Implications of COVID-19 on contracts of employment

Given that the restrictions on how people live and work, during the coronavirus pandemic, could continue for some time, we recommend that employers consider taking some time now to assess how they may future-proof their documents and procedures to ensure that contracts and policies remain up to date and fit for purpose.

In March, the Coronavirus Job Retention Scheme was introduced by the Government to assist employers in continuing to pay employees and in protecting jobs, by encouraging employers to furlough their staff rather than to make what might have been knee-jerk redundancies. The scheme has subsequently been extended twice. While some employers may have had a contractual right to lay off staff, most didn’t and therefore had to seek agreement from affected employees to temporarily vary their contracts of employment in order to take advantage of the available Government support.

Unless they have been updated, sickness absence and sick pay policies are unlikely to extend to employees who are deemed extremely clinically vulnerable and/or who are self-isolating in accordance with Government guidance but are not unwell, as this is not a situation that we have encountered previously. It is, therefore, advisable to review and amend sickness absence provisions to set out expectations for employees who are either suffering from the virus, shielding or otherwise self-isolating, as it is unclear how long the current situation will last.

Other policies that employers may wish to consider either updating or introducing are a homeworking policy, an updated health and safety policy or a return to work policy that considers relevant risk assessment matters in the workplace such as face masks, social distancing, cleaning and sanitisation protocols, the provision of protective and safety equipment and one-way systems, where appropriate.

Employers should seek advice before making changes to contracts and policies. If this is not handled correctly, it could lead to unrest in the workplace with employees potentially claiming constructive dismissal on the basis that their employer has committed a fundamental breach of the employment contract, or, potentially, that they have suffered from unlawful discrimination.