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What the roadmap out of lockdown means for employment law

Mary Walker, partner and employment law specialist at law firm Gordons, details what employers need to know following the unveiling of the Government’s roadmap to ease COVID-19 lockdown measures.

Boris Johnson has set out the roadmap to ease lockdown measures and it seems the whole nation is pinning their hopes on Monday June 21st. From this date, if the first three steps have gone to schedule and the data continues to prove their effectiveness, all legal limits on social contact will be removed and the remaining elements of the hospitality sector be allowed to open. Pubs are already bracing themselves and the internet memes have started.

The announcement is undoubtedly a positive one, giving hope to millions that there is light at the end of the tunnel. For employers though, this huge focus on this one date in summer poses a very real concern that employees will abuse their rights.

This sort of event might occur for a significant date like the turn of the millennium or for major sporting events like the World Cup or the Olympics. Over the years, YouGov has carried out surveys to understand the impact of (among other events) the World Cup on business productivity and shown that as many as one in four men aged between 25-34 year-old men would seriously consider taking an unauthorised absence when the World Cup kicks off.

With this in mind, what do employers need to know ahead of June 21st? Here is some practical advice for when Step Four of the roadmap is unlocked this summer.

Should I just give my employees time off?
Of course, the law needs to be balanced against staff morale and engagement considerations – particularly after what has been a challenging 12 months for everybody. Some firms have already made a commitment to give their staff the day off on June 22nd. This won’t be practical for all employers, but you may want to consider flexible working options such as flexible starts or finishes as long as the time is made up.

Can staff book holidays?
Any employee can book holiday in line with your Holiday Policy or Employee Handbook. It is important to have these policies in place to overcome any potential issues such as managing multiple requests for the same day.

Any policy you follow, such as ‘first come, first served’, has to be applied consistently to avoid claims of discrimination or favouritism.

It may be helpful to clearly set out your company’s approach to holiday requests including the staffing levels that will be needed on the 21st and 22nd of June and how holiday is to be allocated.

What happens if an employee rings in sick on June 21st or June 22nd?
You should warn your employees well in advance that taking ‘sickies’ will be regarded as misconduct. Introduce a self-certification form for absences as part of your Sickness Absence Policy. The key to the self-certification is that the employee has to sign confirming the genuine reason(s) for their sickness. The policy and the self-certification form should also make clear that providing false information could lead to disciplinary action. This way, any unauthorised absence and any false statements given by the employee can both be classed as misconduct.

Make it known to your employees that sick leave taken dishonestly is a disciplinary matter taken very seriously by the company. Of course, as in any fair disciplinary process, there must be a fair investigation based on good evidence not just hearsay or assumption.

Can I use social media posts and images to confirm their whereabouts when off sick?
The value of social media posts depends on what they show and how clearly. They can form part of the evidence against an employee but an Employment Tribunal would not think highly of a deliberate search to find incriminating evidence if no other suggestion of misconduct was present.

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