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Employment Law

Redundancy series update #9 – suitable alternative employment

Posted on: September 17th, 2020 by Ginny Hallam

Following a fair process, once you’ve confirmed there’s no other option but to make the individual’s role redundant, the next step is to consider suitable alternative roles that you have available.

Here’s what you need to know:

Compare and contrast – the suitability of a role is determined by comparing the individual’s current role with the new role available. Salary, place of work, skills required and aptitude for the role are all factors you can use to determine whether the available role is a suitable alternative.

Be specific – it’s not good enough just to give the employee a list of available roles – you need to search out the roles that could be suitable alternatives.

Bigger picture – if you’re part of a group of companies, your search for suitable alternatives should be group-wide.

First in line – if the individual at risk is on maternity leave, they must be offered the suitable alternative role ahead of any other individual who might also be suitable for the role.

If you need support in determining whether you have suitable alternatives available or how to compare two roles, get in touch for our expert advice. In update #10 we’ll be looking at ending the redundancy consultation process.

This update is accurate on the date it was sent (17 September 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.

Contact-tracing app launch date – 24 September

Posted on: September 14th, 2020 by Ginny Hallam

After the first version was abandoned in June, a new contact-tracing app will be launched across England and Wales on 24 September.

Here’s what we know so far:

  1. The app will be used to alert you if you’ve been in close contact with someone who has tested positive for coronavirus and advise you on what to do to protect yourself and others
  2. It will use QR codes to scan and register visits to hospitality venues – those venues who have been using their own QR code-based systems will be asked to swap to the NHS version
  3. Businesses will be asked to display QR posters to support the NHS system, and venues such as universities, hospitals, leisure premises (amongst others with communal areas) where people gather for more than 15 minutes will be asked to display the same posters
  4. The app will utilise Apple and Google technology to detect other smartphones, but businesses will be required to keep a manual register of visitors for those who don’t have a smartphone

Within your ‘safe return to work’ policy you can encourage employees to download the app. You can also require them to alert you immediately if they receive a notification from the app informing them that they’ve been in close contact with an individual with coronavirus so that you can take steps to protect them and others. Click for more information on accessing our ‘safe return to work’ policy.

We’ll update you as and when further relevant information for businesses is released.

 

This update is accurate on the date it was sent (14 September 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.

Over-payments and furlough fraud

Posted on: September 10th, 2020 by Ginny Hallam

HMRC’s whistleblowing hotline has already received 8000 calls so far from employees willing to spill the beans about their employer’s furlough practices. HMRC are entitled to recover inappropriately claimed furlough money, issue penalties and name and shame those employers who claimed when they shouldn’t have.

If you’re concerned that you have allowed employees to work for you (even at their request) when they’ve been furloughed, or that you have made a mistake in respect of furlough payments, here’s what to consider.

Penalties

In addition to reputational damage that flows from unlawful furlough claims, HMRC have been empowered by the Finance Act 2020 to recover payments you were not entitled to, along with being able to issue civil penalties, fines, and even criminal convictions in serious circumstances.

HMRC have stated they will not charge a penalty if you did not know you’ve been overpaid:

  1. at the time you received the grant; or
  2. at the time that your circumstances changed to mean you were not longer entitled to the grant.

They are also able to name and shame here if they believe actions have been deliberate. HMRC have stated they’re not actively searching for employers who’ve made “legitimate mistakes”, but even if you haven’t deliberately over-claimed, there is still the potential for penalties if you don’t act proactively.

If you think you’ve over-claimed / received an over-payment:

You must notify HMRC by the latest of either:

  1. 90 days after you received the payment you weren’t entitled to
  2. 90 days after your circumstances changed meaning you were no longer entitled to keep the payment received
  3. 20 October 2020

If you need to repay any money, this must be done within the ‘relevant time period’, which ends 12 months from the end of your accounting period.

If you suspect you may have over-claimed or received an over-payment, it is best to raise this with HMRC directly as soon as possible.

Click here if you need advice from one of our expert lawyers. 

 

This update is accurate on the date it was sent (10 September 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.

Employees on furlough – the dos and don’ts

Posted on: September 8th, 2020 by Ginny Hallam

Fraudulent or incorrect furlough claims have cost the government £3.5bn according to recent statistics. HMRC has announced they intend to recover funds lost through fraudulent or abusive use of the scheme and will be conducting one-to-one investigations.

HMRC do not intend to investigate businesses making ‘legitimate mistakes’. Instead, they’re asking you to review your claims and pay back any excess amounts. With less than two months left to run before the scheme closes, what can you ask of employees whilst furloughed?

Employees can:

  1. Take part in training to up-skill, plug gaps, or retrain ready for a fast start when they return (provided that training isn’t income generating for your business)
  2. Volunteer for another employer or organisation
  3. Work for another employer if their employment contract with you allows them to do so
  4. Work as union or non-union representatives (attending consultation meetings, for example)

Employees can’t:

  1. Do any work for you which makes money for your business or any other associated business – even if you find out employees are doing things off their own back (replying to emails or taking calls, for example), you must instruct them to stop (reminding them of your furlough policy).
  2. Do any work that provides a service for your business or any other associated business – no matter if it’s something small, routine or unrelated to their role (like collecting the post, for example), it will jeopardise your claim to reimbursement and result in penalties or repayment of any money claimed.

Don’t hesitate to get in touch if you’re unsure about anything you may be asking of your furloughed employees. 

This update is accurate on the date it was sent (08 September 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 #8 – fair selection criteria

Posted on: September 7th, 2020 by Ginny Hallam

Once you have your pool of ‘at risk’ employees, you’ll need to decide your criteria for selecting employees from that pool.

Fairness, objectivity, and consistency are the backbone of a lawful selection process. Here are our thoughts:

Objective, measurable selection criteria – selection criteria that isn’t objective or measurable is likely to result in an unfair dismissal. If you’d like to know how to access our suggested selection criteria, click here. Ensure that you consult on the selection criteria that you’d like to use so that each individual has the opportunity to have their say before scoring starts.

Avoid discriminatory selection criteria – criteria based on length of service, absence or flexibility could be considered discriminatory on the grounds of age, disability or sex respectively. Ensure that you make adjustments so that the criteria do not prejudice those with protected characteristics, or avoid using them entirely.

Fair scoring – ensure that your selection criteria feature on a scoring matrix with clear parameters as to the score that will be awarded. Ideally ensure that any score is justified with evidence as to why it has been awarded.

Verification of manager scores – ensure a manager with the ability to find evidence or measure the individual against the selection criteria carries out the initial scoring. Their scores should be verified by another manager or their manager with knowledge of the employee to ensure that the scoring matrix has been applied fairly and consistently.

Consult about scores – individuals have the right to hear the scores that they have been given, the evidence as to why the score was awarded and the break point they had to achieve to avoid redundancy. They have the right to challenge the scores possibly resulting in re-scoring if there is merit to their objections.

If you’re concerned that you don’t have good enough people processes currently in place to be able to identify objective, measurable selection criteria, get in touch for advice on how to develop those processes. In update #9 of this series, we’re looking at suitable alternative employment. 

This update is accurate on the date it was sent (08 September 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.