic cuts whilst keeping a minimum number of staff to ensure that the business remains operational. Our preference would be to retain all remaining staff but ask them to reduce working hours and take a pay cut?

You would obviously need to seek the agreement of employees as a reduction in working hours and pay would constitute a major variation to an employee’s terms and conditions of employment. If agreement is obtained and the decision making process is not tainted, with discrimination for example, then it may be acceptable. However, it might not be the best option from a general employee morale perspective as many employees will recognise that the JRS is available, colleagues are at home and not working when they are being asked to continue to work and take a pay cut. A fairer alternative might be to consider furloughing a second batch of employees, using a fair selection process which could achieve a better outcome.

3. All of our employees are now WFH with remote access, laptops and a company mobile phone. Login information has demonstrated that one employee in particular is not logging in and working a full working day. When questioned by a manager, the employee advised that they have issues with connectivity but our IT manager disputes that. Can we institute disciplinary action?

You should firstly consider whether there are any other reasons impacting on this employee’s ability to work a full working day. For example, employees with young children are finding the current situation challenging. If that is a relevant consideration then many employers are having a conversation around what adjustments can be made to assist, for example considering flexible start and finish times, the possibility of working a more irregular pattern or the taking of annual leave.

If this is unusual and out of character then you should also consider whether there are any health reasons which might be impeding this employee’s performance, such as anxiety, stress or depression. If that is the case then you might be able to signpost the employee to some online help or counselling and open a discussion with them about what adjustments you could make to assist, particularly if there is any risk that they might be covered under the Disability Discrimination Act 1995.

If it is your strong suspicion that the employee is treating this as a holiday then the situation definitely necessitates a stern conversation, the setting of boundaries and a timescale for improvement. If that approach does not work quickly then you will need to consider disciplinary action.

4. We have scheduled a disciplinary hearing using zoom as the employee, Manager and HR advisor are all working remotely. The employee has refused and wants a face to face meeting which is obviously not feasible at the moment. Can we insist that this hearing goes ahead?

The key requirement in operating any disciplinary process is reasonableness and given the unprecedented nature of the current situation I think that a Tribunal would view efforts to progress a disciplinary matter by zoom as reasonable.

However, if this is a serious issue that could ultimately result in dismissal then you must be mindful of the Statutory Dismissal Procedures (SDPs). One of the general principles is that the timing and location of meetings must be reasonable. Could an employee argue that it is not reasonable to conduct a disciplinary hearing virtually where there is a risk that they may lose their job? Possibly, for example, an employee may argue that they can’t confer properly with the person accompanying them thus rendering the meeting unreasonable. Or you may have an employee with a challenging home situation, a full house and no privacy. In that situation it may not be appropriate to insist on a zoom meeting. Ultimately, each case will depend very much on the factual background but it is certainly an option that should be offered to employees given the other general principle under the SDPs that each step should be taken without unreasonable delay. Given that we don’t know how long WFH will last it makes sense to at least try to move the process forward.

If you can’t wait until everyone is back at work then you should also bear in mind that under the SDPs and where an employee is facing dismissal, that you should try to re-schedule a disciplinary hearing at least once, even if you know that the employee is unlikely to attend.

My own personal experience of working from home has been great. My husband may just be the loudest man in NI and has been banished to the garage every time I do a zoom call. The kids have wrecked the house and used the bored word a lot but on the whole we are happy and healthy and so very lucky. Will WFH become the new “normal” after this crisis passes? Only time will tell.

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.

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