Chris Randall

Chris Randall

ChrisRandall

Chris Randall is Head of the Employment Law Department at Ringrose Law. He qualified as a Solicitor in 2006 and has always specialised in employment law. He graduated from the University of Lincoln in 2003 with a First Class LLB (Hons) Law Degree and from the University of Leicester in 2009 with a LLM Masters in the Law of Employment Relations.


It’s estimated that around eight million people are currently absent from work on furlough leave. Although the scheme will continue until the end of October, the Prime Minister has recently announced that we should try to return to work from August 1st if we can in order to try and return to some kind of normality. Does this mean that your employer can simply force you to return to work and do you have any rights as a furloughed employee?

Many furlough agreements set out when the period of leave will end, however, if this is not the case then the employer should provide the employee with reasonable notice. The starting point is that if an employee does not attend for work when requested to do so, they could face not receiving pay and/or disciplinary action. 

A reasonable employer would be expected to consult properly with the employee about the reasons for non-attendance to try and find a solution. Furloughed employees retain their statutory and contractual employment rights, albeit that their terms are temporarily varied to place them on leave. Employees with two years’ service have the right not to be unfairly dismissed and all employees have the right not to be unlawfully discriminated against.

Some employees will understandably be reluctant to return to work for health reasons. Those categorised as high risk will want to avoid returning to a workplace for as long as possible. Employers should look at whether they can support those employees by making adjustments by the Equality Act 2010. Such an adjustment may be allowing the employee to work from home and/or to attend the workplace at less busy times, or simply continuing the furlough leave. 

Employees who are absent due to caring for vulnerable relatives, or with childcare responsibilities may prefer to remain furloughed. If an employer attempts to force employees back to work in these circumstances, they may face claims of unlawful discrimination to an employment tribunal.

Employment law provides employees with the right to remove themselves from a workplace if there is “serious and imminent danger”. If an employee is dismissed after doing so, they may be able to claim unfair dismissal. If an employee feels that their employer is not properly adopting social distancing measures in the workplace, they can report them to the Health and Safety Executive and/or their local authority.  

Where an employer is insistent on a return to work, it may be possible to delay this by making other arrangements. It is possible to use holiday or take a period of unpaid leave, or if there are concerns about something like travelling safely to work, different shifts might be accommodated. The employer is not obliged to agree to such requests, but it is advisable to try.

The government’s furlough scheme is due to end on 31 October 2020. It is hoped that the government’s recently announced employer incentives will mitigate the number of redundancies that are expected

— Chris Randall is the Head of Employment Law at Ringrose Law

Chris Randall is Head of the Employment Law Department at Ringrose Law. He qualified as a Solicitor in 2006 and has always specialised in employment law. He graduated from the University of Lincoln in 2003 with a First Class LLB (Hons) Law Degree and from the University of Leicester in 2009 with a LLM Masters in the Law of Employment Relations.

The government has announced it will allow workers to carry over up to four weeks annual leave into the next two leave years. At present, almost all workers are entitled to 28 days holiday including bank holidays each year. Most of this entitlement cannot be carried between leave years, which means workers lose their holiday if they do not take it.

The Working Time (Coronavirus) (Amendment) Regulations 2020 (not yet published) will amend regulation 13 of the Working Time Regulations to allow workers to carry over EU holiday into the next two leave years, where it is not reasonably practicable for them to take some, or all, of the holiday they are entitled to due to coronavirus.  

Regulation 13 only deals with the EU four weeks’ leave. The balance of 1.6 weeks’ statutory leave will not be affected (although it can be carried over for up to a year by agreement under existing law).

The change is aimed at allowing businesses under particular pressure from the impacts of COVID-19 the flexibility to better manage their workforce, while protecting workers’ right to paid holiday. This will mean staff can continue working in the national effort against the coronavirus without losing out on annual leave entitlement.

Business Secretary Alok Sharma said: “Whether it is in our hospitals, or our supermarkets, people are working around the clock to help our country deal with the coronavirus pandemic.

“The changes will mean these valued employees do not lose out on the annual leave they are entitled to as a result of their efforts, and employers are not penalised.”

Environment Secretary George Eustice also said: “From our fields to our supermarkets, we are hugely grateful to the many people working around the clock to keep the nation fed.

“At this crucial time, relaxing laws on statutory leave will help ensure key workers can continue the important work to keep supplies flowing, but without losing the crucial time off they are entitled to.

“We welcome the measures the food industry is already taking to keep shelves stocked and supply chains resilient, and will continue to support them with their response to coronavirus.”

The changes will amend the Working Time Regulations, which apply to almost all workers, including agency workers, those who work irregular hours, and workers on zero-hours contracts.

— Chris Randall is the Head of Employment Law at Ringrose Law

Chris Randall is Head of the Employment Law Department at Ringrose Law. He qualified as a Solicitor in 2006 and has always specialised in employment law. He graduated from the University of Lincoln in 2003 with a First Class LLB (Hons) Law Degree and from the University of Leicester in 2009 with a LLM Masters in the Law of Employment Relations.

The office Christmas party is a common way to boost morale by rewarding staff and giving everyone a chance to bond, but when things do not go to plan, the consequences can be much worse than a hangover.

A work related event?

Despite its festive atmosphere, an office Christmas party is legally an extension of the office environment even if it is held away from the office and beyond working hours.

Employers should be aware that they remain liable for acts of harassment, discrimination, assault or other unwanted conduct carried out by their employees.

Who to invite?

Employers should not make the staff attendance at such events compulsory. This could potentially discriminate against those who are unable to attend, for example, on the grounds of childcare.

Employers should guard against pressurising non-Christian faiths to attend in case it makes them feel uncomfortable.

All staff should be invited to the party so that it is inclusive. The invitation should extend to those who are absent from work on family reasons, and consideration should be given to inviting employees who are absent on sick leave.

The venue

Consider choosing a venue that is accessible to all staff including those who may have a disability. Similarly, make sure that any entertainment provided will not cause offence.

In certain circumstances, an employer can be responsible for acts of third parties. This was demonstrated in the Burton and Rhule v De Vere hotels case, primarily a race discrimination case, where the hotel was found to be liable for the harassment of two waitresses by the comedian Bernard Manning’s racist jokes, who was the speaker at a dinner.

Discrimination

Employers should continue to guard against acts of discrimination.

In Nixon v Ross Coates Solicitors, Nixon, the claimant, was seen leaving the office Christmas party, where “a good deal was drunk by everybody”, kissing another employee and going to a hotel room with him.

She told her employer that she was pregnant. The firm’s HR manager began gossiping about the paternity of the baby.

The claimant was upset and embarrassed by the rumours and requested to work away from the HR manager at the firm’s other office. She also raised a formal grievance. Her request to work from the other office was denied and she refused to go back to work in the same office as the HR manager. She resigned in March.

The Employment Appeal Tribunal found the HR manager’s actions amounted to harassment on the grounds of pregnancy. The gossip was connected to the claimant’s pregnancy; the conduct was unwanted, and it caused the claimant embarrassment and upset.

Do not make promises you cannot keep

It is best to avoid discussions regarding career development and pay at Christmas Parties, for rear of misinterpretation.

In the case of Judge v Crown Leisure Limited, during a Christmas party, the employee claimed he was promised that he would be put in the same pay scale as a different employee who had transferred within a period of two years.

His manager disputed this claim. When this pay increase did not materialise, he resigned and claimed unfair constructive dismissal. The Employment Appeal Tribunal held his claim should not succeed because the conversation between him and his manager took place during the “convivial spirit of the evening” and was not intended to be binding.

This is a case that could have been decided differently if there had been more certainty on the agreement reached.

Social media

Remind staff of your social media policy. Staff need to be aware of the consequences of posting pictures online that may bring the business into disrepute, or infringe the rights to privacy of colleagues.

Employers should consider the popularity of social media platforms such as Twitter, Facebook and Instagram. It is important that employees understand the possible consequences of breaching the policy.

How to reduce the risk

  • Make the party inclusive and invite all staff, whether they are absent or not.
  • Select entertainment that will not be viewed as offensive.
  • Remind staff of your policies. It is worth sending an email round on the day of the party just so staff realise the business’s rules apply outside the office too.
  • Have a dress code.
  • Avoid an unlimited free bar. Consider an allowance of drinks tokens to try and regulate the consumption of alcohol.
  • Consider how staff will get home. Ideally arrange transport such as taxis or buses, or at least make sure everyone can get home after.
  • Avoid discussions at the party regarding career development or anything that could be misinterpreted.
  • Make sure your employer’s liability insurance covers your staff’s welfare at the party.

Chris Randall is Head of the Employment Law Department at Ringrose Law. He qualified as a Solicitor in 2006 and has always specialised in employment law. He graduated from the University of Lincoln in 2003 with a First Class LLB (Hons) Law Degree and from the University of Leicester in 2009 with a LLM Masters in the Law of Employment Relations.

+ More stories