Pannone Corporate’s HR Forum is a free regular update for employers, aimed at HR professionals and anyone else who is involved in managing a workforce or dealing with HR issues.

This autumn, instead of our usual HR Forum, we are offering a case law and legislation update in webinar format. We will cover some of the more important or interesting decisions coming out of the tribunals and courts in the last twelve months, including the most recent decisions on protected belief under the Equality Act, CCTV monitoring, TUPE, and disability discrimination, as well as bringing you up to date with the latest employment legislation.

Details

When: Tuesday 6 October

Where: via Zoom

Time: 10 am to 11 am

Cost: Free

To reserve your place please RSVP by email to paula.kershaw@pannonecorporate-com.stackstaging.com

Places will be limited so please book soon. If there are any particular questions you would like to see addressed during the session or if you have any problems booking onto the webinar, please contact paula.kershaw@pannonecorporate-com.stackstaging.com

We look forward to seeing as many of you as possible.

Updated guidance from HMRC has now been published which sets out how the Coronavirus Job Retention Scheme will operate more flexibly from 1 July onwards.

The main points from the guidance are:

• Claims for furlough periods ending on or before 30 June 2020 must be made by 31 July 2020.

• From 1 July, employers can bring furloughed employees back to work for any amount of time and any work pattern. Employers must pay employees in full for the hours they work and normal hours not worked can continue to be claimed under the Coronavirus Job Retention Scheme. Hours not worked will be calculated by reference to the hours usually worked in the role.

• Only employees who have previously received payments under the scheme will be eligible for more payments under the scheme.

• If an employer decides to make use of the flexible furlough scheme and introduce part time working then a new written furlough agreement setting out the details of the furlough arrangements will need to be agreed with employees.

• In addition to the current obligation to keep a record of the furlough agreement, employers must keep a record of how many hours each employee works and the number of hours they are furloughed. Records must be kept for 6 years.

• When claiming for employees who are flexibly furloughed an employer should not claim until it is sure of the exact number of hours the employee will work/have worked during the claim period.

• From 1 July, the three week minimum furlough period will no longer apply. Claim periods starting on or after 1 July must start and end within the same calendar month and must last at least 7 days unless an employer is claiming for the first few days or the last few days in a month.

• An employer can only claim for a period of fewer than 7 days if the period being claimed for includes either the first or last day of the calendar month, and the employer has already claimed for the period ending immediately before it.

If you would like advice on any of the issues raised above or assistance with drafting a revised furlough agreement, please do not hesitate to get in touch with us.

The Government has announced more detail about how the Coronavirus Job Retention Scheme will operate from 1 July.

The scheme closes to new entrants from 30 June – from 1 July onwards employers will only be able to furlough employees who have already been furloughed for a full three week period prior to 30 June.  It follows that the cut-off date for furloughing someone for the first time is 10 June. Employers have until 31 July to make a claim for the period up to 30 June.

Under the revised scheme from 1 July onwards:

• Claims can be made for a minimum period of 1 week but the claim period cannot overlap calendar months.
• Employees can come back to work for any amount of time and any shift pattern, and employers will be able to agree any working arrangements with previously furloughed employees whilst still being able to claim under the scheme for hours not worked.  Hours not worked will be calculated by reference to the hours usually worked in the role.
• As currently, any new furlough arrangement must be agreed with employees and employers must confirm that agreement in writing.
• The level of Government contribution will taper from 1 August.  In August employers will have to pay employer NI and pension contributions for wages claimed under the scheme.  In September employers will also have to pay 10% of wages to make up the current 80% payment to employees, and in October the employer contribution will increase to 20% of wages.
• The cap of £2,500 per month will remain in place but will be proportional to the hours not worked, i.e. if an employee works 50% of their normal hours over the course of a month, the cap on wages claimed under the furlough scheme for their hours not worked will be £1,250.

Further guidance on flexible furloughing and how employers should calculate claims will be published by the Government on 12 June.

If you would like advice on any of the issues raised above or assistance with drafting a revised furlough agreement, please do not hesitate to get in touch with us.

The Government has announced today that the Coronavirus Job Retention Scheme will be extended until the end of October.

The scheme will continue in its present form until the end of July so employers can continue to claim full reimbursement of 80% of furloughed employees’ regular pay.

From the beginning of August the scheme will be more flexible – furloughed workers will be able to return to work part time and employers will be asked to pay a percentage towards the salaries of their furloughed staff.

More detail will be available by the end of this month.

If you would like advice on any of the issues raised above or assistance with drafting a furlough agreement, please do not hesitate to get in touch with us.

At the end of last week the publication of a Direction from the Treasury to HMRC setting out the legislative framework for the operation of the Coronavirus Job Retention Scheme caused concern for many employers who had furloughed employees without obtaining their express written agreement.

The Direction specifies that in order for an employee to be properly furloughed, they must have “agreed in writing (which may be in an electronic form such as an email) that the employee will cease all work in relation to their employment.”  This is inconsistent with the official guidance published by the Government which has always stated that in order to be eligible for the grant employers must simply “confirm in writing to their employee that they have been furloughed.”

The Government has now added a note of clarification to its guidance, presumably in response to the concerns raised by this inconsistency.  The guidance now states:

“To be eligible for the grant employers must confirm in writing to their employee confirming that they have been furloughed. If this is done in a way that is consistent with employment law, that consent is valid for the purposes of claiming the CJRS. There needs to be a written record, but the employee does not have to provide a written response.”

This makes it clear that employers do not need to produce express written agreement from employees – written notification and implied agreement, or agreement via collective bargaining should suffice.

If you would like advice on any of the issues raised above or assistance with drafting a furlough agreement, please do not hesitate to get in touch with us.

As a further measure to assist employers during the Coronavirus crisis, the Government is making a temporary change to the rules on statutory holiday so that where it is not reasonably practicable for a worker to take some, or all, of the holiday to which they are entitled due to the coronavirus, they will have the right to carry 4 weeks of that holiday entitlement into the next 2 leave years.  If a worker leaves their job or is dismissed during the 2 year period, they must be paid in lieu of any untaken holiday.

The Government says this measure will ensure all employers affected by COVID-19 have the flexibility to allow workers to carry over leave at a time when granting annual leave could leave them short-staffed in some of Britain’s key industries, such as food and healthcare. Acas however envisages additional situations when this carry over might be used, citing employees who are self-isolating or are too sick to take holiday before the end of their leave year, or who have been temporarily sent home as there’s no work (‘laid off’ or ‘put on furlough’).

It is correct that employees cannot be required to take holiday whilst they are off sick (although they can choose to do so). The issue of holiday whilst on furlough is less clear. Holiday is not covered in the Government’s guidance about the job retention scheme so it is not clear whether employees can take holiday whilst on furlough and, if they do, what they should be paid. There seems no reason why employees cannot be asked to take holiday during a period of furlough however until we have further guidance, employers should ensure there is a gap of at least three weeks between any periods of holiday taken during a period of furlough so that employees remain on furlough for the minimum period of three weeks on each occasion.

If you need a furlough agreement or a home working policy for your staff, or advice and guidance on the impact of the Coronavirus in your workplace more generally, please contact Fiona Hamor.

Employee surveillance via IT equipment such as webcam access and screen captures, phones, vehicle tracking and even CCTV is not uncommon in the modern workplace as employers take advantage of developing technologies to monitor employee activities and performance, but in doing so, are they breaching employees’ rights?

Reasons for Covert Surveillance in the Workplace 

There are a number of reasons why an employer may wish to track its employees. Productivity concerns, worries about theft, health and safety, and ensuring activity during business hours is business related are all reasons why this may take place. 

Employers are also understandably concerned about bullying and harassment in the workplace and protecting the reputation of the business externally, so conduct when using company devices such as phones, laptops or otherwise may be monitored for this purpose and many companies now have a Social Media Policy in place which sets out rules about conduct on private social media accounts (such as Facebook, Twitter, LinkedIn, etc.).  

UK Laws on Surveillance 

There are a number of UK laws which are applicable when it comes to surveillance in the workplace, in particular the Regulation of Investigatory Powers Act 2000 and the Data Protection Act 2018.

There is also an implied obligation of trust and confidence between an employer and employee. Acting without proper or reasonable cause so as to damage the trust and confidence between the parties may amount to a fundamental breach of the employment contract, entitling an employee to resign and claim that he or she has been constructively dismissed.   

Employers should also be mindful of the Human Rights Act 1998 which provides individuals with the right to privacy, albeit qualified by various public interest considerations.   

Is Covert Surveillance Allowed? 

In light of the various legal protections, covert surveillance is a problematical issue for employers and should only be undertaken in exceptional circumstances where there is a compelling reason to do so.  An employer who embarks on covert surveillance must be able to demonstrate that the surveillance is necessary and proportionate to protect its business so as to justify the potential breach of employees’ privacy. 

First and foremost, the surveillance must be necessary.  If sufficient information or evidence can be obtained in another, less intrusive way, then surveillance should not be used.

The surveillance must also be proportionate. If hidden cameras are used, employers should consider whether there are any safeguards which can be put in place and make sure that the surveillance is limited so that it goes no further than is absolutely necessary to achieve the purpose for which it is being used.  

For example, an employer who suspects that an employee is stealing from a till should only conduct surveillance of the till area where that employee works during the employee’s working hours, and should not set up covert cameras to cover a wider area or to gather footage from a longer time period, particularly where that may involve surveillance of other employees.

Employees should be notified, usually in a staff handbook or privacy policy, that covert surveillance may be undertaken from time to time and where surveillance needs to be undertaken covertly, an employer should undertake and record a risk assessment for data protection purposes before proceeding with the surveillance. 

For further information about this issue and advice on employment law more generally, please don’t hesitate to get in touch with our expert team here at Pannone Corporate. 

Since the introduction of shared parental leave, there has been considerable debate about whether employers are required to match any enhanced maternity pay package with enhanced shared parental pay. In particular, the concern has been that failing to do so could be discriminatory. Most businesses have taken the view that the correct comparator for a man taking shared parental leave is a woman taking shared parental leave, so provided they are both paid the same when it comes to shared parental pay, there is no discrimination.
However in a recent decision, an employment tribunal has taken a different view. In Ali v Capita Customer Management Ltd the tribunal decided that failure to pay enhanced shared parental pay to a male employee when a woman taking maternity leave would receive enhanced maternity pay amounted to sex discrimination because the purpose of both types of leave is to care for the new born child.
This decision is not binding and as such does not set a precedent that future tribunals must follow. However, it is persuasive and gives an indication of how tribunals may consider such claims going forward.
Our advice to employers is to review your policies and consider whether it would be appropriate to pay enhanced shared parental leave in line with maternity pay – or at least prepare for the possibility of being required to do this in future. This decision is being appealed to the Employment Appeal Tribunal and we hope that an appeal will provide clarity one way or the other.

It is International Women’s Day………and only four weeks until the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 come into force, introducing an obligation on all voluntary and private-sector employers with 250 or more employees to record and publish their relevant gender pay gap statistics.
The deadline for publication of the first gender pay gap reports is not until 4 April 2018, however the first “snapshot date” – the reference date for measurement of the relevant statistics – is only 4 weeks away, on 5 April 2017.
Will your business employ 250 plus employees on 5 April 2017? If so, read on!
Given the scope for reputational damage or even for staff to use their employer’s gender pay gap figures to support claims of sex discrimination or equal pay, it is crucial to consider how you present your statistics. Remember, gender pay gap reports must be published on the company’s website in a manner which is accessible to all employees and the public in general, and kept online for three years.
The Regulations allow employers to publish a voluntary narrative to accompany their figures, which means there is an opportunity for you to provide an explanation for any pay gap, publish further statistical evidence to support that explanation, and set out the steps you intend to take or have already taken to address that pay gap.
The sooner you start to analyse your pay gap data, the better placed you will be to address any major issues in advance of publication and to provide a positive narrative in your first gender pay gap report.
If you have any questions about the new gender pay gap reporting duty or how to present your figures in the best possible light, please contact
Fiona Hamor
Partner
0161 393 9049
fiona.hamor@pannonecorporate-com.stackstaging.com

Pannone Corporate’s HR Forum is a free regular update for employers and HR professionals, featuring sessions on employment case law, legislation and topics of interest to those involved in managing a workforce or dealing with HR issues.  In our next HR Forum, we will cover:
Protecting your Business
Building and maintaining a successful business involves time and effort so the last thing you want is for a rogue employee to damage or even destroy any part of that business, whether by enticing away customers, interfering with suppliers or referrers, or stealing confidential information or intellectual property. Unless however you think about the protection you might need right at the start of a relationship with a new staff member you may find that when the relationship comes to an end your ability to protect the business is limited.  In this HR Forum, we will discuss how you can protect your business from wrongdoing on the part of your current staff and unfair competition from staff who have moved on, including a look at the latest cases involving LinkedIn and other social media.  This session will be of particular interest to HR professionals, senior managers, and business owners.
Case Law Update
A summary of some of the more important or interesting decisions coming out of the tribunals and courts in the last few months, including decisions dealing with the employment status of people working in the “gig economy”, when work related stress is not a disability, and the latest decision on commission and holiday pay.
Legislation Update
An overview of the legislation on the horizon for 2017, including gender pay reporting, the apprenticeship levy, and changes to the rules on business immigration.

Event details:

When: Wednesday 1 March 2017
Where: Innside Manchester, First Street, Manchester
Click here for further details
Time: 8.30am registration, 9.00am start,12pm ends
Cost: Free
To express your interest in attending, please RSVP by email to:
paula.kershaw@pannonecorporate-com.stackstaging.com
 
If you have any queries please contact Fiona Hamor on 0161 393 9049 or email:
fiona.hamor@pannonecorporate-com.stackstaging.com

What’s new

This month we look at new proposals for parental bereavement leave, help for parents and carers in the workplace, and the quarterly statistics from the Employment Tribunal. Read More

Case law review

Restrictive Covenants  

If an employer wants to have any chance of preventing an ex employee from using its confidential information or the customer connections which he or she built up whilst on its payroll to get ahead in a competing business, it must include post termination restrictive covenants in the contract of employment. What happens however when the employee has not signed the contract? This was the issue considered in the recent case of Tenon FM Ltd v Cawley. Read More

When is a resignation not a resignation?

In East Kent Hospitals University NHS Foundation Trust v Levy the Employment Appeal Tribunal considered whether an employee had given notice of resignation from employment, or whether her employer had dismissed when it accepted that notice. Read More

Removal of a contractual travel allowance following a TUPE transfer  

In the case of Tabberer v Mears Ltd the EAT considered whether or not an incoming employer could lawfully discontinue an outdated contractual travel time allowance following a TUPE transfer. Read More

Tribunals can consider contractual terms in wages claims

In the case of Agarwal v Cardiff University and others, the Court of Appeal confirmed that tribunals can determine the terms of an employment contract in the context of a claim for unauthorised deductions from wages. Read More

Who to contact

JACK HARRINGTON

HEAD OF EMPLOYMENT

0161 393 9050

jack.harrington@pannonecorporate-com.stackstaging.com

No matter the size of your business, theft in the workplace is an issue that all employers want to avoid. So what do you do if you suspect an employee has stolen from the business? Be it embezzlement, fraud, theft or even intellectual property, most business will have to deal with some form of employee theft at some point.

The most important thing the employer needs to do is ensure that a thorough procedure is followed. This note scratches the surface on what is a complex and sensitive area. The last thing an employer would want to do is wrongly accuse or dismiss someone and this resulting in litigation which is harmful to any business.

Prepare

As with most areas of law, preparation and documentation are key. An employer should ensure they have watertight policies within their employee handbook and that every employee is given a copy of this or access to this at the outset of their employment.

The policy should contain a disciplinary procedure that is clear that theft in the workplace will not be tolerated and could result in a summary dismissal. The policy should state the procedure that will be followed in the event an employee is suspected of theft or any other wrongdoing.

It is also useful these days to have an internet policy which mentions that theft of intellectual property and cybercrime will not be tolerated. Monitoring of employees (eg CCTV, vehicle trackers) is a contentious area and it is advisable you take specific advice about this. Any form of surveillance of employees should be consented to from the outset and the employee should be given specific details as to what you are using this information for and how long it will be stored for.

Investigate

If you suspect an employee has committed theft in the workplace then the first step is to hold an informal ‘fact-finding’ meeting with them. They do not have the right to be accompanied to this meeting.  During this meeting; the employee should be made aware of the allegations against them and given a chance to respond. If you are still not satisfied with their answers then you can proceed to a disciplinary hearing provided you have good grounds to do so.

It is also at that stage that you should start to gather evidence for example statements from other staff that were present at the relevant time or review CCTV footage or till takings etc. It is advisable to have conclusive evidence if you were to ultimately go down the dismissal route as an employer would have to show that they held a reasonable and honest belief that the employee had committed theft.

Disciplinary/Dismissal

The next stage would be to invite the employee to a disciplinary hearing and this would also have to be procedurally correct for example the employee would have the right to be accompanied to this hearing and it is advisable that a different person chairs this hearing than the person who conducted the investigation. Prior to or at the hearing, the employee should be given copies of all the evidence collected for example statements or CCTV footage.

If the policy allows for it then the outcome of the hearing could be a dismissal on the grounds of gross misconduct, however, this will have to be determined on the individual circumstances and factors such as length of service, previous disciplinary records and mitigating factors should be taken in to account. For example, there is a difference between stealing minor office supplies when compared to something much more substantial. If dismissal did end up being the preferred option then any appeals procedure should also be followed in line with the disciplinary procedure and again if possible a different person should chair this hearing to ensure fairness.

Conclusion

It is clear that this area is complex and employers need to get it right to avoid wrongly accusing an employee or leaving themselves at the risk of an employment tribunal claim. Here at Pannone Corporate, our employment team can help guide you through the above issues, be it from reviewing/updating policies or advising on a disciplinary procedure. Call today on (0) 800 131 3355 or use our online form for a confidential discussion regarding your exact circumstances.