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To close or not to close?

To close or not to close - Coronavirus

Wednesday, March 25, 2020

Some businesses have been ordered by HM Government to close, e.g. pubs, clubs, restaurants, leisure facilities. Some have been permitted to stay open supermarkets, petrol stations, chemists etc, but may have elected to close anyway on an individual basis.

Closure of business and termination of employment contracts

  1. Some employers such as Britannia Hotels and Wetherspoons closed and immediately terminated the employment of their staff. If you intend to close and terminate the employment of more than 20 employees in a 90 period then you are under an obligation to undertake collective consultation under the Trade Union & Labour Relations (Consolidation) Act 1992 (TULRCA). This means consultation with Trade Union representatives or elected representatives of those staff affected. If you are making between 20 – 99 employees redundant then consultation is over a 30 day period. If 100 or more employees are affected then the consultation period is 45 days. There is also a requirement to give details of the employees affected to the Department for Business, Innovation and Skills on “Form HR1.”

The penalty for failing to do so is an unlimited fine and up to 13 weeks uncapped pay per employee (known as a protective award). There is no need for the employee to show loss, it is a punitive award against the employer.

There is a “special circumstances” defence where, if it is not possible to consult for the required period of time, the employer has to show that it has taken such action as is “reasonably practicable” in the circumstances. It remains to be seen whether COVID-19 will provide a “special circumstances” defence but it is likely to be fact specific in each case.

Businesses that remain open

  1. Some businesses have stayed open (up until recently Sports Direct). On 23 March 2020, the Prime Minister told the public that they had to “Stay at Home.” For businesses this means that individuals are only permitted to go to work if their work is essential and absolutely cannot be performed from home.

Those businesses that remain open have a duty of care to protect the Health & Safety of its workforce. That duty could include consideration of the following, but this list is by no means exhaustive:

  • Home working
  • Restricting staff and visitors/delivery drivers etc. access to business premises.
  • Intensive and more regular deep cleaning of premises
  • Reminding staff to wash their hands on entering the premises and at regular intervals
  • Provision of hand sanitisers
  • Provision of PPE
  • Dispensing with non-essential business activities
  • Reminding staff of the 2-metre self-distancing requirements whilst at work

Additional consideration for pregnant employees:

  • Risk assessments for mother and baby
  • Altering working conditions or hours to avoid significant risk to mother and baby
  • Offering suitable alternative work; or
  • If no suitable alternative work is available or if the employee refuses; consider suspension on full pay.

Please note that pregnant employees have been advised by the Government to self isolate and avoid public transport.

Employers should do all they reasonably can to protect the health and safety of the workforce. If having done so, employees are still unhappy; they can raise a grievance with their employer. If they choose to go home, then provided that the employer has taken all reasonable steps to protect their health and safety, their absence could be viewed as unauthorised and the employer is under no requirement to pay their wages. If however their concerns are justified and more could reasonably be done, the employer could be faced with resignations, claims for unlawful deductions from wages, constructive unfair dismissal and whistleblowing.

If an employee starts showing symptoms – send them home straight away. Have them call 111 from their own mobile telephone and isolate them in a room away from others until they can exit the premises safely, maintain 2 metres away from colleagues.

Consider who they’ve been into contact with and inform those employees. Those employees should consider whether to self isolate (they may live with vulnerable family members). If they do self isolate they will be entitled to 2 weeks statutory sick pay.

Consider whether the premises should close; it does not necessarily have to close but in any event, a programme of deep cleaning should be instigated.

It might be business unusual but usual employment laws apply, for the most part anyway.

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