In this webinar recording we address your employment law questions around returning to the office, managing requests for flexible working and dealing with impending redundancies with Seamus McGranaghan, Partner at O'Reilly Stewart Solicitors and Scott Alexander, Head of Learning and Development at Legal Island.

Questions asked in this webinar include:

• If an employer requires an employee to travel to work to a different country and on their return the employee has to quarantine for 14 days, is the employer required to pay the employee for this isolation period, as it is a result of work-related travel required by the employer? Or is the employee required to take annual leave as if they had travel for personal reasons?
• Should the employer provide pay for the accommodation of employees who have to quarantine as a result of work-related travel?
• How do we deal with multiple flexible working requests which are received within the same two-week period? Can we prioritise those employees with disabilities and childcare issues, or perhaps people who are terrified of coming into work?
• If we agree to let employees continue working from home for some or part of the week going forward, are we obliged to pay for more appropriate office furniture, for example, desks, chairs, etc.?
• If an employee has purchased a desk and chair for working at home without seeking prior approval, is the company liable for full or partial costs? Now the employee has asked for payment.

The Recording

Transcript

Scott: Good morning, everybody. I don't know what's happening there. Welcome to the webinar from Legal Island. Rolanda, your camera is still on, as far as I can see. This is Scott Alexander, I'm from Legal Island. Welcome to everybody today. One or two technical issues just at the start, but they're soon to disappear. I'm joined today by Seamus O'Reilly, Seamus McGranaghan from O'Reilly Stewart.

Seamus: That's okay, Scott. Good morning.

Scott: It's been a terrible week, you know. I need a break. I need a break. I had my third in-person meeting in six months on Wednesday when I met Emer Hinphey from Think People for a coffee. And I'm going stir-crazy in the house here. It's affecting my ability to read and, it looks like, speak. But welcome, Seamus. How are you?

Seamus: I'm all good, thank you. All good.

Scott: As you can see, Seamus is a Director from O'Reilly Stewart Solicitors. And this is about, it's coming up, I think next month is our, it will be the fourth year anniversary? We started in 2017, so that's '18, '19, and '20 have all been covered. So many hundreds of questions, if you've been listening, are on the website. Seamus is going to be speaking at the Annual Review of Employment Law on November the 4th and the 5th. And he's covering employment status. And if read out his little session just so you can see what he's going to look at because we got a question about something.

Employment status and employment rights, a perfect storm. We expect a decision in the Uber against Aslam case to be issued by the UK Supreme Court by the time of our Annual Review conference. It's late at the minute. So don't know why it's late, but it is late. That will likely transform the employment landscape, but in the meantime we have seen occupations as disparate as hairdressers and tribunal judges being framed to have worker status rather than being office holders or self-employed. In fact, there's a case this week in Scotland of foster carers that have deemed to be employees, not even workers, but employees of the council in Scotland.

Coupled with the introduction next year of changes to IR35 rules, which covers self-employment, millions of people could see their employment status radically change in the next few months. That changing status will bring with it new employment rights for individuals and in many cases massively increase cost for employers. I bet you're looking forward to that, folks.

Seamus McGranaghan, Director, O'Reilly Stewart Solicitors, said correctly, explains the recent developments and what employers should do now to prepare for a potential tsunami of new workers on their book.

So that's what Seamus is going to be dealing with at the Annual Review of Employment Law.

Now today we're going to look at different areas of questions that have come in. But before we get on to that, we're going to do a couple of . . . you can see there, we've got returning to the office, managing requests for flexible working, redundancy matters. And we're actually going to ask and start off with a question that I'm raising today, which is about people who refuse to isolate upon coming back from holidays. We've had a few things about that.

Poll Results

Scott: Okay. All right. Well, let's move to some of the questions. You can see what's up there today on the thing. We're looking at returning to the office and managing requests. But before we get to the questions that have come in, and there's a very interesting one if you're listening on apprentices and such coming later that we hope to get to. But I got an update today, Seamus, about a nurse in Edinburgh at a hospital I used to pass on the way to the zoo quite often. And she returned from Bulgaria and didn't quarantine. And she went into work. And then it discovered that she had been to Bulgaria, didn't quarantine, and was sent home. But I think that's the height of stupidity from somebody that's in the health sector.

But you've had experiences, as well, of your clients where employees have been abroad and have come back. So maybe before we get into the questions, just give us a few details of the kind of things that you've come across in your office.

Seamus: Yeah, I've had a number of my clients calling up in relation to, you know, different types of employees and self-contractors, you know, across the board where they've been away. They're identifiable that they've been away because of their suntan and they've been in the sun. And they have not quarantined. They've come back, and they are acting as if, you know, nothing has changed, that they've never been away.

I had particularly one concerning client who was a school that a teacher returned from Spain on a Saturday and was in the staff room at 8:30 on the Monday morning. And everyone had assumed that she hadn't actually gone on holiday, and then through conversation about half an hour later disclosed that she had been on holiday and was immediately asked to leave. But disappointing and concerning.

Also, a number of employees that have arrived and attempted to attend for work, even though there have been discussions with them in advance of their holiday, where it's been communicated that they were going to be required to quarantine. And the genuine sort of concern from those employees in terms of payment and not receiving salary.

But we are looking at the wider picture here, specifically in relation to the health and safety of the other members of staff. And, you know, you would imagine certainly if there was disciplinary proceedings to follow, that they would be very serious and you could be looking at the top end of gross misconduct in relation to that sort of behaviour.

Scott: It's difficult to believe that people that are going abroad . . . I know things are confusing and I give up trying to follow which ones are on the list or whatever. But if I were going abroad, I would know whether the country I went to is on the list. And I'm sure it's a topic of conversation as you're waiting to come back, I'm sure the airlines tell you, "Look, if you're flying into the country now, you're going to have to isolate." I'm sure the customs people tell you. It's not that difficult to find out. And if you're in there and you go into an area, you know, certainly like a staff room like you're chatting about, you go into where your colleagues are. You'd think they'd notice the tan. But nonetheless, even when you go in there, if there's a chance that you've got that virus, you could close down the school, you could close down the business, you could kill a colleague. I mean this is extremely serious stuff.

Seamus: Yeah, no, absolutely. And, you know, if you were to think down the line to maybe circumstances where an employer isn't aware that the employee has been on a foreign trip that they should have quarantined whenever they came back and people do start to become sick in the workplace. Because it may be that this employee is, you know, asymptomatic and hasn't displayed any signs of the virus but is still capable of spreading the virus. And if others in the workplace take ill, it may be that the employer does look at disciplinary proceedings. I wouldn't suspect that there would be much sympathy on a public level or, you know, perhaps at a tribunal court level either, for an employee that has done this, given that, you know, we're hearing this information on a daily basis from news outlets, from the government about how important it is to quarantine.

And I think we spoke previously on the last webinar about, you know, the steps that are required for quarantine. They're very stringent. You know, they're actually you're not allowed to leave the house for 14 days. It's exceptional circumstances only, for medical appointments and things like that. So it is disheartening to hear of cases like that where people are blatantly ignoring, you know, the guidance that's been given and, as you say, putting others as risk.

Payment for Self-Isolation on Return from Abroad

Scott: Yeah. So we've had a question just on the question box, if you have a look there if you're listening, on your right-hand side of your screen. And it's common here and it's a slightly different angle on returning to work.

"If an employer requires an employee to travel to work to a different country and on their return the employee has to quarantine for 14 days, is the employer required to pay the employee for this isolation period, as it is a result of work-related travel required by the employer? Or is the employee required to take annual leave as if they had travel for personal reasons?"

Secondly, "Should the employer provide pay for the accommodation of employees who have to quarantine as a result of work-related travel?"

Presumably at either end. So you arrive there for a business meeting, and then you have to quarantine when you're there, and then you come back, you're quarantined. But if there are accommodation things, would the employer have to pay?

Seamus: My view in relation to that would be that where you're travelling for work purposes, there's a responsibility on the employer in that respect. Certainly you could look to have a conversation with the employee. Probably the likelihood is for anyone that is doing that travelling that there's an element that they can work remotely and that even when they return, they can work from home, that could be discussed and facilitated. But certainly I would have thought that the employer would be on dicey ground if they imposed a period of no payment if the employee was actually travelling, you know, as part of their duties and their responsibilities at the request or direction of their employer.

Concerns Around Returning to the Workplace

Scott: Okay. Let's move on to the next question. It's the other side of the coin, about the people who are being flippant, if you like, or reckless in their behaviour.

"We have asked employees to return to the office on a phase basis from September," so this obviously came in before Monday. "And while the majority of staff have agreed to do so, a few have expressed concerns about doing so. We have put a number of COVID-19 safety measures in place to make the workplace as safe as possible. Can we insist employees return, and what do we do if they refuse to do so?"

Seamus: Well, this is a question that I've come across certainly from my clients, and I have to say it has been not the majority of staff, but the odd one or two. And at times there have been sort of genuine reasons for it. But essentially, you know, employees are working under a contract of employment. I think where we're at, at the minute, I know Boris Johnson has said that everybody should be, you know, seeking to return to the office. Our government at Stormont are slightly at a different point, where they're saying if you can work from home, you should do. But there's a reality here where businesses have reopened and there's a need with the businesses open to have staff on the grind.

And the first way to look at that is perhaps this hybrid, where we look back at the poll there and you can see that people are returning to work sort of on a rolling basis, sort of maybe one day, two days a week, something along those lines. I think that where there's an operational need and requirement for that, it's perfectly fine and it's perfectly reasonable for the employer to have an expectation that the employees will return to work. It's the needs of the business.

You know, that said, most offices' place of work, you know, they have put in place, you know, safety measures. They've taken the steps in order to offer or provide for a healthy and safe work environment. And where they are able and capable and have done that, it is difficult to see where a reasonable employee wouldn't return to work on that basis.

But, again, the important part is looking at the communication side of things, talking with the employee about the steps that have been taken, what would be their concerns in relation to returning to work, can things be facilitated in relation to maybe looking at, you know, a temporary variation of their sort of working hours and ability to work from home.

The guys that I came across, it was really a receptionist for an employer. And part of that role in the optician's office was that the receptionist also assists the customer to select and choose glasses. And one employee who, you know, would fall under the category of having been clinically extremely vulnerable and they're very concerned. And I think if there's a genuine concern from this employee about leaving home, never mind coming in to work. And they have talked with the employee. They've tried to encourage the employee to come into the office to see the safety measures that are in place. And my advice was really around maybe looking at, you know, are there other variations that could be made. Could the receptionist, you know, be placed behind the screen or the desk and maybe for a period of time not assist customers in relation to selection of glasses and things like that as well?

But it does get to the point where the employer will need to make decisions. And whether those are decisions of, "Well, if you're not able to attend work, then you won't be paid, and it will be a period of unpaid leave." Or looking to see if there's actual medical evidence behind what the employee's position is. That might be looking to get, you know, a letter from their GP, something in terms of maybe referring to occupational health.

One thing that did come into my mind, Scott, whenever I looked at this, was we do, of course, have Article 1321D of The Employment Rights Order here in Northern Ireland, the 1996 order, and it talks about where employees have a genuine fear of danger of coming into the workplace. And I think, you know, despite its own conventional nature in terms of danger, the risk of coronavirus may fall within that. And, you know, employers therefore, if they decide to dismiss these employees who refuse to come to work or they look at some form of, you know, following the statutory procedure and maybe looking at dismissal of some other substantial reason or something along those lines, you could potentially see an employee making a case that under Article 1321D that they believe there to be a serious or imminent danger in their place of work.

So I think it's about weighing up the circumstances. I think, for me, the big fallback position has to be where the employer can demonstrate that they've put in place those effective safety precautions, you know, where you can say that employees are reasonably expected under the circumstances that we're in to come into work and to operate on a safe basis. I think it's easier in some businesses than it is in others, if you think of the meat factories and the difficulties that have arisen. Or if you are an employee in a healthcare setting. We mentioned, you know, Craigavon Hospital. You know, you could potentially say as an employee, "That's a dangerous place for me to go into work," particularly if I am a clinically extremely vulnerable person.

Scott: Yeah.

Seamus: But I think you have to fall back to the position of the employer, you know, following PHA guidance, following the Health and Safety Executive guidance, and having your social distancing in place, making sure that there is those precautionary steps in relation to hand sanitising and all the facilities in relation to that, and weigh it up and doing your risk assessment. And I think where you're coming out saying, look, the employee is acting unreasonably by not coming to work, then you're drawing the line of having to look at what the contractual options might be.

Scott: Yeah. I mean the difficulty is it's not really a disciplinary issue. But on the other side people coming to work and you have a spate of COVID-19 cases, then the employer is looking at a whole lot of personal injury or industrial injury claims on the other side. So it's really difficult for everyone.

And I think, you know, as you're saying, it's one of those ones where you try and reach an accommodation. If you can't, you may eventually look at dismissal, but is should be kind of the last resort after you've said, "Okay, we won't sack you, but we won't pay you," or, you know, "We'll look at varying hours," or, "We'll put in all these different safety measures." "We've looked at working from home." But a lot of employers, you need the people in. You know, if you're running a business that's serving customers, you've got to be in there to serve them.

Seamus: Yeah, it's the same push and pull factors that we're even hearing from government guidance, and it's this aspect of, you know, what the medical profession have to say as regards where we're at sort of, you know, economically. And, you know, clearly the message is that there is a balance to be struck and there is the ability to, you know, recommence, reopen, and have things operational again, which will require staff to be in the business. As you say, often you can't run the business without the staff being there. Or it's not possible to work remotely. But it's about finding that balance. And for me it's about communication with the employee. Bring them in maybe on those off hours, show them the steps that have been taken, show them practically how the workplace will work, and try to reach the accommodation that way.

Flexible Working Applications

Scott: Okay. Well, let's move on to one of the reasons why we use the poll questions, because this one came in.

"How do we deal with multiple flexible working requests which are received within the same two-week period? Can we prioritise those employees with disabilities and childcare issues, or perhaps people who are terrified of coming into work?"

Seamus: Yeah, so I think what we expected to see in the poll there, there has been an uptick in relation to applications for flexible work. And there's no doubt that, you know, care facilities are closed at the minute, or there's a reduction in services, schools reopening. You know, childcare facilities not being back up and running to full speed again. Can absolutely understand why there have been applications for flexible working. And, you know, these increases have resulted in employers scratching their head.

The general view would have always been, you know, you deal with those applications on a first-come, first-serve basis. But I think the reality is that employers will have received a number of applications in close proximity. And then what way does the employer deal with those? Because remember that the employer is looking at the facilitation of these through the needs of the business. And the needs of the business are sort of paramount keystone whenever you're looking at these issues.

But for me I think the sensible way for an employer to deal, when they've received multiple applications within the workplace and they know they're not going to be able to facilitate everything, is possibly looking at the applications in the rind and looking at the more high-risk applications and maybe dealing with those on a priority basis. So maybe people with, you know, disabilities, childcare issues, or caring issues, you know, that they're facilitated and they're looking at those initially and dealing with those, and then come back to look at the other applications if they can.

It is a difficult situation for employers. I appreciate that. And I also think that in the majority of places, and I'm glad to see the poll is reflective of that, is that there is a bit of a pause on flexible working because we are all working flexibly. Or alternatively looking at the basis, because, you know, probably the majority of the listeners will be aware that the application for flexible working is a permanent change to the contract. It's not on a temporary basis. It is seen as a permanent position. But at the minute, you know, we're trying to facilitate and we are looking at things on a temporary basis. And I think employees also appreciate that and may not want ultimately for their application to be on a permanent basis. So sort of temporary variations and looking at things that way to try and accommodate where we are.

Scott: Okay. And I suppose one of the key points is that almost anyone now, if you have 26 weeks service, I think it is, can apply for flexible working and put the business case there. If it's refused for people who have caring responsibilities or disabilities and such, like it's those people that can take a claim, not the single individuals who don't have disabilities and so on.

Seamus: Yeah.

Scott: They can take a claim. So the one that's less risky for an employer is to try and prioritise, and I get that. But it's also worth explaining to all the people that are putting the requests in and having a discussion about, you know, "Under these rules, it's supposed to be permanent, unless we agree something different. But we've had so many, we have to try and prioritise." And manage expectations. It's more an HR issue when it comes down to that kind of granular level, I suppose.

Seamus: Yeah, 100%. And just to bring it back, obviously, you know, three requirements to be able to bring an application for flexible working is that you have to be working under a contract of employment, you have 26 weeks continuous service, and that you haven't made another application for flexible working within the last 12 months. And that one is interesting for me, because if applications have been made and rejected, it maybe has been over the six months that they've actually been working on flexible working that they've had, or that they requested and was rejected. But, you know, we're in circumstances now where essentially that has been facilitated. You don't want to get into a situation either where that's viewed as a permanent position by the employee. So I think important to keep these things in writing and keep the updates, you know, to keep the flow, whether it's an email correspondence, just to keep the employer right.

The other things, you know, obviously that the employer can look at, when assessing things, is the costs of the application for flexible working on the business, the impact on the quality or the performance of work duties, or the strain on the existing members of the working team and things like that.

So we are in a precarious, unusual situation. It's unique for the position that we're in. But, again, I think employers do need to tread carefully in and around this area.

Remote/Home Working

Scott: Okay. There's loads of questions coming in on the question box here, and I'll get to those next. But finally, just on this section here, we've got a question.

"If we agree to let employees continue working from home for some or part of the week going forward, are we obliged to pay for more appropriate office furniture, for example, desks, chairs, etc.?"

Seamus: Yeah, we've touched on this before in our prior webinars. But I think, I mean given the length of time that has passed now from the commencement of working from home, you know, issues will arise in relation if there's no sort of seemingly stop line to this and we're going to continue on in that position. I think it is worthwhile for employers maybe to look at risk assessments in the rind, health and safety, and, you know, whether there is essentially the equipment available there and that it is in good working order for the employees.

You know, it's the typical things that we all had, where working from the dining room chair might cause sort of back issues. And maybe for the first weeks in lockdown we all sucked that up and accepted the situation. But I think, you know, there's no finish line here, it's maybe for the foreseeable future that we're going to be having these arrangements in place, employees might now start to be saying, "Well, look, I'm going to need proper equipment, proper, you know, furniture at home and things like that," whether it's desk or chairs. I think it's prudent to look at that on a risk assessment basis, now that we're no longer sort of flying by the seat of our pants with all of this. And, you know, that liability aspect, whenever we touched on it previously, we did say that liability does, you know, stretch beyond the office or the place of working. If the person is injured at home while they're working or suffers an injury, the employer could be liable for that.

I think it's also important for maybe people that are working with specified or special equipment. You know, if they're working with glue guns and soldering irons and things like that at home, obviously those precautions need to be taken. And I think just because it's been happening for a number of months, it's not an opportunity for the employer just to ignore it and continue on.

Certainly I do recall that I had a couple of queries at the start of lockdown, where employers were frustrated by employees making demands in terms of desks and chairs and things like that, because, you know, we were all in such a panic. And, you know, really talking through the client advice and saying, "Well, look, you know, if there is an issue with the chair, I think you're better facilitating and looking at trying to get another chair in. Maybe, you know, have the chair at work brought home to facilitate that and things like that." But where we're in this sort of hybrid position, where we're in and out of the office, I think it's important where we don't see a close line that there is a risk assessment done and that, you know, proper decisions are made.

Scott: Okay. Well, it does become the workplace. And certainly if you've got people like, you know, Google, I think, and Facebook and so on are saying, "No need to come back to the office until 2021." Well, if you're working with substandard equipment for the guts of two years, then there's a pretty good chance you're going to get a bad back. Otherwise there wouldn't be a requirement to provide proper equipment in the workplace. You know, it stands to reason that you need the proper screens and mice and all that kind of stuff that you've got.

There's a few other questions coming in just on that point.

"If an employee has purchased a desk and chair for working at home without seeking prior approval, is the company liable for full or partial costs? Now the employee has asked for payment."

I suppose they should have got permission beforehand.

Seamus: Yeah, I think that would be my view on it, is that anything, any expenses should be, you know, previously agreed with the employer and authority granted before those purchases are made. I mean I think it depends on the type of work that you're doing. You know, we all made do with working from home, and I have no doubt the vast majority of employees have, you know, worked on their dining room table or on their kitchen table. Not ideal, but it's where we're at with the current situation. If they've gone ahead and purchased equipment without authority or without permission to do so or any agreement for it to be reimbursed, I think I would be hesitating as an employer to pay any monies out without a proper discussion or investigation in and around that.

Scott: Yeah. Yeah, I suppose it might impact on their output if you don't. But nonetheless, it's one of those ones they should have done. And,

"If we permanently change working arrangements to work from home for two or more days per week, do we need to change their contract?"

Presumably it just goes back to the '96 order and the requirement to send them an update within a month.

Seamus: Yes. That would be the usual position. I mean if it is going to be permanent on that basis and you're happy that it's permanent, then you should update the terms and conditions, and you can do that in writing.

Scott: Okay. Well, let's move on to a slightly different one. I know there's a number of questions there, folks. We won't get to them today. We'll try and get to them the next time that we're here with you on the 2nd of October. But we've had a thing there where we asked the poll questions about redundancy. And for those that came along late, you're listening to Seamus McGranaghan from O'Reilly Stewart Solicitors, and I'm Scott Alexander from Legal Island. We posed a question at the beginning about how many of the audience were anticipating making redundancies in the next three months. And it was fairly heart warming, I suppose, I'll still purr, 20%, or thereabouts, were expecting to make redundancies. So 80% of the audience at that time weren't anticipating redundancies. But we know there's lots out there.

Redundancy Matters

So this question came in.

"We've had to make redundancies, and we've offered to put most employees on a list of workers whose services could be called upon if required when things hopefully pick up. First of all, is that lawful, that you can give priority to people that you've just made redundant when vacancies do arise? And secondly, there's one chap whom we don't think is very good. Although he's going due to a downturn in work, so he's a genuine redundancy, we wouldn't want him back. Is it therefore lawful to leave him off the list of people who would be contacted if things improved economically and we need more employees?"

Seamus: Yeah, I like this question. This is very, you know, typical of questions that I get asked from clients in that sort of blunt nature of, "This is where we're at, and then this is what we'd like to do."

So firstly, yes, it's lawful to utilise a list of workers in the way that's set out in the question there in the event of redundancies. There is always that aspect that, you know, nobody likes to do redundancies. There's always that horrible feeling whenever they're being processed. And often the employer will say, "Look, if anything does arise, you know, we may come back to you." I think it's good to use language around, like, that "we may," rather than giving any kind of guarantee, because it's not a guarantee that you can necessarily be held to in any event. I think once there's a termination of the employment, there's a termination of the employment. You know, there's no sort of holding the gate open for a return.

So I think it's important to be clear with employees that, you know, there's no guarantees in this, but if something maybe does come up. It is fine that there's a list to utilise off. It makes sense, also, in a sense that you would have those employees with the skill set, the training that you've provided. You know, there's no issue with that.

Secondly, employers do have a discretion in who they add to that list of workers made redundant and whose services that they could subsequently call upon if required. And that's been said in a very recent case of Aramark Limited and Fernandes. It's a 2020 decision that we've got from the Employment Appeal Tribunal. And the question for the EAT was essentially to decide whether failing to put an employee on one of these lists was an unreasonable act by the employer. And it was interesting that the EAT, they distinguished that, you know, these lists merely open the prospect of work, but it doesn't necessarily mean that there's a right for you to secure that work in the future if you've been placed on the list. And essentially what they said, if placing the employee on the list did not entail a provision of alternative employment, then failing to place them on the list did not involve a breach of the legislation.

So what we can take out of that case is that the failure to add any employee to the list didn't fall within the scope of an unreasonable act, and it's good to get that clarity. Now it is in the EAT decision from across the water, but, you know, these decisions are always helpful and they can be brought to the attention of our tribunal here in Northern Ireland.

So it's always a tricky one, and my advice would always be you're not given any guarantees. And if there is an employee that has been made redundant and that you wouldn't wish to employ again, provided that you've got justification for that, I don't see any difficulty with it arising.

Scott: I suppose the only issue there is that that Aramark case was an unfair dismissal claim. And I suppose if the individual was saying, "You're not putting me on the list because I'm disabled," or, "You've not put me on the list because I'm Catholic," or Protestant, or whatever it happens to be, one of the nine protected grounds, there might be a potential claim there. But it's unlikely to see it if there's lots of people just like that individual.

Seamus: Yeah.

Scott: But, you know, if you're saying to somebody, "Look, we're not putting you on the list because you're rubbish. But we haven't sacked you because you're rubbish, we're sacking you because you're redundant, your job is gone." Most people wouldn't want to have that conversation. So if they're not on the list and they don't get the letter saying, "There are vacancies, you might want to apply," which is the way it usually happens, you may not know about it in this case. This guy clearly did know about that particular list because it was announced, you know, "We're putting everybody on a list, and you'll get first dibs at coming back to a job." There may be an equality angle, but that's probably it, I would think.

Seamus: Yeah, I would have thought, and that's why, you know, and given the advice, that you can take a note of the employee's competence and skill, or their lack thereof. You know, that's a justifiable basis for dismissal at the end of the day. But I think that you should be cautious around issuing dismissals on the basis of competence if it can give rise to a potential disability discrimination claim, for instance.

Scott: Okay. Yeah, you want to go on? Go on.

Seamus: No, I don't. Sorry, that was me.

Scott: That was you? I thought you were going to say something. We can't see each other, so that's one of the issues.

Seamus: Very unlikely, Scott.

Disciplinary Action During Furlough

Scott: We've got this question. And I'm going to skip, and then come back to a couple of the others. And there's others that are coming in on the question from the listeners here. But it ties in a number of things that we've been looking at.

"Can I discipline someone who is still on furlough? I have apprentices who were paid full pay for the time that they continued their online learning up until the end of June. They were told that they would face disciplinary action if they did not engage in the learning once a review was completed with the tech in September." So they must be going to one of the local colleges. "We have now had that review, and there are a small number who did not engage and I want to discipline them all, but some have not returned to work and are still on furlough."

I'm getting warning signs here, Seamus. What's your thoughts?

Seamus: Yeah. I agree. Look, I think, to bring it back to end of March, start of April, whenever we got the guidance in relation to the Coronavirus Job Retention Scheme, it was made clear by the government that you could have employees undergo training while they were furloughed. But if they were going through that training aspect, that they had to be paid their sort of normal remuneration in relation to that.

So, you know, I think for me it very much comes down to the status of, you know, the employment contract was being retained, but the furlough meaning was essentially that there was a pause in relation to your employment. But I still do think that the terms and conditions of your employment would apply. I think I would be very cautious about moving to disciplinary proceedings against an employee who hadn't undertaken their training essentially during the furlough period and you now wish while they remain on furlough to proceed with the disciplinary against them. I think the two don't go hand in hand whenever you take a step back and look at the overview in relation to it.

But I also do think that there's an interesting point in and around, you know, every organisation will have standards that they expect the employee to uphold. And if those standards are breached during a period of furlough, they still remain an employee. And I think that it's fair for the employer to say, "There is an expectation here that we will retain the standards."

Think about things like if a crime was committed, for instance, that brought the organisation into disrepute. And if the employee was on furlough at the time, would the employer be able to do anything about it? Of if there was, you know, comments made on social media or photographs put up on social media where the employee had linked their employer, you know, it's an extension of things happening outside of the workplace.

I think it does put us on difficult ground while the employee is on furlough. But it's an interesting conversation and discussion certainly to be had around it, but I think overall I would be very cautious in relation to sort of moving forward with disciplinary proceedings where they remain on furlough.

Scott: Yeah. It's also extremely dangerous to discipline or certainly sack apprentices, because they have contractual rights that are different from normal employees. And I'm a College Governor at Southern Regional College, and I know there have been massive difficulties just assessing apprentices, particularly final year apprentices, because they have to be there in person to do them. You know, so it may not be the apprentice's fault that they haven't been assessed by the college because the colleges were all closed and it's very difficult to set up a safe system to assess students when, you know, they have to physically wire things up or build walls or whatever it happens to be. It's not the same as doing an online course, you know?

Seamus: Yeah.

Redundancy Selection

Scott: For all those reasons, it's a bit dodgy. But for another question, we'll go back to one or two of those, which is interesting.

"If someone hit the company's absence trigger, would you have to exclude occasions that were due to self-isolation?"

Seamus: Yeah, look, my thoughts on that would be that there should be a policy by the company or by the employer, ideally a written policy, in relation to how they're going to treat those periods of absences. Whether it's because of they've been sick and genuinely absent as a result of contracting coronavirus or alternatively because they've had to self-isolate. And, you know, we know that the government's stance in relation to self-isolation was that if you were self-isolating as a result of symptoms or for one of the other reasons early on that, you could classify it as sick. You could be given SSP for up to the 14 days, which was recoverable back from the government.

Obviously, look, you know, the position is different in relation to those that are quarantining. That's a different position. But the government said, "No, you're not sick during that period." They are still absence periods. I think my view would be that we are in exceptional times at the minute in and around coronavirus. And I think that, you know, given the position that we're in a global pandemic, that employers should, you know, be on the softer and forgiving side when it comes to absences as a result of either contracting or where you've had to self-isolate because of fear of being in contact with someone or where symptoms have arisen.

So my view would be that a more sympathetic approach by the employer would be required.

Scott: Okay. Thank you very much, Seamus. Thank you, everybody, for listening. Sorry we haven't got around to all your questions. We'll try and get around to as many as possible. But keep sending them in to Rolanda and others.

The next webinar we have is actually next week. It's on data protection with Pinsent Masons. We will be looking at working from home and the risk associated, but on data protection issues, associated with employee behaviour, employee monitoring, managing supplier contracts, health monitoring, contact tracing, all those kinds of stuff on returning to work. Cyber risks, as well, particularly COVID-19-related scams and such like. And international transfers and Brexit. And, indeed, the Schrems II decision. That's the Facebook decision, for those that haven't been aware. And then Seamus is back with me on the 2nd of October, where we'll take other questions.

As ever with these things, you can listen back, and we'll have the transcripts up sometime next week. But you can listen back hopefully this afternoon, but certainly by Monday it will be up.

Don't forget the Annual Review of Employment Law. All of the issues we've been chatting about today will be looked at in much more detail at the Annual Review of Employment Law, including engagement and productivity and all kinds of stuff to do with home working, health and safety issues are in there, liability for COVID, infections liability for health and safety issues. And, of course, Seamus looking at the definition of "employee" and "worker" and so on will be covered, along with all the others.

There's 19 sessions. It's online. You can book online. You can book now on our website today, and of course there's an early bird thing happening. We're recording all the sessions at the Annual Review, so you'll be able to see all 19. And we're also doing pre-event stuff and post-event stuff all for a reduced price compared to what they used to be in the past.

So you'll see everything. It's over two days. It's going to be fantastic. And there's also a great networking thing, as well, where you can get to meet everybody for three minutes and then move on to someone else. Or you can contact all the speakers individually for a video call, or anyone else, any of the delegates. So we've got all the networking, all the stuff, and it's going to be fantastic.

There's our contact details if you want to contact us directly, or fire in a question and hopefully we can get back to you individually.

So that's it, but a "thank you" to Rolanda for working all the stuff in the background. Thank you, Seamus, for all your wonderful and sensible words that you come up with all the time. And thanks, everybody, for listening and hopefully we'll see you on the 10th, and if not, we'll see you next time on the 2nd of October. Cheerio, everyone. Bye-bye.