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Archive

October, 2020

Future-proofing: changing contract terms

Posted on: October 29th, 2020 by Ginny Hallam

Whether it’s exploring cost savings, responding to local lockdowns or ensuring your contracts are flexible enough to deal with the ever-changing ways of working – there are lots of reasons why you may want to make changes to contracts.

We’ve set out below our thoughts on the options available to employers when making changes to contractual terms.

Get agreement/ negotiate – asking employees to expressly agree to a change (or giving them something in return for agreeing) carries the least risk – but in practice, it can be tricky to achieve!

Flexibility clause – check whether you have a clause within your contract giving you the right to make certain changes (for example, a mobility clause allowing you to change their place of work). Approach this option with caution – changes under a flexibility clause need to be reasonable (and usually minor) otherwise employees could argue you’ve exercised the clause unreasonably and bring claims for breach of contract, or even that you’ve given them no option but to resign and claim constructive dismissal.

Argue implied agreement – if you don’t get agreement or you don’t want to ask for agreement, you could try to make the change and then argue that employees have accepted the new terms through their continued employment if they don’t challenge it. You should always take advice on this approach, as successfully arguing implied agreement depends on the type of contractual clause you’re changing.

‘Fire and rehire’ – if, after consultation, you’re unable to reach agreement about the proposed change, you could terminate and offer to re-engage on the new contract terms. However, this is a somewhat ‘nuclear approach’ as employees with two or more years’ service could bring claims for unfair dismissal. For these reasons, it should generally be a last resort.

There’s lots to consider when making changes to contracts; for example, whether there are contractual terms contained in other agreements, such as a collective agreement with a trade union and whether any terms are protected under TUPE. Get in touch if you’d like to discuss changing terms with our expert employment lawyers.

Here’s a reminder of the changes you can make to future-proof your contracts, and more detail on the packages we have to support you in making those changes.

 

This update is accurate on the date it was sent (29 October 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.

One scheme closes, another one opens – furlough and Job Support Scheme

Posted on: October 26th, 2020 by Ginny Hallam

The Coronavirus Job Retention Scheme will close on 31st October, giving way to the new Job Support Scheme on 1st November. The JSS will run until 30th April 2021.

Following further amendment last week, support through the Scheme is now available in two ways to take account of differing restrictions around the UK.

JSS Open

For business able to remain operational, but facing decreased demand and reduced requirement for employees to work full hours:

  1. Employees need to work a minimum of 20% of their usual hours (was previously 33%) and will be paid as normal by their employer for those hours worked
  2. Employees will receive 66.67% of their normal pay for the hours not worked
  3. 5% of the pay for hours not worked will be paid by the employer – up to a maximum of £125 per month (with discretion to pay more)
  4. 61.67% of the pay for hours not worked will be paid by the government – up to a maximum of £1541.75 per month

‘JSS Open’ ensures that employees continue to receive at least 73% of their normal wages where they earn £3,125 a month, or less.

JSS Closed

For businesses legally required to close due to coronavirus restrictions set by one or more of the four governments of the UK:

  1. There is no requirement for employees to work a minimum number of hours
  2. It requires no contribution from employers to employees usual wages (other than NI and pension contributions)
  3. The government will pay 67% of employees’ usual wages – up to a maximum of £2083.33 per month
  4. Employers can top up the pay if they wish

Eligibility

  1. Previous use of the CJRS is not required in order to use ‘JSS Open’ or ‘JSS Closed’
  2. You’ll need to secure written agreement from employees to any changes and any changes must be for a minimum of seven consecutive calendar days
  3. Claims can be made in arears from 8th December
  4. Employers with more than 250 employees intending to claim ‘JSS Open’ will need to carry out a Financial Impact Test

More information on eligibility criteria can be found here.

 

This update is accurate on the date it was sent (26 October 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.

Executive People Update

Posted on: October 22nd, 2020 by Ginny Hallam

As part of keeping you in our focus, our executive people update ensures you’re on top of the latest changes in legislation, case law and people trends. 

New job roles emerging

With a quarter of workers now exclusively working from home, it’s unsurprising that ‘head of remote’ and ‘director of home working’ roles are starting to emerge. Health and safety, engagement, mental health, on and off-boarding, performance, IT – just a few considerations that will need a different approach and management if remote working is to form part of your long-term plans.

Misuse of track and trace data

Personal data collected for track and trace should not be used for other business purposes such as feedback surveys, as Wagamama have discovered. They have been reported to the Information Commissioner’s Office for using names, email addresses and phone numbers of customers (provided for track and trace as a legal requirement) to send marketing materials, as well as passing data to a third party to create personalised feedback surveys.

Discrimination protection confirmed

A recent case has confirmed gender fluid and non-binary people are now protected from discrimination in the workplace under the definition of gender reassignment in the Equality Act 2010. The claimant (previously presenting as male) began to identify as gender fluid and dressed in women’s clothes, which resulted in insults from colleagues and challenges using toilet facilities. The employer had provided little support and failed to follow the ACAS Code of Practice in dealing with her grievance, and ultimately paid £180,000 in compensation.

Dates for your diary

  • 04 November – National Stress Awareness Day
  • 01 February – LGBT History Month
  • 04 February – Time to Talk Day
  • 08 February – National Apprenticeship Week

 

This update is accurate on the date it was sent (22 October 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.

Redundancy series update #11 – the TUPE trap

Posted on: October 21st, 2020 by Ginny Hallam

If you’re considering your overheads and thinking of asking contractors to deliver services you currently provide in-house, watch of for the ‘TUPE trap’. 

TUPE’s over-riding principle – ’employees follow the work’. This means that wherever the work goes, employees are often entitled to follow.

If you forget or ignore this principle – when you make redundant employees currently delivering an in-house service, such dismissals may be automatically unfair.

Potential liabilities – you might also find yourselves liable for claims for failure to provide employee liability information to the incoming contractor (a minimum of £500 for each employee that information has not been provided for) and 13 weeks’ pay per employee who had the right to be consulted about the right to transfer.

It’s not always easy to identify where there is a TUPE transfer, so we’ve uploaded a checklist to the Intelligent Employment platform (under ‘TUPE guidance’) to help you further. Or get in touch if you’d like to discuss a potential TUPE transfer with our expert employment lawyers.

 

This update is accurate on the date it was sent (21 October 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.

Returning from furlough

Posted on: October 15th, 2020 by Ginny Hallam

With the furlough scheme closing at the end of the month, you’ll be thinking about how you’re going to support returning employees.

Here’s a few things to consider…

Increased contact – hopefully you’ll have been in regular contact, but now more than ever you’ll want to ensure employees feel part of the team. Updating on developments in the business will bring them up to speed and organising virtual team events are a fun and easy way to reintegrate.

Working practices – it’s likely things will look completely different on their return. Share any alterations to working practices, procedural changes, or anything that has changed the way the employee will need to carry out their role so they hit the ground running.

Finding flexibility – returning employees will have to consider any caring, childcare or travel arrangements before they return. Being open to flexible arrangements (altered start / finish times for example) will help to smooth the transition back into the business.

Listen to concerns – most will be happy to return, some might need extra reassurance. Clearly explain the steps you’ve taken to make the workplace as safe and secure as it can be and make sure they have a copy of your safe return to work and / or coronavirus policy with the details (click here for a copy of ours).

Remember the rules – absent employees might want to be helpful by picking up work to get ahead before they return, but remind them that carrying out any work while still furloughed could jeopardise your ability to claim reimbursement under the scheme.

 

This update is accurate on the date it was sent (15 October 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.