EMPLOYMENT LAW OCTOBER 2020
Employment law SOS
As MM’s Employment Law column returns, our legal experts look
at rows over redundancy terms, mask-wearing on the shopfl oor
and restarting work after recovering from COVID-19
BY ANGELA CARTER, HEAD OF MANUFACTURING AND OLIVER WILLIAMS, REGIONAL H&S MANAGER, ELLIS WHITTAM
Mask-wearing is
causing arguments
on our shopfl oor. Following
government advice, we have
implemented a policy of
mandating face coverings in
communal areas. However,
two or three employees have
decided to fl out these rules,
refusing to wear a mask,
leading to some heated
confrontations around
the factory. Can we legally
enforce the wearing of masks,
or is it just advice?
The risk of controlling
COVID-19 infection in noncustomer
facing workplaces
must be assessed by the
employer depending on the
workplace environment and
other controls in place, for
example:
Social distancing or, where
that is not possible, reducing
the number of people in the
work area;
High standards of personal
hygiene and hand washing;
Increasing surface cleaning;
Assigning and keeping people
to shift teams;
Using screens and barriers to
keep people apart.
Wearing additional PPE
beyond that normally worn
is not benefi cial as the risk of
infection needs to be managed
through a hierarchy of controls
as mentioned above. To
achieve this, you may need to
implement further controls
depending on your workplace
lay out, such as staggering
break and start times and
reviewing workplace layouts.
Wearing of face masks even in
communal areas, such as rest
rooms should not be required
if the right controls have been
implemented.
Generally, it is down to
an employer to issue, and
for employees to adhere to,
‘reasonable management
instructions’ and that failure
to follow a reasonable
management instruction can
result in disciplinary action.
Most employers’ disciplinary
policies and procedures will
identify ‘failure to follow
a reasonable management
instruction’ as an act of
potential gross misconduct,
which could lead to summary
dismissal (i.e. dismissal
without notice).
If, from a health and safety
perspective, wearing masks
in communal areas is not to
be encouraged, the question
be diff erent approaches and
considerations which you would
need to take as an employer
between a refusal on medical
grounds (asthma, etc) or a
refusal based on a preference
not to wear the face covering.
It’s looking increasingly
likely that we’ll have to
make redundancies in the
coming months. We last
went through a small-scale
redundancy process four
years ago and were able to
off er attractive fi nancial
packages to those who sadly
lost their jobs. This time
around, though, we won’t be
able to do this, and instead
can only off er statutory
redundancy pay. People who
went through the process
in 2016 are angry that this
time around the terms are
diff erent. What is your advice
around changing historic
redundancy payouts?
The fi rst place to start would
be with your contracts and
Employee Handbook, assuming
you have these in place. If
you did have a contractual
redundancy policy which
provided for enhanced terms,
this is where you are likely
to fi nd it. It is quite rare for
manufacturing clients to
have contractual enhanced
redundancy pay terms which are
much more commonly found in
the public and/ or third sector.
Assuming you do not have
enhanced redundancy pay terms
in your documentation, it is
also worth doing a bit of digging
into what exactly happened four
years ago and whether anything
was set out either in meetings,
or follow-up documentation,
at that time to create any
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then is whether going ‘above
and beyond’ the guidance
could amount to a ‘reasonable
management instruction’.
It’s certainly possible to see
an argument from an employee
that any disciplinary action
taken for refusal to follow
the instruction to wear a face
covering is unfair on the basis
that the instruction can’t be
‘reasonable’ if it runs contrary
to the government guidance.
Even if you were to seek
to implement this policy, it
would always be advisable in
any such cases to fi nd out why
a particular individual had an
issue with wearing the face
covering, prior to deciding
how to deal with it. There may
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