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April 30, 2020

The F Word, Case Law and Good Work Plan 2020

by Andrew Beaumont

Furlough
How could I start anywhere else?  Be honest, at the start of the year did you even know what the word meant?  It's actually an American word and the definition is 'a temporary laying-off of employees, usually because there is insufficient work to occupy them'.  It's safe to say that anyone who has been affected by it won't forget the word.

So what are the latest developments?  As a reminder, the Coronavirus Job Retention Scheme (CJRS) was introduced by the Chancellor of the Exchequer, Rishi Sunak, on 20 March 2020.  The basic principle is that it allows employers to claim a grant covering 80% of the wages for a furloughed employee, subject to a cap of £2,500 per month.  The employer can top up the pay if it chooses to do so but must, in all cases, write to the affected employees to tell them they have been furloughed. The Government originally stated that in order to qualify for the grant, employees had to be employed on February 28 2020.  The grant can be claimed via a HMRC portal which went live on 20 April -  https://www.gov.uk/guidance/claim-for-wages-through-the-coronavirus-job-retention-scheme

The Government have moved the qualifying date and employers can now claim for employees that were on their PAYE payroll on or before 19 March 2020.  However, this isn't as simple as it may seem.  For an employee to be eligible, a Real Time Information (RTI) submission notifying payment in respect of that employee to HMRC must have been made on or before 19 March 2020.  From discussions with my clients recently, this has caused confusion around who is, and is not eligible, and has led to difficult conversations with their staff.  My advice here would be to check the situation in respect of RTI with your payroll department or provider before discussing with your staff.

On Friday 17 April 2020, it was announced that CJRS would remain in place until 30 June 2020, which was an extension to the scheme from the original date of 31 May 2020.  The rationale behind this change is important as it is not directly linked to lockdown.  For those organisations who may be considering redundancies of more than 100 as  a result of the COVID-19 pandemic, there would have been a requirement to collectively consult for a minimum of 45 days before the redundancies.   We are now within 45 days of the end of May,  That is why the date has moved.  If you are planning to make redundancies, please get in contact with me to ensure that you are supported through the process.

Finally, just to conclude this part of the mail, it has now been confirmed that affected employees can take holiday whilst furloughed and this is payable at 100% of salary. For clarity, the employer will therefore have to top up the additional 20% where a furloughed employee is only receiving the basic 80%. This will be the case for those employers that give the standard bank holidays in respect of Good Friday and Easter Monday.

What hasn't been confirmed is whether an employer can compel an employee to take holiday whilst on furlough.  Usually, this is an employer's prerogative (subject to the notice that has been given) but for now the situation remains unclear.  The guidance actually states 'during this unprecedented time, we are keeping the policy on holiday pay during furlough under review'.

Probably the most important point of the CJRS for employers to remember is that HMRC will only recognise furlough as valid 'if the employer and employee have agreed in writing (which may be via email) that the employee will cease all work in relation to their employment'.  It is also suggested that the employee’s written agreement must be received before furlough starts.  If you have placed employees on furlough and simply advised them of this then please get in touch.

Employee Wellbeing
These are strange times for all of us and it is critical to remember that you still have a duty of care for your employees even though they may be working remotely or are indeed on furlough.  If your employees aren't used to working from home, are you maintaining contact with them and checking they are ok?  The key guidance I always give my clients is that it is so important that they take time to get to know their staff.  They may be living on their own and used to rely on coming to work to have contact with other people.  All employees are different and will adjust to these changing circumstances in different ways.  

The way Companies are treating their staff during this period is getting publicity.  Virgin and Wetherspoons have attracted negative publicity.  Contrast this with Waterstones who, as confirmed by their HR director, Andy Stephenson, made the decision "early on to furlough all the people who were vulnerable because we think it is morally right".   Remember, your customers and, more importantly your staff, may well judge you on your actions throughout this period.

Return To Work Planning

If your industry is one of the first to come back on-line post lockdown, what is your plan?  We will all come out of the other side of this,  Is your business connected in any way to the housing market as that is likely to be one of the first areas to return to normality. Previously, did you resist home or remote working but now have seen the benefit of it?  Will your staff return to their roles and be completely engaged?  How productive have your staff been whilst they have been away from the office?  If you haven't started planning for the return of your staff then I would love to talk to you.


Case Law Update

There has been an interesting case in the employment tribunal recently which caught my eye and I thought it was worth mentioning.  The headline was 'gay aerospace engineer was discriminated against after coming out at work, tribunal rules',    

The Manchester employment tribunal ruled that Peter Allen, who worked as a quality manager for aerospace component manufacturer Paradigm Precision, was harassed and directly discriminated against because of his sexual orientation.  It also found he was victimised and that he was subjected to detrimental treatment for seeking to take additional adoption leave,  All of this contributed to Allen claiming that he had been constructively unfairly dismissed.  

The tribunal heard Allen, who joined the company in 2012, faced numerous homophobic comments after his sexuality became common knowledge in his workplace, including 'limp-wristed' hand gestures directed towards him, being called 'camp' and being sent an email depicting 'stereotypical gay characters' with comments directed towards him.

Allen said that when he and his husband were looking to start a family, the business would not make him a general manager because he was 'going to be off for 12 months with parental leave' and he felt he was 'forced to choose between whether we become parents or whether I had a job'.

Allen left the organisation in November 2018 and brought claims of discrimination based on sexual orientation, unfair dismissal, victimisation and that he was subjected to detriment because he sought to take additional adoption leave.  

In his judgement, employment tribunal judge Mark Leach affirmed that the engineer had been "subject to harassment related to sexual orientation" and was passed over for promotion "because he sought to take additional adoption leave"

Allen was awarded £23,874 for unfair dismissal, £26,300 for injury to feelings, £70,345 for loss of earnings with interest, £18,078 for failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures and £36,048 "grossing up" to take into account the tax payable - totalling £174,645.

It is important to remember that it is unlawful to treat staff unfairly as a result of their sexual orientation and because they intend to start a family.  Not only can this lead to costly discrimination claims, but it can also be damaging for the reputation of the company and for staff morale, especially if there are employees who want to come out as gay but feel they will be unfairly treated as a result.

This case serves as a timely reminder that companies  should have a zero tolerance policy towards this form of behaviour and that staff are aware of this.  Workers should be encouraged to come forward if they do feel they are being mistreated in the workplace, and all accusations should be thoroughly investigated.

The Equality Act 2010 made it illegal to discriminate against employees because of age, gender reassignment, being married or in a civil partnership, being pregnant or on maternity leave, disability, race (including colour, nationaility, ethnic or national origin), religion or belief, sex and sexual orientation.  My advice to my clients is simple.  Treat your staff the way you would like to be treated and remember that your people are your biggest asset.  

If you don't have policies for discrimination, equal opportunities, disciplinary and grievance then please get in touch.

Good Work Plan 2020
Finally, just a reminder about a piece of legislation that was introduced earlier this month and may have been overlooked by employers with everything else that is going on.

The Good Work Plan reforms cover a range of employment issues such as holiday pay, redundancy protection and statutory sick pay but the main change is to the rules relating to new starters and written particulars of employment,

Currently, an employer has a period of two months after a new hire has started to provide them with 'a statement of written particulars' (i.e. an employment contract).  From April 6th, this became a 'day one' right; and therefore needs to be provided to new employees on or before their start date.  The document must also now include the following:

  • How long a job is expected to last (or end date of a fixed term contract)
  • How much notice is required
  • Details of eligibility for sick leave and pay
  • Details of other types of paid leave (e.g. maternity/paternity leave)
  • Duration and conditions of any probationary period
  • Remuneration and benefits (not just pay)
  • Which specific days of the week the worker is required to work, and whether or not such hours or days may be variable, and if they may be how they vary or how that variation is to be determine
  • Details of training entitlements, training requirements and details of any training that will not be paid for by the employee

Furthermore, any existing employees who have fundamental changes to their terms and conditions of employment in future will require a revised contract in the new format.

Have you reviewed the contracts for your employees recently?  Are they legally compliant?  If not, please get in touch and I'll be happy to do this for you.

Stay safe.

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