The reopening of the high street marked the beginning of normality returning for third sector organisations. And with the lockdown exit roadmap running on schedule, it should only be a matter of time before charities can resume more forms of fundraising, reinstate community services and reintroduce large events. But each transition through lockdown has had inevitable workforce implications. James Tamm, director of legal services at Ellis Whittam, shares ongoing challenges that CEOs may encounter as restrictions ease.
A narrated version of this blog is available at the bottom of the page
Depressed footfall or reduced demand for services may mean you are unable to offer everyone their ‘normal’ contractual hours straightaway. You may therefore wish to bring employees back on a part-time basis as you gradually resume your operations.
If you now want to ‘flexibly furlough’ employees who have been fully furloughed, you will need a new agreement with them. This must be consistent with employment law, kept for five years, and you should keep a record of hours worked/furloughed. You can of course continue to fully furlough employees, provided they don’t undertake any work for you while furloughed.
There is no minimum furlough period, and if you choose flexible furlough, employees can work for any amount of time and for any working pattern.
Fortunately for employers, the furlough scheme will now run until the end of September. Employees will continue to receive 80% of their wages for its duration. However, from July 2021, employers will need to contribute 10% towards this amount, with the government covering 70%. In August and September, this will change to a 20/60 per cent split respectively. Top-up to 100% levels is discretionary.
Vaccination is a hot topic and unchartered territory for most CEOs. The most common question is whether charities can require an employee to be vaccinated to protect other colleagues, customers and service users.
The crucial question is, ‘is the requirement to be vaccinated a reasonable management instruction?’ This will depend on several factors:
- The risk profile of the workplace. For example, while care homes may have a strong argument to make vaccination a condition of employment, it would be more difficult for office-based businesses to justify;
- The specifics of the workplace. It might be confined or unavoidably congested, making social distancing impossible (nonetheless, you must exhaust all other control measures before mandating vaccines);
- Whether the nature of the job makes vaccination necessary, for instance, if it involves overseas travel to countries that require entrants to be vaccinated;
- Whether your services would be severely affected if lots of employees went off sick with COVID-19; and
- Whether a risk assessment identifies vaccination as a necessary requirement.
Keep in mind that this is a high bar, especially as the government isn’t making vaccinations mandatory for the general public. What’s more, certain ‘excuses’ for refusing the vaccine will be legitimate, such as health issues, pregnancy, or religious/philosophical beliefs.
As with vaccinations, CEOs cannot force employees to take a test, but it may be a reasonable management instruction in some cases, with refusal triggering disciplinary action. Again, the question of reasonability will depend on the specifics, but as testing is not as invasive as vaccination, the bar here is undoubtedly lower.
Refusals to return to work
Another common issue is employees refusing to come into work due to safety concerns. This is particularly prevalent within the third sector.
Section 44 of the Employment Rights Act 1996 prevents employers from disciplining or dismissing employees (or docking/withholding their pay) for leaving or refusing to attend work in circumstances where they had a “reasonable belief” that the workplace presented a “serious and imminent danger”.
The employee’s belief only needs to be “reasonable”; it doesn’t have to be correct, nor does it matter that you may disagree with them. Employers must therefore approach these situations carefully.
Your first line of defence is to conduct a risk assessment and implement all recommendations, paying particular attention to high-risk employees. Share this with staff, and if an employee raises concerns, drill down into the specifics and answer their concerns with objective evidence. If there are any further measures that can be taken to ensure safety, discuss those with the employee and implement them.
If they are still adamant that they cannot attend work, options include unpaid leave or, potentially, disciplinary action for unauthorised absence. Though given the potential for automatically unfair dismissal claims, the latter should be a last resort.
The problems and opportunities presented by COVID-19 may impact how your employees work. If you are seeking to amend start and finish times or redeploy people to other roles – permanently or temporarily – there are potential contractual implications.
Generally, a contract can only be changed in line with its existing terms or by agreement, so start by looking at what it actually says, as what you are trying to achieve may already be permitted. If it isn’t, the quickest and easiest way to bring about a change is by negotiation and agreement.
If the change isn’t covered under the terms of the contract and agreement isn’t forthcoming, your options are limited. You could impose the change unilaterally, though this may give the employee grounds to sue for breach of contract. A better option is to dismiss and re-engage; this is still risky given it involves a dismissal and opens the door to unfair dismissal claims, but if you have attempted to negotiate first and have a solid business case, you may have a reasonable defence.