CORONAVIRUS - CONTRACT TERMS - 05.05.2020

Changing an employee’s duties due to staff shortages

Several staff are off work sick or following official advice over self-shielding and staying at home. Can you ask other employees to temporarily cover the responsibilities and duties of those employees who are absent?

Absence management

One of our subscribers has several employees who are absent from work due to the coronavirus outbreak. This situation means that they are temporarily short of people to physically carry out various duties and responsibilities in their workplace.

Can our subscriber automatically reassign those responsibilities and duties to other employees who are at work?

What’s in the contract?

The answer is that it will depend on what’s written in the employment contracts of those employees. However, what’s also relevant are the duties and responsibilities our subscriber is looking to transfer to other staff. By and large most employment contracts will contain a flexible job duties clause (see The next step ).

Tip. These clauses give you an express contractual right to vary an employee’s duties and responsibilities to meet your business needs as and when required.

Be reasonable

When exercising these types of clause you must always act reasonably. For example, it probably wouldn’t be reasonable to ask an admin assistant to clean the toilets. Neither would it be reasonable to ask them to do something that’s beyond their level of skill and experience, e.g. draft or review important legal documents. If you don’t have a flexible job duties clause, it is still possible to make small changes to an employee’s duties and responsibilities.

No clause?

This is because there’s an implied term in every employment contract that an employee must follow a reasonable management instruction.

Assuming you were making a reasonable request and it was within the employee’s level of skill and knowledge, a request to undertake other duties and responsibilities temporarily could be deemed fair. However, it’s safer to get the employee’s express agreement.

Tip. In difficult times, most employees will agree to undertake new or additional tasks temporarily if they are asked rather than told to do so, e.g. “We’d really appreciate it if you could help with....would that be okay?”

Furloughed employees

Whilst it’s OK to assign all duties to other staff members when an employee is off sick or self- isolating, the same is not true where an employee is furloughed and at home.

Tip. An employee can only be furloughed if they can’t otherwise undertake work for you, i.e. because your workplace is unable to operate or you have no work for the employee to do. You can’t remove all duties and responsibilities from an employee, furlough them and ask another employee to do their job, or a large part of it. HMRC says that “critical duties” may be temporarily assigned if you furlough an employee but it’s not yet clear what it deems these to be.

If an employee has a flexible job duties clause in their employment contract, you can assign them other duties. Your request should be reasonable and the task(s) within their level of skill and experience. Without this clause small changes could be made to duties by relying on the implied duty to follow reasonable management instructions.


The Next Step


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