Helping employees keep their cool in a heatwave

Guides & Advice

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This recent heatwave has raised questions surrounding dress code and hot weather policies, particularly for those employees who are working remotely.

With many businesses adopting a more agile working culture, many employees are still choosing to work from home. However, this does not mean that employers can suddenly forget their health and safety responsibilities. Plus, if people are uncomfortable it’s difficult to maintain a productive workplace.

So should re-assessments be made? Here we explore what businesses can do to ensure their employees stay cool, wherever they’re working.

  1. Safe working temperatures

Employers usually rely on air conditioning and ventilation to regulate temperatures within the workplace.  However, employees working remotely may not have this option, with their only means of keeping cool to open windows. This could lead to the potential disturbance from street noise and neighbours when trying to make telephone or video calls, and therefore can make this option impractical.

Businesses should think about what else they can do to be of practical assistance, for example, by providing workers with electric fans if appropriate.

For those employees that have returned to the workplace, although there is a minimum working temperature of 16 degrees centigrade, currently there is no maximum temperature. This is because in some work environments, such as a bakery or foundry, the temperature will reach higher temperatures far quicker than in an office. Therefore, it’s difficult to set an appropriate limit for all.

  1. Legal obligations

Employers have no legal obligation to ensure suitable working temperatures. However, they do have a duty of care over their employees, so must provide a safe environment where staff are not at risk of falling ill from the heat.

With regards to the usual workplace, installing air conditioning or making sure there is always access to cold water, could form part of this.

To protect workforce wellbeing when remote working is in place, employers should follow a sensible plan; this should involve line managers checking in with staff at least once a day and reminding employees to stay hydrated and take proper breaks.

  1. Dress code

For those employees that have returned to the workplace, in hot weather, businesses should consider relaxing the rules around restrictive clothing, such as ties. Employees are unlikely to produce their best work when all they can think about is how warm they are.

It may even be worth introducing a dress-down policy for days when temperatures are considerably above average, and for meeting commitments encourage a more casual dress code.

Employers with a dress code in place for video calls when working remotely should also consider relaxing it.

  1. Flexible working

On days of extreme temperatures, implementing an early start and late finish workday, like those common in hot countries, would allow workers to rest during the worst of the heat and work when it is cooler.

Your employees’ health and safety should always be a priority.

Failing to consider what adjustments could be made to support employees when the temperature rises is not advisable. If staff become ill from the heat, especially those with health conditions which mean they are more susceptible, employers could find themselves involved in a personal injury dispute.

Ultimately, employee safety should always be an employer’s top priority and they cannot force staff to work if temperature and noise levels prohibit them from doing so.

Certain disabilities, such as COPD and arthritis, also make working in high temperatures particularly difficult, so employers need to consider reasonable adjustments that may need to be made to help them do their jobs safely.

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Mike has a strong reputation for helping employers solve difficult employment problems and make choices based on appropriate risk assessment.

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Flexible working requests – will need to wait a little longer

Blog | Employment

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As the final restrictions lift following the pandemic and business recovers, employers were looking to the Queen’s Speech this week to see what important employment law changes were on the horizon in 2022, as part of the long awaited Employment Bill. One change expected which is very much as a result of the pandemic and employees being required to work from home, if they could, is the opportunity to request flexible working arrangements as a day one right.

Sadly, it looks like the wait for this will go on, as there was no mention of the Employment Bill in this latest Queen’s Speech. The Employment Bill has been long under discussion and one of the aims of the new Bill has been stated to give employees more confidence and negotiating power to request agile working, enabling them to perform their role flexibly from the outset, which has been proved in many cases to be entirely possible.

What is the current law?

Currently, employees must wait until they have completed 26 weeks’ service with an employer before they can make a flexible working request. If this is rejected, the employee must then wait 12 months before they can submit another formal request.

What was expected from the new bill?

The new Employment Bill intended to make this a right from day one and planned to remove the once-a-year request limit.

This doesn’t mean, however, that employees would have an automatic right to work flexibly, but it does mean they would be entitled to request to do so, immediately upon starting their new role.

Disappointingly, the Employment Bill was not included in the Queen’s Speech and so these planned changes still appear some time off.

What does this mean for employers?

When this bill does finally make its way through Parliament, if this intention to broaden access to flexible working is introduced, employers will have to tread carefully with flexible working requests, as they will face stricter requirements for rejection, and will have to propose alternative options rather than dismissing a request outright. Requests will need to be considered in full. Currently, there are eight reasons that employers can give to justify refusal, but it is anticipated that the number of valid reasons will be reduced.

Of course, employers have a business to run and it will be up to them to decide if the requested arrangements are viable. If an employer has reasonable grounds for rejection, it is possible to insist the job is performed as advertised, even when faced with an immediate request for flexible working.

And for employees?

Even with a new right under an Employment Bill (when this finally gets introduced) employees may still be nervous about setting off their employment on the wrong foot.

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Voluntary redundancy – Are you really safe from an unfair dismissal claim?

Blog | Employment

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Until recently it is fair to say, that where a business is having to consider making compulsory redundancies and employees are given the ability to volunteer for redundancy (often on the basis of an enhanced redundancy payment), the likelihood of an unfair dismissal claim being presented is somewhat negligible.

However, a rather large shadow has been cast over that general proposition by the recent case of White v HC-One Oval Ltd.  While the facts of this case are slightly unusual for most voluntary redundancy scenarios, it does provide us with a refreshing reminder that we should not assume that voluntary redundancy is a risk free option.  It should not be forgotten that voluntary redundancy is after all a dismissal and not a resignation.

Ms W worked part-time as a receptionist. She raised a grievance alleging that she had not received an acting up allowance.  However, shortly after her grievance was submitted, HC-One announced that it was reducing the number of employees carrying out reception and administrative work. Ms W was provisionally selected for redundancy, and she subsequently requested voluntary redundancy, which was agreed.

Because Ms W had requested voluntary redundancy, and had left the business, HC-One decided that they would not progress her grievance.

Having left the business, Ms W submitted a claim for unfair dismissal.  She argued that the redundancy was a sham on the basis that HC-One had taken on a new full-time receptionist several months before the redundancy exercise, and that this person had been retained to do both reception and administrative work. Ms W alleged that she had been targeted because the company wanted to get rid of part-time staff and also because she had raised a grievance.

As part of the defence, HC-One submitted an application to the employment tribunal (ET) asking for her claim to be struck out because it had no reasonable chance of succeeding (given that she had volunteered for voluntary redundancy).  The application was successful and the ET struck out her claim.

Ms W appealed to the employment appeal tribunal (EAT) and was ultimately successful.  The EAT found that the tribunal should not have struck out the claim.  If Ms W's account of the background to the redundancy was accepted (which the ET did not consider), the facts known to the decision maker (i.e. the dismissing manager) might well be found to include matters other than just Ms W's request for voluntary redundancy. In addition, Ms W alleged that the redundancy process was a sham, and the ET would therefore need to consider the fairness of the process, before making any final decision.

Learning points from this scenario

In this case, HC-One did not use a settlement agreement as part of the voluntary redundancy arrangement.  Had they done so, then clearly Ms W would have had a much more difficult task of bringing a claim.  Settlement agreements settle most statutory and contractual claims (like unfair dismissal and discrimination) and that is why they can be so useful where the business wants to avoid any risk of those claims. However, it is not always necessary to use settlement agreements for voluntary redundancy arrangements, but where (as in this case) there are outstanding grievances or complaints around the redundancy process generally, then you may want to consider making completion of a settlement agreement a conditional part of the voluntary redundancy exercise (particularly where the employee has over two years’ service).

Settlement agreements do usually come at a slightly additional cost to the business, and so where it is decided not to use those agreements, you should ensure that a fair redundancy process is adopted (making sure that there is some consultation with those selected) to ensure that the employee is given an opportunity to raise any specific queries, and any internal procedures (such as grievances) are progressed and resolved. In short, it may not pay to cut any procedural corners during the redundancy exercise if you choose not to use a settlement agreement.

For the most part, most businesses will be able to assess the risks of specific individuals, and for those that present a greater risk, use a settlement agreement to avoid any problems arising later.

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Compulsory COVID vaccinations for care workers to end on 15 March 2022

Case Law Update

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In November 2021, the Government introduced a new law requiring mandatory vaccination for staff in Care Quality Commission (CQC) registered care homes in England. The media attention regarding this law and the many resulting dismissals of staff in the CQC sector, could not be missed. The same requirements were due to be rolled out for all NHS staff on 3 February 2022.

However, on 31 January 2022, shortly after the case of Allette v Scarsdale Grange Nursing Home Ltd, was decided and just days before the NHS requirement was due to come into force, the Government did a U turn on its plans to make COVID vaccinations mandatory for NHS staff in England, citing that it was “no longer proportionate to require vaccination as a condition of deployment by statute”. It confirmed that, subject to public consultation and parliamentary approval, the regulations would be revoked.

As of 1 March 2022, it has been confirmed that compulsory COVID vaccinations for care workers are indeed being scrapped in England. The requirement will end on the 15 March 2022. It therefore seems highly likely that, set against this new landscape, businesses and even health care settings, will find it much harder to justify a mandatory vaccination policy.

The care worker in this case below was fairly dismissed at a time when there were no laws in place requiring mandatory vaccination. However, it was also a time when COVID was far more prevalent and the risks to individuals far higher.

The case in question

The case of Allette v Scarsdale Grange Nursing Home Ltd, concerning the dismissal of a care home employee for refusing to be vaccinated against COVID 19 in January 2021 was not unfair, according to the employment tribunal.

The background to the case

The care assistant worked in a nursing home providing residential care for dementia sufferers. In December 2020, the roll-out of the COVID-19 vaccine to nursing home residents and staff as a priority was due to begin. SGNH Ltd, the care home operator, decided to make it a condition of continued employment that all staff were vaccinated.  Allette refused the vaccine stating that she did not trust the vaccine’s safety.

At a disciplinary hearing on 28 January, Allette notified her employer for the first time that she had a religious objection to the vaccine based on her Rastafarianism. Her employer also explained that the home’s insurers said they would not provide public liability insurance for COVID-related risks after March 2021 and they faced the risk of liability if unvaccinated staff were found to have passed the disease on to a resident or visitor.

It was concluded after the hearing that Allette did not have a reasonable excuse for refusing the vaccine and she was therefore dismissed for refusing to follow a reasonable management instruction.

Allette claimed unfair and wrongful dismissal but the tribunal rejected both claims, based on:

  • The mandatory vaccination policy corresponded to a pressing social need of reducing the risk to residents.

  • It was accepted that Allette had a genuine fear of the vaccine and scepticism but it was unfounded and unreasonable and not a reasonable excuse to refuse the vaccine - and did not affect her rights under Article 8 of the Human Rights Act 1996 and also met the reasonableness test under S.98(4) of the Employment Rights Act 1996.

  • The care home had a duty, both moral and legal, to protect its residents and its decision to introduce a mandatory vaccination policy was made at a time when the virus was circulating rapidly and most of the population was unvaccinated. It found that in this context the interference with Allette’s private life was proportionate.

  • The connection to Rastafarianism was rejected as it was only bought up at the 11th hour.

  • Allette claimed her employer should have steered her towards independent scientifically robust resources for information on the vaccine to allay her fears and scepticism but this was rebuked as information was widely available from Public Health England.

  • Allette also claimed that as she has recently recovered from COVID she would have antibodies but the advice from Public Health England at the time was that it was possible to contract and transmit the virus more than once – evidence of this was rife.

Taking all this in account the tribunal ruled that dismissal was within the range of reasonable responses.

What does this mean for employers?

The situation as of 15 March is that compulsory vaccination of care home workers is no longer law. One has to wonder, whether set against the current differing landscape, the Tribunal would have made a different decision. The constant change in these ‘COVID times’ shows just how important it is to always seek advice on your particular business circumstances before introducing any COVID policies or taking any related disciplinary action. Employers should review any policies that were introduced and might now be viewed as out of date.

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The menopause in the workplace –
how best to support staff and our fixed fee policy package

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As the population in general gets older, employers are having to deal with many issues linked to having an older workforce.  One of these issues is the menopause and the difficulties it can cause for staff who are going through it.

Employers have typically been slow to recognise the issues faced by menopausal women, and many women feel uncomfortable discussing it, as it is often seen as a taboo subject.  However, acknowledging these difficulties and assisting women to remain in work in spite of them, will be a significant factor in retaining female staff in this age bracket. Retention of experienced staff (whatever gender) is vital in avoiding the loss of key skills and experience from the organisation. Retention of older female staff can also have benefits in addressing the gender pay gap.

Menopause: The facts

The menopause is a natural stage of life for women, usually in their late forties/early fifties, although it can also happen earlier or later. Part of the process includes the “perimenopause” which is when a woman's body is starting to change.

There are many symptoms of the menopause including: hot flushes; difficulty sleeping and night sweats; feeling tired and lacking energy; mood swings; anxiety and panic attacks; difficulty concentrating and focussing; and migraines and other aches and pains.

It is important to note that the menopause affects every woman differently both emotionally and physically. The impact it has on an individual’s health can affect how they work, their relationships with colleagues and has knock-on effects on absence and productivity.

Menopause: The law

The menopause and perimenopause are not specifically protected under the Equality Act 2010. However, if a worker is treated unfairly because of the menopause or perimenopause, this could amount to discrimination because of, for example, their sex; a disability; and/or their age.

  • Sex discrimination - Unfair treatment of a worker because of their sex could lead to a discrimination claim, for example if an employer treats a woman's menopause or perimenopause symptoms less seriously than it would a male worker's health condition when considering a drop in job performance.

  • Disability discrimination - A disability is a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. This is a broad definition and a worker's menopause or perimenopause could potentially be regarded as a disability by an employment tribunal. If a worker has a disability, an employer must consider making changes to reduce or remove any disadvantages the worker experiences because of it (i.e. reasonable adjustments).

  • Age discrimination - Workers are protected against unfair treatment because of their age. This may include unfair treatment of workers because thy are going through the perimenopause or menopause.

In addition, the Health and Safety at Work Act 1974 says an employer must, where reasonably practical, ensure health, safety and welfare at work.  An employer must minimise, reduce or where possible remove workplace health and safety risks for workers. This will involve carrying out a health and safety risk assessment with a view to ensuring menopausal symptoms are not made worse by the workplace and/or its work practices, and making changes to help a worker manage their symptoms when doing their job.

Menopause: Your questions answered

Our fixed fee menopause policy

We’re offering a fixed fee menopause policy drafting service. For a fixed price of £950 plus VAT*, our team of experts will prepare a bespoke menopause policy for your business. This includes:

  • A consultation to determine the best approach for your organisation and employees

  • Advice from a dedicated team of experts who will work with you to create a policy unique to your organisation and its ethos

Outside of this fixed fee package, our team of employment law experts are also on hand to work with you once you have your draft policy prepared, including:

  • Consulting with employees, staff associations and unions

  • Advising on how to communicate with staff about the menopause policy

  • Evolving your menopause policy in line with Government policy changes and other developments

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Helen is an experienced employment lawyer, who works proactively with clients to identify solutions to complex HR issues. Helen has worked with a number of client to implement a menopause policy across a variety of sectors.

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Administrators and redundancy – is it about to get messy?

Blog | Corporate Restructuring & Insolvency

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The long running case of R (on the application of Palmer) v Northern Derbyshire Magistrates’ Court [2021] EWHC 3013 has sent ripples of concern through the insolvency industry, when it confirmed that (in theory at least) administrators can be prosecuted for a failure to follow redundancy procedures prescribed by sec. 194 Trade Union and Labour Relation (Consolidation) Act 199 (TULCRA). Insolvency practitioners across the country are now anxiously awaiting the outcome of the court proceedings which could place them in an insidious conflict between their duty to act in the best interests of creditors and ensuring they do not put themselves at risk of criminal prosecution.

The background to the case

West Coast Capital (USC) Limited (USC) was placed into administration by its director on 13 January 2015, when Mr Palmer was appointed as one of the administrators (two others were also appointed, but the division of responsibilities meant that only Mr Palmer was subject to proceedings).

On the same date, a pre-pack sale of the business occurred, which expressly excluded a warehouse. The following day, the employees of the warehouse (84) were notified by Mr Palmer that they were at risk of redundancy and that a consultation meeting would be held later that day. Around a quarter of an hour later, they were handed a letter advising them that following the consultation USC could not identify any alternative to redundancy and they were dismissed.

On 30 January 2015, the Redundancy Payments Service asked the administrators whether a form HR1 had been lodged. The form HR1 was lodged by the administrators on 4 February 2015, who explained that it was filed late due to an oversight. In July 2015, the Secretary of State (SoS) issued proceedings against Mr Palmer (and the director) for failure to follow redundancy procedures under sec. 194 TULRCA and, specifically failure to lodge form HR1 with the Redundancy Payments Service in the required timeframe.

Under sec. 193(2) of TULRCA an employer proposing to make 20 or more employees at one establishment redundant within a period of 90 days or less must notify the SoS of their proposal before giving notice to terminate a relevant employee’s contract of employment, and do so at least 30 days before the first of those dismissals takes effect.

Sec. 194 of TULRCA states that an employer who fails to do so commits an offence and is liable on summary conviction to a fine. Where such an offence is committed by a corporate body and is proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of, any director, manager, secretary or another similar officer of the body corporate, or any person purporting to act in any such capacity, they as well as the body corporate is guilty of the offence and liable.

The outcome

The Magistrates’ Court found that Mr Palmer (as administrator) could be prosecuted for offences under sec. 194 TULRCA. Mr Palmer sought a judicial review of that decision to ascertain whether it was in theory possible to prosecute an administrator under sec. 194, and this case is the outcome of that judicial review.

Mr Palmer argued that:

  • He was not a “director, manager, secretary or another similar officer” of the company and therefore fell outside the remit of sec. 194

  • An obligation on an administrator to give 30 days’ notice of the proposed redundancies could have serious ramifications for the administration process and place the administrator in an untenable position of conflict. It would mean they have an obligation to retain employees for a minimum of 30 days to avoid criminal prosecution whilst also being under a duty to act in the best interests of the creditors - which may require the immediate termination of employment.

  • Waiting more than 14 days before terminating the employment contracts would mean that the company adopts the contracts and elevates employee claims to preferential status.

What now for administrators?

The court on judicial review held that administrators are capable of being prosecuted under sec. 194. From the date they are appointed, only they are in a position to notify the Redundancy Payment Service as they are carrying out a managerial function in place of the directors. The issue of whether this makes administrations untenable is a matter for Parliament. The case will now proceed in the Magistrates’ Court to determine whether Mr Palmer committed a criminal offence.

The decision places administrators in an insidious conflict between their duty to act in the best interests of the creditors and ensuring they do not put themselves at risk of criminal prosecution. To date, there have been no successful prosecutions of administrators under sec. 194. The Magistrate decision is now anxiously awaited.

Pending the outcome of the Magistrates case, our advice to administrators where there is even a possibility of more than 20 redundancies taking is to carefully consider (pre-appointment) whether retention of employees is tenable or not and, if it is, determine whether the purpose of the administration can be achieved if employees must be retained for 30 days post-administration, and/or if redundancies are likely, review the steps taken by the directors to ascertain if the correct documents have been lodged within the required timescales. Subsequent to an appointment we’d suggest you assess the employee position and immediately file the relevant form HR1 with the Redundancy Payment Service if 20 or more redundancies are likely.

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Employment Appeal Tribunal holds striking employees are protected from detriment

Blog | Employment

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In a case of real interest to those involved in unionised sectors of the economy, the EAT has held the provisions of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A) which protect workers from detriment connected with trade union activities, also confers protection on workers who take industrial action, notwithstanding as to whether such action is protected under the legislation. In addition, the EAT held that striking workers are protected from detriment under the Employment Relations Act 1999 (Blacklists) Regulations 2010 (“Blacklisting Regulations”).

The background to the case

Ryanair DAC v Morais and ors

A group of Ryanair pilots participated in a strike called by the recognised trade union, BALPA. As a result, Ryanair withdrew concessionary travel benefits for a year from the pilots. The pilots brought claims arguing the withdrawal of benefits constituted an unlawful detriment under s.146 of TULR(C)A. In addition, the pilots brought a claim under regulation 9 of the Blacklisting Regulation, which prevents detriment in respect of a prohibited list.

Following a preliminary hearing, it was held the pilots were taking part in trade union activities in relation to both the Blacklisting Regulations and section 146(1)(b) of TULR(C)A.

What are the key points in this case?

TULR(C)A

The tribunal considered that to be able to protect the pilots’ trade union rights under Article 11 of the European Convention on Human Rights (ECHR), it was necessary to interpret section 146 as including participation in a strike, although TULR(C)A does not expressly state as such, which had led to uncertainty on the point. This was then upheld on appeal by the EAT.

Blacklisting Regulations

The EAT also held in relation to the Blacklisting Regulations, that the tribunal was correct in concluding that taking part in trade union activities includes participating in a strike or other industrial action organised or called by the union and that this interpretation is not limited to protected industrial action. Therefore by keeping a list of those who have taken part in industrial action and using it for detrimental purposes (the removal of the travel concessions), Ryanair had breached the Blacklisting Regulations.

What does this recent case highlight for employers?

This decision is an important one that builds on the additional protections for workers taking part in industrial action, after the conclusion of that action, and extends the protection against detriment further by clarifying the scope of both of the protections under TULR(C)A, about which there had been some doubt, and also the Blacklisting Regulations.

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Tom works with employers to prevent and resolve people issues, to ensure their organisations continue to work efficiently and effectively.

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A return to “hybrid working”? – What would this mean for staff wellbeing?

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On 26 January, the so-called “Plan B” COVID restrictions came to an end in England.

The Government had previously re-introduced a number of measures to tackle the outbreak of the COVID-19 Omicron variant on 8 December 2021. In England, this was referred to by the Government as “Plan B” and meant a return to the compulsory wearing of face coverings in public places, and working from home, wherever possible.

Millions of office-based employees across England have therefore been back to working full-time from their home offices, kitchen tables, and garden sheds.

Although this may have been an easy and desirable transition for some, there has also been an increase in the number of employees reporting feelings of stress and loneliness when working from home, typically attributed to missing out on the in-person, human interactions associated with office working.

Most employers will have made allowances for staff to attend the office on the occasions when their required tasks made it unavoidable. However, some large employers, such as accounting giant PWC and city law firm Slaughter & May, went further and added “mental health needs” as an acceptable reason for going into the office, even if the employee’s tasks did not strictly necessitate it. This acknowledges the potential benefit to an employee’s wellbeing of being allowed to attend the workplace, particularly if, in doing so, they are able to meet and interact with clients, colleagues or managers.

Whether the latest announcement will mean a sudden surge of staff returning to work full-time in the office is uncertain but seems unlikely. It is more likely that many staff will continue to work partly from home and partly from the office (i.e. hybrid working), as was the case after the previous relaxing of restrictions. In some cases, staff may even continue to work from home much, if not all, of the time.

This is borne out by polling, which has shown a lack of appetite among office workers to return to work in the office 100% of the time, and a desire from both employers and employees for a balanced blend of home and office-based work. Shakespeare Martineau, for example, has joined this trend with its ‘empowered working’ model.

Some international companies such as Twitter and Spotify have implemented “work from home, forever” and “work from anywhere” policies, respectively. Neither company envisages closing all of their offices permanently but will re-shape their use from a place of everyday deskwork to more collaborative workspaces.

So, the impact on mental health of periods of working from home, or away from the workplace, will remain a live issue.

In the UK, from an employment law perspective, it remains important that employers consider both their office and employees’ home working environments when considering their health and safety duties towards staff. Any home working plan and risk assessment should consider both mental and physical wellbeing when working from home, and each employee’s needs should be taken into account.

When staff are working from home, employers should be issuing specific and tailored advice to look after employees’ safety and wellbeing. This might include encouraging staff to keep in contact with managers and colleagues, to keep a routine that separates work and personal life, and to take regular breaks that involve stepping away from desks and moving around.

Employers should also be mindful of the potential for an employee who is struggling with their mental health to be deemed disabled under the Equality Act 2010. The general litmus test is if the mental illness has a substantial and long-lasting impact on their ability to do day-to-day tasks.  If an employer suspects this may apply to one of their employees, they should consider obtaining a report from an occupational health provider. Employers are required to make reasonable adjustments for disabled employees, and this is best done in open consultation with the employee in question, supported by any relevant Occupational Health report or medical documents.

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Robin has experience in employment tribunal litigation and ACAS conciliation, acting for both employers and individuals. Robin also advises on non-contentious employment matters including IR35, TUPE, GDPR, contracts, and more.

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Compulsory vaccination for care home staff

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The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 will come into force on 11 November 2021 and will make COVID vaccination compulsory for care home staff. Here we examine some of the key questions you may have.

What do the regulations say and why have they been introduced?

Given the higher risk COVID poses to residents of care homes, who are generally elderly or vulnerable (or both), when compared to the general population, the government decided to make the COVID vaccine mandatory for anyone working in a care home. It’s not a decision without controversy and it has been acknowledged that requiring anyone to undergo a vaccine as a condition of keeping their job is a highly unusual step. However, the government’s line on this – which will sound familiar – is that the pandemic is an exceptional situation and that unusual steps are needed to tackle the crisis.

What if an individual can’t have the jab for a medical reason?

The regulations anticipate this scenario and make it clear that where someone can’t have the jab for a medical reason, they will still be allowed to attend work, provided they can provide evidence of their medical exemption or, in the short term, self-certify their exemption. The actual numbers falling within this exemption will be low.

Do the regulations just apply to frontline care workers?

No, the rules apply to anyone working inside a care home.  There are some specific exemptions (see below) but otherwise, the rules apply to all staff regardless of the role they carry out and regardless of whether they actually have any direct contact with residents during their day-to-day work.

What about families visiting relatives in care homes?

The regulations contain a fairly lengthy list of exemptions that apply, the most significant one being that people visiting residents do not have to be fully vaccinated.  This includes friends as well as family members. This gives rise to a slightly bizarre scenario whereby an individual turning up to work at a care home without being fully vaccinated would have to be turned away, but the same person attending in their capacity as a friend or relative would be allowed in!

Whilst there are various other exemptions that could apply, in practice these will only apply in a limited number of scenarios.

What are the timescales on this?

The deadline for care home workers to be fully vaccinated is 11 November. Anyone not fully vaccinated by that date is strictly forbidden from entering the care home unless one of the exemptions applies. This means that workers will need to have received their first jab by 16 September in order to get the second jab in time for the deadline.

Anyone who is willing to get the jab but misses the deadline could ask their employer to try and bridge the gap (e.g. with holiday and/or unpaid leave) but this is only likely to be a feasible option where the delay is relatively short.

What if somebody won’t have the jab?

Unless the employer can relocate them to a building without any residents (e.g. a separate head office) the likelihood is that they will be dismissed. Such dismissals are likely to be fair provided a proper consultation process has been followed by the employer.

So is this good news or bad news for care home operators?

It depends on your viewpoint. On the plus side, it provides certainty for operators who were otherwise stuck in a bit of a quandary when dealing with employees refusing to get the COVID vaccine. However, it is likely to lead to operators having to dismiss employees that they would otherwise want to keep, and many operators are already struggling with severe staffing shortages.

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Minimum wage regulations: ensuring workers are paid fairly

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Minimum wage regulations

Big names such as Pret a Manger and Tesco have recently been called out by the Department for Business (BEIS) for failing to meet minimum pay rules. To avoid a similar ‘naming and shaming’, employers must ensure they review their practices and pay workers what they’re owed.

The consequences

Reputational damage is the most immediate, and potentially long-lasting, consequence of flouting wage rules. However, it also carries financial penalties that can be just as damaging.

Hefty fines from HMRC of up to 200 percent of arrears (capped at £20,000 per worker), as well as paying back arrears to individuals, can have a significant impact on a business’ financial position.

Keeping on the right side of the law

The employers named in BEIS’ list underpaid workers in three ways:

  • 47 percent wrongly deducted pay from workers’ wages
  • 30 percent failed to pay workers for all the time they had worked, including overtime
  • 19 percent paid the incorrect apprenticeship rate

To avoid making these mistakes and facing the consequences, employers must check that they are paying their staff the correct and current rates. This includes staying aware of any annual rises and rate increases due to certain trigger points, such as birthdays.

Rules for apprentices

Employers might not know that there is a rule regarding an apprentice's age – specifically those who are 19 and older or who are turning 19. The apprentice rate can only be paid for the full term of the apprenticeship if the person will be under the age of 19 for its entirety.

If not, the apprentice rate can only be paid for the first year, or must increase to the correct rate on their 19th birthday.

Record and review

As well as ensuring compliance, keeping accurate records of pay, hours and deductions is vital to withstanding the scrutiny of an HMRC investigation.

Regularly reviewing employment contracts is also important. Some businesses may have a contract template that they have used for years, but unless updated periodically, it could no longer be compliant.

Employers should also keep in mind that business practices often change over time. Contracts and policies may say one thing, but that doesn’t mean the company is following them.

This can lead to issues when connecting what a worker’s employment contract says, what the working arrangements are, and what they are being paid in practice.

It’s also essential to ensure that hourly rates are being calculated correctly, as failing to do so can cause employers to accidentally break the law.

Being fully informed about current minimum wage regulations, and any changes on the horizon, can help employers to ensure they don’t find themselves being named and shamed in future.

For more information, contact our employment team.

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Whilst there is optimism for the future, where a business is not expected to bounce back, that might mean redundancies.

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COVID-19 cases reach the employment tribunal

Despite the easing of restrictions employers have had to deal with a number of previously unheard of issues such as furlough leave, self-isolation and making workplaces “COVID secure”. It has been a steep learning curve and, perhaps inevitably, these situations have not always been handled in the best way. We are now seeing cases reach the employment tribunal and, in this article, we examine some of those cases that have been heard recently.

Even though the end of restrictions is in sight, many staff will remain concerned about commuting and attending their workplace and employers will need to be sensitive to this. Although the cases below are only at tribunal level and so not legally binding, they provide useful guidance on some of the issues that employers may encounter in the coming months.

Gibson v Lothian Leisure

Background

Mr Gibson, a chef, was furloughed when the first national lockdown began. During his furlough leave and in the run-up to the end of lockdown, his employer asked him to come into work. Mr Gibson was worried about catching COVID-19 and passing it on to his father who was clinically vulnerable. When he raised concerns about the lack of PPE and a non-secure COVID-19 working environment, his employer summarily dismissed him via text message, with no notice or accrued holiday pay. The message said that Lothian Leisure was changing the format of the business and would be running it with a smaller team after the lockdown. Mr Gibson brought various tribunal claims, among them one for automatic unfair dismissal.

Tribunal decision

Under section 100(1)(e) of the Employment Rights Act 1996 (ERA) employees who, in circumstances of danger that they reasonably believed to be serious and imminent, took or proposed to take appropriate steps to protect themselves or other persons from danger, are protected from dismissal. There is no need for the employee to have two years’ service.

In this case, the tribunal was satisfied that Mr Gibson’s actions met the requirements of section 100(1)(e) because he had taken steps to protect his father in what he reasonably believed to be circumstances of serious and imminent danger. Alternatively, since the wording of the employer’s text message suggested a possible redundancy situation, Mr Gibson had been unfairly selected for redundancy under section 105(3) because he had taken those steps. The circumstance of danger were the growing prevalence of COVID-19 infections and the potential significant harm that could be done to his father should he contract the virus. Mr Gibson reasonably believed this to be ‘serious and imminent’, hence raising the issue of PPE.

Comment

The decision demonstrates that it is possible for a claim for unfair dismissal under section 100(1)(e) ERA to succeed in these types of situations. Here the claimant's concerns about his clinically vulnerable father led him to take steps to reassure himself that the workplace would be a safe environment so that he could protect his father from the possibility of picking up COVID-19.

Employers should note that this protection applies from day one of employment and there is no need for two years’ service. However, each case will be assessed on its own facts as the following case illustrates.

Rodgers v Leeds Laser Cutting

Background

Mr Rodgers messaged his manager on 29 March 2020 to state that he would be staying away from his workplace "until the lockdown has eased" because he was worried about infecting his vulnerable children, a baby and a child with sickle-cell anaemia, with COVID-19. A month later, he was dismissed.

Mr Rodgers did not have sufficient service to claim ordinary unfair dismissal. Instead, he alleged that he had been automatically unfairly dismissed for exercising his rights under sections 100(1)(d) and (e) of the ERA 1996.

Section 100(1)(d) protects employees who are dismissed because, in circumstances of danger, which the employee reasonably believed to be serious and imminent and which the employee could not reasonably have been expected to avert, the employee left or refused to return to their workplace.

Section 100(1)(e) protects employees who, in circumstances of danger that they reasonably believed to be serious and imminent, took or proposed to take appropriate steps to protect themselves or other persons from danger.

Tribunal decision

The tribunal found that a reasonable belief in serious and imminent workplace danger had to be judged on what was known when the relevant acts took place. On the facts, such a belief could not be established, so sections 100(1)(d) and (e) were not engaged and the claim failed.

In particularly, despite Mr Rodgers' concern about COVID-19, he had breached self-isolation guidance to drive a friend to hospital on 30 March 2020 (the day after leaving work). Mr Rodgers' message to his boss did not mention concerns about workplace danger and he could not show there had been any such danger. In March 2020, government safety guidance advised hand washing and social distancing. The employer had implemented both precautions. Mr Rodgers had not taken any steps to avert danger or raised concerns with his manager before absenting himself from work and this was not appropriate.

The tribunal rejected Mr Rodgers' argument that COVID-19 created circumstances of serious and imminent workplace danger regardless of the employer's safety precautions. The tribunal found that, accepting this submission could lead to any employee being able to rely on sections 100(1)(d) and (e) to leave the workplace, simply by virtue of the pandemic.

Comment

This case serves as a reminder to employers that, while there were no circumstances of serious and imminent danger in this case, a failure to put in place adequate COVID-19 safety measures may expose them to the risk of claims in the future. However, the mere existence of the virus is not enough and employers who have implemented safety measures are unlikely to face successful claims of this kind.

Accattatis v Fortuna

Background

Mr Accattatis told his employer he was not comfortable commuting into the office nor working from the office due to the risks of the COVID-19 pandemic, and asked his employer to place him on furlough or allow him to work from home. His employer, Fortuna Group (London) Ltd (“Fortuna”) sold and distributes PPE. Fortuna rejected Mr Accattatis’ proposals due to the fact that the employee could not do his job from home and furlough was not an option because the business was busy. As an alternative, the employer suggested the employee take paid or unpaid annual leave.

After Mr Accattatis made three further requests to be placed on furlough, each of which was rejected, Fortuna dismissed him.

As Mr Accattatis did not have sufficient service to claim ordinary unfair dismissal, he claimed automatic unfair dismissed under section 100(1)(e) of the Employment Rights Act 1996 for having taken steps to protect himself from danger.

Tribunal decision

Whilst the tribunal accepted that Mr Accattatis reasonably believed he was faced with being put at serious and imminent danger (due to the government announcing in February 2020 that COVID-19 posed an imminent threat to public health), the tribunal concluded that it was his duty to take steps to protect himself from danger, or to have clearly expressed the circumstances of the danger to his employer. Fortuna had reasonably concluded that Mr Accattatis' job could not be done from home and that he did not qualify for furlough but had instead suggested taking holiday or unpaid leave. Mr Accattatis' response was not only that he wanted to stay at home (which was agreed), but also to demand that he be allowed to work from home (on full pay) or be furloughed (on 80% of pay). These demands were not appropriate steps to protect himself from danger, so his claim failed.

Comment

This case reinforces the idea that an employee cannot simply refuse to attend work due to concerns over COVID -19, particularly if their employer has addressed their concerns and has undertaken the appropriate risk assessments within the workplace to accommodate working from the usual place of work.

Khatun v Winn

Background

Ms Khatun was employed as a solicitor at Winn Solicitors Limited. In March 2020, in response to the first national lockdown, the firm decided to make changes to allow for greater workforce flexibility, furloughing 50% of their staff. The staff still working were expected to ‘babysit’ the cases of the furloughed staff and to agree to a variation of their employment contract, requiring them to go onto furlough leave or have their hours and pay reduced, on five days' notice.

On 23 March 2020, Ms Khatun’s head of department explained to her that all staff would need to agree to the variations, which were non-negotiable, or face immediate dismissal. On 24 March 2020, the head of department sent the contract variation to all staff by email, explaining that staff were to sign it within 24 hours or it was highly likely that they would be dismissed. On 25 March 2020, Ms Khatun emailed the head of department, to explain that she could not agree to the variation of contract. After further email correspondence, the head of department had a five minute phone call with Ms Khatun, in which he re-iterated that the variation was non-negotiable and Ms Khatun would be dismissed if she did not agree to it. Ms Khutan said that she would consider the variation if and when the need for changes should arise. On 26 March 2020 Ms Khatun was dismissed.

Ms Khatun brought a claim for unfair dismissal.

Tribunal decision

The tribunal held that Ms Khatun’s dismissal was unfair. The tribunal agreed with the firm that their reasons for implementing the variation were ‘sound, good business reasons’. However, the dismissal of Ms Khatun was not a decision that fell within the ‘band of reasonable responses’.

The tribunal concluded that the firm would not have needed to negotiate with three hundred employees; they would only have needed to have one meaningful discussion with Ms Khatun and was taken aback by a firm of solicitors having ‘so little regard’ for contractual terms and due process. The tribunal also took the view that the meeting on 23 March 2020 was a one-sided conversation and was not a meaningful discussion with Ms Khatun. It was clear to the tribunal that the directors of the firm had decided that, if Ms Khatun were to disagree with the variation to her contract, they would immediately proceed to dismiss her, without any process being applied. The firm acted quickly in dismissing Ms Khutan within 48 hours of sending her the variation to sign and Ms Khutan had not been offered the right to appeal. A reasonable employer would have done more.

Comment

This judgment demonstrates the importance of carrying out fair, meaningful consultation, prior to the dismissal of an employee who refuses to agree to contractual variations triggered by a genuine business need. This case is particularly relevant in light of COVID-19, as many employers have needed to implement rapid contractual changes in response to the economic challenges posed by the pandemic. However, as the case illustrates, the dismissal and re-engagement process can be high risk.

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Employment case law update | Summer 2021

Here we take a quick look at some key employment case law decisions from recent months.
Overtime and holiday pay  

Many people were hoping that the Supreme Court decision in East of England Ambulance Trust v Flowers and others would bring clarity to whether the calculation of holiday pay under the Working Time Directive should include an element for regularly-worked voluntary overtime. However, clarity on this issue now seems unlikely, at least in the short term.

For most employees who are paid a regular salary, their pay will remain the same when taking annual leave. However, for employees whose earnings vary significantly due to overtime, on-call pay, or bonuses, the situation becomes more complex. Employers must be able to calculate the employee’s normal rate of pay, so that the employee can be correctly paid a normal daily rate during any periods of annual leave.

In this case, there was a dispute between the East of England Ambulance Trust (the ambulance service) and Mr Flowers and other ambulance service staff. The ambulance service did not include overtime in the claimants' holiday pay calculation, resulting in claims being brought for breach of contract and breach of the Working Time Directive.

The matter was due to be heard by the Supreme Court on 22 June but was removed from the court listing before this date. We understand that the case has been settled following an NHS-wide deal on holiday pay (effective in England only) which takes into account the inclusion of regularly worked overtime and additional standard hours.

This will come as a disappointment to some who were hoping for guidance from the Supreme Court on the correct approach to take.

Indirect discrimination and changing working arrangements

Managing work and childcare can be a challenge at the best of times, but with the added complications of school closures and rules on self-isolation, this has been particularly difficult for many parents during the pandemic. For this reason, many employers afforded staff greater flexibility in their working arrangements than had previously been the case. However, with the end of restrictions seemingly in sight, many employers will now be considering how the workplace will look going forward and will be seeking to formalise arrangements and regain some certainty and structure.

The Employment Appeal Tribunal (EAT) has recently decided two cases in favour of working mothers which are a useful reminder that employers should exercise caution if seeking to change or impose new working arrangements.

Dobson v North Cumbria Integrated Care NHS Foundation Trust

In Dobson v North Cumbria Integrated Care NHS Foundation Trust, the Employment Appeal Tribunal held that the Employment Tribunal had erred in failing to take judicial notice of the fact that women are less likely than men to be able to accommodate flexible working patterns because of childcare responsibilities

This case involved community nurses. They were initially employed to work fixed days, but this was changed and they became required to work flexibly, including on weekends. The claimant was unable to comply with the flexible working requirements as she cared for her three children, two of whom have disabilities. This led to the claimant’s dismissal. She brought a claim for unfair dismissal and indirect sex discrimination.

The claimant lost her case in the first instance, but succeeded on appeal, arguing that the tribunal had not taken into account the so-called “childcare disparity”. This refers to the fact that, in general, women bear a greater burden of childcare, and are subsequently less likely to be able to comply with a requirement for flexible working. The “childcare disparity” is well documented in the case law of the tribunal, although there is no statutory rule that compels tribunals to consider it in judgments.

The case is perhaps not as ground-breaking as some reports in the press suggested, but is more of a reminder of the correct approach. It is interesting that the EAT did not find that the childcare disparity always means a requirement to work flexibly will put women at a disadvantage compared to men. As the EAT noted, a blanket approach could give rise to unfairness and illogical outcomes because some flexible working arrangements are favourable to those with childcare responsibilities.

Hughes v Progressive Support Limited

In Hughes v Progressive Support Limited, the Employment Appeal Tribunal (EAT) considered whether it can be indirect discrimination if an employer requires an employee to go to work regardless of childcare needs, even if the employer does not actually penalise the employee for non-compliance.

The claimant was a support worker with a contract of employment that guaranteed minimum hours of work. She was also a parent with childcare responsibilities and worked on a considerate hours policy to allow her to manage work and her childcare responsibilities. However, this policy was subsequently removed and the claimant was asked to work hours that suited the business. This could include any hours, as the business involved caring for individuals that needed care 24/7. The claimant was unable to do this and therefore worked fewer hours. The employer did not treat her inability to work the prescribed hours as a disciplinary matter, but did threaten to move her to a zero hours contract.

Although the claimant was later moved back to the considerate hours policy, she brought a claim for the period in which this was not in place. The EAT found that she was subject to a discriminatory provision, criteria or practice (PCP) that required her to work hours that were impossible because of her childcare responsibilities. It did not matter that she had not been punished for failing to work the hours required by the PCP. The claimant had lost out by virtue of working fewer hours than she would have done but for the PCP and had suffered the threat of losing out on guaranteed hours with the prospect of a zero hours contract.

Forstater v CGD Europe & Ors

In Forstater v CGD Europe & Ors, the Employment Appeal Tribunal overturned a decision and judged that a “gender critical belief” could amount to a philosophical belief and therefore attract the protection of the Equality Act 2010.

The judgment featured prominently in news media, and centred around Maya Forstater’s claim for unfair dismissal and discrimination based on her “gender critical beliefs”. The beliefs in question dealt with gender and biological sex, with Ms Forstater stating that she rejected the idea that “trans men are men” or “trans women are women” and that people were unable to change their biological sex. After tweeting statements professing her gender critical beliefs, her employer had ended her employment by not renewing her contract. A claim for discrimination and unfair dismissal followed, with Ms Forstater losing in the first instance as the tribunal decided her views were “not worthy of respect in a democratic society”.

However, the claimant succeeded before the Employment Appeal Tribunal (EAT), with the decision remitted to the tribunal to hear once more.

The judgment of the EAT dealt primarily with the limits to the legal restrictions on freedom of speech, and the very high threshold for which they would state a particular belief was not worthy of respect. Ultimately it was judged that Ms Forstater’s view did not amount to an attempt to direct harm to others (some organisations dispute this aspect of the judgment). The views were also judged to not amount to “Nazism or totalitarian” which would have avoided any protection in law.

The EAT’s judgment also took account of the fact that in English and Welsh law, gender is still depicted as only binary male or female with very little acknowledgement of anything in-between such as intersex or people who identify as non-binary. The judgment also considered that Ms Forstater’s beliefs were not unique to her, and acknowledged that this area was subject to significant public debate.

Lastly, the judgment was clear in pointing out that their decision was not intended to express an opinion on the ‘gender critical beliefs’, and that transgender people were still protected by law under the Equality Act. Employers should continue to support transgender workers and protect them against discrimination and harassment just as they would protect people with any other protected characteristic.

We’re here to help

If you need support with any employment-related issue, speak to a member of your local employment team.

Our employment team is ranked as a Leading Firm in the Legal 500 2021 edition.

Our updated guide to recovery and resilience covers everything you need to navigate your business out of lockdown, unlock your potential and make way for a brighter future. Further advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.  

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

How can we help?

Our expert lawyers are ready to help you with a wide range of legal services, use the search below or call us on: 0330 024 0333

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Employment summer update: News in brief

A quick round-up of the key employment law developments to watch out for in the coming months.

Employment Bill

The Queen's Speech delivered in December 2019 brought together a number of measures under a new Employment Bill. These measures included the creation of a single enforcement body, making flexible working the default, the right to request a more predictable contract, and leave for neonatal care, amongst other things.

In May 2021, the Queen's Speech set out the government's legislative programme for the coming year but made no mention of the Employment Bill, even though the Prime Minister had previously promised such a bill in response to concerns that workers' rights could be eroded following the UK's departure from the EU.

In a subsequent statement made in the House of Commons, the Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (BEIS) has confirmed that the government intends to bring forward the Employment Bill “when parliamentary time allows”. It is unclear when this will be, although there have been separate announcements on some of the areas within the bill, although in both cases mentioned below, the timing still remains unclear.

  • Flexible working consultation

The government has confirmed it plans to consult on flexible working, including whether flexible working would become the default option unless there are good reasons for this not to be the case.  According to The Guardian, a government spokesperson has stated that this would not go as far as giving staff a legal right to work from home.

  • Government publishes response to the consultation on single enforcement body

On 8 June 2021, the Department for Business, Energy and Industrial Strategy (BEIS) published the government’s response on the proposal to create a single enforcement body for employment rights, bringing together the HMRC National Minimum Wage Enforcement; Employment Agency Standards Inspectorate; and the Gangmasters and Labour Abuse Authority. The proposal was made in the government's Good Work Plan policy paper published in December 2018 and consulted upon in the latter half of 2019.

The new enforcement body will have a wide remit to protect workers in relation to the national minimum wage, labour exploitation and modern slavery, holiday pay for vulnerable workers and statutory sick pay. The government will legislate to implement the single enforcement body when parliamentary time allows.

Firing and rehiring

The government has confirmed that it currently has no plans to legislate to prevent so-called "fire and rehire" practices, which have been the subject of some controversy in recent months. Instead, it has asked Acas to prepare more detailed guidance on how and when dismissal and re-engagement should be used.

On 8 June 2021, Acas published its report into so called "fire and rehire" practices which had been commissioned by BEIS and delivered to minsters in February 2021. Intended as a fact-finding exercise, rather than to recommend reforms, the report notes a wide range of opinions amongst participants over the use by employers of fire and rehire. Although use of the practice has increased during the COVID-19 pandemic, participants in the survey did not agree over whether this was because employers were using the pandemic opportunistically as a "smokescreen" to diminish employees' rights or whether it was merely a response to the scale of the challenges faced by businesses during this time.

Responding to the report in the House of Commons, Paul Scully MP, Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy, confirmed that the government does not propose to put forward "heavy-handed legislation" to ban fire and rehire at this stage. Instead, Mr Scully confirmed that the government has instructed Acas to prepare clearer guidance on when fire and rehire should be used and good practice for employers. However, Mr Scully said the government will continue to work with Acas on this issue, and confirmed that "nothing is off the table".

Right to work checks

Temporary changes to right to work checks, which were brought in because of COVID, will now end on 31 August 2021, not 20 June 2021 as previously announced by the Home Office. This follows the government's announcement to extend the date for the easing of lockdown restrictions and social distancing beyond 21 June.

The temporary changes have allowed employers to carry out right to work checks over video calls and for job applicants and existing workers to send scanned documents or a photo of their documents to employers via email or a mobile app, rather than sending the originals.

From 1 September 2021, employers must once again either:

 

  • Check the applicant's original documents.
  • Check the applicant's right to work online, if they have provided the employer with their share code.

 

Employers will maintain a statutory defence against a civil penalty if the right to work check undertaken was carried out in the prescribed manner or as set out in the COVID-19 adjusted checks guidance. No further retrospective checks on employees who had a COVID-19 adjusted check will be required.

New online tool to check eligibility and pay under shared parental leave and pay scheme

The government has launched a new online tool to help check eligibility and pay entitlement under the shared parental leave and pay scheme. The tool may be helpful for expectant parents and their employers.

The government suggests that the tool is designed to help families make the most of shared parental leave. The intention is to make it easier for expectant parents to access and understand shared parental leave and pay. Working families can check their eligibility for the scheme, calculate their pay entitlement, as well as downloading all the documents they need to secure leave from their employer.

See new online tool to help working families make the most of shared parental leave - GOV.UK (www.gov.uk)

We’re here to help

If you need support with any employment-related issue, speak to a member of your local employment team.

Our employment team is ranked as a Leading Firm in the Legal 500 2021 edition.

Our updated guide to recovery and resilience covers everything you need to navigate your business out of lockdown, unlock your potential and make way for a brighter future. Further advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.  

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

How can we help?

Our expert lawyers are ready to help you with a wide range of legal services, use the search below or call us on: 0330 024 0333

SHMA® ON DEMAND

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Technical

Negotiating settlement agreements: Top tips

Settlement agreements, when used appropriately, are an essential part of most organisations' HR strategy.

They offer a way for an employer and the employee to agree terms for the employee’s exit. In the first instance, there will normally be a background that prompts the decision to offer the agreement. This could either be as a result of a voluntary redundancy exercise, or due to concerns about the employee, that has led to the business looking at ways to agree the employee’s exit.

Either way, the employer should have a strategy in mind early on to try and achieve the desired outcome i.e. a mutually agreed exit, with the employee signing a settlement agreement and receiving a termination package that compensates them for their employment ending.

The main ‘bargain’ between the two sides is the waiver of the employee’s ability to bring claims against the employer, in return for the settlement payment from the employer. Settlement agreements are therefore particularly useful where the employee presents a clear risk of bringing a claim. Whether or not the mooted claim would be strong, often an employee will perceive a settlement agreement as the more practical solution, and one that allows for a relatively quick resolution.

The first part of the strategy for the employer will generally be the initial conversation (or the written communication in the case of voluntary redundancy situations). With the initial conversation, the employer should prepare a script that details the key points they want to get across. This should be tailored to the employee and will normally involve making the case for why a settlement agreement is best for both sides.

The employer should explain the offer (both the financial and non-financial aspects), the process moving forwards, and address any concerns the employee will inevitably have. If there is an active dispute (such as an ongoing contentious grievance against the employee), the communications can be labelled as ‘Without Prejudice’. In the absence of an ongoing dispute, the communications should be labelled as a ‘protected conversation’. Failing to attach the correct label to relevant communications, could risk the discussions being openly referred to within any subsequent tribunal proceedings.

Alternatively, the employer could hold off on making an offer and put the onus on the employee to make a first offer (after first making the case for a settlement agreement is best for both sides). Where the employer is open to a negotiation, this approach can sometimes be beneficial in showing early on whether or not the employee is genuinely interested in compromising.

As with any negotiation, the employer should decide at the outset what issues it is willing to compromise on, and what are its non-negotiables and priorities. For example, with someone who retains ties in the organisation (i.e. they have a family member who remains an employee), the employer will need to ensure that the agreement sufficiently protects the expectation of utmost confidentiality. For senior employees, the focus in drafting and negotiating the agreement will generally be on any post-termination restrictions, such as protecting the employer’s clients and staff from being poached.

The contents of a settlement agreement are mainly at the discretion of the parties, except for those clauses which relate to the statutory requirements. As alluded to above, in a normal case, the termination of employment will have occurred or be imminent. The agreement will usually provide for the employee to receive a termination payment in return for waiving certain claims. The extent to which there will be protracted negotiations will depend on factors such as:

 

  • The seniority and salary of the employee, together with the level and intricacy of the package on offer.
  • The validity and complexity of any claims.
  • Whether the employee is departing on acrimonious or more neutral terms.
  • The legal advice being received by the employee (employees need to receive legal advice on the settlement agreement, and it is standard for the employer to pay for this advice to an agreed level).

 

When negotiating an agreement, it is also worth understanding the alternative position, if negotiations break down. Ultimately then, if negotiations reach an impasse, the employer can then demonstrate it is prepared for the alternative approach.

Preparation is key, as is being flexible on issues where there is scope for some level of compromise. Settlement agreements used to be called ‘compromise agreements’ for a reason!

We’re here to help

If you need support with any employment-related issue, speak to a member of your local employment team.

Our employment team is ranked as a Leading Firm in the Legal 500 2021 edition.

Our updated guide to recovery and resilience covers everything you need to navigate your business out of lockdown, unlock your potential and make way for a brighter future. Further advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.  

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

How can we help?

Our expert lawyers are ready to help you with a wide range of legal services, use the search below or call us on: 0330 024 0333

SHMA® ON DEMAND

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Guides & Advice

What will working arrangements look like in a post-pandemic future?

It’s been over a year since the World Health Organisation (WHO) declared COVID-19 a pandemic and working arrangements shifted dramatically from in-office to remote. But with normality on the horizon, how will we all be working in a post-pandemic future?

Facilitating flexible working

With staff beginning their gradual return to the workplace, businesses will need to start making decisions around working arrangements, informing staff of these as soon as possible. It might be that business owners choose to ask employees for their thoughts beforehand to ensure their needs and concerns are considered.

Businesses choosing to return full time to the workplace will need to establish whether this will be done on a rota basis or not. For those adopting a more hybrid way of working, clear expectations will need to be given to staff, including establishing working hours and days in the workplace versus days at home.

Considering contractual changes

Depending on the decisions made around an employee’s working conditions, contractual changes may be required. This would include details of where a staff member is required to work from and their expected working hours. For those working from home full time, employers must consider whether a new risk assessment is needed for their place of work.

It would also be wise for employers to reserve the right to request an employee’s presence in the physical workplace. For example, to attend client or customer meetings.

It is important to note that any contractual changes must not be made until the employer is certain that they will be implemented for the foreseeable future. Discussing these changes with the workforce beforehand can reduce the risk of employees making formal flexible working requests, such as for alternative working hours, at a later date.

Implementing new policies

In the event that an employer has some of their workforce operating full time from home and others on flexible working terms, it may be necessary to implement a homeworking policy. This would also be beneficial to businesses looking to trial a hybrid approach, before implementing one permanently.

For those working alone whether at home, at customer premises or in the workplace, a lone worker policy may be necessary. This would set out the measures in place to ensure the health and safety of those working by themselves, including regular check-ins and the reporting of any incidents.

Although some businesses will return to the workplace full time, it is likely that more and more will begin to adopt hybrid ways of working in the future. Organisations should seek to consult their staff before making any permanent decisions, to avoid any issues later down the line.

 

Read more: Frequently Asked Questions about Post Pandemic Working

Watch our post-pandemic working arrangements webinar
We’re here to help

Get in touch to find out how our employment team can help.

Our employment team is ranked as a Leading Firm in the Legal 500 2021 edition.

Our updated guide to recovery and resilience covers everything you need to navigate your business out of lockdown, unlock your potential and make way for a brighter future. Further advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Helping business prepare for the future of work post COVID-19

The workplace is going to look very different now that most restrictions have been lifted, for many reasons.
Make sure that your business is prepared for the challenges and opportunities that will face us all.

Visit our future of work hub on how we can help:

  • Draft vaccination and flexible working policies.
  • Review your flexible and hybrid working policies.
  • Implement new additional benefits to employees.

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Blog

Expert webinar - leading five generations

Sarah Walker-Smith, CEO of leading law firm Shakespeare Martineau, hosted an expert panel discussing leadership best practice and busting myths about motivating a five generation workforce.

Ninder Johal, CEO of Nachural Group and Henrietta Brealey, CEO of Greater Birmingham Chambers of Commerce – the youngest CEO of the Chamber on record - joined Sarah in a live webinar on Tuesday 15 June at 4pm to discuss whether it is true that millennials need constant praise and feedback and that boomers will be resistant to change, or whether this is just a stereotype.

Sarah Walker-Smith said: “As the life expectancy and retirement age increases, so does the span of ages in the workplace. With greater technology and fast-paced lives it’s thought that priorities, mind set and culture differences between generations are shifting quicker than ever.

“We’ve also seen surprising reactions for different age groups during the pandemic, in particular the struggles some younger people have faced: while we expected Gen Z and Millennials to quickly adapt to the technology of home working, we hadn’t anticipated the impact of less face-to-face mentoring time early on in their career, or the impact crowded house shares, or lack of garden space may have had on the mental health of some younger people.

With some businesses now employing up to five generations: from Gen Z who are in their late teens and early twenties, right through to the ‘silent generation’ who are in their 70s how do you cater for different life experience, expectations and natural skills? What have we learned from the pandemic and what practical actions can leaders to take to motivate their five generation workforce? Does age even matter, or is attitude enough to transcend generations?

How can we help?

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Guides & Advice

A note from the experts: navigating employment law

Increasing regulation has made it easier than ever for dissatisfied employees to successfully make a claim to an employment tribunal.  In order to understand and overcome potential difficulties, it is helpful for employers to have a detailed understanding of their legal obligations.

The following provides guidance on what an employer’s rights are in some of the most common disputes arising and what action can be taken.

Disciplining a contractor

Some businesses may choose to outsource maintenance to a contractor, but what would happen if one of the contracted staff was in breach of your code of conduct?

When you enter into an agreement with a third-party contractor, there are several contractual obligations that can be included within your agreement – requiring contractors to follow health and safety rules or a specific code of conduct may be one option.

In the event those rules or your code of conduct breached, it is strongly advised that you do not discipline the contractor yourself to avoid running the risk that they could be considered as your employee

Instead, you should put pressure on the company that supplied the contractor to take appropriate action. If they refuse to do so, you may be left with no choice other than to cancel the contract (in accordance with its terms) and find a new contractor.

Ensuring staff follow Covid-19 regulations

As an employer, you are unable to police what your employees do in their own free time, despite the fact it could lead to reputational damage for your business, and misconduct issues for the employees involved on occasions.

If rumours were to surface that staff were planning to break the rules, it is important you handle it sensitively. Failure to do so could lead to employees arguing that you have broken their trust and confidence.

Rather than directly intervening, a good alternative would be to issue an email to all staff urging them to follow the rules, with a reminder of the potential consequences on their employment if they don’t. If there is a policy on managing Covid-19, then staff should be reminded of it.

Disciplinary action should only be taken if you have proof that regulations are being breached and your company’s reputation is damaged as a result of that your own policy has been breached, otherwise you risk a constructive dismissal scenario.

Enforcing diversity training

Although not always popular with employees, making diversity and inclusion training compulsory is a form of best practice and also has the potential to limit the legal liability of you as an employer, should a discrimination claim be made.

Implementing the training sooner rather than later and ensuring the entire workforce is involved, can prevent incidents from happening. Refresher courses should be undertaken regularly, ensuring new and existing employees alike are aware of how they should behave in the workplace, and outside of it. To improve engagement, sessions should be carried out both in person and online, giving staff a choice as to how and when they take part.

By introducing compulsory training, you can also protect your business against discrimination claims. In the event a claim is raised, you can rely on a ‘statutory defence’, whereby if you can prove that you have taken reasonable steps to stop discrimination in the workplace, then your legal liability may become limited or removed altogether. Disciplinary action should only be taken if people still refuse to attend the sessions once they are made mandatory.

Setting up regular training and monitoring attendance can help safeguard your business against potential employment tribunal claims.

We’re here to support you, whatever approach you decide to take.

Contact a member of our employment team to see how we can help you to unlock your potential.

Our employment team is ranked as a Leading Firm in the Legal 500 2021 edition.

Our updated guide to recovery and resilience covers everything you need to navigate your business out of lockdown, unlock your potential and make way for a brighter future. Further advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.  

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

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Guides & Advice

The Job Retention Scheme | your questions answered

UPDATED 3 MARCH - The Chancellor has confirmed that the furlough scheme will be extended until the end of September 2021.

We’ve updated our FAQs and laid out the commonly asked questions, and answers, about the Coronavirus Job Retention Scheme (furlough scheme). and This post explains how you can utilise this furlough to keep your business going and retain staff during these difficult and unprecedented times, covering the most frequent furlough questions for employers.

What are the job retention scheme and furlough leave?

Furlough leave is a job retention scheme announced by the Government in March 2020 which allows employers to retain staff while they address any economic downturn as a result of COVID-19.

  • The Government had paid up to 80% of the wage costs (subject to a cap of £2,500) of any employees who are designated as furloughed, up until the end of August 2020.
  • From September 2020 Government contributions to wages under the furlough scheme were reduced to 70% (up to a maximum of £2,187.50) with employers paying at least 10% of wages.
  • From October 2020, Government contributions to wages were reduced further to 60% (up to a maximum of £1,875), with employers paying 20%.
  • On 17 December 2020 the Government announced a further extension of the furlough scheme to the end of April 2021, confirming that the Government will continue to pay up to 80% of an employee’s wage (up to a maximum of £2,500).

On 2 March 2021, the evening before the Budget, the Chancellor announced that the furlough scheme will be further extended until the end of September 2021. The Government will continue to pay up to 80% of an employee’s wage (up to a maximum of £2,500) but from July, employers will be expected to pay 10% towards the hours their staff do not work, increasing to 20% in August and September.

Employers will have to pay employer national insurance and pension contributions, although the Chancellor has confirmed this will be reviewed in January.

Furloughed employees are those who have been designated as having no work to do (i.e. will remain at home and do not have the requirement to complete any tasks) but who will be retained by the employer.

Since 1 July 2020, furloughed employees have been able to return to work on a part-time basis (flexible furlough), or remain fully furloughed. Employers pay in full for days worked and can claim under the CJRS for days not worked, subject to the relevant caps.  An employee who is fully furloughed is allowed to take part in volunteer work, as well as training, so long as the work does not provide services to or generate revenue for, or on behalf of your organisation.

When does the furlough scheme end?

The scheme, initially announced to run from 1 March 2020 for three months has, as of 2 March 2021, been extended once again until the end of September 2021.

Is there a minimum period for furlough?

There is no minimum time that a worker can be on furlough leave. However, when submitting a claim to HMRC to recover furlough wage costs, the claim must cover a period of at least seven calendar days, unless a claim is being made for the first or last few days in a month.

Employees who are union or non-union representatives may also undertake duties and activities for the purpose of individual or collective representation of employees, or other workers, whilst fully furloughed. This is on the condition that they do not provide services or generate revenue for the employer.

Which employees will be eligible for furlough leave?

To be eligible, the employee must have been on the payroll on 30 October 2020. If they were hired after this, they will not be eligible.

The job retention scheme is not just limited to those who would otherwise have been made redundant. Rather, eligibility is not so prescriptive as to require a drop off in work akin to a redundancy situation. The focus is on the business’ operations being severely affected by coronavirus, with this impact clearly varying significantly from one employer to another.

As stated in paragraph 6.7 of the guidance, the employer and employee will need to agree in writing for the employee being placed on furlough. In terms of payments, the employer can claim for earnings, which it reasonably expects to be paid.

Employees who are self-isolating or on short-term sick leave, cannot be placed on furlough leave but can be placed on furlough leave afterwards. Employees on maternity leave should continue to receive maternity pay but can agree to return early and be placed on furlough leave. The Government confirmed on 9 June that employees who return to work in the coming months after being on statutory maternity and paternity leave, will be permitted to be furloughed (even after the 10 June end-date for new entrants). However, this will only apply if their employer has previously furloughed other employees.

On 5 January 2021 the guidance was updated to confirm that employees may be furloughed if they are unable to work, including from home, or working reduced hours because they:

  • are clinically extremely vulnerable, or at the highest risk of severe illness from coronavirus and following public health guidance
  • have caring responsibilities resulting from coronavirus (COVID-19), such as caring for children who are at home as a result of school and childcare facilities closing, or caring for a vulnerable individual in their household

Read more about making reasonable adjustments for employees that have been classed as extremely clinically vulnerable.

Who does the furlough leave scheme apply to?

The scheme is available to all UK employers, regardless of size, including businesses, charities, recruitment agencies (where agency workers are paid through PAYE) and public authorities. Guidance on how to claim can be found on the gov.uk website. It’s also worth noting that, under the extended scheme, neither the employer nor the employee needs to have previously used the furlough scheme.

The scheme does not apply to the self-employed - there is a separate scheme available for self-employed individuals (Self-Employment Income Support Scheme).

What is the Self Employment Income Support Scheme?

The Self Employment Income Support Scheme allows those that are self-employed to claim a grant if they can prove their business has been impacted by the pandemic. There have been three schemes to claim for grants so far.

The fourth grant will be available to claim from April 2021 for those who feel their business has been negatively impacted between 1 February 2021 and 29 April 2021. It is available to those who have traded in the 2018-19 and 2019-2020 tax years (and submitted self-assessment tax returns by 2 March 2021), meaning around 600,000 additional self-employed people will now be eligible for government help. The grant will be worth 80% of three months' average trading profits (up to £7,500).

The fifth grant will apply to businesses who feel their business has been impacted from 1 May 2021 to 31 July 2021:

  • The fifth grant will be 80% of average monthly trading profit (up to £7,500) to those who can prove their turnover has fallen more than 30%.
  • If average monthly trading profit has fallen less than 30%, the grant will cover 30%.

What does the furlough contribution include?

The guidance states that the Government will contribute towards all wages costs, meaning that the contribution includes costs such as employer pension and national insurance contributions up until the end of July 2020.  From August 2020 employers have had to pay these contributions.  The employee will, however, pay tax on the salary (if earnings are above the taxation threshold).

Is commission included in the money that employers can claim back from the Government?

Yes. In addition to basic salary, the guidance states that an employer can reclaim 80% of compulsory contractual commission on past sales back from HMRC. Past overtime payments can also be reclaimed.

Does the 80% include non-monetary benefits such as health insurance or a car allowance?

No. The guidance expressly states that these costs cannot be reclaimed as part of the 80%.

Will employers need to top up the contribution so that employees receive their full pay?

An employer can choose to top up to 100%, but does not have to (subject to general employment law and the renegotiating any contractual entitlements).

Can employees be brought back off furlough on a part-time basis? What is flexi furlough?

Since 1 July 2020, furloughed employees have been able to return to work on a part-time basis (a process known as flexi furlough). Employers have to pay full salary for hours worked and can claim under the CJRS for hours not worked, subject to the relevant caps. The number of employees for whom a claim can be made under this new scheme is limited to the maximum number claimed for in a single claim under the old scheme (i.e. for the period up until 10 June 2020).

When claiming under the new scheme, the claim must cover a period of at least seven calendar days (unless the claim is being made in the first or last few days in a month). However, subject to compliance with this when submitting the claim to HMRC, under the new scheme, employers are able to furlough employees for any amount of time and any shift pattern. As before, employers will need to agree in writing any flexible furlough with the employee.

Non-working days or hours will count as ‘furloughed days/hours” and no work can be undertaken on said days. There are a number of record-keeping requirements under the new scheme, namely that: the furlough letter confirming the basis upon which the employee agrees to ‘flexible furlough’ must be kept for five years. Employers also have to keep records for six years of the amount claimed and the period of the claim for each employee; the calculation details and reference numbers; and the usual hours worked, the actual hours worked and the number of hours employees are furloughed for.

This accurate record-keeping is key to the operation of flexible furlough, and the guidance makes clear that employers should only make a claim when ‘you have certainty about the number of hours your employees are working during the claim period’. Furloughed hours will ultimately be the difference between an employee’s usual hours and the actual hours worked, even if this is different from what was agreed when the flexible furlough was implemented.

Can apprentices be furloughed?

Yes, apprentices can be furloughed, however, employers must pay apprentices at least the Apprenticeship Minimum Wage, National Living Wage or National Minimum Wage as appropriate for all the time they spend training. This means employers must cover any shortfall between the amount they can claim for the wages through this scheme and the appropriate minimum wage.

Can company directors be furloughed?

Yes and while on furlough leave, company directors can still perform their statutory duties, relating to the filing of his/her company’s accounts or providing other information that relates to the administration of the director’s company. They cannot carry out any other work for the company if furloughed. The guidance also confirms that company directors with an annual pay period can benefit from the scheme, as long as they meet the relevant conditions.

Can furloughed employees take another job?

Yes. Employees can start a new job when on furlough leave (meaning they might end up earning 80% of the old salary and 100% of a new one. Whilst this was not prohibited in previous guidance, the latest guidance expressly allows it. Employees will however have to check that their contractual terms allow them to start a new role, and seek approval if necessary.

What about staff without guaranteed hours and those on the minimum wage?

For employees whose pay varies, the employer can claim for the higher of (a) the same month’s earning from the previous year (e.g. earnings from March 2019); or (b) the employee’s average monthly earnings in the 2019-20 tax year.

Individuals are only entitled to the minimum wage for the hours they work. So where staff are furloughed – and therefore cannot work – they will still be limited to 80% of their normal earnings even if this results in their pay being below the minimum wage based on their normal working hours. However, they are entitled to be paid national minimum wage for any time spent training.

What about employees who have been served with notice of termination of employment?

Since 1 December 2020, employees under notice are no longer eligible to be furloughed.

Can you make employees redundant during furlough?

Even with all the financial support available, it is inevitable that COVID-19 will force some employers to make a number of their employees redundant. However, employers must ensure that their HR teams have all the resources and support they need.

To protect people’s livelihoods, on 30 July 2020 the Government announced that employees who are made redundant while on furlough leave will be eligible for redundancy pay based on their normal wages - not the furlough rate.

The new legislation will also apply to statutory notice pay, so that statutory notice pay is also based on normal wages, rather than the lower furlough wages.

Read more about making redundancies during COVID-19.

What if employers have already dismissed staff?

An employer can potentially re-hire employees whose employment terminated and claim for them under the extended CJRS.  The employer must have made a PAYE RTI submission to HMRC for the employee between 20 March 2020 and 30 October 2020, notifying a payment of earnings for them and the employee must have stopped working for the employer on or after 23 September 2020.

What if employees refuse furlough leave?

If an employee refuses furlough leave, normal employment rules will apply, i.e. if there is no work for that employee to do, employers could choose to make them redundant. If there are contractual layoff or short-time working provisions in the contract, these could also be applied.

Read more about applying best practice during COVID-19 and managing employees who refuse to attend work.

What if an employee wants to be placed on furlough leave, but employers want to retain them as normal?

If an employer has work for an employee to do (albeit at home), provided that employee does not fall within one of the vulnerable categories (which may result in them being entitled to sick pay) and remains fit and well and is able to do their job, the refusal to carry out their role is a potential disciplinary issue and should be dealt with in the usual way.

Read more about making reasonable adjustments for employees with a disability.

Can employees be forced off furlough by their employers? If so, how exactly could this happen?

The furlough scheme has not altered basic employment law principles. Any variation in the terms on which someone is employed requires consent from both parties. When employees commenced furlough, their employer may well have set out in advance the conditions under which that period of furlough would come to an end – possibly a specified date or possibly by way of a notice being served by the employer. In those situations, employees can be forced off furlough in accordance with what has already been contractually agreed. However, in the absence of any such provisions, an employer will need to secure the employee’s consent in order to bring the period of furlough to an end.

Can an employee take holiday during furlough leave?

Yes, Employees continue to accrue holiday whilst on furlough leave and can also take holiday during furlough leave. The Working Time Regulations require holiday pay to be paid at the employee’s normal rate of pay, so employers will be required to top up the pay to 100% for the holiday period.

Note that employers do have flexibility over when employees can take holiday in line with the requirements of the Working Time Regulations.

What about employees who have TUPE transferred?

TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006) governs the transfer of employees from one organisation to another. Previously it was unclear whether new employers could benefit from the coronavirus job retention scheme if the employees transferred after 28 February 2020. However, the guidance now states that a new employer can claim in respect of an employee who TUPE transferred to them after 31 August 2020 if the following conditions are met:

  • They were employed by the transferor (their former employer) before 31 October 2020.
  • After 31 August 2020, there was a TUPE transfer of the employee to the new employer and the employee remained in employment.
  • Immediately before the transfer the transferor had a qualifying PAYE scheme and made a payment to the employee, as notified to HMRC in a return delivered to HMRC after 19 March and before 31 October 2020, or, if earlier, the last day of the employee's employment with the transferor before the TUPE transfer.
  • The transferor did not report a cessation of the employee's employment to HMRC after the payment, other than in relation to the change in employer on the TUPE transfer.

How do I claim the Jobs Retention Bonus?

The Job Retention Bonus, which would have seen a £1,000 bonus paid to businesses for each employee brought back from furlough leave, will no longer be available. The government has however said that a different job retention bonus will be introduced at a later date.

Contact us

This guide has answered a wide range of furlough questions for employers. If you have any queries on the furlough leave scheme or need any guidance or support, speak to a member of your local employment team or get in contact with us by using filling out our enquiry form.

Our employment team is ranked as a Leading Firm in the Legal 500 2021 edition.

Helping business prepare for the future of work post COVID-19

The workplace is going to look very different now that most restrictions have been lifted, for many reasons.
Make sure that your business is prepared for the challenges and opportunities that will face us all.

Visit our future of work hub on how we can help:

  • Draft vaccination and flexible working policies.
  • Review your flexible and hybrid working policies.
  • Implement new additional benefits to employees.
Guides & Advice

Redundancies during COVID-19: Coronavirus job retention scheme extension provides some relief

In comparison to the US, there is a stricter redundancy process in the UK. For UK businesses faced with the prospect of making 20 or more staff redundant, there is an obligation to undertake a collective consultation process, which should consider ways to avoid or reduce the number of employees to be made redundant and mitigate the consequences of the redundancies. Where businesses propose between 20 to 99 redundancies the collective consultation process is 30 days. For 100 or more redundancies the period of collective consultation increases to 45 days.

Extension of the Coronavirus Job Retention Scheme

On 3 March 2021 the furlough scheme was extended once again until the end of September 2021. Our comprehensive Q&A guide on the coronavirus job retention scheme addresses those commonly asked questions about furlough and summarises the latest government guidance.

After being a lifeline for countless businesses over recent months, the news that the support is continuing will undoubtedly be met with sighs of relief by many. However, it also raises a number of complexities.

Is extending furlough just delaying the inevitable?

Whilst millions of jobs will be protected, a question mark does still hover over whether the government is still simply delaying the inevitable cliff edge of job cuts.

For businesses that have been saved from making redundancies by this extension, it is vital that they use the extra time wisely to seize every opportunity to make the most of the support available. However, they should also take every measure to ensure that as many furloughed employees as possible can come back into work full time once the scheme ends.

Taking a step back and reviewing expenses and business operations can help to find areas where costs could be reduced, potentially lessening the financial pressure once the end of September arrives, in turn, saving jobs.

The government has provided another generous lifeline for businesses during this challenging period, and it is important that they take advantage of the support while they can. Nevertheless, organisations must not use this as an excuse to ignore difficult decisions until September.

What if we still need to make a number of our employees redundant?

It is inevitable that COVID-19 will force some businesses to make a number of their employees redundant, regardless of the furlough leave extension. It is never an easy decision for employers to make, and in a time where many people are under huge financial pressure, the process can be emotionally draining. Nonetheless, if the worst comes to worst, employers must make sure they follow correct and fair redundancy processes to avoid any claims of unfair dismissal.

Largescale job cuts may lead to complex redundancy situations requiring collective consultation, designing and training managers on completing selection matrix forms, and assisting in individual consultation or appeal meetings with employees selected for redundancy.   Businesses considering largescale redundancies (20 or more) should start planning now.

How do I calculate redundancy pay for furloughed employees?

On 30 July 2020 the government announced that furloughed employees who are made redundant will be eligible for redundancy pay based on their normal wages – not the furlough rate. This also applies to statutory notice pay.

What are the risks when making largescale redundancies?

Adequate and timely planning is crucial.  Businesses who do not recognise trade unions will need to consider electing employee representatives to undertake collective consultation or utilise existing works councils/committees.  A failure to undertake collective consultation properly or at all can be costly (up to 90 days’ pay per employee).

Businesses will also need to ensure that any pooling and/or selection of employees is undertaken correctly and that at risk employees are consulted individually before any final decision to terminate their employment by reason of redundancy is taken. There must also be an appeal mechanism in place to hear any employee appeals.  Businesses will need to consider who will be the most appropriate person (managers/supervisors etc.) to be involved in each stage of the process ensuring that each step of the process is fair to avoid claims for unfair dismissal.

It is not uncommon during largescale redundancies for businesses to experience an increase in the number of grievances received or incur higher levels of sickness absences. Clearly, the nature of making large numbers of redundancies could mean that businesses find themselves exposed to greater numbers of employment tribunal claims, but proper planning, preparation and execution will mitigate against any potential claims.

How to deliver redundancy news while working remotely

As with any redundancy, clear communication and sensitive delivery of the message remains key. If not followed correctly the consequences can be significant, therefore it is important that the process remains fair and reasonable.

With many employees working from home, video conferencing is one of the only platforms available to businesses for face-to-face communications and can be a practical and humane method of making general announcements to the workforce.

Can employees be made redundant over a video call?

In principle, there is no issue with businesses using video conferences to deliver bad news about redundancies, however delivering the message that employees have been dismissed en masse can cause significant employee relations issues and is not recommended.

In order to remain fair, the correct processes must be followed which would include both collective consultation (where necessary) and individual consultation (for those with over two years of service) before a notice of termination is issued.

Redundancies should be handled with compassion and sensitivity

Redundancy during such a challenging period will always be difficult news to deliver, but for many businesses it may be unavoidable. For now, companies should ensure they follow the correct processes and communicate to their employees with compassion and sensitivity.

Watch our 30 minute webinar on how to apply the best practice when dealing with redundancies.

Alternatively, our webinar on alternatives to redundancy outlines what else can be done to save on overheads when redundancy isn’t an option.

We’re here to help

If you’re concerned about having to make redundancies and would like some guidance and support in managing a difficult process, speak to a member of your local employment team.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

How can we help?

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SHMA® ON DEMAND

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Self-isolation and statutory sick pay from first day of absence

The Coronavirus Act 2020 received Royal Assent on 25 March 2020, introducing emergency measures for statutory sick pay in response to the COVID-19 outbreak.

As a result, statutory sick pay can now be paid from the first day of absence, rather than from day four, which is currently the case. However, this is only applicable where an employee’s incapacity for work is related to coronavirus (i.e. for self-isolation sick pay).

The rules on self-isolation and statutory sick pay

Those who self-isolate in accordance with NHS published guidance are now entitled to claim statutory sick pay, for example:

  • the individual, or someone they live with, has coronavirus symptoms or has tested positive for coronavirus;
  • the individual has been notified by the NHS or public health authorities that they've been in contact with someone with coronavirus;
  • someone in the individual's support bubble has coronavirus symptoms or has tested positive for coronavirus;
  • the individual has been advised by a doctor or healthcare professional to self-isolate before going into hospital for surgery; or

The current Public Health England guidance can be found here.

In addition, an amendment to the Statutory Sick Pay (General) Regulations 1982 provided that statutory sick pay is also payable to those who are not sick, but who are shielding as a result of a government notification to say that they are in a ‘vulnerable’ category. The regulations detail that the entitlement to statutory sick pay will end when the shielding period ends.

An employee is not entitled to statutory sick pay if they're self-isolating after entering or returning to the UK and do not need to self-isolate for any other reason. In such cases, self-isolation sick pay should not be paid.

If the illness is not related to coronavirus then statutory sick pay can be claimed from the fourth day the individual is off work sick.

As an employer, what will these changes mean for my business?

Statutory sick pay is currently paid by and funded by the employer. However, the Act provides for any coronavirus-related self-isolation sick pay to be funded by the state, although this will still be paid by the employer.

Employers can claim for periods of sickness starting on or after:

  • 13 March 2020 - if the employee had coronavirus or the symptoms or is self-isolating because someone they live with has symptoms.
  • 16 April 2020 - if the employee was shielding because of coronavirus.

The government guidance clarifies that more than one claim can be made per employee, however, this is subject to an overall two weeks maximum per employee.

In addition, it was also announced in the spring 2021 Budget that the scheme is only intended as a temporary measure to support employers while levels of sickness absence are high. As a result, the government has confirmed that it will set out steps for closure of the scheme in due course.

More information on claiming back self-isolation sick pay can be found on the gov.uk website.

Can we insist upon employees providing sick notes for self isolation?

A sick note is not required for the first seven days of sickness absence. After that, employers can require a sick note from the employee’s GP. However, it’s sensible for businesses to use their discretion regarding employees being in a position to submit sick notes. In view of the Public Health England advice for individuals not to attend GP surgeries or hospitals with suspected cases of the virus, it may be that employees are unable to obtain a sick note. Therefore, it is advisable to exercise discretion and to not demand self-isolation sick notes to evidence diagnosis or a period of self-isolation.

On the other hand, online isolation sick notes can be used by employees to their employers to provide evidence that they have had to self-isolate.

What if an employee isn’t sick but needs to care for a sick or quarantined child or other dependent?

Employees are usually entitled to unpaid time off work to care for a dependent in an unexpected emergency. A child or other dependent who has been diagnosed with coronavirus would clearly fall into this category. Therefore, employees who need time off due to caring for dependents may also be eligible for the Coronavirus Job Retention Scheme (subject to the continued applicability of this scheme). 

Contact us

If you have any queries in relation to paying statutory sick pay and how we can help your business, get in touch today or visit our employment lawyers page to learn more.

Our employment team is ranked as a Leading Firm in the Legal 500 2021 edition.

Our updated guide to recovery and resilience also covers everything you need to navigate your business out of lockdown, unlock your potential and make way for a brighter future. Further advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.  

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

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Blogs

The importance of refreshing and repeating equality and diversity training

Too often equality and diversity training is considered a ‘tick-box’ exercise for employers, often as part of an induction programme, without heeding out reminders to refresh that training.

Why is equality and diversity training important?

A recent Employment Appeal Tribunal (EAT) case has reinforced our pleas, reminding employers of the need to update their equality training if they want to have a chance of defending themselves from claims arising from the otherwise unlawful discriminatory act of an employee.

To recap, employers can successfully defend harassment claims if they can demonstrate that they took all reasonable steps to prevent discriminatory actions of an employee.  Tribunals will look at how effective the steps taken by the employer might be, how effective they actually were and when those steps were taken.

Allay (UK) Limited v Gehlen – race discrimination

In the case of Allay (UK) Limited v Gehlen the EAT did just that and upheld a finding that an employer had failed to take all reasonable steps to avoid an employee being regularly harassed by another, and could not rely on “stale” equality and diversity training.

By way of background Mr Gehlen complained that, after he had been dismissed, he had been subjected to racial harassment by a fellow employee during his employment. An investigation established that the other employee had made racist comments, which the employee tried to justify as being “racial banter”.

The tribunal found that not only had the employee made racist comments, but importantly, these had been overheard by Mr Gehlen’s colleagues and two managers.  None of them took any action, although one manager issued the employee with a mild rebuke.

Allay tried to say it had taken all reasonable steps to prevent the harassment by pointing to its equal opportunity policy and an anti-bullying and harassment procedure, and that the relevant employees had received equality and diversity training in January 2015 and bullying and harassment training in February 2015.

That wasn’t enough; the tribunal said the training was clearly “stale” and a reasonable step would have been to refresh it.  This was evident by the fact that the racial “banter” and inaction by managers took place after the initial training, demonstrating it had no impact in changing behaviours.  It was also notable that, following the investigation, Allay had given further training to the employee who made the remarks and clearly wouldn’t have done so if they hadn’t thought it would be of benefit.

Review, refresh and repeat your diversity and equality training

Most of us accept that having equal opportunity policies and procedures are a bare minimum but employers cannot rely on them as a ‘get out of jail free card’ - they don’t mean employers can escape liability for acts of discrimination carried out by employees. Even having training on those policies and procedures might be insufficient if employers don’t consider the quality of that training, including how long they expect its consequences to last.

Most prudent employers will have an ongoing training programme and will consider the need to review, refresh and repeat training, particularly equality and diversity training on a regular basis.  Repeating it annually, to avoid it becoming “stale” might be the way forward. Ignoring the impact of this case could prove costly, both reputationally and in the event claims are brought.

We can provide you with guidance and support

Continuous training and development is key to improving your working practices and employee relations.

To discuss your existing training requirements, including diversity and equality, please contact Helen Hughes or another member of the employment team. Our team of legal experts will listen to your needs and can create a tailored training service accordingly.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

How can we help?

Our expert lawyers are ready to help you with a wide range of legal services, use the search below or call us on: 0330 024 0333

SHMA® ON DEMAND

Listen to our SHMA® ON DEMAND content covering a broad range of topics to help support you and your business.

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Guides & Advice

The future of non-compete covenants | consultation closes 26 February 2021

Non-compete clauses aim to protect employers by preventing employees from joining a competitor for a specific period of time following their termination of their employment and are relatively common in UK employment contracts. However, in December 2020 the Department for Business, Energy and Industrial Strategy (BEIS) opened a consultation on potential reforms to these types of clause. The stated rationale behind the proposed reforms is to “support economic recovery from the impacts of COVID-19” and “boost innovation, create the conditions for new jobs and increase competition.

Background to the proposed reforms

Despite these clauses being commonplace in employment contracts, particularly those for senior employees, they are somewhat controversial. They can be seen to be fundamentally anti-competitive and in some instances can effectively prevent an individual from earning a living, particularly if an employee’s skills and the market in which their employer operates is such that if the individual was to move jobs it would, short of a complete career change, inevitably result in them joining a competitor.

In light of these concerns, the courts have often taken a rather uncompromising approach when determining the enforceability, or otherwise, of non-compete clauses. In broad terms, the clause must do no more than is necessary to protect the legitimate business interests of the employer, and the courts have generally been quick to find reasons why a clause goes beyond what is necessary.

The onus is very much on the employer to show the restriction is justifiable, and relatively minor flaws and/or ambiguities in the drafting of clauses have often resulted in findings of total unenforceability.

As such, the approach taken by the courts has significantly limited the impact of non-compete clauses but despite this, in December 2020, the Department for Business, Energy and Industrial Strategy (BEIS) opened a consultation on potential reforms to non-compete clauses. The stated rationale behind the proposed reforms is to “support economic recovery from the impacts of COVID-19” and “boost innovation, create the conditions for new jobs and increase competition.” It is unclear what evidence there is that innovation is restricted by non-compete clauses as employers primarily use them as a means of protecting their own confidential information.

What are the proposals?

The consultation envisages two possible measures,

  • to introduce mandatory compensation payable by the employer to the employee for the duration of the restriction, which mirrors the position taken in a number of European jurisdictions including France and Germany. BEIS is to some extent keeping an open mind about the amount payable, but the consultation envisages between 60% and 100% of the employee’s earnings; and
  • to ban non-compete clauses completely, however, it is very unlikely to be an avenue that the government pursues.

The consultation also envisages two possible complementary measures the first being a requirement on the employer to disclose the exact terms of the non-compete clause in writing before an employment relationship starts. However, here are a couple of issues with this proposal. Firstly, in most cases non-compete clauses are included in the contract of employment, so without more this requirement would already be met. Secondly, it is unclear the impact this requirement would have on existing non-compete clauses and those that might be introduced during an individual’s employment (following a promotion, for example).

The second complementary measure is to introduce a specific statutory limit on the duration of the non-compete restriction. Currently, the potential duration is technically unlimited, although in practice the “no more than is necessary” test outlined above mean that restrictions in excess of 12 months are rarely found to be enforceable, and even considerably shorter durations will often be found to be excessive.  The impact of a specific limit is therefore doubtful, and it could be self-defeating if it results in the maximum duration becoming the default, something acknowledged by BEIS in the consultation paper.

What is the likely outcome of the consultation?

It is entirely possible that nothing will come of the proposals, not least because the approach taken by the courts has been effective in blunting the impact of non-compete clauses. Businesses such as hairdressers have used non-compete clauses to avoid losing customers to former staff by preventing them opening up a rival business locally which is clearly not about innovation at all.

However, there is clearly scope for unscrupulous employers to use the threat of legal action unfairly to prevent employees from joining competitors and while there may be a technical argument that the clause relied upon is unenforceable, many employees will not have the appetite or the financial resources for the fight.  Experience suggests that only a very small proportion of disputes in this area end up in court.

It is a distinct possibility that the Government will take forward the proposal to introduce some element of financial compensation, although it is not clear yet what form that might take. In all likelihood this would result in most employers dropping non-compete clauses altogether and relying instead on a combination of garden leave provisions with longer notice periods, confidential information clauses and other, less-restrictive covenants such as those which prevent ex-employees from poaching customers.

How to get involved

Anyone wishing to respond to the consultation, which closes on 26 February 2021, can do so here.

For further information on non-compete covenants, or any other employment law issue, please contact Matt McDonald or another member of the employment team in your local office.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

How can we help?

Our expert lawyers are ready to help you with a wide range of legal services, use the search below or call us on: 0330 024 0333

SHMA® ON DEMAND

Listen to our SHMA® ON DEMAND content covering a broad range of topics to help support you and your business.

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Guides & Advice

Applying best practice during COVID-19 and managing employees who refuse to attend work

While many organisations have been required to close during this third period of lockdown, there are still a number of businesses that are allowed to remain open and are essential in keeping the country moving.

However, with coronavirus cases at an all-time high, there will be members of staff who refuse to attend work because they feel it is unsafe to do so.

Our blog on working from home - practical considerations may also be useful for employers who still have employees working remotely.

What can I do if an employee refuses to attend work due to COVID-19?

As a result of the government’s current guidance, employers should allow employees to work from home wherever possible. Where it is not possible for employees to work from home, an employer can require employees to attend the workplace once it has taken all reasonably practicable steps to reduce the risks of contracting coronavirus, such as sanitising workplaces and carrying out risk assessments.

Read our guide on keeping your employees safe in the workplace.

Employers should communicate clearly with employees about the measures that have been put in place in order to ease any concerns. If an employee continues to be reluctant to return to the workplace, an employer should explore their reasons.

We outline some common reasons why employees may refuse to return to work and how an employer can tackle them.

1. Shielding employees

If the government or NHS has advised the employee to shield, then it is very likely that they are suffering from a condition which will amount to a disability for the purposes of the Equality Act. They may have been issued with a letter from the NHS and employers can request a copy of this letter which will help to guide them in understanding the risk for that employee.

According to government guidance, employees who are shielding are eligible for furlough if they cannot work from home. While there is no legal requirement for an employer to agree to this, it is advisable to place them in furlough and, if necessary, make a claim under the Coronavirus Job Retention Scheme. Please note, however, that if the employee is off sick and on statutory sick pay, it is not possible for them to be furloughed – they will need to be taken off statutory sick pay first.

Read our guide on making reasonable adjustments for employees with a disability during a global pandemic.

2. Using public transport

If an employee has concerns about using public transport to get to work, an employer should discuss with them if there are options to allow them to travel at a quieter time for example, by changing their start or leave time. Extra car parking spaces could be offered, where possible, so that the employee could avoid using public transport. However, this reason in itself will not justify the employee not coming into work.

3. Childcare arrangements

On 5 January 2021 guidance was updated to confirm that employees may be furloughed if they are unable to work, or are working reduced hours, because of caring responsibilities which have arisen as a result of COVID-19. If an employee is unable to return to work for this reason then an employer should explore other options, such as adjusting the employee's role to enable them to work from home, or putting them on furlough.

4. Living with a relative with health concerns

Here, the specific circumstances would need to be analysed to identify whether there is a risk of discrimination, or other risks, if the employee is treated detrimentally as a result of their desire to remain away from the workplace.

The law on associative discrimination does not protect the relative of a person with a protected characteristic against failure to make reasonable adjustments, discrimination arising from a disability or indirect discrimination. However, they are protected against direct discrimination, harassment and victimisation. As a result, reasonable steps should be taken to ensure that the employee does not suffer repercussions because of their association with someone who has a protected characteristic and falls within one of the vulnerable groups.

We would advise that the employer considers all possible options and a risk assessment is carried out in order that the employee feels comfortable to attend work.

When can an employer take disciplinary action?

Employees are protected from both detriment and dismissal for certain, protected health-and-safety-related conduct, including refusing to present for work in certain situations, and any such dismissal will be deemed automatically unfair.

Unlike claims for “ordinary” unfair dismissal, which have a two year qualifying service requirement, claims for automatically unfair dismissal and detriment are not subject to an employee having any minimum length of service. It is therefore important before considering disciplinary action, that an employer understands the employee’s reasoning for refusing to attend work.

However, if an employer has ensured that the safety of the employee is not at risk and after considering all factors, there is no valid reason why the employee is unable to attend work, any absence can be treated as unauthorised which will warrant disciplinary action which could include dismissal on the grounds of gross misconduct.

We’re here to help

If you’re considering disciplining or dismissing an employee for refusal to attend work and need some guidance or advice, speak to a member of your local employment team.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

How can we help?

Our expert lawyers are ready to help you with a wide range of legal services, use the search below or call us on: 0330 024 0333

SHMA® ON DEMAND

Listen to our SHMA® ON DEMAND content covering a broad range of topics to help support you and your business.

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture
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Guides & Advice

An employment guide to lockdown 3.0

With COVID-19 taking hold once more, the government has put the UK under a third lockdown, forcing all non-essential shops to close once again.

Although the country now knows what to expect, that doesn’t mean it will be any easier for the businesses impacted by these restrictions.

However, by taking the time to understand the latest changes, organisations can make it through this unwanted sequel.

Previous iterations of the government’s support packages have been a challenge to interpret, leaving employers seeking last minute legal advice to ensure they have understood them correctly. Fortunately, many of the resources now available to businesses have not altered much from those first available in spring.

The Coronavirus Job Retention Scheme - a support scheme for all

The Coronavirus Job Retention Scheme (CJRS) continues, having been extended to March 2021, pushing back the recently announced Job Support Scheme. Remaining much the same as its initial iteration, the rules are as follows for the extended CJRS:

  • The government will pay up to 80% of wages (up to £2,500).
  • Employers must continue to pay national insurance and pension contributions, even if employees are furloughed.
  • Furloughed employees must not carry out work that generates income or provides services. Instead, furloughed employees should be urged to undergo training, join non-work related gatherings, or do volunteer work.
  • If the furloughed employee is part of a union or a non-union representative, this work may be carried out for representation purposes.
  • The scheme is available to all businesses (where workers are paid through PAYE), whether they have claimed furlough previously or not.
  • Employees must be furloughed for at least seven calendar days.

On 5 January 2021 the guidance was updated to confirm that employees can also be furloughed if they are working reduced hours or unable to work due to caring responsibilities which have arisen as a result of COVID-19.

Our comprehensive Q&A guide on the Coronavirus Job Retention Scheme addresses those commonly asked questions about the concept of ‘furlough’ and how you may be able to utilise this to keep your business going.

Prioritising people and wellbeing through redundancies

Even with this support, some businesses will inevitably have to make difficult decisions as the months pass, such as redundancies. Nevertheless, it is vital that HR departments are given the resources and support they need to make this challenging period as stress-free as possible, protecting people’s livelihoods and prioritising wellbeing.  Read our advice on making redundancies during COVID-19, particularly if your employees are working remotely.

This includes ensuring that the redundancy process is done fairly and that all employees, even if they are furloughed, are given both redundancy pay and notice pay, based on normal wages.

Watch our 30 minute webinar on how to apply the best practice when dealing with redundancies.

Alternatively, our webinar on alternatives to redundancy outlines what else can be done to save on overheads when redundancy isn’t an option.

Will the government support be enough?

Although the government has extended the furlough scheme until the end of March, tough times still lie ahead for businesses directly impacted by the new restrictions. The UK will have to wait and see whether they are enough for businesses to survive through spring.

We’re here to help

If you have any queries on the furlough leave scheme, or need any guidance or support with any employment-related issue, speak to a member of your local employment team.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

How can we help?

Our expert lawyers are ready to help you with a wide range of legal services, use the search below or call us on: 0330 024 0333

SHMA® ON DEMAND

Listen to our SHMA® ON DEMAND content covering a broad range of topics to help support you and your business.

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture
Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

Teachers’ Pension Scheme – strategic issues independent schools need to think about

20 Jul

Esther Maxwell, Legal Director | Emma Glazzard, Solicitor
Teachers’ Pension Scheme – strategic issues independent schools need to think about

Webinar Teachers’ Pension Scheme – strategic issues independent schools need to think about In […]

Misconduct outside the workplace and business disrepute

8 Sep

Michael Hibbs, Partner
Misconduct outside the workplace and business disrepute

In this webinar, Mike Hibbs – Partner and Robin Gronbech - Solicitor in our […]

Preparing for business exit and beyond

24 Jun

Jody Webb, Partner
Preparing for business exit and beyond

When your business has been your life, how do you separate the emotional investment […]

Our Latest Thoughts

All the latest views and insights on current topics.

Employment Contracts Vs Consultancy Agreements

27 Jun

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Employment Contracts Vs Consultancy Agreements

Read article Right Arrow

Helping employees keep their cool in a heatwave

17 Jun

Employment

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