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Employment options in challenging times: advice for employers

We look at the changes your businesses may need to contemplate to be best positioned for the road to recovery.

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Lockdown has presented huge obstacles to company operations and profitability. Here are some aspects you may be considering to best position your business for the future.

Furlough

The government’s furlough scheme has given employers a breathing space. It’s currently been extended until the end of June, with proposals to taper it, rather than ending on a ‘cliff face’.  Other support may be put in place, including government assistance for part time working. Post lockdown, it’s likely we’ll see a patchwork of working patterns: part time, home working and staggered or reduced opening hours. Employers are thinking now as to steps they can take for the business going forward.

Changing terms and conditions

You might be thinking about changing some terms and conditions. This may include benefits, salary, bonus, working hours, or some of your company policies.

If any of the changes are part of the contract of employment, you need to follow a procedure for making the changes:

  • The most straightforward way is to seek and obtain the employees’ consent. Record it in writing to them.
  • If they don’t agree to the change, you’ll need to dismiss (giving the required notice) and re-engage on the new terms, using a fair procedure. But be aware that this route brings the risk of an unfair dismissal claim, if the employees have two years’ service, or a wrongful dismissal claim if you didn’t give the right amount of notice, so it’s a good idea to get advice.
  • You could try the option of unilaterally imposing the change – just telling the staff this is what now applies. But this can be risky on many fronts: employees can ‘work under protest’ and then bring claims for breach of contract or unlawful deduction of wages, if applicable. Or they could resign and claim constructive dismissal.
  • Be aware that if there are 20 or more employees involved in this proposed change of contract, and you intend to dismiss any who don’t agree to the change, you need to inform and consult them ( ‘collective consultation’) and notify the Secretary of State on the required form.

If the changes you want to make don’t form part of the contract of employment, the situation is easier:

  • This may apply to policies in the staff handbook, that can be amended from time to time.
  • You should confirm the change to the staff.
  • But be aware that a policy, such as a sickness policy, which may have started out as discretionary, can through time and custom become contractual.

Think carefully about proposed changes before you begin implementing. Whilst it may seem tempting to reduce sick pay to Statutory Sick Pay only, or reduce generous notice periods, it’s probably going to be hard to get acceptance from your staff, perhaps already feeling very vulnerable. Pushing through such changes and could harm employee relations.

You might agree with your employees that any changes should be time limited – for example, agreeing to reduced hours while the official government guidance recommends social distancing. Or agreeing the change to last for a fixed period of time. This may be more acceptable than a permanent change.

Your decisions and vulnerable people

Try not to make snap decisions. Consider beforehand if your decisions may be discriminatory, particularly with regards to women, ethnic minority groups, those with disabilities or older workers. Often these groups find themselves in a far more precarious position, already working part time or on temporary or zero hours contracts, with jobs less suitable for home working.  Women still bear the majority of caring responsibilities for children and older relatives. ACAS has reported a dramatic spike in calls to their helpline, whether from pregnant workers not being provided with suitable work, or disabled workers not being provided with reasonable adjustments, such as home working.

With any changes, do consider the effect on any employees who are disabled, for example those suffering from diabetes, and who are likely to suffer more severely from the effects of Covid-19.

Make sure that actions you take are thought through and not discriminatory.

Redundancy

Even in these difficult times, remember that usual redundancy procedures apply. You should use a fair procedure and have both individual consultation and collective consultation (if 20 or more are involved). There needs to be a fair application of objective selection criteria, applied to a fair pool or pools of employees. You must allow an appeal.

Think creatively around for ways to avoid redundancies. These could include:

  • Taking full advantage of government support
  • Alternative work, redeployment or retraining
  • Flexible or part time working
  • Reduction of remuneration and/or benefits
  • Sabbaticals or unpaid leave
  • Requiring staff to take holiday
  • Reducing the use of agency, temp and casual workers
  • Laying off, if you have the contractual right to do this

Think ahead creatively

Seeking agreement from your staff to changes is a positive and helps bring them along with you – that’s good for workplace relations and reduces the risk of expensive claims. Things will change and they will improve and you want to be ready to embrace that change. Contact sue.fairbairn@peacock-law.co.uk or our Employment team who can help answer your questions.

This article was written by Sue Fairbairn

Please note the contents contained in this article are for general guidance only. Legal advice should be sought before taking action in relation to specific matters.

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