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workingmums.co.uk and Peninsula UK joined forces for a live session of questions on employment rights issues in the wake of the latest Government guidance.
workingmums.co.uk joined forces with HR experts Peninsula UK yesterday to answer questions about employment rights issues related to the COVID-19 pandemic.
Peninsula’s Kate Palmer led the session and covered a range of issues. The main ones, from the workingmums.co.uk’s side, involved childcare.
Following on from Government announcements earlier in the week, workers who cannot work from home are being ‘actively encouraged’ to go back to work. Palmer said employers should work with employees to come up with pragmatic solutions. The Government guidance outlines measures that employers can take in different sectors to ensure a safe return to work.
If employers cannot afford to furlough staff and need them back in the business, but they have no childcare she said that employers should discuss the issues with their employee and explore the extent of their childcare challenge.
That would include exploring whether they definitely could not work from home, whether changing their hours to evenings or weekends when childcare might be available might be possible and whether the individual had done all they could to find childcare. If they had and there was no way they could return to work it would be hard not to furlough them and it would generally be a better option for everyone than unpaid leave.
“Employers have to come up with a pragmatic and socially responsible way forward,” she said. They needed to think outside the box.
If employees wanted to reduce their hours due to childcare issues, they could request flexible working, she stated.
One question that came in via email was whether employers can stop home working if someone has been productively working from home with children present but doesn’t know want to send them to school. Palmer said that If the employer has been satisfied so far that working from home with children present is meeting the needs of the business, it may be difficult for them to claim that it no longer works simply because schools have re-opened.
Generally, she said, ‘choosing’ not to send children to school and therefore not being able to attend the workplace would normally be a difficult issue. However, because of the unprecedented circumstances, she said it may be appropriate for employers to be more lenient and find a compromise. Taking annual leave, parental leave, or another form of unpaid leave may be a solution, she said.
Another emailed question about childcare asked whether, if an employee stays furloughed due to childcare, their employer can employ somebody else to cover their role. Palmer said there is no guidance on an employer’s ability to recruit new employees to cover for someone who is furloughed. She stated: “Essentially, furlough is implemented where the employer has no work to provide and so hiring someone to cover for a furloughed worker may seem to run against the grain of furlough’s purpose.
However, because it appears that furlough can be used to cover a wider set of circumstances, it may be that new recruitment is possible. Still, employers would need to consider what happens with the ‘new’ employee once the furloughed employee is ready to return to work. It may be useful for an employer to bring in another existing furloughed worker and redeploy them to provide temporary cover.”
Palmer was also asked if pregnant women could return to work. She said if they were not categorised as vulnerable and as long as health and safety measures were in place there was no reason they could not return, but employer would need to discuss this with them and reassure them – see here also.
Another question asked by many was whether you can be made redundant if you have no childcare. Palmer said redundancy was about the role and if the role was still there you could not be made redundant. If employers sought to do so because you had not childcare you could sue them for unfair dismissal if you had more than two years’ service.
Transport and fear of public transport was a big issue. Palmer said employers were not obliged to sort out employees’ transport to work. That was their responsibility and it was individuals’ responsibility to follow government guidance on safety, for instance, wearing a face covering. Employers could stagger people’s hours to reduce peak time travel. They might want to prioritise those who don’t have to take public transport to come back first. Again, it was important for employers to have reassuring conversations with employees about health and safety.
Palmer also spoke about the new stipulations on annual leave. Annual leave can be taken by furloughed employees and employers can force furloughed employees to take it, providing they give the correct notice. The new guidance says that furloughed employees must be able to rest and relax on their annual leave. Palmer said that changes to the lockdown rules this week in England could make it difficult to argue that furloughed staff are not able to enjoy their free time.
She added that annual leave can be cancelled if the same amount of notice is given as the leave to be taken, for instance, if the employer is too busy, and that bank holidays can be taken on furlough leave. If it is not reasonable to take all your annual leave [5.6 weeks] this year, for instance, if you are a nurse who has to work during the pandemic and there is no cover or if taking your leave this year would have an impact on wider society in the context of the pandemic, you can carry over your leave to the next two years. This is unlikely to be the case for furloughed workers, said Palmer.
Asked if forcing furloughed workers to take leave if others were not treated similarly was discriminatory, Palmer said being on furlough was not a protected characteristic such as gender, and it could be deemed fair to enforce leave during furlough and not for those in work, as the latter were needed for the business.
Palmer was also asked the following:
– If people who are shielding should they be asked to come off furlough. Palmer said it was unclear if people would continue to be shielded after the initial 12-week period, but that it would be remiss not to furlough shielding employees.
– whether furloughed staff who were made redundant would be paid redundancy based on their contractual pay rather than their furlough pay. Palmer said they would.
– whether furlough could be used for publicly funded staff. She said it was not meant to fund publicly funded roles as it was not meant to be “a windfall” for employers who would then receive public money twice. However, if a role was only part funded by public money [ie to the tune of less than 25% of wages] they may be able to be furloughed.
– whether employers can impose cuts to your hours. Palmer said any changes to terms and conditions would need to be consulted on and agreement reached or employers could be in breach of contract.
Palmer said it was vital that employers showed leadership and had conversations with their staff to reassure them and that moving people from furlough was not just done by email but involved a proper conversation about the safety measures they had put in place and the challenges staff might face. The Health and Safety Executive had been given funding in anticipation of reporting on employers who failed to meet health and safety standards for return to work.
“Employers need to avoid being reported,” said Palmer. “Do not do things too quickly and compromise safety. Read the government guidance thoroughly,” she said, citing her own company’s example. They had introduced one entry point only, a one-way system, asked people to bring packed lunches that would not need to be stored in a fridge or reheated, put hand sanitiser in place and banned in-person meetings. “We all need to change our mindset and be socially responsible,” she stated.
The full video can be watched here.