Simon Allison

Lay-off/short time working clause
In the unlikely event that your employees have a “lay off” or short time working clause in their employment contracts and there is no work available, an employer may be able to offer this as a form of “temporary redundancy”. There does however require to be an express clause in the contract, providing for this. This means that you can tell the employee not to attend work and the employee is entitled to a guaranteed payment of £29 per day (£30 per day from 1 April 2020) for up to five days. These clauses are rarely included in most up-to-date contracts and, in any case, it seems unlikely that this pandemic will resolve itself in the next few weeks. Where an employee is laid off or placed on short time working for a continuous period of 4 weeks or more, or for any 6 or more weeks in any 13 week period, the employee may resign (with notice) and claim statutory redundancy pay, So this option should be exercised with care.

Home working
The advice of the PM has been to work from home, if possible. Before being forced to close the workplace, an employer should consider whether home working is feasible. This may allow the business to stay open. Employers should consider what type of work could be done from home, including any paperless tasks. If you do permit employees to work from home, the employer should ensure that the employees have a point of contact in the workplace with whom to raise any issues. Employees should also be made aware of what is expected of them when working from home. For example, do these employees have the ability to work independently? Do these employees have good time management skills? Will these home-working employees conduct themselves in the same manner as they would within the workplace?

Emergencey leave
If an employee has children of school age and that employee requires time off due to schools closing, the employee is entitled to a reasonable amount of time off. Additionally the same would apply if an elderly relative became unwell and needed care. This time would be unpaid, unless there is a clause in the contract providing otherwise.

Normal pay
If an employer is forced to close the premises, then the employees are entitled to their normal pay. Depending on the terms of your contract, you may be able to pay your staff the minimum number of hours which they are contracted to work. A failure to pay the employees their normal wage may result in claims of constructive dismissal and/or unlawful deductions from wages.

Use of holiday
Employees whose offices remain open and who cannot attend work due to child care or ill health may risk having unpaid time off. Such employees may wish to take as annual leave in order not to lose out financially. In certain circumstances, employers could require staff to take their annual leave whilst the workplace is closed. An employer can serve a notice on its employees, giving them two days’ notice for every day the employer wishes an employee to take as annual leave. So, for example, if the employer is wanting the employee to use four days’ holiday, the employer must give them eight days’ notice of this. Although this notice does not require to be in writing, it is preferable that this notice is given in writing, for evidential reasons.

As always, specific legal advice should be sought, where necessary, as the situation is changing daily.

Simon Allison is a partner at Blackadders

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