Employment Rights During COVID-19

COVID-19 has caused disruption to the lives of millions around the world. The job sector has been hit the hardest by the pandemic. As of 16th August 2020, 9.6 million jobs have been furloughed [1] with many individuals coming to the realisation that there may be no job to return to once the worst of the pandemic was over.

COVID-19 has changed the way in which people work, possibly forever. Social distancing in the office, staggered coffee breaks and a reduction in numbers of staff on site are just some of the measures employers have implemented across the United Kingdom. Employees have a detailed set of rights that employers are legally bound to follow. With the world of work changed beyond recognition, it is worth thinking about employment rights during COVID-19.

Have employment rights changed?
To what extent have the employment rights been affected?
Which employment rights can one claim as during the pandemic?

This article looks at employment rights during COVID-19 and aims to provide clarity in contrast to the confusion and sense of fear which surrounds working in a global pandemic.

What are employment rights?

By law, all workers have a number of rights that have been carefully laid down to ensure that all individuals are treated fairly by their employers. These rights have been given to employees and workers by state law in the UK. Employment rights include getting the National Minimum Wage, the Statutory Minimum Level of paid holiday and the Statutory Minimum Length of rest breaks. While statutory rights form the basis for fair treatment in the workplace, specific employee rights may vary slightly depending on the type of job one is hired for and the arrangement with the employer along with a few other variables.

Working during COVID-19

Current government’s guidelines instruct the employers and employees to work from home.

Employers are expected to support their workforce to help ensure positive work from home experiences. This is likely to include agreeing to more flexible ways of working.

ACAS [2], the Advisory, Conciliation and Arbitration Service, provides guidelines for employees and employers. ACAS has released advice for employers, for example: when working from home, the employer should:

- Pay remuneration as usual;

- Keep in regular contact with employees;

- Check on employees’ health and wellbeing.

Whether an employee can work from home will depend on the nature of the employer’s business and also on the employee's particular role in that business.

Wage and pay

If an individual continues to carry out their normal employed role, including working from home in line with current government guidance, they should continue to receive normal pay from the employer.

If, however, the employees have no work to perform, the government’s 'Coronavirus Job Retention Scheme' may be available to help. This scheme will allow the employer to access financial support from the government to continue paying the wages of its employees who are temporarily unable to work because there is no work for them to do. These employees are called “furloughed” workers.

Under the scheme, HMRC will pay to the employer 80% of a furloughed workers' wage costs, up to a maximum of £2,500 per month. It is up to the employer whether they pay the rest of the wage - they do not have to pay the rest.

If the contract with a current employer allows, an employee may also take on employment with a new employer whilst furloughed by the current employer. This will not affect their furlough pay from their current employer.

If an employee has been furloughed, they have the same employment rights as they previously held. This includes maternity rights, other parental rights, rights against unfair dismissal and rights to redundancy payments.

Change in terms of the employment

It is possible that, due to the impact of COVID-19 on its business, an employer might try to change some of the terms of employment, such as an employees hours of work, duties, pay, benefits etc.

Changes to terms of employment cannot just be imposed by the employer without an employees agreement. Any proposed changes should be discussed with the employee.

Lay-offs and Short-time working

Being “laid off” is a term used to describe if you are off work for at least one working day in this situation. “Short-time working” is when an employees hours are cut.

If an employer does intend to reduce working hours by laying off or making an employee work short-time and to also reduce or withhold pay unless there is a clause in the contract of employment which allows the employer to do this. Your employer may not be acting unlawfully in breach of contract, particularly if they do not pay full normal pay.

Health and safety

Employers have a legal duty to safeguard their employees’ welfare, health and safety.

This includes a duty to carry out risk assessments in order to control the risks around COVID-19.

If the employer breaches its duties, and as a result, an employee suffers injury or damage, they may have a claim for personal injury.

Taking Legal Action

If the employer has breached an employees legal employment rights, you may have a legal claim and be entitled to compensation. Most employment law claims are brought in the employment tribunal and usually have a deadline of three months less one day in which to start the process of bringing a claim.

The most common employment claims to arise during the COVID-19 crisis are likely to be for:

- unpaid wages/remunerations (where your wages/remunerations are reduced or not paid at all);

- unfair dismissal (if you have over two years’ employment, in most cases – there are a few exceptions where you do not need two years’ employment);

- discrimination;

- redundancy in payments.

It is advised that an employee seek legal advice if they wish to bring a legal claim.

COVID-19 has changed the way people work forever. Social distancing in the office, staggered coffee breaks and a reduction in numbers of staff on site are just some of the measure’s employers have implemented across the United Kingdom. COVID-19 should not be used as a hurdle by employers to deprive employees of their employment rights.

References

[1] Gov.uk (2020), HMRC coronavirus (COVID-19) statistics, Available at:

https://www.gov.uk/government/collections/hmrc-coronavirus-covid-19-statistics

[2] Acas (2020), Coronavirus (COVID-19): advice for employers and employees, Available at:

https://www.acas.org.uk/coronavirus