Under the original furlough scheme, the government paid 80% of the wages of people who were furloughed, subject to a cap of £2,500 pcm. However, there was still a direct cost to employers in furloughing staff, as they had to continue making pension and national insurance contributions.
From 1 July, employers have had to contribute 10 per cent of the wages of those on furlough, with the proportion rising to 20 per cent in August and September. The Institute of Fiscal Studies has projected that it will cost an employer £489 in August and September to keep a member of staff on furlough.
Both the Chancellor and the Prime Minister insist that they do not want to extend furlough again and the government has recommended a gradual return to offices for those employers that choose to implement a return now. It is likely that between now and the end of September, as more people will return to their workplace, employers will have several issues to consider.
Safety at work
Employers having a duty of care to their staff to ensure that both safe working environments and safe systems of working is nothing new.
If an employee contracts COVID-19, an employer could be potentially liable. However, the employee would have to show that the employer was negligent in some way and that the negligence caused or materially contributed to the employee contracting COVID-19. To rebut any potential liability, employers should ensure that they comply with government guidelines.
The government has issued specific guidance on ensuring a COVID secure workplace. Its key messages are that employers should:
- carry out risk assessments
- ensure adequate ventilation
- clean more often
- exclude workers and customers who have COVID-19 symptoms
- enable people to check in
- communicate and train
Interestingly, social distancing and face coverings are no longer required although they are encouraged.
Returning to the office
If an employee is required to work from a particular office or site and that place is safe, an employee could face disciplinary action, and ultimately dismissal, should they refuse to return to work when asked to do so.
Nevertheless, care needs to be taken with certain groups of employees. For example, some employees may have a disability that makes them vulnerable and continuing to work from home may be considered a reasonable adjustment.
Whatever the employer’s actual rights are in relation to mandating a place of work, regard ought to be given to employee relations. An employer is more likely to secure co-operation if they take a consultative approach with staff and if ultimately that fails, at least they will have laid the groundwork for showing that they acted reasonably.
Compelling employees to be vaccinated
Encouraging vaccination among employees is one way to reduce the risks posed by COVID-19. Public Health England has published guidance for employers on how to go about this.
Of course, there is a difference between encouraging vaccine take up and making vaccination a condition of employment.
From October 2021, anyone working in a Care Quality Commission registered care home in England must have received two COVID-19 vaccine doses unless they have a medical exemption. However, this requirement is exceptional and its implementation in non-care/medical environments has not yet been tested in law.
The key issue with trying to compel employees to take a vaccination is the risk of dismissing employees who refuse. Employees with more than two years’ service have the right to not be unfairly dismissed and employees who have protected characteristics have the potential to bring discrimination claims regardless of length of service.
Requiring new employees to be vaccinated as a condition of employment is slightly less risky because new employees will not have two years’ service, but they could still potentially bring discrimination claims if they have protected characteristics.
If you have any queries regarding this or any other employment matter, please do not hesitate to contact a member of the team
