Question of the month: how should we adapt company policies in the face of coronavirus?

Employers need to consider how they will adapt to make sure policies and procedures are applied appropriately during the current circumstances.

Those employers that have shifted to remote working will be forced to consider the virus's impact on their day-to-day operations and how to continue operating as best as they can with staff working from home and/ or with social distancing measures in place.

Remote and home working are not new, although the current circumstances are without modern precedent.  Managing a remote working relationship can take some getting used to and will require flexibility and patience on the part of both employees and employers; more so in light of the sudden shift away from what was only days ago normal and familiar working practices for many.   

This article looks at some of the key areas for consideration.

Health & Safety and Welfare

The employer retains the obligation to ensure a safe place of work.  Risk assessments are a part of that but it is unlikely that these can be completed given the sudden shift.  None-the-less employers should still check:

• that employees feel that the work they are to do from home can be done safely; and
• the availability of any necessary equipment, and any reasonable adjustments.

Existing home work policies will usually cover issues relating to the provision of equipment, insurance, and any relevant financial contributions to internet provision, and to telephone and utility bills. Insurance in particular is important, as noted above, the employer still has a statutory responsibility for the safety of employees.  That includes reminding employees of basic hygiene in stopping the spread of Covid-19.     

Mental health and wellbeing are equally important. The shift to home working will impact on individuals in different ways depending on their personal circumstances. Existing protocols will need to adapt to ensure that out of sight is not out of mind.  There is a greater responsibility on managers to maintain regular contact with employees, including so as to ensure employees are not left feeling isolated and unsupported.

As a part of home working arrangements employers will also need to reconsider their position on facilitating and encouraging social interaction between their employees.  The 'water cooler' discussion does not naturally arise in a home working situation so some effort is needed to engineer such interactions.  There are a range of online platforms which can assist with ensuring positive communications.

Flexible Working

The current Covid-19 restriction will naturally create anxiety and stress for employees.  A particular element relates to childcare responsibilities which may also impact on the availability of employees to work from home.

As a part of establishing safe working conditions an assessment of working arrangements may be appropriate. Formal procedures exist for requesting flexible working, including dependent and other family leave entitlements.  Employers retain a discretion to fast track such processes, to be proactive in raising the issue (rather than waiting for an employee to trigger the procedure) for example as part of the home working risk assessment, and to agree working structures which do not fit the employer's normal pattern, such as wrap around working hours to accommodate  domestic arrangements.       

Holidays

Employers will need to check the specifics of their holiday policy, but many will make it clear that the employee must use their holiday in the holiday year in which it accrues and that this cannot be carried over to a following holiday year unless this is as the result of disability (and reasonable adjustment), sickness, a period of family leave (i.e. maternity, paternity or adoption leave) or at the employer's absolute discretion.

Although employers can choose whether or not to agree to holiday requests, this has to be measured against the employee's right to take holiday and a request should only be refused for a good reason.  Refusing holiday requests at any time may create tension.  It is important to try and manage expectations as much as possible. 

However there is currently a risk that employees will save their entitlement to the end of the holiday year, which means that employers could face logistical issues later with multiple conflicting holiday requests.

It is possible for employers to require employees to take statutory leave. As a starting point, employers should check the contract of employment to see if there are any contractual requirements for doing so. If not, employers will need to adhere to the statutory obligations in the Working Time Regulations 1998.

The regulations allow employers to require employees to take holidays on specified dates, provided that the employer provide notice in advance which is at least twice as long as the period of leave being imposed. There are no prescribed forms of notice, but as best practice employers should write to employees to set this out.

It appears that the most sensible thing for employers to do is to raise the issue of holiday with staff as early as possible, highlight the rights of the parties and forewarn employees that if they save up their holiday entitlement then they may struggle to take it when the current situation lifts.

On 27 March the government announced a relaxation of the Working Time Regulations to allow employees who have not taken all of their statutory annual leave entitlement due to COVID-19 to carry it over into the next 2 leave years. This change will apply to the 4 weeks annual leave granted by the regulations that can not normally be carried forward to another leave year. It is intended to ensure "staff can continue working in the national effort against the coronavirus without losing out on annual leave entitlement" and therefore is most likely to apply to key workers in sectors such as healthcare and food sales and distribution. Employees in other sectors may be expected to take annual leave as normal. 

Many employers will plan to use the government's Coronavirus Job Retention Scheme to keep employees on their books even though they have no work for them.  At present, in the absence of specific government guidance on the point, it appears that holiday entitlement will accrue for the period the employee is placed on furlough leave. Holiday pay is calculated on a weeks' pay and therefore it appears this should be paid at the normal rate. As such some employees may prefer to take paid leave at 100% of their normal pay whilst they can, if the alternative is to be furloughed at 80% pay or a lower percentage if they earn significantly more than the average salary cap of £2500 gross per month.

Disciplinary, capability and grievance procedures

Generally

No doubt there will be many employers who either were about to start or were already undertaking one or other of these procedures when the recent measures came in, requiring staff to stay at home.

The most immediate resolution to help employers proceed as planned will be for employers and staff to engage remotely via phone or video calls. However, not all employees will have the means to properly conduct these procedures remotely and indeed some may not have the desired privacy at home to properly conduct meetings and give or discuss evidence.

It may be possible to conduct elements of these processes via correspondence (e,g. written representations to be taken in to account by a disciplinary panel meeting virtually), though this may slow the process down and extra care will need to be taken to ensure the employer is taking the employee's evidence or points of view on board.

This guidance note is intended for application to employees who are working remotely/at home. It is not yet clear whether the proposed government Coronavirus Job Retention Scheme will permit employers to carry on with these procedures whilst the employee subject to them is furloughed. It is a requirement of the scheme that the employee is not permitted to be undertaking any work for the employer while furloughed and yet participating in one of these procedures is likely to be deemed work. In the absence of specific guidance it is advisable to complete outstanding processes before furloughing employees unless you are prepared to shelve the process temporarily.  

Disciplinary

Particularly with disciplinary procedures that may result in dismissal, employers will need to ensure that as far as possible the final decision and the process leading to that decision is fair, taking all current circumstances into account. These circumstances will include, for example, the coronavirus restrictions, government and medical advice, the impact of the virus on the employer and the employee and the resources of the employer. Also relevant is the issue of whether the employer can reasonably wait the lifting of current movement restrictions

To ensure a fair process in these circumstances, employers will need to focus on two main areas.

The first is the treatment of evidence. Given the current situation, offices and systems may be inaccessible meaning the proper sourcing and circulation of evidence is impossible. In a disciplinary situation, if current restrictions genuinely impact on the ability of the employee to understand and respond to the allegations, employers are best advised to pause the process. Where dismissal is contemplated it is especially important that the relevant decision makers have all relevant information available.

The second area is procedure. Employers should cater for employee representatives to participate on phone and video calls and to allow ways for the employee and their representative to confer privately. Likewise, employers need to ensure that the employee has the full opportunity to make their case in defence and to receive, review and comment on evidence. For some employers this will be relatively easy to do electronically, for others a view will have to be taken on what systems are in place, including post, to allow for this. Documents which include sensitive information should be sent securely, whether by email (password protected or encrypted) or by post (by special delivery). You should be aware of the changes to Royal Mail services due to coronavirus, which may impact on when documents are received.

Capability

The current situation will no doubt cause significant difficulties for employers who have put underperforming employees on performance improvement plans ('PIPs'). As employees switch to working from home there will inevitably be a period of transition needed for all employees to adapt to this and productivity is likely to be varied throughout.

Employers therefore need to consider what impact remote working will have on the employee's ability to meet the targets set out in the PIP and the support provided to them more generally. Thought should be given to amending those targets or extending the review period to take account of the effect of switching to remote working, particularly if the process is moving towards a decision to dismiss.

Grievances

A lack of access to evidence and inability to circulate information could also delay a grievance procedure. Ordinarily employers should avoid delays in grievance procedures and where delays are unreasonable, this could lead to employee resignations and claims for constructive dismissal. However, in situations where evidence is temporarily inaccessible, it will be inappropriate for employers to conclude the process.

For this reason employers will need to think carefully about whether evidence and information is accessible, whether it can be circulated and then document the situation in case an employee should decide to resign as a result of delay. It would also be useful to explain the position to the employee and to reassure them that as soon as it is possible to do so, the employer will proceed with the process.

Following this process will assist an employer's defence if an employee seeks to show that through delay the employer has committed a repudiatory breach of the employment contract. It will also make it harder for the employee to successfully claim constructive dismissal, particularly as the onus will be on the employee to prove the breach.  

Perhaps more so than with disciplinary procedures, where the employee should have access to and fully understand the evidence against them, employers need to be mindful that if systems become accessible (for instance if the employer's IT department are able to make relevant systems accessible) then grievance procedures should be resumed at that point.

Absence management

Employers must be clear as to how they will categorise absences from work and what they will pay employees. For example employees who are sick (either with Coronavirus or other reasons) will be absent on sick leave and receive SSP and contractual sick pay where it applies. Likewise if employees are self isolating on the advice of NHS 111 or because they or someone else in their household has Coronavirus symptoms they will be on sick leave and paid accordingly.

Employers may decide to adjust absence management procedures, either amending the point at which triggers take effect, or the actions taken as a result of an employee meeting a trigger, when absences are caused as a result of self-isolation or sickness absence resulting from Coronavirus

While taking a view on how to adjust absence management procedures in general,   employers should also be mindful of the statutory obligation to make reasonable adjustments for employees who have a condition which amounts to a disability in terms of the Equality Act 2010. This duty may apply in handling the absence of an employee with a condition that amounts to a disability where that employee is acting on government advice to shield themselves for 12 weeks and as a result they can not work.

The government guidance for employers on claiming employee’s wages through the Coronavirus Job Retention Scheme confirms employers can not furlough employees on sick leave or those self-isolating until they are fit to work. However employees who are shielding for 12 weeks in line with public health guidance can be placed on furlough.

Conclusion

The overall takeaway should be that employers do not need specialist coronavirus policies in place to adapt to the current circumstances. Rather, employers need to consider how best to maintain and adapt current procedures and policies.

This will depend on the communication and support systems in place to allow both employers and employees to comply with the procedures. Where staff handbooks are non-contractual, employers may vary policies and procedures to meet the current circumstances and, to the best of their ability, communicate the changes to the workforce.

If policies and procedures are contractual, employers will need to take more care in how they approach their adaptations as a result of the virus. Any change to contractual terms, particularly those that are less favourable to the employees, should be agreed with employees in advance otherwise the proposed changes may result in grievances and potentially resignations. However in such uncertain times the likelihood of employees resigning and then successfully bringing a claim for wrongful or unfair dismissal is low providing the proposed changes are necessary, reasonable and communicated to the work force so far as possible.

Employers should take advice on their individual circumstances – particularly where changes will affect 20 or more employees or collective agreements are in place.  Clearly, there is only so much employers can do with regard to adjusting disciplinary, capability and grievance procedures before they run the risk of either making an unfair decision or invoking a resignation from an employee. Employers are best advised to try and perform these procedures as they normally would and in accordance with existing policies, but substituting available technology where possible and ensuring that the procedure as a whole is fair.

If you would like to discuss any aspect of this article further, please contact Michael Crowther by email or 0113 204 5749. You can also keep up to date by following Wrigleys Solicitors on LinkedIn. The information in this article is necessarily of a general nature. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.