Options other than furlough leave
In short, we see four: redundancies (voluntary or compulsory); short time working; exhausting holiday entitlement and emergency volunteer leave.
The word “redundancy” is often used to cover all manner of dismissals but in fact is defined in law. In short, redundancies may only occur where a business or workplace closes or intends to close; or where there is a reduced requirement for employees carrying out work of a particular kind.
There has been no relaxing of the usual rules around redundancy as a result of COVID-19 and therefore if you are considering making staff redundant, take advice. Those with over two years’ service should be taken through a full and fair consultation process and be paid their notice, holidays, statutory redundancy pay and any contractual entitlements – failure to do so risks claims. We appreciate the strain that many employers are under at the moment and that many employers will not have the time, money or resource to carry out the 'perfect’ process. We can however provide you with a list of dos and don’ts for a fixed fee which should help minimise the likelihood of successful claims.
2. Short time working
Short time working occurs where there is less work and an employee is given reduced days or hours of work and is only paid for those reduced days or hours. Unless you have an express contractual right to put someone on short time working (which in our experience is rare) you must obtain employees’ consent.
Short time working can be a quick and effective way to keep a business ticking over where there is still a need for staff albeit on reduced hours. You should however be aware that in specified circumstances set down in the legislation, employees with over two years’ service who are put on short time working for certain periods may be entitled to claim a statutory redundancy payment. Therefore if you’re thinking of implementing short time working for several weeks or months, give us a call.
For completeness, we note that one iteration of short time working, lay offs (which occur where there is no work and an employee receives no pay for a period of time) have been overtaken by furlough leave which is why we’re not covering lay off in this note.
3. Exhaust holiday entitlement
For those off sick:
Employees may elect to take annual leave whilst on sick leave if they wish (which would entitle them to full pay rather than SSP or no pay) but they cannot be compelled to by their employer.
Employees who are on sick leave should be permitted to reschedule their leave if they wish. That’s because sick leave is designed to allow employees a time to recover; annual leave is designed to allow an employee a period of rest, relaxation and leisure.
For those not off sick:
The position is less clear cut in relation to those not on sick leave. The usual rule is that employees can be instructed to take annual leave by their employer, provided adequate notice is given. There is a question around whether or not employers can instruct that leave be taken during periods of lockdown, when it is arguable that an employee is not able to enjoy a period of rest, relaxation and leisure.
On 27 March 2020, the Working Time (Coronavirus) (Amendment) Regulations 2020 were introduced. Those regulations provide that employees who have not taken all of their statutory annual leave (4 weeks for a full time employee) due to COVID-19 will be able to carry it over into the next two leave years. This suggests that employees are not expected to have to take annual leave where they cannot (because we are in lockdown), but further express guidance from the Government is needed to put this beyond doubt.
4. Emergency volunteer leave
Under Schedule 7 of the Coronavirus Act 2020, which is not yet in force, employees may volunteer to take Emergency Volunteer Leave. Emergency Volunteer Leave will allow employees to take 2, 3 or 4 weeks’ unpaid leave during a 16 week volunteering period, allowing workers to leave their main job and volunteer temporarily in the NHS or social care sector..
Employees will need to obtain an Emergency Volunteer Certificate from an appropriate authority, i.e. the Department of Health, local authority, or the NHS Commissioning Board, and give their employer 3 working days’ notice of their intention to take Emergency Volunteer Leave. It is anticipated that employers will not need to pay employees during this leave, however employees’ contracts of employments will otherwise remain intact and they will continue to accrue annual leave and be entitled to other benefits. The employees’ loss of earnings and travel and subsistence expenses will be paid from a UK wide compensation fund.
For completeness, we note that the Government guidance on furlough leave states that: "A furloughed employee can take part in volunteer work or training, as long as it does not provide services to or generate revenue for, or on behalf of your organisation." This makes clear that employees on furlough can do volunteer work. We assume that is intended to cover volunteering in the more general sense, rather than the volunteering covered by Emergency Volunteer Leave, which is expressly said to be unpaid.Back to news list