Budget Update – Key Points for Employers

In the Budget announced on 3rd March 2021, Chancellor Rishi Sunak has confirmed that the Coronavirus Job Retention Scheme (“furlough scheme”), which was due to end on 30th April 2021, will now be extended until the end of September 2021.

What does the furlough scheme cover and how much will employers have to contribute?

  • Employees will continue to be entitled to receive 80% of their wages (subject to a cap of £2,500 per month) and may be continuously furloughed or placed on flexible furlough (working for part of their normal hours).
  • Until July there will be continue to be no employer contribution to wages.  Employers will still be required to meet employer National Insurance contributions and minimum auto-enrolment pension contributions.
  • In July, employers will have to contribute 10% of furlough wages (plus NI and pension), with the Government’s grant covering the remainder of furlough wages.
  • In August and September, employers will have to contribute 20% of furlough wages (plus NI and pension), with the Government’s grant the remainder of furlough wages.

Retention incentives

In Autumn 2020, the Government announced that it would scrap the Job Retention Scheme Bonus, which was due to be paid in January 2021. The Bonus was to comprise £1,000 for each employee who had been on furlough and who was retained by their employer. Instead, the Government indicated that would put in place an alternative retention incentive. However, the Budget did not contain any details of further retention incentives, and it looks unlikely that any new scheme will be forthcoming. 

Other employment law announcements

  • The National Living Wage will rise this April from £8.72 to £8.91 (for those in the 23 and over age bracket).
  • Income tax and NI rates will not be changed. Personal allowance thresholds will rise in April, but will then be frozen until 2026.
  • A new HMRC taskforce will be set up to combat furlough scheme fraud.
  • In August 2020, the Chancellor introduced financial incentives for employers taking on apprentices, offering a grant of £2,000 per apprentice aged 16 to 24, and £1,500 per apprentice aged 25 and over. This scheme was due to end in March, but has now been extended to the end of September. Further, from April the level of grant will be increased to £3,000 per apprentice, regardless of age.

Our Thoughts on the Budget

This Budget package had to transform a blurry picture of the public finances into a clear, sensible and practical outlook for financial support as the recovery from Covid-19 begins in earnest. While the Chancellor may not have provided complete clarity for the next year, business leaders will welcome the package announced yesterday. It goes some way to shed light on the outlook for businesses that are sustainable in the long run.

The extension of the furlough scheme is one of the standout elements of the Budget and should help to bridge the gap between the end of the scheme and return for a significant segment of the population. It was inevitable there would be some form of tapering off as the furlough scheme winds down. Employers remain responsible for National Insurance and pension contributions for hours not worked, resulting in an often significant outlay for businesses across many industries where the Covid measures has not permitted any real recovery yet.  Businesses will be hoping to open as soon as possible to start generating revenue that will counteract their increasing overheads and tax commitments as the scheme draws closer to its end.

Employers will need to prepare for the end of the furlough scheme in good time, particularly bearing in mind the statutory time periods for collective consultation in the event of large-scale redundancies. In the details of the ‘winding down’ of the scheme, we hoped to see a continuation and extension of the scheme’s flexibility.  In particular, re-introduction of the scope of furlough to include individuals working their notice would be a significant benefit to employers, with so many workers moving jobs. Flexibility is essential to help businesses plan their own recovery.  We are dissecting the guidance and will provide further updates to all of our clients, and our FAQs, shortly.

The stand out elements of this Budget are the extension of furlough, combined with business rates relief being significantly extended, maintaining lower VAT levels and financial support in recruiting young people, all of which are likely to extend beyond the current ‘best case scenario’ timeframe for businesses re-opening.  With this budget, businesses can have greater confidence in making positive, proactive decisions for the year ahead.

Without doubt, ongoing communication, synergy of thought and clarity between business and Government will remain integral to us successfully navigating the UK economy back on track.  With unemployment figures desperately high, the knock on effects of poverty, mental wellbeing, social welfare and attracting capital investment much be continually addressed.  The impact of the pandemic has cost more lives and livelihoods than can be measured in fiscal terms. The recovery required to address the endemic inequality arising as well, disproportionately affected women, young people, Black, Asian and other minority groups, to name a few. In my view, the Chancellor’s announcement today has gone a long way to creating an environment where business leaders can begin to address that unintended inequity.

Covid 19 Vaccine – what impacts for employers?

With the start of a roll out of a vaccination against coronavirus, employers will be eager to look at how employees can be vaccinated to support their workplaces and getting back to ‘normal’. 

Details of how a vaccine will be rolled and which groups will be prioritised out have been published by the Government with it likely to be many months before healthy and younger people can access the vaccine, with no indication yet as to when a vaccine could be made commercially available.

Will employers be obliged to provide their employees with vaccination against Covid-19?

If vaccine(s) are available for employers to provide, probably.  At the moment this is not an option as a vaccine is not commercially available. If an employer requires an employee to be vaccinated as a health and safety measure, it would be required to pay for the cost of the vaccination.At the very least, employers will want to encourage employees in the strongest terms to be vaccinated.   

In terms of the obligations on employers under health and safety legislation, an employer must take all reasonably practicable steps to reduce workplace risks to their lowest practicable level. This is likely to include providing vaccinations for employees.  

Having provided the vaccine, can employers make their employees be vaccinated?

An employer cannot force vaccination on an employee.  The Prime Minister has made it clear that vaccination will not be mandatory.  However, as noted above, employers will want to encourage employees in the strongest terms to be vaccinated. 

Getting the vaccine could amount to a reasonable management request/instruction, unreasonable refusal of which by the employee may amount to disobedience and therefore justify disciplinary action. See below for more on this point.  It is best to speak to your Lexleyton solicitor before commencing any formal action.  

If you make arrangements for any vaccine to be administered to employees while they are at work then the time taken for administering it will qualify as working time for the purpose of the National Minimum Wage. 

Is an instruction to be vaccinated a reasonable management request?

Yes – very probably. 

Once a vaccine has been formally approved and officially recommended by the Government, then such an instruction is probably reasonable.  Reasonableness in this context will be highly fact-specific and employers should take all of the circumstances of any refusal in to consideration.  

Employers should be mindful that it is not necessary for a vaccine to be entirely effective against Coronavirus or that there are no potential side effects whatsoever.  Essentially, if the Government has certified vaccine(s) as safe, then those vaccine(s) are safe.  

Reasonableness is fact-specific.  For example, if an employee can show that they work exclusively from home (other than as a ‘workaround’ due to COvid-19) and are not expected to have close contact with colleagues or clients, an instruction to be vaccinated may not be a reasonable one. 

Will a refusal by an employee to be vaccinated amount to an unreasonable failure to comply with a reasonable management request?

While it is difficult to be absolute, it is likely that in most cases such a refusal will be unreasonable. 

Again, reasonableness of a refusal to be vaccinated will also be fact-specific.  Employers should ensure that they listen to an employee’s reason for any refusal as genuine medical, religious or philosophical reasons for refusal may be put forward and may also be reasonable. 

It is clear from the media that there is a minority of the population who are against vaccinations – referred to commonly as ‘anti-vaxxers’.  Employers will therefore need to be mindful of the risk of such a belief being protected under the Equality Act 2010.  There are a number of conditions to be satisfied in order to obtain this protection, perhaps most notably that that the belief is something worthy of respect in a democratic society.  Given the volume of scientific evidence in favour of vaccination, and given the possible impact on the population of Covid-19, statutory protection for the views of anti-vaxxers seems unlikely. 

Employers should also be mindful of any specific exceptions published by the Government which might make certain groups free from the general encouragement to be immunised.  Employers should stay up to date with published guidance.

Can an employer refuse entry to the workplace to an employee who refused to be vaccinated?

Although again fact-specific, the answer is almost certainly yes.   

When it is rolled out more widely, employers will need to update their risk assessments to reflect the availability of the vaccine. Given the potential for some employees to refuse a vaccination, risk assessments are likely to have to consider if additional measures can be put in place if an employee chooses not to be vaccinated. 

Remember that the reasonable management instruction to be vaccinated will be made in order to protect others in the workplace; with this in mind, allowing non-vaccinated employees to attend work is clearly a risk that an employer will not want to take. 

It is also strongly arguable that allowing non-vaccinated employees in to the workplace would amount to a breach of an employer’s duty of care. 

While it is true that employees are allowed, unvaccinated, in to workplaces at the moment (subject to the now familiar rules on social distancing etc.), the advent of vaccines amounts to a paradigm shift in the ways we combat Covid-19.  Once vaccines are rolled out, it cannot be said that previous preventative measures will be the best approach any more. 

Should an employee be paid for any time when they cannot work due to refusing to be vaccinated?

If the refusal to take the vaccine is unreasonable, then it is unlikely that they would need to be paid for such time. It would be the fault of the employee that they cannot work, as they refuse to follow the employer’s reasonable requirements in relation to health and safety.  

However, there will be situations where an employee’s refusal may be reasonable.  It such situations, pay would probably be due.  Take advice from your Lexleyton solicitor and consider alternatives (such as temporary working from home). 

What about data protection and privacy issues?

Employers should be mindful that vaccination information will amount to sensitive personal health data, whether or not an employee has been vaccinated.  

That data must therefore be processed and retained in accordance with data protection legislation and your existing privacy notices.   

A written notice and a reminder of the employer’s intentions regarding collating, processing and retaining this data, as well as up to date privacy notices and a record retention policy are essential. Speak to Lexleyton for support on this.  

Can an employer dismiss an employee who refuses to be vaccinated against Covid-19?

If the instruction to be vaccinated is a reasonable one, then yes they can.  

Employers should consider alternatives as noted above, but in any case where close contact with colleagues and clients is likely, an employer has the right and the obligation to take such steps as it deems reasonably necessary to protect them. 

Speak with your Lexleyton solicitor before taking any decisive action against an employee refusing the vaccine. Dismissal should always be the last resort. 

For any support around the issues raised here or to chat about any HR or employment law issue contact us for a free consultation with our expert employment lawyers or email us at legal@lexleyton.co.uk

Key Changes to the Coronavirus Job Retention Scheme for Employers

At the beginning of November the Chancellor announced at the beginning of November that the Coronavirus Job Retention (Furlough) Scheme (CJRS) would be extended across the UK until 31 March 2021. Guidance about how the scheme would operate during this extension has now been published along with a fourth Treasury Direction.  While the CJRS remains very similar to the scheme that has been in place for many months, there are some important changes for employers to be aware of

Employees on notice:

Government guidance suggests that employers can still claim for employees who are serving a notice period on furlough during November 2020.  However, from 1st December 2020 it will not be possible for employers to make a claim for a furlough grant in respect of any days on which an employee is on a notice period.  This applies no matter the reason for the notice period, so will apply equally to those employees who have resigned as to those who have been made redundant.  It would be prudent to factor this potential cost in to any redundancy plans.

Maximum numbers of furloughed employees:

Prior to November 2020, employers were limited in the number of employees for whom they could claim furlough support.  However, this limit has now been removed, potentially making the CJRS a more useful tool for businesses than it had been over the past few months.

Employees returning from Maternity Leave:

Under earlier versions of the guidance employees returning from Maternity Leave were required to give eight weeks’ notice of their return before they could return to work and be placed on furlough.  This has now been amended by the Government, allowing employees and employers to agree a shorter period of notice.

Submissions of claims:

As previously, claims must be made through the Government’s online portal.  However, the time limits for making claims online have been amended.  October claim periods must be submitted by 30th November, while claims for November, December and January must be made by 14th December, 14th January and 15th February respectively.

Amending claims:

The dates for amending claims have also been amended.  For claims made in respect of November claim periods, any amendments must be made by 29th December 2020, for December claim periods any amendments must be made by 28th January 2021 and for any January claim periods amendments must be made by 1st March 2021.

Publication of employer details:

From December 2020, HMRC will publish the names and company numbers of all employers who make claims for support from the CJRS.  They will also publish the amount of support given to each employer.  This is a condition of receiving the financial support available and the information is likely to be published on the Government’s website.  The only exception is where an employer can show that the publication of these details would lead to a serious risk of violence or intimidation, which is unlikely to be particularly common.

Job Retention Bonus:

The newest Treasury Direction confirms that this has been withdrawn.  It is expected that a replacement scheme will be created in due course.

There are various online guidance documents which have been published by the Government in relation to the extended CJRS.  Of all of these, we recommend consideration of the ‘step by step guide for employers’ – now on edition nine and available here.

This guide sets out clearly how to calculate and make a claim under the extended CJRS. If your business needs any support or you would like to discuss how any aspect of the CJRS impacts your business please don’t hesitate to reach out to our team for a free consultation on legal@lexleyton.co.uk or https://lexleyton.co.uk/free-consultation/

Overpayment Of CJRS support – HMRC Enforcement Action

Where employers have received support to which they were not entitled, HMRC must be notified of the overpayment.  There are strict timelines in place for this notification to be made; failure to do so is considered by HMRC to be a ‘failure to notify’. 

As such, any overpayments received in relation to support payments under the CJRS must be reported to HMRC at most 90 days after the date the employer received the amount that they were not entitled to (or after the date on which the employer ceased to be entitled to retain the amount paid).  HMRC notes that the overpayment may have occurred due to a change in the employer’s circumstances or perhaps because the employer did not, within a reasonable period of time, use the support grant to pay the costs it was intended to reimburse.

Whatever the reason, employers should be mindful of the consequences of a ‘failure to notify’.  HMRC intend to charge penalties, the value of which will be designed to reflect the seriousness of the failure.  They will, for example, take in to account whether the employer was deliberate in their failure to notify, whether they also looked to conceal the overpayment or whether it was non-deliberate.  They will also consider whether any notification made was ‘unprompted’ or ‘prompted’ – these essentially related to whether or not HMRC had commenced an investigation at the time of the notification.  Penalties can be reduced for employers who work with HMRC in their investigations, known as ‘telling, helping and giving.’

The penalty ranges are as follows:

Type of behaviour  Unprompted or prompted
Penalty range
Non-deliberate Unprompted - within 12 months
of tax being due
0% to 30%
Non-deliberate Unprompted - 12 months or more
after tax was due
10% to 30%
Non-deliberate Prompted - within 12 months of
tax being due
10% to 30%
Non-deliberate Prompted - 12 months or more
after tax was due
20% to 30%
Deliberate Unprompted 20% to 70%
Deliberate Prompted 35% to 70%
Deliberate and concealed or treated as deliberate and concealed Unprompted 30% to 100%
Deliberate and concealed or treated as deliberate and concealed Prompted 50% to 100%

Remember – if HMRC are deliberately misled, whether through dishonest misrepresentations or the giving of false information, they intend to conduct criminal investigations with a view to prosecution.

For employers, we recommend that claims are carefully vetted prior to submission. In addition, it is prudent to also internally audit sums received for each claim. This audit should ensure that the sums claimed are correct and properly paid to employees in full.  

Bullying in the Workplace – what can your business do to tackle it?

Today my son went off to school in his odd socks – one of the initiatives of Anti-Bullying Week which is taking place this week – and we talked about how, although people may look different, it is always important that we are kind to everyone. Unfortunately, bullying isn’t always left behind in the playground when we leave school, it can happen anywhere, not least in the workplace.

There aren’t any laws against bullying and there is no legal definition of what it constitutes either. ACAS describes it as unwanted behaviour that leaves a person feeling intimidated, degraded, humiliated and offended. It can be one of those things that, for the person experiencing it, can be hard to define or each act by itself might seem trivial. What it absolutely can do, however, is make for a pretty miserable existence at work for affected employees, resulting in lost productivity, absenteeism, high staff turnover, mental health issues for employees as well as reputational damage for employers.

In today’s world where many of us are now working from home, there may be some escape for employees who fear having to deal with certain colleagues or managers who subject them to bullying. However, employees are likely to be alone in their home working environment and so the micro-managing, the snide comments or the unrealistic deadlines have moved online but with no other colleagues around to witness the behaviour or offer support. Employees are perhaps more likely to feel isolated whilst working from home, with less opportunities to confide in colleagues (or in managers if the bullying stems from a colleague). Also, with less face to face interactions, there are more opportunities for words and actions to be misinterpreted, perhaps even more so at a time where so many of us are feeling the mental challenges of a second lockdown as the gloom of winter starts to set in.

All employers have a duty of care to protect their workers, so what can employers do to deal with bullying in the workplace?

  • An Anti-Bullying Policy setting out the kind of behaviour that a company will not tolerate is a key first step. It’s also really important to have a clear process for how employees should raise concerns about unwanted behaviour.
  • Ensure confidential lines of communication - often bullies are in a position of authority over the their target, so ensuring that there is a resource other than an immediate line manager to make confidential reports to may help to foster a ‘speak up’ culture. This could be through HR or there are platforms available, such as Work In Confidence, that facilitate confidential disclosures. 
  • Offering training for managers on how to deal with these situations may also help to prevent and tackle conflict in the workplace - a CIPD survey published earlier this year found that 34% of employers said one of the top barriers to effective conflict management is that managers don’t have the confidence to challenge inappropriate behaviour. Their researched showed that managers who had received training could help to stop conflict from occurring and were much better at fostering healthy relationships in their team. And when conflict did occur, they could help to resolve the issue more quickly and effectively.
  • Consider mediation between the complainant and the bully to try and restore the working relationship.

Failing to give adequate consideration to workplace bullying can have significant consequences for employers. Despite there being no specific law against bullying, if the bullying is linked to a protected characteristics of the employee then they might be able to claim some form of discrimination or harassment. There could also be civil claims if an employee can establish that they have suffered some form of personal injury as a result of the bullying, or if they can establish that there has been a breach of the Protection from Harassment Act 1997. If the bullying is really serious then an employee may feel that they have no choice but to resign, leaving the employer exposed to a potential constructive unfair dismissal claim. And it’s not just in the courts and tribunals that an employer could feel the financial consequences, failing to stamp out bullying is bad for attraction and retention which will inevitably lead to recruitment costs. There will also be costs lost in productivity and attendance, which are likely to be impacted where an employee is suffering at the hands of a bully.

All employees are entitled to work in a safe environment, and sustainable employers will ensure that  they are fostering the right culture to ensure that they can offer this, as well as adopting robust employment policies to tackle any issues. 

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 and to discuss how we can help at legal@lexleyton.co.uk

World Kindness Day: Respect in the Workplace

Friday the 13th is commonly associated with bad luck and a well-known Eighties’ horror movie of the same name. However, there’s a positive spin to Friday the 13th this year as it coincides with World Kindness Day. It’s a good time to focus on ways in which we can bring joy into the lives of others, particularly at this grim time when the nation faces another coronavirus-related lockdown.

World Kindness Day urges individuals to carry out “random acts of kindness”. In the employment arena, this can be turned into an opportunity for creating greater respect in the workplace.

One positive act that is simple for any employee to do is to show gratitude and appreciation to their colleagues. It can be as simple as sending an email to a co-worker expressing thanks for some way in which they made your job easier. Gratitude is a powerful way to create connection with co-workers and strengthen relationships.  

For employers, the aim should be to create a culture where all staff feel comfortable and safe. Diversity, inclusion and equity are key to achieving this goal. It means having a workplace filled with individuals from different backgrounds in which everyone receives fair treatment and equal access to opportunities. It’s also important that staff are aware of the type of conduct that could be considered falls foul of these ideals or could be considered discriminatory.

Of course, having an Equal Opportunities policy that clearly sets out appropriate behaviours in the workplace is a key tool in fostering inclusion. Equally important is providing staff with regular training on equality and diversity, and on related topics such as unconscious bias, are useful in bringing the concept of inclusion and equity to life. The final step is ensuring that the principles in the policy and training are put into practice thereby creating a safe and positive environment for all staff.

For advice or training on the issues raised in this blog, or for help with preparing an Equal Opportunities policy, don’t hesitate to reach out to us at legal@lexleyton.co.uk

Furlough – Compliance and Claiming

The Government has extended the Coronavirus Job Retention Scheme (CJRS) until 31 March 2021. 

This guidance applies for CJRS / furlough claims for the period starting on or after 1 November 2020 and is intended to assist you in ensuring that you can compliantly ensure that you can secure HMRC support for furloughed staff.

  • It is possible to furlough employees with effect from 1 November 2020, even if a business was not able to get a written agreement in place by that date.
  • An agreement may be reached with an employee to backdate furlough to 1 November 2020 provided that a retrospective agreement is put in place by the end of Friday 13 November 2020. This backdated agreement will be dependent on the employee genuinely having been furloughed during this time. If the employee has actually been working all of their usual hours, furlough cannot be backdated.
  • Flexible furlough continues to be an option, meaning employees can work part-time and receive a furlough grant for their unworked hours. Employers will pay the employee’s wages for the hours they work as normal and claim for the furloughed hours, with reference to the employee’s normal working hours.
  • Employers seeking to use CJRS either to extend furlough for employees already on the scheme or put new employees on furlough will need to get the employees’ agreement. A new agreement would also be required for employers looking to amend the existing furlough terms with their workers.

For Lexleyton clients, your existing flexible furlough agreement is fine to continue using for any employees who remained on furlough since 31 October 2020, as it is compliant with the requirements set out in the HMRC Policy Paper, Factsheet and updated online guidance (updated as at 11 November 2020), subject to the employee meeting the eligibility criteria under the extended CJRS.

The existing Lexleyton template flexible furlough agreement would not come to an end until the CJRS ended, an employer removed the employee from furlough altogether, or the employment relationship ended (e.g. by reason of redundancy). For those individuals, they simply remain furloughed on the same terms. It is important to remain in regular communication with these staff as well, to ensure they have good visibility around business plans, to support their wellbeing and minimise any anxiety or complaints.

We consider that there are three routine scenarios where a new furlough agreement will require to be put in place with a worker and given retrospective effect to 1 November 2020.

The worker has been previously furloughed
using a letter/agreement which was not provided by Lexleyton.
For employees already on the scheme, now would be a good time to pause and consider whether their agreement meets the eligibility criteria and legal requirements for retrospective effect. Employers can also consider whether it is best to extend furlough on existing terms or revisit and potentially tighten up arrangements.  If choosing to tighten up or amend the existing furlough arrangements, please contact your Lexleyton solicitor for an up to date agreement.
The worker was advised, either verbally or in
writing, that their furlough agreement was
coming to an end.
Consistent with the terms of the previous wording, the previous furlough agreement will end if an employer advises the worker it is coming to an end. To then benefit from the retrospective effect of the extended CJRS, an employer would require to reach a new written agreement on or before Friday 13 November 2020.
The worker is being furloughed for the first time on or after 1 November 2020. To then benefit from the retrospective effect of the extended CJRS, an employer would require to reach a new written agreement on or before Friday 13 November 2020. We recommend you contact us for an updated furlough agreement.

If one of these scenarios applies to your workers, or you are unsure, please contact your Lexleyton solicitor to discuss, without delay or reach out to our team at legal@lexleyton.co.uk

Help for Businesses struggling to pay Statutory Redundancy payments

It has long been the case that a business could not make a claim for assistance with statutory redundancy payments until and unless they had entered into a formal insolvency process.  Where a business was insolvent, most commonly when it entered into either voluntary or compulsory liquidation, employees who had not yet received payments to which they were entitled by statute (redundancy pay, notice pay and holiday) were entitled to submit a claim to the Redundancy Payments Service (RPS).

However, a little bit of digging has turned up a change in the rules which now provide for financial support to businesses struggling to pay statutory redundancy payments to their workforce and who are not formally insolvent.

This includes businesses that:

  • are still trading,
  • have stopped trading but have not gone formally insolvent, or
  • will soon stop trading, but are not going formally insolvent.

For further information please see the attached link:  https://www.gov.uk/government/publications/financial-assistance-for-employers-unable-to-pay-statutory-redundancy-payments/financial-assistance-for-employers-unable-to-pay-statutory-redundancy-payments

If approved, the RPS will make statutory redundancy payments directly to the redundant employees on the employer’s behalf.

What the RPS can pay

RPS payments are subject to statutory limits, as detailed in Lexleyton’s Employment Key Figures 2020 Guide. The RPS cannot make any other types of payment such as arrears of pay, holiday pay, or notice pay unless the employer enters into a formal insolvency proceedings.

Eligibility Criteria

To be eligible for financial assistance from the RPS, an employer must provide evidence that they cannot afford to pay their employees statutory redundancy pay.

The RPS must also be satisfied that the former employees are eligible for statutory redundancy pay.

How do businesses apply?

If you think your business qualifies for assistance, you should email the RPS via: RPS.FA@insolvency.gov.uk


If the RPS makes statutory redundancy payments on behalf of a solvent employer, the RPS will then look to recover the cost of the payments from the employer. If the employer fails to repay debt, enforcement action may be taken.

If your business needs help around this issue contact us to discuss employer eligibility, benefits available and commercial considerations.  Please don’t hesitate to contact us for a free initial consultation.

Post Brexit – Your Current and Prospective European Staff

Amid the global pandemic that has taken over the world for the past months, Brexit appears to be suffering from political extinction. Yet, the leaving of the EU is imminent and employers should keep in mind that on 31st December 2020, EU staff will no longer have an automatic right to live and work in the UK.

Your existing EU staff

Your EU, EEA or Swiss staff currently living in the UK must apply for a ‘settled’ or ‘pre-settled’ status before 30 June 2021 under the EU Settlement Scheme to continue being legally recognised as a resident of the UK. The application is free https://www.gov.uk/settled-status-eu-citizens-families/applying-for-settled-status

Employees do not need to apply if:

•             They are an Irish citizens

•             They have an Indefinite Leave to Enter or Remain in the UK

How should employees choose between Settled Status or Pre-Settled Status:

Employees that have continuously been in the UK for 5 years or more can apply for settled status. They will have five years’ continuous residence as long as they have been in the UK for at least six months in any 12 months period for five years in a row.

Settled status will entitle an employee to stay and work in the UK for as long as they wish. However, it can be lost if an employee lives for more than five years in a row outside of the UK.

Employees that have been in the UK for less than 5 years can apply for pre-settled status.

Pre-settled status will allow an employee to remain in the UK for a period of five years from the date they are given pre-settled status. Upon expiry of that five year period, they will be required to apply for settled status should they wish to remain in the UK for longer. However, they do not have to wait until the end of the five-year period and can apply for settled status as soon as they have reached five years’ continuous residence.

An employee with pre-settled status has the same rights as those with settled status but cannot spend more than two years in a row outside of the UK in order to retain their pre-settled status.

As an employer, what should you do in respect of your existing EU staff?

Employers are under no legal obligation to communicate the EU Settlement Scheme to staff.

However, for employers that want to make sure that their employees are aware of the upcoming changes, the Government has drafted a “EU Settlement Scheme: employer toolkit” which includes different documents that can be communicated to employees. In particular, there is a template letter that employers can send to all of their EU staff.

When communicating the toolkit, employers should be careful not to interpret information on the EU Settlement Scheme or to provide immigration advice unless they are qualified to do so.

Indeed, the risk would be to give incorrect advice to employees that could cost them their settled status and eventually, their right to work in the UK. In this scenario, employee could raise a claim against their employers. If your staff asks you for advice, do simply direct them to the official step by step  Home Office Guidance on the scheme where they can get all of the necessary information.

Until the end of the transaction period, employers should be aware that there is absolutely no requirement for their employee to inform them that they have applied or the outcome of their application, employers should not check. Moreover, employers should never make an offer of employment, or continued employment, dependent on an individual having made an application. Doing so could open the door to a discrimination claim.

Everything changes from 1 July 2021: employers will no longer be able to accept an EEA or Swiss passport alone as evidence of a permanent right to work in the UK for new employees. However, employers will not be required to make any retrospective checks for existing employees.

  • Your future and prospective EU staff

If a prospective employee comes to the UK after the end of Brexit’s “transition period” on 31st  December 2020, they will not fall under the Withdrawal Agreement.

Therefore, from January 1st if you wish to employ EU staff, as you would for most other nationalities in the world, you will need to sponsor their work visa to come work in the UK.

Sponsoring a work visa is not a breeze:

  • Employers might need to obtain a Sponsor Licence

First of all, if you have never employed anyone needing a visa, you may now not be permitted to do so by the Home Office. Your company will need to apply for a Sponsor Licence. Different criteria will be taken into account for you to be able to receive the licence, such as making sure that the business is a well-run UK company and that it has never acted in dishonesty.

If you might require hiring outside of the UK after the end of the transition period, we would advise for you to consider applying for a Sponsor Licence ASAP as, in the current times, it may take an average of 2 months to be granted one.

  • Each visa sponsoring can cost around £1,5K

Not only is the sponsor system bureaucratic and time consuming but it is also very costly. It quickly proves much cheaper to incentivise existing staff to stay with your business than having to sponsor new candidate.

Due to covid-19 and the terrible impact it has had on the economy, we are currently seeing massive redundancies and spike in unemployment. However, in deciding whether you should reduce your workforce, employers should keep in mind the cost of re-employing if their staff currently consist of largely EU citizens.

We would advise employers to set up a Brexit Team which would be in charge of researching its general impact on the company, including how it will affect its workforce. They should produce a good audit of your current workforce in order to understand the proportion of EU staff,  consider whether the typical vacancies arising in your business will qualify under the new requirements for job titles that can be sponsored (see below), and what this might mean financially for the company in the future.

Lastly, if your company aims to hire what could presumably be EU staff at the start of the next year, you might wish to consider starting recruiting now instead in order to avoid any additional costs such as visas.

  • Only certain types of jobs can be “sponsored”.

There will be significant changes to the immigration rules from next year, however similarly to what is currently in force, staff requiring a visa will need to prove their ability to speak English.

The visa system will still be based on points, and future employees will need to get at least 70 to be eligible. Not all jobs can be sponsored, employers will only be able to sponsor jobs for individuals with the appropriate skill level (RQF 3 level) and which are paid a minimum salary of around 25K per year.

The criteria needed to enable an EU candidate to work for your company raise many different issues, a key one being that the skills requirements for sponsorship may be very far from your current EU workforce job duties raising a skills gap risk impacting on your workforce recruitment and retention strategies.

In one of its recent policies, the government stated: “We need to shift the focus of our economy away from reliance on cheap labour from Europe and instead concentrate on investment in technology and automation. Employers will need to adjust”. This will likely at least in the short term and COVID19 aside, prove very problematic for industries such as hospitality or construction, who rely heavily on EU employees.

Register here to join our free webinar on 24th November at 11am for clarity on:

  • The right to work after the transition period
  • What your EU workforce in the UK need to apply for to be able to work
  • What Brexit may mean for existing UK employment law
  • Which new laws can be expected to change employment practices in 2021.

Furlough Extension – more support for businesses announced 5 November 2020

On 5 November 2020, the Chancellor, Rishi Sunak, announced that the Coronavirus Job Retention Scheme (also known as the furlough scheme) will remain open until 31 March 2021. For claim periods running to January 2021, employees will receive 80% of their usual salary for hours not worked, up to a maximum of £2,500 per month, hence the scheme is more generous than the scheme running in September and October. The percentage may be reviewed for February and March.

Full guidance is due to be published next week, on 10 November 2020. From the HMRC Policy Paper, here is a summary of what we know so far:

  • employers can claim even if they, or the relevant employees, had not previously used the CJRS.
  • the furlough will continue to be flexible, i.e. employees can continue to do some work.
  • employees who have previously been furloughed continue to have their reference pay and hours based on the existing furlough calculations (as under the old scheme). Employees who have not previously been furloughed will have a different pay/hours reference period. Full guidance will be provided on 10 November, but broadly the pay is based on 80% of the wages payable in the last pay period ending on or before 30 October 2020 (for those on fixed wages), or 80% of the average payable between the start date of their employment or 6 April 2020 (whichever is later) and the day before their CJRS extension furlough periods begins (for those on variable wages).
  • employees can be furloughed if they are shielding in line with public health guidance (or need to stay at home with someone who is shielding). That does not, of course, mean they have to be furloughed.
  • employees that were employed and on the payroll on 23 September 2020 who were made redundant or stopped working for their employer after that date can be re-employed and claimed for.
  • the Job Support Scheme and the Job Retention Bonus have been put on hold (for now).

This news will come as a major relief to the UK’s employers, and the extension of the scheme until at least March shows a welcome long-term commitment to supporting businesses through this phase of the crisis. It will give business leaders the financial assurance and time they need to plan and weigh up their options as they look beyond this lockdown with a view to reopening, in some capacity, for the festive period. As a result of the announcement, the planned Job Support Scheme will essentially be replaced by the extended furlough scheme for the time being.

Now that businesses have this commitment from the Chancellor, a period of stability is sorely needed. UK companies have been through a turbulent period and government support has at times been changed at the last minute and announced without sufficient information for businesses. We need to see a Treasury Direction – ideally this week – to enshrine the new plan and give employers the information they need. From here, businesses should have a solid foothold to firm up their plans for the remainder of the year and looking ahead to 2021.

Coronavirus Job Retention Scheme and back to Furlough – what does it all mean for your business

In an unexpected development and as part of his announcement that there will be a new lockdown in England between 5 November and 2 December, the Prime Minister confirmed late on Saturday 31 October that the Coronavirus Job Retention Scheme (CJRS) will be extended until December rather than closed on 31 October as originally planned.

The new Job Support Scheme (JSS) essentially comprises two separate schemes, the JSS Open and JSS Closed.  These schemes were not set up to be mutually exclusive, although measures exist to prevent claims in respect of the same employees for the same days. The JSS was the government’s replacement wage support scheme, had been set to launch on 1 November, with the government publishing 11 detailed guidance notes on the evening of 30 October to help employers in administering the same. This scheme has now been postponed until the extended CJRS ends.

At the current time, we only have brief details on how the extended CJRS will work. Whilst the government has stated in its briefing note to MPs that additional guidance will be provided shortly in the form of ‘lockdown legislation’ and a Treasury Direction, many employers are going to need to take urgent and immediate decisions in relation to their workforces.

We summarise below the key aspects of the extended CJRS and answer some of the key questions employers are likely to have.

Key points:

  • The CJRS will now remain open until December and will not close, as originally planned, on 31 October. The exact end date is currently unknown but it is perhaps likely to coincide with the proposed ending of the new lockdown in England on 2 December. The government has confirmed that there will be no gap in eligibility for support between the previously announced end-date of the CJRS and this extension.
  • The introduction of the JSS (both the Open and Closed schemes) will be postponed ‘until the CJRS ends.’  Crucially, this keeps the door open for a further CJRS extension, which may happen if Westminster bow to pressure from the devolved nations.
  • The level of grant under the extended CJRS will mirror levels available to employers under the original CJRS in August. This means that the government will pay up to 80 per cent of an employee’s normal pay up to a cap of £2,500 and employers will be responsible only for National Insurance Contributions and pension contributions. As with the original CJRS, employers are still able to choose to top up employee wages above the scheme grant at their own expense if they wish.
  • Given the previous scaling back of the CJRS (in October the government contribution was limited to 60 per cent of normal pay) and the acknowledged reduced level of support under both the JSS Open and Closed, the extended CJRS is more generous to employers, particularly those able to pivot quickly and communicate effectively with their staff in response to the last minute switch from the JSS.
  • Importantly, to access the extended scheme, neither the employer nor the employee needs to have previously used the CJRS. To be eligible, employees merely need to have an up to date furlough agreement in writing and have been on an employer’s PAYE payroll before midnight on 30 October (with a Real Time Information (RTI) submission notifying payment for that employee to HMRC having been made on or before 30 October). This is a significant change to the original CJRS, where the vast majority of employees had to have been furloughed for a period of at least 3 consecutive weeks ending on or before 30 June to enjoy continued access to the scheme through July to the end of October.
  • The extended scheme allows employers to rehire employees who have been made redundant and put them on furlough (as was the case in certain circumstances under the original CJRS). However there are moral, ethical and employment law implications to rehiring employees so employers considering this should give this careful thought and seek advice from Lexleyton.
  • Flexible furloughing will continue to be an option in addition to full-time furloughing so employees will be able to work some of their hours (and be paid for this by their employer) and receive furlough pay for unworked hours. Calculations determining usual hours and worked hours will broadly follow the same methodology as under the original CJRS.
  • The government expects that publicly funded organisations will not use the extended scheme, as was the case for the original CJRS, but partially publicly funded organisations may be eligible where their private revenues have been disrupted. All other eligibility requirements will continue to apply to these employers.
  • The extended CJRS will operate as the original CJRS did, with businesses being paid upfront (as opposed to in arrears under the JSS) to cover wage costs. The government has noted, however, that there will be a short period where the legal terms of the extended scheme are changed and systems updated in which businesses will be paid in arrears.

Points for employers to consider

  • Most businesses will have been planning workforce changes to dovetail with the original 31 October end date for the CJRS and the introduction of the JSS from 1 November. These plans will need to be revised given the extension of the CJRS and in most cases, urgent communications will be required with employees. The nature of this communication will vary depending on what plans and communications the employer had already put in place.
  • Employers with staff still on furlough and/ or flexible furlough may simply want to extend these existing furlough arrangements through until December. Many existing furlough agreements will be drafted to come to an end either on the expiry of the CJRS or on 31 October. Given previous issues under the original CJRS as to how to obtain and document employee agreement to CJRS terms, it would be sensible to get relevant employees to return signed letters indicating their agreement to an extension (or an appropriate collective agreement with any recognised trade union) or, at least, to respond by email confirming their agreement to remain on furlough until December on existing furlough terms. This will be easier if the extension to furlough is on the same terms as up to 31 October.  Any changes in furlough conditions must be agreed in writing.
  • Employers who have topped up pay throughout any previous furlough arrangements may want to extend furlough arrangements but may need to scale back or remove the top up. In this instance, employee consent to any such changes may be required, depending on the wording of the furlough agreement – in which case employers should seek the employee’s consent to the change urgently.
  • Some employers may have already put in place appropriate JSS (Open) temporary working agreements with their employees to commence on 1 November. In such cases, employers should now communicate with their employees about the extension of the CJRS (and that the JSS has been postponed) and, if appropriate, ask them to agree to be furloughed until December instead. Any such communication could confirm any flexible furlough arrangements that might be put in place (if there is some work you want the employees to perform) and point out that the arrangements will be more generous through November than they would have been under the JSS (subject to any top that you may have planned to offer under the JSS). As per the above, employers should seek, obtain and record employee agreement to this change (whether that be in writing, through collective agreement or by email).
  • There may be other cases where employees have not been on furlough and are not signed up to a JSS temporary working agreement. This might be, for example, where an employee was precluded from being furloughed between July to October as they had not been furloughed for 3 consecutive weeks by the end of June. If you are now considering furloughing any such employees up until December, it will be important to enter into the more detailed furlough agreement that you have used for other furloughed employees.

It's not an easy time to own or operate a business. Managing people in times of crisis is a challenge which can be turned into opportunity. Book a free consultation with Lexleyton to find out how we can help.

Menopause at work: it’s prime time to break the taboo

World Menopause Day is held every year on the 18th of October, with its purpose being to raise awareness of the menopause, and the support options available to improve health and wellbeing.

So what is menopause?

It’s a natural part of ageing that usually occurs between 45 and 55 years of age.

All women will be affected differently, but the main symptoms are:

  • insomnia and night sweats
  • mood swings
  • feeling anxious and panic attacks
  • hot flushes
  • struggling to remember things, concentrate and focus
  • irregular periods which can become heavier
  • aches and pains including muscle and joint stiffness
  • urinary problems
  • headaches including migraines

How will the menopause impact your employees?

With the population living longer (1 out of 3 British workers are over 50) and with more women working than ever before, there is no doubt that the menopause will affect a considerable amount of your employees.

The symptoms are varied and the impact of menopause on staff will differ from one person to the next. Loss of sleep, for example, can reduce an individual’s ability to concentrate and stay focused. Heavy periods can be both very painful and can make moving around difficult and stressful. Hot flushes will raise an individual’s temperature, and can induce headaches and dizziness. Irritability and mood swings can be distressing and could affect a female employees relationships with her colleagues as well as impacting day to day work.  Because sadly, there is still such a stigma around the whole subject of menopause, employees going through are not only very likely to do so in silence will be prone to feeling embarrassed and isolated, with there being significant evidence of the onset of menopause leading to the development or exacerbation of mental health issues.

Suffering from the wide range of potential menopause symptoms might mean that your female employees experiencing it are forced to take sick leave more frequently. Indeed, it is estimated that 14 million working days are lost to the menopause each year in the UK. If you do nothing to support this issue in your workplace, those absences could prove costly to your business. Given that very severe symptoms may render women incapable of working, lack of proactivity around this issue could mean losing some of your best and most experienced people and having to recruit and train new staff.

Do you have any legal responsibilities toward staff going through the menopause?

The Health and Safety at Work Act 1974 requires employers to ensure the health, safety and welfare of their employees by conducting risk assessments which should include any specific risks to menopausal women.

Even though menopause is not a protected characteristic under the Equality Act 2010, judges have found that women undergoing menopause could have a claim under sex and/or age discrimination or even disability discrimination is some severe cases.  To reduce risk to your business, aside from doing what is right for your employees, it is vital that you ensure that your employees are not being “less favourably treated”, and in some cases, they might be entitled to reasonable adjustments being made to accommodate their condition.

So how can you better support employees going through menopause?

Pregnancy, its effect on women’s bodies and hormones are commonplace topics in HR policy and equality legislation, but the same is unfortunately not true of the menopause.

Breaking stigma around issues like the menopause and mental health is the only way to start  conversations which will allow people of all ages to achieve their true potential at work. A study conducted by the former Business Champion Dr Rose Altmann (2015) showed that 67% of employees going through menopause did not want to share it with their employers for fear that they would be seen as “too old to do the job”, and because they felt that unconscious bias might result in their careers being disadvantaged in some way. That is a very sad statistic, that your business could and should think hard about doing something about.

Proactive steps can your business take:

  • Change your culture: train your managers and colleagues on what menopause is and how it can affect staff.
  • Have a Menopause policy in your employee oHandbook where you highlight your support for staff going through menopause.
  • Allow flexible working patterns and adequate rest breaks for staff suffering from menopause.
  • Make sure staff going through menopause have easy access to appropriate toilet facilities.
  • Give access to staff undergoing menopause to ventilation and suitable uniforms.

If a free consultation around any of the issues raised here or about any aspect of HR and employment law impacting your business would help, please don’t hesitate to reach out to us at https://lexleyton.co.uk/free-consultation/ .

Parental Bereavement Leave – Doing the right thing, the right way.

Lucy Herd lost her son Jack in a tragic accident in 2010.  After her husband returned to work after only 3 days, Lucy spent the next ten years campaigning for a right for all parents to have the legal right to take time off when they lose a child.

A decade of campaigning and Lucy’s establishment of Jack’s Rainbow charity to fight for change, finally led to success when in April 2020, the UK government introduced the legal right to Parental Bereavement leave. It means that those parents who lose a child aged under 18 or a baby after 24 weeks gestation, have a legal right to two weeks’ statutory leave.

This right is one that no employee ever wants to have to access, but sadly the following statistics from the Child Bereavement Trust show the extent of the tragedies that befall employees and colleagues every day:

In 2017 in the UK*:

  • 3200 babies were stillborn – that’s around 9 babies every day
  • 6,608 babies and children under 5 died – that’s more than 18 every day
  • 869 school aged children (5-16 year-olds) died
  • 7653 babies, children and young people (under the age of 18) died – that’s 21 tragic losses, every single day

*Source: Child Bereavement UK: Office for National Statistics; National Records of Scotland; Northern Ireland Statistics and Research Agency

It’s at the most challenging times that employees face,  empathetic and considerate leaders, managers and companies reach out and enable support for their workforce. Being proactive and upfront about what support you will provide to an employee is not just good practice but also demonstrates that you have considered the range of potential challenges that your employees may have to face, including one of the most significant and terrible events that could ever happen to a parent.

Taking a holistic approach to the development and communication of your key employee wellbeing and support policies will enable your business to develop a coherent and effective framework to help you manage your support and response to employee personal challenges, and may assist in  reducing absence and increasing staff retention – having worked in HR, I know that how you treat an employee during a personal crisis can be the ‘glue’ that retains their loyalty to you as an employee, irrespective of their pay or terms and conditions. No one knows how they will react in such terrible circumstances but doing what you can to reduce an employee’s  stress and anxiety about their absence from and return to the workplace is not just the right thing to do for them as human being, it is the right thing to do for your business.

A Parental Bereavement Leave Policy is quite different to a Compassionate Leave Policy. Statutory Bereavement leave has two aspects : a right to two weeks’ statutory leave  for all employees and a right to two weeks paid statutory leave if your employee has 26 weeks’ service and their pay meets the lower earnings limit. The current statutory rates is statutory pay £151.20.  

Having a Parental Bereavement Leave Policy in place so that everyone knows what to do and how you will support your employee is vital to make things as simple as possible for the employee and employer at such a stressful time and to avoid clumsy communications or decisions. A 2018 survey by Sands, consulting over 2,500 bereaved parents, found that only 1 in 5 parents had been offered or given any support by their employer on their return to work after the death of their baby. Without a Parental Bereavement Leave Policy to provide a necessary framework you might well get right should you be faced with having to support an employee at such an upsetting and challenging time,  but having a clear policy is the best way to ensure will get it right from the start.

Your manager can see you now – mental health challenges in the ‘new world’ of work.

The 10th October is World Mental Health Day.  In this whole new chaotic and ever changing world, where even the most resilient amongst us are having to adapt and deal with ever changing rules and challenges, we consider the toll lockdown, isolation and loneliness are having on employees metal health and the support that can be provided.

The Office for National Statistics found that the rate of depression in adults doubled during June 2020 compared to at the start of lockdown, with financial worries ranking highly on the factors influencing symptoms.   With significant numbers of employees being furloughed and newspaper headlines warning of a deep recession and wide scale redundancies, there is currently much uncertainty for employees to process.  Quoted in the October 2020 Issue of People Management magazine, Dr Helena Boschi, an expert in applied neuroscience and author of  ‘Why we do what we do: understanding our brain to get the best out of ourselves and others’ stated “Our brains are naturally designed to hate anything uncertain – it’s a guessing machine that makes a rapid assessment of what’s dangerous and is predisposed to negative bias.”  On the basis of the above research, we can conclude that the current uncertainty around the world of work, the ever changing rules and confusion over acceptable home and work life practices must create a risk for the metal health of our teams.

What level of legal protection is there for mental health conditions in the UK?

In the UK the law extends protection to mental health conditions under the Equality Act 2010 where there exists a substantial adverse effect on the individual’s ability to carry out their normal day to day activities.

In 2010, the Employment Appeal Tribunal distinguished between mental impairments that were serious enough to attract legal protection, such as clinical depression, from diagnoses such as low mood, which were described as a reaction to adverse life effects and not protected. A decade on from that distinction being drawn, the line of legal protection remains the same.

Mental health conditions and support

Although for many their conditions may not necessarily attract legal protection, this no reason for employers to ignore the impact of metal health issues or for employees to suffer in silence.  Perhaps one glimmer of hope to come out of the pandemic, is the increased dialogue and publicity surrounding mental health issues meaning employees may possibly be more willing to come forward for support if they are experiencing difficulties before matters escalate.

There are many organisations offering resources to support with metal health issues and the charity MIND is one example of an organisation raising awareness on varying types on mental health condition.  They also have a page for emergency support  . SAMH in Scotland also provide useful guidance, which is worth reading for anyone looking to improve their own knowledge.

What are the next steps for employers?

Mental Health Awareness day is a good opportunity to reflect on the support being offered to your employees in this area.  Leaders should ask themselves: Are managers trained in how to identify and support with mental issues? Do Managers appreciate the importance of regular communication and discussion with employees (both present at work and working remotely)?  Who can employees talk to if they have concerns, for example could mental health first aiders be introduced?

How can we help?

LexLeyton is proud to partner with some wonderful businesses and associations to share knowledge and educate our clients on the expanding parameters of mental health.  Whether it be mental health policies, training, mindfulness sessions or wellbeing strategies, we recognise the dynamics in every workplace and the importance of support that is right for your unique context. If a free consultation could help support the further development of your employee wellbeing strategy or a discussion around what we can do to help, please reach out to us at legal@lexleyton.co.uk

Lay-Off & Short-Time Working

The term ‘lay-off is often confused with ‘’redundancy’’ and it’s very important to know the difference.  ‘Lay-off’  is a temporary measure where an employer provides employees with no work (and so no pay) for a period of time while still retaining them as employees.

A shortage of work

If an employer is experiencing a temporary shortage of work, as an alternative to redundancy, it may decide to lay employees off temporarily.

A lay-off is where there is no work provided to the employees and in consequence they are paid no salary or wages. An alternative to lay-off is short-time working, where employees’ working hours are reduced and in consequence their pay is reduced in proportion.

A contractual right or agreement

An employer cannot lay employees off or put them on short-time working unless the contract of employment states that there is a right for the employer to do so or, alternatively, employees specifically agree to be laid off or placed on short-time working.

Where an employer needs to deal with an unexpected downturn in its business or unforeseen circumstances but does not have a contractual right to lay employees off or put them on short-time working, the employer may wish to consult with them (and with trade unions or other representatives, where appropriate) to try to agree a temporary reduction in pay and benefits.

Where the alternative is closure and job losses, employees may be willing to reach an agreement.

If  an  employer  lays off an employee or  puts them on short-time working in the  absence of a contractual right to do so, the employer will likely be in fundamental breach of contract.

A notice of intention to claim a redundancy payment

If a period of lay-off lasts for more than 4 consecutive weeks or more than 6 weeks in any 13-week period, employees with two years' continuous service are entitled to serve “notice of intention to claim” to terminate their employment and claim a redundancy payment.  The same applies to short- time working where the employees’ remuneration is reduced by more than half for the same periods.

If this happens, the employer can:

  • Accept that a redundancy situation exists and pay the redundancy payment or,
  • Serve a counter-notice stating that it expects to be able to provide the employee with at least 13 weeks’ continuous work. If the employee does not withdraw his claim to a redundancy payment the matter is referred to an Employment Tribunal.

Guarantee Payments

During a period of lay-off or short time working, an employee may be entitled to a statutory guarantee payment (SGP) on up to 5 "workless days" in a three-month period. A "workless day" is a full day during which the employee would normally be required to work in accordance with their contract but is not provided with work by their employer

An employee will not be entitled to an SGP where:

  • They do not have at least one month's continuous employment
  • The workless day is due to industrial action.
  • The employee has unreasonably refused an offer of alternative work.
  • The employee does not comply with reasonable requirements imposed by their employer with a view to ensuring that their services are available.

If a free consultation could help you work through what options might be available to your business as an alternative to redundancy please reach out to us at legal@lexleyton.co.uk

Coronavirus Job Retention Scheme claims: disclosing and fixing mistakes with HMRC

The Coronavirus Job Retention Scheme (‘CJRS’) will end on 31st October 2020. Despite recent ‘kite-flying’ suggesting that it may be extended in certain industries, such as events or leisure, that deadline remains hard and is approaching at speed.

The scheme was introduced at an incredible pace, has frequently evolved and is not without its complexities even now. Many employers have struggled in the correct application of the scheme, often resulting in accidental under-/over-claims being made or overpayments or underpayments to employees.

Common problem areas include:

  • Claiming for days not worked as part of a ‘claim period’;
  • Claiming for days when employees were signed off sick;
  • Identifying which areas of pay constituted ‘regular payments’ such as overtime, commission and fees when calculating how much to claim;
  • ‘Hangover’ problems caused by the fact that until the 5th of June, it was not possible to correct errors in a previous claim period.

HMRC have made regular noise around perceived abuse of the CJRS. The government has said that up to £3.5bn in CJRS payments may have been fraudulently claimed or paid out in error https://www.bbc.co.uk/news/business-54066815 and arrests have already been made of those suspected of defrauding the UK taxpayer and HMRC.

HMRC has the power to recover amounts of CJRS grants that have been incorrectly claimed. If an employer has inadvertently claimed excessively and fails to notify HMRC of this, penalties may be levied.  

The penalties operate on a tiered-system based on knowledge of the error and whether the employer has come forward to report to HMRC or not. If you knew you were not entitled to your grant and did not tell HMRC, that failure will be treated as deliberate and concealed.  In that event HRMC has authority to charge  a penalty of up to 100% on the amount of the CJRS grant that you were not entitled to receive or keep.

A significant number of employers will have realised that they have made errors in the CJRS claims.   Any problems or errors can be identified and there is now a mechanism for correcting them, thereby avoiding any penalties.

In the case of an under-claim, whilst there would be no penalty from HMRC, the employer would have failed make the best use of the available benefits of the scheme – so an opportunity potentially to claim some cash.

If an employer has  incorrectly claimed a CJRS grant (and have not repaid it in the case of an overpayment), HMRC must be notified, within the ‘notification period’ which ends on (and is the later of)

  • 90 days after the relevant grant was received (if this was in excess of the correct amount);
  • 90 days after the date circumstances changed so that you were no longer entitled to the CJRS grant; or
  • 20th October 2020.

The notification and correction can be submitted the next CJRS claim is being made.  Otherwise, the notification of the over-claim must be done separately, via the CJRS portal.

Once the notification is made to HMRC, any amount over- or under-paid will need to be assessed directly by them and remedied if appropriate.

The crucial lesson in all of this is: even if employers feel they have acted correctly, it’s important to consider doing a double check of the historic amounts claimed under the CJRS. 

Check your calculations now, and certainly well in advance of the 20th of October.


Fathers in focus – “We are in this together”.

We keep hearing this phrase ‘we are in this together’, and it is true.

As lockdown progressed through the weeks and more and more of the colleagues, clients and contacts I spoke with via video conference had the pleasure of meeting my children, I wondered about the titular phrase.

Our obligations to our community are all the same; maintain social distancing, abstaining from seeing loved ones and adhering to the other measures designed to minimise transmission of Covid-19. However, it is less clear whether the impact on our personal lives has been doled out in equal measure.  With Father’s Day 2020 approaching on 21 June, I asked some other working dads to share their stories of life before lockdown, how they have handled the past 3-4 months and whether that has created any aspirations for them in future.

Each of these working dads has faced the challenge of balancing family and work life that many others will have also experienced since March. These stories put into real words some of those challenges; from health and financial wellbeing to increasing parental responsibility. I am indebted to them for their openness and candour. It is my hope that their succinct stories will allow others to reflect and to promote mutual respect and understanding.  Time to put fathers in focus.

Gary, Customer Relationship Manager

Before the pandemic, how did you find juggling your responsibilities as a father (or father-to-be) and working life?

As a relatively new father, I found it difficult to maintain a healthy work-life balance. Each day I would leave the house before my daughter woke and return just in time for her to get a bath and go to bed. I have a fairly demanding job, in a business which operates 24/7 and managing a team which works 7 days per week - this can make it difficult to switch off when out of the office. Ultimately, I wasn't spending as much quality time with my daughter as I wanted to and was overly reliant on my wife to make plans.

How have you found being a working father during the coronavirus pandemic?

Personally I feel like I have been a better father during this period. I have been working remotely for a couple of months now and this has given me time back that would previously have been spent on my commute. I've enjoyed reinvesting this time towards Jessica and my own physical health. From feeding her meals to simply playing with her for a few minutes while I take a break from the laptop. I feel like our relationship is growing quickly than it would do otherwise while my wife is also benefitting from the support.

What are your aspiration for the future, once lockdown is lifted, regarding your work-life balance?

Once lockdown is lifted I plan to ensure the 'new normal' includes more frequent remote working. I am fortunate that my employer is generally flexible towards this and has already demonstrated an appetite to encourage this when we return to normality. The additional time I have spent with my daughter during this period has meant I feel like I am doing a better job as a father while also committing time to look after myself and my wife. This in turn, has led to a positive frame of mind and improved the quality of my work.

Gordon, Architect

Before the pandemic, how did you find juggling your responsibilities as a father (or father-to-be) and working life?

Juggling responsibilities between work and the needs of my pregnant wife was quite challenging. I would try and make sure my wife was always top priority. However, this is quite difficult in a corporate world and explaining this to your boss or a client - there is very little sympathy. I never did complain about it and always managed to find a way to keep everyone happy.  

How have you found being a working father during the coronavirus pandemic?

I have actually enjoyed the experience. Our new born arrived in mid-April – a few weeks into the lockdown. It has been nice to spend much more quality time than I would have probably had in a normal situation. Working from home means I get an extra 2 hours back to spend precious time with my son - that would normally be spent on my commute.

What are your aspiration for the future, once lockdown is lifted, regarding your work-life balance?

I have always tried to be a great believer that although careers goals and aspirations can be considered important, Family always has to come first. The current situation that we find ourselves in, has really emphasised this attitude. As my late gran always said. “Work to Live, don’t ever Live to Work"

Pearse, Dentist and Business Owner

 Before the pandemic, how did you find juggling your responsibilities as a father (or father-to-be) and working life?

Finding the balance between work and home life prior to the pandemic has always been challenging. I’m luckier than most because I have a short commute to work and have a half day once a week so I can spend time with my daughter. Despite this my business takes up the majority of the rest of my time including some time at the weekends to catch up. After a busy week at work it can be hard to switch off and drop back into parent mode. 

 How have you found being a working father during the coronavirus pandemic?

Working has been pretty much impossible during the pandemic which has given me so much more time with my daughter and wife. Although it can be stressful in lock down with a toddler, we have had so much fun together. When we look back at the last 2 or 3 months I think the overriding sentiment will be one of happiness and gratefulness; firstly that we have all remained healthy and also that we have had so much quality time together. Our daughter has grown and progressed so much over this time period and it’s been a privilege to be there to experience it all first-hand. When I've had to work it’s been difficult to get uninterrupted periods to focus however I’m lucky enough that my workload has been relatively light. I think if I had to work normal hours if would have been unmanageable.

What are your aspiration for the future, once lock down is lifted, regarding your work-life balance?

I would like to try and find a better work/life balance after lock down has been lifted. I’ve been lucky that I’ve had almost 3 months of time with my daughter which probably equates to 1 year of weekends which is incredible.  I would like to continue to finding more time to spend with her during these precious years.

Andrew, Strategic Planner

Before the pandemic, how did you find juggling your responsibilities as a father (or father-to-be) and working life?

Pre-lockdown looking back I feel I had a healthy routine with work/family life. Our childcare for the kids (4 and 1) involved a mixture of nursery and grandparents which meant I could go to work and also have some time to myself to go to the gym, cinema, out for dinner with my wife etc.

How have you found being a working father during the coronavirus pandemic?

Challenging. My wife and I both work full-time and still are, however we now have to plan our working weeks around also watching the kids and entertaining them throughout the day as we don’t have an alternative. As difficult as this is I am spending much more time with them which is great as we are building an even stronger relationship.

What are your aspiration for the future, once lockdown is lifted, regarding your work-life balance?

Once lockdown is lifted there will no doubt still be many restrictions in place and working from home will almost become the new norm. I don’t actually mind this as I like getting to see my kids anytime throughout the day and get to see them develop and reach different milestones which I might have missed out on if I had been at work all week.

Donnie, Senior Software Engineer

Before the pandemic, how did you find juggling your responsibilities as a father (or father-to-be) and working life?

Careful planning and an understanding employer helped me manage a successful work/family balance.  Where possible I always try and work around the kids to make sure I missed none of those significant childhood milestones. 

How have you found being a working father during the coronavirus pandemic?

A total nightmare. Looking after two young children - 5 and 7 - while my wife worked in a covid hospital ward has led to a set of interesting challenges that I did not expect to encounter. The ability to fully concentrate on anything for more than 10 minutes without interruption during the day has been almost impossible. 

What are your aspiration for the future, once lockdown is lifted, regarding your work-life balance?

I will throw a party once the schools return! On a serious note I do think that I had a great work/life balance pre covid and I would like to return to that or as close as possible. 

Global Day of Parents – Thinking Family Friendly

 Day of

The UN has designated 1 June the Global Day of Parents as an opportunity “to appreciate all parents for their selfless commitment to children and their lifelong sacrifice towards nurturing this relationship”.  Unfortunately such appreciation doesn’t come with a guarantee of an uninterrupted night’s sleep or a break from the demands of home schooling, which might be more welcomed by working parents currently juggling balancing work and child care through the lockdown. It is however an opportunity for businesses to think about their family friendly policies and how these can benefit both employer and employee.

Even before the sweeping public health safeguards introduced by the Government came into force, many employers were looking at ways to set themselves apart from the crowd and attract new talent, and this included promoting their family friendly policies, including agile and flexible working practices. 

The coronavirus pandemic forced companies to switch to remote working very quickly, and the ability to do this was critical in allowing parts of the economy to survive. As we start to emerge from the strictest measures of the lockdown, there is increasing talk of ‘the new normal’ and especially what this might look like for future working practices.

Facebook has announced that it expects half of its workforce to move to working outside of its offices, Twitter said that its employees could work at home “forever” if they wish, whilst over in New Zealand, the Prime Minster Jacinda Adern has talked about moving to a four day working week. 

Work-life balance and flexibility tend to feature highly on attributes that might attract employees to a certain company, and this is especially true for working parents and those with other caring responsibilities. However, a move to remote working also means that there is the potential for businesses to save money on expensive office space. Law firm Slater and Gordon has announced that it will move out of its London offices when the lease ends in September and instead look to find smaller office space suitable for hosting meetings with staff working remotely.

Research has already shown that creating enabling and flexible environments can enhance productivity, creativity and wellbeing in staff, and the internet is awash with articles of the positive feedback coming from employees about their new at home working arrangements.

Some studies have also been able to demonstrate that family friendly policies have led to a reduction in absenteeism and a lower turnover of staff, meaning cost savings for employers. These findings reflect that having flexible and family friendly policies can help in building and maintaining a sustainable business.

The lasting effects of the current pandemic remain to be seen but certainly it is forcing businesses to rethink the way they work. Of course, what we must remember is this is not ‘normal’ home working and, for the majority, it was imposed without the opportunity for proper planning. For working parents it has also meant trying to get in as many working hours as possible whilst teaching maths or meeting never ending snack demands; it just isn’t reflective of real life. Whilst the current lockdown has been something of a dress rehearsal for different ways of working, sustainable businesses looking to make a more permanent move to flexible working practices will need to think about ensuring that they have the right tools, structure and culture to ensure its success.

LexLeyton can help businesses to create strategies for developing and maintaining family friendly policies, including flexible and agile working plans, to benefit culture and sustainable growth. Contact us for a free consultation and to discuss how we can help.

Why your company needs unconscious bias training

unconscious bias training

Today is World Day for Cultural Diversity, for Dialogue and Development. It provides an opportunity to reflect on our understanding of the value of cultural diversity and the benefits of learning to “live together” better.

It’s also a good time to examine why ‘unconscious bias’  is one of the key reasons why diversity is often not achieved in the workplace.

The "unconscious" consists of the processes of the mind which occur automatically and are not available to introspection.

According to Professor Timothy Wilson’s studies and book “Strangers to ourselves”, we consciously process one piece of information for every 275,000 pieces of information we unconsciously process.

If we had to process all of the information that we encountered during a day, we would not be able to make any rational decisions as our brain would be overloaded!

Unconscious bias, therefore, happens as a result of our brain taking a short cut when faced with an option or decision, using our past knowledge to make assumptions to inform that decision. As individuals, our biases are influenced by a huge range of factors including our background, cultural environment and personal experiences.

  • How does unconscious bias impact decisions made in the workplace?

The Covid-19 crisis has in in some companies, thrown a light on long held negative assumptions around the ability of individuals, whole departments or in many cases whole businesses being able to productively and effectively work at home. Of course the experience of remote working has been hugely different across the range of companies and industries that have been thrown into conducting a real time experiment on managing their business and workforce in a very different way and before COVID-19, many employers and managers would not have entertained a request to work from home, purely on the basis of an unconscious bias against this way of working.

Most judgements and opinions we hold reflect an element of subjectivity, which is why unconscious bias can influence almost all of our decisions.

In the workplace, unconscious bias impacts:

  • Attraction and recruitment
  • Salaries
  • Mentoring opportunities
  • Assigning work
  • Listening to ideas and suggestions.
  • Performance reviews
  • Determining policies
  • Treatment of customers
  • Promotions

If you’re hiring, promoting or giving more responsibilities to a specific individual  based on ‘gut feeling,’ you’re likely doing so on the basis of unconscious bias. When you are under pressure or lacking time, your brain will try to make the decision making process easier for you and favour things you are familiar with or that you prefer on an unconscious level.

For instance, you might hire someone because they remind you of someone (due to their physical appearance or where they studied) that has already been successful in your company or to yourself.

  • What would unconscious bias training achieve?

The objective of unconscious bias training is to raise awareness of biases in the workplace and should be designed to adjust automatic patterns of thinking, and ultimately eliminate discriminatory behaviours.

Imagine the kinds of things that would happen in the workplace if we lived in a world without unconscious bias!

  • The best person for the job would be hired (according to a study conducted by McKinsey & Company, picking the right person for a job can lead to someone being up to 800 times more productive).
  • People would be promoted solely as a result of performance.
  • Employees would feel they are treated fairly and retention would rise (according to research undertook by the Chartered Institute of Personnel and Development).

Overcoming unconscious bias is crucial to retaining and attracting great talent.  A Glassdoor survey found that, nowadays, a company’ culture and ethics are more valued than salary.

IBM and MIT professors Thomas Malone and Patrick J. McGovern have been studying innovation and collective intelligence. They realised that group intelligence is not equal to the combined intelligence of the individuals in the group, but instead, it is determined by each individual's different thought processes, their different social backgrounds and the proportion of women within the group.

According to a Forbes study, a diverse set of experiences and perspectives is crucial to

innovation and the development of new ideas.  Hiring employees that are able to challenge each other will not only boost productivity but will also give your company a competitive edge. According to McKinsey & Company research, companies in the top quartile for gender or racial and ethnic diversity are more likely to have financial returns above their national industry medians.  Aside from these enormous benefits, removing unconscious bias in the workplace would remove the risk to employers of expensive discrimination claims.

If your business is interested in exploring the benefits of addressing unconscious bias in the workplace please get in touch to discuss how our training can your business on its journey to a sustainable future.

How will employee family friendly policies play a role in navigating what could be a ‘new normal’ as we emerge from COVID-19?

Working parents are well used to the juggle of balancing work and child care, but a new level of difficulty was thrust upon them when the sweeping public health safeguards introduced by the Government in the face of the current pandemic saw schools and nurseries close. Many mums and dads will now be trying to work from home whilst simultaneously entertaining children, home-schooling and fulfilling the never ending snack demands.

The willingness of employers to show flexibility to their employees with caring responsibilities varies widely and the charity Working Families, dedicated to promoting work-life balance, estimates that the number of people getting in touch with its Legal Advice Service has quadrupled in comparison to the months prior to the lockdown. Reputational considerations should form part of any employer’s strategy during the lockdown, and how employees have been treated during this unprecedented time could have a lasting effect on how employers  are perceived by both employees and in the wider market long after the restrictions start to lift.

However even before the lockdown employers were increasingly looking at ways to make themselves stand out from the crowd and attract new talent, and this included promoting their family friendly policies.  Also, the government were consulting on whether employers should have a duty to consider if a job can be done flexibly. 

Work-life balance and flexibility tend to feature highly on attributes that might attract employees to a certain company, and this is especially true for working parents and those with other caring responsibilities.

A lot of companies might use the statutory position as their starting point, typically mirroring the various types of leave and pay provided for as a statutory minimum. However, the low take up of shared parental leave demonstrates that the statutory schemes are not always reflective of what a workforce might actually need or value. In today’s modern world families come in all shapes and sizes, with a variety of needs. Of course it might not always be possible to cater for everyone, but more creative employers are giving thought to what other family-friendly policies they might be able to offer. Insurance firm Zurich announced late last year a wide-ranging suite of family-friendly policies including additional support for parents whose children are born prematurely, paid leave to support through the IVF process and paid leave to support people through miscarriages.

Not all companies will be in a position to offer such generous policies, and a careful cost analysis would need to be carried out, however there are more cost neutral options, such as flexible or agile working arrangements, home working and job sharing that could be of huge help to working families. Even giving more thought to the culture and attitudes to work life balance could have a significant impact on how ‘family friendly’ your workplace really is.

Research also shows that creating enabling and flexible environments can enhance productivity, creativity and wellbeing in staff. Some studies have also been able to demonstrate that family friendly policies have led to a reduction in absenteeism and a lower turnover of staff, meaning cost savings for employers. These findings reflect that having flexible and family friendly policies can help in building and maintaining a sustainable business.

There is increasing talk of ‘the new normal’ when it comes to working practices once we start to emerge from the strictest phase of the current lockdown, with many predicting that work culture could change dramatically. Perhaps some of the family friendly policies mentioned above will become part of that ‘new normal’, but there is still plenty of room to think creatively if businesses want to mark themselves out as a family friendly employer. LexLeyton can help businesses to create strategies for developing and maintaining if you family friendly policies to benefit culture and sustainable growth. Contact us for a free consultation and to discuss how we can help.

Being faith-friendly – Employer’s guide to Ramadan

If recent weeks have shown us anything, it is the power of togetherness.  We have adapted and sacrificed for one another. We have adopted collective behaviour and demonstrated personal discipline. As a community we have supported those in need or less fortunate than ourselves.

The holy month of Ramadan commences on the evening of the 23rd of April and ends on the evening of the 23rd of May this year.. This is an Islamic festival which is observed by Muslims across the globe. Ramadhan lasts for a lunar month and during this time many Muslims refrain from eating or drinking during hours of daylight. There is more to fasting than may first appear. Muslims also adopt a mindset of caring for those in their community, supplying cooked food and essentials to those who struggle to provide for themselves. They pray for and support their neighbours. They pay fitrana for every member of their household; money to support charitable causes.

Whilst some Muslims typically seek to take time off work during Ramadan, many are likely to continue working during the month if they are able.

Fasting may effect productivity and concentration levels as well as increasing fatigue. It is important for employers to understand the challenges facing their employees during this time, many of whom may already have been significantly impacted by the effects (either related to their work or family contexts) of business and social response to the COVID -V19 pandemnic.This year will be very different for Muslim employees and as traditionally, communal activities and prayer are observed and encouraged. Due to the COVID-19 crisis, access to important individual and communal prayer facilities, quiet rooms and multi faith rooms have been largely suspended with these restrictions potentially negatively impacting on employee wellbeing during an already difficult period.

To support employees who are observing this festival employers should consider the following key areas

1. Accommodate flexible working

ACAS guidance and the ECHR Code of Practice suggest adopting a practical approach and discussing with the employee whether there are any temporary arrangements which could be put in place for the duration of Ramadan.

One way in which to do this is to offer employees who are observing Ramadhan the option to work flexibly, this could involve:

  • Holding meetings at more suitable times during the day;
  • Arrange working hours differently for the month – some staff may wish to start their day earlier or later or work through their lunch hours.

2. Rest breaks

Individuals observing the festival should be encouraged to take rest breaks where needed. They may also wish to practise their faith more during Ramadan than they do at other times of the year and employers should be sensitive to this, and try to accommodate requests to take more breaks during the day than would ordinarily be taken.

3. Annual leave requests

Employers may find that there is a high demand for annual leave from those who are observing the festival, particularly during the end of Ramadan which is marked by the festival of Eid. It is difficult for employees to plan in advance because Ramadan is based on the lunar calendar, so annual leave requests may be made at short notice.

Employers should ensure that they deal with annual leave requests in a fair manner and in line with the annual leave policy. Where it is not possible to grant leave, employers should provide reasoned, rational justifications for the refusal. In addition, where annual leave requests are granted for those observing the festival, employers should ensure that other employees do not suffer any detriment as a result.

4. Awareness, tolerance and understanding

Values such as awareness, tolerance and understanding are the cornerstone of nurturing a healthy employer/employee relationship. Employees will feel valued where employers try to understand what is important to them, whether that is in relation to their faith or otherwise.

Employers could introduce a clear policy on Ramadan, or better yet, on religious festivals generally, setting out what the expected employee standards are, and what employees observing religious festivals can expect in terms of support. Having such a policy should have an affirming impact on employees.

Some employers go a step further and proactively engage in recognising religious festivals with their workforce.

Being an open, accepting and considerate employer where you can show yourself as progressive in your thinking and approach will no doubt have a positive impact on the ethos of your organisation, and will help to ensure that you continue to attract a diverse and balanced workforce.

For employers wishing to know more, below is an image of the Ramadan timetable published by Glasgow Central Mosque for 2020, setting out prayer times and other key information. Muslims will fast during the daylight hours, between the times highlighted in turquoise. This information may vary depending on location.