Rosemary Connolly LL.B., LL.M. Principal Solicitor Rosemary Connolly Solicitors Limited www.solicitorsni.net 1
In Northern Ireland employers are required by law to ensure so far as is reasonably practicable the health & safety of their employees whilst at work. Under common law an employer has a duty to exercise reasonable care. The key legislative provisions are: (i) The Health & Safety at Work (NI) Order 1978 (which imposes a legal duty on employers to make the workplace safe and to eliminate or control risks to health) (i) The Management of Health & Safety at Work Regulations (NI) 2000 (i) The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (NI) 1997 (RIDDOR) 2
➢ To provide safe plant and systems of work ➢ To maintain a safe place of work and a safe means of access and egress ➢ To maintain a safe and healthy work environment ➢ To protect others (i.e. the public) who may be affected by the way business is conducted ➢ To consult with Unions/employee representatives by means of a safety committee ➢ To conduct risk assessments of tasks performed by employees and put in place adequate control measures to prevent injury ➢ To provide relevant health and safety training ➢ To provide personal protective equipment (PPE) for employees performing hazardous tasks 3
These Regulations have impacted enormously on hospitality and tourism related businesses as they require the closure or significant restriction of many businesses in the sector including: ➢ Restaurants, including those in hotels and members clubs ➢ Cafes ➢ Bars, Pubs & Nightclubs ➢ Theatres & Concert Halls ➢ Museums & Galleries ➢ Outdoor Markets 4
In the current crisis employers have an obligation to facilitate employees in observing government advice which is that individuals should: ➢ Only go outside for food, health reasons or work (where this absolutely cannot be done from home) ➢ Staying 2 metres (6 feet) away from other people (“social distancing”) ➢ Avoiding busy commuting times on public transport where travel is essential ➢ Washing hands as soon as you get home 5
➢ Employers should support their employees to take these steps including agreeing more flexible ways of working. ➢ In relation to employees who are working from home their will continue to benefit from all the terms and conditions of their employment and the employer should seek to keep in regular contact and check on the employee’s health and well-being. ➢ It is advisable to agree a working from home policy and, where appropriate and necessary, ensure that health and safety considerations of home workers have been fully assessed. 6
➢ An employee’s obligations extend to following government advice and notifying an employer immediately if they consider that they or anyone with whom they have come in close contact has exhibited Coronavirus like symptoms and then to take appropriate action. ➢ On some occasions individuals may feel that they do not want to go to work because they are afraid of catching Coronavirus. There are some categories of vulnerable employees for whom this would pose a bigger risk and who may have a greater sense of concern. Employers should listen carefully to any concerns that staff may have and if possible arrange for them to take additional time off as holiday or unpaid leave. An employee is not however entitled to refuse to attend work without a valid reason. 7
➢ Current governmental guidance is that if anyone becomes unwell with a new continuous cough or a high temperature in the business or workplace they should be sent home and advised to follow the stay at home guidance. ➢ Employees should be reminded to wash their hands for 20 secs more frequently and catch coughs and sneezes in tissues. ➢ Frequently clean and disinfect objects and surfaces that are touched regularly using your standard cleaning products. 8
➢ Those who follow advice to stay at home will be eligible for statutory sick pay (SSP) from the first day of their absence from work. ➢ Employers should use their discretion concerning the need for medical evidence for certification for employees who are unwell. ➢ Employees from defined vulnerable groups should be strongly advised and supported to stay at home and work from their if possible. ➢ Treatment of employees should be consistent irrespective of their status or background. 9
➢ Government guidance is that an individual who develops symptoms should be sent home and advised to follow the stay at home guidance. ➢ They should contact 111 if they require clinical advice. In an emergency they should call 999 if they are seriously ill or injured or their life is at risk. ➢ The guidance is that they should not visit the GP, Pharmacy, Urgent Care Centre or a Hospital. ➢ If a member of staff has helped someone who was taken unwell with Coronavirus like symptoms they do not need to go home unless they develop symptoms themselves. They should wash their hands thoroughly for 20 secs after any contact with someone who is unwell with Coronavirus like symptoms. 10
➢ Furloughed employees planning to take parental or adoption leave will be able to do so and will be paid in accordance with their usual pay rather than the furloughed rate. ➢ This means that employees taking time off following the birth, adoption or death of a child will be able to do so on their usual (not furloughed) rate of pay. ➢ Employees are entitled to time off work to help someone who depends on them in an unexpected event or emergency. This could apply to Coronavirus related situations. ➢ It should be noted that it is not necessary that the dependent actually lives with the employee. ➢ There is no statutory right to pay during a period of special leave to look after a dependant 11
➢ Employees who are sick including with Coronavirus are entitled to statutory sick pay at the current rate of £95.85 . The benefit lasts for 28 weeks. ➢ Employers are eligible to recoup two weeks of statutory sick pay payment from government in respect of those with Coronavirus. ➢ Government guidance confirms that employees following governmental guidance to stay home if they or someone in their household displays symptoms of Coronavirus and who cannot work as a result of the illness are eligible for SSP. ➢ Eligible employees will receive SSP from the first day of sickness absence. ➢ Individuals who are not eligible to receive sick pay including those earning less than an average of £118 per week may be able to claim Universal Credit or new style Employment & Support Allowance.
Given the sudden and substantial downturn in business that has been occasioned by the Coronavirus crisis some employers have found it necessary to vary the terms and conditions of employment of their employees. The changes most commonly encountered are: ✓ A variation in contractual terms to place the employee on furlough in accordance with the Coronavirus Job Retention Scheme ✓ Agreeing with the employee to work fewer hours commonly known as short time working ✓ Agreeing with the employee that he or she should be temporarily laid off ✓ Consulting about redundancy 13
It is important to remember … . ❖ Any significant change to an employee’s contractual terms and conditions can only be effected by consent it cannot be unilaterally imposed. ❖ Where changes are agreed by consent this should be recorded in writing. ❖ If the changes cannot be agreed then it is not permissible to impose those changes and an alternative approach will be required. 14
The impact of Coronavirus has been sudden and substantial on many workplaces. ➢ In Northern Ireland and elsewhere in the UK government has introduced the Coronavirus Job Retention Scheme (CJRS). For eligible employers this provides a grant of up to 80% of an employees normal pay in circumstances subject to an upper limit of £2,500 where the employee is furloughed meaning that they are not provided with work and required to stay at home. 15
➢ It is an important aspect of the Scheme that employees who are furloughed and in respect of which a claim is made under the Scheme may not carry out any work, so that Scheme is not applicable to those asked to work part time. ➢ If an employer wishes to reduce staff hours then it is important to remember that this constitutes a change to the main terms and conditions of employment and cannot be effected unilaterally. It will be necessary to consult with the affected employee and secure their consent to any reduction in hours or move to short time working. Not to do so would constitute a breach of contract on the part of the employer. 16
❖ If, regrettably, a business is to be closed down then redundancies are an inevitability and employers will need to consult with affected employees to the extent that is practicable. ❖ The Coronavirus Job Retention Scheme has recently been extended in its current form until end July 2020 and in a modified form until end October 2020 ❖ It has provided a breathing space for employers and employees alike but within the hospitality sector where businesses are in enforced lockdown the ending of the Scheme and even indeed the modification of the scheme from 1st August 2020 which, it has been indicated, will involve employers contributing to the costs may raise the prospect of redundancies. 17
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