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Archive

August, 2021

Legal lightbulb – people law, policy, and practice

Posted on: August 11th, 2021 by Ginny Hallam

As part of keeping you in our focus, our ‘legal lightbulb’ update ensures you’re on top of the latest changes in legislation, case law, and people trends. Here are key dates for your diary.

15 September – Pension Awareness Day 2021

Find out more.

17 September – inquiry into menopause discrimination

The House of Commons Women and Equalities Committee has launched an inquiry into the extent of discrimination relating to menopause in the workplace. Written submissions can be made here up until 17 September.

30 September – furlough scheme due to close

Up until the scheme closes the government will contribute 60% of wages up to £1,875 and you will need to contribute the remaining 20% up to £625 when employees are furloughed (along with NICs and pension contributions).

5 October – gender pay gap reporting deadline

Those with 250 employees or more (on the snapshot date 5 April 2020) have until 5 October 2021 to report their gender pay data (delayed from 4 April 2021). Enforcement action against those that fail to report their data will not begin until after this date. You are still encouraged to publish reports in advance of October if you’re able to.

12-15 October – National Work Life Week 2021

An opportunity for both employers and employees to focus on wellbeing at work and work-life balance. Find out more.

11 November – care home vaccinations

All care home workers, and anyone entering a care home, will legally be required to be fully vaccinated (both doses) unless they’re exempt under government regulations.

 

This update is accurate on the date it was sent (17 August 2021), 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.

Tribunal tales #9 – settlement strategy: what kind of agreement is best?

Posted on: August 11th, 2021 by Ginny Hallam

You’ve agreed the deal – the next step is to document it. Choosing the right type of document for the circumstances is key. Below is what you need to know: 

Settlement agreement – the employee settles any employment law claim that is listed (whether contractual or statutory – save for a handful of exceptions). To be legally binding, the employee must take independent advice from a lawyer on the terms and effect of the agreement. You’ll need to contribute towards these costs and negotiations can often be lengthy!

COT3 agreement – a great option if ACAS early conciliation has been triggered. Usually short-form agreements making them ideal for more straightforward situations. There’s no requirement for employees to take legal advice on the terms. Bear in mind though that ACAS are not always willing to support with these agreements (for example if you’ve involved them at a late stage of any deal). Our Intelligent Employment platform includes our up to date COT3 agreement template – for more information on accessing our documents, get in touch.

Contractual termination letter – use with caution! It confirms that in return for a payment, the employee waives any contractual claims but doesn’t prevent them from bringing a statutory claim against you. Great for low-risk scenarios or scenarios where there is little cash incentive to signing the agreement.

If you’d like to discuss your options on how best to approach an employee exit, get in touch. You can revisit everything we’ve covered in the ‘Tribunal tales’ series here

 

This update is accurate on the date it was sent (25 August 2021), 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.

Tribunal tales #8 – settlement strategy: do confidentiality clauses work?

Posted on: August 11th, 2021 by Ginny Hallam

There’s been lots of chatter of late over the enforceability of settlement agreement clauses that require the employee to say nothing about the circumstances that led to the agreement (or anything else for that matter). Here’s how to strike the right balance when dealing with confidentiality.

Protected disclosures – make clear that nothing in the clause prevents the employee from blowing the whistle (if it looks like you’re attempting to stop the employee from blowing the whistle the clause and possibly the entire agreement will be unenforceable). Likewise, don’t expect to be able to protect the employee from working with authorities including the police about the matters covered by the agreement.

Carve out exceptions – make it clear that the employee isn’t prevented from discussing or raising specific issues. There’s no legal requirement to do this, but this drafting avoids the clause being too widely drafted and potentially unenforceable.

Protecting wellbeing – call out that employees can speak about the terms of their agreements with professionals providing them with medical, therapeutic, counselling, legal or financial services.

Get in touch if you’d like to access our compliant and commercially robust settlement agreement template, or if you require bespoke drafting and advice.

 

This update is accurate on the date it was sent (18 August 2021), 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 fail – new tribunal guidance

Posted on: August 11th, 2021 by Ginny Hallam

Failing to consider furlough when making an employee redundant may make the dismissal unfair following a recent decision.

Background

The employee was a care assistant with over two years’ service. She was put at risk of redundancy. The employee asked to be furloughed with her employer refusing due to there being ‘no work for her’ – she was dismissed by reason of redundancy in July 2020 and claimed unfair dismissal.

Practical takeaway 

Firstly, this decision does not mean that if you choose to make redundancies whilst furlough is available you’ll automatically be found to have done so unfairly. But, as ever the tribunal will look at the steps you took to avoid making redundancies including your approach to furlough.

If you take the decision that furlough is not a viable alternative to redundancies, you’ll need to discuss this as part of the consultation, keep records of your conversations, evidence why furlough wasn’t a viable alternative and write to the employee confirming as much.

Get in touch if you need our support in avoiding redundancies or navigating your way through the process. 

 

This update is accurate on the date it was sent (12 August 2021), 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.

Is protecting higher pay a reasonable adjustment?

Posted on: August 10th, 2021 by Ginny Hallam

If you’re making changes to a disabled employee’s role as a result of reasonable adjustments, a recent case has confirmed that you are unlikely to have to maintain their pay if the new role attracts a lower salary. 

Background

A teacher suffered from mental ill-health that amounted to a disability meaning she was unable to teach. She moved to a ‘cover supervisor’ role which had a lower rate of pay – her pay was eventually reduced to the appropriate level. She claimed her pay should have been maintained at a higher rate as a reasonable adjustment.

Practical takeaway

The decision confirms that protecting higher pay is unlikely to be a reasonable adjustment, supporting employers with the flexibility to pay the appropriate rate for the role being performed. Don’t forget though that you should inform the employee that you will be reducing their pay, explaining why you consider paying them more than the role attracts is not considered to be a reasonable adjustment (and keep a record of the conversation).

It’s worth considering a run-in period if the role changes quickly (where you maintain the higher salary for a short period) to allow the employee time to plan for a reduced salary. Make clear that the higher level of salary will only be maintained for a short period and at your discretion.

Get in touch if you need to discuss making appropriate reasonable adjustments. 

 

This update is accurate on the date it was sent (11 August 2021), 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.