Employees’ rights during the coronavirus pandemic

During these unprecedented times, employers and employees may be looking for other ways of working where there has been a reduction in demand for goods and/or services. Below is a refresher of the type of rights employees are entitled to under the Employment Rights Act 1996. Some of these rights may lead to arrangements that would be beneficial to employers who are experiencing a downturn in their businesses.

Unpaid leave

An employer cannot require an employee to take unpaid leave unless there is an express term in the employment contract that provides for this. Even in these uncertain times, if an employer places an employee on unpaid leave in breach of contract, the employee will have the right to bring a claim for unlawful deduction of wages for the full amount of unpaid leave taken.

Nonetheless, in these exceptional times, an employer may ask its employees to agree to unpaid leave if a business would otherwise be forced to make redundancies, or place employees on furlough. (For more information on furlough leave and the government’s Job Retention Scheme, see: https://t.co/hqFlrKjjfT).

Time off to look after dependants

Under sections 57A and 57B of the Employment Rights Act 1996, employees are entitled to time off work to help someone who depends on them (a ‘dependant’) in an unexpected event or emergency. This would apply to situations to do with Coronavirus. For example:

• if they have children they need to look after or arrange childcare for because their school has closed; and/or
• to help their child or another dependant if they’re sick, or need to go into isolation or hospital.

There is no statutory right to pay for this time off, but some employers might offer pay depending on the contract or workplace policy.

The amount of time off an employee takes to look after someone must be reasonable for the situation.  The legislation provides that an employee is entitled to take reasonable time off where it is necessary:

• To provide assistance if a dependant falls ill, gives birth, is injured or assaulted.
• To make care arrangements for the provision of care for a dependant who is ill or injured.
• In consequence of the death of a dependant.
• To deal with the unexpected disruption, termination or breakdown of arrangements for the care of a dependant.
• To deal with an unexpected incident which involves the employee’s child during school (or another educational establishment’s) hours.

An employee only has a statutory right to take time off for dependants if the situation falls within one of the categories listed above. Other events, such as a house fire or the central heating system breaking down, remain a matter to be dealt with via policy, contractual or ad hoc arrangements between the employee and their employer.

Further, the statutory regime does not apply to planned time off to care for dependants; for example, to take them to a planned medical appointment. If the time off relates to a child under 18, the employee may take unpaid parental leave, but this is usually only available following the requisite notice and in weekly “blocks”.

Alternatively, it may be possible for the employee to agree unpaid or annual leave with the employer or temporary or permanent flexible working arrangements.

Flexible working is another alternative.  An employee (who has completed at least 26 weeks’ employment with the employer) may request a change to their employment terms under the Flexible Working Regulations 2014 (SI 2014/1398) if the change relates to:

• the hours they work;
• the times when they are required to work; and/or
• the place of work (as between their home and any of the employer’s workplaces).

Underlying these three simple categories of request are a wide range of possible work patterns. The scope of the legislation effectively includes applications for:

• part-time working
• annualised hours
• compressed hours
• flexi-time
• homeworking
• job-sharing
• self-rostering
• shift-working
• staggered hours and
• term-time working.

All or some of these options could be contemplated by employers who are experiencing a downturn in demand for their goods or services in light of Coronavirus.  Any change in working patterns requires an amendment to the contract of employment, which is done by mutual agreement.

If you would like to discuss your particular circumstances, please contact Stephen Morrall on 020 7412 5107 or stephen.morrall@hunterslaw.com.