What if an employee cannot work from home but is genuinely afraid of travelling / going into work – what options do I have?
There is less guidance in respect of whether an employee can refuse to go into the workplace as a result of health and safety concerns about their commute. An employer’s duties to ensure the health, safety and welfare of its employees only extend to the workplace or where an employee is acting in the course of their employment. This does not include the risks of travelling to and from work by public transport.
As there are various ways in which an employee can travel to work, it will be difficult for them to legitimately refuse to come to work due to their commute. Employers should discuss any concerns with the employee and seek to find an appropriate resolution. The government has published guidance on safer travel for passengers during the Covid-19 pandemic and employers should encourage flexibility as far as possible, such as allowing employees to travel at off-peak times and staggering workers’ hours.
Related FAQs
If you sponsor migrants under Tier 2 or Tier 5, you will not be required to report a sponsored employee’s absence if it is linked to coronavirus and you have authorised this absence e.g. they are self-isolating and you have received an online isolation note.
The Home Office has confirmed that sponsors do not need to withdraw sponsorship for affected employees who have been absent from work for more than 4 weeks if they consider these are exceptional circumstances, which would include absences related to coronavirus. It does however remain extremely important to know where your sponsored workers are and to have up to date contact details.
Employers will need to be flexible with employees who are unable to return to work at present due to childcare difficulties. While schools have reopened, a period of isolation may result in employees having to keep children off school/nursery and therefore have childcare issues. Some employees will be able to manage this with their partner and extended family, whereas others will not. Where an employee simply cannot make any other arrangements to care for their children in the short term then they will be unable to return to work until that situation changes. Any dismissals on the basis that someone is unable to return to work as a result of lack of childcare are likely to be unfair, at least in the short term where such employees may well be able to demonstrate that they had no options available to them.
An amendment to the Civil Procedure Rules’ Practice Directions has been approved by the Master of the Rolls and the Lord Chancellor on 1 April 2020, and is now Practice Direction 51ZA. This has the effect of allowing the parties to extend by prior written agreement up to a maximum of 56 days (rather than the usual 28 days detailed at CPR 3.8(4)) any rule, practice direction or order provided that any extension does not put at risk any hearing date. This Practice Direction will cease to have effect on 30 October 2020.
Additionally each regions’ Designated Civil Judge (DCJ) has issued a Covid-19 Protocol. There are some minor variations between the regions, but overall the guidance is very similar.
In Northumbria, Durham and Teesside the DCJ guidance for multi-track cases provides that “The parties are at liberty to extend, by consent, any step in the timetable up to a maximum of 90 days (as opposed to the present limit of 28 days)” and the Court does not need to be notified if the Trial date is not effected. Where Trial windows are likely to be impacted due to Covid-19 and the parties are in agreement to extending this, a letter can be sent to the Court with a draft order proposing a new timetable, including a new trial window and agreed availability within the trial window.
The same guidance also confirms that an electronic signature on all documents including witness statements and disclosure statements will suffice.
In recognition of the problems that the current situation is causing, the UK IPO classed the 24th March and all subsequent days as “interrupted days” which means that deadlines that fall within this period will be extended until the UK IPO declares that the interrupted days have ceased. As lockdown has begun to be eased, the IPO has now reviewed its position and has confirmed that the “interrupted days” period will come to an end on the 29 July 2020. This means that Thursday 30 July 2020 will be the first normal day of operation, therefore all “interrupted days” deadlines will expire on this day. Similarly, if your deadline falls after the period of interruption ends, this deadline will not be automatically extended.
The IPO is conscious that many businesses may still be in challenging positions when the period of “interrupted days” end. They will endeavour to continue to provide flexibility and support to assist businesses with their applications. They hope to temporarily remove fees for requests for extensions of deadlines, and will give further updates when this fee exemption is in place.
The IPO continues to encourage applicants to meet original deadlines where they are able. As their offices are closed, the UK IPO is not currently processing paper forms (i.e. hard copy) and faxes. However, they are processing forms which have been submitted electronically, or via email and have made a new email address available for the submission of forms.
Intellectual Property Offices covering other territories have made their own announcements about the extension of deadlines. The EUIPO’s period of extension of deadlines came to an end on the 18th May. However, they have published a Guidance Note and accompanying webinar on the EUIPO website, detailing options for parties who may struggle to meet deadlines and remedies for those who may have missed deadlines.
In part in response to the Covid-19 pandemic, legislation was passed by the government earlier this year which sought to assist companies to trade through the current economic climate. Included within the measures is a degree of protection from compulsory winding up.
The Corporate Insolvency and Governance Act 2020 (The Act), was laid before parliament on 20 May, and became law on 26 June. It is important creditors are aware of what changes have been implemented and the potential and impact which it may have upon debt recovery action you may be considering or have already commenced.
The main part of the Act affecting creditors is the temporary restriction on presentation of winding up petitions and the factors that the Court has to take into account when deciding whether to wind up a company.
On Thursday 24 September 2020 the government passed a further statutory instrument which extended the operation of these restrictions. As a result, the measures which were due to expire on Wednesday 30 September 2020 have now been extended until 31 December 2020.
A key point to note is that the Act has retrospective effect so any pending petitions presented after 27 April will be affected, along with any winding up orders made after that date.
The Act has introduced the following restrictions:
- A petition cannot be presented by a creditor during the period of 27 April 2020 and 31 December 2020 unless the creditor has reasonable grounds to believe that (a) coronavirus has not had a financial effect on the debtor, or (b) the debtor would have been unable to pay its debts even if coronavirus had not had a financial effect on the debtor;
- A petition cannot be presented after 27 April 2020 if it is based on a unsatisfied statutory demand served between 1 March 2020 until 31 December 2020;
- When deciding whether to make a winding up order the Court will need to be satisfied that the grounds giving rise to the petition would have arisen even if Covid-19 did not have a financial effect on the debtor;
- All winding up orders made between the 27 April and 31 December will automatically be void (that is, of no legal effect) unless the Court would have made the winding up order if the new law was in force at the time the order was made.