COVID-19 - your employment rights post furlough
The furlough scheme ends on 30th September 2021 and changes in the workplace are inevitable. We are receiving many enquiries from people worried about job security and heir employment rights.
Our employment team have put together some free advice below to assist you if you are an employee.
I've been asked to take a pay cut - do I have to take it?
With the withdrawal of government support employers will seek to make savings and there is a possibility that you may be asked to take a pay cut to aid with the continued support of the business.
A pay cut cannot be enforced upon you by your employer as this would be a breach of your contract of employment.
However, you can agree to accept a pay cut if you wish to do so, perhaps as an alternative to redundancy. If you are a member of a Trade Union a collective agreement may be put in place with the employer to safeguard jobs.
Can my employer force me to work even though I have an underlying health issue?
The government stopped advising employees to shield in April 2021 however your employer has ongoing duties in terms of health and safety (see section below) and increased health and safety obligations as a result of the pandemic.
It is the responsibility of your employer to listen to staff concerns and to take steps to protect everyone. Your employer should consider allowing you to work from home (WFH) or offer a combination of WFH and attending the workplace (‘hybrid’ working).
In most cases your employer should be flexible given current circumstances, but legally they do not have to agree to this. If you are required to return to the workplace your employer requires to keep the workplace safe including ensuring that employees are distanced, that masks are worn in several circumstances and that offices are cleaned and ventilated.
If you refuse to attend work without valid reason there is a risk that disciplinary action could be taken. However if you have a disability in terms of The Equality Act 2010 your employer must consider making ‘reasonable adjustments’ to assist you.
I’m pregnant - can I be forced to go into work?
Due to COVID-19, Government guidance states employers have a duty to undertake a workplace risk assessment under the Management of Health and Safety at Work Regulations 1999.
Employees who are expecting, have just given birth or who are breastfeeding are entitled to additional protection in terms of their health and safety. This also includes the risk of exposure to COVID-19, as there is a higher risk of exposure within the workplace and the commute to work.
This is particularly important for people who are at least 28 weeks pregnant or are pregnant and have an underlying health condition.
Reasonable action to remove the health and safety risks under the Management of Health and Safety at Work Regulations 1999, would include;
- Working from home where possible
- Altering working condition or hours of work
- Provide suitable alternative work without loss of pay
- Provide suspension on full pay for as long as the risk remains or until adjustments/home-working have been put in place
If you feel your employers are forcing you to return to work whilst pregnant, you can temporarily remove yourself from the workplace until these risk assessments/health and safety adjustments have been carried out.
The Employment Rights Act 1996 protects an employee from the loss of pay and any other detrimental treatment if they reasonably believe there is a serious and imminent risk of danger as a result of a health and safety breach.
Will I be paid while I'm self-isolating? Do I need a doctor's note?
If you are required to self-isolate depending on your circumstances you should be entitled to statutory sick pay (SSP). This does not apply to those who are:
- Have already had SSP for 28 weeks (and the 28 weeks ended within the last 8 weeks)
- Have received Employment Support Allowance in the last 12 weeks
- Are already receiving statutory maternity pay or a Maternity Allowance
- Are in the armed forces
- Have had a baby in the last 14 weeks (or last 18 weeks if your baby was born over 4 weeks early)
- Are in legal custody (detained by the police or in prison)
- Are an agricultural worker, details of what is available for agricultural workers can be found here.
If you have symptoms then you should contact the NHS to be tested. If you test positive you should self-isolate until you have received a negative result or until 10 days from symptoms onset or longer if symptoms persist. You should continue to check the advice of the Scottish Government as this may change.
You can return to work on the 11th day providing you feel better and no longer have a high temperature. In most cases if you are off ill from work you are able to self-certify for absences up to 7 days. You can use the Self-help guide on the NHS Inform website if you need to be absent longer than 7 days. This will ask you a series of questions and confirm the length of time you are required to self-isolate for.
Should you be recommended to self-isolate for 14 days and require an isolation note for your employer you will be provided with an internet link in order to obtain an isolation note.
This can then be passed on to your employer.
Can I be sacked for raising health and safety concerns from COVID-19?
Your employer should not dismiss you for raising health and safety concerns. If you were to be dismissed for this reason (and this was the only reason for your dismissal) you should consider lodging a claim for Unfair Dismissal at the Employment Tribunal.
An employee may also have added protection if they have raised health and safety concerns or if they refuse to return to work if they believed there was a serious and imminent threat to themselves or others.
Dismissing an employee in certain circumstances related to health and safety would be considered as 'automatically unfair' in terms of the Employment Rights Act 1996. This protection would apply to employees whether or not they had 2 years’ service.
Can I be dismissed at the end of furlough?
You do not have any additional protection against dismissal during furlough. If you have more than 2 years’ service you can be dismissed if your employer has a fair reason for terminating your contract, for example misconduct or capability/performance.
If you have less than 2 years’ service your employer will be able to dismiss and you will be not be able to lodge a claim at the Employment Tribunal unless the dismissal is based on discrimination, whistleblowing or health and safety issues.
Can I be made redundant after furlough?
You can be made redundant during furlough or after furlough ends, but in any redundancy situation your employer has a duty to follow a fair procedure.
You can be made redundant if, due to a downturn in business your employer ceases or intends to cease providing the type of work you were employed to do or ceases to provide it from your particular place of work.
Can I make an employment tribunal claim if my employer hasn't followed fair redundancy procedure?
Fair redundancy procedure involves identifying a pool of employees and applying an objective selection criteria to identify who will be made redundant.
When identifying the pool, the employer should consider the type of work which is ceasing and the employees who perform that work.
They should consider employees who are performing similar work and whether jobs are interchangeable.
If the employer fails to identify a pool of employees it is likely that the dismissal will be unfair.
If you are made redundant in this situation you should make a claim to the Employment Tribunal for unfair dismissal.
Can my new company delay my start date due to COVID19?
Your employer is able to delay a start date if this was simply a proposed start date.
If however the start date was an agreed term and condition of the contract this should only be changed if there is a flexibility clause in the contract and the employee agrees to the change.
In this situation depending on the circumstances it may be prudent to try to negotiate with your prospective employer. The alternative would be to bring a breach of contract claim.
Can I be dismissed for refusing to be vaccinated?
We would recommend that you take legal advice on this complex matter as it is likely to depend on your personal circumstances. It is not mandatory for anyone to be vaccinated and to insist on vaccination could result in disability discrimination claims. Your employer may dismiss you for failing to follow reasonable management instructions. However, if they do you may have a claim for unfair dismissal.
Last reviewed 22 September 2021.
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