There’s currently less than 3 months to go before new IR35 rules
come into play that will have significant implications for businesses. They are
of particular relevance to any medium or large businesses that use contractors,
consultants, or self-employed individuals.
What is IR35?
The term “IR35” is the name given to a set of tax rules that cover
“off payroll working”. They apply to any arrangements whereby a worker provides
services to an end-user client company via an intermediary, usually a personal
service company (PSC). Under the rules currently in force, the liability for
assessing the correct tax position rests with the PSC. However, when the IR35
rules change, liability will shift from the PSC to the client.
Does IR35 apply to my business?
The new IR35 rules will have major consequences for client
businesses who utilise contractors as they will have to decide whether the
engagement falls within IR35. This is an important new obligation as it will
determine which entity in the supply chain is responsible for operating PAYE on
the fees charged by the PSC. It requires
assessing whether the worker engaged by the PSC could be deemed to be the
client’s employee and making a “status determination statement” confirming the
view reached on that point.
The changes were originally meant to take effect last year, but due
to the coronavirus pandemic the start date was pushed back to 6 April 2021.
This means that time is running out for businesses to prepare for the changes.
What do I need to do?
With just a few months left, it’s time to ensure your IR35
preparations are well underway. Steps for businesses to take now include to:
get familiar with the new rules
and responsibilities;
engage with key internal stakeholders,
such as HR, Tax, Finance, and departmental heads;
audit any arrangements that could
potentially fall within the IR35 rules; and
decide on the strategy to
ensure compliance.
Businesses that engage
with contractors should liaise with LexLeyton now to plan for and implement
processes to ensure compliance with the new rules from 6 April 2021. If a free
consultation around IR35 and its impact on your business would help you
prepare, or to discuss any other HR or employment related issue don’t hesitate
to reach out to us at legal@lexleyton.co.uk.
After nearly 12 months of dealing with covid-19 most of us
are fully aware of the obligations so self isolate if we have been in contact
with someone with covid-19, whether we are notified through track or trace or
we are simply following the rules as set out in the NHS
guidance. We are seeing that the new
strain of covid-19 has resulted in more employees having to isolate at home
following potential exposure to an infected individual. This has been presenting two issues for employers:
Resentment between employees who can isolate and
work at home and those that are obliged to stay at home and isolate on
Statutory Sick Pay.
Those that see the relative ease of the self isolation
system as an opportunity to take time off work whilst still receiving either
company or statuary sick pay.
Situation 1: There is little the employer can do in scenario
one and the situation is reflective in many businesses across the UK at
present. Whilst this situation may seem
unfair at face value, it is simply reflective of the nature of the roles the
employees undertake. As an employer, the
key obligation is to allow the employee to follow the guidance on isolation, ensure
the workplace is covid-19 secure and that any health and safety risks are
adequately controlled to protect those that remain within the workplace. From a
HR perspective, the employer should take steps to recognise the contributions
being made by those whose roles necessitate a presence in the workplace and may
utilise various formal and informal reward and recognition strategies to
achieve this.
Situation 2: The nature of the symptom-reporting process and
the ease of obtaining a self-download NHS isolation note rely on people telling
the truth. The Government have also
confirmed that an Isolation notice is sufficient evidence upon which to pay statutory
sick pay related to Covid-19. With no
checks and balances built into this system, it is relatively straightforward
for individuals to manipulate the situation and take time off if they are not
actually entitled to. Asking an employee
to undertake a test may appear to be the simple answer, however, the government website currently
states that only those withsymptoms
are eligible to get a test. Crucially
though, the website specifically states that individuals are not eligible for a
test if their “employer or school has
asked you to get a test but you have no symptoms”. This means that it is difficult to prove
how genuine the situation is.
Employers are in a difficult position as the regulations
require them not to force staff who have been instructed to self-isolate to
leave their place of isolation (normally their home). As per the Government
guidance, failure to follow this guidance can result in fines for the employer
starting at £1000. Employers are therefore
left with little option but to accept the information as presented by their employees,
unless they have strong evidence to support the fact that the employee is not
actually in isolation. In these circumstances
an investigation and disciplinary process can be considered.
LexLeyton are here to help with all your employee
issues. Our legal team can discuss a
wide range of option as to how to handle your internal HR and employment law
matters.
If a free consultation with our expert team on the
matters raise here or on any HR or employment related issue would be of help to
your business please don’t hesitate to reach out to us at legal@lexleyton.co.uk
Racial tensions have never been
far from the headlines in the past year.
The killing of George Floyd, the Black Lives Matter movement and the
stark difference in treatment of groups of rioters in the USA have underlined
how far society still has to come in moving towards equality. This year’s Martin Luther King Day is
therefore an especially poignant time to reflect on progress, or the lack of
it.
Discrimination, clearly, remains
an issue. I have written previously
extolling the virtues of equality and diversity in the workplace, but there is
still much work to be done. The UK
enacted the Equal Pay Act in 1970 with a single, simple goal in mind. However, over half a century later Employment
Tribunals remain faced with many thousands of claims for equal pay, never mind
the more high profile cases seen at the BBC in recent years. Are employers taking issues of diversity
seriously enough? The answer in a
disappointingly high number of cases is no.
The question of how to increase
diversity in the workplace is a thorny one.
Ideas of quotas tend to polarise opinion and many employers are
apprehensive about being seen to ‘positively discriminate’. However, the law provides employers with an
answer to their concerns in the form of the positive action provisions of the
Equality Act 2010.
Put briefly, this allows an
employer to take proportionate steps in order to counteract a disadvantage or
under-representation linked to a Protected Characteristic. Positive action is extended to recruitment
and promotion specifically as, in effect, a tie-breaker between candidates who
are equally qualified.
Under-representation is a root
cause of a considerable amount of discrimination in the workplace. Where a certain group is in a minority, it
tends to be easier for that group to be treated less favourably, be subjected
to ridicule and be marginalised in terms of opportunity, whether that be for
training, promotion or recruitment in the first place. It stands to reason that steps to reduce
under-representation are a key weapon in the quest to minimise discrimination
and increase workplace diversity.
Positive action is, therefore, a way quicken progress towards this.
Some of the more forward-thinking
clients of mine have embraced positive action.
Taking charities as an example, positive action has allowed many to
transform their Boards, for example, from being ‘pale, male and stale’ to being
constituted from diverse backgrounds and therefore in line with the wider
society in which they work. No employer
who has done this has reported to me that they regretted doing so, such are the
obvious benefits of diversity. For those
employers who have yet to embrace diversity, considering taking advantage of
the law on positive action could amount to a fast-track route in to the 21st
century.
If
a free consultation with our expert team on any HR or
employment related issue would be of help to your business in moving forwards
into what we hope is an optimistic future, please don’t hesitate to reach out
to us legal@lexleyton.co.uk
What will Brexit mean for the future of employment law?
One
consequence of the ending of the UK’s transition period following its exit from
the EU is that the Government is now free to make changes to employment law
that would not have been possible before. There are some limits, however. The
trade agreement that the UK has reached with the EU states that in the field of
employment law, neither side will ‘weaken or reduce’ levels of protection ‘in a
manner affecting trade or investment between the parties’.
It is
worth noting that this obligation is not limited to those areas of employment
law governed by the EU – it refers to employment law as a whole. Unfair
dismissal is not an area covered by EU law, but if the government were to
repeal it altogether that would clearly be a breach of the trade agreement. It
is also clear that the wholesale repeal of the Working Time Regulations
or TUPE is out of the question.
Nevertheless,
there are many changes that could be made that would not be regarded as
sufficient to affect trade, but which could be of importance to those
interested in employment law. The rules on holiday pay for example have been
causing difficulty for many years and there is a serious disparity between the annual
leave provisions of the Working Time Regulations and the requirements of
the Working Time Directive as it has been interpreted by the European
Court. There is now nothing to stop the UK Government from providing clarity on
such issues as the inclusion of overtime in the calculation or the effect of
long-term sickness absence on an employee’s entitlement. If the Regulations
were to be amended, the UK courts would have to apply the new rules without
considering the requirements of the Directive.
Other
changes that might be suggested include: making it easier to agree a change in
terms and conditions following a TUPE transfer, capping compensation in
discrimination cases and perhaps simplifying some of the rules on agency
workers. How much appetite or capacity the government has for making such
changes remains to be seen. But given the outstanding commitments from the 2019
Conservative Party manifesto on redundancy protection for new parents and
additional leave for carers, a significant Employment Bill in 2021 is very much
on the cards.
Employment tribunal procedure
– ACAS uplifts
Employers and employees must
follow the ACAS Code of Practice in relation to disciplinaries and dismissals.
If either party fails to follow the Code, the tribunal can increase or decrease
tribunal compensation by up to 25%. In Wardle v Credit Agricole Corporate
and Investment Bank, the Court of Appeal said that a tribunal should only
fix the rate of uplift once it has considered how much the uplift would equate
to financially, to ensure it isn’t disproportionate. An Employment Tribunal can
‘reconsider’ any judgment where it is necessary in the interests of justice. A
tribunal can do this of its own initiative, at the request of the Employment
Appeal Tribunal or if one of the parties makes an application for a
reconsideration within 14 days of a judgment. The Employment Appeal Tribunal
has recently looked at a case where an employer asked a judge to reconsider a
case ‘of its own initiative’ in circumstances where they were out of time to
make the application themselves.
In Banerjee v Royal Bank of
Canada, the employee won his claim for whistleblowing unfair
dismissal. The Employment Tribunal found that the employer had failed to follow
the ACAS Code and ordered a 25% - the maximum – uplift. This was contrary to
the Wardle approach because the percentage uplift was fixed before the
remedy hearing which would calculate the employee’s compensation. This was
especially important in this case because the employee was a highly paid City
trader and the 25% uplift equated to £261,000. The employer wanted this
decision to be reconsidered but by the time of the remedy hearing the time
limit for making an application had expired. The employer argued that the
tribunal could reconsider the decision of its own initiative, telling the
tribunal ‘that’s what you should do’. The tribunal agreed. It decided
that the parties should calculate how much compensation was owed to the
employee and then address the ACAS uplift afterwards. The employee appealed,
saying that the employer had essentially got around the expired time limit by
planting the reconsideration idea, which meant any reconsideration would not be
on the tribunal’s ‘own initiative’.
The EAT disagreed. Although the
issue of reconsideration was discussed at the remedy hearing, the employer did
not actually make an application. The tribunal could still decide itself
whether to reconsider a judgment. The fact that the employer had reminded the
judge about his ability to reconsider the judgment, and suggest that they
should do this, did not undermine the tribunal’s ability to act on its own
initiative. A (failed) application by one party to reconsider a judgment might
stop an employment tribunal being able to take that step ‘on its own initiative’,
but that had not happened here because no application had been made. An
advocate can remind a tribunal about its own powers without undermining their
ability to act independently.
This is a win for the employer in
both form and context. The power to reconsider judgments is rarely used by
tribunals. It is comforting to know that parties are not prevented from
reminding a judge of the rules and their overriding duty to deal with matters
fairly and justly. There is a sage reminder for employers though about the
importance of making any relevant tribunal applications within the appropriate
time limits. This judgment is also a helpful aide-memoire about ACAS uplifts,
which should be considered at the remedy rather than liability stage.
Indirect discrimination
One of the key differences between direct and indirect
discrimination is that a claim for indirect discrimination can be defeated if
the employer can show that the provision criterion or practice under challenge
is a ‘proportionate means of achieving a legitimate aim’. The circumstances in
which this defence of justification will succeed have been the subject of many
years of case law. One principle that has emerged is that an employer cannot
simply rely on cost savings as a legitimate aim – although it has generally
been accepted that cost can be counted as one among several factors – a so
called ‘costs plus’ approach.
The issue came up for review by the Court of Appeal in Heskett
v Secretary of State for Justice in which an employee complained of indirect
age discrimination. The case concerned the pay of probation officers which was
based on a pay scale with 25 incremental points. A probation officer would
previously have progressed three points up the scale each year, with the result
that they could reach the top of their pay scale within about 8 years. In 2010,
however, the Government introduced a pay freeze – limiting the increase in any
public sector employer’s pay bill to just 1%. The Probation Service responded
to this by limiting pay progression to just one point on the scale per year.
Since those at the bottom of the scale were likely to be younger than those at
the top it was clear that this change would amount to indirect age
discrimination unless it could be shown to be a proportionate means of achieving
a legitimate aim.
The employer argued that its policy was legitimate given the
limitations imposed on it by central Government. The employee argued that this
amounted to no more than relying on a desire to avoid the cost of allowing pay
progression to continue as it had in the past. The Employment Tribunal and the
Employment Appeal Tribunal (EAT) sided with the employer and the employee
appealed to the Court of Appeal.
The Court conducted a detailed review of the case law and
concluded that the term ‘cost plus’ was unhelpful. What had to be decided was
whether, looked at fairly, the employer’s primary objective had been to save
money. If that was all the employer was doing, then that would not amount to a
legitimate aim. However, an employer was entitled to take proportionate steps
to ensure that it ‘lived within its means’. It followed that the Tribunal was entitled to
find that the employer in this case was pursuing a legitimate aim in seeking to
operate within the financial constraints imposed on it by the Government.
As for proportionality the Tribunal had taken into account the
fact that the employer had accepted that its current pay system was
unsatisfactory and that it intended to change it so that it was less dependent
on length of service. The Court of Appeal rejected the argument that this was
an irrelevant consideration. The Tribunal had held that the reduction in pay
progression was justified as a temporary measure while the employer carried out
a more fundamental reform of its pay structure. That was a finding that it was
entitled to reach, although it raised the possibility of future claims
succeeding if the reform was not carried out. The appeal was dismissed.
Dismissals for Redundancy
A redundancy is a dismissal as a result of a workplace closing
down or the employer needing fewer employees to do work of a particular kind.
In Berkeley Catering Ltd v Jackson the question was whether the reason
that an employer needed fewer employees made a difference to whether or not
there was a redundancy situation.
Mrs Jackson was the Managing Director of a company owned by Mr
Patel. Over the course of 2017 Mr Patel began – as he himself admitted - to
undermine Mrs Jackson and disparage her in front of colleagues. He also began
to take a more active role in the business. In 2018 he decided that he would
step in as a full time CEO, making the role of Managing Director redundant.
After a series of consultation meetings, Mrs Jackson was dismissed.
She claimed unfair dismissal, arguing that her redundancy was
bogus. The Tribunal upheld her claim. There was no diminishing need for an MD
role. Mr Patel had simply decided to increase the amount of time that he put
into the company. There was no financial difficulty and the employer had taken
on an Events Director after Mrs Jackson was made redundant, indicating that
there was no diminishing need for senior management staff as a whole.
On appeal, the EAT held that this was the wrong approach. The
Tribunal had distracted itself by asking whether there was a ‘genuine’
redundancy situation. A redundancy situation either existed or it did not and
an employer was free to organise its affairs in such a way as to reduce its
requirement for employees. If it did so, then the motive behind that decision
was irrelevant to the question of whether or not there was a redundancy. Motive
was of course relevant to the issue of reasonableness, both in terms of whether
the employer had acted in good faith and whether Mrs Jackson should have been
offered the role of Events Director. But the Tribunal had fallen into error by
bringing motive into play when considering whether there was a redundancy
situation. The case was sent back to a different employment tribunal to decide whether
the redundancy situation was genuinely the reason for dismissal and whether the
dismissal was fair.
Whistleblowing
An employee who is dismissed for making a public interest
disclosure – whistleblowing – can claim unfair dismissal even without the two
years’ continuous service that is normally required. What is more, there is no
cap placed on the amount of compensation that can be awarded, so successful
claims can be very expensive for employers.
In the case of Simpson v Cantor Fitzgerald however, the
employee’s claim was unsuccessful. Mr Simpson had been employed for less than a
year as a trader for an investment bank when he was dismissed. He claimed that
his dismissal was the result of numerous allegations that he had made over the
course of his employment about the behaviour of his fellow traders. In all the
Tribunal identified 37 specific allegations.
The Tribunal held that none of these were protected disclosures.
Broadly, a protected disclosure is a disclosure of information that tends to
show that some legal wrongdoing has occurred and which the employee reasonably
believes is in the public interest. The Tribunal found that many of Mr
Simpson’s disclosures were really just complaints that he had lost out on
commission because of the way in which trades were carried out. The real reason
he had been dismissed was that ‘distrustful and obstructive’ behaviour had made
it ‘utterly impossible for the team to work with him’.
Nevertheless, the case reached the Court of Appeal which upheld
the Tribunal’s findings. The Tribunal
had been entitled to find that the allegations that he relied on were not
protected disclosures – whether because they were insufficiently specific or
because Mr Simpson did not genuinely believe that they tended to show wrongdoing
on the part of the employer or its employees. In any event, the complaints
themselves were not the reason for dismissal. The Tribunal had found that the
manager who made the decision to dismiss was not influenced by those
allegations, but by the hostile and corrosive attitude that Mr Simpson
displayed towards colleagues, as well as his poor timekeeping. He was dismissed
because his employer considered him to be a poor team player, not because he
had made protected disclosures.
Unfair
dismissal and redundancy
An
employer making an employee redundant will not normally be acting reasonably
unless it considers whether there is any alternative work that may be offered.
In Aramark (UK) Ltd v Fernandes however, the employee argued that the
employer should also have considered placing him in a bank of casual workers
after his redundancy had taken effect.
The
employer maintained a list of workers who they would call upon to perform ad
hoc assignments from time to time. They did so frequently with the result that those
on the list, while not having the security of employment, had a reasonable
expectation of future earnings. When Mr Fernandes was placed at risk of
redundancy he asked to be placed on the list as that would help him offset his
lost income. The employer refused and a Tribunal subsequently held that this
rendered the dismissal unfair.
The
EAT overturned this decision. In an unfair dismissal case, the question is
whether the employer has acted reasonably in treating the reason for dismissal
– redundancy in this case – as a sufficient reason for dismissing the employee.
Placing Mr Fernandes in the bank of casual workers would not have altered the
fact that he had been dismissed – it was not a way of avoiding dismissal as an
offer of alternative work would have been. It was therefore not a relevant
consideration in deciding whether or not redundancy was a sufficient reason for
dismissal. Whether the employer had granted the employee’s request or not, he
would have been dismissed all the same. Since this was the only ground on which
the Tribunal upheld his claim, the EAT ruled that the dismissal was fair.
National minimum wage
The government has accepted the
recommendations of the Low Pay Commission and announced the National Minimum
Wage and National Living Wage rates which will come into force from April 2021.
Recognising the formidable task of recommending minimum wage rates in the
middle of a global pandemic, the Low Pay Commission has sought to balance the
needs of low paid workers – many of whom are doing critically important work –
and the real solvency risks which small businesses are currently exposed to.
The different terms can be
confusing. The National Minimum Wage is the minimum hourly pay that almost all
workers are entitled to. The National Living Wage is higher and is currently
paid to workers who are over 25. From April 2021, the government is extending
the NLW to 23 and 24 year olds too. The new rates from April will be:
A
constructive dismissal involves the employee resigning in response to
fundamental breach of contract on the part of the employer. Normally the
employee will need to make it clear both that they are resigning and that the
reason for their resignation is the employer’s conduct. In Chemcem Scotland
Ltd v Ure however the EAT held that these requirements were met by
implication when an employee simply failed to return from maternity leave.
The
case involves a family business in which the employee in question was the
daughter of the owner. While she was on maternity leave, he was in the process
of divorcing her mother, having formed a relationship with someone else – who
was also an employee of his business. If his daughter returned from maternity
leave, she would be his new partner’s manager. It seems that this led to some
tension and conflict.
The
Tribunal identified a number of matters in the handling of her maternity leave
that amounted to a breach of mutual trust and confidence. These included
failing to pay her SMP on time and refusing to answer queries about what she
was entitled to. The whole circumstances, the Tribunal found, showed that her
father was hostile to the idea of her continued employment by the company. In
the event she did indeed decide not to return but did not expressly resign. The
Tribunal found that her resignation could be implied from the circumstances and
took effect on the day when she had been due to return to work.
The
EAT upheld this finding. It rejected the argument that the employee had not
clearly communicated the fact that she was resigning or her reason for leaving.
As the Tribunal had pointed out the employer had not, when she failed to
return, taken any steps to clarify matters or ask her about her intentions. In
the circumstances of the case her failure to return was ‘eloquent of the true
position’ and this was understood by the employer.
Breach of contract
Repudiatory – or very serious –
breaches of contract entitle the other party to the contract to consider that
the contractual terms have been metaphorically ripped up. What happens in a
case where one party contemplates breaching a contract, but the other party
beats them to it? In Palmeri v Charles Stanley, Mr Palmeri was a
self-employed stockbroker who had worked for Charles Stanley for more than 20
years. He had a three-month notice period, but his contract did not contain a
payment in lieu of notice (PILON) clause. The business decided to change its
operating model to take a bigger chunk of Mr Palmeri’s earnings. He was not
pleased. The company gave him an ultimatum – sign a new contract on the new
terms or leave immediately with a PILON. Mr Palmeri reacted furiously and was
verbally abusive to the managers present and the firm more generally. He then
agreed to take the new terms under protest for the duration of his notice
period. Unfortunately, the abusive behaviour continued and escalated so the
company withdrew the offer of new terms and summarily (without notice)
terminated his contract.
Mr Palmeri brought two claims in
the High Court – one for breach of contract for the summary termination and a
second claim for breach of the implied term of mutual trust and confidence for
failing to allow him an orderly exit for his clients. The company said Mr
Palmeri’s abusive behaviour was a repudiatory breach of contract which entitled
them to ignore contractual terms and terminate without notice. They also relied
on several serious regulatory breaches which they only discovered after his
termination. They said he was already in repudiatory breach of contract due to
those regulatory breaches.
The High Court agreed that the
company had no contractual right to make the original offer to Mr Palmeri -
accept the new terms or receive a PILON - because they had no contractual right
to pay him in lieu of notice. However, they said Mr Palmeri’s behaviour,
including the abuse and the regulatory breaches, amounted to serious misconduct
and a breach of the implied duty of trust and confidence. That repudiatory
breach by Mr Palmeri justified the employer’s summary termination. The fact
that the firm was preparing to breach his contract in future (by paying him in
lieu of notice) if he didn’t agree to new terms was irrelevant. They were still
entitled to rely on the abuse and regulatory issues as serious breaches of
contract enabling them to avoid its terms on notice.
This case shows that repudiatory
conduct by one party releases the other from the terms of the contract. In this
case, the company had been planning to pay in lieu when it hadn’t got the
contractual right to do so. Fortunately, Mr Palmeri’s bad behaviour got there
first and prevented the employer from effecting that proposed breach of
contract. Always check contractual terms before paying in lieu of notice. These
clauses should be standard in contracts to give businesses flexibility when it
comes to termination.
And Finally…
Employers across the country are being encouraged to accommodate
the need for employees to self-isolate when required to do so because of Covid.
According to widespread reports over Christmas, however, this message did not
reach a newsagent in Lincolnshire who sacked a 15 year old paperboy for missing
work after being told to self-isolate by his school. The boy’s father is
reported to be considering legal action, but may face some difficulty. It does
seem that the boy in question has been doing the job for around two years – so
it is possible that he has sufficient length of service to claim unfair
dismissal. But it is not entirely clear that a 15-year-old, still legally
regarded as a child, has the capacity to enter into a contract of employment in
the usual sense.
The law is unclear. In 2003 a 15-year-old paperboy was held not to be a worker for the purposes of the Working Time Regulations in the EAT case of Addison v Ashby. But that case turned on the fact that the working time of children was dealt with by the Children and Young Persons Act 1933 and there was no appeal from the Tribunal’s finding that the boy in question had been unfairly dismissed. The issue remains open – possibly because the rather modest pay of children delivering newspapers makes a lengthy legal battle uneconomic. Still, the boy’s father in this case does seem very annoyed. On balance, the newsagent might be better off reconsidering their decision.
In the 14th Century the Bubonic Plague decimated half of Europe’s population. Major socio-economic change followed; the invention of the printing press made long distance learning and communication possible and ultimately led to the scientific and industrial revolutions. While COVID-19 is unprecedented in our time, the bounce back is evident in history.
Reasons to be positive in 2021.
COVID Certainty
Predictive models built from
early vaccine data suggest herd immunity is most likely in Q3 this year with
most forecasting a drastic return to normality in the Spring. Having certainty
creates confidence, drives action and enables decision making in business. The
vaccine has already had a positive impact on global stock markets with some
airline groups up 40%.
Growth
A recent study
of over 1000 small businesses revealed that 76% have introduced a new service
as the result of covid-19. New services include online bookings, home delivery
services and online video consultations or viewings. Over three quarters have
also introduced new ways of communicating; instant messaging, Whatsapp, and
video calling. These changes will create lasting growth for business who will
be able to reach more customers, more efficiently in 2021.
Brexit
Whether you’re a leaver or a remainer, the outlook for most
is more positive now than it was before the Christmas Eve agreement.
Tariff-free trade, reduction in technical barriers to trade, access to EU government
procurement contracts and no restrictions on road haulage or air travel will be
welcomed by the majority of business leaders.
Diversity
Inequality is a humanitarian tragedy first and foremost. It’s
a tragedy in business too as we know that companies who embrace diversity,
financially outperform those who don’t. Why should businesses feel positive
about 2021 then? Nike set the benchmark for diversity strategy back in 2015 but
awareness raised by the BLM movement in particular and the return of gender pay
gap reporting for example are driving wholesale change now. Businesses who
address diversity can look forward to attracting the best talent, improving
company culture, more innovation, consumer loyalty and greater profits.
Community &
Culture
This year, the pandemic and issues related to social injustice
have highlighted a prevailing sense of community. Google launched a campaign to
support 1000 local businesses and studies show a 28% increase in business
referrals in 2020. Business leaders appear more conscious of their wellbeing strategies
and even in the most boisterous work environments, we’re asking ‘how are you
doing?’ Having conducted hundreds of free business consultations since March
we’ve been struck by the flexibility shown by employees and sacrifice shown by
employers and the overwhelming sense of mutual value heading into 2021.
If a free consultation with
our expert team on any HR or employment related issue would be of help to your
business in moving forwards into what we hope is an optimistic future, please
don’t hesitate to reach out to me directly at tdurance@lexleyton.co.uk or legal@lexleyton.co.uk
January is the month commonly associated
with cutting back after overspending at Christmas and setting resolutions for
the year ahead, be they financial or otherwise.
Money worries are not necessarily limited to January though and
employees financial concerns, may be one of the factors impacting on their
performance at work. To illustrate this,
in a survey conducted by the CIPD and Close Brothers entitled “Financial
well-being: the employee view”, they found:
One in four workers report money worries have
affected their ability to do their job;
One in ten say they have found it hard to
concentrate/make decisions at work because of money worries; and
One in ten workers report that physical fatigue
caused by lost sleep worrying about money has impacted on their
productivity.
The reality of the situation?
According to the money advice
service 11.5 million people in the UK have less than £100 in savings and 1 in 4
UK households have no savings at all.
That’s a lot of pressure for individuals to be carrying. Further, financial issues may also effect
employees differently.
In respect of access to finance Hanadi
Al-Sadi, social researcher at ‘Fair 4 All Finance’ stated in a recent article,
“systemic failures have meant that
financial exclusion disproportionately affects certain groups of people such as
women with caring responsibilities, those on low incomes or in precarious
employment, ethnic minorities and those with disabilities. Black-owned businesses are four times less
likely to be approved for loans and there is also a short-term income shock for
those who have been newly-diagnosed with cancer which can make it difficult to
meet mortgage or other monthly payments for example,”
Financial Inclusion
The government defined financial
inclusion in a report to the select committee in 2017 as meaning “that
individuals, regardless of their background or income, have access to useful
and affordable financial products and services. These include products and
services such as banking, credit, insurance, pensions and savings, as well as
transactions and payment systems, and the use of financial technology”
With auto-enrolment, employers are assisting to some extent with the pension conundrum, but can employers do more to be financially inclusive? Can an employer have a positive influence on an employee’s financial wellbeing? After all, research has shown that an employee’s financial concerns could impact overall business performances, so is it in an employer’s interest to consider this?
For many, now will not be the
right time to examine reward and benefits strategy, but smaller things can
help. Ideas we have seen employers using
are:
Financial wellbeing days – over and above their
annual leave, employees can book a day off per year, to sort out their personal
financial affairs – such as determining the best value utility company, meeting
with their banks, speaking to their credit card companies or loan providers or
simply for time to review their personal budgets.
Access to technology – some employees do not
necessarily have access to computer technology at home. Offering employees access to a computer
facilities they can use to contact financial institutions, access money and
budgeting assistance websites or undertake their online banking may be of
assistance. This may include amending your IT & communications policies.
Encourage savings through payroll linked savings
accounts.
Encourage employees to share their concerns –
clearly an employer cannot be a financial advisor, but if employee have worries
they could be direct to an appropriate body such as the money advice service - https://www.moneyadviceservice.org.uk/en
LexLeyton offer a full employment law and HR service and whilst we cannot assist with or give financial advice, we are here to help you deal with any welfare issues you may be experiencing with your employees. For a free consultation on this or any other HR or employment law issue don’t hesitate to reach out to us at legal@lexleyton.co.uk
What does a typical
day as an employment law solicitor and business partner to a wide range of
employer clients at LexLeyton look like for you?
For me no two days are the same and I
enjoy that variety. Three or four times
a week I get up and start the day with a 50 minute HIIT or weights session. I like to exercise in the morning so I know
it is done!
My working day starts at 9am with a team video call. As a remote worker, I really appreciate starting the days with a catch up with my colleagues. It is a great forum to share legal developments and best practice. I then check my emails, respond and return any calls.
Over the day I support clients with a
variety of HR and employment law matters, being dual qualified as a HR professional
and also an employment law Solicitor allows me to discuss matters as diverse as
appraisal schemes and HR best practice to TUPE, settlement agreements and
employment disputes with clients.
As a true employment generalist, I
work with clients from a number of sectors and I love getting to know their
businesses and specific ways of working.
I encourage clients to call me early with their concerns and hence, I
take a number of calls and video calls throughout the day and then complete the
necessary follow up work or drafting.
When I am not working with clients, I write content for our social media
channels.
My working day should finish at
16:30, after which I pick up the kids from school, make dinner and then twice a
week do a zoom yoga class, otherwise I try to and fit in a run. The rest of the
evening is spent on the usual household tasks!
What is your
favourite part about working at LexLeyton?
We work together as a team to provide the best possible service for our clients. This is especially important to me as a part timer, as I am confident that our clients are well looked after on the days I am not in.
What are the
biggest challenges you face in your job?
There have been hugely busy periods with the constant change and uncertainty the covid pandemic has brought. It is important to me to be there for our clients in these difficult times. I sometimes wish there was an extra day in the week!
What is your
proudest moment at LexLeyton?
As a team, I am really proud of how we have supported clients through the covid pandemic. We have worked with a lot of uncertainty and change and we have all pulled together to deliver.
What do you like to do in your free time?
I love to spend time outdoors, whether it is running, hiking or exploring with the kids. I especially love the forest, the mountains and the beach. I also love to travel and see the world.
What is your guilty
pleasure?
I don’t get the opportunity or time to watch much on TV, but when I do it tends to be the easy to watch stuff – any of the ‘Real Housewives’ series is a particular guilty pleasure. I also loved watching ‘Jane the Virgin’ and the new ‘Dynasty’ on Netflix!
What or who
inspires you?
I like to see people doing in well in their own businesses. I recently read Michelle Mone’s autobiography and her story is inspiring.
What is one thing you
can’t live without?
Exercise – it is important to me to remain as fit and healthy as possible.
What is your
favourite quote?
“What doesn’t kill you makes you stronger” I believe that in whatever we do we need to challenge ourselves to grow and develop.
What is your
biggest fear?
I am not very good with heights!
What is something
that not many people know about you?
I have run the Snowdonia marathon four times with my husband. It is a demanding course and it gives you a
real sense of achievement to finish it.
As most employers are aware, staff working on their
premises through an Agency are far from typical employees. Yet, following the controversial
Employment Appeal Tribunal (EAT) decision in Angard Staffing Solutions Ltd & Anor v Kocur & Anor (Angard
Staffing), it now appears that agency workers' rights are even further away
from those of employee that one might have thought.
Agency worker's rights (the most basic ones) exist
from day one of an assignment. They remain unchanged, and they are: protection
against discrimination; National Minimum Wage entitlement and a minimum of 5.6
weeks' holiday entitlement. Additionally, agency workers also always have the
same right as direct employees of the hiring organisation to use any shared
facilities and services.
However, it is in respect of rights which are only
granted after 12 weeks of working on the same assignment at the same hiring
organisation, that the EAT mostly looked at.
The law gives agency workers the right to be
informed by the hirer of any relevant vacant post. Until the EAT latest
decision in Angard Staffing, many believed (myself included) that this was in
place to give agency workers the same opportunity as a comparable worker to
find permanent employment with the hirer. However, the EAT held that this provision
does not mean that agency workers have a right to be entitled to apply for and
be considered for internal vacancies on the same terms as directly-recruited
employees. Rather, they must simply be given the same level of information
about the vacancies.
Additionally, in Angard Staffing the EAT gave
further details on how to interpret Regulation 5 which entitles agency workers
to the same basic working and employment
conditions as they would be entitled to have they been directly-recruited
by the hirer. The EAT made clear that “same
working conditions” does not mean agency worker’s contractual hours cannot
be legally longer or shorter than comparable directly-recruited staff.
Moreover, the EAT held that agency workers are not entitled to the same level
of training, same scheduling of rest breaks and that employers can afford direct
employees first refusal of overtime.
This decision -
albeit unfortunately making many
agency workers rather unhappy – makes good sense as it allows more
flexibility to employers which is of course one of the main reasons for
contracting with Agencies in the first place.
If your business would be helped by sound boarding any of
the issues raised here or any HR or employment law concern that you might have,
don’t hesitate to reach out to us for a free consultation with
one of our expert legal team on legal@lexleyton.co.uk
In celebration of World Braille day, it is crucial to
raise awareness of the issues impacting those who are blind or visually
impaired within our society and what can be done to improve their integration
within the world of work.
Two hundred years ago, the invention of braille,
completely transformed accessibility for those with visual impairments, but, fortunately,
the improvements did not stop there.
In 2021, the number of assistive technologies that
exist to help blind individuals have a standard work life is tremendous. Why
then are only 27%
of blind and partially sighted people of working age currently in employment in
the UK?
According to the Royal National Institute of Blind
People (RNIB), more than two million people are living with sight
loss - including 350,000 people who are registered as severely sight impaired (completely
blind) – and, even though the UK government is committed to halving the
disability employment gap in the next 50 years, things are simply not moving quickly enough.
As an employer, one can do so much to help employ
more people with this disability. Putting aside the ethics behind it, there are
also many corporate advantages to hiring individuals suffering from vision
loss. According to a new
study led by NEI-funded researchers at Massachusetts Eye and Ear, blind
individuals have enhanced cognitive functions such as memory, speech and
language. Furthermore, from a young age, blind children are systematically
taught social interaction, assertiveness and communication skills, allowing
them to work very efficiently in a team. Who would not want to employ someone
with astounding teamwork skills? Not to mention that hiring people with visual
impairments increases overall workforce diversity and offers new and different
perspectives on business challenges and opportunities.
Employers often assume that technologies linked to
vision loss are prohibitively expensive, but help is available via the publicly
funded employment support programme Access
to Work. The
scheme will help identify changes needed in the workplace and finance most of
the extra costs (between 80% to 100%) of implementing those changes. For
example, blind and partially sighted people successfully use computers in the
workplace through synthetic speech, magnification and braille displays which
can be entirely paid for by the scheme. Additionally, the scheme will pay for
the help of a Support
Worker for up to 20 hours per week.
Employers also worry about the health and safety
impact and the adjustments to their office space if they were to allow a guide
dog in the workplace. However, it is important for employers to note that not
only it has been estimated that as few as 1 to 2% of blind or partially sighted
people use guide dogs to get around, but the dogs have been specifically
trained not to interact with or disturb other people in a work environment.
Moreover, guide dogs are exempt from most of our health and safety legislation.
For all of the reasons mentioned above, enabling visually
impaired workers to work for your business should perhaps be in your 2021
resolutions. If you want more information or visibility in the Blind community,
do not hesitate to reach out to organisations that cater to disabilities such
as RINB. Additionally, you can learn
more about making your application process accessible to blind candidates on W3C.
If you would like support around any of the issues
raised in this blog or if a sound boarding session about any HR or employment
law issue could help don’t hesitate to reach out to our team for a free consultation or
contact us at legal@lexleyton.co.uk.
The Chancellor
announced on the 17th of December that the Coronavirus Job Retention
(‘furlough’) scheme will be extended beyond its current end date of
31st March 2021 and will now end on 30th April 2021.
For the
duration of the furlough scheme, the Government’s contribution to pay will remain
at 80% (subject to the existing cap of £2,500 per month), with only national
insurance and minimum auto-enrolment pension contributions being paid by the
employer.
In addition, Mr Sunak announced the extension of Government business loan schemes until the 30th of March 2021.
The Government
has indicated that the furlough scheme will not change again, and has removed
references to a January review in its online guidance.
The updated key
dates are:
14 January 2021 – final date to submit
claims for December 2020 by 11:59pm
15 February 2021 – final date to submit
claims for January 2021 by 11:59pm
15 March 2021 – final date to submit
claims for February 2021 by 11:59pm
14 April 2021 – final date to submit
claims for March 2021 by 11:59pm
14 May 2021 – final date to submit claims for
April 2021 by 11:59pm.
The focus will
swiftly shift in early 2021 to the Chancellor’s first post-Brexit budget on 3
March, where we can expect details of how business’ in the UK will be weaned
off from the furlough scheme successfully, in order to protect jobs and
industry more widely.
If the announcement affects your business,
please contact Lexleyton to discuss your recovery strategy and how our
specialist employment lawyers would assist.
Many of us spend a large proportion of our time at work, so
it’s essential that the quality of the working environment is good, in order to
protect general wellbeing.
From early 2020 the working landscape changed dramatically driven
by the COVID pandemic and the unforeseen impact on business operations across
industries, demanding remote and flexible working to enable businesses to
continue to operate.
Whilst for so many people their ‘place’ of the work changed,
issues experienced in the office may have spilt over into remote working, with
tensions between team members continuing and in some ways taking on a different
‘form’. Absence does not necessarily ‘make the heart grow fonder’ and where
old tensions still exist, they need to be understood, managed and resolved. This article looks at ways to do that.
Tension and Conflict
– how to manage issues remotely
Firstly, it is important to understand that some tension can
be positive, such as genuine competition between team members which can drive
sales or general business performance.
However managers need to recognise when a desire to win spills over into
something different. Negative conflict
such as bullying, belittling and personality clashes can upset individuals and
undermine team morale and hence the importance of addressing issues early and
considering how to deal with this sensitively, often made even more challenging
when this takes place across a video screen.
A good manager knows where the fine line between positive competition
and underlying tension sits and takes action as appropriate, wherever and
however the issue has arisen.
Here are our top tips for managing conflicts whilst remote
working:
1 – Prevention is
better than cure:
Managers need to deal with difficult situations before they
escalate into something more significant and before they present a risk of a claim
against the business and/or an individual.
Managers are best placed to do this as they know their teams well. Having strong relationships with team members
allows for conflicts to be anticipated, problems to be aired and for managers
to have a better insight into matters which may be affecting their team. In the remote world, ‘out of sight’, should not be ‘out
of mind’. Managers shouldfind a timescale that suits and
proactively schedule online 1-2-1 catch ups with the team, as well as regular
online team meetings. This way a general
awareness of what is happening at ground level can be developed and squabbles
and negativity can be spotted and addressed in a timely manner.
2 – Be aware of
simmering tensions:
Some individuals may bottle things up and allow them to ‘grow before they blow’ others may be
quick to anger and complain. It’s the role
of the manager to recognise when this is happening. The 1-2-1 is the forum to spot this and
managers should not be afraid to tackle issues head on notwithstanding that the
video might feel like a challenging barrier to open and honest conversation, and encourage employees to open up about their
concerns, so they can be resolved.
3 – Do not personally
get involved in office gossip or politics:
Casual kitchen and water station conversations may be a
distant memories, however it still remains important for managers to not get
drawn into gossip or office politics. Whilst
some discussions of this nature are inevitable across team members, managers
should not participate. Watch out for
the MS Teams chit chat and sub groups forming on other platforms like Whattsapp
where discussion crosses the boundaries of work and personal life. If colleagues
are talking about each other, managers should ask them to stop before tensions
arise or issues occur. A manager who
participates will lose the respect of their team. This same advice applies to online chat and
emails. If managers sense that
discussions may be discriminatory in nature, formal procedures should be
followed.
4 – Set clear expectations
in respect of conduct.
Managers should be clear in what they expect from their
teams in general and during meetings whether they take place remotely or in
person. Meetings should be professional
and controlled. Contributions made by
team members should be respected and negativity should be challenged. Everyone should be encouraged to contribute
and debate rather than criticise. As far
as possible issue should be resolved rather than being left to simmer. In order for a manager to gain respect and
avoid resentment growing between team members, favouritism should not occur, so
be mindful of how you chair a remote meeting and be conscious about ensuring
that everyone gets the opportunity to speak – something that can be difficult
to manage across a screen and which might require prompts or expectation
setting about who will speak, about what, and when.
5 – Deal with
individuals who are causing issues:
An individual may not necessarily see the impact their
behaviour is having on others, or alternatively there may be other issues
external to work that are impacting upon the individual’s behaviour. Sometimes a 1-2-1 discussion is all it takes for
the manager to understand and resolve matters.
Managers should not shy away from discussing negative behaviours. Where matters do not improve after informal
intervention, more formal action can be considered.
When problems escalate:
If situations cannot be resolved during 1-2-1 discussions,
managers need to consider more formal options, which may include a grievance
process for any individuals with concerns and as applicable, performance
management or disciplinary action either remotely or depending on what
circumstances and socially distancing restrictions exist, taking steps to do
this in person.
If your business would be helped by sound boarding any of
the issues raised here or any HR or employment law concern that you might have,
don’t hesitate to reach out to us for a free consultation with
one of our expert legal team on legal@lexleyton.co.uk
Take advice and seek support and reassurance early, to
ensure that you have the confidence to know your options and can deal with
these kinds of issue at ground level and before matters escalate into a more
formal process.
The Canadian actor Elliot Page, who rose to fame in the movie Juno as Ellen Page, recently announced
that he is transgender. In the past, he would not have been protected from
gender reassignment discrimination unless he had undergone or was intending to
undergo medical treatment to reassign his gender. However, that has now changed with the case
of Taylor
v Jaguar Land Rover.
In a landmark case, the Employment Tribunal decided that the protected
characteristic of gender reassignment includes persons who identify as
non-binary and gender fluid. It is likely that with time other complex gender
identities will be deemed to fall within this protected characteristic.
The case concerned an employee of Jaguar Land Rover who described
herself as “gender-fluid” and “transitioning”, but who had no intention of
undergoing surgery to reassign her gender. She retained her male birth name but
chose to dress in a male style on some days and a female style on other days. The employee was subjected to gender
reassignment harassment over a long period. Although she complained to Jaguar
Land Rover about her treatment, her employer did not take any action to prevent
the harassment from occurring.
The claimant brought claims of constructive unfair dismissal and
discrimination on grounds of sexual orientation and gender reassignment, and
victimisation. The key question for the
Tribunal to decide – whether a non-binary, gender fluid person has the
protected characteristic of gender reassignment – was a novel point of law.
The definition of gender reassignment in the Equality Act describes
a person who is undergoing or has undergone a process (or part of a process) to
reassign their sex by changing “the
physiological or other attributes of sex”. The Employment Tribunal
confirmed that a person need not have (or intend to have) surgery in order to
identify as a different gender to their birth sex. Starting to dress or behave
like someone who is changing their gender or is living in the identity of the
opposite sex would be sufficient to qualify for protection from gender
reassignment discrimination. The
claimant accordingly succeeded in her various claims.
The Employment Tribunal considered it appropriate to award aggravated
damages in this case because of the “egregious
way” in which the claimant was treated and the “insensitive stance” taken by Jaguar Land Rover during the legal
proceedings. This was in addition to a 20% uplift on damages due to Jaguar Land
Rover’s “complete failure” to comply
with the Acas Code of Practice when handling the claimant’s grievance. The
claimant’s agreed compensation amounted to the substantial sum of £180,000.
The Tribunal was particularly scathing of Jaguar Land Rover’s
handling of the claimant’s complaints, stating: “We had not seen a wholesale failure in an organisation of this size in
our collective experience as a jury.” It noted that “there was nothing in the way of proper support, training and enforcement
on diversity and equality”.
Rather surprisingly for an employer of 50,000 staff, the company had
no Equal Opportunities Policy. Its Dignity at Work Policy covered bullying and
harassment, but staff had not been provided with any training on it. No-one had
been designated to deal with diversity and equality issues.
Sustainable business growth demands forward thinking strategies
around equality and diversity. Clear policies and related manger and employee
training around diversity and inclusion are vital to ensure employers can reduce
the type of risk that materialised at Jaguar Landrover which had such damaging
a commercial and reputational impact.
If a chat to one of our expert team for advice on how to transform
your diversity and inclusion practices, and for help with preparing appropriate
policies don’t hesitate to reach out to us for a free consultation
or contact us at legal@lexleyton.co.uk.
Today is the
United Nations international day for Persons with disabilities around the
world. Their message is that disability equals
diversity, not disadvantage and to highlight this the UN has marked the
International Day of Persons with Disabilities since 1992, to spread the word
on disability issues and mobilise support for the dignity, rights and
well-being of disabled people.
There are
around 13.3 million disabled people in the UK, with 17% being born with a
disability but the majority acquiring their disability later in life.
According to the Office for National Statistics, in 2019 disabled people
in the UK were 28. 6 % less likely to be in employment than non – disabled.
With 800,000 disabled children under the age of 16 (that’s one child in 20),
many families are juggling work with caring for a disabled child.
These figures highlight how significantly disability
affects millions of people and their families every day and how it’s impacts
are woven in to the lives of millions of workers. The fact that most
people live with acquired disability, means that many of your employees will
become disabled whilst they are working for you, and will need support from you
as their employer.
We have recently celebrated 25 years since The
Disability Act 1995, now incorporated into the Equality Act 2010 which sets out
the protections for disabled people in the workplace and in the provision of
services. 7.7 million working age people in the UK have a disability. Given
that the unemployment rate (calculated as a proportion of the
economically active population) for disabled people was more than twice that
for non-disabled people (6.7% compared with 3.7% in 2019) at around 300,000
unemployed disabled people in 2019, work still needs to be done by employers to
ensure that they are attracting disabled candidates and are offering them the
support they need to undertake their roles.
Supporting
Disabled People at Work – what can you do?
Key pathways to
support disabled people into work are contained in the Disability
Confident and the Access to Work schemes. Over
18,000 organisations have signed up to being Disability
Confident, and help play a leading role in changing attitudes for the
better by changing behaviour and cultures in their own businesses,
networks and communities, and reaping the benefits of inclusive recruitment
practices.
Disability
Confident helps employers recruit and retain great people,
and draw from the widest possible pool of talent, secure high quality staff who
are skilled, loyal and hardworking, improve employee morale and commitment by
demonstrating that you treat all employees fairly. It also helps customers and
other businesses identify those employers who are committed to equality in the
workplace. To be recognised as a Disability Confident
Committed employers agree to the Disability Confident
commitments and identify at least one action that they will carry out to make a
difference for disabled people.
Business Benefits of being Disability Confident
The commitments are inclusive and
include accessible recruitment, communicating vacancies, offering an interview
to disabled people, providing reasonable adjustments and supporting existing
employees all of which are not just important practices to support our disabled
population but are key to ensure a diverse, inclusive and accessible workplace
– benefitting a sustainable and attractive culture. Your business may be doing
these things already. If so, the scheme is a great way of letting everyone know
that you’re serious about equal opportunities for disabled people and if not,
an opportunity to look at what more you can be doing to create a diverse and
great place to work.
Once you’ve signed up as Disability Confident
Committed you’ll receive a certificate in recognition of your achievement
,a badge for your website and other materials for 3 years, a self-assessment
pack to help you continue your journey to becoming a Disability Confident
Employer
Employers often worry about the
possible associated costs of employing a person with a disability but
help is out there via the Governments ‘Access to Work’ scheme. Access
to Work is a publicly funded employment support grant scheme that aims to
support disabled people start or stay in work. It can provide practical and
financial support for people who have a disability or long term physical or
mental health condition. Support can be provided where someone needs support or
adaptations beyond reasonable adjustments. Access
to Work can support your business to hire disabled people with the skills
you need, retain an employee who develops a disability or long term condition
(keeping their valuable skills and saving both time and money recruiting a
replacement) and show that you value and will support your employees by having
good employment policies and practices
Employers can also get support with
the extra costs of working they may have because of their disability or long
term health condition, for example, aid and equipment in the workplace,
adapting equipment to make it easier for them to use, money towards any extra
travel costs to and from work if they can’t use available public transport,
money towards any extra travel costs for travel costs within work, an
interpreter or other support at a job interview where there are difficulties in
communicating , a wide variety of support workers, the Access to Work
Mental Health Support Service and other practical help at work, such as a job
coach or a sign language interpreter
The theme of the day this year
is Building Back Better: toward
a disability-inclusive, accessible and sustainable post COVID-19 World. We all
know how significantly the pandemic has affected our lives including our
working lives, with the toll on mental health being one of the most profound
consequences. More than one in five
working disabled people cite a mental health condition as the main cause of
their disability, consisting of 17.6% with depression, bad nerves or anxiety
and 3.9% having mental illness or other nervous disorders. Depression, bad
nerves or anxiety are the most common type of impairments. If
your employee has a mental health condition, they can be offered assistance to
develop a support plan. This may include steps to support them remaining in or
returning to work and suggestions for reasonable adjustments in the workplace.
A person is considered to have a disability if they have a
self-reported long-standing illness, condition or impairment, which causes
difficulty with day-to-day activities. This definition is consistent with the
Equality Act 2010 and the GSS harmonised definition. Examples
of assistance to develop a support plan include flexible working patterns to
accommodate changes in mood and impact of medication, providing a mentor to give
additional support at work, arranging additional time to complete
certain tasks, providing additional training, regular meetings between you and your
employee to talk about their concerns or a phased return to work, such as
reduced hours or less days Access to Work does not provide the support
itself, but provides a grant to reimburse the agreed cost of the support that
is needed.
If you would like support around any
of the issues raised in this blog or if a sound boarding session about any HR
or employment law issue could help don’t hesitate to reach out to our team for
a free
consultation or contact us at legal@lexleyton.co.uk
Finding out that a job applicant
has a criminal record can often be a fatal blow to the decision to hire
somebody. Inevitably, having a criminal record carries with it a stigma and, as
the charity Unlock states “it’s a sad
irony that a criminal record only becomes a problem when someone decides to get
on in life; a criminal record check is not required to sell drugs or join a
gang, but it is to get a job or go to university.”
There are rules around when
criminal records checks should be undertaken and what employers can do if and
when they find out an applicant has a criminal record. In practice, however, it
often forms part of the standard application procedure, with candidates
assuming that they have to provide the information asked for, whether that is
through self-disclosure or agreeing to have a DBS (Disclosure and Barring
Service) check carried out.
Employers should be aware of two
recent updates on undertaking criminal records checks and how this might impact
on their practices.
Updated guidance from the ICO
Earlier this month the
Information Commissioner published new guidance
on the processing of criminal offence data, from a data privacy perspective. The
guidance outlines that special conditions apply for criminal offence data, not
only because it may be regarded as sensitive, but because use of this data
could create significant risks to the individual's fundamental rights and
freedoms. The focus of the guidance is on data controllers ensuring that they
have a legal basis for processing data that is applicable to their specific
circumstances, and that the processing they carry out is reasonable and
proportionate given their specific situation.
As we have often cautioned since
the implementation of the GDPR, relying on consent as a lawful basis to process
data has its limitations. From a recruitment perspective, as in this context,
it can be difficult to show that consent was freely given. The ICO reiterates
that the fact that consent is required for a DBS check does not mean
that that consent will be a valid lawful basis for data privacy purposes.
The guidance reminds employers
that they will likely need an appropriate policy in place where they process
criminal data, and that they may need to carry out a data protection impact
assessment where their processing is ‘high risk’.
New DBS filtering rules
New rules coming which came into
effect on 28 November 2020 will have an impact on the information that will be
disclosed as part of a standard or enhanced DBS check:
there will no longer be a requirement for youth
cautions, reprimands and warnings to be automatically disclosed; and
the multiple conviction rule has been removed,
meaning that if an individual has more than one conviction, regardless of
offence type or time passed, each conviction will be considered against the
rules individually, rather than being automatically disclosed.
The changes have come about
following a legal challenge in 2019 where the Supreme Court found that the DBS
‘filtering’ system – the process by which the DBS decides what offences should
be disclosed and designed to filter out old and minor criminal offences from
disclosure - didn’t go far enough and was disproportionate.
The problem with the old
filtering system was that it didn’t take account of what might have been a
stupid mistake in youth as there was no discretion over age or seriousness of
the offence; a criminal record can dog someone’s life for decades due to the
stigma attached. In relation to the multiple conviction rule, it didn’t take
account of the fact that, in many cases, it was inevitable that someone had
more than one conviction. For example, stealing a car is likely to mean that a
person is charged with both theft and driving without insurance.
What should employers
be doing?
If you process criminal data about candidates or
employees, make sure you have an appropriate policy in place which sets out what information you will collect and
what you will do with it. Ideally your policy document will demonstrate that
carrying out these checks is not a barrier to employment, rather that you are just
trying to take proper steps in your recruitment processes;
Consider whether you need to carry out a data protection impact assessment. The
ICO says this is likely to be needed if you plan to process criminal offence
data on a large scale, or to determine access to a product, service,
opportunity or benefit. If in
doubt, we recommend you carry out a DPIA;
Read the new DBS guidance– it includes suggested wording
for inclusion in application forms where you ask candidates to self-disclose
and a disclaimer to candidates reminding them of what they are (and aren’t)
obliged to disclose;
Think about your recruitment process – you should only ask an individual to provide
details of convictions and cautions that you are legally entitled to know about,
so think carefully about whether you genuinely need to know whether someone has
a criminal record in relation to the role you are recruiting for;
If you do carry out a criminal records check on
a candidate, consider allowing that individual to give context to the offence
disclosed, rather than just simply writing off the candidate. You could also
carry out a risk assessment to identify
whether the information disclosed is likely to pose a risk and whether you can
mitigate that risk.
Speak to us if you need help navigating the new
guidance – we can help you create the right policies and procedures to ensure
that you don’t fall foul of the rules.
If a chat about any of the issues
raised here would be helpful or if you would like to soundboard any HR or
employment law issue don’t hesitate to reach out to our team for a free consultation or
contact us at legal@lexleyton.co.uk
The EPIC bill is thought
to be long overdue by various organisation and governmental bodies, who are
concerned that the current pay gap reporting obligations are not broad enough
to cover all of the discrepancies in pay between individuals.
What would this bill
change?
(1) Staff would get the right to know what colleagues are
paid
New data published by The
Fawcett Society, shows that only 31% of working
women believe they would be informed if their male colleagues earned more for
the same work. It is this lack of transparency and culture of secrecy that the
bill wishes to put an end to in order to prevent discrimination and
inequalities.
(2) It would expend the gender pay gap reporting for all
organisation with more than 100 employees instead of 250
This decision was made
following the Office of National Statistics’ report showing that currently the gender pay gap amongst
organisations with between 10 and 249 employees is higher than those with 250
or more employees.
(3) It would Introduce an ethnicity pay reporting for organisations
with over 100 employees
Although
ethnicity pay reporting has been on the Government’s “to do” list for some
time, it has not yet found its way into law.
Many are hopeful that such a change could be a first step in the right
direction and open the door to even broader pay gap reporting. For example, according
to TUC
analysis of official statistics, disabled workers earn 15% less than other staff and a
disability pay gap reporting could potentially help raise awareness to this
issue and proactively fix it.
What would it mean for
my business if EPIC comes into force?
If you are an employer
with 100 or more employees, it is expected that, from the enactment of the
bill, you would only have around to 12 months to publish your company’s pay gaps
(gender and ethnic). These results will need to be published on employers own
website and a government site. Hence, they will become publicly available, including
to customers, employees and candidates.
As a result, employers
might wish to proactively review and calculate their pay gaps and look at what
the commercial and cultural impacts will be of eliminating those gaps.
Depending on the results, your business might even need to consider taking new
or faster actions to reduce or eliminate any gaps (which could impact on your
recruitment, people management and commercial strategies) given the strength of
cross-party backing to the EPIC bill and the probability that it will become
law.
If and when it does, EPIC
will certainly have an impact given a
survey from the CIPD and recruitment
outsourcing provider Omni, which found that less than a quarter of UK employers
go beyond basic legislative requirements on diversity when it comes to
recruitment and selection of senior level roles, which clearly shows that
without such new legislation, change is unlikely to come on its own.
However we must all keep
in mind that, while reporting can help, transparency alone will not close pay
gaps. Government and employers need to address the structural difficulties
which prevent all employees to be treated and paid the same.
LexLeyton can help
businesses to create strategies for developing and maintaining the right
policies to benefit culture and sustainable growth. Contact us for a free
consultation on of the issues raised in this blog or anything HR and employment
law related at https://lexleyton.co.uk/free-consultation/ to discuss how we can help.
Last month saw a huge amount of
activity with the planned end to the furlough scheme and the introduction of
the new Job Support Scheme to follow from November. Originally aimed at
businesses with reduced demand over the winter due to Covid, plans were made to
extend the JSS to cover businesses who were required to close due to the 3 tier
restrictions.
All this planning was for nothing
in the end. It was overridden on Halloween when the Prime Minister announced a
new month-long national lockdown where non-essential shops, restaurants and
pubs must close. The furlough scheme is now being extended into November whilst
the lockdown is in place. Michael Gove indicated on the Andrew Marr show that
the lockdown could extend beyond November. Everyone will be watching this space
to see what effect the lockdown has on the spread of the virus.
Before the announcement, and
following leaks about the government’s plans, business leaders said another
national lockdown would be devastating. Mike Cherry, Chair of the Federation of
Small Businesses, said another lockdown would be ‘incredibly frustrating’ after
small businesses had spent thousands in making their sites Covid-secure. It is
an incredibly tough time for all employers and the situation is fast moving.
Keep up to date with both the rules and support at www.gov.uk,
or contact us for immediate and targeted help. More detail on the points for
employers to consider in the light of the furlough scheme extension can be
found here https://lexleyton.co.uk/coronavirus-job-retention-scheme-and-back-to-furlough-what-does-it-all-mean-for-your-business/
Data Protection
Anyone can make a subject access
request (SAR) from an organisation to ask whether and how the business is
processing their personal information. In the employment sphere, SARs can also
be used as a missile by an otherwise dissatisfied employee, often in
preparation for bringing a grievance or an employment tribunal claim. SARs can
be time consuming to deal with and, with fines of up to 20 million euro or 4
per cent of annual turnover for getting it wrong, expensive to mess up.
Last month, the Information
Commissioner’s Office published detailed new guidance to help businesses deal
with SARs effectively and efficiently. The guidance deals with three key
points:
stopping the clock when clarification is needed
– this is possible if clarification of the request is genuinely required and
the organisation processes a lot of information about that employee.
what is a ‘manifestly excessive’ request – one
you may not have to comply with.
charging fees (i.e. for the cost of staff time,
printing, postage etc) for excessive or unfounded (which can include repeat)
requests.
All this is good news to
businesses who are already juggling many more important balls due to the
Covid-19 pandemic. The ICO is also creating a simplified SAR guide for small
businesses which picks out the most important points from the detailed
guidance. Find the Rights of Access guidance and other helpful materials at www.ico.org.uk.
Indirect discrimination
Indirect discrimination occurs
when a policy or practice is applied to all employees but negatively impacts on
a group sharing a protected characteristic such as age, race or sex etc. To
prove indirect discrimination, the employee must show that the policy or
practice puts a particular group at a disadvantage and puts them
personally at that disadvantage. The employer must then justify the policy as a
proportionate way of achieving a legitimate business aim. The Employment Appeal
Tribunal (EAT) has looked recently at what an employee must do to show
disadvantage in Ryan v South West Ambulance Services.
The employee was a manager and
was 66 or 67 years old. The employer operated a Talent Pool to identify future
leaders and maintain existing leaders. The pool was used to fill some vacancies
quickly without wider advertising. Employees could go in the Talent Pool if
they exceeded expectations in appraisals, via an appeal if their grading was
lower, or by self-nomination. The employee’s appraisal said she met
expectations and she did not appeal or self-nominate for entry to the pool. The
employee applied for a managerial role which was advertised in the Talent Pool
but was told she couldn’t apply for it. She brought an indirect discrimination
claim, saying employees aged 55 and over were underrepresented in the pool (the
group disadvantage) and she was unable to apply for the roles because she
wasn’t in the pool (the individual disadvantage). The employment tribunal found
that a policy of promotion only via the Talent Pool did have a negative impact
on employees aged 55 and over. The over 55s had a 1 in 73 chance of being in
the pool rather than a 1 in 34 chance for employees under 55. But the
employee’s personal disadvantage – her inability to apply for the roles -
wasn’t because of the policy but because she had failed to take any steps to
enter the Talent Pool. As a result, there was no causal link between the policy
and her individual disadvantage.
The EAT disagreed. The group and
individual disadvantages need to match up and they didn’t in this case. This
meant the tribunal had got it wrong. The employer applied a policy – recruiting
from the Talent Pool – which limited recruitment to senior roles. Although
there were legitimate reasons for this, it disadvantaged a group of older
employees – those over 55. It disadvantaged the employee. She was affected by
the policy because she couldn’t apply for the promotional roles. The employer
did not adduce any evidence to show why the discriminatory effect of the rule
wasn’t relevant in her case. Ironically, to succeed in this argument, the
employer would need to show that it was likely she would have been put in the
Talent Pool had she appealed her appraisal or self-nominated. They did not do
this. Indirect discrimination was made out (subject to justification). The EAT
also said the tribunal was wrong to say the policy was justified because they had
not looked properly at its discriminatory effect and any lesser measures which
could have been taken instead.
The lesson for employers in this
case is to analyse and monitor the discriminatory effect of any policies. If
one or more groups are negatively impacted, consider what steps you can take to
remove or lessen the disadvantage. In this case, a less impacting policy might
have been to allow Talent Pool members to go head to head with other employees
for promotional jobs. Another important point for employers is about the group
and personal disadvantage corresponding in indirect discrimination cases.
Without getting the technicalities right at the outset, any tribunal reasoning
was bound to be flawed.
Vicarious liability
Employers must make sure that the
workplace is safe for employees. Businesses can be held responsible for the acts
or omissions of their employees which take place ‘during the course of
employment’. In Chell v Tarmac Cement and Lime, the High Court has
looked at whether an employer should be vicariously liable for an employee’s
practical joke which seriously injured a contractor.
Both employees and contractors worked
as fitters at one of Tarmac’s sites. There were tensions between the two groups
because the Tarmac fitters felt their jobs were threatened by the contractors. The
claimant contractor had raised these rising tensions with his own employer and
Tarmac. A few weeks later, a Tarmac fitter deliberately exploded two ‘pellet
targets’ close to the claimant’s ear as a practical joke. It left him with a
perforated eardrum, hearing loss and tinnitus. Tarmac dismissed the practical joker,
but the contractor brought a claim for negligence against Tarmac. He also
claimed that Tarmac was vicariously liable for the practical joker’s actions. The
County Court said there was insufficient connection between the practical joke and
the duties of the employee as a fitter. Although there were known tensions
between contractors and employees, the connection between the employment
relationship and the prank was not sufficiently close. The tension had made the
contractor feel uncomfortable but not threatened. The judge said it might have
been different had the tension been so serious that it suggested physical
violence or confrontation – it would have created a risk for the employer to
address. The Court also found that the employer was not responsible directly –
the risk of injury from a deliberate act was not foreseeable so there was no
duty to take any steps to avoid the risk. The employer’s health and safety
policies were extensive and warned against reckless misuse of equipment. That
was enough. The contractor appealed.
The High Court agreed with the
County Court and applied Morrisons v Various Claimants ( a case where
the Supreme Court overturned previous courts’ decisions and said that Morrisons
was not responsible for an employee’s deliberate act of stealing and publishing
employee data). The High Court agreed that Tarmac had extensive health and
safety policies in place to create a safe system of work in a potentially
dangerous field. Including terms on horseplay or practical jokes would be too
much to expect of an employer. The terms of the policy about the misuse of
equipment was sufficient.
In this case, the court didn’t
believe the contractor’s evidence that he asked to be removed from site due to
the tension. This meant that he had overegged the true level of his concerns
about workplace tension. This in turn meant that the level of concern he
communicated to Tarmac was similarly lower. The situation might be different
where an employer is aware of workplace tensions and the risk of violence
becomes foreseeable. As always, employers must ensure that any employee safety
concerns are dealt with appropriately.
Religion and belief
An individual is protected from
discrimination based on their religion or belief. A philosophical belief can be
protected if: it is genuinely held; it is a belief not just an opinion; it involves
a weighty aspect of human life and behaviour; it attains a certain level of
cogency/importance and it is worthy of respect in a democratic society. In Mackareth
v DWP and Forstater v Centre for Global Development, two employment
tribunals found that individuals who believe that people cannot be transgender (because
god only creates men and women) are not protected by the Equality Act 2010.
The employees’ beliefs, which included a refusal to refer to trans people by
their chosen pronouns, were incompatible with human dignity, conflicted with
the rights of others and were not worthy of respect in a democratic society. But
employment tribunal decisions are not binding and another employment tribunal
in Bristol has recently refused to follow suit in Higgs v Farmor’s School.
The employee was employed as a
pastoral administrator and work experience manager. Someone outside the school
complained about comments posted on her Facebook page which they said were
transphobic and prejudiced against the LGBT community. The employee’s Facebook
page was private but included parents at the school. One post invited people to
sign a petition to stop schools teaching about same sex relationships and
gender being a matter of choice. The employee had also reposted articles by
other people on these issues which might have been relevant for several
children in the school.
The employee was dismissed for
gross misconduct for behaviour which contravened the school’s conduct policy
including discrimination and serious inappropriate use of social media. She
claimed she had been directly discriminated against and harassed on the grounds
of her beliefs. Those beliefs included a lack of belief in gender fluidity and
a lack of belief that someone could change their biological sex or gender (as
well as others, including ones relating to same sex marriage). The employment
tribunal found that her beliefs were protected under the Equality Act 2010.
She had rights under the ECHR to respect for private and family life, freedom
of religion and freedom of expression. If those rights only applied to beliefs
that upset no one then they would be worthless. However, they said she had not
been discriminated against because of those beliefs. Her Facebook posts could
not have had any expectation of privacy when her ‘friends’ included parents and
screenshots could easily be taken and disseminated. In relation to direct discrimination,
the school had reasonably considered that people reading her posts might think
she was both homophobic and transphobic. This could negatively impact on
parents, pupils and the community. The tribunal found that she was dismissed
because her Facebook posts might indicate that she held unacceptable views
about gay and trans people – beliefs which could not qualify for protection
under the EA – rather than her actual beliefs about teaching gender fluidity in
schools. She had not been harassed either. The disciplinary process was
unwanted conduct, but it was related to the realistic perception that she was
homophobic and transphobic rather than the expression of her beliefs. It did
not have the purpose or effect of violating her dignity and didn’t create an
intimidating or hostile environment.
The tribunal in this case tried
to distinguish the facts of this case from Mackareth and Forstater.
In Mackereth the employee was a doctor, in Forstater the employee
was a visiting fellow at the Centre for Global Development. The tribunal said
the employees’ beliefs in the two other cases might have resulted in discrimination
against members of the trans community. But in Higgs there were LGBT
pupils at the school and the employee had direct contact with children so it’s
difficult to see how the situation is different. We understand that all these
cases are being appealed, which will hopefully result in future appellate
guidance. This will be welcomed by employers who try to find the tricky balance
between the rights of the LGBT and trans communities and the rights of those
with conflicting beliefs.
Unfair dismissal
A constructive dismissal can
arise where an employer breaches the implied term of trust and confidence
between employer and employee. The employee can then accept the breach and
resign, saying they were pushed. The EAT has looked recently at what constitutes
acceptance of a breach and whether a simple failure to return to work following
maternity leave is enough to communicate acceptance of a repudiatory breach of
contract.
The facts of Chemcem v Ure
are a little unusual. The employee was the daughter of the majority shareholder
of the business. The employee’s father had left the employee’s mother and had
formed a relationship with a colleague. Family relationships became strained
and the employer made things difficult for the employee by varying her pay arrangements
without warning, switching her employment to the payroll of another company
which was about to become insolvent, failing to pay her maternity pay on time
and not only failing to answer her queries but deliberately misleading her. The
employee didn’t return to work after maternity leave and brought a constructive
dismissal claim. The employer said that her failure to return to work was not
enough to communicate her acceptance of any breach of contract, so her claim
should fail.
The employment tribunal found
that there had been a course of conduct whilst the employee was on maternity leave.
The employment tribunal said that her employer (via her father) was hostile
towards her and her continued employment which had breached the implied term of mutual trust and
confidence. Her failure to return to work was sufficient to accept the breach
and bring her employment to an end. The EAT
agreed. In this case, on its unusual facts, the employee’s failure to return to
work was enough to communicate acceptance of the breach. The tribunal had found that the employee’s
father did not want her to return to work because she would be managing his new
partner. When she didn’t return to work, no one even asked where she was. The employee
did not need to say any more – the employer was clearly hoping and perhaps even
expecting her not to return.
This case is unusual. It involves
a family run business with its dirty laundry being hung out on the shop floor. A
failure to show up for work won’t often be enough to communicate acceptance of
a breach of contract. There are learning points to take away though, especially
for family run businesses. It is within these close-knit environments that the
letter of the law and the finer detail of company policy often goes awry. It is
exactly because of these close relationships that particular care must be taken
to formalise the employment relationship, and any issues that arise within it,
however close or informal the relationships
outside the office.
Whistleblowing
Like many employment claims, a
claim for whistleblowing detriment under section 47B of the Employment
Rights Act 1996 must be brought within three months of the act or failure
to act which the employee is complaining about. Where an act extends over a
period, the date of the act is treated as the last day of that period. It’s all
about the act and when that happened, rather than the consequences of the act. A
continuing detriment is not the same thing as a continuing act.
In Ikejiaku v British
Institute of Technology, the employee was a senior lecturer. He brought two
detriment claims based on protected disclosures he had made during his
employment. He made the first disclosure a year before he was dismissed, when
he blew the whistle to HMRC about suspected tax evasion by his employer. After
that, the employer made detrimental changes to his employment contract. The day
before he was dismissed, the employee had blown the whistle on his manager who
had told him to pass students who had been copying. An employment tribunal
found that he had been automatically unfairly dismissed because of the
protected disclosure made the day before his dismissal. However, the contract
imposition the year before was a one-off act, albeit with continuing
consequences, and so the time limit for bringing that claim had started ticking
a year earlier and was now out of time. It was not an act which extended over a
period just because the new contract continued to be in place. The tribunal
also found that there should be no ACAS uplift for the employer’s failure to
follow the ACAS code because it didn’t apply to protected disclosure
dismissals. The employee appealed.
The EAT agreed with the tribunal
that the contract change detriment claim was out of time. Time starts to run
from the act, not the continuing detriment that an employee may suffer because
of the act. A continuing act might typically be a policy or rule, but that was
not the case here. It wasn’t an act extending over a period either. The
contract change was a simple one-off act. However, the EAT allowed the appeal on
the ACAS code uplift. The ACAS code also applies to grievances raised by
employees. The employer accepted that the protected disclosure the day before the
employee’s dismissal was a grievance and so the matter was sent back to decide
whether an uplift applied on that basis.
One point for employers to take
away here is the applicability of the ACAS code even when the employee had not
mentioned the grievance part of it in his claim form. The EAT found that this
should have been considered by the tribunal regardless. It is also a comfort to
know that a one-off act such as a contract change will not open an employer up
to liability outside of the normal time limit for bringing a claim. As always
though, employers must take care when employees raise complaints that might be
protected disclosures. A knee jerk reaction can come back to bite you.
Vardags
Cardigans have been banned at
City law firm Vardags. In a leaked email from last year, the firm’s female
president emailed all staff to confirm that cardigans and other woollens were
not part of the Savile Row (for men) or Chanel/Dior/Armani (for women) look she
was keen for her staff to adopt. The cardigan ban caught the headlines, but
there are more problems with the email than a ban on comfy clothing.
The email has a single paragraph
dedicated to male employees, also banning woollens along with brown shoes and
super tight trousers. A decent suit and double cuffs are recommended. Nothing
unusual for a London law firm. Then follows eight paragraphs on female
grooming. Tailored jackets and formal dresses/suits are in, and women are
invited to look ‘discretely sexy and colourful and flamboyant at the same
time according to your preference’. The email goes on to stipulate natural
looking hair (which she insists must be brushed and squeaky clean), classic
nail colour, silk only scarves and sheer tights. In a paragraph aimed at men
and women, she suggests employees work out, not just for health but so they
‘look great’. She tells them to eat well, move a lot, watch what they drink,
get outside and ‘glow’. This all aimed at professional adults.
There are problems here. The
excessive instructions to female staff feel oppressive. Suggestions to wear
sheer tights – or any see through clothing – are likely to be discriminatory.
It feels wrong that men can just look Savile Row smart while women are asked to
find the sweet spot between ‘tacky or tarty’ and being ‘drab’. Why
the difference? And indicating that employees should lose weight is just plain insulting
– it infantilises grown adults and has no bearing on how these individuals can
do their jobs. It can also tip into discrimination if weight or fitness is
linked to a medical condition which satisfies the disability test.
There’s nothing wrong with having
a clear corporate image. Branding is good for marketing your service or product
and creating a feeling of unity in the workplace. But employers must be careful
not to stray into murky waters. Employers must guard against making anyone’s
appearance trump their workplace skills. Being smart should be more about
business brain than business attire.
Flexible working
A poll by Working Families has
collected data which shows that two thirds of employers have noticed an
increase in flexible working requests by their male employees. The poll included
a small sample of 26 UK employers who were asked how they managed the numerous
challenges posed by the global pandemic. Experts say the results show that the
increase in homeworking due to the pandemic may have reduced the stigma sometimes
associated with men requesting flexible work arrangements.
The poll also suggested that there
might be long term changes to working patterns which survive the end of the
pandemic. More employees are expected to work flexibly or remotely for at least
part of their working week. It was noted by employers that flexible working can
attract a wider range of employees to their business. Some employers said
office working would be a thing of the past now that remote and flexible working
patterns had been proven to work so well without any negative effect on
productivity or client service. 25 out of 26 employers said productivity had
been the same or better during lockdown. Some felt that the pandemic had simply
fast forwarded a move towards this kind of flexibility in the workplace.
Many employers are keen to hold
onto the silver linings that lockdown has produced long after the pandemic is
over. The pandemic continues to cause huge disruption and anxiety for employers
and employees alike. If the long-term consequence of the pandemic is a cultural
shift to a position where flexible working is normalised, without any impact on
results, that will be positive both for working parents and for business.
An employment tribunal has
awarded an employee £180,000 following its landmark judgment in September that
gender fluid and non-binary people are covered by the Equality Act 2010.
The judge said that gender is a spectrum, and it was beyond doubt that the
employee was protected under the protected characteristic of gender
reassignment. The employment tribunal decisions for the full hearing and the
subsequent remedy hearing in Taylor v Jaguar Land Rover are scant and
detailed written reasons will follow. However, the basic facts have appeared in
the news and make for difficult reading.
The employee was employed for
almost 20 years. She presented originally as male but in 2017 began identifying
as gender fluid/non-binary and started dressing predominantly in women’s
clothing. She was subject to abuse and ridicule by colleagues and had
difficulty accessing facilities. Management did not deal with her complaints
properly. The employment tribunal found that she had been harassed, directly
discriminated against and victimised and she was awarded £180,000 in
compensation. This included aggravated damages for both her treatment at work
and also the way she was cross examined in tribunal by the employer’s legal
team. The tribunal also made a statutory recommendation that the board of
directors read and absorb the written reasons for the tribunal judgment. The
employer also agreed to a range of other measures including the introduction of
a Diversity and Inclusion Champion. They also agreed to commission a report on
diversity and inclusion within the business by a recognised diversity body such
as Stonewall. A costs hearing will take place at a later date.
The written reasons explaining
the decision will not be published for at least another month. There will be
lessons for employers to take from it in terms of how they deal with gender
fluid employees and diversity more generally. As ever, it’s about having solid
policies, properly trained managers and a culture which celebrates diversity
rather than shies away from it. This case shows just how costly those failures
can be.
Whether you call it a second wave
or one continuous storm, Covid-19 is at the forefront of every employer’s mind
as we enter Autumn. Once again, the
government has said employees should work from home if they can, in stark
relief to the summer push to get them back in the office. More staff in sectors
such as retail and hospitality must now wear masks to stem the rise in infections.
Hospitality businesses, such as pubs and restaurants, must shut by 10pm. But
the big news for employers came via Rishi Sunak’s Job Support Scheme (JSS) as
part of his Winter Economy Plan. It is aimed at safeguarding viable jobs in those
sectors of the economy which will struggle over the winter months because of
the pandemic.
The JSS will run for 6 months
from 1 November 2020. Where the business remains open, an employee will need to
work at least a third (33 per cent) of their normal hours and the employer must
pay them for those hours. The remaining two thirds (or 66 per cent) of an
employee’s hours are then split again into 3: the government will pay for one
third of the remaining hours (22% of their overall contractual hours) and the
employer must pay for another third (22%). This means an employee will receive 77%
of pay. The government grant is based on the employee’s usual salary, but their
contribution will be capped at £697.92 per month. The employer will be
reimbursed in arrears for the government contribution.
Only small and medium businesses
can take part in this scheme (bigger businesses can take advantage only if their
turnover has fallen during the pandemic and the government does not expect them
to pay out dividends or similar capital distributions whilst using the JSS).
Any small or medium business can use the JSS even if they haven’t previously
used the furlough scheme.
However, if the business has been
closed down under national or local lockdown rules, a different scheme will
apply. In this situation, the government
will pay two thirds of the employees’ salaries, up to a maximum of £2,100 per
month. Employers will not be required to contribute towards wages and will only
be asked to cover NIC and pension contributions. To be eligible, the employees must be off
work for a minimum of seven consecutive days.
No doubt there will be more
guidance on the scheme in due course so keep an eye out for the finer detail. Whether
the current situation is a tiny ripple or a raging storm, this could be the
lifeline that some SMEs need to help them ride out this wave over the winter.
Unfair dismissal
For a dismissal to be fair, an
employer needs to have a potentially fair reason to dismiss – such as
misconduct, redundancy or ‘some other substantial reason’ (SOSR) - and the
decision to dismiss must be within the range of reasonable responses. In cases
where an employer’s reputation may be at risk, conduct and SOSR can overlap.
The Employment Appeal Tribunal has looked at this issue recently in K v L.
A teacher was charged with possessing
indecent images of children, but he denied being responsible for them. He was
suspended from work pending investigation. The Procurator Fiscal (the Scottish
equivalent of the CPS) decided not to prosecute. The police evidence provided
to the employer was redacted beyond use, so it wasn’t given to the disciplining
officer. The employer concluded that there wasn’t enough evidence to show the
employee was responsible for downloading the images. However, he was dismissed
for misconduct and the potential risk he posed to children. The dismissal
letter also cited the risk of reputational damage which hadn’t been part of the
hearing.
The employee claimed unfair
dismissal. He lost at the employment tribunal, but the Employment Appeal
Tribunal overturned that decision. The EAT said that dismissing for
reputational damage wasn’t fair because the employee had not been given an
opportunity to address those allegations at the disciplinary hearing. They also
said that the decision to dismiss on conduct grounds was flawed: an employer
must be satisfied on the balance of probabilities that the employee committed
the offence in question. The disciplining officer had said there wasn’t enough
evidence to make out misconduct, so the decision to dismiss on conduct grounds
was not reasonable. The EAT went on to look at whether the employee could have
been fairly dismissed for SOSR if the employer had pursued reputational damage
as the reason for dismissal. They referred to a previous case called Leach v
Ofcom, where a reputational damage dismissal had been fair. The EAT said
this case was very different from Leach. In Leach, there was
detailed information from the police to support the allegations, which there
wasn’t in this case. The employer in Leach investigated the police evidence
rather than simply accepting it – there wasn’t that opportunity in this case as
there was no comparable police evidence. In Leach there was existing
press interest in the case, and a real risk of adverse press coverage, which
wasn’t present here.
It’s hard to believe that it
could ever be unfair to dismiss a teacher when indecent images of children are
found on devices in their home. But this case shows the importance of an
evidence base for these decisions, both in relation to misconduct and any risk
of reputational damage. Employees must also be given an opportunity to deal
with all relevant issues at the disciplinary hearing for a dismissal to be
fair.
Disability
In order to qualify as a
disability under the Equality Act 2010, an impairment must have a substantial
and long-term adverse effect on an individual’s ability to do day to day
activities. In order to be long term, a substantial adverse effect must have
lasted, or be likely to last, at least 12 months, or be likely to recur. A
tribunal will look at medical evidence and the employee’s own witness evidence
about the effects of their impairment. But they will also look at other
evidence, including the employer’s, if that is relevant.
In Sullivan v Bury Street
Capital Limited, the employee was a sales executive in a small company. In
2013, he suffered paranoid delusions that he was being stalked by a Russian
gang following a split from a Ukrainian partner. He had previously had issues
with timekeeping, attendance and record keeping, but the delusions made this
worse. The employee sought treatment and his condition improved, so much so
that his boss invited him on an important business meeting to New York in September
2013. In April 2017, his delusions began having a greater impact on him. He was
eventually dismissed in September 2017 due to his capability and attitude. He claimed
unfair dismissal and disability discrimination, saying his paranoid delusions
had had a substantial adverse effect from 2013. At the hearing, a joint medical
expert confirmed this, although conceded that he couldn’t be sure about the
effects as he was relying on the employee’s account.
The employment tribunal overrode
the medical evidence and said the employee was not disabled. The employee said
the delusions had such an impact during the whole period that he would arrive
at work exhausted, struggle to stay awake and couldn’t concentrate on work. He
said it affected his personal hygiene. But the tribunal preferred the evidence
from the employee’s boss and a colleague who sat close to him in the office. The
colleague didn’t know anything about the delusions despite working alongside
him for many years, and said the employee was exaggerating his symptoms. In
evidence, the employee conceded he showered daily, flying in the face of his
own witness statement on personal hygiene. The tribunal said the delusions had
a substantial adverse effect for a few months in 2013 and then again in 2017 but
at neither point was the effect likely to last 12 months or recur. The employee
appealed but the EAT upheld the decision. They said the tribunal was at liberty
to weigh up all the evidence, including but not limited to medical evidence,
and arrive at its own decision.
This case confirms the position
that legal disability is a question for the tribunal rather than a doctor. This
is something which is often misunderstood by both employers and employees. Medical
evidence is just one piece of the puzzle. In this case, the employee chose to
rely on effects that his impairment had on him at work. This could be directly
countered by colleagues who were around him and, together with inconsistencies
in the employee’s own evidence, were fatal to his disability assertions.
Interim relief
The current uncertainty around jobs
can cause friction between employers and their employees. In such times, many
employees call on their trade unions for support. Unions are keen to stamp
their mark, not only to protect existing members but to capitalise on an
industrial crisis and turn it into a recruitment drive. Section 161 of the Trade
Union and Labour Relations Act 1992 allows an employee to claim interim
relief if they believe they have been automatically unfairly dismissed due to trade
union membership or activities. If an employee can show they are likely to succeed
in a claim for unfair dismissal due to trade union activities, then a tribunal
will reinstate them pending a full hearing of the case.
In Morales v Premier Fruits,
the employer was a fruit and vegetable wholesaler whose business had been
ravaged by Covid. In May 2020, they asked employees to take a 25 per cent pay
cut. The employee, Morales, refused and got his trade union to lodge a
grievance on his behalf. A staff meeting took place from which the employee was
excluded. It was recorded by a colleague. The manager could be heard making
derogatory remarks aimed at the employee and his union activities, expressing
views that were ‘strongly critical of trade unions’. The man who recorded the
meeting was dismissed three days later. The employee continued to refuse the
pay cut and was eventually dismissed in July, shortly after the grievance
process had concluded.
Although the tribunal said that a
full tribunal hearing will ultimately decide why the employee was dismissed, the
judge said the employee had a ‘pretty good chance of success’ in showing that
it was down to his trade union involvement. The recorded meeting’s transcript
showed clear irritation that the employee had involved his union. The tribunal
also felt the sacking of the person who had recorded the meeting was relevant.
The employer hasn’t lost the case yet, but the employee has now been reinstated
pending a full hearing, after the employer indicated they would consent to it.
This case shows the importance of
keeping your cool even when the waters are boiling. With a ravaged business and
plunging profits, the employer in this case had every reason to seek to reduce
its outgoings. Its mistake was reacting badly to the involvement of the
employee’s trade union and being openly disparaging about unions and their
activities in a staff meeting. However pressurised the economic environment,
managers and businesses must behave professionally in relation to both employees
and their trade unions. Showing your frustration, however understandable, can
land you in hot water.
Data protection
This month the High Court has
looked at the General Data Protection Regulation (GDPR) and the Data
Protection Act 2018 and their relevance in internal disciplinary
proceedings. In Kathryn Hopkins v HMRC, the employee was arrested in
connection with various offences, including sexual offences and an offence which
took place in a work vehicle. As required by her contract of employment, she
told her manager about the arrest. The manager then shared that information
with various internal departments, including HR (in relation to pursuing
disciplinary proceedings) and the press office (to manage any negative
publicity). The employee was suspended pending a disciplinary process for gross
misconduct. The employee’s contract of employment included terms involving
appropriate behaviour outside of work and conduct which could give rise to
queries about honesty and trust.
The employee went off on long
term sick leave and refused to open or read correspondence from the employer. She
said the internal investigation into the alleged offences was in breach of data
protection laws and should stop. The process was briefly halted but continued
after the employer sought legal advice saying it could press on. The employee
complained to the Information Commissioner’s Office and then brought claims in
the High Court for, among other things, data protection breaches by the
employer for ‘processing’ the information about her arrest both internally and
externally.
The High Court said the employer
had a lawful basis for processing the special category data about the
employee’s arrest when it suspended her and started disciplinary proceedings.
The processing in question was necessary for the performance of her contract of
employment and the employer had, as it was required to, an appropriate data
protection policy in place to which the employee had access.
This case shows how data
protection laws can be relevant in disciplinary proceedings and the sharing of
information internally to facilitate that process. It is also a case which
exemplifies the lengths to which an employee will go to avoid a disciplinary
process. Employers must ensure they follow the rules: an effective compliant
data protection policy is vital here. Employers must also ensure they identify
a lawful basis for processing (in this case it was necessary for the
performance of the employment contract) and maintain appropriate records. But employers
should not be cowed by an employee who adopts a scattergun approach to imagined
legal breaches in a bid to avoid facing the music.
Pleadings
The EAT has issued some guidance
on written pleadings which will make employers breathe a sigh of relief. All
too often, employment tribunal claims run to several pages, documenting several
years of alleged ill treatment, often without stipulating a single legal claim.
The EAT has provided its wisdom in a case called C v D, where the
employee had brought a claim for discrimination which ran to 37 paragraphs over
6 pages.
The claim form provided a
narrative account of the alleged discrimination. It referred to two different protected
characteristics but didn’t say which facts related to which characteristic. Nor
did the employee say what type of discrimination was being claimed. The
employer replied in narrative style, requesting further information, which the
employee provided. When that further information arrived, the employer said the
employee was raising new claims and new facts which would now be out of time.
An employment tribunal judge refused to allow certain amendments to the claim, so
the employee appealed.
As part of her reasoning, the EAT
judge discouraged the use of ‘narrative’ pleadings and encouraged legal
representatives to use more succinct and clear drafting. Claim forms are not
witness statements. They should set out a brief statement of the relevant facts
and then the cause of action relied on, such as unfair dismissal or the
specific discrimination claim (direct, indirect, discrimination arising from
disability, etc) rather than just saying ‘I have been discriminated against’.
Witness statements are the place to set out the exhaustive factual detail if it
is relevant. This case showed all too clearly what happens if claims lack
sufficient legal precision: costs increase (because of the extra hearings and
work entailed), time is lost, and delay is inevitable.
There is a balance to be struck
here, both in claim forms and responding to them. Sufficient factual basis to
support a claim or response, but not too much.
The difficulty in striking that balance is the reason many pleadings are
overly verbose. There is definitely merit in getting someone legally qualified
to draft pleadings, so that this balance can be properly struck, and legal
proceedings get off to a good start.
Privacy at work
Article 8 of the European Convention
on Human Rights says that everyone has the right to respect for private and
family life, their home and correspondence. Public authorities are not allowed
to interfere with that except in exceptional circumstances such as national
security, public safety or the prevention of crime. Employment tribunals, like
all courts, must construe employment law in a way which is compatible with the ECHR.
But how far does this right to privacy go, and what kind of things can trump
it?
In BC V Chief Constable of the
Police Service of Scotland, police officers signed up to a code of
professional conduct. The code applied both on and off duty due to the public
nature of their jobs. The code said officers must not behave in a way which interferes
with the ‘impartial discharge’ of their duties or gives the impression of
partiality. The Police Service of Scotland (PSS) conducted an investigation
into sexual offences within the police force. As part of the investigation, private
WhatsApp messages from groups chats between officers were found, containing
racist, sexist, anti-Semitic, homophobic and disablist comments, as well as photos
of crimes scenes in breach of police procedures. The PSS brought misconduct
charges against numerous officers. The officers retaliated with a claim alleging
that the misconduct proceedings based on private WhatsApps breached their right
to privacy.
The Inner House of the Court of
Session (a Scottish appeal court) found that there was no reasonable
expectation of privacy for police officers in relation to the private messages.
They were holders of public office and had signed up to certain restrictions on
their private life. In addition, all the officers involved were under a
contractual duty to report the behaviour of colleagues whose behaviour had
fallen short of the code of conduct. It was also relevant that the messages had
been discovered openly as part of a criminal investigation rather than in a
covert manner. The court disagreed with the officers’ contention that the
messages could only be used in the prevention of crime. There was a clear
public interest in maintaining a properly regulated police force in which the
public could have confidence. That objective was enough to justify the
restriction on the officers’ Article 8 privacy rights.
This decision accords with other
employment cases where tribunals have refused to find a reasonable expectation
of privacy in relation to comments made on social media or in work related
emails. However, to my knowledge, it is the first case involving WhatsApp
messages sent from personal accounts. Although this case involves public sector
employees, the same principles may well apply to any employees who are subject
to professional standards where the messages in question suggest a breach of
those standards in a way which might impact on public confidence in that field.
Tracking workers hours
Are you worried about your
homeworkers kicking back during the pandemic? Shibu Philips, founder of
London-based beauty business Transcend, has told the BBC he has been using
Hubstaff software in order to monitor what his employees are doing. He says he
knows only too well what its like to waste time at work. The software allows
him to track his workers’ hours, keystrokes,
mouse movements and websites. He can look at screenshots and see how
much time workers are taking on tasks. Employees are fully aware of the
software and can delete websites visited during breaks.
The pandemic has created a big
demand for this and other kinds of surveillance software. Employers worry that
a lack of visibility will impact on employee productivity. Understandably, they
want to protect their businesses at what is a crunch time for many. But is
software the way forward? Employees have also struggled during the pandemic,
worried about their health and families as well as their jobs and future
prospects. Introducing monitoring software during a crisis could damage employee
trust and confidence at a time when you want to retain your very best people to
see you through the crisis. Surveillance software isn’t fool proof – it can’t
record thinking time or the creative process in any meaningful way.
Instead of software, consider
whether some TLC might be a better way to go. Make sure managers are checking
in regularly with staff, not only to monitor work but to check on wellbeing.
Filter out and deal with any genuine shirkers as you would normally if they
took a three-hour lunch. The human touch can be more sensitive than software, and
carrots invariably work better than sticks with the employees you want to keep.
And remember, if you do use surveillance software to monitor staff, have a clear
policy, get employees to explicitly agree to its terms and make sure it is used
proportionately.Extra articles
Redundancy
ACAS has joined forces with the
TUC and CBI to issue a statement on how best to handle redundancies stemming
from the Covid pandemic. They recognise that redundancies may be unavoidable
for some businesses but ask employers to try all possible alternatives first.
Ideas include more part time working, cuts to overtime, finding alternative
roles for some staff and retraining others. They ask employers to consider the
following guidance and do what they can to look after their people as well as
their business:
Do it openly: following
collective consultation requirements is key but early open discussions about
potential redundancies is better for everyone.
Do it thoroughly: make
sure that the people carrying out your redundancy process have been trained in
how to handle it properly. They need to know the processes they must follow and
the legal hoops they need to jump through. Everyone involved needs information
and guidance, so they can pass that information onto the affected employees.
Do it genuinely: don’t
just go through the motions. Consultation involves genuinely listening to employee
and union views and being open to alternatives they put forward. Give feedback
if you reject their ideas so they understand why.
Do it fairly: as with any
process, following a fair procedure is key and any process must be free of
discrimination
Do it with dignity: losing
your job can be a devastating and traumatic experience. How an employer
approaches redundancy can change the way someone views both their position and
the company. Be kind in your conversations and correspondence, not only for the
benefit of employees but in case you want to rehire them in future.
Unlike the civil courts, costs
(including legal fees) are not usually paid by the losing party in employment
tribunal cases. Costs can be awarded by a tribunal if one of the parties has
behaved vexatiously, disruptively, abusively or otherwise unreasonably in
bringing proceedings or the way they have conducted themselves during those
proceedings. A costs order might also be made if a claim is pursued (or
defended) despite the claim/defence having no reasonable prospect of success.
They are rare, so are big news when they happen, especially when the sums involved
are large.
An employment tribunal has
awarded what is believed to be the largest costs award against an employee who
used to work for Millennium and Copthorne Hotels as Senior Vice President of
Global Procurement. Chee Hwee Tan was made redundant and brought a whole raft
of claims against his employer including unfair dismissal, discrimination based
on race, age and sexual orientation, whistleblowing detriment and unlawful
deduction from wages. Hedging his bets did not pay off for this employee.
The employment tribunal dismissed
all the employee’s claims. They found that the employee had been ‘duplicitous’
and acted in a way which undermined trust and confidence when he secretly
recorded conversations with colleagues. The tribunal made an order for costs
because his claims had been vexatious. The employee now must pay £432,000 to
the employer to cover the costs of defending those spurious claims.
Costs awards are rare, and usually
average only a few thousand pounds, so the pressure on the employer to settle these
spurious claims must have been huge. They held their nerve and it paid off.
This case doesn’t create any new law, but it does show that tribunals are
willing to make costs orders in the right cases, even if those costs are very
high.
Whether it comes with a ‘thud’ or ‘ping’, HR and business owners’ know the dreaded
sound of an ETI kicking off an employment tribunal claim hitting their doormat
or inbox which will be closely followed by a long ‘sigggghhhh’
But what if the first time you get to hear about the claim
is when what thuds or pings through is the
ET3 response request? What if you hadn’t seen any communication from
ACAS about mandatory early conciliation because the email hadn’t reached as it
should have being responsible for all things HR but instead, had fallen into an
unmonitored email inbox orsent to some random person within your business?
Hopefully and particularly if you are a smaller business,
employment tribunal claims of any kind rarely come across your desk. But in
bigger businesses, and particularly with the current economic climate where
people are being laid off left right and centre and looking everywhere for
possible avenues for recompense, whether you are a small or large organisation
my prediction is you can expect to receive more of them.
September marks the start of the new school year and a return to the workplace for many employees who spent the spring and summer months working from home. Those employees anxious about returning to work will have been reassured by the “Working safely during coronavirus” guidelines introduced by the Government to ensure employers takes steps to keep their employees safe and healthy while at work.
However, what if despite an employer’s best efforts one of their
returning employees contracts Covid-19.
What action must an employer take?
The following steps are recommended:
Monitor exposure: An employer must monitor exposure to coronavirus in the workplace. This will involve keeping a record of any employees in the workplace who test positive for Covid-19.
Employee self-isolates: The employee must self-isolate for 14 days during which they will be entitled to receive statutory sick pay or contractual sick pay.
Alert any close contact colleagues: The NHS Test and Trace service will ask the employee to provide details of anyone with whom they have been in recent close contact with. By “close contact” is meant any person to whom the infected employee was close at any time from 2 days before the employee showed symptoms to up to 7 days after the onset of symptoms. It includes not only close face-to-face contact but also being in close proximity to the employee for more than 15 minutes. The employer should alert any co-workers of the infected employee who may be close contacts. When doing so, the employer should bear in mind the need to comply with data protection obligations and only share details of the employee’s diagnosis where there is a lawful reason for doing so. Co-workers who have been in close contact with the infected employee do not need to self-isolate unless told to do so by NHS Test and Trace or a public health professional. They should nevertheless take precautions to avoid spreading the virus. The employer should therefore consider permitting them to work from home for a short period instead of coming into the office.
Clean the office: The workplace must be cleaned and disinfected in accordance with Government guidance on how to clean an area that was recently visited by an individual with Covid-19.
Reporting obligations: Under the RIDDOR* reporting obligations, an employer must make a report to the Health and Safety Executive if an employee contracts Covid-19 as a result of “occupational exposure”, that is, as a result of their work. In most cases it will be difficult to pinpoint the workplace as the cause of infection because the employee may well have contracted the virus outside of work.
*RIDDOR means the Reporting of Injuries, Diseases and Dangerous
Occurrences Regulations 2013.
LexLeyton can assist employers with advice on any particular issues arising from employees returning to the workplace. If a free consultation with one of our expert employment law solicitors around this or any other related issue would be of help just pop your details over to us at https://lexleyton.co.uk/free-consultation/ or contact us at legal@lexleyton.co.uk
*RIDDOR means the Reporting of Injuries, Diseases and Dangerous
Occurrences Regulations 2013.
September and October this year see the scaling back of the
Coronavirus Job Retention Scheme under which millions of employees have been
placed on furlough while the Government issued grants to employers to cover the
cost of their wages.
The scheme ends altogether on 31 October and in September
and October the amount of the grant being offered by the Government is to be reduced.
Under the original scheme the Government paid 80 per cent of a furloughed
employee’s wages up to a maximum of £2,500 per month. In August employers
became liable to pay National Insurance Contributions and mandatory pension
costs for furloughed employees and from 1 September, the scheme will only pay
70% of employees’ wages to a maximum of £2,187.50 per month. From 1 October the
scheme will be reduced further so that the government contributes only 60% of
wages to a maximum of £1,875.
It is important to note that these grants are made on the
basis that the employer continues to pay a furloughed employee at least 80 per
cent of wages or £2,500 per month. In other words the employer cannot simply
pass on the reduced amount of grant being provided under the scheme but must
top it up so that the actual entitlement of a furloughed employee stays the
same.
The off-payroll working rules for
individuals who provide personal services via an intermediary will change for
large and medium-sized businesses in the private sector from 6 April 2021.
In a significant shift, these reforms
will place the Employment Tax compliance burden on the agencies and companies
that engage contractors who use Personal Service Companies (‘PSCs’), and are
expected by many to increase operating costs and compliance risks.
The off payroll working rules,
commonly referred to as IR35 after HMRC’s press release that announced their
introduction, have a straightforward aim. The rules are intended to prevent
individuals from reducing income tax and National Insurance Contribution
(‘NIC’) liabilities, through what HMRC considers to be “disguised employment”,
where an individual provides their services via a PSC, receiving payment in the
form of dividends.
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