It is possible that, due to the coronavirus crisis, there will be less work for employees to do in their own roles. How can you deal with this situation? In other words, can you ask your employees to perform alternative work temporarily if you are receiving a contribution under the NOW scheme? Do you need to amend their employment contract in such a case?
Right to issue instructions
You have the option of asking your employees to perform alternative work temporarily. After all, as an employer you have the right to issue instructions. That means you can give your employees instructions and directions with regard to work to be performed. In connection with the coronavirus crisis you can also ask your employees to carry out work on a temporary basis that differs from the agreed activities.
This may be necessary if other colleagues are absent due to illness, for example. Naturally, it must be work that the employee can reasonably be asked to perform. If necessary, you will need to give your employees explicit instructions relating to these new activities.
Safe work environment
Under occupational health and safety legislation it is important that you continue to provide a safe and healthy workplace. In concrete terms this means that you must provide your employees with the necessary protective equipment – e.g. a plastic screen if they have contact with customers – and, if necessary, must give them instructions on how they should use this protective equipment. You must also make your employees aware of any risks associated with the work.
You can also use the period during which there is less work available to offer your employees training, to ensure they are completely up to date once the coronavirus crisis is over. Perhaps you also have some jobs that had been put aside and can now be picked up again, such as the redesign of your website or administrative tasks.
Change to employment contract required?
If the work assigned is completely different from the agreed activities, it may constitute a change to the employment contract. An important aspect in such a case is whether you have agreed on a unilateral changes clause.
However, you can only make use of such a unilateral changes clause if you have a compelling interest that, in accordance with the standards of reasonableness and fairness, outweighs the interests of the employee that are affected by the change. Commercial or organisational circumstances are generally regarded as such a compelling interest.
Weighing up the interests of the employer and a group of employees
In such cases it is therefore necessary to weigh up the interests of the employer in changing the employment conditions, on the one hand, and the interests of the employee that are affected by the change, on the other. A unilateral changes clause is frequently used for collective changes that an employer wants to introduce for a group of or all employees. This may relate to the withdrawal of collective transport for itinerant employees, for example.
Appropriate work for one employee
If it is a case of appropriate alternative work for just one employee, the principles of good employment practice and of being a good employee come into the equation. That means it is necessary to consider reasonableness and fairness, with both parties bearing some responsibility in this regard.
Imagine a small company that has little room to manoeuvre financially and whose continued existence is under threat. In such a case a rather more flexible attitude may be expected of an employee, especially as the changes in question are temporary.