18 March 2020

Coronavirus: advice for employers

By the Employment Law Department, Hayes + Storr.

Imposing working from home

Q. Can employers require their employees to work from home even if the employees don’t want to?

A. Many employers will have previously refused applications to work from home, however the time has come when employers must consider making their employees work from home. Firstly, the employer needs to check whether they have a mobility clause within the contract of employment and if they do, then this will almost certainly mean they can request employees work from home. If there is no mobility clause then the likelihood is that it is reasonable and lawful to ask an employee to work from home.

When sending an employee to work from home there are four issues that you need to consider:

1. Health and Safety
Under statutory regulations and implied terms in the employee’s contract of employment, the employer needs to ensure a safe system of work. In order to do this, you need to ask employees whether they can work from home safely. The likelihood is that most employees will be able to work from home safely and therefore as long as you have asked the question, then you can request that the employee works from home.

2. Providing equipment
This of course depends upon the employee’s role and whether it is actually possible for the employee to work from home if you provide them with the equipment to do so. If you do not have sufficient computers, but it is possible for the employee to work on their own computer then it will be reasonable for you to request that they use their equipment to work from home. If they refuse to work from their own computer then you could commence disciplinary procedures against them.

3. Paying for home services
It may be appropriate to offer an additional allowance for some employees to work from home to cover their additional costs. If however the employee is saving on fuel or travel due to the fact that they are working from home, then this can be offset against the costs and therefore you may not need to make any additional payments. Also, of course, many home internet packages will be unlimited and therefore there are unlikely to be additional costs.

4. Productivity
It will be better to have some production rather than no production if you are forced to close your business. It is therefore better to have some productivity with the employee doing some work from home than nothing at all. Most staff will work from home effectively, bearing in mind that it is in everyone’s interest for the employer to get through these difficult times. If an employee does not work from home properly, then you could take this into account in the future if you need to consider redundancies if they have not worked from home effectively.

Lay-Off and Short-Time Working

Lay-off is the temporary lay-off of employees where they are required to go home and will not be paid anything other than a payment of £29 per day (increasing to £30 per day on 1st April). This payment is paid for a maximum of 5 days over 3 months.

Short-time working is when the employee does less work for you and you provide them with less than half of their normal work and pay them for the work they complete. In order to put in place lay-offs and short-time working, you must have this term within your contract of employment. If you do not have it then it is very difficult to imply it and it is likely that if you force a lay-off or short-time working, you will be faced with an employment tribunal claim. If you have no alternative then our advice would be to speak to your employees and seek their agreement to these amendments and explain the position your business is in.

There is of course the possibility that the Government may step in and change employment laws at very short notice and introduce an immediate statutory right for employers to lay off and put in place short-time working within the next few days or weeks. This is something we will keep a close eye on and will update you, if and when it happens.

Redundancy

As you may be aware, if you are making more than 20 redundancies then you are required to enter into a consultation of a minimum of 30 days and this goes up if you are making 100 employees redundant. If however there are special circumstances which make it not reasonably practical to consult for 30 or 45 days then you can reduce the time for consultation if there is a sudden disaster. The Coronavirus could of course be considered as a sudden disaster and therefore we would advise that it is possible to reduce the time for consultations. If you are faced with a redundancy situation, you do need to follow procedure but you will be able to make redundancies if there is an immediate downturn in your work.

Employees who have been employed for less than two years

Employers may be forced to consider giving notice to employees who have been employed by them for less than two years. They will not be required to pay a redundancy payment and will not have to follow procedure. The employer must not terminate the employment because of a reason which could be discriminatory and must check that the employee reaches the two years continuity of employment when given the requisite notice period.

When completing any of the above it is important that you follow employment law properly. If you need help in understanding employment law and on how to implement changes correctly, contact the employment team at Hayes + Storr.

Home-working policies are available to employers already signed up to our HR retainer packages together with additional Coronavirus advice. For any other employer requiring advice at this time, please contact Anissa Hallworth on 01328 863231 or Gerald Bloye on 01553 778900 who will advise you on HR retainer packages and/or providing employment law advice paid for on an hourly basis.

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.

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