Would it be appropriate to suspend someone who refuses to restrict their duties?

Undeniably and understandably BAME staff, as well as those staff who are identified as being at a higher risk, are going to have high levels of stress and anxiety. For some, this may become of such severity that those staff should be considered to be disabled under the Equality Act 2010. The question as to whether someone is disabled is one that should be answered in conjunction with appropriate medical advice. But the question about how to support any staff suffering with stress and anxiety should not be left until that stage. Proactive steps need to be taken and expert advice obtained on what support measures should be put in place. We know that many NHS organisations are already giving the mental wellbeing of their staff the highest priority.

From our perspective, we would ask managers to be mindful that stress and anxiety is likely to feature in how an individual reacts to questions about the level of risk to their health and the impact on their duties. The conversations with some staff may not be easy to have and may be met with challenge.

For those staff who’s stress and anxiety is such that it would qualify as a disability, reasonable  adjustments will need to be considered to the processes that you are applying.

An additional point to consider – it might be worth writing to all staff, asking them to come forward if they have any health conditions that they think you ought to be aware of, assuring them that such information is being given in the strictest confidence. You want to make sure that you are taking the appropriate measures to ensure their health and safety.

For the purposes of collective consultation, making someone redundant and/or changing terms and conditions of employment, by termination and re-engagement, is also classed as a dismissal by reason of redundancy and so has the exact same consultation requirements.

Another obvious cost cutting measure is to reduce working hours, either temporarily or permanently. Again, it should be done fairly, either across the board or by selecting teams/individuals based on objective business reasons. Imposing without agreement would create significant risk, therefore would require fair selection and consultation.

That will depend on the terms of your facility and the stance taken by your bank.

Banking facilities often place obligations on businesses to stick to certain financial criteria. For example, an obligation to keep turnover or profit above certain levels or a commitment to keep the bank’s exposure within an agreed percentage of the value of the company’s assets (known as loan to value ratio).

The consequences of breaching those covenants will depend on the terms of your facility, but normally this amounts to an event of default. Events of default can result in the loan (or whatever form the facility takes) becoming repayable and could give the bank certain powers to take action to recover the money that they are owed.

Whether the bank will take action during these unprecedented times is another matter, particularly given the extent of support being offered to businesses via mainstream lenders and the political desire to keep viable businesses up and running. Lenders themselves will no doubt wish to remain supportive where possible. The underlying performance of the business (and whether but for the effects of Covid-19 it would have been in a healthy financial position), the relationship you have with the bank and your history with them will no doubt be relevant to the approach taken by the bank. However, early engagement with your bank (as well as other key stakeholders in the business) will be important.

• 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.