Q&A on business challenges for the new working norm

What are the business challenges and solutions for the new working norm?

As many businesses look to the future of what will be the new working norm, we consider some of the current challenges and practical and legal solutions, including for employers considering permanent changes in the way staff work.

On Wednesday 1 July we hosted a webinar with Oxfordshire Mind on Essential Business Planning Challenges For The New Working Norm, including the new flexible furlough regime in place as of 1 July. Thank you to everyone who was able to join us for the webinar. Out of this arose a number of questions that we were not able to get to during the session, which we answer below, as well as some new questions. We have updated our answers to the original questions since they were first published, because many employers are now looking forward and considering or planning permanent changes. You can download a recording of the webinar here.

Please also see the latest updates to our various COVID-19 articles:

• What does Furlough mean for Employers?
• What is Flexible Furlough and what does it mean for employers?
• Holiday pay and annual leave on Furlough
• Working safely during COVID-19
• The risks of making redundancies in Furlough
• New Government announcements about the Coronavirus Job Retention Scheme

Questions and answers from the live webinar

Q) COMMUNICATING WITH EMPLOYEES ON FURLOUGH HAS BEEN A DIFFICULT AREA AS IT HAS BEEN IMPORTANT TO AVOID TALKING WITH THEM ABOUT WORK. HOW IS THIS CHANGED IF EMPLOYEES ARE ON FLEXIBLE FURLOUGH AND THERE IS A NEED TO RAISE WORK QUERIES ON DAYS THEY ARE NOT WORKING?

This is clearly not as easy to manage when an employee is on flexible furlough. Our view would be it depends on what the “work query” is. If it is as simple as “have you already dealt with this/done that piece of work”, or “where did you leave x file/stock/other?”, a simple answer from the employee would be unlikely to be treated as “work”. There is no rule against contacting the employee. If it involves more than that, where the employee has to become involved in the work query, it is likely that it could involve work for the employer.

Don’t forget that the employee will have been instructed not to work the full amount of their normal hours. If, ultimately, the query is in fact work for the employer, then it is unlikely to count as furloughed hours, but can be added to the hours worked in the claim period. The Government guidance says: “When claiming for employees who are flexibly furloughed you should not claim until you are sure of the exact number of hours they will have worked during the claim period. This means that you should claim when you have certainty about the number of hours your employees are working during the claim period. If you claim in advance and your employee works for more hours than you have told us about, then you will have to pay some of the grant back to HMRC.” You will most likely correct any overclaiming in the next claim you make for the furlough grant.

Q) DO YOU THINK A MANAGER SHOULD LIAISE WITH / CONTACT MEMBERS OF THE TEAM MORE OFTEN THAN THEY WOULD IF THEY WERE IN THE OFFICE TOGETHER?

It depends how often you were in contact previously. But ideally, yes, a little more often but not such that it becomes onerous for either party! The ideal would be to set up Communication Guidance or Policy for remote working. This can be quite informal. Explain why you are doing this and ask team members what they would like/what do they think is a reasonable amount of contact. Virtual informal check-ins, coffee/lunch breaks can be included in this. E.g. one coffee break and one lunch break together per week. At Oxfordshire Mind, we have also been completing short Weekly Updates, which include sections on: ‘challenges’ and ‘what do I need help with’. Suggestions could also include a quick phone call instead of an email at times, to keep things human.

If structures like these are set up, it gives opportunity for you to notice any changes or concerns, as well as opportunities for teams to connect with and encourage each other.

Q) A MEMBER OF STAFF TOLD ME THAT THEY HAVEN’T HAD DAYS OFF SICK WORKING FROM HOME THAT THEY WOULD NORMALLY DO WHILST IN THE OFFICE, (DESPITE FEELING UNWELL), THEY WERE HAPPY THAT THEY WERE ABLE TO WORK.  SHOULD I BE ADVISING THAT THEY TAKE THE DAY OFF OR ENCOURAGE THEM TO WORK IF THEY FEEL ABLE?

If the member of staff is genuinely happy to work, then there should not be a problem. You may need to probe a little to ensure that they are not, in fact, working whilst actually sick or whether they can indeed manage their full hours.

This does present a position that you should reconsider the employee’s adjustments at work, and if home working entails full attendance then this can (with the employee’s agreement) be made a permanent arrangement. Also if there is to be office attendance, there should be a reconsideration of the employee’s needs.

Q) WORK FROM HOME IF YOU CAN – WHEN WILL THIS ADVICE END (IF AT ALL)?

At the time of the live webinar, the answer to this question was not known. However, on 17 July, the Prime Minister made a statement planning for the relaxation of the “work from home” advice:

“From 1 August, we will update our advice on going to work. Instead of government telling people to work from home, we are going to give employers more discretion, and ask them to make decisions about how their staff can work safely. That could mean of course continuing to work from home, which is one way of working safely and which has worked for many employers and employees. Or it could mean making workplaces safe by following Covid Secure guidelines. Whatever employers decide, they should consult closely with their employees, and only ask people to return to their place of work if it is safe. As we reopen our society and economy, it’s right that we give employers more discretion while continuing to ensure employees are kept safe.”

Whilst not abandoning the “work from home” guidance completely, the shift is moving from Government rules to employer discretion. This is a key moment for employers to engage with their staff at the same time as assessing each workplace for needs and safety. CIPD guidance urges employers to consider these three basic points before bringing their people back to the workplace: is it essential; is it sufficiently safe; and is it mutually agreed? Whilst it might seem desirable to make a swift return to normality, some employees will undoubtedly have concerns if they can still work from home, while others will be pushing for an early return. The possibility of a second wave and local lockdowns means employers should proceed with caution. It should, however, be seen as the opportunity to start thinking about the organisation’s needs and potential changes they may want to make for the longer term. Blake Morgan’s specialist team of employment, health & safety and data protection lawyers can help guide you in the considerations to take into account and how to implement a strategy of returning safely, making long-term arrangements for working from home, or a hybrid of both. .

Q) EMPLOYEES KEEP CANCELLING PRE-BOOKED HOLIDAY – CAN WE MAKE THEM TAKE IT? CONCERNED THAT ALL ENTITLEMENT WILL BE TRIED TO BE TAKEN IN LAST THREE MONTHS OF THE YEAR.

Essentially, yes. Employees can be given notice to take holiday under the Working Time Regulations 1998 by giving twice the amount of notice as the holiday to be taken. Or conversely they can be given notice not to take holiday from a particular date by giving the same amount of notice as the length of the holiday proposed. The contract and/or a holiday policy may also have similar provisions – be careful to check for collective agreements. If the business needs to ensure that holiday is spread out, it can use this method, taking care to ensure that the proper purpose of holiday (rest, relaxation and leisure) is adhered to. This Government guidance contains useful information about how COVID-19 affects the holiday of workers whether they are furloughed or not.

Q) WHAT DO WE DO WITH WORKING PARENTS IF THEY ARE WFH (AND HAVE BEEN SINCE LOCKDOWN STARTED) BUT CAN’T RETURN TO THE OFFICE BECAUSE THEIR CHILDREN CAN’T RETURN TO SCHOOL AND THERE ARE NO HOLIDAY CLUBS RUNNING?

Where the guidance is still to work from home where it is possible to do so, they should continue to work from home. If they cannot work from home and are having difficulties with childcare responsibilities, consideration can be given to furloughing or, if this is not possible, other types of leave such as holiday or parental leave. However, as the advice on working from home changes from 1 August, employers must continue to take these situations into account on a case by case basis. Where an employee has successfully worked from home, it would potentially be a breach of the implied term of mutual trust and confidence to require them to return to the workplace if holiday clubs aren’t running. As schools return in the Autumn, employers may need to be flexible if localised outbreaks occur and “bubbles”, classes, year groups or even entire schools are sent home. Employees may have the right to (unpaid) Time off for Dependents in these circumstances. Again, though, if staff can successfully work from home, flexible working requests may increasingly be made and a refusal may be difficult to justify. The key will be ongoing dialogue with individual employees and, where working from home is possible and acceptable, turning it into a positive which engenders a sense of loyalty and employee engagement.

Q) SHOULD YOU VARY A CONTRACT OF EMPLOYMENT IF YOU AGREE TO SOME DAYS WORKING AT HOME AND SOME DAYS WORKING IN THE OFFICE?  SHOULD WE WAIT TO SEE HOW THIS WORKS OUT BEFORE FORMALISING THE NEW PATTERN OF WORKING?

If, on the back of lockdown and working from home, you determine (and agree with the employee) that an employee can alter their workplace to a split between the office and their home – this should be recorded in the contract and you could issue a letter of variation. This is something that a number of employers are considering and any contractual variation will need to take into account several factors such as data protection/confidentiality at home, how the “place of work” is defined, as well as practical measures such health and safety assessments and equipment, and continued engagement/remote support measures. However, remember that this will be a process of analysing the needs of the role, the wishes of the employee as well as risk assessments etc. A move to change contracts without this kind of soft-touch consultation as a starting point is potentially risky from a legal perspective.

You do have the option of a temporary variation with a review point, however if this has worked for a number of months without issue you would need a good legitimate business reason to deny this as discussed.

Q) COULD I ASK, AN EMPLOYEE WHO HAS BEEN ISSUED WITH A STATEMENT OF FITNESS FOR WORK FOR A PHASED RETURN, E.G. TWO DAYS PER WEEK, CAN THEY BE FURLOUGHED FOR THE REMAINING THREE DAYS?

This was answered in the Q&A. At the moment we cannot see a reason for an employee not to be furloughed for the remaining three days if they are entitled to be flexibly furloughed, as employers have the discretion to place sick employees on furlough. However, employers should ensure that furlough claims are not abusive or contrary to the exceptional purpose of the scheme.

Q) WHERE DO I STAND IF A TEAM MEMBER COMING BACK FROM FURLOUGH ONTO FLEXIBLE FURLOUGH, ARGUES THEY WANT TO WORK FROM HOME AND NOT IN THE WORK PLACE?

If they are able to work from home then despite the shift to employer discretion, consideration should be given to this. If you are of the view you need them in the office (and can set out why you believe this as per the CIPD guidance) then as discussed you must consider what risk assessments you have undertaken and what steps you have taken to make the workplace a safe working environment. Remember the individual’s personal circumstances and reasonable belief about dangers at the workplace will need to be considered and discussed (see our answer in the webinar as to the legal basis of potential health and safety detriment or dismissal claims). As discussed you may face the issue whereby you believe that you have addressed their concerns, provided a safe working environment and their refusal is unreasonable – legal advice should be taken before taking any further steps if you believe this is the case.

Q) CAN WE BRING BACK FURLOUGHED STAFF TO ALLOW OTHER STAFF TO TAKE HOLIDAY? DO THOSE RETURNING FURLOUGHED STAFF HAVE TO RETURN TO EXACTLY THE SAME ROLE OR COULD THERE BE SOME TEMPORARY VARIATION?

There’s no reason why furloughed staff cannot be brought back to enable other staff to take holiday. It will, however depend on consultation with the staff being returned if they raise any objections. As to varying roles, temporary variation may be allowed in the contract, but it will depend how different it is from their current role it is (i.e. is it a loss of status / demotion etc) and you should seek agreement for this before enacting it on the employee (or could face potential grievances etc). Note that the guidance on holiday has been updated to state that employees should not be placed on furlough purely for a period of holiday.

Q) A MEMBER OF OUR STAFF WISHES TO CARRY FORWARD HOLIDAY ACCRUED DURING FURLOUGH INTO THE NEXT HOLIDAY YEAR BECAUSE OUR EMPLOYEE’S PARTNER/SPOUSE IS A KEY WORKER (WITH A DIFFERENT EMPLOYER) AND CANNOT NOW TAKE ANY HOLIDAY BEFORE OUR EMPLOYEE’S HOLIDAY YEAR ENDS. IS IT ‘REASONABLY PRACTICABLE’ FOR OUR EMPLOYEE TO TAKE HOLIDAY IN THE CORRECT HOLIDAY YEAR?

The situation of the employee’s partner/spouse is not likely to amount to a reason for them not to take leave in their own leave year. In fact, employers are encouraged to ensure employees take leave in the leave year. The amendments to the Working Time Regulations envisage a scenario where an employee is perhaps unable to take holiday due to their own increased workloads. The Government guidance here is very useful.

Practically though you may wish to allow the employee carrying over their holiday.

Further questions and answers

Q) MEMBERS OF STAFF ARE RETURNING FROM ABROAD TO FIND THEY NOW HAVE TO QUARANTINE. WHAT IS THE POSITION?

This is likely to be a topical issue well into October as countries struggle to keep infection levels under control. We have already seen quarantine imposed for those returning from Spain, with Luxembourg and Belgium likely to follow and the Government keeping a “close eye” on Croatia. Perhaps surprisingly (unlike someone who has COVID-19 symptoms, is isolating because of someone in their household with symptoms, or is isolating under the Test and Trace scheme), those required to quarantine on entering or returning to the UK are not entitled to Statutory Sick Pay. If possible, they could work from home, or they could be placed on furlough subject to having been placed on furlough for the full three weeks between 1 March and 30 June – this is unlikely to be contrary to the revised purpose of the furlough scheme as specified in the third Treasury Direction of 25 June. Otherwise, consideration could be given to taking more annual leave or other types of leave. This will be down to the discretion of the employer but as a last resort the Government have said that staff may be entitled to universal credit.

Q) IF WE HAVE OVERCLAIMED UNDER THE FURLOUGH SCHEME, WHAT SHOULD WE DO?

Claim submissions now ask employers if they need to correct errors in previous claims made. If employers knowingly defraud HMRC there could be criminal prosecutions. Early on HMRC put in place an online portal for employees and the public to report suspected fraud under the scheme. There have been thousands of reports of suspected fraud with a number relating to employers asking employees to work while furloughed, and the first arrests for furlough fraud have been made. In addition, however, the Finance Act 2020 received Royal Assent on 22^nd July 2020 and includes provisions for:

• repayment of CJRS payments which an employer was not entitled to;
• a requirement to notify HMRC of any such amounts the employer was not entitled to within 90 days of the later of:
  • the Act being passed (90 days after 22 July is 20 October 2020); or
  • the date when, having previously been entitled, the employer ceases to be entitled to such payments, or, in any other case, the date such payments were received;
• strict penalties in cases where the employer knew they were not entitled to CJRS payments at the time they were received, or alternatively, if they were originally entitled to such payments, at the time the employer knew that they ceased to be entitled to them. Lesser penalties may be applied if there has been a non-deliberate failure to notify/repay, but HMRC has produced this guidance page which confirms it will not actively be looking for innocent errors.

Please do not hesitate to contact us for further assistance on any of the above. In particular, as we progress through the new working norm, Blake Morgan’s specialist teams of employment, health & safety and data protection lawyers have experience in advising on the considerations to take into account for implementing a strategy of returning safely, making long-term arrangements for working from home, or a hybrid of both.

This Q&A was first published on 6 July and last updated on 4 August.