Posted: 05/05/2020
Charities often have loyal and passionate staff and volunteers, who believe strongly in their employer’s cause. This article explores some legal and practical issues about communicating with staff and volunteers at a time where many may be working remotely or are furloughed.
Where you and your staff are working remotely, it is worth taking some time to consider how you will maintain communications with them. Ad hoc conversations in the shared kitchen are on hold for now, so you will need to be more deliberate in planning how you will keep in touch with direct reports and colleagues. This will enable effective line management to continue but also contribute more broadly to the wellbeing of the workforce.
For furloughed employees: do make sure, before they go on furlough, that you have up-to-date and effective contact details for them. Many employers are removing furloughed employees’ access to work email accounts, so their personal contact details will be essential. Make sure they know what their personal contact details are going to be used for: you could even suggest that employees set up new personal email accounts for the purposes of work communications if they are concerned about privacy.
There is no reason why formal processes – such as performance management, grievance and redundancy processes – should not continue remotely. Indeed, an employer may well be criticised for using remote working or furlough leave as an excuse for shelving such processes, and will certainly put the success of its business and the development of its people at risk if processes are put on hold unnecessarily.
Some formal processes, such as redundancy consultation and performance management, require the employer to meet with the affected employee - in some cases, the employee is entitled to have a companion at the meeting. It is important to note that the inability to meet in person will not remove the need for the employer to do the best they can in the circumstances to go through the process in question as thoroughly as possible. If a face-to-face meeting is not possible, then ideally the meeting should be held by videoconferencing (such as Zoom, Skype or Teams): if this is impossible, then it should be held as a conference call. Make sure that you make it clear from the outset of the process how communications are going to be handled and if possible amend any policies which refer to meetings to make it clear that virtual meetings are permitted.
If it is not possible to arrange any sort of meeting – which would be unusual – then consider whether the procedure could be adapted to ensure that the employee has the opportunity to be consulted and that they have a chance to state their case, even if this is by email or in other written form.
You will need to make sure that if you have to serve notice on your employees (most commonly where you are serving notice of termination of their employment), the notice is served effectively. Check the terms of the employment contract – are there any rules about how notice is to be served: for example, is email permissible, or not? Must notice be sent by post, and when might it be effective? Consider whether any notice provisions should be changed in due course to make the service of notices under the contract less onerous.
Of course, you may be bringing new staff on board. If so, consider whether there are any provisions in your standard employment contracts which mean that the formalities of signing are going to be difficult under current conditions. It would be usual to accept separate counterparts (copies) of the agreement signed by the employee and employer – ideally there will be a provision in the contract permitting this. Some employment contracts contain provisions (typically powers of attorney in relation to directorships, or intellectual property rights) which require the contract to be signed as a deed. Consider what arrangements can be put in place to ensure that a document can be signed in this way under current conditions. You and the employee may need to think creatively about who could be a witness in this situation.
If you are in the unfortunate position of considering dismissing 20 or more employees – for redundancy, or possibly in order to re-engage them on new terms of employment – you will need to carry out collective consultation. This involves giving information to, and consulting with, elected employee representatives or a recognised trade union. You will need to facilitate the election of representatives, if none are currently in place. It is the role of the representatives to communicate with the employees they represent, and it may therefore be necessary for you to share personal email details of furloughed staff with the representatives. If you do so, you should make sure that the employees know that this may happen – you could issue them with a short privacy notice confirming the position and the reasons for sharing this information. You should also make it clear to the representatives that the email addresses are given to them for the purposes of collective consultation only, and you could offer training in appropriate data-handling (for example blind copying mass emails): it should be made clear that misuse of this information would be a disciplinary offence.
Employee communications – whether formal, as above – or informal but important, such as information about accessing the workplace during lockdown, should be sent to all employees, including those who are on maternity leave, sick leave or other long-term leave of absence. Failing to communicate with employees who are away from the workplace longer term could lead to allegations of unlawful discrimination.
Employers may be using all sorts of different and novel ways of communicating with staff, whether for routine business or for formal employment processes. All staff should be reminded of the need to remain professional in the tone and content of their communications, and guidance could be produced for the conduct of business meetings which are being held remotely. Email is still often used informally – with unforeseen consequences when email trails are disclosed in litigation or in response to a data subject access – and other even less formal means of communication, such as instant messaging and WhatsApp groups, could also be subject to the same scrutiny. There is no need for anyone to lose their sense of humour, but employers should encourage their employees to communicate appropriately and sensitively in order to reduce the risk of harassment claims or other grievances.
The overriding message at this time must be that, whilst we are distanced from each other, it has to be ‘business as usual’ as far as is possible. This will enable any organisation to continue to develop and manage its people effectively, and to keep them enthusiastic about the cause served by the charity.
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