Retraining and redeploying

A reduction in hours or salary or changes to hours or patterns of work is a contractual change – you can’t just impose it without significant risk. The same applies for lay-off or short-time working where there is no existing contractual right to impose these.

In summary, the process that an employer should follow to implement these measures is as follows:

1. Communicate the Company’s position clearly and the urgent need to achieve temporary cost-saving to ensure the ongoing financial viability of the organisation
2. Explain the proposed changes in detail and seek the employee’s agreement, and
3. Record the agreed changes in a letter which is counter-signed by the employee.

If employees will not agree then employers will be at substantial risk of claims for unlawful deduction of wages, breach of contract and/or constructive unfair dismissal if they seek to impose these changes unilaterally. Employers should be mindful that this approach is likely to cause significant employee relations issues and dissatisfaction if only some employees agree to a reduction in pay. Employers should have a clear strategy for what their approach will be if this is the case – for example, they may wish to instead explore a different measure such as redundancies. This may form part of the employer’s communication when explaining the reason for the changes and seeking the employee’s agreement.

Unions: Employers should also be aware that where there is a recognised trade union in respect of any part of the workforce which is being asked to agree to a change to terms and conditions, the recognition agreement or collective agreement will require the employer to consult and/or negotiate with the trade union in the first instance.

Collective consultation: Where 20 or more dismissals are proposed at one establishment in any 90-day period, there are stringent collective consultation rules which apply (regardless of whether the employees have two years’ service or not). All dismissals count towards this total unless the dismissal is “not related to the individual concerned” – therefore dismissals for things such as conduct or capability do not count, but most other dismissals will count. This will include where you are imposing changes to the contract such as reduced hours or pay.

The rules on collective consultation set out a prescriptive and time-consuming process which must be followed, and minimum timescales before any redundancies can take effect. The cost of any claims relating to failure to follow collective consultation requirements are substantial, and specific advice should therefore always be sought before seeking to implement collective redundancies. We will be publishing further guidance on this on the Hub shortly.

Details of your MHFAs should be posted somewhere that everyone can access easily – a specific area on an intranet or whatever alternative exists. Regular comms involving the MHFAs, webinar sessions, Q&A sessions and mental wellbeing drop in sessions are all ideas that may work well.

If a business has been provided with a loan from 23 March on commercial terms, providing the borrower meets the CBILS eligibility criteria, lenders have been asked to bring these facilities onto CBILS wherever possible (e.g. where the lender is accredited to offer the same facility through CBILS) and changes retrospectively applied as necessary. Please contact us if this applies to you and we can review facilities and advise upon the potential changes that may be made retrospectively to the benefit of the business.

• Yes, and this includes furloughed employees under the Coronavirus Job Retention Scheme.
• Employers must continue to assess their new employees or newly eligible existing employees and enrol them where required, but can make use of the statutory postponement procedure which allows them to delay for up to three months the assessment of new employees for the purpose of enrolment (see further details here on the Pensions Regulator’s website). Declarations of compliance for new employers must still be completed in the normal way.
• Postponement cannot be used for re-enrolment. The Regulator recommends employers use the re-enrolment date tool on the Regulator’s website to choose a date up to three months after the third anniversary of enrolment to assess staff for re-enrolment. Further information about employers’ obligations about reenrolment from the Pensions Regulator can be found here. Re-declarations of compliance for new employers must still be completed in the normal way.

Yes. The Government continues to support the construction industry and the Prime Minister’s recent statement supports the return to work of those who cannot work from home, if they can work safely.  This has seen an immediate surge in industry workforce returning to work. Banks and storage and distribution businesses are permitted to operate as essential businesses.

Solicitors and estate agents may still not permit members of the public to enter their premises, but can operate remotely via website, phone, email and other methods, as normal.  The Government’s latest guidance published on 13 May now advises that moving house need not be postponed, provided social distancing and safe ways of working can be adopted. Restrictions remain for those who are infected or who are self-isolating or vulnerable, and they should not move house or accept visitors.