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Coronavirus – what happens in the event of social distancing or a lockdown?

19 March 2020

The government’s current guidance is that people should be limiting their contact with others – known as ‘social distancing’ – and, where possible, working from home. This measure has been recommended in an attempt to delay the spread of coronavirus in the hope that we can avoid the more extreme measure of an enforced government lockdown. Contingency planning is underway to sustain businesses during any period of social distancing or lockdown.

This article explains some of the key employment law issues that employers will need to think about when forming their plans.

Can we ask our employees to work from home?

Employers should check their contracts of employment to determine if they have a contractual right to ask employees to work from home. In any event, in the absence of a contractual clause, it would be a reasonable instruction in the circumstances to ask staff to work from home.

Are there any special measures we have to put in place for home workers?

If you do not have a Homeworking Policy in place, now is a good time to prepare one. It is important that staff know what is expected of them during any period of social distancing or lockdown. For example, a Homeworking Policy should contain rules about working hours and rest breaks.

A key issue to start thinking about now, particularly with compulsory Schools’ closure, is whether employees are set up to work from home. Do employees have their own computers or laptops (and other technology) at home that they can use or do they need to be supplied with it?

Employers need to look at the security of their IT systems when they are asking staff to log in from home. It is important that confidential information is kept secure and that data protection policies are adhered to during any period of home working.

What if an employee is sick during any period of home working?

If an employee is sick during a period of home working, they should report their sickness in line with their contract of employment. See our previous article about rights to sick pay. SSP will imminently be extended to day 1 of absence due to incapacity.

If our employees cannot work from home, do I still have to pay them?

Unless you have express (or there are implied) clauses in your contracts of employment that allow you to lay off staff or put them on short time working, then provided they are available to work, they will be entitled to be paid full pay. Some contracts have wide ranging ‘suspension’ powers, sometimes contained in ‘garden leave’ that can assist in this situation.

What is ‘lay off’ and ‘short time working’?

A lay off is a temporary suspension of work and pay, but maintains an employee’s employment status. Short time working allows an employer to reduce an employee’s hours of work, and therefore their salary. There are very complex rules that derive from 1970’s employment protection legislation which provide a framework of rights in which employers and employees can manage these challenging issues.

These options enable an employer to make cost-savings, whilst avoiding dismissals, for a temporary period of time. However, employers may only lay off employees or put them on short time working if the contract of employment allows them to do so through an express or implied term.

What are our options if we do not have lay off or short time working clauses but need to reduce our wage bill during social distancing or a lockdown?

Employers do have options if they cannot enforce lay offs or short time working. For example, they may ask staff to take a period of unpaid leave or agree to reduce hours and/or take a pay cut. Such changes cannot, in the absence of agreement, be quickly imposed and therefore employers will need to consult with staff to obtain their consent.

In some cases, employers may need to take long - term measures such as restructures and/or redundancies in order to sustain its viability over the next few months.

If you would like advice on any of these issues, or how to protect your business in the coming months, please call us on 01483 548500 or 01483 543210 or alternatively email enquiries@barlowrobbins.com or michelletudor@barlowrobbins.com or davidludlow@barlowrobbins.com

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