Welcome guest, please log in here   |    T +44(0)115 7180333   |   E   info@halborns.com

Archive

April, 2020

Dealing with employees’ health and safety concerns

Posted on: April 30th, 2020 by Ginny Hallam

As more and more of you are making efforts to return to ‘normal’, you’ll be taking steps to keep your employees and customers safe. Unfortunately for some employees, these may not seem like enough.

Employees could raise their concerns with you directly, or even refuse to come to work when asked. This can be a challenge, as employees may have statutory protection if they do one of the following:

  1. raise health and safety concerns
  2. raise concerns that you’re not complying with any legal obligation that’s in the public’s interest
  3. carry out the duties of a health and safety representative
  4. walk out of their workplace to avoid serious and imminent danger to health and safety

Employment law risks 

Any employee who suffers a ‘detriment’ as a result of the above can bring an Employment Tribunal claim for loss of earnings and/or injury to feelings with uncapped compensation being available to them.

Here are a few suggestions on how to avoid a claim for unlimited compensation when managing challenges around health and safety.

  1. Investigate thoroughly – you need to establish whether the concerns raised by the employee are genuine. The outcome of that investigation will determine whether you’re entitled to discipline etc. or whether you need to act upon the concerns raised.
  2. Designate an individual to raise concerns with – showing you take concerns seriously and have the appropriate reporting mechanisms in order to address issues early to avoid them spiralling out of control.
  3. Respond in writing to any concerns raised – this will ensure you have an adequate audit / evidence trail should you need to justify your actions.
  4. A ‘safe return to work’ policy – clearly communicating the steps you’re taking to keep colleagues and customers safe, what you expect of your employees and what to do if they have any concerns. Click here to access our policy.

Click here to access our Post-furlough Guidance Note.

This update is accurate on the date it was produced (30 April 2020), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Furlough and redundancy: key considerations

Posted on: April 29th, 2020 by Ginny Hallam

The purpose of the Coronavirus Job Retention Scheme is to do just that – support businesses to retain jobs and employees throughout the current crisis. With the Scheme in place until the end of June, redundancies might not be an immediate consideration.

Even with the support of the Scheme, some may be left with no choice but to consider redundancy. We look at how furlough will impact those decisions and some of the key considerations you should bear in mind. Redundancy situations are challenging at the best of times (without the added furlough complexity), so you should always seek advice from your employment lawyer.

Do you need to wait until the Scheme ends to start redundancy consultations?

No – it’s up to you whether you want to continue to make use of the Scheme or to progress redundancy consultations immediately, although bear in mind:

  1. you’ll need to establish whether you should bring employees back off furlough to consult
  2. you need to apply a fair selection criteria which should avoid penalising anyone who has been furloughed
  3. you’re likely be to challenged on why redundancies are necessary as furlough could continue
  4. you won’t receive support from the government for any redundancy payments so you need to ensure you have to cash to make the payments

How do I ensure that my selection process is fair if some employees are furloughed?

Assuming you don’t have a redundancy policy you’ll need to:

  1. Agree selection criteria that can be applied to all
  2. Agree a calibration process with two managers
  3. Ensure selection criteria is as objective as possible
  4. Ensure you’re measuring employees based on a period pre-furlough
  5. Consider discounting any period of furlough from selection scores
  6. Disclose the employee’s score but not the break point
  7. Consult with the employee in respect of their score

It won’t be possible to meet with everyone in person to discuss their possible redundancy – how do we deal with that?

You can consult with ‘at risk’ employees over video or phone calls. You’ll still need to follow the same process as if we you were meeting in person (two clear days’ notice of the meeting, right to a companion etc). Employees can also be accompanied by a colleague or trade union representative who can join the video call or phone call. They should not be a furloughed colleague. Bear in mind that meetings may be recorded or others may be in the room without your knowledge so you’ll need to be clear at the outset whether or not this is appropriate.

Redundancy is a challenge, and managing the process alongside furlough adds another layer of complexity. There’s plenty more to think about in terms of redundancy payments, extended notice periods and pay, voluntary redundancy and statutory pay. If you’re considering your options, seek advice from your lawyer at the outset to ensure you’re putting your business in the best position possible.

Click here to access our Post-furlough Guidance Note (which includes further detailed redundancy guidance).

This update is accurate on the date it was produced (29 April 2020), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Reluctant returners – living with shielded individuals

Posted on: April 27th, 2020 by Ginny Hallam

‘I can’t return from furlough – I’m living with a shielded individual’

If you’re starting to unfurlough employees, you might hear from some that they can’t come back to work because they’re living with someone who’s shielded. 

Government guidance states that those living with shielded individuals do not have to shield themselves, but do need to pay particular attention to social distancing guidelines.

So what are your options?

  • Option 1 – Confirm that government guidance states there is no reason for them to shield. If they’re still reluctant to return, request in writing that they do so and reassure them of the preventative steps you’re taking to keep them safe at work. Explain that if they do not return without an accepted reason they will/may face disciplinary action.
  • Option 2 – Keep them on furlough so long as you will receive a reimbursement under the Job Retention Scheme. Explain that they must provide you with evidence that the individual with whom they live is shielding (ideally in the form of their shielding letter from the government). Explain in writing your expectations in respect of their behaviour during the furlough (and that of their household) and that they will be required to immediately return upon request.
  • Option 3 – Time off unpaid or holiday can be exercised. Alternatively the employee could be put on lay-off if you have the contractual right to do so.
  • Option 4 – If their job allows, request that they work from home until their entire household is able to return to normality.

We’ve created a guidance note that includes over 20 issues to consider when ‘unfurloughing’ employees. Click here for more info on how to access.

This update is accurate on the date it was produced (27 April 2020), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Job Retention Scheme – claims for reimbursement

Posted on: April 23rd, 2020 by Ginny Hallam

Many of you will have, or will shortly be making your claims for reimbursement under the Job Retention Scheme. There’s a few important points to be aware of:

  • You cannot make more than one claim during a claim period – which essentially means your payroll period, so you should aim to make your claim shortly before or during payroll
  • You’ll have to wait until the following month to claim for any employees that have been furloughed outside of that period
  • You must claim for all employees in each period in one go – you can’t go back and make any changes to your claim
  • Claims can be backdated from 1 March 2020 where employees have already been furloughed from that date
  • A claim cannot start any earlier than the date the employee was first furloughed

Click here for more information on how to claim.

We’ve included lots more information on how to calculate your claim within our furlough FAQs (and loads more!) – click here if you’d like to access (£250+VAT).

This update is accurate on the date it was created (23 April 2020), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

How do you ‘unfurlough’ your employees?

Posted on: April 23rd, 2020 by Ginny Hallam

By putting employees on furlough leave, you’ll have made temporary contractual changes to their employment status. It’s important that their return from furlough is captured in writing so that the furlough changes can be contractually unwound.

A letter/email should include:

  • The date the employee needs to return to work
  • What they should do when they return (including who they should report to etc.)
  • Any measures that remain in place to keep them, your colleagues, and customers safe
  • Any possibility of a return to furloughed status
  • What the employee should do if they worked for another employer during furlough

Any unfurlough letter should also be kept as evidence in the event that you’re audited by HMRC. We’ve drafted a template letter for you to ensure you’re capturing all the necessary information – click here if you’d like a copy (£120+VAT).

This update is accurate on the date it was created (23 April 2020), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.