Post-lockdown: what are your employment rights?

Kate Palmer at Peninsula UK joined forces with for a Facebook Live update on post-lockdown employment rights.

Women with question marks surrounding her


Employers should not look to dismiss employees who cannot work because of childcare issues if they have done everything possible to arrange it, an employment rights webinar heard yesterday.

The webinar was led by Kate Palmer from HR experts Peninsula UK and was a collaboration between and Peninsula.

She said that if no childcare was available when employees were due back at work, employers should look at the furlough scheme and could also offer unpaid parental leave and annual leave and explore ways forward with employees such as flexible working or redeployment. Employees also had a responsibility to do all they could to find childcare.

Employees with over two years’ service who were dismissed because they lacked childcare would be able to claim unfair dismissal and potentially sex discrimination if they were mothers on the basis that mothers are more likely to be the primary carer, said Palmer.

“Employers still have to act within the realms of the law in a responsible and reasonable way. There is still a risk of legal claims,” she stated. She added that an increase in employment tribunal claims was anticipated as a result of the lockdown and emergence from it.

Test and trace

Palmer covered a range of different employment rights issues in the webinar, starting with the implications of the test and trace strategy announced this week. She said the contacts of those who showed symptoms would need to self isolate for 14 days and could claim Statutory Sick Pay [SSP] from day one. If they could continue to work from home they should do so, she added. And smaller employers [with 250 employees or less] could make use of the recently launched SSP rebate scheme to cover the costs.

Other updates this week included an announcement that car showrooms and outdoor retail in England would reopen from 1st June and non-essential retail in England would be able to return by mid-June. The Government also confirmed that primary schools [reception and years one and six] and nurseries in England will reopen “in a safe way” with secondary schools reopening from mid-June for some face-to-face contact for years 10 and 12.

Furlough and annual leave

Palmer said she expected advice to be published shortly on changes to the furlough scheme, including the introduction of part-time furlough. She answered questions about possible resentment between furloughed workers, part-time furloughed workers who got full-time wages and those working full time. She said employers should tackle this through strong leadership, good communications and an ability to objectively justify who they had placed on furlough and why.

She added that employees could take annual leave while on furlough, which should be paid at the full rate. Employers can force employees to take annual leave while they are on furlough as long as they give double the amount of notice as the period of leave they were seeking to enforce. One proviso is that employees taking leave should be able to rest and relax. Employers could also cancel leave if they give the same amount of notice as the leave period booked. This might be the case, for instance, if employers were worried about employees going abroad and having to face quarantine on their return if that would have a negative impact on the business.

While most employees can carry forward up to 1.6 weeks of their annual leave if they work full time, a small number who have been unable to take their leave this year due to the coronavirus pandemic will be able to carry the other four weeks of their leave over for the next two years. This would apply to those who have been too busy to take leave, whose employers cannot find temporary cover for them or whose leave would have impacted the wider response to the pandemic, for instance, nurses.

When it comes to redundancies, Palmer said employers should consider other efficiencies they could make to avoid these, for instance, pay freezes, stopping recruitment and changing bonus schemes if they are not contractual. All posts at risk of redundancy should be fully consulted and a sound rationale shown for why a particular role was selected.

Other issues

Other issues raised included:

  • What hours people on extended leave who returned on shorter hours should have their furlough pay based on. Palmer said it should be based on current contractual hours.
  • Whether an employee can be disciplined for behaving irresponsibly outside of work. Palmer said this would depend on circumstances, but, for instance, if an employee had disobeyed social distancing rules and could put work colleagues at risk formal action could be taken up to and including dismissal.
  • Whether an employer would be setting a difficult precedent if they paid an employee for babysitting costs. Palmer said employers might want to consider other support first, such as flexible working, work from home and redeployment as there was a potential that other members of staff would also seek help with childcare costs generally.
  • Whether employees with underlying health conditions who have to commute to work on public transport should be allowed to stay off work if they were critical to the business. Palmer said it was worth looking at other options first, such as taxis, and exploring the seriousness of the underlying conditions through careful conversation. If the employee, for instance, had mild asthma could you provide a face mask. “You have to explore the reasonableness of the request. If the employee is being unreasonable it could result in disciplinary action,” she said.
  • Whether parents should be asked to bring their children to work if they have no childcare. Palmer said this would depend on what the work involved.

*Watch the full webinar here.

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