A need for fairness in the extraordinary times we are living in

The phrase ‘these are unprecedented times’ has been much used recently but it should not become a convenient excuse to treat employees unfairly.

The coronavirus (Covid-19) pandemic has changed many aspects of all of our lives and had a devastating impact on the world of work.

At the time of writing the death toll in England from Covid-19 stood at more than 41,000 after it was revised by the government (1)

The deadly virus has prevented millions of people from going to work and triggered a major job crisis.

Large numbers of employees now work from home, employment contracts are being reviewed and amended, over seven million people remain on furlough, tens of thousands of people are being made redundant and the UK is in recession.

The UK faces its worst outlook for jobs in nearly 30 years, according to a survey published by recruitment firm Manpower.

In the study nearly half of employers reported that 50 per cent or more of their normal business activities have been suspended as a result of coronavirus (2).

Such large and drastic changes will have significant ramifications for employees.

These are without a doubt ‘unprecedented times’ – but there remains a need for employers to be fair and reasonable in any processes it conducts or any changes it wishes to implement as a result.

What should employers do and what can employees expect in such circumstances?

Working from home

ACAS has produced guidance that says employers should (3):

• talk to their employees and workers about how they might improve working from home arrangements.
• continue to consider which roles and tasks can be done from home – this might involve doing things differently and not assuming a role cannot be based at home.
• support employees to adjust to remote working.
• consider individual employees' needs, for example anyone with childcare responsibilities, a long-term health condition or a disability.
• write down the arrangements that have been agreed so everyone’s clear.

Changing terms and conditions

An employee’s statutory employment rights remain unchanged (4). However, an employer can make a change (‘variation’) to an employment contract if:

• there’s something in the contract that allows the change (usually called a ‘flexibility clause’)
• the employee agrees to the change
• the employee’s representatives agree to the change (for example, a trade union)

An employer can force a new contract on employees, although this should be a last resort and could lead to legal action.

Redundancy

An employee who has two years’ continuous service has the same redundancy rights, including redundancy pay.

Employers must still follow a fair redundancy process (5). Consultation with employees can be done remotely, over the phone or using video or conference-calling technology.

An employer making an employee redundant must still:

• tell them a minimum amount of time in advance (give notice)
• keep paying them until they leave the  job.
• give redundancy pay, if they have the right to it 

Disciplinary and Grievances

The law and the ACAS Code of Practice on disciplinary and grievance procedures still apply. The pandemic does not permit employers to depart from or fail to follow proper procedures.

ACAS has updated its guidance for conducting both the disciplinary and grievance process in the current climate (6). Key parts of the guidance include:

• Employees on temporary leave (‘furlough’) can still raise a grievance and take part in a disciplinary or grievance investigation or hearing.

• Processes must be carried out in a way that follows public health guidelines around social distancing and the closure or phased re-opening of certain workplaces.

• Employers should try to find a safe, fair and reasonable way to go ahead with procedures. If this is not possible, they should consider if it might be fair to suspend a procedure.

• It's important to consider the individual circumstances and sensitivity of each case when deciding how to proceed.

• Video meetings may need to be used for any investigation interviews and hearings if a procedure is carried out remotely, as long as the procedure is still fair and reasonable.

Employers must implement new structures, terms and conditions and ways of working in a fair and reasonable manner.

To dispense with fairness and cut corners and seek to simply rely on a defence of ‘these are unprecedented times’ is highly likely to prove costly, should the matter ever reach an employment tribunal.

References:

(1) Death toll in England from Covid-19 stood at more than 41,000 after it was revised [Internet] www.bbc.co.uk [Cited 17/08/2020]  https://www.bbc.co.uk/news/health-53722711

(2) Employers reported that 50 per cent or more of their normal business activities have been suspended [Internet] www.manpowergroup.co.uk [Cited 17/08/2020] https://www.manpowergroup.co.uk/wp-content/uploads/2020/06/meos_q320_pressrelease_national.pdf.

(3) Work from home [Internet] www.acas.org.uk [Cited 17/08/2020] https://www.acas.org.uk/working-from-home

(4) Changing terms and conditions [Internet] www.gov.uk [Cited 17/08/2020] https://www.gov.uk/your-employment-contract-how-it-can-be-changed#:~:text=You%20must%20get%20an%20employee's,explain%20the%20reasons%20for%20changes

(5) fair redundancy process [Internet] www.citizensadvice.org.uk [Cited 17/08/2020]  https://www.citizensadvice.org.uk/work/leaving-a-job/redundancy/check-if-your-redundancy-is-fair/fair-redundancy-process/

(6) Disciplinary and Grievances [Internet] www.acas.org.uk  [Cited 17/08/2020] https://www.acas.org.uk/disciplinary-grievance-procedures-during-coronavirus

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