Key employment law takeaways for this time of crisis

Following the Government’s announcement on 16 March, we all now know the enormity of the task that we’re facing. There will be significant impact for businesses that will need to close or lay off staff, and for those individuals who will now need to self isolate. In this post we’re updating links to ensure you have the most up to date information.

In the HR and employment law world, it’s really important to look at legal obligations and risks.  It’s important we still manage these as we navigate all that Covid-19 is throwing at us. However, there’s so much more to be considered in a time of crisis, when perhaps goodwill and human nature will provide surprising support for our communities and organisations.

First, the legal issues…

You’ll find many legal articles online explaining the multitude of legal issues that may arise in relation to workers, as organisations begin to manage themselves through this crisis.

Each situation and challenge will be particular to your circumstances and we’re happy to give more detailed individual advice – but we thought it might be helpful just to highlight the key legal obligations that organisations have to their workers, which should be kept in mind as we navigate the months to come:

Health and safety obligations to workers and visitors – maintain a safe working environment for all, conducting appropriate risk assessments and being aware of those at particular risk. This is particularly important if you can’t arrange for people to work from home and need to keep them in the workplace – are you doing everything you pro actively can to minimise risk? This also includes supporting mental health, at what is clearly a pressurised time for everyone. Balance the messages with useful information about supporting mental health. There are lots of useful resources online, for example this BBC article.

Payments to workers – be clear what payments your organisation will make to those who are unable to work (for whatever reason) as statutory sick pay, contractual sick pay or on a voluntary basis, while maintaining flexibility to adapt as the circumstances develop. SSP rules are being updated by the government in emergency measures, so keep an eye on the ever evolving position.

Homeworking – ensure workers have a safe and secure environment when working from home. Think about all the practical implications of remote working for the business and also how you will engage and manage your remote workers.

Data protection – relevant when considering home working and also employees who may have personal circumstances requiring them to self isolate or who have contracted the virus themselves. Take care to manage the information in accordance with your data protection policies and maintain confidentiality – this will be ‘special category’ data. There is useful guidance from the ICO addressing this current situation.

Contractual obligations and fair procedures – if looking to reduce or vary hours or address redundancies, take care with the process you follow and consider any contractual obligations and collective consultation. These are difficult circumstances which present resource pressures, but you’ll still need to do as much as you can. If reducing hours or laying off workers, is there a contractual right to do so or is specific agreement now needed? Without agreement there may be an ongoing obligation to pay workers in full who have been sent home, otherwise they may claim unlawful deduction from wages later on.  If you don’t have a lay off clause but might want to temporarily lay off, it might be worth having an honest dialogue with employees early on to try to get their agreement to this as a possible course of action (as an alternative to making redundancies).  There will also be an obligation to make lay off payments and employees may accrue a right to resign and claim a redundancy payment-  this is a link to Government guidance.

Time off to care for dependents – comply with obligations to allow workers to take time off to make arrangements to care for dependents, appreciating that we are in a world where alternative arrangements may not be possible.

Discrimination – consider how any new procedures or rules that are introduced might affect those who have a disability which places them at more significant risk, or those of a particular race or religion. Be aware how employees are interacting and whether any discrimination is being shown to workers of a particular race.

New rules and procedures – clearly communicate any particular rules or obligations that workers must comply with as a result of new processes, and try to be as clear on the rationale as possible, offering a way of raising concerns.

Duty of trust and confidence – the loss of this is often raised in employment disputes. Be mindful of how this might arise in a time of crisis as a duty on both employers and employees.

Changing legislation– be alert to new employment legislation emerging at a pace much faster than usual, as the Government reacts to the needs of the community – we’ve already seen changes to statutory sick pay and there is no doubt more to come.

Overall, be open with your workers and put in place good forms of communication.

For wider information you may find it useful to refer to:
ACAS: where there is guidance that is being continually updated. They are also running a series of free hour long webinars currently on four dates between 26 March and 7 April, details here.
NHS: Health-related guidance from the National Health Service.
Public Health England: guidance including, specific guidance for employers, educational and health-related organisations, and an option to receive updates directly

Broader issues to consider beyond legal obligations…

This time is extremely challenging for all organisations, some of which will be particularly impacted, as well as for the workers who may be losing their financial life-line. A strong collective spirit between workers will have wider positive impact beyond the workplace.  You may also encourage your workers to engage with their local communities, in a safe way, to help support the vulnerable.

We’re strong believers in good clear communication, and all that can be achieved by openly involving workers in the decisions that need to be made. Even more so when this is part of the fundamental values of the organisation. For the moment when you are ready to pause and take a few minutes away from the inevitable fire fighting, we thought we would share with you a blog post by Corporate Rebels that summarises some inspiring stories from organisations that have tackled the challenge of financial crisis openly and in collaboration with their workers, sometimes with results that surprised them.

This blog is intended as generic guidance only. It’s therefore not intended to replace specific legal advice. Nor are we responsible for the content of external websites to which this website links. Please also note that this article is current as of the date of its publication but this is currently constantly evolving!

Our comment

This is undoubtedly an incredibly difficult time for organisations and for individuals and there are many points to consider for employers in terms of their legal duties. We urge organisations to maintain a focus on their purpose and values as they tackle what will inevitably be very difficult challenges that lie ahead.