Returning to Work?

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Employers in England are being encouraged to reopen their workplaces to staff who cannot work from home, while those in other parts of the UK are likely to be making plans ahead of similar moves. The guidelines are changing on a weekly basis, but here are eight challenges that have been identified by XpertHR, that you might need to consider, regarding bringing your staff back and keeping them all safe.

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Right to Work Checks Changed Due to Coronavirus Outbreak

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In light of the 2020 coronavirus outbreak, from 30 March 2020 as an employer you can adopt a revised process for checking right to work.

Government guidance confirms that a scanned copy or photograph of documents necessary to prove a right to work should be sent to you via an email or mobile app. A video call should then be arranged with the worker, where they should be asked to present their original documents to the camera. These documents should then be compared with the digital versions previously sent. The date of this check should be recorded and noted as “adjusted check undertaken on [insert date] due to COVID-19”.

If a prospective employee cannot produce any of the prescribed documents, you should consult the Home Office Employer Checking Service.

When the coronavirus crisis ends, the date of which is currently unknown, a retrospective check should be carried out on employees who started working for your company, or required a follow-up check, during these measures. This check will need to be carried out within eight weeks of the crisis ending and be marked “the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19.”

If during the retrospective check you find that the employee does not have the right to work in the UK, they should be dismissed immediately.

For organisations that have been deemed an essential business, a usual check can still be conducted, however the validity of documents check can be done via video link provided you have the original documents.

If an employee has a Biometric Residence Permit or has been granted ‘settled status’ under the EU Settlement Scheme, they can give you permission to check their details online.

If there are any other particular questions you have about these changes that you would like to discuss, please call me on 0118 940 3032 or click here to email me.

Statutory Sick Pay and Coronavirus (COVID-19)

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On 4 March 2020, the Prime Minister announced in Parliament that the Government will introduce, as part of its emergency coronavirus legislation, measures to allow statutory sick pay to be paid from the first day of sickness, rather than after three waiting days. The Government intends to apply this measure retrospectively from 13 March 2020.

The Government announced further measures in the Budget 2020 on 11 March 2020, namely that:

  • entitlement to statutory sick pay will temporarily extend to those who:
    • are unable to work because they have been advised to self-isolate, even if they do not have symptoms in effect from 13 March 2020 or
    • are caring for others in the same household who are displaying coronavirus symptoms and have been told to self-isolate
  • employers with fewer than 250 employees on 28 February 2020 will be refunded two weeks’ eligible statutory sick pay costs related to coronavirus, per employee
  • employers will have to keep sickness records but employees should not be required to provide a fit note
  • the Government will introduce an alternative to the fit note, whereby employees who are advised to self-isolate will be able to get a notification from NHS 111 that can be used as evidence for their absence during the coronavirus outbreak
  • the Government will set up a process for repaying statutory sick pay as soon as possible.

Evidence of Sickness

Current government guidance is that, to prevent the spread of coronavirus, individuals with flu-like symptoms should obtain medical advice from NHS 111 online and should not go to see their GP.

Most sickness absence policies allow for employees to self-certify absences of up to seven days. Where an employee who is absent for more than seven days advises that they have flu-like symptoms, the employer will need to make an exception to its normal requirement for medical evidence. Nevertheless, the employer should take all reasonable steps to verify the sickness absence. This could include requiring the employee to make regular telephone contact, and requiring the employee to explain what medical advice they have sought and followed. The employee could be asked to provide evidence where possible, but employers should act reasonably in what they require from employees in the circumstances.

In the Budget 2020, on 11 March 2020, the Chancellor announced that employees who are advised to self-isolate to prevent the spread of coronavirus will ‘soon’ be able to obtain an alternative to the fit note from the NHS 111 service.

For the purposes of determining eligibility for statutory sick pay, employers are able to set their own rules on what evidence they reasonably require of employees’ illness. Legislation does not require that the evidence is in the form of a fit note.

Rate of Statutory Sick Pay

When in force, the Social Security Benefits Up-rating Order 2020 (still in draft form) will increase the weekly rate of statutory sick pay from £94.25 to £95.85 from 6 April 2020. The lower earnings limit for national insurance purposes will increase from £118 to £120 per week from 6 April 2020.

Qualifying days are days on which the employee would usually be required to work. Employers and employees can agree between themselves what days should be qualifying days, as long as each week has at least one qualifying day. Qualifying days should not be defined by reference to the days on which the employee has been sick. 

Many employers define qualifying days as the same days the employee is expected to perform work under the contract of employment. Then the first three normal working days of sickness are qualifying days, but they do not attract payment of statutory sick pay.

If you need advice any further advice regarding your staff and Statutory Sick Pay, please do get in touch. Call me on 0118 940 3032 or click here to email me.

Help your Employees Return to Work Faster after Sickness Absence

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When a member of staff is off sick and you need medical advice on how to handle their return to work, many employers request a medical report from their GP. However, for various reasons it’s been found that getting a report from your employee’s GP may not provide the most relevant information for your business, and certainly isn’t the timeliest of procedures.

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IR35 – Five Key Points on its Rule Changes as from April 2020

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The HMRC set up IR35 some years ago as a way to determine if a worker is a ‘disguised’ employee. In other words, whether they are being paid ‘off-payroll’ through an intermediary rather than being an employee of the organisation. The intermediary could be the contractor’s own limited company, through which both the organisation and the worker gain – the organisation has no need to pay NI contributions or employee benefits, and the worker can take advantage of tax efficiencies through the limited company.

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Can You Turn Christmas Tunes Into HR Policies?

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As it’s December and because I always write something a little light-hearted for the festive season, this year I’ve chosen some Christmas songs for you! I hope you enjoy how I’ve managed to turn them into HR policies.

Here is the Christmas Top Ten:

Providing tidings of comfort and joy on your business travels far and wide, you are allowed up to £XX per evening meal and a hotel room with breakfast in one of our preferred hotel chains. If you need to stay in Bethlehem, we know of a good Inn where you can sleep in a perfectly comfortable manger. But please don’t feed the oxen.

When the weather outside is frightful, we ensure the car parks and pathways are all gritted. The lights are turned down low to help you see your way safely in the snow. Let it snow, let it snow. There will be no corn for popping for health and safety reasons.

We want you to let your hearts be light and to be a little merry at Christmas, but please drink responsibly. We also believe in making the Yule-tide gay for all, in an accepting and inclusive way in order that our troubles will be miles away.

We don’t want a lot for Christmas, there’s just one thing we need. And that’s your attendance during normal office hours after the Christmas party. Please make our wish come true. All we want for Christmas is you. Anyone calling in sick the next day may be disciplined. Baby.

Please remember to keep your personal mobile phones on silent during working hours. Employees need to work in heavenly peace where all is calm. If your mobile does ring during office hours, you will receive a heavenly HR host singing ‘Alleluia’, and it will not be radiant or glorious. 

If anyone is seen kissing anyone under the mistletoe, let alone Santa, they will be disciplined. We do not encourage personal relationships, even if it is only tickling under a snowy white beard. 

We do not tolerate bullying. A colleague may have a very shiny red nose, but there is no excuse for laughing and calling him names. We are an inclusive and caring company, respecting the differences that everyone gives from all nationalities, ethnic backgrounds, sexualities and religions. Therefore, a nose so bright can guide others through the fog and snow.

On the occasions when your hardware or software needs attention, please see the big man in a chair with little tiny men everywhere. He’s the man with all the toys … err, equipment and IT knowledge. 

Your company car is for business use only. However, you are permitted to drive home for Christmas, to see those faces. You will be there. If you run a red light or any other motoring offence, you will have to pay the fine and have the points on your licence. Safe driving in (y)our car.

When a new-born king … err, supplier … comes to visit offering their finest gifts, it is our policy to respectfully turn them down. Gifts could be perceived as bribery. Rum-pum-pum-pum, rum-pum-pum-pum. Years from now, perhaps we’ll see the day of glory where we can work in peace – without the gifts. Rum-pum-pum-pum, rum-pum-pum-pum.

We hope you enjoyed both the silliness and the links to the real songs. If you need any serious HR advice over the festive period, please do get in touch.

Wishing you a very merry Christmas and all good wishes for a prosperous 2020.

Keep Updated with the latest Employment Law Changes – October 2019

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During my most recent Employment Law workshop, we covered a number of HR specific issues that have recently been updated. As it’s important that you, as an employer, know about any employment law changes, here’s a summary of some of the most pertinent items. 

Even if you attended the event, this summary will help you to keep abreast of latest legislation. 

Leap Year Holidays – are employees entitled to an extra day?

As 2020 is a leap year, you may well be asked this question by your employees: 

  • Salaried employees are paid a set salary for the year, so unless their Employment Contract states that they can have an extra day’s pay (extremely unlikely), it doesn’t make any difference to what they’re paid.
  • However, an employee who is paid according to the hours they work, or the amount of work they do, will be entitled to be paid for that extra day if they have to work it. 

Vehicle Tracking and GDPR

Many organisations use tracking devices in their company vehicles to record behavioural information, such as speed and distance travelled. If this is necessary for your business, you need to ensure you’re legally compliant:

  • Draw up a Vehicle Tracking Policy that sets out the aims of the technology, clarifies the rules and procedures of usage, and explains how the data is used for your employees to understand.
  • Full transparency is needed for GDPR purposes, so this information should also be included in your Employee Privacy Statement.
  • Where personal use of the vehicles is permitted, a privacy button or similar technology should be installed to ensure that data is not collected outside business hours.
  • If you need specific help to create a Vehicle Tracking Policy for your organisation, please get in touch.

Redundancy Protection for Pregnant Employees and New Parents

The law will be extended and will double the current period of redundancy protection as follows:

  • So that it applies from the point at which an employee informs their employer that they are pregnant, whether this is done orally or in writing; and
  • For six months following the end of maternity leave.

For now, these are the important things to note as an employer:

  • An employee selected for redundancy during maternity leave is entitled to be offered a suitable alternative vacancy with you before other employees and without application or competitive interview.
  • Failure to offer the above renders the subsequent redundancy dismissal as automatically unfair.

Parental Bereavement Leave Entitlement 

From April 2020, statutory leave will be available to all employees who are ‘bereaved parents’ where they were the primary carers for a child under 18, however long they have worked with you. Other things you must consider are:

  • Entitlement focuses more on the responsibility of the ‘primary carer’ and less on the legal status of the carer to the child.
  • This includes non-traditional family structures, such as adoptive parents, people fostering to adopt, legal guardians and most foster parents. 
  • It also covers parents who suffer a stillbirth at 24 weeks or more into pregnancy.
  • Bereavement leave patterns are in units of a week, not days. A single block of two weeks or two separate one week blocks should be taken up to 56 weeks from the date of death.

Vegetarianism and the Equality Act 2010

An employment tribunal – Conisbee v Crossley Farms Ltd – recently held that vegetarianism is not a ‘philosophical belief’ under the Equality Act 2010. However, the tribunal did suggest that veganism is more likely to be protected under the Act as vegans: ‘do not accept the practice under any circumstances of eating meat, fish or dairy products, and have distinct concerns about the way animals are reared, the clear belief that killing and eating animals is contrary to a civilised society and also against climate control’. 

As an employer, it’s good practice to respect individual’s dietary choices and requirements. Ensure that work-related social events cater for your employees’ dietary needs, and encourage an atmosphere of acceptance. Don’t allow staff to mock their colleagues for their dietary choices.

IR35

From April 2020 private sector firms will have to check whether contractors need to pay income tax and national insurance contributions, moving the responsibility for conducting checks from the contractor to the hirer/end user business using their services.

Only companies which are not “small”, as defined by the Companies Act 2006, will be subject to the new off-payroll working rules. A small company must meet twoof the following qualifying conditions:

•  An annual turnover not more than £10.2m

•  A balance sheet total not more than £5.1m

•  No more than 50 employees.

For unincorporated organisations, those businesses whose turnover exceeds £10.2m in one calendar year must operate the rules.

The new rules will require the hirer/end user to provide an employment status determination and the reasons for that decision down the contractual chain to each party, in addition to directly to the worker.

A “status disagreement process” will be required to respond to representations from workers where there is a disagreement over determination. HMRC has promised guidance on how to fulfil the obligation to take reasonable care and how to implement a status disagreement process.

The HMRC Check Employment Status for Tax tool (CEST), is intended to help with status determinations, but still fails to win the confidence of its intended users, particularly in light of HMRC’s failure in tax tribunal cases to apply the status tests correctly.

There are many challenges to consider, such as identifying those PSC’s, not taking a blanket approach, and being prepared to deal with appeals. For more information on the complexities of IR35 and how it could affect your business, do get in touch.

If you would like to discuss any of the above employment law items, or have any other issues you need help with, do call me on 0118 940 3032 or click here to email me.

What Do You Do if an Employee is Convicted of a Crime?

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What would you do if you discovered an employee had been convicted of a criminal offence? Often, the first instinct is to dismiss them immediately. However, this could actually get you into more trouble than your employee!  

Even if the employee is sent to jail, you can’t necessarily mean you can dismiss him or her without a full investigation. A court of Law may deem it reasonable that you hold the job open for their return, if they are only on a short-term sentence, and the offence is nothing to do with work. 

Discovering that one of your employees is a convicted criminal is a big concern. In these circumstances, I am often asked if they should be dismissed. 

As an employer, despite the circumstances, you still need to take care not to dismiss immediately. Additionally, if a convicted employee has over two years’ service, they still have the right to claim unfair dismissal. 

What about when an employee is charged with, or convicted of, a work-relatedcrime?

Along with the judiciary process being carried out, you also need to conduct your own investigation as an employer, before taking disciplinary action. You need to establish the facts of the case. The Acas code of practice on disciplinary and grievance proceduresmakes it clear that despite the fact that an employee has been charged with, or convicted of, a criminal offence, that in itself is not enough reason for disciplinary action. 

Carefully consider what effect the criminal charge or conviction has on your employee’s ability to do the job, as well as their relationship with you, managers, colleagues or customers. Disciplinary action is more likely to be appropriate if the offence is work related.

Case law tells us that even though an employee is charged with an offence, this on its own does not give reasonable grounds for dismissal. You, as the employer, are under a duty to obtain sufficient information through your own investigations to form a genuine and reasonable belief that the employee is guilty of the offence before deciding to dismiss.

Can I dismiss an employee on misconduct that occurred outside the workplace?

You could dismiss an employee on the grounds of misconduct that occurred outside the workplace provided that the conduct complained of is thought likely to affect the continued employment relationship. The Acas code of practice on disciplinary and grievance procedures states that where an employee is charged with, or convicted of, a criminal offence not related to work, this is not in itself a reason for disciplinary action. 

Again, you will need to carefully consider what effect the charge or conviction has on the employee’s suitability to do the job, as well as their relationship with managers, work colleagues and customers. The types of criminal offence that are most likely to affect the employment relationship are those involving dishonesty, violence and sexual offences. 

As the employer, you must establish the facts of the case and decide whether it is appropriate to commence the disciplinary procedure. The fairness of a dismissal in each case will depend on the nature of the individual’s job in relation to the type of offence.

Can I dismiss an employee because he or she is in prison?

If an employee is in prison, it may be fair for you to dismiss them because of his or her conduct, or because he or she is unable to perform the job. You will need to consider factors such as the nature of the offence, the length of the sentence, the nature of the employee’s job, the effect of the employee’s absence on the business, and the damage (if any) to your reputation.

Your employee’s conduct could potentially be a fair reason for dismissal if the offence he or she is convicted of relates to his or her job, or if your reputation is likely to be damaged by their conviction. In those cases (or anything similar), you should carry out an investigation and conduct a fair disciplinary procedure as far as possible in the employee’s absence. Once the findings are available, then you can give careful consideration and decide whether it would be reasonable to dismiss him or her.

If your employee is likely to be in prison for a long time, it may be fair to dismiss him or her on the grounds that he or she will be unable to perform the contract of employment. But you must carry out a fair procedure and act reasonably in dismissing the employee for that reason. 

However, if your employee is imprisoned for a short time for an offence unrelated to work, it is likely to be reasonable that you should hold the employee’s job open until he or she returns.