Coronavirus – How Can Employers Consult With Staff Effectively?

Home | News | Page 18

Employers often need to consult with staff and there may be an increased need to do so given the current pandemic of the coronavirus (COVID-19).

Employers may need to consult about changing work arrangements, including the Government job retention scheme, reduced hours or even redundancies. You may also have ongoing consultations which need to be concluded in an effective way. With no confirmation of when social distancing measures will be withdrawn, delaying consultations is unlikely to be an option for most employers.

Effective consultation is important at any time, but the impact of the coronavirus outbreak has made the process more challenging at an already stressful and uncertain time. As the situation continues to change rapidly, it is vital that employers communicate clear information to staff promptly.

Steps to delay the spread of the coronavirus include social distancing measures, such as a shift to remote working, the cancellation of events, the temporary closure of certain organisations and schools and strict limitations on when people are allowed to leave their homes, currently in place until mid-April. Employers may have a number of employees off sick or self isolating, and steps should be taken to include them in the consultation process in an appropriate way.

Practical Steps

You will need to adapt practices so that you can continue to carry out effective consultations whilst all or some of your employees are not on site. Face-to-face meetings will not be possible and so you should consider the following options:

  • Can you hold consultation meetings using video or conference calling technology? You would need to ensure that the staff have all the necessary information via email beforehand, so that they can participate effectively.
  • For one to one consultation meetings, can you do these via Skype, use other video conferencing software or on the phone?
  • For consultations around less significant issues, could you consult with staff in writing, allowing them the opportunity to come back to you, and perhaps have a phone call, if they have particular issues to discuss?

Remember that there are limitations of these options which you will need to work around, such as:

  • It may be more difficult to discuss complex issues without face to face meetings, so you may need to adjourn and have additional calls to consider issues.
  • Note taking may be more complex, particularly if meetings are held over the phone rather than via video conferencing.
  • Thought should be given as to whether HR or Union Advisors can join consultation telephone calls or video conferences to provide support for employees. If they can’t, then employees should be given the opportunities to consult with the representatives separately and come back to employers with any further points.

Consultations for Lay-Offs or Short-Time Working Arrangements

For employers needing to deal with an unexpected downturn in business as a result of the current uncertain environment who do not have a contractual right to introduce lay-offs or short-time working arrangements, consultations with employees (and trade unions/representatives where appropriate) should be undertaken to try and agree a temporary solution.

There are no specific legal requirements surrounding consulting staff when introducing lay-offs or short term working.

Best Practice

  • Communicate changes with employees to keep them engaged during difficult times.
  • Give regular updates about the changes being made and the challenges the business is facing. Employees are more likely to accept difficult decisions and changes to the way they work if they understand the reasons behind them.
  • For significant changes, carry out consultations by telephone or video conference with employees who are working remotely or self-isolating to unsure that employees understand and are engaging with the proposals being put to them.
  • Employees should be given the opportunity to adjourn consultations, if they feel the need to go away and discuss any points with HR or a Union Advisor.

Consultations for the Introduction of the Government’s Job Retention Scheme

The scheme has been introduced to allow employers to temporarily lay-off or ‘furlough’ staff, with the Government stepping in to pay 80% of the wages up to £2,500. The scheme is currently in place for three months from 1 March but may be extended. The scheme is subject to existing employment law , which would indicate that there should be a level of consultation to gain employee agreement to the changes proposed to their status.

Best Practice

  • Consider asking for volunteers for furlough. You do not necessarily need to accept those that volunteer if you deem they are needed but it may avoid the need for you to have to select between staff.
  • Communicate with staff who you intend to furlough and those you may need to retain, so that they understand what this means for them and the timescales involved.
  • Document the process you have undertaken to select those staff who you think can be furloughed and those who you need to retain, and any factors you have taken into consideration.
  • Inform staff of the decision on furlough but allow them to provide feedback or to raise any concerns. Ask them for their agreement to the proposed changes to their status.
  • Keep the situation under review and keep in communication with staff, both those continuing to work and those who have been furloughed.

Consultations for Redundancies

If employers do not consult employees, any redundancies made will almost certainly be considered unfair by an employment tribunal.

For redundancies of fewer than 20 people, there are no prescribed rules on how consultations should be carried out. However, it is best practice to properly consult with employees and their representatives in order for the process to be fair. Conference or video calls may be an effective way to engage with staff who are working remotely or self-isolating.

For redundancies of more than 20 employees within a 90 day period, there are specific regulations which must be followed and advice should be sought under those circumstances.

How Can We Help You?

Narrow Quay HR is run by experienced employment lawyers who now work as HR consultants. We can fully support you with implementing consultation processes for your business and assist with the process, as follows:

  • provide you with compliant and effective communications for your staff
  • calculate redundancy entitlements
  • timetable the consultation process and provide scripts for consultation meetings
  • support consultation meetings remotely, either by being part of a consultation meeting held on the phone or via video conferencing, or by being available on the phone should you want to adjourn to speak to us
  • take a note of consultation meetings where these can be arranged remotely
  • identify when legal advice may be necessary and quickly put you in touch with the right people

For more information, please contact our Employment and HR specialists Caitlin Anniss on 07909 683938 or Sarah Martin on 07799 136 091 at Narrow Quay HR Consultancy.

What is Furloughing? Job Retention Scheme FAQs

Home | News | Page 18

The Job Retention Scheme is an unprecedented government initiative designed to help employers avoid making large-scale redundancies, or laying staff off without pay, during the coronavirus pandemic.

The purpose of the Scheme is to provide employers with financial assistance during this uncertain economic time, and also to maintain job security and a certain level of income for staff whose jobs may otherwise be affected by the pandemic.

The Job Retention Scheme is an unprecedented government initiative designed to help employers avoid making large-scale redundancies, or laying staff off without pay, during the coronavirus pandemic. The purpose of the Scheme is to provide employers with financial assistance during this uncertain economic time, and also to maintain job security and a certain level of income for staff whose jobs may otherwise be affected by the pandemic.

The term ‘furlough’ is an American term which has not previously been used in UK employment law.  Essentially, it means temporarily laying off staff for a period of time whilst keeping them on the payroll.

Under the Scheme, the government will provide a grant to cover “the lower of 80% of an employee’s regular wage or £2,500 per month, plus the associated Employer National Insurance contributions and minimum automatic enrolment employer pension contributions on that subsidised wage.  Fees, commission and bonuses should not be included”.

More detailed guidance around how to calculate claims for Employer NI contributions and minimum automatic enrolment pension contributions is expected before the Scheme goes live.

The Scheme will be backdated to 1 March 2020 and will be in place for an initial three month period, although could be extended if necessary.

All UK employers who had created and started a PAYE payroll scheme on 28 February 2020 can ‘apply’ to use the Scheme, including:

  • businesses
  • charities
  • recruitment agencies (where agency workers are paid through PAYE)
  • public authorities

The government has said it does not expect the Scheme to be used by many public sector organisations as the majority continue to provide essential public services or are contributing to the response to the pandemic.

The government has also confirmed that where a public authority is in receipt of funding for staff costs, the expectation is for that money to be used to pay wages in the usual way.

We anticipate that any public authority seeking to use the Job Retention Scheme will be expected to justify its reasoning as the government will wish to avoid effectively paying twice for staffing costs.

The guidance confirms the Scheme is open to employees on the PAYE payroll at 28 February 2020 and on “any type of contract” including:

  • full-time employees;
  • part-time employees;
  • employees on agency contract; and
  • employees on flexible or zero hours contracts.

No.  Self-employed individuals may be eligible to claim Universal Credit and/or government self-employed income support, both of which are separate schemes.

It is important to understand that as the employer, you will still be required to pay staff salaries under the Scheme.  The government will then reimburse costs, subject to the limits set out above.

No, there is no obligation to make up the shortfall in furloughed staff salaries. Under some circumstances employers may wish to do so, but the implications of this should be carefully considered.

Where employers are imposing a furlough period on staff (if a consultation procedure is not followed, or if agreement has not been reached through consultation), employers may choose to make up the salary shortfall in order to mitigate the risk of claims, for example claims for breach of contract. However, thought should be given to the perceived unfairness of a scenario where furloughed staff and those who are required to continue to work, are in the same financial position.

Staff selection may be straightforward if the entire workforce is affected, or if whole categories of staff are affected. However the more likely scenario might be that a skeleton staff needs to be maintained during the pandemic, so staff will either be selected for furlough or selected to remain at work. In these circumstances, a fair and objective selection process should be designed in order to justify the designation of all staff into one or other of these categories. It might also be appropriate to invite volunteers for remaining at work, and to discuss an employee’s proposed selection with them as part of a consultation procedure with a view to agreeing the change.

No, any employee who is furloughed should not perform any work for their furloughing employer whilst they are on furlough leave. They are however entitled to perform voluntary work and/or complete training.

The guidance confirms staff on sick leave can be placed on furlough leave once their sick leave comes to an end. The guidance also confirms staff who are “shielding” can be placed on furlough leave.

Yes, the updated guidance confirms furloughed employees retain their SSP entitlement. However, depending on the financial arrangements in place during the furlough period, staff who fall ill whilst on furlough leave may well not report this to their employer.

Employees who are furloughed continue to be employed and will therefore continue to accrue annual leave. The guidance issued to date also does not prevent annual leave from being taken during furlough leave.

The government grant will include the minimum automatic enrolment employer pension contributions on the subsidised wage.

The guidance confirms fees, commission and bonuses should not be included in the grant claim. However, this does not mean the employer can automatically stop providing contractual benefits during the furlough period. If there is a proposal to reduce or pause benefits during the furlough period, consultation should take place on this basis with a view to reaching agreement.

To discuss the steps your organisation should take now in relation to coronavirus, please contact Sarah Martin on 07799 136 091, Caitlin Anniss on 07909 683 938 or Michaela Calcutt on  0117 314 5619.

Coronavirus – Changes to the Statutory Sick Pay Regulations

Home | News | Page 18

Coronavirus (COVID-19) cases are continuing to spread across the UK, and in response, we have provided guidance around your statutory sick pay rights

Statutory Sick Pay

We recently reported that an employee who self-isolates because they are suffering from the symptoms of coronavirus/COVID-19, may be entitled to receive Statutory Sick Pay (SSP). SSP is currently paid at a rate of £94.25 per week (to increase to £95.85 on 6 April 2020) for up to 28 weeks from the fourth day that the employee is unable to work.

Since that report, new legislation has been introduced which provides that any employee who is self-isolating in accordance with government guidance will be entitled to SSP.

At the date of first publication, the relevant new legislation stated that the change to persons entitled to SSP would be effective from 13 March 2020. However, further changes have since been made to the relevant legislation which mean that an employee who self-isolates is actually entitled to SSP from 17 March 2020, rather than 13 March 2020.

Additionally, in a recent update, the Chancellor announced that new measures including £30 billion of tax reliefs and loans would be implemented to support small-and-medium-sized businesses during the coronavirus pandemic. Among other things, the support plan will allow some employers to reclaim SSP paid for sickness absence.

Within this announcement, the government confirmed that emergency legislation will be brought forward to provide that SSP will be payable from the first day that an employee is off work and that this change will have retrospective effect from 13 March 2020. The draft Coronavirus Bill has been released today and you may read the draft Bill here. In the meantime, the government is encouraging employers to pay employees who are affected by coronavirus from the first day of absence, with immediate effect.

The draft Coronavirus Bill states that all changes made under the Act will be temporary and apply for a period of two years from the date it is passed. However, the legislation that provided for the change to eligibility for SSP is due to remain in force until mid-November 2020, but expressly states that this will be kept under review.

We will continue to closely monitor economic, business and legislative developments in this area.

To discuss the steps your organisation should take now in relation to coronavirus and SSP, please contact Sarah Martin on 07799 136 091 or or Caitlin Anniss on 07909 683 938 at Narrow Quay HR. 

Coronavirus and the Workplace – Advice for Employers

Home | News | Page 18

Up to a fifth of the workforce may be off sick during the peak of a coronavirus (COVID-19) epidemic in the UK, the government has suggested.

As we continue to see day-on-day increases in the number of people infected, there is potential for significant disruption to normal working patterns across all businesses

In this article, we respond to employers’ most common questions around sick pay, travel, as well as caring for dependants, protecting the health and safety of staff, and closing the workplace.

We also recommend all employers consider the ACAS guidance and the government guidance which is updated daily.

On Monday 23 March 2020 the government announced a three week mandatory lockdown period, during which time people may only leave their house for one of four defined reasons. One of those reasons is to attend work, if the work absolutely cannot be done from home. Clarity has been sought from the government in respect of what this means in practice, and further guidance may be issued in the coming days as pressure increases on the government to halt non-essential business that cannot be conducted from home.

For now, businesses should facilitate homeworking wherever possible, and should insist on staff travelling to work only where this is essential, for example if your staff are key workers as defined by the government.

Where employees are sick:

  • Where an employee is self-isolating because they are suffering from the symptoms of COVID-19, they will be entitled to receive sick pay in the usual way as they are unwell.
  • The government has advised that employers should use their discretion concerning the need for sick notes to allow GPs to focus on other patients.

Where employees are self-isolating on medical advice or government guidance but have no symptoms:

  • If an employee is able to work from home then they should be paid as normal.
  • Under the new Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 (SI 2020/287), if an employee self-isolates in accordance with government guidance (and are not working) then they are entitled to statutory sick pay (SSP).
  • Employers should check contractual sick pay terms to identify whether contractual sick pay would be payable or consider the extent to which they are prepared to exercise their discretion to pay such employees sick pay in these circumstances.
  • ACAS has recommended that it is good practice for employers to treat any period of self-isolation as sick leave, because otherwise there is a risk staff will attend work in order to get paid and there may be an enhanced risk of them spreading the virus.
  • Note that unions have stated that their expectation is that all employers provide full pay in accordance with ACAS guidance regardless of whether they are required to contractually.

Where employees choose to self-isolate:

  • Where a key worker who would otherwise be required to be at work chooses to self-isolate (but not in accordance with government guidance or medical advice) and is not working or available to work – then they will not be entitled to SSP or contractual sick pay.
  • Schools should explore the employee’s reasons when deciding how to treat them, and whether to exercise their discretion to continue to make any payment.

Where employers ask staff to self-isolate:

  • Where an employer has concerns about a key worker spreading the virus and asks them not to work (but this is outside the government guidance), the key worker should receive their usual pay in the normal way – as such absence is at the request of the employer.

The government has now imposed the requirement on all members of the public not to leave their home, except to shop for essentials, to carry out one form of exercise per day, for a medical need, or to travel to and from work where absolutely necessary.

All workplaces should therefore facilitate working from at home wherever possible. Staff who work at home will usually receive payment as normal.

The government states that employees from vulnerable groups should be strongly advised and supported to stay at home and work from there if possible. This covers staff who are aged 70 or older, under 70 with an underlying health condition and those who are pregnant. The 1.5 million people considered by the government to be most vulnerable, either due to their health or due to an underlying health condition, have now been contacted and have been asked to remain at home in isolation for 12 weeks.

Employers have a duty of care towards staff. They should consider how they can support staff from vulnerable groups to stay at home and follow the government’s social distancing guidance.

Employers should also be mindful of their duties under the Equality Act 2010 to make reasonable adjustments to an employee’s working arrangements where that employee has a disability within the meaning of the Act which results in a higher risk of contracting severe COVID-19.

Where staff are at home on the basis of government guidance and are unable to work from home then it is likely that they will be entitled to statutory and/or occupational sick pay depending on the relevant contract and policy wording in place. It is not currently clear whether staff on sick leave will be able to be furloughed under the Job Retention Scheme. We hope to update this advice once more detailed guidance is published.

If an employee refuses to attend work (where it is not possible for them to work from home and they are not from a vulnerable group) then employers can usually ask them to do so, and refusal will be unauthorised absence, albeit sensitivity should be displayed particularly in circumstances where, for example, the member of staff shares a household with somebody who is considered extremely vulnerable due an underlying health condition. In these circumstances it is likely to be most pragmatic to agree a period of unpaid leave.

Employees are entitled to a reasonable period of time off work to care for dependants in an unexpected event or emergency.

If employees have children they may need to look after them and arrange further childcare because their child’s school is closed. They may also need to help their child or dependant if they are ill, or have to go into hospital. . Individuals are permitted to leave their homes during the lockdown period in order to care for vulnerable relatives. Time off work may be required in order to provide such care.

There is no statutory right to be paid for this time off, but some employers may offer paid time off for a limited period under a contract or policy.

Where staff have a paid holiday entitlement this could be used.

The new Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 (SI 2020/287) state that an employee self-isolating in accordance with government guidance is entitled to SSP – even if they are no showing any symptoms.

The government has stated that SSP will be paid from day one as part of its emergency coronavirus legislation where an employee is self-isolating.

The Chancellor also announced in the Budget delivered on 11 March 2020 that the government will reimburse small employers (those with less than 250 employees) any SSP paid to employees for the first 14 days of sickness absence. We await further details on how this will be implemented.

If an employee becomes ill with symptoms of coronavirus at work, they should be sent home and advised to follow the stay at home guidance. They should not visit the GP, hospital or pharmacy. If their life is at risk or if they are seriously ill or injured then a member of staff should call 999.

International travel is becoming more restricted as countries close their borders and airlines cancel flights. The Foreign & Commonwealth Office has asked Britons overseas to return to the UK now if possible. During the current lockdown period, employees are therefore increasingly unlikely to travel overseas, save for if such travel is essential.

Few employment contracts will include terms enabling the employer to restrict personal travel. However, employers are entitled to refuse permission for an employee to take statutory holiday under the Working Time Regulations and may also have policies and procedures in place that allow them to refuse holiday requests.

It is a good idea to plan now in case the work place needs to close temporarily, for example if remote working is not possible and the business is not considered essential so that it can continue to operate during the mandatory lockdown period. We recommend that employers ensure staff have a way to communicate with their colleagues and their employer in this situation. For example, do staff have contact details for other members of their team.

Consider whether work can be carried out remotely by staff.

Ask staff to take laptops and mobile phones home with them so if something changes overnight staff are able to keep working.

If possible, arrange paper based tasks for staff that do not work on computers.

If the business has to close down temporarily, unless it is agreed otherwise or contractual provisions are in place that allow for a reduction in pay where employees cannot work, it is likely that staff will be entitled to pay throughout this period. The government has introduced a new Job Retention Scheme to reimburse businesses 80% of wage costs, up to £2,500 per employee per month, for staff who are “furloughed” (temporarily laid off) during the pandemic. We have prepared a separate set of FAQs on the Job Retention Scheme.

Employers should facilitate home working wherever possible in order to adhere to government advice around social distancing, and to comply with restrictions on movement during the mandatory lockdown period.

All employers have a legal duty to carry out risk assessments in relation to the risks to the health and safety posed by their operations. This includes assessing the risks posed by the current coronavirus outbreak. Employers should carry out written risk assessments in respect of the risks posed by coronavirus in order to ensure that they are taking reasonable steps to control risks posed by the virus to its employees, and anyone else affected by its operations – this could include clients, customers or anyone else who may be affected.

As part of the risk assessment, employers should identify and put in place adequate control measures to respond to risks posed by coronavirus. Employers should provide employees with adequate information about the these measures and ensure that they are understood and that training is provided to employees, where necessary.

Given the rapidly changing position, employers should keep the risk assessment under close review and update regularly it to respond to any change in the risk profile.

  • Remain in close contact with staff so it is clear what organisational and operational measures are in place either to facilitate remote working during the outbreak, or if staff are required to continue to travel to work, what measures have been put in place to protect their health and safety such as:

    – whether it is possible to offer flexible start/finish times so busy periods on public transport can be avoided, or whether temporary car parking can be provided
    – how social distancing rules will operate in the workplace, for example staff being required to remain a minimum of two meters apart at all times
    – what hygiene/sanitation measures have been put in place such as the provision of alcohol based hand sanitiser, and wipes for cleaning IT equipment, etc

  • Encourage employees to be extra-vigilant with washing their hands, using and disposing of tissues etc.
  • Provide a link to the government guidance on the situation which is updated every day.
  • Summarise the current guidance about international travel and your own workplace policy on holiday requests; Ask staff to speak to their manager if they have any trips planned and encourage staff to inform you of any trips they have coming up so that you can discuss the risks and any possible consequences of them in advance; As the situation changes, employers may need to update their guidance to staff. This can be done briefly at regular intervals by email;
  • If your staffing requirements have changed, consider workforce planning measures including furloughing staff using the government’s Job Retention Scheme.

To discuss the steps your organisation should take now in relation to coronavirus, please contact Sarah Martin on 07870 681 767 or or Caitlin Anniss on 07909 683 938 at Narrow Quay HR. 

When Can Suspensions Be Unreasonable?

Home | News | Page 18

An NHS Trust was taken to court, after the claimant seeks a temporary injunction following her suspension from duties.

In the recent case of Harrison v Barking, Havering and Redbridge University Hospitals NHS Trust, an employee successfully argued that her suspension was unreasonable. The court ordered a mandatory interim injunction allowing her to resume the majority of her normal duties at work.

What Happened?

The claimant is the Deputy Head of Legal Services for an NHS Trust and was suspended following concerns about her handling of a clinical negligence case. She had not previously received criticism of her casework. Following her suspension, she was diagnosed with stress and prescribed anti-depressant medication. She had not previously suffered from mental health issues.

The Trust advised that the claimant could return to work on restricted duties. She refused, as she claimed this was a demotion and contrary to medical advice, that returning to full duties would improve her health. She was then suspended again for refusing to obey an instruction.

The claimant sought an interim injunction permitting her to perform the majority of her normal duties autonomously whilst the Trust’s investigation was carried out.

Was This Suspension Reasonable?

In considering the application for a temporary injunction, the court needed to consider whether the claimant had an arguable case that the Trust’s actions amounted to a breach of the implied duty of trust and confidence.

The court concluded that there was a strongly arguable case on the following grounds:

  • On the facts of the case, there was arguably no reasonable and proper cause for the suspensions imposed by the Trust.
  • The criticisms of particular aspects of the claimant’s work, which purported to justify the restriction of her duties had been made after the decision to suspend her was taken.
  • The Trust had failed to challenge the claimant’s assertion that the allegation that she had been rude towards panel solicitors had not previously been raised with her during her appraisals.

What Can You Learn From This?

This case is an important reminder for employers to carefully consider whether suspension is an appropriate action in the circumstances. Suspensions should usually be a last resort and not a knee-jerk response.

In circumstances where an employer considers that suspension is a reasonable action, careful consideration should be given to ensure the decision is proportionate. There must be proper reasons given and sufficient supporting evidence to support that decision making.

For more information, please contact Sarah Martin on 07799 136 091 or Caitlin Anniss on 07909 683 938 at Narrow Quay HR. 

What Are Employers’ Understanding of the Gender Pay Gap?

Home | News | Page 18

Regulations requiring certain employers to report on their gender pay gap (GPG) came into force in 2017.

The regulations affect around 10,000 employers across the UK and the Government Equalities Office has carried out a survey and published a report following the first year of reporting.

Survey Findings

The Government Equalities Office carried out a survey comprising of 900 large employers and the results showed that 82% of respondents believed they had a good understanding of what the GPG is and how it is calculated.

Knowledge of the GPG has improved significantly since 2017, almost doubling with just 2% reporting having a limited understanding. However, attitudes to reducing the GPG varied widely with 23% allocating it a high priority, 45% a medium priority and 29% a low (or non) priority.

The report also notes disparity on opinions regarding the overall difficulty of complying with the reporting requirements. The survey found that 33% felt that they would benefit from additional guidance and 30% found it difficult to comply; compared to 35% reporting that they found it straightforward.

2018-19 Reporting

The requisite GPG reports for this year must be published by 4 April for private sector employers and by 30 March for public sector employers.

Although provision of an accompanying narrative is not a legal requirement, we consider an explanation of the reason for and factors contributing to any pay gap to be useful in managing employee relations and understanding the data. Narratives may include information on reward/pay strategy, comparisons with previously published benchmarks, an update on what steps have been taken to reduce pay gaps and an action plan, outlining future plans to reduce any pay gaps as a result of the analysis.

The research found that the proportion of employers developing a gender pay gap strategy is increasing. Measures that can be used to tackle the GPG could include promoting flexible working and shared childcare, cultural changes and gender-specific recruitment strategies.

For more information, please contact Sarah Martin on 07799 136 091 or Caitlin Anniss on 07909 683 938 at Narrow Quay HR. 

When Does an Employer Have Knowledge of an Employee’s Disability?

Home | News | Page 18

The recent case of Lamb v The Garrard Academy highlights how complicated the question of employer knowledge around an employee’s disability can be.

The Legal Background

Employers have a duty to make reasonable adjustments for employees who are disabled. Under the Equality Act 2010, an employee is disabled if they have a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out day to day activities.

The duty to make reasonable adjustments is triggered when the employer has actual or constructive knowledge of an employee’s disability. Constructive knowledge arises where the employer could reasonably be expected to know of the disability.

The Facts

Ms Lamb, a teacher, began a period of long term sick leave in February 2012. In March 2012, she raised a grievance with the school in which she complained about two incidents involving the Deputy Head.

Ms Lamb’s grievance was initially investigated and upheld by the school’s Head of HR. However, the Head of HR’s grievance report was found to be inadequate by the school’s Chief Executive, Mrs Elms. Mrs Elms did not read supporting documentation appended to the report. In July 2012, Mrs Elms met with Ms Lamb to discuss the investigation and, in this meeting, Ms Lamb disclosed that she had post-traumatic stress disorder (PTSD) due to events from her childhood.

Despite initially saying she would personally deal with the grievance, Mrs Elms later commissioned a new investigation by the school’s new Head of HR. The second investigation was eventually concluded in January 2013 and rejected Ms Lamb’s grievances.

Ms Lamb brought a claim for failure to make reasonable adjustments. The alleged failures related to the way in which the investigation was handled, including that the second investigation report should have been completed before the end of the Summer term and that Mrs Elms should have read the supporting documentation to the original report.

The Decision

Ms Lamb’s initial sick notes in February 2012 cited reactive depression. In November 2012, the school obtained an Occupational Health report which confirmed that Ms Lamb suffered from PTSD and that she had been suffering a period of symptoms since September 2011.

The school accepted that Ms Lamb was disabled due to PTSD but argued that it did not have knowledge, and neither could it reasonably be expected to have knowledge, until the Occupational Health report was obtained in November 2012. Therefore the duty to make reasonable adjustments was not triggered until this time. An Employment Tribunal  accepted this.

On appeal, the Employment Appeal Tribunal (EAT) held that the school had actual knowledge of Ms Lamb’s disability mid-July 2012 when she disclosed her PTSD to Mrs Elms and that it ought reasonably to have known that she had a disability by early July 2012. The EAT therefore held that the duty to make reasonable adjustments arose in July 2012.

The EAT held that the school should have sought to remove the disadvantage to Ms Lamb by properly reading the first investigation report, including the supporting evidence, and building upon that original report so that the grievance investigation was concluded before the end of the Summer term.

Best Practice

This case demonstrates that employers need to be mindful of any information (whether oral or written), which indicates that an employee may have a disability. Such information may give employers actual knowledge of disabilities or give rise to reasonable expectations that they should have that knowledge.

Where an employer has knowledge of a potential employee’s disability, it should consider obtaining Occupational Health advice to better understand the employee’s health condition and to assist in discharging any potential duty to make reasonable adjustments.

For more information, please contact Sarah Martin on 07799 136 091 or Caitlin Anniss on 07909 683 938 at Narrow Quay HR. 

Government Proposes Biggest Reform of Employment Law in 20 Years

Home | News | Page 18

In July 2017, Matthew Taylor published his Good Work report into the implications of new forms of work on worker rights and responsibilities and employer freedoms and obligations.

The government has now published a Good Work Plan proposing a number of changes to employment law, and draft legislation for some of the changes has already been released.

Changes Coming Into Force on 6 April 2020

On 6 April 2020, the following employment law changes will be made as part of the Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018.

  • Break in Continuity of Employment – The break between periods of employment which breaks continuity will be increased from one week currently to four weeks. This is likely to have the biggest impact on temporary workers as it will easier for them to accrue the two-year qualifying service to engage unfair dismissal rights. Employers will need to track temporary employees more closely and take far more care in ending temporary assignments when an individual has qualifying service.
  • Holiday Pay Calculation of a Week’s Pay – For calculating a week’s pay for holiday pay purposes, the reference period for variable pay will increase from 12 weeks to 52 weeks. This should be a change welcomed by employers as holiday pay calculations will be less exposed to short term variations in pay.
  • Agency Workers – The Agency Workers (Amendment) Regulations 2018 will abolish the exemption which excludes agency workers from the right to equal pay with comparable direct employees if they have an employment contract with their agency which guarantees pay between assignments (commonly known as the Swedish Derogation).

The Employment Rights Regulations 2019

The government has proposed the following changes as part of the Employment Rights (Miscellaneous Amendments) Regulations 2019, which currently has no universal commencement date.

  • Written Statement of Terms and Conditions – Employers will be required to provide employees with their written statement of terms and conditions on the first day of work (rather than within two months) and this right will also be extended to workers. Employers will need to review their recruitment processes and ensure employment contracts are being issued to employees and workers on or before their first day.
  • Aggravated Conduct Penalties – Employment tribunals can currently issue penalties against an employer for aggravating conduct. These are hardly ever imposed. The government proposes to increase the limit on the penalties from £5,000 to £20,000. This will come into force on 6 April 2019.
  • Information and Consultation Thresholds – To encourage engagement in the workplace, the percentage required for a valid employee request for an information and consultation agreement governing how their employer will consult about economic and employment-related matters will be lowered from 15% to 2% of the workforce.

Additional Changes

There are other major proposed changes to employment law within the Good Work Plan which are not currently part of proposed legislation.

  • Test for Employment Status – Currently, the employment tribunals and the HMRC take different approaches to considering whether an individual is an employee, a worker or is self-employed. It is entirely possible that someone might be, for example, a worker for employment law purposes but self-employed for tax purposes. The government is proposing that the same status test is used for employment law and tax purposes and that these tests are ‘streamlined’. Harmonising and clarifying the employment status tests should hopefully make it easier for employers to determine whether an individual is truly self-employed. Employers will need to review all contracts with supposed ‘contractors’ to determine whether the contractor retains their self-employed status under the new employment status rules. This may lead to more individuals being added to payroll and/or renegotiation of contracts.
  • Right to Request Fixed Working Pattern – The government is proposing a right to request a fixed working pattern for those who do not have one. Entitlement to the right will be after 26 weeks on a non-fixed pattern. There is likely to be considerable discretion for the employer to refuse the request, akin to flexible working requests.
  • Tips – A ban on employers making deductions from staff tips.

The government is billing the Good Work Plan as the biggest reform of employment law in 20 years. However, the plan has stayed away from making any detailed proposals regarding the larger changes proposed by Matthew Taylor to tackle the increasing perceived unfairness and unlawfulness within the gig economy and for zero hours workers. It remains to be seen how the government will tackle these pressing employment concerns. At present, the governments proposed changes represent more of a tinker with existing legislation then any form of whole scale reform.

For more information, please contact Sarah Martin on 08899 136 091 or Caitlin Anniss on 07909 683 938 at Narrow Quay HR. 

Voluntary Reporting on Disability, Mental Health and Wellbeing

Home | News | Page 18

In October 2017, “Thriving at work: the Stephenson/Farmer review of mental health and employers” was published.

Following this, the Department for Work and Pensions and the Department of Health and Social Care have published a framework to support employers to voluntarily report disability, mental health and wellbeing in their workforce.

The framework is entirely voluntary in nature and aimed at larger employers with over 250 employees. However, smaller employers are also encouraged to engage with the framework as well.

The purpose of the framework is to drive transparency in organisations. Employers are encouraged to provide a narrative explaining the action taken to recruit and retain disabled employees and provide support in relation to mental health and wellbeing in the workforce.

The Stephenson/Farmer review suggested that poor mental health was costing employers between £33 billion and £42 billion per year (namely in relation to sick leave, staff turnover and impact on productivity).

It appears that the issues of disability and mental health and wellbeing is increasingly under the spotlight and it is possible that reporting will become mandatory in the future (although this is not suggested at present). Employers may decide to voluntarily report as a point of best practice and to demonstrate transparency and a commitment to addressing issues arising out of disability and mental health in their workplace. Further guidance regarding reporting is to be published shortly.

For more information, please contact Sarah Martin on 07799 136 091 or Caitlin Anniss on 07909 683 938 at Narrow Quay HR. 

Can Staff Take Their Leave When Payment in Lieu Is Payable?

Home | News | Page 18

Three recent cases highlight why you should encourage your employees to use their holiday entitlement.

The purpose of Article 7 of the Working Time Directive (2003/88/EC) (the WTD) is to ensure that EU Member States implement domestic legislation that grants workers entitlement to paid annual leave of at least four weeks per year. Article 7 also states that paid annual leave cannot be replaced by payment in lieu – except where the employment relationship is terminated.

The Cases

Kreuziger v Land Berlin and Max Planck v Shimizu: In these separate cases, the claimants were seeking to be paid in lieu of untaken annual leave on the termination of their employment. In Mr Shimizu’s case, he was claiming payment in lieu for untaken holiday entitlement for the current year as well as the preceding year.

Stadt Wuppertal v Maria Bauer and Volker Willmeroth v Martina Brobonn: In both cases, the claimants were the sole heirs to the estates of their late husbands who had died while in employment. They were claiming payment in lieu for annual leave entitlement that their husbands had not taken before their deaths.

Findings

In all three instances, the ECJ have emphasised the importance of paid annual leave as a principle of EU social law from which there may be no derogations. The ECJ also reiterated the aims of the WTD and Article 31(2) Charter of Fundamental Rights of the European Union (the Charter) being to ensure that workers have sufficient rest from the work they do in their jobs and to have a period of relaxation and leisure.

On termination of employment, including when terminated by the death of the employee, domestic legislation should not provide for automatic loss of annual leave entitlement. The employee, or the heir to their estate, should be entitled to payment in lieu for any such untaken annual leave.

Annual leave entitlement from an earlier leave year is not automatically lost just because the employee failed to request to use it. To be able to show that payment in lieu for such leave is not owed to the employee, the employer must be able to demonstrate that they provided the employee with the opportunity to take the leave and made them aware of the circumstances under which the entitlement would be lost.

Although these findings relate to German cases, the effects are relevant to the UK as the ECJ confirmed in all three instances that the rights to paid annual leave under the WTD and the Charter are directly enforceable between private persons and National courts must interpret domestic legislation in accordance with both the WTD and the Charter. Where domestic legislation is entirely incompatible, the WTD and the Charter take precedence.

Best Practice

The findings suggest that untaken annual leave may not automatically lapse at the end of the holiday year, raising the possibility that on the termination of employment, an employee might be entitled to be paid in lieu of their total accrued entitlement (whether accrued in the current or previous leave years).

For the entitlement from earlier leave years to lapse, employers need to be able to show that they have provided their staff with the opportunity to take their paid annual leave. What exactly would qualify as sufficient ‘opportunity’ is not totally clear, however the ECJ noted that employers are required in particular ‘to ensure, specifically and transparently that the worker is actually given the opportunity to take the paid annual leave… by encouraging him, formally if need be to do so while informing him accurately and in good time…and that if he does not take it, it will be lost.’

We would therefore recommend that employers ensure through their policies and HR systems that employees are aware of the need to take annual leave in the leave year it arises, any policy on carry over and  the procedure for booking and taking that leave. We would also recommend including a reminder of the consequences of not taking their annual leave entitlement in these communications.

Employers may choose to have a policy that requires employees to use up accrued holiday after notice of termination has been served. Whether such leave is actually taken will still need to be monitored. These decisions will only apply in respect of the four weeks annual leave granted under the WTD and implemented into domestic law by the Working Time Regulations 1998 and will therefore not apply to the extra 1.6 weeks granted under the Regulations and any contractual holiday entitlement over and above this.

For more information, please contact Sarah Martin on 07799 136 091 or Caitlin Anniss on 07909 683 938 at Narrow Quay HR.