Employment Confusion

Boris’ press conference on Saturday night addressed one key question and left another unanswered. In his late start, overturning of previous statements and an expression more hunted than Ronnie Biggs, the Prime Minister showed clearly that the pandemic holds the reins of power at present, not the Government.  On the other hand, after six months of press conferences, we are no nearer understanding why they won’t give the UK’s Chief Medical Officer a clicker for his own slides.

It is all very well extending the CJRS in the circumstances, of course, but doing so less than five hours before it was due to expire will inevitably leave employers considering the rightness or otherwise of decisions which they have been entitled and indeed obliged to take already by the Government’s earlier silence on key issues.  What if you have scrupulously followed the requirement to agree the contract variation necessary to claim under the Job Support Scheme, or if in anticipation of the ending of the CJRS you have already issued notices of redundancy?  How does this square with your previously-mandated efforts to winkle your remaining furloughed staff off the sofa and back to work, or from WFH back to the office?  How are you expected to preserve any credibility at all as employer in such circumstances?

  1. You can retract or defer the effective date of a redundancy notice, but only with the consent of the individual.  It is not yet clear whether the extended CJRS will cover money paid during or in lieu of any redundancy notice given by the employer.  The JSS would not and we suspect that the same will be true here, since any redundancy notices already given will have been served in the knowledge that that period would not be covered.  Similarly, while it appears that the extended CJRS can also be applied to people who have already been made redundant since 23 September but are now re-hired for the sole purpose of qualifying for this benefit, there are good reasons why employers might not want to do that.  These would include, in particular, the (currently) short duration of the extension and the consequent inevitability that almost as soon as the individual was re-hired, you would have to give him notice again and thereby probably lose the benefit of the scheme anyway.
  2. The “agreement” (employer notification plus employee silence) which you have just reached for the JSS should be broadly ignored.  Just make sure that in communications to staff around the extended CJRS, you state clearly that it will replace for its duration any prior notice to the employee about the JSS.  The likelihood of push-back is very small as the extended CJRS is more generous, but an agreement is an agreement in the end.  It may be best not to commit to the JSS applying even from December either – that is the Government’s intention now, but it is simply not in the driving seat here.
  3. Employers could be forgiven some confusion around the margins of who can/should/must now WFH and who can’t.  The messages coming out of Government have been mixed, even when seemingly trying to say the same thing.  WFH “if you can” is one thing, go in “if the job requires it” is another and this week’s instruction to WFH if you can do so “effectively” is something else again.  It means that as employer you can find support for your stance on WFH/RTO pretty much whatever it is.  However, it is important not to let semantics obscure the bigger picture.  If you either require or allow an employee to return to the workplace while current guidance persists and he subsequently becomes ill, you will be blamed.  It will not matter in the eyes of those affected or the baleful stare of the Court of Public Opinion what precautions you took to make the place COVID-secure or whether you left it to the employee’s discretion or even whether anyone can prove that he contracted COVID at work in the first place.  All the focus and burden of justification will be on you.  If that prospect makes you nervous, if the reality is that your employee could perform adequately from home (where “effectively” or “adequately” will be seen in the context of the pandemic, not a perfect-world 100% efficiency) and if nothing too ghastly happened during the first lockdown, then why take that risk?
  4. And what about the employees put on furlough many months ago who are at your urging all psyched up for a return to the office and a full salary this week, only to have their hopes and plans dashed at the last moment?  If they object to a continuation of their purdah, what options do you have?  Redundancy could be problematical because only last week you were inviting them back to work.  You would have to show that this new lockdown represents the tipping point between their role being viable (at least 33% of normal hours) or not.  That is not impossible, but quite a burden where it is only scheduled to last a month.  Unless you are willing to restore their pay in whole or part for the next month as a concession, therefore, your employees will be back on the capped 80% of salary despite any agreement reached with them to the contrary.  It does seem unlikely in the circumstances that many would claim constructive dismissal for the sake of the difference, but it is impossible to rule out an unlawful deductions claim if your language around the return to work has been clear and specific enough to have contractual effect (which it should have been if you were following last week’s guidance in relation to varying contracts to put people on the JSS).
  5. In normal times an employer taking these short-notice liberties with its employees could rightly expect to be pilloried for it.  No employee could reasonably be expected to tolerate this hokey-cokey approach to his work and pay, and yet at the moment that is exactly what employers are asking of their staff and for the most part getting.  It is quite clear to nearly all concerned that the pandemic is a vastly bigger issue than ordinary employee relations and shop-floor politics, and that resistance is futile.  But that won’t last, and at that point your staff will remember not so much what was done, as that was not within your control, but how it was done, as that was.  When hopes of a release and a new start are dashed with only hours to go, it becomes more than ever important to keep your employees aware of your care for them, that you have acted only out of compulsion or as a last resort and that you value their pragmatism, resilience and patience in the face of a force bigger than either of you.  You should be seen to encourage dialogue, to offer help to those for whom this new reversal may be a final straw in mental or financial health terms, and in whatever ways possible, to share their pain.  Whatever you have to do to keep the ship upright over the next month will be nothing unique to you, but doing it with visible empathy, care and courtesy should make the eventual return to normality much less acrimonious.