Corona-virus (Covid-19) Legal Updates - Variation of Terms and Conditions of Employment

Following the declaration by the World Health Organisation of the Covid-19 pandemic as a public health emergency the Government has implemented a six-month state of emergency effective 2^nd April 2020 (the SOE). During the SOE a national lockdown has been declared and this has had an impact on Botswana’s economy. Economist Dr. Keith Jeffries, has opined that as a result of the lockdown, Botswana’s economy has lost BWP10.8 Billion and this economic slowdown has affected households, businesses and Government. Businesses ability to fully operate and generate revenue is under strain. Under normal circumstances, most businesses would reduce their workforce through either terminations or retrenchment. However, in terms of the Emergency Powers Covid-19 Regulations 2020 (Emergency Powers Regulations) employers are not allowed to terminate or retrench employees under the SOE.

In terms of the Emergency Powers Regulations movement of persons has been restricted resulting in the suspension of business operations and/or reduced revenues. To counter the adverse economic effects, businesses have amongst other things:

reduced employee salaries;
forced employees to take unpaid leave; and
reduced working hours and/or implemented shift working hours.

All of the above and/or related examples where the employer has unilaterally amended the essential nature of a contract of employment is a variation of terms and conditions of employment. In order for such variation to be valid the variation must be done lawfully. In terms of the law, an employer is not allowed to unilaterally amend an employee’s terms and conditions of employment unless:

there are sound commercial reasons for doing so; and
the employer has negotiated the matter in good faith through a fair procedure, which requires prior consultation with employees.

If an employer changes terms and conditions unilaterally and without following the above procedure, the employee has an election either to resile from the contract or to sue for damages in terms of the contract. Subject to complying with the above, management retains the prerogative to make the final decision as regards to changes to terms and conditions of employment if the parties cannot agree to such changes.

Considering the impact the SOE will have on a business’s ability to normally function we recommend that you seek legal advice on how to effectively and lawfully vary an employee’s terms and conditions of employment.

Feel free to contact me on tebogo@peolegal.co.bw or alternatively call +267 397 5779 if you any questions on the above.