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Coronavirus – COVID-19
Additional Information for Employers
(3 April 2020)

UK employers are facing an unprecedented situation regarding how to deal with issues arising from COVID-19. As time goes on there’s more clarity on a number of key areas, some additional development and we find ourselves addressing some quite complex questions. The purpose of this post is to bring you up-to-date with all things COVID-19 related when it comes to the people impacts.

As with all of these posts, we need to remind you that these are unprecedented times and it is unclear as to how employment law will be applied in these exceptional circumstances. The information that follows has been compiled with input from Acas and other legal professionals, but the reality is no-one really knows for certain how actions that businesses need to take now will be interpreted later.

We strongly advise you to get in-touch with us to seek tailored guidance before you take any actions.

Other Guidance Notes

We’ve issued a series of guidance notes since the beginning of this and you can find them here:

We also remind you that, although these are unusual times, all associated employment laws still apply.

I’ve made an offer to a new employee but now don’t need them. What can I do?

An update on this answer can be found here: Offer to a new employee – Update

In this scenario you do have some choices.

Firstly, you can withdraw the offer legally by paying for the contractual notice period. It’s never a nice conversation but you should phone the individual and explain the situation. You should then confirm that you are needing to withdraw the offer but they are entitled to payment for their contractual notice period and will receive this. You’ll need to follow this up in writing.

As an alternative, you can see whether the individual would be prepared to delay their start date. You have nothing to lose by asking the question and it could well be that an individual would prefer to agree a delayed start date than find themselves in a position where they’ve served notice to their current employer and will be without a job if you withdraw the offer completely.

Can I furlough people for two days a week?

The answer to this one is no.

The Coronavirus Job Retention Scheme stipulates that people must be furloughed for a minimum of 3 weeks at a time. It does seem that you can furlough people for 3 weeks, bring them back for a period of time and then furlough them again – there’s certainly nothing to say that you can’t do this. However, the scheme states clearly that furloughing must be for a minimum period of 3 weeks.

There’s always a possibility that this will change but at the moment, we suggest sticking with the official rules of the scheme.

Can I switch off access to IT systems for employees on furlough?

As long as you are clear as to why you are doing this then this should be fine. The reason for switching off IT access during furlough is that the Job Retention Scheme states very clearly that employees must not work during furlough. By switching off IT systems you are removing the temptation for an employee to just do a quick check in. Before you, or they really know it, they’ve responded to a few emails – this would be deemed to be work and would invalidate your furlough claim.

Switching off access is legitimate in these circumstances, but we can’t stress enough the importance of telling employees that this is what you are doing and the reason why you are doing it. Employees may already feel isolated when furloughed so to suddenly discover that you’ve also been cut-off from email will make that worse.

If you are switching off access, we’d encourage you to make sure you have personal contact details for all employees you are furloughing and then make efforts to keep in touch with them but just in a “checking in to see if you’re OK” manner and not a “wondering if you could just help me with this work question” manner!

What happens with holiday accrual during furlough?

An update on this answer can be found here: Accruing holiday on furlough – Update

As crazy as it seems, people will continue to accrue holiday during furlough. Prior to Covid-19 it was not possible to carry over statutory holiday from year to the next.

However, the government has now confirmed that employees will be allowed to carry over holiday that they couldn’t take due to the virus for 2 years. More information can be found here: Rules on carrying over annual leave to be relaxed to support key industries during COVID-19

My employees want to cancel the holiday they had booked because they can’t go anywhere. Do I have to let them?

This is going to make us sound mean, but you don’t have to let them cancel holiday and our guidance would be to not.

Even though people are going to be allowed to spread accrued holiday over the coming two years, this will still have a long-term impact on your business. What happens if, at the end of this period you need to make redundancies? You’re going to need to pay people for any holiday that they’ve accrued but not taken. As the world recovers and people start to move jobs, you are again going to have to pay people for holiday that they’ve accrued but not taken. It could get very expensive.

Our guidance is that you make sure that people do use any accrued holiday during this time and, under Working Time Regulations, you can actually tell people to take time off by giving them twice the amount of notice as to the amount of holiday you are asking them to take.

We fully appreciate that this isn’t going to make you popular, but we do encourage you to consider the longer-term impact on your business of allowing people to build up large holiday balances.

I’ve just been involved in a TUPE transfer and my new employees weren’t on my payroll on 28th February 2020. Can I furlough them?

An update on this answer can be found here: New TUPE employees – Update

Based on what we know if the scheme at the moment, the answer to this question would be no. However, we’re struggling to see how this would be deemed to be fair and it’s something that we’re investigating further. Our guidance at this stage would be to assume that you cannot claim under the furlough scheme.

TUPE is notoriously difficult to navigate at the best of times so, if you are in the situation, it’s vital that you seek guidance before you do anything.

I have an employee who has resigned and is due to leave in the next few days. Their new employer has now said that they can’t join. Can I re-hire them and place them on furlough?

If you want to, you can allow the individual to withdraw their notice, continue to employ them and place them on furlough.

However, a word of caution on this one. You need to be mindful of what happens at the end of this period. What happens if the new employer withdraws the offer entirely? Are you happy for the employee to carry on working with you for an indefinite period? You’ll have no legal way to bring their contract to an end outside of redundancy so, whilst you will want to help the employee out, do think through the longer-term implications of this decision.

I have an employee who joined me after 28th February 2020. I can’t furlough them but can’t afford to pay them. What are my options?

Sadly, as things stand at the moment, your options are limited. You can talk to the individual about taking a period of unpaid leave or you can terminate their employment entirely (clearly making sure you follow the appropriate process as employment and contract law will still apply).

If you can afford to pay them some of their salary then you could also explore short-time working with them but again, make sure you follow the appropriate process.

Many of my team are now working from home. What can I do (and not do) to manage them?

This is a very common question. Our guidance boils down to mostly common sense, regarding ensuring clear communication, engaging with employees on a personal level and being flexible as they’ll have additional challenges to manage.

Refer to our separate post on this here: Tips on Managing a Remote Workforce – Guidance for Managers.

Employment laws still apply

When making changes to working hours or other terms and conditions, assuming your employment contract does not already allow for that, normal employment law applies – refer to our post on employment law: Job Retention Scheme – Employment Laws Still Apply (23-Mar-20).

Also, the employer must be careful not to discriminate in deciding who to offer furlough too – refer to our post on furlough discrimination: Furlough Decisions – Beware of Unintended Discrimination (24-Mar-20).

If you’d like help with the impact of Coronavirus or any other HR matter, contact us on 0203 319 1649 or fill in the form below.

Contact Us

If you’d like help with the impact of Coronavirus or any other HR matter, contact us on 0203 319 1649 or fill in the form below.

Contact Us

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