If, during an infectious disease outbreak such as the coronavirus (COVID-19), an employer has a high proportion of employees absent, can it require other employees to work extra hours to cover the work?
An employer can require its employees to work extra hours where the contract of employment allows for this, and many employment contracts contain a term that states the employee is required to work additional hours in accordance with the needs and the requirements of the business. Any contractual right should be exercised fairly and reasonably so as not to breach the implied term of trust and confidence. The employer should consult with its workforce so as to determine which employees are able to work extra hours, and which have good reasons for not being able to do so. Where there is no relevant contract clause, employers must remain conscious of the difficulties of unilaterally imposing contractual changes, which may result in claims for constructive unfair dismissal. Any changes should be undertaken with early consultation and with a view to reaching agreement with employees. An employee may be taken to have agreed to contractual changes by working extra hours without complaint.
Employers should also ensure that they observe their obligations under the Working Time Regulations 1998 (SI 1998/1833). The Regulations apply to "workers", which is defined as anyone engaged under a contract to do any work personally, but excludes the genuinely self-employed. Under the Regulations, a worker is entitled to an 11-hour daily rest period (reg.10), a 24-hour weekly rest period (reg.11) and a rest break of 20 minutes where the employee works more than six hours (reg.12). The employer must also provide adequate rest breaks where the pattern of work is such as to put the worker's health and safety at risk, eg monotonous work (reg.8). There are exemptions that apply to regs.10, 11 and 12. One that may apply in the case of a flu pandemic is where the worker's activities are affected by an occurrence due to unusual and unforeseeable circumstances beyond the control of the employer or an accident or the imminent risk of an accident. Finally, unless employees have signed voluntary opt-out agreements, employers should ensure that their adult workers do not work more than 48 hours a week calculated over a reference period of 17 consecutive weeks.