3 November 2020
Entrepreneurs and business owners have been suffering from the corona crisis for six months.
This has led to many questions and uncertainty about the rights and obligations of the employer and employee: about wages, changes in terms of employment, privacy, etc. Based on some case law and our own advice, we have listed some “best practices” below. These can help you be well prepared if the second corona wave affects the employment relationship this autumn.
The main rule since January 1, 2020 of “no work, yet wages” has been applied quite consistently by judges. This means that if your employee cannot work (from home) due to the corona crisis, they are in principle still entitled to wages – although in our view and on the basis of legal literature, there are certainly also arguments due to these ‘unforeseen circumstances’ for a wage risk distribution of 50/50 or 70/30 (as with illness).
It may well be that certain activities in your company have come to a standstill, but others are continuing unabated, or that you have been forced to develop new initiatives due to the crisis. You can then ask the employee to perform other work. This can be seen as a (unilateral) change in the terms of employment but, in our opinion, it is a reasonable request in the crisis situation with which the employee must comply.
The government measures force employees to stay at home in the event of a cold or corona symptoms of children or housemates. If working from home is not an option, then the starting point is the right to wages. But you do want to be able to check whether there is a real need for quarantine or isolation, where the question is, for example, whether an employee with continued payment of wages may/must be quarantined at home if the corona app shows this. Good communication with the employee is essential for this. If the employee has complaints, it is sensible to call in the company doctor. In addition, ensure clarity and document when symptoms started with the employee or their housemate and when the quarantine/isolation ends so that you may determine when the employee is expected to return to work. A general policy on the matter discourages employees from opting out too easily.
The employee has no legal right to work from home. For example, the employee cannot claim that right based on the Flexible Working Act. However, there is an urgent advice from the government to work from home, with the threat of company closure if the workplace is contaminated. The employer and employee must consult about the necessity and/or (lack of) possibilities to work from home. Business organisational reasons can be a reason for the employer to require the employee to come to work (largely) in the office.
Speaking of consultation: this is also a good time to involve employees (even) more closely in the organisation. Consider the situation that you are going to apply for a wage cost subsidy for NOW 3.0, you want to change the terms of employment collectively, or you have to implement a reorganisation. It is important that you, especially as a larger company, have a works council or staff representation for the necessary consultation and advice. Processes with a works council or union about a reorganisation or social plan seem time-consuming but, in this day and age, our experience is that employee representatives are certainly willing to contribute ideas and work. And without a proper platform for employee participation, your reorganisation at UWV could even be delayed.
From November 16, 2020, it is possible to qualify for a wage cost subsidy based on the new support package. If you, as an entrepreneur or business owner, do not want this (anymore) or if you do not meet the stricter requirements of NOW 3.0, what can you do? You can consult with employees about temporary adjustment of the employment conditions, including financial conditions such as bonuses, allowances and 13th month payments. As the ultimate option, you may need to carry out a reorganisation. Even with the NOW 3.0 wage cost subsidy, reorganisation is possible without penalty. In the event of dismissal, you will again run into the transition payment. However, the law offers possibilities to agree alternative (non-financial) provisions in the event of dismissal in consultation with trade unions.
Just as in the first months of the corona crisis, good consultation between employer and employee seems to be of great importance in reaching agreements about employment conditions and job retention or dismissal, at a time that is an “unforeseen circumstance” for both employers and employees. This also requires creative, legal solutions.
GMW advocaten is also always available for consultation; contact us with your questions.
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