March 24

What is ‘furlough’ leave….the pros and the cons….?

The Coronavirus Job Retention Scheme was established by the government on 20 March 2020 and will be administered by HMRC.

The scheme will make available grants to those employers who elect to furlough, rather than lay off, employees who are without work during the current crisis.

What we know so far:

• All businesses are eligible, of any size and in any sector, to apply to use the scheme.
• The scheme involves “furloughing” designated employees who would otherwise have been “laid off” during this crisis.
• Any employee can be furloughed provided they are on PAYE and earn more than £118 per week.
• Zero hours workers who fulfil the same criteria may also be furloughed – the pay will be calculated taking an average over 52 weeks.
• This means that staff will be kept on the payroll instead of making them redundant or putting them on unpaid leave.
• HMRC will reimburse 80% of furloughed employees’ gross ‘wage costs’, up to a cap of £2,500 per month per employee.
• ‘Wage costs’ are expected to include wages, pension contributions and employer national insurance contributions.
• The employer can top-up the 80% HMRC payment but does not have to do so – it is recommended employers are consistent across all of their staff.
• Employers who have already made redundancies are encouraged to take back anyone they had dismissed and put them on furlough instead.
• The employer needs to pay their furloughed staff and then be reimbursed by HMRC.
• Employees cannot do any work for an employer that has furloughed them.
• There is nothing preventing employees from going to work part-time hours for another employer to top up their pay.
• The scheme will be backdated to 1 March 2020 and run for three months from that date. It will be extended if necessary.
• Employers need to decide on the employees and workers that you want to furlough and then submit the information to HMRC via a new portal which is due to be in place by the end of April 2020.
• Consent to the new arrangement needs to be obtained from all employees and workers in the correct format.
• The employer is likely to need to maintain benefits for furloughed staff, unless it agrees something different with them.
• Holiday is likely to continue to accrue during the time that staff are furloughed.

Less positive aspects of the scheme:

• It does not help where employees had agreed to reduce their hours, or to a pay cut but where they are still required to work. There is currently no option to do a mixture of reduced hours and furlough leave.
• It may create resentment between employees:
o Some will be at work getting either full or reduced pay
o Others will be on furlough leave getting paid at least 80% to do nothing
o Those off sick may only get SSP which at around £95 per week is likely to be less than 80% of full pay.
• There will be an incentive for employees not to notify their employer if they become sick or need to self-isolate during furlough leave because of these adverse pay consequences.
• Likewise, the employer will also be better off as they can only reclaim 14 days of SSP as opposed to indefinite furlough leave.
• The employees concerned will remain on the employer’s payroll and will continue to accrue holiday and service.

Next steps:

The scheme is clearly welcome news for the many businesses now struggling to cope with the Coronavirus crisis. Nonetheless, a careful approach is required when determined whether to furlough, or not to furlough….

For any advice, email or call +44(0)7917878384

March 20

How to safely change employment terms in the face of COVID-19….

Realistically, an employee isn’t going to complain about a pay rise or more flexible working arrangements – but what happens when proposals are less favourable? How do employers safely impose employment terms?

In the current coronavirus crisis, employers are having to make tough decisions and make the following sorts of changes to contractual terms:

1. Unpaid holiday/sabbatical for a chunk of time – say a month…or two….
2. Pay cut – employees work a full working week for less pay
3. Reduced working hours – reduce to a four, three or two-day week – less work for less money
4. Job shares – employees in a similar job share the job thus both working only half a week
5. Redeployment to other parts of the business in response to workflow requirements
6. No bonus or salary review
7. No overtime even if usually guaranteed

It’s important to understand the rules surrounding contractual changes in order to avoid legal pitfalls………..

Can I impose whatever terms I want, so long as the employee agrees?

No – the law establishes certain minimum duties and obligations that all employers must abide by. For instance, you cannot agree with an employee that you will pay them below the applicable National Minimum Wage. The law will override any agreed terms that do not fulfil statutory duties.

Do I need to consult the employee before implementing a change?

Yes, receiving express agreement from the employee is the safest way to vary a contract, as imposing new terms unilaterally may constitute a breach of contract.

If you want to make the changes you should:
• meet with the employee to explain your case for making the proposed change
• allow the employee time to consider the proposal and to put forward viable alternatives.

It’s likely that engaging the employee in the discussion and allowing them to express their views will make them more receptive to the change.

Do I need to get the employee’s consent in writing to the changes?

Yes, where it has been agreed to vary an employee’s contract and the change relates to a significant term in the contract, as detailed above, the changes should be recorded in a variation of contract letter which must be countersigned by each employee affected within one month of the change taking effect. Once signed this letter is then appended to the contract of employment and put into the employee’s HR file.

If you change terms and conditions that are not included in the contract, you must inform your employees of where they can access information about the change, for example in your Employee Handbook or on your intranet.

The employee is refusing to accept the change. What can I do?

Talk to them and give them time to consider and respond to your proposal. Explain again the reasons for the changes.

If, after lengthy consultation and negotiation, you’re unable to reach agreement, you can serve the individual employee notice that you will terminate their existing contract and offer a new contract with the new employment terms and conditions. If this is the route you decide to take, you must give the correct notice period to help avoid wrongful dismissal claims – although be mindful that claims can still be brought and advice should be sought to navigate safely through this process.

What happens if an employee brings a case for unfair dismissal?

In order to defend unfair dismissal claims, employers must be able to show that they had a fair reason to dismiss and followed a fair procedure (which is where consulting with the employee will come into play).

In unfair dismissal cases relating to changes to contractual terms and conditions, the outcome will often come down to the employer’s ability to demonstrate, with evidence, that they had a sound business reason for the dismissal – the reason given mustn’t be trivial but also doesn’t need to be as extreme as to be the determining factor in your business going under.

For any assistance, do email or call +44(0)7917878384

March 16

How to save staff costs as coronavirus takes hold….without taking the final step of redundancy….

As the coronavirus gathers strength employers may be looking to cut costs if they work in a sector where home-working is impossible. Employers will want to retain skilled and experienced, valuable staff and avoid the negative impact on morale that compulsory redundancies can result in.

Below are some alternatives to the final step of redundancy……

1. Recruitment freezes
Where possible, aim to avoid replacing employees who exit the business. Consider whether you can fill vacancies by redistributing work amongst existing staff or by accepting internal applicants before advertising externally.

2. Lay offs
You can ask your employees to stay at home. A lay-off is where employees are off work for at least one working day. There’s no limit for how long employees can be laid off but they should get full pay unless the contract allows unpaid or reduced pay lay-offs. If employees are unpaid they are entitled to guarantee pay.

3. Short time working
You can ask employees to work fewer hours or days in a week, unpaid. This can be on a temporary basis within a defined time period or indefinitely until business picks up. You will need the consent of the employee to mitigate any risk of breach of contract and/or constructive dismissal claims. However, provided they consent you can reduce staff hours to save costs, keep the business going with a skeleton staff in the hope that the business is viable and able to employ them fully when business has picked up.

4. Pay freezes or cuts
While pay rises are always desirable, it is likely that employees will be happy to settle for job security rather than a pay rise.

5. Pay deferral schemes
These allow a temporary deferral in pay, to be given back to employees at a later date.

6. Remove overtime
This may be an effective way to reduce costs, especially if there is no business requirement for overtime. However, banning or restricting overtime would need to be communicated carefully to employees, and employers would need to explain that it is a means of avoiding compulsory redundancies.

7. Reduce use of agency workers
Relying on core staff and cutting freelance cover is an option, especially in times of reduced demand.

8. Cut bonuses or pension payments
Never popular but employees will understand if this is a way to avoid other more drastic measures being taken.

9. Sabbaticals (paid or unpaid)
Arranging unpaid sabbaticals/career breaks can be a great way to save on the costs of salary for a fixed period of time, whilst retaining valuable staff and giving them the opportunity to do something for themselves such as study, travel or voluntary work.

10. Secondments to other companies
Internal or client secondments can work well to either train an employee in a certain area or provide a specific service to a client. This may help to consolidate client relations and/or develop the employee’s knowledge/skills, ultimately benefiting the employer’s business when the employee returns to their original role.

11. Redeployment in other parts of the business
If one area of the business is busier than another, it may be possible to retrain an employee with transferable skills to take up a new role on a temporary or permanent basis. It may also be possible to carry out a restructure without the need for any job losses, by redefining existing roles in line with work demands. Any significant changes will need to be agreed in writing with the relevant employee. Any redeployed employees will also need to be given training to ensure that they are properly equipped to perform the new role.

12. Purchase of additional annual leave
Offering employees the opportunity to take extra holiday in exchange for a pro rata reduction in salary, can save some money in the short-term during quiet periods. However, the parameters of this arrangement would need to be set out clearly, in writing.

13. Voluntary redundancy
Although offering voluntary redundancy can take some control away from the employer in terms of selecting roles for redundancy, it is the employer’s final decision as to whether or not to grant an application for voluntary redundancy. Ultimately, offering a voluntary redundancy package might reduce the need to make compulsory redundancies.

In order to protect the employer, care must be taken, the correct process must be followed and the arrangement should be carefully documented, in respect of all of the above options. If, after exploring the above tips, the requisite cost savings have not been made, then compulsory redundancies may need to be considered.

For advice on any of the above, do email or +44(0)7917878384

March 10

Do you need to re-think your disaster recovery plan….?

Growing concern over the spread of the coronavirus means that employers should have an effective disaster recovery and business continuity plan in place. This means that you should do the following:

• evaluate what will be required to continue, in terms of services, procedures and products;
• consider how this can be done with a limited number of employees;
• consider how the business will continue to function, without the use of a physical office.

The plan should include:

• a list of alternative plans, outcomes and instructions for all aspects of the business;
• methods of preferred communication between staff;
• how you will communicate the expectations that are anticipated during the crisis.

In addition to considering immediate policy issues such as adapting your sickness procedures and publicising your remote working policy, businesses may need to think about longer-term issues such as:

• how to deal with ongoing levels of absence or protracted travel restrictions?
• whether external resourcing agencies will be required to help augment your workforce if significant parts are affected by coronavirus?
• whether you could train existing employees and workers to cover business critical positions?
• who will be responsible for making coronavirus-related decisions that will impact the business and employees and which communication channels will be used to keep employees up to date?
• whether you have up to date contact details for all of your staff and reliable emergency contact procedures.

Develop flexible resourcing plans

As part of your organisation’s contingency plan, explore more flexible resourcing strategies in case your business experiences staffing shortages.

• If roles can’t be performed at home, consider more innovative resourcing solutions that may need to be deployed, such as split shifts to cover essential operations or services.

• Develop strategies to maximise the amount of home working to prevent the spread of infection if necessary. There are many roles that could be performed remotely with little disruption to service delivery.

Investigate ways of using technology to limit the amount of face-to-face contact:

o video conferencing to facilitate remote meetings.
o introducing or maximising the use of self-service options and online services.
o consider issuing staff with laptops so they can work remotely if necessary.

• Increased sickness absence may create a need for other employees, if willing, to work longer hours to keep your business going. If this happens, you will need to comply with the Working Time Regulations 1988 to ensure appropriate length of daytime working hours, night shifts and rest breaks.

Have plans ready to enable your organisation to operate on a skeleton staff if necessary:

o identify key services and roles that are essential and can’t be put on hold, as well as projects or roles that could be temporarily stood down.
o identify those individuals and managers who have transferrable skills, who can fulfil more than one function and could be allocated to more essential roles.

Carry out a resourcing risk assessment of the organisation:

o identifying essential areas of the business where few employees have the required skills.
o training additional employees in these skills should be considered.
o ensure that procedures are developed to ensure smooth handovers for employees who are filling in for colleagues in unfamiliar roles.
o provide additional training and a risk assessment if individuals are moving to roles where there may be a health and safety risk.

Some advance planning now for various scenarios – ranging from how to deal with different types of absences to what circumstances might necessitate a temporary facility closure – could help your business deliver a speedier and more effective response if coronavirus becomes a more widespread problem in the UK.

For any assistance please contact or +44(0)7917878384

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