Back to business: Employers, get ready

Spring has now sprung in the second of the most unusual years, and with it comes some quiet optimism that the UK may have endured its last lockdown.

Throughout these tumultuous 12 months, food and drink businesses across the UK have adapted in the most inventive ways: from cook-at-home meal boxes, cocktail kits, and even repurposing breweries to manufacture hand sanitiser. The gradual reopening of society and ongoing vaccination programme could indeed herald the beginning of the end, so what does this mean in terms of “getting back to normal” for the food and drink sector?

The Scottish Government has so far set out a “route map” out of lockdown with the some of the following key indicative dates:

• From 2 April – The “Stay local” guidance will be lifted; however, current local authority travel restrictions remain in place.

• From 5 April – Scotland will see the resumption of sport, click and collect services and limited opening of retail such as hairdressers, car showrooms and garden centres.

• From 26 April – A key date for food and drink businesses which will see socialising limits raised to 6 people from 3 households, the lifting of travel restrictions and the resumption of outdoor hospitality.

• From 17 May – We will see the reopening of indoor socialising, with pubs and bars allowed to serve indoors until 10:30pm.

After a long and difficult year, this timetable (with the very big caveat that it goes to plan) will be a big change for many employers in all sectors. With this, what are some key things to be aware of when considering the return to work, and perhaps some element of normality?

Home working

The current guidance in Scotland and across the UK is to stay at home. The Scottish Government guidance on homeworking, as published on 19 January 2021 states:

“Organisations should make every reasonable effort to make working from home the default position. Where a worker can perform their work from home, they should continue to do so. This is especially expected of those roles that were done at home during the first lockdown in March 2020.”

This guidance follows the stay at home regulations which came into effect on 5 January 2021 requiring that employers take all reasonable steps to minimise the spread of coronavirus. This includes supporting staff to work from home for those roles that can be undertaken remotely.

Until the stay at home messaging ends with the emergence from the current lockdown, homeworking should be the default position, unless there is essential work, which cannot be performed at home. For food and drink manufacturers this is already the case, and once the hospitality sector opens again many front facing employees will join these ranks.

As well as this, the government guidance is clear that at all times employers must not ask or direct an employee to commit an offence by requiring travel for work which is possible to be done from home.

To avoid issues when returning to work it is critical that employers keep an open dialogue with employees. Currently this will involve discussing their working arrangements, and taking every possible step to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working. For those employees who must be in the workplace, ensuring that appropriate health and safety measures are in place is key.

The Coronavirus Job Retention Scheme

For those businesses who are waiting to start up again when restrictions ease, the Coronavirus Job Retention Scheme has been a lifeline. The scheme has now been extended until 30 September 2021 so this will continue to assist employers and employees who are closed, whether as a result of a local lockdown or due to ongoing restrictions, or those businesses which take time to work their way to full capacity again over the summer.

The details of the scheme remain largely unchanged, with flexible furlough still available. It is however important to note that claims can no longer be submitted under the scheme for periods ending earlier than 31 October 2020.

Annual leave

One other area that employers and employees may have overlooked is annual leave. Many employees may have not taken much or any annual leave in the last or current calendar year due to a variety of reasons such as being on furlough leave or a reluctance to take leave during the national lockdown.

To account for the impact of coronavirus on annual leave, last year the UK government passed emergency legislation relaxing the restriction on carrying over the four weeks' leave derived from the Working Time Directive (2003/88/EC) (WTD leave. From 26 March 2020, employers must permit the carry-over of any untaken WTD leave where it was not reasonably practicable to take it in the leave year "as a result of the effects of the coronavirus (including on the worker, the employer or the wider economy or society)".

So, what does “not reasonably practical” mean? Government guidance suggests that the following factors should be considered:

  • Whether the business has faced a significant increase in demand due to COVID-19 that would reasonably require employees to continue to be at work and have been unable to take leave.
  • The extent to which the business’ workforce is disrupted by COVID-19 and the practical options available to the business to provide temporary cover of essential activities.
  • The health of the worker and how soon they need to take a period of rest and relaxation. For example if an employer can only allow a limited amount of leave to be taken for operational reasons relating to the pandemic, and it prioritises those who need to take a period of rest and relaxation, then it could make it not reasonably practicable for others to take their annual leave in that year.
  • The length of time remaining in the worker’s leave year.
  • The extent to which the worker taking leave would impact on wider society’s response to, and recovery from, the effects of COVID-19.
  • The ability of the remainder of the available workforce to provide cover for the worker going on leave.
How does this affect employees who are on furlough?

Arguably, it is reasonably practicable for workers or furlough to take annual leave, and this is supported by the COVID-19 holiday guidance stating that furloughed workers are unlikely to need to carry forward their statutory leave because they will be able to take it during furlough. However, one thing to keep in mind is that employees must be paid at 100% of their salary for annual leave taken, including during furlough. Therefore if an employer is unable to pay 100% of salary for leave, it would not reasonably be practical for employees to take leave and they should be allowed to carry this over.

Management of annual leave is important, particularly in advance of the emergence from lockdown. Many employees will have a large accrued bank of leave and understandably may wish to take this during the summer months when there is more to do. For a business gearing up again this could be an issue if not managed. Employers should therefore engage with staff at an early stage to encourage leave to be taken, or even designate days of leave with the appropriate notice.

Perhaps never so much in recent years has the renewal associated with spring been as synonymous with the national feeling of renewal as it is now. The emergence from lockdown is indeed a great cause for optimism, and the time for business to start planning for this is already underway. All of the potential risks above can be mitigated by good business planning, so to ensure that your business is ready to spring into action, start this planning now.

How can we help?

If you have any questions in relation to home working, furlough or annual leave, please do not hesitate to contact a member of our specialist Employment team.

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