Here at Avensure, we continue to bring our clients the latest in developments as the pandemic continues.
We have looked at examined the various forms of financial support available to businesses such as the Coronavirus Job Retention Scheme (CJRS/furlough scheme) and provided guidance on redundancy/lay-off & short time working.
Here we take a look at some of the frequently asked questions our experts are being asked by the clients we support.
I have an employee who is refusing to work. What do I do?
It will depend on the reasons for their refusal. Communication is key here, please avoid dismissing their concerns and simply demanding that they return to work.
If for example, an employee reasonably believes there is a danger or risk to their health from contracting the coronavirus and they are dismissed as a result of failing to attend work, this may amount to an automatic unfair dismissal, for which there is no qualifying service required and no cap on awards.
That is not to say that the mere threat of contracting the virus means that staff are able to refuse to work and you have to pay them but it is vital that you contact us for advice should you find yourself in this situation.
Please see our article which examines the employer’s responsibilities where an employee refuses to attend work for health and safety reasons here.
If they are refusing to travel on public transport this is a valid concern but one the employer has no control over. Look at options such as home working, varying shift start and finish times to reduce the risk of travelling at peak travel times. Both parties need to be reasonable here and be prepared to be flexible in their approach. Easier said than done and again it is important that any individual cases such as this are discussed with our experts.
Be mindful of employees who have underlying/long-term health conditions. Long term health conditions such as asthma, lung conditions like COPD, diabetes & cancer are likely to be classed as disabilities under the Equality Act, under which employers have a legal duty to implement reasonable adjustments.
If an employee is refusing to work without good reason this is unauthorised absence, for which they are not likely to be paid and may result in disciplinary action being taken against them. Please take advice before carrying out any formal action.
Can an employee insist they work from home?
It is tricky given the UK is in different degrees of restrictions and lockdowns but generally the advice is if you can work from home you should.
If your staff have been working from home and it is possible for you to continue to allow them to do so, then you should examine the reasonableness of any requests to insist that an employee return to their place of work, especially if they are in a clinically vulnerable group.
It is imperative that if employees are attending their place of work that they are doing so safely.
Please see the current government guidance on working from home here
What if an employee books annual leave but needs to self-isolate on their return?
There are restrictions on travel at the moment but where travel outside the UK is permitted again and where an employee is requesting leave and intends to travel where they know they will be asked to self-isolate on their return, they should factor this into their leave request.
For example, if they are staying in a country not on the safe travel corridor list for one week, they should be asking for 3 weeks leave from their employer to allow for the 14 day quarantine period. If you can’t agree to them taking three weeks leave then you can refuse their request.
If someone travels and whilst they are away discovers that the country they have visited has now been removed from the safe travel corridor list, the employer can either agree for them to tag on additional annual leave to cover some or all of the quarantine period or they will remain on authorised unpaid leave.
You cannot insist they return to work before the self-isolation/quarantine period ends. Both you and your employee will be breaking the law.
Please see our previous article on annual leave and quarantine here
My employees are asking to book extended periods of annual leave above the amount I would normally allow. Do I have to agree to this bearing in mind the annual leave year is drawing to a close?
Normal rules for the booking and authorising of annual leave apply. Any requests for annual leave should be considered on a case by case basis and in line with the needs of the business.
An employee can’t insist on taking annual leave nor can they dictate the amount of time they can take. If they want to request leave and have done so in line with your procedures on requesting annual leave, then allow this if you can. If you cannot accommodate the request, then you can turn the request down.
What if an employee has been contacted by track and trace, told to self-isolate but tries to return to work?
They cannot do this. They have a duty to inform you if they are told to self-isolate. Depending on the circumstances, this could give rise to disciplinary action and may be an allegation of gross misconduct.
However gross misconduct is rare- always seek advice before taking action. Please see our previous article on gross misconduct here.
Can an employee refuse to return from furlough because I have not given them enough notice?
No. You have the right to insist that your employee return to work when needed.
However, we do need to be reasonable, so if you can give some notice then aim to do so.
Can an employee refuse to wear a face covering?
Face coverings are mandatory in many sectors and areas of the UK now. If you have a member of staff who is refusing to wear a face covering, the first thing you need to establish is why they are refusing.
If it is merely because they don’t like wearing a face mask or visor, then that is not acceptable, and they must wear one. If they continue to refuse, they may face disciplinary action.
If they are refusing due to health reasons, such as a respiratory condition like asthma or anxiety related conditions, then you will need to look at adjustments because their condition is likely to be classed as a disability under the Equality Act.
Our experts can talk you through this.
What is happening with the Job Support Scheme which was scheduled to commence on 1st Nov?
The Job Support Scheme (JSS) is now postponed. If you have already contacted employees to seek their agreement to place them under the scheme you will need to contact our experts who will discuss your options with you and provide the necessary paperwork to inform them of the changes.
What is the situation regarding the extension to the furlough scheme announced on 31st Oct?
The Coronavirus Job Retention Scheme (CJRS or ‘furlough scheme’) was due to end on 31st October 2020. However due to the increased lockdown measures across the UK the government announced on 31st October that they will be extending the scheme until the end of November. It is not known whether the scheme will be extended beyond this date.
The rules of the scheme are as per the current rules but with some notable exceptions:
- A business can use furlough even if they have not used it before. It applies to business who are forced to close and those who are able to remain operational.
- An employee can be furloughed even if they have not been furloughed previously but they must have been on their employers PAYE payroll on 30 October 2020 and the employer must have made a PAYE Real Time Information (RTI) submission to HMRC between 20 March 2020 and 30 October 2020, notifying a payment of earnings for that employee. This is great news for employees who didn’t qualify previously due to the employment commencement dates and for those who were not furloughed by the previous cut-off date of 10th
- The scheme allows the employer to place staff on a temporary period of ‘furlough leave’, during which time they will not be required to work or they can use ‘’flexible furlough’’ where their staff are required to work fewer than their contractual working hours.
- Employees will receive 80% of their current salary for hours not worked, up to a maximum of £2,500.
- Employers will pay for any hours the employee works, plus employer National Insurance Contributions and pension contributions but only for the hours the employee does not work.
Can employees refuse to be placed on furlough for the first time in November or refuse to have their furlough extended? If I were to insist on it would this be a breach of contract or am I legally entitled to reduce their hours/wages?
You are never ‘entitled’ to reduce hours/pay and the extension of the furlough scheme does not supersede your obligations to adhere to the terms under the contract of employment. If you slash hours and pay without agreement, you are committing a contractual breach.
However, employers can seek agreement with their staff to temporarily vary their terms so they can claim under the furlough scheme for the first time or continue to claim by extending an employee’s furlough leave.
If an employee refuses then you will be faced with having to implement lay off/short time working or redundancy, which in most cases will mean employees are worse off, so hopefully they will agree.
Our experts can talk you through this, along with providing the bespoke paperwork you need and advise you on the appropriate action to take if you do encounter problems in gaining employee agreement.
And finally….. As always, there is no ‘one size fits all’ approach to any HR issue. Here at Avensure we tailor our advice to the needs of each business we support, taking account of the sector in which they operate with a view to providing practical and bespoke solutions.
There is no such thing as a silly question, our knowledgeable and friendly experts are here to help you. Please quote your Client Account Number on all correspondence and telephone calls. 24-hour client advice line: 0800 151 2935.