Are all employees required to stay at home?

Head of Commercial, Colin Hewitt, speaks with the team at NewcastleGateshead Initiative about the complexities of event cancellations and the associated legal implications.

Click here to listen to the full podcast.

If the duties are so fundamentally different from their contracted role, then yes. For example, if you are asking a frontline clinical member of staff to undertake administrative tasks in another area, then this will be a fundamental change to their terms and conditions for which you need their consent.

If there is a minor alteration to their duties, or the clause within their contract is wide enough to cover their amended duties, then arguably to do not need their consent but best practice would be to obtain their agreement.

During the Covid 19 crisis lawyers and the courts have had to adapt with hearings being heard remotely and with more electronic communication. It is clear that going forward, some of these changes will become more permanent.

The Lord Chancellor, Robert Buckland QC MP, has spoken last week regarding changes to the justice system following the COVID-19 pandemic and we know that there is a significant backlog of work that needs to be processed.

Firstly, 10 sites have been identified for ‘Nightingale courts’ which will allow for better social distancing. The authorities have suggested that it is a possibility that courts will need to stay open for a longer time or at weekends, to increase the number of cases that can be heard safely on any given day. This will enable more cases to be heard in a day and therefore a swifter outcome for your case. The standard of video technology will also continue to improve, with plans for new technology being rolled out across all courts form July onwards. The enhanced use of technology may result in matters being heard more efficiently, decreasing the time spent during each hearing.

HMCTS is working to expand access to audio and video technology to support more and new types of hearings. There has been an increase in the use of new and varying equipment over the lock-down period. With the appropriate systems in place, many more hearings could take place on platforms such as the Cloud Video Platform (CVP). Throughout July, the CVP will be more readily available to Country courts. There will be further hardware rolled out to improve the quality of video hearings, and there will be more efficient methods used to organise video lists.

The increased use and training of CVP means that witnesses and advocates may not need to attend court and could attend the hearing remotely. This will give you increased flexibility, enabling you to attend from your office or home. The CVP is efficient and simple to use, with no complex functions; making it user-friendly. This should make litigation more time and cost effective (albeit that there will be the cultural challenge of having less contact with your legal team or the court experience).

Employees who are union or non-union representatives may undertake duties and activities for the purpose of individual or collective representation of employees or other workers. However in doing this, they must not provide services to or generate revenue for, or on behalf of your organisation or a linked or associated organisation.

Employees who are pension scheme trustees or trustee directors of a corporate trustee may also undertake trustee duties in relation to the pension scheme. However, a professional, independent pension scheme trustee who has been furloughed by the independent trustee company cannot undertake trustee work that would provide services to or generate revenue for, or on behalf of, the independent trustee company or any organisation linked or associated with that independent trustee company during hours when they are recorded as being on furlough.

• Before any agreed reduction in wages, actual changes to earning patterns (loss of overtime, for example) may impact the pensionable salary as defined under the scheme rules, with knock-on effects to a number of benefit calculations, such as death in service benefits.
• Contractual changes to member salaries may adversely impact accrued benefits as the final salary figure may be reduced to a greater or lesser extent depending on the duration of furlough and the severity of any reductions in wage, and hence reductions may be difficult to agree with staff.
• Reducing employer contributions will be subject to a number of the same considerations applicable to a DC scheme listed above. There will also be a need to change the rules and interact with the trustees, although it may be possible to override the rules with a direct contractual agreement with members.
• Reducing employee contributions will also depend on the scheme rules, particularly as to whether there are any discretionary powers to suspend contributions, or pensionable service.
• The rules will need to be considered for any unexpected consequences of furlough: depending on the wording of the rules, furlough may or may not be considered a leave of absence and may or may not have the effect of terminating pensionable service. This could have far-reaching consequences.
• In particular, if the workforce’s pensionable service is inadvertently terminated as opposed to suspended in accordance with any relevant rule, this could trigger a statutory employer debt on an employer participating in a multi-employer scheme, if pensionable service continues for employees of other employers. This sort of issue is unlikely to be spotted until after the event, and therefore difficult to untangle. However, an employer should be able to take advantage of the “period of grace” provisions by notifying the trustees of its intention to re-admit employees to pensionable service within the next 12 months.
• Clearly the impact of the Coronavirus Job Retention Scheme on DB schemes is complex and legal advice should be sought before any changes are considered.