Issues bred from COVID-19 surrounding employment are some of the most vital, as peoples livelihoods may be affected.


This article aims to answer some of the frequently asked questions we have seen to do with coronavirus and employment.


Can an employer lay off employees?


The virus has caused countless businesses to lose revenue. Therefore, the brief answer to this question is yes; however, the process of selecting and deciding which employees’ get the cut has to be fair and transparent, otherwise, it may result in unlawful dismissal.


When making such decisions, the employer may have to take into consideration factors like each relevant employee’s age, qualification, performance, position, and location. If prompted, the employer may have to give adequate reasons as to why one is laid off and another not.


Can an employer an put employee on furlough?


Of course, provided they are eligible; however, once again the selection process will have to be reasonable and the criteria transparent. The employer may have to consider the impact of furlough leave on relevant employees as well as the company’s needs. It can never be a random selection; otherwise, it may of course lead to complaints and even constructive dismissal.


How does the UK’s furlough scheme work?


Companies can now furlough employees rather than fire them. Through this scheme, the government will pay at least 80 per cent of the furloughed employee’s regular monthly wages, up to a maximum of £2,500 per month. Anyone that has been on their employer’s PAYE payroll before or on 28 February 2020 can be furloughed and claim for their wages through the Coronavirus Job Retention Scheme. This includes people on zero hour’s contracts and those working flexibly.


Employers may inform their employees they are being furloughed, and in some cases employees may volunteer for it.



Can an employer request an employee come to work during this time?


The answer is yes, provided that the business requires them; however, the employer does have duty to consider employees’ health and safety. This includes considering whether homeworking can be a possibility and alternative. This consideration is part of the employer’s duty not only to comply with the government guidance that unless it is essential, people should not travel to work, but also to protect employees from unnecessary harm. Any decision to request employees to come to work will have to be reasonable and proportionate. Even if there is a genuine and essential need for employees to come to work, the employer still has a duty to consider how to protect employees’ health and safety at workplace.


Sanitary hand-wash, face masks, protective gloves and other equipment should be made available to employees if requested. If not all the employees are required to come to work, a fair, reasonable and transparent selection process will have to be carried out to decide who should be requested to come to work, how frequently and on what basis.


If the above are not complied with, there may be risk for the employer to be sued for personal injuries and/or constructive dismissal.


Can employees refuse to come to work when requested?


The simple answer may be a no, provided the employer has acted reasonably as listed above. If the government has not ordered the employer to shut down and there is an essential need for the employer to continue to run the business, it will be difficult for employees to rely on the force majeure clause to refuse to work.


It is likely to be a material breach of the employee’s contract with the employer, which may entitle the employer to dismiss the employee with notice or even summarily. Of course, as stated above, if the employer’s decision to request the employee to come to work is unreasonable, disproportionate and flawed, it may give rise to a ground of constructive dismissal for employees to challenge the employer’s request.


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