A LAWYER has warned companies against sending their staff home on unpaid leave when they do not have the right to do so.

Local businesses have been cautioned to check staff’s contracts before emulating big employers such as Marriott and Virgin Atlantic, who have asked thousands of staff to go on leave without pay.

Kathryn Casey-Evans, partner and head of employment at Southampton-based Trethowans, said: “Legally, employers can’t send staff home without their agreement or a contractual right to do so, so check employment contracts for mobility clauses.

“If staff can’t work from home, or there isn’t enough work to do, then do your employment contracts contain a ‘right to lay-off’, or ‘reduced hours’ clause?

“If not, you can’t send staff home without risking a constructive unfair dismissal claim for those with two or more years’ continuous service.

“If there is a lay-off clause it must be exercised fairly and lawfully. The minimum guarantee pay must be paid. That’s £29 a day for up to five days in any rolling three-month period.

“That may be a manageable cost, but if the lay-off lasts more than four consecutive weeks, or for six weeks out of a rolling 13-week period, you risk eligible employees giving notice and bringing claims for a statutory redundancy payment as well.”

She said an employer planning to make more than 20 staff redundant would have to carry out a collective consultation for at least 30 days. When more than 100 people are being made redundant, the consultation must last 45 days.

“There may be an exception to this requirement, but it is a very narrow one and even if it applies employers still have to take all reasonable steps to comply,” she added.

“Breaches could lead to claims for up to 13 weeks’ gross pay per employee. Employers should therefore carefully consider their position before sending anyone home or making them redundant.

“Legally there is a risk but losing all those skills and knowledge might run a bigger risk still. Instead, consider whether a flexible plan, tailored to your staff and business needs, can be agreed with staff to cover the coronavirus pandemic.”

Employers are awaiting more details of the government’s coronavirus job retention scheme, which will pay up to 80 per cent of the salaries of staff who would otherwise be made redundant.