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Easing out of lockdown – employment law

Sana Sadiq

Sana Sadiq, senior solicitor at BMA Law, considers the transition back to work as we begin to ease out of lockdown.

As we begin to ease out of lockdown, employers must first consult with their employees, where any changes to the terms of their employment are proposed. Changes to the employee’s terms of employment, such as working patterns or hours of work, must be made with the agreement of both parties and recorded in writing. Crucially, when employers are making decisions in relation to any changes to the terms of employment, equality and discrimination laws will apply in the usual way.

Furlough and the Coronavirus Job Retention Scheme

The Coronavirus Job Retention Scheme allowed employers to furlough their employees for a minimum of three weeks if they could not maintain their workforce as a result of the COVID-19 pandemic between 1 March and 30 June 2020. The last day an employee could have started furlough for the first time, to meet the minimum three-week requirement, was 10 June 2020.

GP practices who receive public funding were not expected to furlough staff where that funding had been maintained, as was the case for GMS funding for general practice. However, GP practices may have furloughed staff where their public funding had been reduced or halted, and there was a direct impact on the employment of staff.

From 1 July 2020, employers can bring furloughed employees back to work for any amount of time and any working pattern whilst still being able to claim the grant for the hours not worked. From 1 August 2020, employers will be asked to contribute towards the cost of furloughed employees’ wages. Read further guidance about the Coronavirus Job Retention Scheme >

Holiday leave

It may not have been possible for employees to take all their holiday entitlement during the current holiday year due to the pandemic.

Employers and employees should be as flexible as they can about unused holiday during that period. It is a good idea for employers to discuss any plans to use or cancel holiday with employees as soon as possible.

The options available include:

  • Taking annual leave – (including bank holidays) in the usual way. Note that furloughed workers must get their usual pay in full, for any holiday they take.
  • Carrying over annual leave – Temporary legislation has been introduced to allow employers and workers to carry over up to four weeks’ paid holiday into their next two holiday years where they could not take annual leave because of the pandemic. Where an agreement to carry over annual leave already exists, this legislation does not affect that agreement. If an employee leaves their job, or is dismissed and has carried over annual leave because of the pandemic, any untaken annual leave must be added to their final pay.
  • Employers can still require employees and workers to take paid leave on a bank holiday, unless they are off sick, but they must give their employees notice. Employees and workers can also ask to take a day’s paid holiday on a bank holiday. If the employee agrees, they must get their usual pay in full.
  • Cancelling or rearranging previously booked holidays – If an employee wants to cancel previously booked holiday, their employer can insist they still take the time off. If the employee wants to rearrange when they take this time off, they will need to get agreement from their employer.
  • Requiring staff to take or cancel holiday – Employers have the right to tell employees when to take holiday. To do this, they must give employees at least twice as many days’ notice, as the amount of they days they need the employees to take off. Employers can also cancel pre-booked holiday. To do this, they must give at least the same number of days’ notice as the original holiday request.

Employers should be clear about why they are adopting their proposed option and should try to resolve any issues or worries an employee may have about how this will affect their annual leave. It is good practice to get agreement from the employee before proceeding with their proposed option.

Avoiding redundancies, lay-offs and short- term working

An employer can avoid job losses by planning ahead and looking at other options. Before making employees redundant, employers should consider whether they can:

  • offer voluntary redundancy or early retirement,
  • agree to flexible working,
  • redeploy employees to do other jobs in the GP practice or business,
  • let go of temporary or contract workers,
  • limit or stop over time, or
  • not hire any new employees.

Having exhausted the options set out above, if an employer does not have enough work for their employees, they may consider lay-offs (sending employees home temporarily or asking them to take unpaid leave) or short-term working (reducing employees’ hours), but these options should be a last resort.

Employers can lay off employees or put them on short time working if it is:

  • included in the employee’s employment contract;
  • a national agreement for the industry;
  • a collective agreement between the employer and a trade union; or
  • agreed by the employer and employee to change the terms in the employment contract.

There is no limit to how long an employee can be laid off or put on short term-term working. It will depend on what is in the employee’s employment contract or has otherwise been agreed in writing. During any period of lay-offs or short-term working, employees are entitled to pay for the days they do not work at all, unless it is agreed otherwise, or their contract allows for unpaid or reduced pay.

Read further guidance on lay-offs and short term working >

For more information about how BMA Law can help you, please get in touch >