Employment Barrister Discusses Less Obvious Pitfalls for Employers to avoid in COVID-19 Crisis

Trinity Employment, Business & Property barrister, Andrew Crammond discusses some of the less obvious challenges and pitfalls that employers can avoid during the Coronavirus crisis:

Unfortunately, it is a reality in the current COVID-19 pandemic crisis that employers are facing difficult decisions regarding their employees. These are testing times for employers and employees.

Employers across the UK are making important decisions, including whether to make an employee redundant, to offer them short working / reduced hours, to negotiate reduced pay or to try to make use of furloughing employees to benefit from the Government’s Coronavirus Job Retention Scheme.

In the circumstances, it may be tempting for employers to make quick decisions without following much (if any) process. Employers would be sensible to avoid taking this approach where they are able. Indeed, many employment lawyers have already written numerous articles providing cautions to employers of what they need to do to avoid claims for breach of contract, unauthorised deductions of wages (such as when an employee’s pay is reduced, not paid or is cut by 20% when furloughing an employee) and unfair dismissal. Those lawyers are right to provide such cautions.

Whilst undoubtedly these are unique and difficult times, proper processes still need to be followed. Employers should be asking questions like:

  • who and how should we decide who to make redundant or furlough?
  • what consultation do we need to undertake in order to do so?
  • what documentation do we need to prepare at every stage?
  • what documentation do we need to provide to employees and what should it say?

Failure to properly consider the same or to undertake proper process may lead to employment tribunal claims, further unrest in the workplace or the breakdown of solid industrial relations.

But, what about the other less obvious issues which may arise when employers are making decisions in the current circumstances?

Even in times of crisis like the present, employees, workers and others still have rights pursuant to the Equality Act 2010. Employees still have rights not to be subject to detriment or being automatically unfairly dismissed under the Employment Rights Act 1996 as a result of, for example, whistleblowing or raising complaints relating to health and safety in the workplace. Some rights, including under the Equality Act 2010 and the right not to suffer detriment under the Employment Rights Act 1996, extend beyond employees to workers and many such rights do not require an employee to have any qualifying length of service at all. Moreover, awards for many claims can be uncapped and may, in many circumstances, include substantial awards for injury to feelings.

The importance of getting it right therefore remains significant and cannot be overstated.

Possible examples of less obvious employment issues arising for employers and employees in the current COVID-19 crisis include:

  • discrimination against employees as a result of a protected characteristic (including characteristics such as age, race and disability) in the way that decisions are made as to who to make redundant or put on furlough;
  • subjecting employees to redundancy (dismissal), furlough leave (and/or reduced pay) or other detriment because they complained about the working conditions not being safe at work, refused to work in the working conditions as they reasonably believed them to be dangerous or because they complained that the employer or a fellow employee was not following the 2 metre social distancing rule;
  • disability discrimination and the need for reasonable adjustments to continue to be made for employees who are disabled and who are now required to work from home;
  • indirect sex discrimination of women who are primary carers of children (not in key worker roles) and who are unable to work full time (or at all) due to caring commitments as a result of recent school closures;
  • pregnancy discrimination for those affected by the Government’s guidance for pregnant employees.

The above list of examples is far from exhaustive. The above is not intended to be a blanket guidance or legal advice and should not be relied upon as such. However, it ought to assist in providing some guidance and helping employers and employees to identify possible, less obvious issues which may arise in the current difficult circumstances.

At Trinity Chambers, regardless of which side you are on, we are able to provide support tailored to meet your needs and circumstances. We are committed to remote working and are able to provide assistance across all aspects of any employment problem you might face.

In response to the escalating Coronavirus crisis, Andrew, other barristers in Chambers and staff are committed to providing as much assistance as possible, including urgent advice, online resources and other support, during these challenging and unprecedented times, as such Trinity have a dedicated section of the website focused on COVID-19.

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