Posts Tagged ‘Employment Law’

Collective bargaining – can direct offers be made to staff?

Posted on: November 16th, 2021

Collective bargaining is the official process by which trade unions negotiate with employers on behalf of their members. Collective bargaining is only possible where an employer recognises a trade union and between them, they decide on the scope of negotiations and agree these in a recognition agreement. 

Typically, a recognition agreement or collective agreement will set out:

So, can an employer make direct approaches to staff where they are members of a recognised union?

The short answer is yes, direct offers can be made to staff, but only where the collective bargaining process (as set out in the written agreement between the union and employer) has been fully exhausted according to the Supreme Court in the case of Kostal v Dunkley and Others.  

This decision doesn’t mean that employers cannot make changes to terms and conditions unless agreed by the union.  However, it does mean that it is important that employers carefully consider and go through the procedure set out in their agreements with a union as ultimately employers won’t be able to bypass this process (even if it becomes evident that the union won’t agree, and direct offers become necessary). 

We don’t think this will be the end of these issues, as no doubt disputes will now arise as to whether the collective agreement procedure has been fully exhausted. 

Therefore, it would be sensible to review any collective bargaining agreements and to take legal advice before making any direct offers to workers, as getting it wrong could prove very costly. 

Relevant law – Section 145B of TULRCA

Section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) (section 145B) makes it unlawful for employers to make an offer to members of a recognised trade union (or a union which is seeking recognition) which is intended to result in one or more terms of employment being determined other than through collective bargaining.

Details of Kostal v Dunkley and Others


Previous legal decisions on this case

The Employment Tribunal and Employment Appeal Tribunal both agreed that Kostal had acted unlawfully and contrary to section 145B.

The result of this was that they held that the two letters sent directly to staff had been two separate inducements to opt out of collective bargaining.

Each claimant was awarded £3,830 per breach (so for some employees they received £7,660). The total compensation Kostal had to pay came to £421,800.

The Court of Appeal however overturned this decision and found that the direct approaches were not unlawful inducements.  The Court of Appeal felt that the direct approaches were one-off direct pay offers and weren’t intended to bypass the collective agreement as a whole, as long as Kostal was committed to collectively bargaining in future matters.  An appeal was lodged with the Supreme Court.

The Supreme Court decision

The Supreme Court disagreed with the Court of Appeal and held that Kostal had acted unlawfully in making direct approaches to staff to change terms and conditions.

In reaching this decision, the Supreme Court said that it did not matter that:

Ultimately the effect of Kostal’s direct offers to staff was that it encouraged staff to deviate from the collective bargaining process with the Union (in effect making the recognition agreement worthless).

In deciding whether an employer has bypassed collectively bargaining (and breached section 145B), tribunals and courts have to focus on the result of the offer. Therefore, if there is a real possibility that the terms being discussed would have been determined by collective agreement (which they were in the Kostal case) had they not been agreed directly with workers, then the employer will be in breach of section 145B. 

However, the Supreme Court made clear that if an employer and union fully exhaust the process contained in their collective/recognition agreement and fail to reach agreement, direct offers could be made to workers. In Kostal’s case they hadn’t exhausted their agreed procedure when making the offers. 

Kostal are therefore having to pay compensation totalling £421,800.

Here to help

If you have any questions on collective bargaining or agreements, or would like to discuss any employment queries generally, please do get in touch. We would be happy to help.

New right to carer’s leave – How will it work?

Posted on: November 9th, 2021

Last year, the Government held a consultation into the right for unpaid carers to be entitled to one week’s unpaid carer’s leave each year in order to carry out their caring responsibilities.

The Government have now responded to this consultation and produced guidance for employers (found here) on how the new right to carer’s leave will operate and work in practice. The decision to introduce this workplace right has been made to help support unpaid carers in coping with some of the challenges they face in balancing work and caring responsibilities.

Some key points in relation to the new carer’s leave include:

Who is eligible?
All employees will be eligible irrespective of their length of service (a day one right). However, the right does not extend to workers.

Entitlement will depend on the carer’s relationship with the person being cared for, which should broadly follow the definition of ‘dependant’ used in the right to time off for dependants. This means the employee should be caring for their spouse, civil partner, child, parent, someone living in the same household (excluding a tenant, lodger or boarder) or a person who reasonably relies on them for care (e.g. this is likely to include grandparents and siblings).

Eligibility will depend on the person being cared for having a long-term care need. This is defined as someone with a disability (as defined under the Equality Act 2010) or someone who has ‘issues relating to old age’. There will be limited exemptions from this requirement for long-term care – for example, in the case of terminal illness. The Government’s view is that other types of leave may be appropriate for those employees providing short term care.

What can the leave be used for?

A broad definition of what the carer’s leave might be used for has been applied and it can be used for providing care or making arrangements for the provision of care.

How can the leave be taken?

The one week’s leave per year can be taken flexibly. It can be taken in one block or as individual days or half days, up to one week per year.

How would the leave be requested?

Employees will need to give the employer notice ahead of taking carer’s leave and will need to give notice that is twice the length of time being requested plus one day.

Employers can only reject a request for carer’s leave where it considers that the operation of their business would be unduly disrupted. The employer would then need to give counter-notice regarding the leave period.

Employees will self-certify themselves for carer’s leave and do not need to produce evidence to the employer. A false application can be dealt with in the same way as a false claim for sickness absence or any other disciplinary matter.

Does this change other policies and rights?

Carer’s leave will not add to or amend any leave entitlement currently in place for parents (e.g. parental leave).

When does this come into force?

Not yet.

The government have advised that new legislation will be put in place to deal with this right in due course and when ‘parliamentary time allows’ and so this right cannot be exercised currently by employees.

Will leave be paid?


The legislation will only include the right for employees who are unpaid carers to take unpaid leave. Employers are, however, free to voluntarily pay employees for time taken off to care for dependents but this is entirely discretionary.

Employers should be mindful that where any leave taken will be unpaid, employees may prefer to take annual leave or some other type of leave in these circumstances so that they don’t miss out on any pay for the period of absence.

Protection for employees taking leave

As an employer, you must ensure that employees do not suffer a detriment as a result of taking carer’s leave and they must not be penalised for making use of this new entitlement. Any dismissals by an employer that are for reasons connected with exercising the right to carer’s leave will be automatically unfair which means that employees who do not have 2 years’ service will also have protection from dismissal in these circumstances.

Benefits of new right

The introduction of this additional leave may create additional administration and considerations for employers. However, the Government’s view is that the scheme is likely to provide many benefits to employers in terms of ensuring better support for the workforce which will lead to increased staff retention and better health, wellbeing and satisfaction of employees overall.

Next steps
In considering the introduction of this new workplace right, employers should consider whether any policies need to be created or amended to inform employees of their entitlement and to set out how it will work. Employers will also need to consider how they communicate this update to staff members and particularly managers who are likely to be responsible for authorising this leave. Other internal documents may need to be created in order to implement the policy in practice, for example having a self-certification form prepared or introducing record keeping to ensure you know how many days of the entitlement an employee has used.

Here to help

If you have any questions on carer’s leave, or would like to discuss any employment queries generally, please do get in touch. We would be happy to help.

Are menopausal symptoms covered by the Equality Act?

Posted on: November 2nd, 2021

The short answer is potentially they are, and employers should be conscious of this topical issue as the menopause directly affects the largest growing demographic in the workplace. 


Previously discussions around the menopause and the impact for individuals has been limited due to the personal nature of the topic and the fact that there was limited case law in this area.  However, the position is changing. 

World Menopause Day was marked on 18 October; it is also a topic that is on the government’s radar following the launch of an Inquiry into Menopause and the Workplace.  Further research suggests that the number of employment tribunal claims concerning menopause are rising significantly and we now have a binding ruling from the Employment Appeal Tribunal (EAT) considering the effect of menopausal symptoms on employees and protection from discrimination.  

Menopausal symptoms

The menopause usually happens between 45 and 55 years of age, however, it can happen earlier or later.  According to the ACAS guidance on ‘Menopause at work’, the menopause affects half the population, and it can often be a difficult and stressful time.  Some of the symptoms that women going through the menopause can experience include:

Protection for staff

The menopause is not a protected characteristic under the Equality Act 2010.  Therefore, individuals who have been treated poorly by their employer in connection with symptoms from the menopause have to consider protection under one of the 9 current protected characteristics such as sex, age and/or disability discrimination. 

Typically, individuals pursuing claims concerning menopause seek to rely on disability discrimination due to the impact that the menopause has on their health and day to day life.  To succeed with a disability discrimination claim, individuals need to show that they have a mental or physical condition which has a substantial and long-term impact on their ability to carry out normal ‘day to day’ activities. 

Day to day activities includes activities inside and outside the workplace for example sleeping, exercising and traveling.  Therefore, where an individual’s normal daily life is substantially (so more than trivially) impacted by menopausal symptoms they are potentially covered by this definition.  Whether the effects are considered to be long-term depends on whether they have lasted or are likely to last for more than 12 months. However, given that it is estimated that the effects of the menopause can last for about 4 years, symptoms are likely to be long-term. 

Case Law

Menopause is not directly covered by discrimination laws and there is very little case law in the area, meaning that it can be complex to decide on the merits of a claim.  However, the case of Rooney v Leicester City Council has now added some clarity.


Ms Rooney worked for Leicester City Council as a social worker from 2006 until she resigned in 2018.  Ms Rooney was suffering menopausal symptoms including, confusion, light headedness, insomnia, depression, stress, anxiety, migraines, and hot flushes and said she had been suffering with those symptoms for 2 years.  She also claimed that she had been struggling to cope with everyday life and was seeing a specialist in menopausal care.  Ms Rooney submitted an impact assessment which highlighted the difficulties she had experienced, including forgetting to attend events/meetings, forgetting to lock her car, leaving the cooker and iron on and forgetting to lock up the house. 

Ms Rooney brought several claims in the Employment Tribunal including disability and sex discrimination, harassment and victimisation all linked to her menopausal symptoms. 

The Employment Tribunal had to decide, amongst other things, whether Ms Rooney was disabled (in accordance with the above test) and they found that she wasn’t.  Therefore, her disability discrimination claim was dismissed.  Ms Rooney appealed this decision to the Employment Appeal Tribunal (EAT).


Unsurprisingly, the EAT decided that the Employment Tribunal decision was not ‘supported by any reasoning’ and the Tribunal had got it wrong.  The EAT found that:

The EAT also found that Ms Rooney’s symptoms where long term because her symptoms started in August 2017 and were ongoing when she left employment in October 2018. 

The case has been remitted to a new employment tribunal to determine the outcome of the disability discrimination claim and it has been suggested that the parties may like to consider the best way forward.  This suggests that the employer may want to concede some of the issues. 

Should menopausal symptoms be included as a protected characteristic in their own right?

The above case highlights the issues that arise in considering employment claims involving the effect of the menopause on staff at work and the need for clarity. 

In July 2021 the government launched an Inquiry into Menopause and the Workplace and the report is now awaited.  One potential outcome of the inquiry is that menopause may be added as a standalone protected characteristic under the Equality Act 2010 which of course would help in providing further clarity in this area. 

What can employers do in the meantime?

While further guidance is awaited it would be sensible for employers to be aware of the potential issues and hurdles that staff going through menopause can face.  Employers should consider:

Here to help

We work with a number of clients to ensure they are supporting and retaining staff who may be struggling at work whilst making sure the business can also continue to operate efficiently and effectively.  Please contact Sarah Burke if you would like to discuss how we could help

Freedom Day – Top Tips for Employers

Posted on: July 16th, 2021

On 19th July 2021 (‘Freedom Day’), all Covid-19 restrictions are due to end in England, including the ‘work from home if possible’ guidance, mandatory mask-wearing and social distancing.

As the return to the office is fast approaching, understandably employers are unsure of the measures they can continue to take once the current health and safety measures are lifted by law.

We hope this article assists in answering some of the more pressing questions you may have and provides some top-tips for managing a return to the workplace.

Can we force employees to return to the office?

Provided the employee’s contract of employment states that their place of work is your office location and provided that you have determined the workplace to be safe, you can ask them to return to the workplace on Freedom Day.

With the ‘work from home if possible’ guidance being lifted, provided you have carried out an effective risk assessment and determined that your workplace is safe to return to, employees have limited scope to refuse to return as their normal workplace would revert back to the office.

The onus will be on the employer to ensure this is communicated to the employees concerned alongside the reasons why a return to the office is now required.

Of course, a highly likely result of requiring employees to come back to the office is that many may try to formalise their work from home arrangement on a more permanent basis by submitting a flexible working request. Employers are not obliged to accept every application they receive but should consider these requests on a case-by-case basis based on how well the work from home model has been working with that particular individual.

For more information on flexible working requests following the return to the office, please see our article here.

Can we keep our current health and safety measures in place, such as mask wearing, testing and social distancing?

Whilst the government has changed the law around wearing a mandatory face covering and social distancing, this has not removed the responsibility on employers to provide a safe place of work for all staff and other third parties visiting their premises.

As a result, employers should continue to keep their risk assessments under review to ascertain what safety measures are still required based on the vulnerability of your workforce, the people you are dealing with and other factors such as the space you have available for employees to work in. Indeed it may be prudent to consider a phased return to the office, or consider having different employees in on different days of the week initially to ensure social distancing is maintained.

Employers will need to be mindful that whilst some employees may be excited to return to the office, others may be genuinely anxious about returning and the possibility of contracting the virus at work. By having appropriate safety measures in place, you should help to alleviate fears some employees may legitimately have. Needless to say, it is always important to communicate with your employees and work with them to overcome any concerns they may have around returning to the office to try to come to a solution that benefits all involved.

What about employees that believe a return to the office would put them in serious and imminent danger?

The law in this area still remains the same, however as the Government have told people it is safe to return to the workplace it could potentially make it harder for an employee to refuse to come back on the basis they believe it is unsafe to return.

The case law in this area in relation to the impacts of Covid-19 specifically is still developing, but it is one that will turn on the facts of each particular case. Indeed, keeping appropriate safety measures in place for a period of time when the office re-opens, whilst keeping the ongoing impact of the virus under review, will arguably make it more difficult for employees to say that they believe they are in serious and imminent danger where you are going above and beyond requirements implemented by law. However, again, ensuring you have communicated the measures taken to staff is key.

Notwithstanding the above, if employees have legitimate concerns as a result of something specific to them (for example travelling on public transport during rush hour, living with extremely vulnerable family or being more vulnerable themselves) it will likely be sensible to consider whether alternative arrangements can be found such as whether the individual concerned is able to continue to work from home or perhaps work alternative hours in order to be able to travel at times where transportation may be less busy.


Whilst the headline message that restrictions are lifting is clear much of the detail that sits below this and how it applies in each and every workplace remains a matter that employers will need to assess and judge for themselves based on their own circumstances.

Once this has been done and is evidenced, the stance adopted should be communicated to employees and it is recommended that you set out your position in your company policy which can be reviewed and updated in line with any new guidance released.

Of course, those who are really ahead of the game will have ensured, so far as possible, that staff have been involved in developing what the future looks like so it comes as no surprise.

If you need any further advice on the return to the office, or would like some general employment advice, please get in touch with our Employment team who will be happy to help.

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:

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:


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).

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.