As the government’s ‘work from home’ guidance is due to end next week and the Coronavirus Job Retention Scheme (CJRS) starts to unwind (and will end completely on 31 October), many employers are re-imagining their workforces and actively making plans for what will become the ‘new normal’.  With any potential vaccines still at least nine months to a year away, social distancing, protective mitigation measures, and the constant spectre of local or national lock-downs, are here to stay.

Whilst most of the government’s intervention measures (including the CJRS) have had a fairly uniform, one-size-fits-all application, the impact of the pandemic so far has been, and the ‘new normal’ going forwards will be, anything but uniform.

Unlike many other recessions in the past, one size certainly does not fit all this time, both with many clear losers and a significant number of clear ‘winners’. Sectors such as hospitality and travel have taken the brunt of the impact and, with hopes of a ‘V’ shaped recovery receding, will continue to do so for some time to come. Other sectors, such as IT and technology, have performed really strongly, with some cases of ‘profiteering’ even catching the public eye. In some sectors though, the picture is really mixed, most notably perhaps, in retail.

According to recent CBI figures, retail sales have recovered to their highest level in more than a year and yet, at the same time, many retail businesses are suffering badly, with great disparities in performance. The disparities between grocery and clothing stores and between in-store / high street and on-line are just two of the more high profile ones. In some sectors, there are even wide disparities within the same businesses. For example, some of the UK’s major banks have delivered significant profits through strong trading in their investment banks whilst setting aside £billions for bad loans, as they prepare for a wave of defaults when the full economic fall-out from the pandemic hits later this year.

What is becoming more uniform, however, is the challenges facing employers in this ‘new normal’. Whilst, perhaps, not a case of “one-size-fits all”, it might be a case of “one-of-two-sizes-fits-all”, with two challenges for employers standing head and shoulders above almost all others, neatly illustrated by two contrasting headlines, one underneath the other, in The Times on 30 July: “Office workers in no hurry to get feet under desks”; “National Trust sheds 1,200 staff to plug £200m losses”.

Redundancies of the kind experienced by the National Trust are not, of course, a new phenomenon but what is new is the challenges they and other employers are facing over ‘how’ and ‘when’ to conduct them. Thanks, in part, to lobbying by one of our Employment Team here at Knights, employers can now at least be certain that the CJRS will pick up both statutory and, where longer, contractual notice periods of employees given notice of redundancy during furlough. After weeks of initial uncertainty and confusion, employers can also now be confident that, by taking part in redundancy consultation, employee representatives won’t be classed as “working” and, therefore, jeopardise the right to reclaim furlough pay in respect of them under the CJRS. What is uncertain and causing difficulties for many employers though is the simple fact that (furlough and home working notwithstanding) employers must still comply with statutory collective consultation and fair selection and dismissal procedures. How to do that in these unprecedented times is the challenge, especially, as one commentator summed it up neatly, “a lot of people are already unemployed, they just don't know it yet”.

There are so many unanswered questions for employers: How can consultation be ‘meaningful’ if employee representatives claim that furlough and home working is preventing them from properly engaging with those they are supposed to be representing? Is it, and when might it be, fair to dismiss an employee, if 80%, 70%, or 60% of their wages are still being paid for by the government? Is it fair to consult with an at risk employee over the internet / by telephone, rather than face to face? How can an employer ensure that there is a fair selection procedure if none of the pooled, at risk, employees have done any work or been seen in the last 4 months or more?

Whilst such redundancy challenges might, difficult as they may be, carry an air of familiarity, the challenges facing employers wanting to follow the government’s lead and encourage employees back to the workplace are unprecedented. According to various recent surveys of Britain’s biggest employers, more than half of office workers will continue to work from home for the next few months, with employee numbers equally split: just over a third not wishing to return to work and a similar number wanting to do so. Amongst the large high profile employers who have declared their hand, Google has said that its staff can work from home until at least next summer and Natwest Group has said that about 50,000 staff will continue to work from home throughout this year and into 2021.Carrying out risk assessments, ensuring cleanliness, safe distancing and introducing other physical mitigation measures to protect health and safety in the office are significant challenges in themselves. Overcoming employees’ personal fears, accommodating their vulnerable dependent and child care issues (even when schools do return), and the whole issue of public transport, present a whole new level of challenges altogether.

If you might be struggling with these challenges, you can, at least, take comfort in knowing that we, here at Knights, have the right people with the right skills and experience to help you overcome them. One final thought though. Please don’t, in the meantime, fall into the trap of thinking that all of the challenges that came and you struggled with over the CJRS have now gone away.

Just as you were thinking it was ‘safe to go back into the water’, the ‘Great White’ Finance Act 2020 came into force (on 20 July 2020), giving HMRC a wide range of powers to investigate and claw back CJRS payments, with significant penalties and fines in more serious cases, for all those who received CJRS support which they were not entitled to.  Under the Act, employers that are liable to repay CJRS payments they were not entitled to must notify HMRC within 90 days of the Act being passed, or the date on which the charge arises, whichever is the later. Whilst re-imagining your workforce and grappling with redundancies and/or bringing people back into the office, and before you ‘go back into the water’, do take time to review your CJRS claims and notify HMRC of any genuine mistakes carefully and clearly. It might just save you from attack and some expensive and unwanted penalties and fines.

Contact Us

For more information on this topic, please get in touch with Malcolm Pike from Knights' Employment team.