March 4

UPDATE ON CORONAVIRUS – a clear plan for employers…..when to pay and what to do….

As the number of cases of coronavirus (COVID-19) increases in the UK, employers should consider some simple steps to help protect the health and safety of staff.

It’s good practice for employers to:

• Update all staff on actions being taken to reduce risks of exposure in the workplace
• Ensure all staff’s contact numbers and emergency contact details are up to date
• Ensure managers know how to spot symptoms of coronavirus and are clear on process
• Ensure there are clean places to wash hands with hot water and soap, and encourage everyone to wash their hands regularly
• Provide hand sanitiser and tissues for staff, and encourage them to use them
• Consider if protective face masks might help for people working in particularly vulnerable situations
• Consider if any travel planned to affected areas is essential
• Consider setting up as many staff as possible to be able to work from home

It goes without saying that employers must not single anyone out and must not treat an employee differently because of their race or ethnicity.

If an employee is sick

If an employee has coronavirus they should inform their employer immediately. The workplace’s usual sick leave and sick pay entitlement will apply. An employer may have to relax some aspects of sickness policy as an employee may not be able to get a sick note if they have been told to self-isolate for 14 days.

If an employee is not sick but cannot work because they’re in self-isolation or quarantine

If an employee does not have coronavirus but cannot work because they:

• have been told by a medical expert to self-isolate
• have had to go into quarantine
• are abroad in an affected area and are not allowed to travel back to the UK

the employer is not obliged by law to pay that employee.

However, it is good practice for the employer to treat it as sick leave and follow their usual sick pay policy. Alternatively, they can take the time off as holiday. Whilst there is no statutory right to pay, the advice to employers is to pay employees in this situation – firstly it is not their fault and paying them would be an act of good faith, secondly, the risk otherwise is the employee will return to work in order to get paid thus increasing the risk of the virus spreading, if they have it.

Remember, if they can work from home they can be paid as usual.

If an employee is not sick but the employer tells them not to come to work

If an employee is not sick but their employer tells them not to come to work, because they have returned from one of the affected areas, they should get their usual pay.

If an employee needs time off work to look their children because their school has closed

Employees are entitled to time off work to help someone who depends on them in an unexpected event or emergency as follows:

• if they have children they need to look after or arrange childcare for because their school has closed
• to help their child or another dependant if they’re sick, or need to go into isolation or hospital

There’s no statutory right to pay for this time off, but some employers might offer pay depending on the contract or workplace policy. They may offer say two days off to begin with and if more time is required they may ask the employee to book holiday.

What if employees do not want to go to work?

Some people might feel they do not want to go to work if they’re afraid of catching coronavirus. It is important, as an employer, to listen to any concerns staff may have.

If there are genuine concerns, the employer must try to resolve them to protect the health and safety of their staff.

If an employee still does not want to go in, they may be able to arrange with their employer to take the time off as holiday or unpaid leave. The employer does not have to agree to this.

If they are able to work from home that is something that can be considered.

If an employee is unable to work from home and refuses to attend work, it could result in disciplinary action.

Working from home

Employers should start thinking about whether they need to take any steps to facilitate home working, and to consider whether they want to encourage employees to ensure that they have the correct set-up at home to be able to work there if required to do so. This may include ensuring that all employees have a way of logging on to secure systems from home.

Employers may want to make it clear that an employee’s failure to take certain actions – ie. requesting particular log-ins – which would prevent them from working from home may result in those employees being subjected to disciplinary proceedings.

What to do if someone becomes unwell at work

If someone becomes unwell in the workplace and has recently come back from an area affected by coronavirus, they should:

• get at least 2 metres (7 feet) away from other people
• go to a room or area behind a closed door, such as a sick bay or staff office
• avoid touching anything
• cough or sneeze into a tissue and put it in a bin, or if they do not have tissues, cough and sneeze into the crook of their elbow
• use a separate bathroom from others, if possible

The unwell person should use their own mobile phone to call either:

• for NHS advice: 111
• for an ambulance, if they’re seriously ill: 999

They should tell the operator:

• their symptoms
• which country they’ve returned from in the last 14 days

Keep an eye on this for regular updates:

If you need further assistance, please email or call +44 (0)7917 878384

March 2

Dealing with coronavirus in the workplace…..

The UK is advising thousands of people to self-isolate to prevent the spread of coronavirus and it is important to remember that both employers and employees have a duty of care and “discretion is needed” with such an unusual situation as a coronavirus outbreak.

What should employers do to protect staff?

Employers have an obligation under UK law to take reasonable steps to protect staff health and safety. This would include:

• educating staff
• sending emails on cleanliness
• providing hand sanitisers
• cleaning communal areas.

Can employers stop staff going on holiday to high-risk regions?

No, because that could be discriminatory. An employer should direct them to government advice. An employee should realise that if they did travel there then that’s causing more problems for themselves if they have to self-isolate or risk contracting coronavirus.

What if an employee comes to work and then tests positive for coronavirus?

The UK government does not recommend closing down the workplace and Public Health England (PHE) will contact the management team to discuss the case and contact anybody who has been close to the infected person.

Staff who have had close contact with that person will be asked by PHE to self-isolate at home for 14 days from the last time they had contact with the infected person.

What do you do if someone suspected to have coronavirus has recently been in your workplace?

If there is a suspected case of coronavirus in the workplace, the government says no restrictions or special control measures are required while waiting for laboratory tests.

There is no need to close the workplace down or send other staff home at that point as most possible cases turn out to be negative.

Should staff travel be restricted?

Employers should restrict staff travel to places where there has been a coronavirus outbreak, as part of their duty of care.

If an outbreak happens while they are there, an employer has an obligation to ensure their safety and that of other staff.

Employees who have not had close contact with the person do not need to take any precautions and can continue to go to work.

Do I need to prove I’ve been in self-isolation for 14 days?

British law states that medical evidence is not required for the first seven days of sickness.

After that, the employer determines what evidence they require, if any. This does not have to be a note from your GP and employers are “strongly” suggested to use discretion, according to the government.

Employers have a responsibility to take “reasonable care” to look after their employees – which could mean allowing them to not come into work or work from home.

If you need assistance please email or call +44 (0)7917 878384

February 10

Now that Brexit is actually happening…… employers need to prepare for it!

The realities of Brexit, from a practical and administrative perspective, will be obvious for the first time at the end of 2020 – government, businesses and individuals will need to be ready.

From an employment law point of view, there are no anticipated changes as UK employers will be expected to continue to follow EU rules until 2021. There is also strong public support for the protection of existing workers’ rights beyond this date, despite government plans recently being criticised for lacking clarity in this area.

But since the EU referendum in 2016, a major concern has been how Brexit will affect access to the staff employers need, especially in sectors that rely on overseas labour like healthcare, social care and hospitality.

Even though a deal has not yet been struck, it is understood that Brexit will end the free movement of EU citizens between the UK and EU nations and a new immigration regime that covers all non-UK nationals will be brought in.

Just what impact this will have remains to be seen, but immigration from the EU has decreased substantially since the referendum and this downward trend may continue depending on if a deal is struck. According to the latest Office for National Statistics estimates, EU net migration stood at 48,000 in the year ending June 2019, compared with over 200,000 in 2015 and early 2016.

As things stand, EU citizens will still be able to enter the UK freely during the transition period, so employers will still be able to access workers during this time. If the UK leaves without a deal, these staff and their families will need to apply for European Temporary Leave to Remain status to continue to live and work in the UK in 2021.

Employing EU citizens

• Compile a list of employees who are EU citizens and may be affected by Brexit.

• Start to reach out to them to understand their circumstances and to see whether they have applied for the EU settlement scheme.

• More than one million EU citizens have, so far, been granted settled or pre-settled status since the scheme was introduced – around two thirds of Europeans in the UK are yet to register.

• Consider putting FAQs and an information sheet on your intranet or hold drop-in sessions for EU citizens working in your organisation.

Key points on the EU Settlement Scheme

• EU, EEA (EU countries plus Liechtenstein, Iceland and Norway) or Swiss citizens and their families can apply to the settlement scheme now, to be able to continue to live and work in the UK after 30 June 2021.

• If the application is successful, the individual will be granted either settled or pre-settled status.

• Settled status is usually given to individuals who started living in the UK by 31 December 2020 (or the date when the UK leaves the EU in a no-deal scenario) and who have lived in the UK for 5 years continuously.

• Pre-settled status is usually given to those who do not have 5 years’ continuous residency in the UK when they apply and are living in the UK when the UK exits the EU. When the individual reaches their 5-year anniversary of living in the UK, they will be able to apply for settled status. Individuals can stay in the UK for a further 5 years from the date they receive pre-settled status.

• Under both settled and pre-settled status, individuals have the right to work in the UK.

• The deadline for applying to the settlement scheme is 30 June 2021 if the UK leaves with a deal, and 31 December 2020 if the UK leaves without a deal.

Things to know about the EU Settlement Scheme for employers

• It’s the individual’s responsibility to make an application to the scheme. There is no requirement for them to inform you, as their employer, or for you to ensure that they have applied.

• You cannot make an offer of employment or extension of employment on the condition that they have made an application to the settlement scheme. This is considered discriminatory.

• Current ‘right to work’ checks, for example using a passport or national ID card, are valid until the end of 2020.

• In the event that the UK leaves the EU with a deal, the rights and status of EU citizens living in the UK will remain unchanged until 30th June 2021.

• In the event of a no-deal scenario, this date is amended to 31st December 2020.

• You must be careful not to provide any advice with regards to immigration to your employees unless qualified to do so.

• You will not need to carry out retrospective checks on existing EU employees when the UK transitions to the future skills-based immigration system.

• Employers are not legally obliged to communicate to employees about the settlement scheme; however, it may be useful to point them in the right direction for information.

It is important for employers to maintain open and transparent communication with their staff around Brexit and its employment implications. Employers should support staff effectively in applying for the EU settlement scheme, if they wish to do so.

If you need assistance please email or call +44 (0)7917 878384

January 11

Three KEY changes to employment law in April 2020…..ignore them at your peril!

Three key reforms that are coming into force in April 2020 should be on your radar now, and below are some tips for how to prepare for them.

(1) New reference period rules for calculating holiday pay

At the moment, the way to calculate holiday pay for workers with variable pay is to look back at the 12-week period prior to taking the holiday. An average is taken over that 12-week period.

The change

From 6 April 2020, the reference period will be changed to 52 weeks, or the number of weeks of employment if a worker has been employed for less than 52 weeks.

The background

Ever since the European Court of Justice (ECJ) held that holiday pay must take into account “normal remuneration” such as contractual or regular patterns of overtime, pay allowances and certain commission payments, the 12-week reference period has been problematic. Fluctuations in pay can lead to higher holiday pay if leave is taken immediately following peaks and lower holiday pay if it is taken following troughs.

What you need to do

• Consider when and how you make the change: For the purposes of holiday pay, many firms begin their year on 1 January. If that is the case, you need to decide whether to change the way you calculate holiday pay on 6 April, or at the start of your holiday year. Christmas brings high levels of overtime for some sectors, which could have repercussions on holiday pay if you switch to the new system in January. It could also mean that people who work the same hours receive different holiday pay simply because of the dates they take leave. If your financial year ends after 6 April, the value of accrued but untaken holiday will increase, meaning you may wish to limit how much holiday can be carried forward.
• Adjust your HR systems: The 12-week reference period will need to be altered to 52 weeks.
• Review your variable pay policy: If you have not started to include variable pay in your holiday pay, now may be a good time to do so, given that the reference period was one of the few pieces of holiday pay case law that was unclear. If you decide to tackle this, it is important to assess what pay components you will cover and whether this could trigger claims for backdated holiday pay.

(2) Changes to the tax treatment of off-payroll labour

The change

From 6 April 2020, changes to tax legislation regulating off-payroll working (commonly known as IR35) also come into effect. These new rules will require larger private sector businesses to deduct income tax and National Insurance contributions via payroll from fees for services paid to a personal service company (PSC) where the individual performing the services would, but for the PSC, ordinarily be regarded as an employee of the client company for tax purposes.

The treatment of individuals who are directly engaged by the client company — for example “Joe Bloggs” rather than “Joe Bloggs Limited” — will remain the same. The correct tax treatment of the fees paid to these workers will depend on whether they are in reality an employee of the client company for tax purposes, or if they’re genuinely self-employed.

The background

At present, the tax liability rests with the PSC. The change will be accompanied by obligations on the client company to determine the correct position for each engagement and notify the other parties involved. It pays to be prepared for this reform. When similar changes were introduced in the public sector two years ago, many organisations were caught out.

What you need to do

• Audit your off-payroll labour: It is a good idea to start doing this as soon as possible, as the audit process could take some time. It is likely you will need to make individual decisions and have different communications with each PSC. The audit will be a factual investigation, looking at what each individual does in practice, how they do it, what contracts they’re engaged under, how they are paid etc. This may also be a good time to audit any off-payroll labour that is not provided through PSCs.
• Consider the knock-on effects: The audit is likely to have knock-on consequences that may require legal advice. As well as determining employment status, you may need legal advice to amend or draft contractual documentation, to advise on the effects on pension liability, and to consider how this change intersects with rules around immigration, the apprenticeship levy, and the gender pay gap reporting figures and strategy. In addition, if liabilities are identified or a revised model of working is required, accountancy input may be needed to quantify the position.

(3) Written particulars becoming a “day one right” for workers and employees

The change

The requirement to give written particulars will be altered in three key ways:

• It will become a “day one right” for those employed after 6 April 2020 – rather than the current position of needing to provide particulars within two months of the start date;
• It will cover workers as well as employees; and
• It will need to cover additional topics, such as probationary periods, any variation in working hours, and “any other benefit provided by the employer”.

What you need to do

• Review your contracts: Begin by revisiting all contracts used to engage employees and workers in readiness for new starters arriving after 6 April 2020. Most of the new areas are formulaic, but some thought will need to be given to areas that are more complex.
• Consider the impact on flexible working: If your workforce includes flexible working patterns, such as shift workers or zero hours workers, you will need to consider how your approach may vary and build this into your terms.
• Assess your benefits: To cater for the somewhat vague “any other benefit” requirement, you will need to decide what types of benefits should be covered and their contractual status.

Although these legal reforms may seem minor at first sight, they require HR teams to review key processes and possibly make important changes that have legal and financial consequences.

If you need assistance please email or call +44 (0)7917 878384

December 5

IR35: are you ready…?

Introduction to IR35

IR35 is a word used to describe two sets of tax legislation that were designed to combat tax avoidance by workers who were supplying their services to clients via an intermediary, such as a limited company, but who would be an employee if the intermediary was not used.

IR35 has been heavily criticised which is why the government is replacing the original IR35 legislation with the new Off-Payroll Tax which was initially introduced into the public sector in April 2017 and will be extended to the private sector from April 2020. Confusingly it is also referred to as IR35….

Genuine contractors, freelancers and consultants, in business on their own account, will have nothing to fear from IR35.

The new regime

So, from 6 April 2020, there are new rules:

• that require organisations,
• which engage workers via a personal service company (a limited company that typically has a sole director, the contractor, who owns most or all of the shares)
• to undertake checks to determine whether that worker should be treated as an employee or as self-employed for tax purposes, and
• account for income tax and national insurance if sufficient characteristics of employment exist.

In a nutshell, the changes coming in move the responsibility for determining whether contractors should be taxed as employees or self-employed on to the end user of the services (the client), rather than on the contractor.

They also impose the obligation to operate PAYE and NIC on the client rather than leaving it to the discretion of the contractor.

How it will work

The key amendments to the IR35 legislation are as follows:

• A client who engages self-employed contractors through personal service companies will now be required to carry out an IR35 assessment before a contract begins.

• The client must then issue an IR35 status determination statement which is a comprehensive statement which declares the following:
o The contractor’s deemed employment status
o The reasons behind the conclusion reached on the employment status

• From 6 April 2020 a status determination statement is to be completed for each new personal service company engagement and for each existing such engagement due to receive a payment after this date.

• It is important to note that the requirement to issue a status determination statement for each contractor only impacts where the client engaging the contractor is a medium or large business – if two of the following are met:
o generate more than £10.2 million revenue per year;
o have more than £5.1 million of assets; and/or
o have more than 50 employees.

• Clients who are small businesses will not be required to issue determinations (at least not yet).

• If employment status is determined it is then down to whoever pays the consultant’s fees to deduct income tax and national insurance contributions from payments made to them. It will therefore not matter whether the individual is invoicing a company personally or through a personal service company – if sufficient characteristics of employment exist then the end user, the client, will have to account for income tax and national insurance.

• If an individual disagrees with the determination of their status, the client will have 45 days to review the decision under a “status disagreement process”. The client will either have to change the individual’s status or provide them with confirmation of their original decision and reasons why they came to this conclusion.

The new IR35 rules will therefore significantly increase the risk involved in mislabelling workers and employees as self-employed. This is particularly the case where the mislabelling has occurred for several years and there will be back taxes, interest, penalties, costs and expenses to be settled with HMRC.

How should businesses prepare?

For the best possible chance of avoiding liability under IR35, companies should now be considering how their business is structured and how they currently engage with contractors. This should include:

• Reviewing existing contracts – contracts can be drafted to mitigate the risk of IR35 applying. Similarly, a poorly drafted contract can substantially increase your risk.
• For identified contractors falling within IR35, considering whether the extra costs are commercially necessary, or whether their current contracts should be amended or terminated.
• Estimating any likely cost increase due to the employer’s national insurance contributions and potential changes in the contractor’s rates.
• Reviewing systems and processes around your businesses engagement of contractors.
• Providing training for employees who are responsible for determining the status of contractors engaged by your business.

How can GoodHR help?

We can:
• Provide advice to help determine the employment status of a worker
• Provide advice on how to produce a status determination statement
• Help to review your existing engagements to decide whether the new rules are likely to apply to them
• Draft new contracts to take in to account the new rules
• Advise on (and implement strategies to) mitigate IR35 risk arising out of contractor engagements.

Call us on +44(0)7917878384 or email for expert advice and assistance.

November 18

Beware the perils of sharing Christmas party antics on social media……!!

The festive season is about to begin. As Christmas draws nearer it’s time to let your hair down and enjoy a few drinks at your company’s annual Christmas party. However, it can be difficult to know where the red line is, with any ‘wild’ behaviour likely to be recorded and shared on social media without your permission.

With social media and recording devices in most people’s pockets these days, people’s behaviour at a party can now be posted for a global audience in the blink of an eye. An organisation’s reputation can be tarnished and people’s careers damaged by spur-of-the-moment recording and posting of office party activities to the online community.

Aside from the reputational risk, an employer will also be concerned that information and pictures posted online in the public forum will result in discrimination or bullying claims.

Some of the questions that managers need to ask themselves as the festive season approaches are:

• Do we have policies for the use of social media in the workplace and work situations?
• Are these policies clearly articulated to the workforce?

Say cheese!!

The proliferation of smart phones means that there are an awful lot more party pictures and videos recording exactly what is happening at the Christmas bash – they have a way of taking on a life of their own when posted online.

• Do your policies make it clear that employees should not engage in activities, either in or out of work, which might bring the company into disrepute including:
o making derogatory comments
o posting inappropriate or drunken pictures on social media sites?

• Do your policies make it clear that posting negative or inappropriate pictures could constitute discrimination and/or bullying?
• Are staff aware that these policies apply to what goes on at the party and afterwards, even if out of the office?

She said what…?!

The prevalence of smart phones also pose a similar but different problem – gossip. A few glasses of wine could be all that it takes for an employee to spill company secrets or badmouth clients or colleagues during a Christmas event on Twitter or Facebook. Additionally, employees may use social media to gossip about things afterwards.

• Policies must be clear about what is expected of employees to enable employers to discipline and/or dismiss without facing potential claims.
• Employees must be clear about what constitutes confidential information, and the fact that disclosure of such information is prohibited at any time including through social media sites.
• Staff should also be aware that posting confidential information or negative comments about clients or third parties is also prohibited.
• Policies prohibiting discrimination, harassment or bullying should expressly refer to social media.

Have you seen their Facebook status?!!

Production levels often drop in the weeks leading up to Christmas but what should you do if an employee claims that they are ill but Facebook tells you that they are too hung over to come into work, or are off doing some last minute Christmas shopping?

Do not jump to conclusions! As with any potential disciplinary matter, a thorough investigation is essential before any disciplinary sanction is imposed. A failure to do so could result in grievances and/or claims.

Employers should also be aware that monitoring employees’ activity on social media without their knowledge could infringe their right to privacy. Employers will need to consider whether this is the case and, if so, be able to justify the interference on the basis that there was a legitimate reason to carry out the monitoring and that it was proportionate.

Too much red tape spoils the party……

There is no reason why your employees should not be able to enjoy the Christmas period without you having to wrap it up in lots of red tape and policies. If you make sure that employees understand their social media obligations, you can still see off the year with a festive bang.

However, managers should be encouraged to lead by example, adopting an appropriate management style both at the party and afterwards. If managers see inappropriate material posted on social media websites and do nothing about it then employees may think that is alright for them to post gossip or unpleasant images.

The combination of age-old celebrations and the new information age can be a dangerous mix. The key point is there is still time to address these issues before the party season gets into full swing!

Professional advice and support is on hand if you need it… or call Nicola on 07917 878384

October 15

Progress on greater transparency on mental health in our workplace is SLOW……you could do better!

In our April 2019 newsletter…’Be a progressive employer and conduct a disability, mental health and wellbeing audit in the workplace’…. we outlined the benefits to be reaped by those employers who drive greater transparency on disability, mental health and wellbeing in their workplace….

Six months on research suggests that progress is slow……

The Government Review, Thriving at Work, believes that ALL employers, of whatever size, can and should meet the following core standards:

• Produce, implement and communicate a mental health at work plan
• Develop mental health awareness among employees
• Encourage open conversations about mental health and provide support when employees are struggling
• Provide your employees with good working conditions
• Promote effective people management by training managers
• Routinely monitor employee mental health and wellbeing.

Disappointingly, recent research has revealed that only a fifth of the employers polled had met even the first of the core standards, above, and almost half had not made any progress at all towards it. Therefore, the majority of organisations in the UK do NOT have a mental health at work plan.

This suggests employers are missing opportunities to intervene at a much earlier stage to minimise the amount of time lost to sickness absence. The latest figures serve as a stark reminder as to just how costly this is for UK employers…..poor workplace mental health, which is the main cause of sickness absence, is estimated to cost between £33bn and £42bn each year.

Mental health is undoubtedly higher up the HR agenda than at any other time. However, much more work needs to be done to ensure organisations have a culture that encourages timely disclosure of mental ill-health – this in turn allows for early intervention, that may minimise the length, severity and impact of a mental ill health episode.

What is required is the development of skills and competence among line managers, and resources need to be found to do just this. Line managers are vital in creating workplaces that are positive for people’s mental health and wellbeing, but they need to be equipped with the right skills and knowledge to do this.

Just a few snippets from the recent research which support the need to train your managers properly to deal with mental health and wellbeing:

• Line managers think they do not get enough help from their organisation to support the mental wellbeing of their staff, despite this being viewed as vital in the creation of mentally healthy workplaces.

• Fewer than a third of managers had been sufficiently trained to recognise the signs of mental ill-health in their staff.

• Line managers either have never heard mention of a mental health at work plan or heard about it in passing but have not received support to create one.

• Very few managers ever discuss mental health at all with their direct employees or reports and even less admitted to discussing their reports’ own mental health.

• The majority of UK workers would not discuss mental ill-health with their manager because they were concerned they would be judged as incapable. Instead they would confide in a colleague.

• It is believed many employees have taken absence because of mental ill-health but that is not the reason given for their absence.

Businesses need to work hard to break down these taboos, by investing in training their management teams and thus creating more open lines of communication.

It is undoubtedly an area loaded with often sensitive, and therefore challenging issues, but it is worth remembering that an organisation that promotes transparency around disability, mental health and wellbeing will inevitably enjoy improved employee engagement and retention with consequent gains for performance and productivity.

Professional advice and support is on hand if you need it… or call Nicola on 07917 878384

October 2

Thomas Cook, British American Tobacco, possibly Ryanair are facing redundancies….here are our top ten redundancy pitfalls……………

We have seen the collapse of Thomas Cook in the last week resulting in thousands of job losses and now Ryanair has urged its pilots to go on unpaid leave or transfer to other bases to avoid redundancies of the kind that have resulted from the demise of Thomas Cook.

There is more to making someone redundant than handing them a letter and waving them off!

Here are our top 10 redundancy pitfalls:

1. Defining the pool for redundancies incorrectly

The first danger is that the employer can define the redundancy pool too narrowly.

In some circumstances only one employee may be potentially affected by the redundancy and there will be no need to identify a pool for selection. In all other situations the pool of selection must relate to the reason for the potential redundancies, which can be tricky where employees hold similar positions or where employees’ skills are interchangeable. If in doubt put the whole pool of those “at risk” from redundancy and consult them on the selection criteria.

2. Not offering suitable alternative employment

Even though vacancies may be few and there is no legal requirement for the employer to create a vacancy, it is still under an obligation to consider suitable alternative employment in the organisation or its associated bodies.

The employee has a four-week trial period in this alternative post. If they unreasonably reject it, then the redundancy payment may be forfeited.

Remember that a woman on maternity leave must be offered a suitable alternative post before those “at risk” staff that are not on maternity leave.

3. Absence of a genuine redundancy situation

A genuine redundancy occurs where the business or workplace is closed, or there is a diminished need for employees to carry out “work of a particular kind” – that is, a reduction in the size of the workforce. A reorganisation of the business could also lead to redundancies.

Less principled employers may see an economic downturn as a great opportunity to get rid of underperforming staff. This is to be avoided at all costs – an employer failing to prove there is a genuine redundancy situation could end up facing a charge of unfair dismissal.

4. Failure to carry out a fair selection procedure

To prove a role is genuinely redundant, employers must carry out a fair selection procedure, using transparent, consistent and objective redundancy selection criteria. They should avoid choosing an individual for redundancy because of a characteristic such as pregnancy, age or length of service. ‘Last in, first out’ may still be a valid selection criterion but only as one of many others, not on its own.

5. Failure to consult properly on collective redundancies

Consultation is fundamental to a fair redundancy procedure. If an employer is considering making 20 or more redundancies at any one establishment, then it is under a strict legal duty to consult with elected representatives of the workforce for a minimum of 30 days – if laying off 100 or more staff, the minimum period of consultation is 45 days.

The consultation must be “meaningful”; it must not be a “sham”. The decision to make an employee redundant must not have been taken before the consultation begins and the employer should avoid implying that a final decision on the redundancies has already been reached: redundancy is only a possible option at this stage.

6. Failure to inform and consult on an individual basis

Furthermore, even if such collective consultation takes place, an employer is also under a separate duty to consult individually with each employee selected for redundancy. This duty applies in all cases, regardless of the number of redundancies being made. Again, the consultation must be proper and “meaningful”. As with the collective consultation process, it should be a two-way dialogue exploring ways of avoiding, or at least mitigating the effect of the redundancy.

This individual consultation with the “at risk” employees is an essential and integral part of a fair dismissal. Again, failure to consult can lead to the award of hefty compensation for an unfair dismissal.

7. Failure to consider alternatives to redundancy

Employers leaping onto the redundancy bandwagon leave themselves at real risk of being left ill-equipped for the upturn. By failing to consider alternatives to redundancy, they may end up losing skilled and valuable employees, maybe even finding themselves short-staffed. The following should be considered:

• Review whether or not any new vacancy can be filled by redeploying an existing member of staff, with appropriate retraining where necessary.
• Review overtime to see if it can be reduced or stopped altogether.
• Invite staff to volunteer for reduced hours or alternative ways of working.
• Consider reducing or stopping the use of temporary staff.
• Consider seeking agreement to a temporary reduction in the number of days/hours that staff work.
• Consider inviting employees to apply for sabbaticals on part or no pay.

8. Failure to train managers in how to carry out the redundancy exercise

While HR can slink off to its own department once a redundancy announcement has been made, it is up to line managers to cope with redundant staff in the run up to their departure.

Lacking the skills and experience to do so effectively and compassionately will make the situation worse for all concerned – including ‘surviving’ staff.

Communication is key – employers must make sure everyone involved (particularly those being made redundant) hears the news in a timely and appropriate fashion, through the right channels. This is especially important today when so many people use social media for instant communication.

9. Not accounting for the extra costs and resources involved

Redundancy does not begin and end with breaking the news. Employers should be very careful to allocate resources – both time and money – for the duration of the consultation period, and often beyond. Remember as well as a redundancy payment there is also a notice payment that needs to be made in lieu if an employee is not going to work their notice. Accrued but untaken holiday also must be paid to an employee being made redundant. It’s worth also considering the potential for challenges to the redundancy in employment tribunal.

10. Failing to account for the wider effects of the redundancy exercise

It’s inevitable that the staff left behind will suffer from low morale, lower productivity and possibly even increased absence.

They may even suffer ‘survivor guilt’. Employers should never underestimate the impact redundancies can have on remaining staff.


It is essential that employers get the planning and documentation right during a redundancy exercise. Effective communication is vital. An employer should not underestimate the level of compensation that may be awarded by an employment tribunal if it gets something wrong, let alone the legal costs and wasted management time in defending any such proceedings. Nor should the employer underestimate the effect on staff morale of a redundancy situation in the workplace.

September 10

How long should you keep employee records for….?

The GDPR maintains the line that “data should not be kept longer than necessary for the purpose for which it was processed.” But how does this relate to the different elements of personal data placed in HR’s care?

How long to keep recruitment and applicant data?

During your recruitment process, there’s a lot of data that comes your way (CVs, cover letters, interview notes). Ideally, you’ll want to keep this information for at least six months. This is the period of time during which a discrimination claim could be brought against your organisation. The data you collect during your recruitment process is important for defending any of these potential claims.

If you want to keep CVs on file longer than six months, for example in a talent pool for future opportunities, then you’ll need consent from the applicants. In the interest of keeping information you hold up-to-date, you might want to consider asking applicants in your talent pool to review and update their CV, as well as asking them to re-issue their consent. If you do not gain the applicant’s consent, you should remove their CV from your system.

How long to keep payroll data?

Data relating to PAYE must be kept for three years after an employee leaves your company, as that is how long the HMRC may be interested in the information for conducting reviews or audits. Beyond this, you are unlikely to have a legitimate interest reason for holding pay information for ex-employees. You should therefore remove this information.

How long to keep employee records?

Data such as employees’ personal records (including salary and bonus records), performance appraisals, employment contracts, etc. should be held on to for six years after they have left. This is because whilst employees can bring a claim in a tribunal up to three months after leaving an organisation, they can bring a county or high court claim many years down the line. Under the GDPR, the condition for processing would be legal obligation, or legitimate interest.

See below a helpful chart to have as your ‘go-to’ if you remain unsure!

Accident books, accident records/reports : 3 years from the date of the last entry

Income tax and NI returns/records: not less than 3 years after the end of the financial year to which they relate

Medical records as specified by (COSHH) : 40 years from the date of the last entry
SMP record and certificates : 3 years after the end of the tax year in which the maternity period ends
SSP records : 3 years after the end of the tax year to which they relate
Wage/salary records : 6 years
National minimum wage records : 3 years after the end of the pay reference period following the one that the records cover
Records relating to working time : 2 years from date on which they were made
Application forms and interview notes : 6 months

How to keep your employee data GDPR compliant?

Remember that GDPR has some serious teeth, with huge fines possible for those that transgress. So, it’s wise to go above and beyond what you think is required to ensure you don’t fall foul of these new regulations.

To keep yourself safe, put every category of employee data through this six-step procedure:

1. Carry out an audit – undertake an audit of all your current record keeping to identify how your data is kept, why it is kept, for how long and the reason for that length of time.

2. Put someone in charge – appoint a record keeper with responsibility for this area.

3. Write a statement – draw up a data protection impact statement that details risks associated with your records. This should be added to your existing business risk register.

4. Protect your data – make sure your data is held securely, is backed up, and can’t be stolen or tampered with.

5. Uphold individual rights – ensure that you can access, change or delete data if asked to by an employee

6. Have regular clear outs – check your data regularly and destroy any records you don’t need. If you find that some data needs to be kept for longer than first thought, you must receive consent from all employees involved.

July 3

Summer holidays are approaching….are your employees taking their leave?

Mismanagement of annual leave can have a dramatic impact on a company’s business, as demonstrated by Ryanair’s cancellation of hundreds of flights after it admitted “messing up” the planning of pilots’ holiday a couple of summers ago. Where do employers commonly get annual leave wrong?

1. Not encouraging employees to take annual leave across the leave year

Allowing staff to build up too much annual leave and not spread out their holidays over the year can be a major problem for employers.

This could occur if there is an excess of work to do or a business is struggling because of the economic climate. Employees may feel that they are simply not in a position to take annual leave at certain times during the year without putting their job at risk.

Employers should therefore encourage employees to plan and take annual leave, to help maintain employees’ health and motivation. This will also prevent the workforce from building up an excessive amount of leave to take at the end of the leave year.

Typically, the responsibility for monitoring annual leave is allocated to line managers, who should periodically check their employees’ annual leave balance and remind staff that they need to use the holiday up by the end of the leave year.

2. “Buying out” employees’ annual leave entitlement

An employer may be tempted to offer staff a cash substitute in return for giving up their annual leave entitlement, for example to solve a staffing crisis, complete a big project, or tackle a build-up of accrued but untaken holiday across its workforce.

However, it is a fundamental principle of annual leave law that an employer cannot give employees payment in lieu of their minimum statutory annual leave entitlement (i.e. the 5.6 weeks guaranteed under UK law).

The exception to this is on termination of employment. When an employee leaves a job part way through the holiday year, he or she will be entitled to be paid for any accrued statutory holiday not taken at the date of termination.

3. Allowing employees to carry over excessive amounts of holiday

The general rule is that if holiday is not taken in the correct holiday year it is lost unless an employee is unable to take the leave due to sickness or family related leave.

However, contracts of employment often permit carry over of holiday into the next holiday year although they often put a cap on the number of days that can be taken and impose a rule requiring the excess leave to be used up with the first few months of the next holiday year.

4. Allowing too many employees to take leave at the same time

One of the biggest dangers for employers is the knock-on effect on the business of allowing too many employees to take time off during particular periods, typically the summer or at Christmas.

Line managers can sometimes be reluctant to turn down employees’ holiday requests, particularly if an employee has already planned out a trip or has a family commitment.

Employers should have a clear policy on holiday requests (typically, a “first-come, first-served” approach). Line managers should be brave enough to turn down holiday requests (with the correct notice) when the timing of leave would cause the business difficulties.

5. Not paying employees the right amount during annual leave

In recent years, perhaps the single biggest employment law headache for UK employers has revolved around the calculation of holiday pay.

Employers should now be aware that it is no longer permissible to calculate holiday pay on the basis of an employee’s basic pay only. Pay during annual leave should now include other payments such as overtime pay (both compulsory and voluntary), commission, standby/call-out allowances, shift premia and travel allowances.

Employers need to decide on a sensible approach to holiday pay calculations, particularly the length of time used to calculate the average (with 12 weeks being a popular suggestion) and what allowances should be included (if in doubt, include it).

A holiday pay miscalculation across the workforce could be costly in the long run.

Managing annual leave: dos and don’ts for line managers

• Do encourage staff to submit dates for their holiday as far in advance as possible.
• Do review regularly whether or not employees have taken, or at least planned to take, some of their holiday leave.
• Do remind employees periodically how much annual leave they have outstanding.
• Do ask any employee who has not taken any holiday or submitted any holiday dates by for example the middle of the holiday year to nominate holiday dates as a matter of urgency.
• Do ensure that holiday leave is planned in such a way that the department has adequate cover at all times.
• Do be proactive in the management of holiday.
• Don’t leave the matter of holiday to chance.
• Don’t take the view that it is up to each individual to decide whether or not he or she wants to take holiday.
• Don’t wait until near the end of the holiday year before reviewing whether or not employees have taken all their holiday.
• Don’t give in to employees’ requests for pay in lieu of holiday.
• Don’t make staff feel guilty about taking holiday.

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