Contracts of Employment – what has the Coronavirus Pandemic taught us?

Employers have seen a number of issues raised as a result of the pandemic, from dealing with health and safety concerns, to navigating the furlough scheme with limited guidance and a surge in homeworking.

Given that the restrictions on how people live and work could continue for some time, now is a good time to consider future-proofing your documents and ensuring that going forward your contractual documents and policies are fit for purpose.

Briony McDermott, employment solicitor at Wake Smith, discusses.

“One of the first issues employers had to deal with was the recommendation for employees to work from home where possible.

“This has caused various issues for employers, from rolling out equipment to facilitate home working to dealing with grievances, disciplinaries and general HR issues remotely.

“Other issues have been raised from a data protection standpoint, especially where personal devices are used for work purposes or conference calls are taking place while other members of the household are present.

“Employers should be well versed in the requirement to conduct DSA assessments in the work place, but may be less up to speed with the need to conduct risk assessments for employees who are working remotely.

“While these issues need to be managed in the short term, they may also become longer-term issues for those employees who opt to work from home for the foreseeable future.

“Employment contracts should therefore be updated as necessary, and certain terms such as place of work may need to be renegotiated.”

In March, furlough scheme was introduced by the government to protect jobs with its Coronavirus Job Retention Scheme. The scheme encouraged employers to furlough their staff rather than make redundancies.

Briony added: “While some employers may have had a contractual right to ‘furlough’ or lay off staff most did not, and therefore had to seek agreement from affected employees to temporarily vary their contracts of employment. 

“Sickness absence and sick pay policies are unlikely to extend to employees who are self-isolating in accordance with government guidance but not unwell as this is not a situation that we have encountered previously.

“It would therefore be good practice to amend sickness absence provisions to set out expectations for employees who are either suffering from the virus, shielding or otherwise self-isolating as it is unclear how long the current situation will last for.

Updates employers may wish to think about are:

a homeworking policy;

an updated health and safety policy or a return to work policy that considers relevant matters in the workplace (e.g. masks, 1m+ distancing, safety equipment, cleaning, shared spaces, one-way systems);

amendments to disciplinary, grievance and performance management procedures to cater for remote working, for example, to allow for video conferencing, accompaniment, conduct of investigations;

amendments to sickness policies to deal with employees who are not sick but are self-isolating, quarantined after returning from abroad, or ‘shielding’

changes to contracts of employment such as including a right to lay off employees if work diminishes, or rights to alter working hours, the place of work, or to redeploy employees (e.g. to cover work if other employees are sick).

Employers should always take advice before making changes to contracts and policies. If this is not handled correctly, this could lead to employees claiming constructive dismissal on the basis that the employer has committed a fundamental breach of the employment contract.

Wake Smith is fully operational during the COVID-19 crisis.

For further advice on employment law matters contact Briony McDermott at briony.mcdermott@wake-smith.com

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