Posts Tagged ‘Employment Law’

Flexible working: Are you ready for the deluge of requests from your employees?

Posted on: May 18th, 2021

Current indications from Downing Street are that the “work from home if you can” advice is likely to be lifted from 21st June. In anticipation of this, employees may be rushing to put in their requests to work from home on a more permanent basis. Employers will want to be ready to deal with these requests in good time and to pre-empt any disagreements where the arrangement hasn’t been working so well for the organisation.

Employers should start to consider whether they make permanent some of the arrangements that have worked well, or whether they want to insist on a return to the pre-covid working patterns.  And as the world opens up, you might also find that people ask for more varied working patterns, such as one which involves them moving further away from the office if they no longer go in every day, or even abroad. Some might like the idea of working in a more agile fashion because they’ve become used to working outside of the normal 9-5 when they were forced to home school and like the idea now of being able to work whenever suits them.

So should this all be formalised now by asking everyone to make a flexible working request? Of course, if the current arrangement is working for everyone then you don’t have to insist that they follow the formal process of making a request, and you might even prefer it to be fluid for the next few months before settling on a permanent working pattern.

The advantage to asking everyone to apply via an official flexible working request is that the arrangement is locked in, and the employee is only able to make one request every 12 months so you have certainty for at least that time.

Also, it will help in those situations where working from home has been possible during the pandemic but would not be ideal when all the restrictions are lifted. After June, you will be relying on the eight acceptable reasons for declining a flexible working request, rather than the need to follow government instructions. The balance will therefore shift away from what is right for the employee, and back towards what works for the organisation.

Your considerations for whether the working pattern works or not, does not need to take into account the personal circumstances of the employee. So whilst it might suit their work life balance to be able to work from home, or work flexible hours, or work from a different part of the country; those factors are largely irrelevant to whether you can accept or refuse the request. The considerations purely relate to the impact on the business.

The employee will of course have just gone through a trial period lasting months, so you will at least have concrete evidence of the impact of that working pattern on productivity, client relations, pressure on colleagues etc. The employer will need to demonstrate that whilst it is possible to work from home or work agile hours, it is second best to being in the office or having regular hours, and now that it is not obliged to facilitate home working, it isn’t going to. So it might in fact be easier to refuse someone’s flexible working request come June but you should start the communications now if you foresee that it’s going to come as a surprise to your employees.

What happens then if you have a flood of requests in anticipation of the relaxation of the rules? Flexible working requests can be dealt with on a first come, first served basis. It is not a case of setting a precedent with the first one and having to then say yes to all that follow. So if you think you can accommodate 3 people working from home on Friday but not all 6 of the team then you can start to refuse applications once the first 3 have been accepted even if employee no.4 has a compelling reason to want Fridays at home. Again, the more you can pre-empt by being clear about your requirements for having people based in particular locations at particular times, and your expectation of presenteeism in the office, hopefully the more accommodating and amenable the requests will be as there will be an understanding that the needs of the job come first.

 

Employment & Immigration Update Webinar

Posted on: May 10th, 2021

On Wednesday 5th May experienced employment lawyers Amy Richardson and Charlotte Allery delivered a webinar providing an update on current employment law and immigration issues at the latest Kelta HR Employment & HR webinar.
Below are links to each of the webinar recordings.

Key things covered were:


Employment Update
– Coronavirus issues (furlough and holiday, the end of shielding, health and safety concerns, testing and vaccines)
– The future of agile working
– IR35 changes in effect from 6 April 2021
– Changes to requirement to provide written statements
– Update on recent and noteworthy cases (including the Uber decision, the effect of HR training on defending claims, and gender identity)

Immigration Update
– EU Settlement Scheme
– Right to work checks
– A recap on the new ‘Points Based’ System
– Sponsor Licences
– Digital Nomads

You can watch the Employment Update webinar recording from Amy Richardson here.

You can watch the Immigration update webinar recording from Charlotte Allery here.

Gender pay gap reporting enforcement delayed until 5 October 2021

Posted on: March 12th, 2021

The past year has presented many unprecedented challenges for employers who have had to adapt entire working practices as a result of the coronavirus pandemic. Most have transitioned to working remotely, many have made use of the furlough scheme, and more recently, with the announcement of workplaces re-opening in June, employers are having to carefully navigate the return to work, ensuring that this is done in the safest way for everyone involved.

The Equality and Human Rights Commission (‘EHRC’) have recognised these ongoing issues by allowing employers an additional 6 months to report their gender pay gap information before taking any enforcement action. This announcement will give some employers a welcome reprieve to deal with these obligations alongside managing the return to the workplace and the end of the furlough scheme in October.

A reminder on gender pay gap reporting

There is a legal requirement on organisations with 250 or more staff to publish information about the differences in male and female pay within their business at different levels of seniority. The idea being that increasing pay transparency will lead to employers taking more action to address pay inequality. If organisations fail to comply with the regulations, the ECHR have the power to investigate and fine these businesses, with more serious infringements potentially leading to court action and damage to reputation.

The key dates that employers should be aware of are the 5 April (for private sector employers) and 31 March (for public sector employers) which is the ‘snapshot date’. The gender pay gap information publication date is based on the snapshot date and must be no later than 4 April (for private sector employers) or 30 March (for public sector employers) the following year.

As a reminder, the information an organisation must publish as part of their gender pay gap reporting is as follows:

During the first lockdown in March last year, enforcement was suspended entirely for the 2019/20 reporting year to alleviate pressure on businesses as they grappled with the unique effects of the Covid-19 pandemic. 

When should employers report for the 2020/21 year?

Prior to the EHRC announcement, gender pay gap information was due to be published by 30 March 2021 for most public authority employers, or 4 April 2021 for private, voluntary and all other public authority employers. This reporting is to be based on a ‘snapshot date’ of the 31 March 2020 and 5 April 2020 respectively.

The EHRC have extended this deadline until the 5 October 2021, giving employers an extension of time to collate and report this information, alongside managing the ongoing effects of the pandemic. Whilst organisations are still being encouraged to release this data at the earliest opportunity, employers will be given a 6 month reprieve before any enforcement action is taken against them.

Reporting should be done in the usual way via the Gender Pay Gap Service and the information should be accessible via the organisation’s website.

What about the impacts of furlough?

The ECHR have published guidance found here on gender pay gap reporting for 2020/21 for employers who have had to temporarily change their workforce as a result of the pandemic, specifically focusing on the implications of the furlough scheme.

The guidance makes clear that you must include all furloughed employees when determining whether your headcount exceeds 250. However, in terms of your reporting calculations, you must only include details of the furloughed employees whose pay was topped up to their usual full pay and must exclude all employees who were receiving less than full pay. All other reporting requirements remain unchanged as a result of this scheme.

Crunching the numbers in this way will obviously impact the results produced and therefore it may be sensible when reporting to add some specific commentary or context to address this.

If you have any queries on your gender pay gap reporting obligations, or would like some employment advice more generally, please do get in touch with our Employment Team who would be happy to help.

Annual training on equality and diversity vital to protect employers and staff

Posted on: February 26th, 2021

It is well known amongst employers that training of staff on equality and diversity needs to be carried out.  But a recent case – in which an employer had a complaint of harassment upheld by the tribunal – highlights the importance of ensuring your training is up-to date, comprehensive, regularly delivered and is being effectively applied.

In the recent case of Allay (UK) Ltd v Gehlen, the Employment Appeal Tribunal (EAT) rejected an employer’s ‘reasonable steps’ defence to a claim of racial harassment on the basis that diversity training carried out two years earlier had become ‘stale’ and ineffective.

As a reminder, an employer will be liable for acts of discrimination, harassment and victimisation carried out by its employees in the course of employment, whether or not it is done with the employer’s knowledge or approval. However, employers may be able to defend a discrimination claim by arguing that they took ‘all reasonable steps’ to prevent employees from either committing a particular discriminatory act or committing such acts in general. The threshold that must be met is a high one and will involve the employer demonstrating that they have taken all steps required to prevent the incidents occurring.

What happened in this case?

The case in question involved an employee who was subjected to harassment related to race by a fellow employee. The effected employee subsequently brought claims in the Employment Tribunal and the employer sought to rely on the reasonable steps defence. The Tribunal rejected this and upheld the complaint of harassment. Whilst the Tribunal accepted that training relating to harassment had been carried out, the training had been delivered two years earlier and was therefore held to be ‘stale’. The Tribunal considered that the passage of time between the training and the discriminatory acts meant that the training had clearly faded from the guilty employee’s memory.

The Tribunal held that the employer had not taken all reasonable steps to prevent the discrimination, as a reasonable step would have involved carrying out refresher training. Given that the employer organised subsequent training after the complaint was made, it was clear to the Tribunal that the employer agreed refresher training would be an effective way to eliminate these issues in the future. The training that the employer delivered was also held to be ineffective in practice on the basis that the employee making the comments thought it was merely ‘banter’ and that three other employees (two being managers) who heard or became aware of the racist comments failed to report it to HR or to take any action at all. Effective training would have warned against such ‘banter’ and highlighted the importance of dealing with such comments head on.

The employer appealed the decision, arguing that the effectiveness of the training was irrelevant to the question of what constitutes a reasonable step. The Employment Appeal Tribunal dismissed the appeal and concluded that the Tribunal had been right to reject the reasonable steps defence on these facts.

What does this mean for employers?

This case is an important reminder to employers of how fundamental diversity training is and that this training must be:

The case also highlights that training carried out two years ago will not be sufficient.

This ruling highlights the best practice approach of having annual training as the the safest and most effective approach for employers to take going forward.  This will remind employees of the importance of equality in the workplace and help employers in the event of needing to defend any Tribunal claims.

Our employment experts regularly provide specialist employment training courses on equality and diversity, which places a strong focus on practical examples and case studies.

The course can take the form of a workshop, a seminar for larger groups, or an online recording that can be watched by your staff at their own pace.

If you would like to discuss this case in more detail or speak with a member of the Team about delivering an updated training session to your workforce, please get in touch today. Our Employment Team would be happy to help.

REMINDER: Two months to go – IR35 changes affecting consultants and contractors

Posted on: February 8th, 2021

There are just two months to go until the postponed changes to the off-payroll working rules (IR35) come into force, which may impact upon your use of contractors, consultants and freelancers.  

As we previously reported, strict IR35 tax rules will apply to the private sector from 6 April 2021, which means that now is the time for you to take stock and review the status of your workforce. The changes are going to shift the burden on determining the tax status of the individual providing the service to the organisation at the end of the supply chain.

To give you some practical examples, the new rules will apply to medium or large organisations that engage contractors and consultants through an intermediary, such as:

Regardless of your organisation’s size, the correct employment status of the contractors and consultants you engage on a self-employed basis has become a very significant and topical issue for many employers, not just because of these upcoming IR35 changes. The cost of getting employment status wrong can be substantial, ranging from an entitlement by the contractor to claim unfair dismissal, National Minimum Wage and even holiday pay, together with the tax notices that may be issued by HMRC.

We appreciate that it can be difficult to navigate through the various case law, guidance and legislation to determine whether an individual your organisation engages to provide services is an employee, worker or self-employed, for legal and tax purposes, and we understand the need and benefits of a flexible workforce. However, whilst you may have a contract in place which states that the consultant or contractor is self-employed, the tribunals, courts and HMRC will always look beyond the documents in place to see how the relationship operates in practice.

If you are interested in speaking to our Employment Team about employment status generally, or would like to understand the impact of the IR35 changes on your business and its use of off-payroll working, our Employment Team would be happy to help.

Latest update on the job retention bonus and job support scheme

Posted on: October 9th, 2020

As the ability to furlough employees under the Coronavirus Job Retention Scheme (CJRS) rapidly comes to an end, employers will need to consider whether they can, and wish to, benefit from the Government’s two additional schemes: the Job Retention Bonus, and the Job Support Scheme.

Now that some of the finer details of these alternatives have been released by the Government, we provide a summary for employers below. It is also worth noting that since we wrote this article, the Chancellor has announced a further amendment to the Job Support Scheme:

Job Retention Bonus

Put simply, the Job Retention Bonus is a £1,000 one-off taxable payment made to employers, for each eligible employee retained until 31 January 2021. The Bonus does not have to be paid on to the employee.

The following specific rules apply:

Job Support Scheme

The Job Support Scheme is designed to protect ‘viable jobs’ in businesses who are facing lower demand due to the COVID-19 pandemic. The Scheme is certainly not as generous as furloughing under the CJRS and operates differently. Ultimately, an employer will continue to pay its employee for any time worked, but the burden of hours not worked will be split between the employer and the government (through wage support) and the employee (through a wage reduction), helping the employee to keep their job.

As always, the devil is in the detail. In summary:

Job Support Scheme – Local COVID Restrictions

The Chancellor announced on Friday 9 October that the Job Support Scheme will be expanded to support businesses required to close due to local COVID-19 restrictions. We are awaiting full guidance, but the headline points are:

If you have any questions about the content of this article, please do get in touch with the Employment Team at Coffin Mew.

Mental health and well-being in the workplace

Posted on: October 8th, 2020

With World Mental Health Day around the corner and the COVID pandemic challenging even the most resilient of individuals, mental health and well-being at work continues to be one of the most difficult and complicated issues that employers encounter.

Getting it wrong can be extremely damaging to staff morale and reputation, as well as time consuming and costly, so Coffin Mew teamed up with Stratus Coaching and recruitment experts, Hays, on 8 October to host a webinar on this hugely topical issue.  Attracting over 100 senior HR professionals and directors, this interactive session focused on exploring the strategic considerations for employers planning for the workplace of the future, as well as practical steps businesses can take to improve and support their employees’ well-being in a time of constantly changing government guidance. 

In a poll 90% of delegates anticipated that home/agile working would become integral to the way their workforce operates, with about half indicating that remote working would largely replace attending a physical workplace. The return to the office was also high on the agenda of concerns and provoked a substantial Q&A session dealing with risk assessment and consultation, Covid anxiety, how to handle those who refuse to return, whistleblowing, H&S detriment and flexible working requests.

Topics also included:

If you have any questions about managing mental health and well-being in the workplace, or if you would like to request a copy of the webinar recording and presentation, the Employment Team at Coffin Mew would be happy to help so please do get in touch.

When working remotely means working overseas, what should employers consider?

Posted on: September 18th, 2020

With a sudden increase in remote and home working following the COVID pandemic, it is unsurprising that employees are starting to re-evaluate how and when they work, together with where they carry out their work.

As a result, our Employment Team have received a number of queries from businesses asking what they need to consider if an employee asks to move abroad or work from an overseas home. We outline some of the key areas of consideration below:

Tax
Our recommended starting point is to speak with your financial and tax advisers to establish the potential tax impact for both the individual and the company. Sadly, this can sometimes be commercially and administratively burdensome, so it is worth investigating the tax position before considering the next steps.

Homeworking generally
In agreeing to a permanent or majority homeworking arrangement like this, you will need to consider the usual homeworking quandaries, including the following points:

Contract

Immigration
An employer will of course need to consider whether the individual will actually have the right to work in the country concerned. This will depend upon the immigration rules of the relevant country, together with the nationality and right to work status of the employee.

If the employee wishes to work from an EEA country and s/he is a UK national, it is worth noting that the Brexit transition period will end on 31 December 2020, meaning that it may be beneficial for a move to take place prior to this date.

However, we strongly recommend that local immigration advice is taken at the material time to ensure working abroad does not result in illegal working. Further, non-UK national employees should be encouraged to take their own independent immigration advice (including any impact their absence from the UK may have on a return in the future).

Insurance
Employers should speak with their current Employers Liability Insurance (ELI) provider to establish whether the current ELI will cover an employee working overseas. Additional or local cover may need to be obtained.

Employment Rights/Protections
Where employees live and work abroad, they can become subject to the jurisdiction of the overseas country and benefit from the local mandatory employment rights regardless of what is stated in the contract (i.e. local laws can potentially override express contractual wording). This may, for example, include health and safety obligations, rest breaks, paid annual leave, family friendly rights, pension entitlements and, typically the most onerous, rights on termination of employment.

We recommend that employers seek local advice on this point to understand the likelihood of foreign employment rights and protections applying and, if so, what steps can be taken to avoid this (if any).

Employment Benefits
Dependent on the nature of the relevant schemes or policies, the employee’s participation in company benefits (such as pensions or private health care) may be impacted or invalidated by a move abroad. You will need to speak with your applicable providers to determine this and also ensure the employee is fully informed before making the move.

Setting a Precedent
Given the pandemic and the sudden prevalence of remote and home working, requests to work from alternative locations (such as family homes, holidays or overseas) are on the rise. As a result, it is worth considering that other requests to work overseas may follow, particularly if you do approve one employee’s request.

Whilst employees do not have an automatic right to change their place of work and a move will of course depend on an individual employee’s circumstances or role, it may cause friction or be difficult to reject a future employee’s request in similar circumstances. As such, in communicating an employee’s move abroad, it would be wise to highlight the one-off or discretionary nature of the arrangement.

If you have any questions about the content of this article, or you would like assistance with considering or responding to an employee’s request to work abroad, the Employment Team at Coffin Mew would be happy to help so please do get in touch.

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