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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.

Mental health #6 – when to continue formal processes

Posted on: September 16th, 2020 by Ginny Hallam

Whether it’s a disciplinary, performance management or grievance process, it can be worrying knowing how best to continue if the employee becomes too ill and is signed off with work related stress.

Here are our thoughts on managing this challenging and sensitive issue.

Supporting recovery – progressing a disciplinary or grievance issue which may have triggered the condition might aid the employee’s recovery – consider securing expert opinion to establish whether this is the case.

Listen to medical opinion – asking a medical expert means you’ll have a better understanding of the condition and any adjustments required to support the employee during the process.

Offer alternatives – consider whether conducting conversations via telephone, video call or even written correspondence along with support from a companion (a friend or family member, for example) means the employee should be better able to attend.

Consider sick pay – exercising your discretion to continue paying salary during the employee’s absence might be creating a reluctance to return.

For details on how to access our guidance note for managers on when they should pause or progress a formal process click here.

Mental health toolkit

Promoting employee well-being and mental health creates a more engaged workforce, reduces sickness absence and drives performance. We’ve created a user-friendly toolkit providing you and your managers with the knowledge, skills and tools to support your team’s mental health needs within the wider employment law context. If you’d like to find out more about what’s included and how the toolkit will support these challenges during formal processes, click here.

This update is accurate on the date it was sent (16 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.

Furlough fails may give employees enhanced employment protection

Posted on: September 15th, 2020 by Ginny Hallam

Whether it’s opening the post, checking emails or even volunteering to do the gardening at work, if you’ve allowed employees to do any work for you whilst they’ve been furloughed (even at their request), you’ll have fallen foul of the Job Retention Scheme.

If you’re considering restructuring or going through any other employment process which may leave an employee disgruntled, they may try and protect their employment position by suggesting you’ve claimed furlough inappropriately. We’ve seen that there have been 8000 calls already to the HMRC’s fraud hotline.

Any disclosures an employee makes (whether internally or externally e.g. to HMRC) about suspected furlough fraud or uncorrected errors are likely to be amount to “protected disclosures” or “whistleblowing”. This means unlimited compensation at tribunal if the employee can show that they were dismissed or suffered a detriment as a result of making the disclosure.

If you know or suspect that you’ve acted inappropriately in respect of furlough or are the subject of a whistleblowing disclosure, here are a few things to consider:

Act first – if you think you’ve made an inappropriate furlough claim, let HMRC know immediately. See our previous update for further details. If an employee has already blown the whistle, self-reporting won’t remove the employee’s whistleblower protection but your actions show you’re not trying to cover up wrongdoing (making any argument that the employee suffered a detriment as a result of their disclosure less plausible).

Signpost – ensure employees are clear about how they should raise their concerns and to whom – a whistleblowing policy should set out that the employee is to come to you first giving you an opportunity to understand their concerns and address them. We’ve got this covered in our “Safe return to work policy” or “whistleblowing policy” – for details of how to access click here.

Deal with rule breakers – if an employee has chosen to work despite your requests for them not to do so, consider taking disciplinary action against them and/or documenting your concerns and requests for them to stop. Failure to do so could mean they later suggest that you agreed to them behaving in breach of the Job Retention Scheme or that you even encouraged them to do so.

Evidence your thought process – if you’re following a formal process (e.g. redundancy) just because an employee has blown the whistle doesn’t mean you can’t continue. Clearly you’ll need to investigate their concerns but you can usually do so alongside the formal process – just keep a careful note of your decisions and rationale.

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

 

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