“Before anything else, preparation is the key to success,” said Alexander Graham Bell. Sometimes as HR leaders, it can feel that you have to prepare for every eventuality as you can never predict what the next call or issue may be. But how can you prepare for you or any of your colleagues giving evidence at an employment tribunal?

Our mock employment tribunal training session gives managers and HR teams the opportunity to experience what could happen at this type of hearing and to take part as witnesses! Based on a fictional scripted scenario, we explain the set up and procedure of an employment tribunal hearing and provide you and your colleagues with the experience of giving witness evidence and being cross examined by a legal professional. You will have the opportunity to consider and discuss whether the claimant will win or lose, before hearing the final judgment.

This preparation can make a world of difference to future outcomes because participants will better understand the importance of following fair processes, documenting decisions and the potential consequences of failing to do so. It also gives you the opportunity to see how an employment tribunal operates and what sort of factors make the difference between winning and losing, as well as being quite good fun!

Here’s what some of our participants said:

John Wrigglesworth, Operations Manager, Rail Gourmet

“I found the mock tribunal very useful. Certainly, in how the judge rules, and the rationale behind it. Understanding the legal rationale more than I did and then the emphasis on witnesses coming across as credible were my main takeaways.

“Prior to that I thought the written evidence/bundle held far more sway but your credibility on the stand counts for a lot.”

 James Turner, Head of People Services, SSP

“A fantastic event which prompted really good participation and discussion throughout from the audience. Essential training for any leader who hosts any type of ER meeting with colleagues. Relevant case studies from outside of the business really helped bring alive the need to manage cases thoroughly, applying fair judgement, not just policy and process.”

Kerry Rodgers, Operations Manager, SSP

“It was a fantastic day and certainly an eye opener. It certainly will make me think more when doing grievances and appeals.”

To find out more about how we can support your business through training and development opportunities like these, take a look at the Pannone Academy website.

 

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In this article we look at why an employer may decide to instruct an external investigator to conduct a workplace investigation and how this process works.

The challenges faced by employers in the last two years have been significant and far-reaching. The Coronavirus pandemic has stretched resources, exposed employers to unexpected risks, and posed unprecedented problems in the workplace. Some sectors have really suffered during the pandemic, inevitably leading to more workplace disputes and grievances. On the flip side, some sectors have been incredibly busy and at times found their resources stretched.

As a result, we have seen an increase in the number of instructions we have received to conduct workplace investigations. In this blog we take a closer look at why this is and how our investigations team can assist.

 

Why instruct independent external investigators?

A common reason for instructing an external investigator is because the issues involve senior employees or board members. Instructing an external investigator can ensure a more rigorous and impartial investigation, politically it can also be easier to have an external law firm conduct the investigation. Employers may also instruct external investigators because there is a need to ensure the investigation is seen to be impartial, and to reduce the risk of litigation. Alternatively, it could simply be the case that the employer lacks the internal resources to conduct the investigation.

An added benefit of instructing a law firm to conduct the investigation is that it may be possible to ensure the investigation has the benefit of professional legal privilege.

 

So, how can we help?

We are regularly instructed by boards, HR teams, and in-house counsel to conduct investigations or to support and advise on an investigation. In the rest of this blog we take a brief look at how we can support workplace investigations and our team’s experience in this area.

 

Independent investigations – our approach

When we are instructed to carry out an internal investigation, we first take time to understand any relevant background and the nature of the issue being investigated. Once we have done this, we agree the terms of reference for the investigation with the client and, as appropriate, other interested parties. Whilst instructing us will certainly reduce the workload for a client’s internal teams, we will usually need some practical assistance in gathering evidence and arranging meetings with witnesses. However, other than that we can liaise directly with witnesses to conduct investigation meetings. Once we have concluded our investigation, we will prepare an investigation report and deliver that report to the client and any other interested parties.

Each matter is led by a senior lawyer with experience of contentious legal matters, advising in relation to investigations, and of conducting internal investigations.

 

Law firms and other professional advisers

In certain circumstances it may not be appropriate for an employer to instruct its usual external professional advisers to conduct an investigation. For example, the adviser may not be able to independently investigate the issue, or in doing so, there may be potential for a conflict. Our internal investigations team can be instructed by other professional advisers on an independent basis to carry out an investigation as a discrete, one-off instruction.

 

Our experience

Our team has decades of experience advising and supporting clients on workplace disputes and investigations. Examples of work undertaken by the team includes:

Well planned, thorough, and impartial investigations are such an important first step in dealing with many workplace issues. In this blog we have hopefully given you an insight into when it may be appropriate to instruct an external investigator and the potential benefits of taking this approach.  If you would like to know more about our investigations experience or how we could help your organisation (or your client’s) please contact Michael McNally.

 

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Many employers offer benefits such as private medical cover and permanent health insurance to employees as a potentially valuable part of their reward package. As the recent case of Amdocs Systems Group Ltd v Langton demonstrates however, it is crucial for employers to think carefully about the wording used when insurance-backed benefits are offered to employees.

The claimant’s written terms of employment included an entitlement to an insurance-backed income protection scheme in the event of his long-term sickness absence, including an escalator of 5% per year after the first year of absence. When the claimant became ill, he received the expected payments under the scheme, however, when he came to claim the 5% increase, he was told that this element of the insurance had been discontinued so there was no longer an entitlement to the escalator payments.

The employment tribunal and the Employment Appeal Tribunal held that because details of the escalator payments had been set out in the claimant’s contractual terms, he was entitled to these payments whether or not they were still covered by the insurance policy. The fact that his contract stated the operation of the scheme was ‘governed by the terms of the Group policies’ did not mean the employer’s liability was limited by the terms of the insurance policy. Crucially, the claimant had not been given a copy of the insurance policy or provided with a summary of its terms. If the company had wanted to link the claimant’s entitlement to the terms of the insurance policy, that should have been spelled out in his contract.

The moral of the tale – if offering insurance-backed benefits, make sure the entitlement is expressly linked to the terms of the insurance policy and receipt of payment from the insurer.

For more information about this issue and assistance with reviewing or re-drafting contractual terms, please contact: Jack Harrington on 0161 393 9050 or jack.harrington@pannonecorporate.com

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As employers welcome back staff in the coming weeks, Fiona Hamor catches up with People Management magazine to talk about what employers need to be aware of from a HR and employment law perspective.

While remote working has thrown up significant challenges for employers, a return to the office will equally create newfound problems generated by COVID-19. Recent employment tribunal rulings have highlighted some of the issues that have arisen from the pandemic, which have led to unfair dismissal claims being made.

Fiona says: “COVID-19 has undoubtedly left an indelible mark on the workplace and businesses have had to adjust to new ways of operating. The return of workers over the coming months will continue to pose unprecedented challenges to employers. The need to understand, assess and act on potential risk is clear, if businesses are to remain operational and to protect against any potential future claims.”

Read the full article on the People Management website. https://www.peoplemanagement.co.uk/experts/legal/what-to%20consider-employees-return-to-workplace

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In our latest My Life in Law, we speak to employment director, Stephen Mutch, about his career in law and his love of bass playing in indie/alternative group, BC Camplight.

I’m what’s called a ‘one club man’ in football.  I joined Pannone Corporate’s predecessor firm as a fresh-faced trainee lawyer back in 2003. This isn’t actually that rare at Pannone Corporate – there are a good handful of people here who joined when I did.

I joined Pannone straight from university, having completed a law degree at the University in Sheffield and a post-graduate in Chester.

They had a great reputation and a very varied portfolio of legal work. Even back then, they prided themselves on having a more human element than most firms – something I still think is true after nearly 20 years.

I’m rather ashamed to say that back then it was simply what most people did. Progress has been made, in terms of alternative routes into a career in law, but there’s still a very heavy reliance on a ‘good’ degree from a ‘redbrick’ university to open up doors. Lots more still needs to be done.

I like the intellectual challenge and getting to speak to and help people run their businesses. Employment lawyers are almost always a ‘distress purchase’, so it’s nice to help people with the problems or challenges their business are facing.

I spend most of the day on the phone or emailing clients providing advice, mixed in with a healthy dose of preparing clients’ defences for employment tribunal proceedings.

I’ve always enjoyed helping more junior lawyers navigate what can be a very difficult first few years, so more involvement in what I enjoy. That’s on top of the usual partnership, world domination type ambitions of course…

I would be a penniless and struggling musician (please see below)

I think some lawyers can still be a bit stuffy. Rarer these days, but clients don’t want that kind of lawyer anymore. Being user friendly and pleasant to deal with is top of most client’s priorities.

I play bass in indie/alternative band, BC Camplight, which releases records under the Bella Union label in London, so that takes up a lot of my time. We’ve been on the radio a fair bit and get to do around 30-40 shows a year. We’ve toured in Europe and played some of my favourite venues, such as the Roundhouse in London and the Paradiso in Amsterdam (Nirvana played there!) – there were 3,000 people in the audience, and I turned off my own instrument for our last song. Not cool! Our next record is out in the Spring.

I am also a trustee for a local arts-based charity called Art with Heart. Check them out here  https://artwithheart.org.uk/

I would say ‘please see above’, but I bore everyone to death with my tales of the (not so) rock ’n’ roll lifestyle!

 

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Pressure is clearly mounting on the Government to classify long-COVID as a disability. The aim is to provide thousands of employees with legal protection against any potential discrimination in the workplace.

Interestingly, a recent survey commissioned by the TUC revealed that just over half of people with symptoms, which typically include extreme tiredness, brain fog and dizziness, have experienced some form of discrimination or disadvantage at work.

The online poll of 3,500 people found that long-COVID sufferers are frequently met with disbelief and suspicion, with 19% of respondents saying that managers questioned the impact of the condition.

With calls for long-COVID to be given ‘occupational disease’ status for healthcare workers, there is clearly growing momentum for the condition to be given greater precedence in the workplace. While long-COVID is something that is entirely new, the Equality Act 2010 talks about disability as a physical or mental impairment that affects you day-to-day. The Act doesn’t contain a long list of conditions; it’s all about how it impacts your daily life. As such, there is a strong case for the emerging condition to be classed as such.

If long-COVID is categorised as a disability, employers will have to be very cautious about how they deal with the condition moving forward, to avoid any potential discrimination claims. However, from a HR perspective, the motivation shouldn’t be about avoiding employee action. Rather, it should be about what the long-term effects are going to be on workers, so that employers can put appropriate measures in place to support staff. The problem is, we don’t know a huge amount about the condition, which seems to differ enormously from one person to another.

As we wait to see how long-COVID is treated from a legal perspective, there are a number of key things that HR Directors and business owners should consider to ensure they are dealing with the condition in the most appropriate way – now and in the future.

If you would like to discuss how to implement an effective strategy to help manage occupational health, please contact Adam Pavey on 07980949525 or email Adam.Pavey@pannonecorporate.com

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The latest figures from The Advisory, Conciliation and Arbitration Service (Acas),  show the significant financial impact workplace conflicts can have on a business.

In its latest report, Estimating the Costs of Workplace Conflicts, Acas has said that workplace conflict costs UK employers £28.5 billion every year, an average of just over £1,000 for every employee. This is based on the total cost to organisations in handling workplace conflict that includes informal, formal and legal processes, as well as the cost of sickness absences and resignations.

During a period where margins are being stretched, additional costs such as these will only increase the considerable financial pressure being placed on businesses. If you add to the fact that, according to Acas, nearly half a million employees resign each year as a result of conflict, then the argument for taking a proactive approach to workplace conflicts has never been clearer.

Handling disagreements and complaints early before employment relationships are damaged not only helps to save businesses time and money in managing those claims, but it can also prevent unnecessary recruitment costs further down the line.

So, as a business, what can you do to try and prevent workplace conflicts from materialising?

A proactive approach

The key is prevention. Having a robust set of policies and procedures in place that are clearly communicated to employees and managers is an important step in creating an open and transparent workplace. If your business instils agreed customs, ideas and behaviours that everyone buys into then you can create a positive culture where people believe they are being listened to and one that encourages employees to handle any potential conflicts in a proactive and positive way.

Handling grievances

It’s essential to have a formal, written grievance procedure in place that is reviewed on a regular basis in line with any changes in legislation or official guidance, and managers should receive relevant training, so they know the steps to be followed. Ensure that when a grievance is raised, you refer to your procedures immediately – allowing you to manage workplace conflicts effectively and in a formal way. This includes investigating grievances fairly and consistently; creating open lines of communication for everyone involved; taking action and making decisions as soon as possible; and allowing the employee the right of appeal.

Focusing on diversity and equality

Creating a culture of fairness and inclusion is key when focusing on diversity and equality. This should be displayed throughout an employee’s journey with the company – from recruitment, through to day-to-day activities and any formal exit interview. Ensure key members of the team are aware and follow the correct procedures and are actively identifying and acting upon any potential breaches. Finally, arm each and every member of staff with the skills and training to ensure diversity and inclusion become a natural part of the organisational makeup of the business, and not something that you simply pay lip service to.

Bullying and anti-harassment

A policy on bullying and anti-harassment is also helpful as it can set out the company’s standpoint on such behaviour, give examples of what this can look like and make it clear it won’t be tolerated. This can reassure employees who feel they are being bullied or harassed that they can raise any concerns in a safe space, and set out the steps for you to take action against any perpetrators where appropriate. Training for staff and management on this subject can also help to the avoid behaviour arising in the first place, by illustrating that it is not acceptable in your workplace and highlighting the potential consequences.

In a world where more than half of employees are currently working from home, it’s vital to have the right systems in place that provide you with the flexibility to manage potential grievances that may arise remotely, while ensuring they’re firmly in place once people start to return to the office.

If you would like to discuss providing training for your staff around any of these issues, contact Chloe Pugh on chloe.pugh@pannonecorporate.com call 07500 797553, or visit our training website Pannone Academy at https://www.pannoneacademy.com.

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The impact of the coronavirus pandemic has been complex and far-reaching. No facet of business, or society, has escaped the effects of COVID-19 and serious questions have been asked of both employers and employees. 

While the issue of fraud – and more specifically employee fraud – has been on the radar for many years, the unique challenges posed by the pandemic have brought the problem under the spotlight in recent months. 

Whether it’s payment fraud, procurement fraud, personnel management, travel or subsistence fraud, exploiting assets and information, or receipt fraud, cases of employee fraud are common. According to Action Fraud, nearly 1 in 5 small businesses have been defrauded by an employee at some point during their trading history, causing significant loss and damage. Unsurprisingly, recent figures from NatWest show that UK businesses have been hit by fraud at a cost of £190 million a year, with 40% being caused by internal employees.

Despite a general perception around the issue, fraud isn’t always the product of malicious intent. Quite often, it materialises from despair, a lack of ability, or even inexperience. With many employees working remotely, and feeling disconnected from the structure and security of the workplace, it’s little wonder the problem of employee fraud has come under the spotlight. 

Times of economic uncertainty or economic boom, as evidenced before and as a result of the 2008 financial crash, often lead to an increase in fraud. Circumstances created by the pandemic – homeworking, job insecurity and financial hardship, and availability of financial support from the Government – all create an environment in which workplace fraud can increase.

Pre-pandemic, the fear of the boss “looking over the shoulder” could be a key factor in limiting employee wrongdoing and minimising the risk of employees falling victim to fraud from third-parties. However, the pandemic has forced employers to rely to a greater extent on its internal policies and procedures, as well a trusting its employees to do the right thing.

 To minimise the risk of fraud by employees, employers should consider:

 To minimise the risk of employees’ actions resulting in fraud by others:

Whilst a determined and sophisticated fraudster will always find a way, most workplace fraud (committed by or against employees) is often opportunistic and possibly due to lapses in oversight, poor management, or simple human or technology error. Taking a risk-based approach to identifying the greatest areas of risk within a business can help an employer effectively review, monitor, and minimise risk and to put in place the appropriate systems and defences to protect against internal fraud.

 If you would like to discuss the topic of employee fraud, contact employment director, Michael McNally, on 07736617394 or email Michael.McNally@pannonecorporate.com

 

 

 

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Welcome to our May newsletter!

Following the Queen’s Speech on 11 May, we would normally expect to report on a raft of proposed employment measures, however this year’s speech was notable for the absence of any such proposals.  In particular, there was no sign of the Employment Bill previously promised by the Government and expected to include measures to extend and protect worker’s rights, and create a Single Enforcement Body to tackle abuses in the labour market.

There have been however a number of pandemic related developments to report, including tweaks to the Coronavirus Job Retention Scheme, an extension for remote right to work checks, a European case on the human rights implications of compulsory vaccination, and an ET decision about whether a dismissal resulting from a refusal to come into the workplace because of concerns about coronavirus could be automatically unfair on health and safety grounds.

We also cover two recent cases concerning the legal definition of disability, a decision on maternity discrimination, and guidance from the Court of Appeal on when it is appropriate for a tribunal to order re-engagement following a successful unfair dismissal claim.

We welcome your feedback and questions so please do get in touch.

COVID-19 update

Consultation on workplace social distancing measures, ACAS guidance on long COVID, right to work checks.

Read more >

Was COVID-19 a serious and imminent danger?

An employment tribunal has held that an employee did not reasonably believe COVID-19 to be a serious imminent danger in the workplace.  Therefore his dismissal was not automatically unfair when he was dismissed for refusing to attend work during the pandemic lockdown over concerns about infecting his vulnerable children.

Read more >

Furlough Scheme Update

As most employers will be aware by now, the Coronavirus Job Retention Scheme (more commonly known as the furlough scheme) has been extended until September 2021.  a new Treasury Direction setting out the terms on which the scheme will operate from 1 May to 30 September 2021 was issued by HMRC on 15 April 2021, supplemented by updated guidance.

Read more >

Definition of Disability

Two recent decisions by the Court of Appeal and the Employment Appeal Tribunal have provided further guidance on the often complex and technical question of how to determine whether an individual is disabled for the purposes of the Equality Act 2010.

Vaccination and the Workplace

The issue of vaccination in the workplace remains a hot topic as lockdown restrictions ease.  We look at the human rights issues that may arise when vaccination is made compulsory.

When is re-instatement or re-engagement practicable?

In a recent case, the Court of Appeal considered when it might not be practicable for an employer to reinstate or re-engage an employee who has been unfairly dismissed.

Right to benefits during maternity leave

The Court of Appeal found that London Police did not directly discriminate against an officer on maternity leave when she was not paid a London allowance.

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Background

The employee, who is of Pakistani descent and her religion is Islam, was working for a food retail company in the sales team. She pursued a claim for direct discrimination and harassment on the grounds of her race and religion for various matters, including: 

Some of the allegations relied upon were outside of the Tribunal’s time limit, however the Tribunal had to consider all of the allegations to understand whether time should be extended on the basis that the treatment complained of was a ‘continuing act’. 

The ruling

All of the employee’s allegations failed. The Tribunal found that she was not treated differently because of her religious beliefs, nor was she forced to pick up an item that went against her belief or laughed at when she informed her manager that it was against her beliefs.

 Why is it important?

The case is a useful reminder that if a poorly performing employee is the only individual within the company of a certain race or religion, this will not necessarily translate into a claim if an employer can clearly evidence the underperformance.

The allegation that the employee was asked to purchase and handle an item of food that went against her religion is of particular interest. It’s likely that many employers in the food and hospitality industry will come across employees who adhere to certain values or beliefs. This may mean that they don’t consume or handle certain food or drink items for this reason, but who would be expected to handle such items during the ordinary course of their employment. 

This case serves to demonstrate that employers should be aware that there could be a risk of discriminating against employees if they are asked to handle items that go against their religious beliefs and they should be mindful of this when allocating tasks. 

The saving grace for the employer in this case is that no pressure was put on the employee to purchase or handle the pork product. In fact, when the manager in question was informed that this request went against the employee’s religion, he immediately told her he could organise for someone else to source this product, but the employee said she would be willing to do it provided her contact with the item was minimal.

If you would like to discuss any employment related concerns within your workforce, contact Katie Kennedy on Katie.Kennedy@pannonecorporate.com or call 07711 767099.

 

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Radhika Das is a Legal Executive in the employment team at Pannone Corporate. In the first in our series, My Life in Law, she tells us more about how she got into the profession and life at the firm.

When did you join Pannone Corporate? I joined Pannone in July 2018, so coming up to three years ago.

What was your role/experience prior to joining? I worked at a large respondent firm in Manchester which provided Employment Tribunal support.

Why did you join Pannone? The Pannone name is really respected in the industry, and I wanted more exposure to a different type of work. In my previous role, I dealt purely with litigation and defending Employment Tribunal claims; at Pannone, I do everything from HR advice, drafting contracts and handbooks and litigation. I have also provided on site HR support to clients.

What route did you go down, in terms of training and qualifications? I graduated with a LLB law degree and went straight into full time employment. I started off doing claimant work for a Trade Union and then moved to respondent work in 2016. I qualified as a Legal Executive in April 2021, after doing three years qualifying employment and submitting a portfolio.

Why did you choose this route? I liked the idea of being able to work in employment law and do my qualification at the same. It’s meant that I have had lots of exposure in employment law.

What is the most satisfying aspect of your job? It always feels great when we get a win at Tribunal. Giving evidence can be tough for the witness, especially when the case is a particularly emotive matter such as a discrimination claim. It is really satisfying when a witness gets through that and gets a judgment in their favour.

What does a typical day look like? It is really varied. One day I could be doing a telephone preliminary hearing, and on the same day I could be advising an employer about whether it is legally safe to dismiss an employee. The next day, I could be meeting with witnesses to take their statements or attending Tribunal – no two days are the same!

 What can lawyers / the legal profession do to better support clients? Does anything need to change? I think technology is the way forward. Everything in our lives is so much more accessible and I think the legal profession still has some work to do in that regard. COVID-19 has certainly raised some challenges for all sectors, but I think some changes may be around to stay – for example, electronic bundles and video hearings, which have worked really well in most circumstances.

 

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Before the coronavirus pandemic began, it was estimated that around 4.6 million people in the UK worked from home. Despite being in the millions, this represented just 14% of the country’s 32.6 million workforce.

Figures from market and consumer data analyst, Statista, show a steady rise in home working over the last few years, growing by 1.69 million since 1998. Fast-forward to 2021 and the ‘WFH’ landscape has changed exponentially, with a reported 60% of the UK’s adult population working remotely. 

COVID-19 has undoubtedly left an indelible mark on the workplace and, despite positive steps being made towards opening up the economy and a return to ‘normal’ working life, businesses have had to adapt to new ways of operating and, importantly, new ways of managing their employees in a remote world.

Technology has clearly played a crucial part in the transition from the office to home, but performance management still remains a ‘hands-on’ task – whether that’s appraisals, reviews with underperforming workers, or rewarding high performing individuals. 

While remote performance can be harder to observe online, or over the phone, the argument for effective feedback, regular conversations about performance – good or bad – and setting clearly defined goals, has never been stronger. These are all fundamentals of good performance management, regardless of the current climate. 

Performance management is both complex and crucial in equal measures, made more so by the experiences of the last 12 months. Many factors need to be taken into consideration to ensure it is delivered effectively, particularly online. In a remote world, it’s all too easy for employees to misinterpret actions, emails and comments, which can result in them believing they are being bullied or discriminated against. What is clear is that the fundamentals of performance management remain important cornerstones of creating an effective, happy and well-run team – whether in the office or at home. 

If you would like to discuss any employment-related concerns within your workforce, contact Katie Kennedy on Katie.Kennedy@pannonecorporate.com or call 07711 767099.

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The mental and physical wellbeing of employees will be the biggest HR challenge for businesses in the next 12 months, as concerns grow about the welfare of remote workforces. 

More than half of HR professionals (55%) admit that the issue will be the main focus in the year ahead, with an overwhelming 83% saying they have concerns about the overall mental wellbeing of employees as a result of the pandemic.

According to our survey of HR professionals, carried out during a recent HR Forum, managing the ongoing COVID response, including the Coronavirus Job Retention Scheme (CJRS), redundancies and health and safety, was also a significant HR obstacle. Furthermore, managing change for future working ranked highly amongst HR professionals, as they continue to adjust to a new hybrid of home and office working, the impact on wellbeing, recruitment, flexible working and performance management.

The survey found that a significant number of respondents planned to make permanent operational changes in 2021, as a result of their lockdown experience, with nearly half (44%) intending to introduce flexible working, and a further 44% looking at a working from home model.

Jack Harrington, partner and employment lawyer at Pannone Corporate, commented: “The workplace has changed beyond recognition in the last 12 months, with what were sometimes seen previously as peripheral HR issues being brought to the fore as a result of the pandemic. 

“Unsurprisingly, the majority of HR professionals (94%) anticipate an increase in flexible working requests as restrictions are gradually lifted, with nearly half (44%) planning permanent changes to contracts of employment or HR policies, as businesses continue to adjust to the new ways of working that COVID-19 has forced many employers to adopt.”

Currently, all employees have the legal right to request flexible working – not just parents and carers. Employees must have worked for the same employer for at least 26 weeks to be eligible for making a ‘statutory application’. However, campaigners, including employment and discrimination barristers Ijeoma Omambala QC and Rebecca Tuck QC, presented their ‘Flexible Working Beyond a Crisis’ report, funded by Sir Robert McAlpine, to the Law Commission last month. This follows a six-year campaign to make flexible working a right for everyone from day one. 

 

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The majority of North West businesses will not make the COVID-19 vaccination mandatory within their organisation, despite the growing debate around ‘no jab, no job’.

As the Government considers plans to introduce COVID certification, as it continues to open up the UK economy, 83% of the region’s business and HR leaders confirmed that they don’t intend to force employees to take up the vaccine, before returning to the office.

In a survey conducted during our recent HR Forum, more than a third of respondents said that staff had indicated they would not take the vaccine, with ‘anti-vax’ beliefs being the biggest driver (50%). Medical reasons (40%) and race (10%) also accounted for the most common reasons why North West employees would refuse to be immunised. 

Adam Pavey, director and employment lawyer at Pannone Corporate, commented: “The issue of COVID vaccinations in the workplace is a highly complex one and a unique problem facing the region’s business and HR leaders. 

“There are a number of employment law implications arising from a mandated vaccine. The law as it currently stands does not give an employer an automatic right to vaccinate. In fact, an employer is not able to force any employee to undertake what is essentially a medical procedure.”

Under the current law, an employer would have to argue that requiring an employee to take a vaccination is a “reasonable instruction”.  If an employee fails to follow this, then it could give rise to a disciplinary issue which may ultimately lead to dismissal.

Pavey added: “Requiring employees to take a vaccine is not automatically a reasonable instruction. There is of course no case law on this point and the employment tribunals have yet to deal with this issue. However, whether the instruction is reasonable will likely depend upon the particular circumstances. For example, an employee who works in the care sector may be seen differently from somebody who is able to work from home.”

Pavey continued: “A mandatory workplace vaccine would undoubtedly give rise to complaints of discrimination. The science indicates that people with certain health issues may have an adverse reaction to the vaccine. It’s likely that many would be classed as disabled and so dismissal for a failure to vaccinate could amount to unlawful discrimination.”

 

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Welcome to our March newsletter

In this edition, we look at the imminent changes which should be top of the agenda for HR teams and employers.  Coming into force in April, this includes new National Minimum Wage rates and HMRC guidance on the extension off off-payroll working to the private sector.  We also take a look at new pension legislation which will be introduced later this year.

Employers continue to rise to the challenge of managing the impact of the pandemic on employees and the workplace.  We shine a light on the extension of workplace testing and updated guidance from Acas on vaccinations.  Read more about one of the first employment tribunal decisions to emerge around Covid measures – an HGV driver was considered fairly dismissed by his employer after he had refused to wear a mask.

We report on the cases you need to know about, including a TUPE case with significant implications for organisations involved in outsourcing, two connected cases on the issue of religious discrimination, and a case about covert recording, which shows the devil is in the detail.

We welcome your feedback and questions, so please do get in touch.

What’s New March 2021

This month we look at increases to the National Minimum Wage and tribunal awards, off payroll working, and a new Home Office register for Modern Slavery Statements.
Read more >

Budget Summary

The Budget has been announced and the focus is on the impact of COVID-19.

Read more >

Dismissal for refusing to wear a mask was fair

A heavy goods vehicle driver was fairly dismissed by his employer after he had refused to wear a mask, as a precaution against the spread of coronavirus, whilst at a customer’s site.

Read more >

Eligibility for workplace COVID-19 testing and guidance updated

The Government  extends rapid workplace Covid-19 testing to smaller businesses.

Read more >

Underhand surveillance or protecting the business?

In the case of Northbay Pelagic Limited v Anderson, the Employment Appeal Tribunal had to decide whether the dismissal of an Employee for installing a camera in his office while suspended was within the “band of reasonable responses”.

Read more >

 

Pensions Update

The Government will be introducing new legislation later this year – we take a look at the Pensions Schemes Act 2021.
Read more >

TUPE Transfer – to more than one employer

In the recent case of McTear Contracts Ltd v Bennett, the EAT has confirmed that where a service previously carried out by one provider is divided into two parts and awarded on re-tender to two new providers, employees may transfer to both of the new providers.

Read more >

 

Religious Discrimination

In the cases of Page v NHS Trust Development Authority and Page v Lord Chancellor the Court of Appeal has rejected two appeals brought by the same individual who was removed from his posts as a lay magistrate and a non-executive director after he had spoken out publicly against same-sex adoption and homosexuality.

Read more >

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The Supreme Court has handed down a landmark ruling that Uber drivers are in fact ‘workers’

Following a lengthy legal dispute over the past few years, the Supreme Court has this morning confirmed that Uber drivers are ‘workers’, rather than independent self-employed contractors.

The Supreme Court commented that due to Uber’s control over the drivers, including control over their earnings and performance, and the penalties imposed for failing to accept jobs, their drivers were ‘workers’ from the moment they switch on their apps, to the moment they switch off their apps at the end of the day.

The implications of this finding is that as ‘workers’ they are entitled to certain additional rights/protections such as:

  1. the right to national minimum wage;
  2. the right to paid annual leave;
  3. the right to sick pay;
  4. the right to minimum rest breaks; and
  5. whistleblowing protection.

Further Uber drivers will be able to claim back pay for such rights not received to date.

With tens of thousands of Uber drivers in the UK, this decision could lead to mass claims and significant expense for Uber, particularly now that it will have to rethink its business model.

This judgment is likely to have far reaching implications for the gig economy and other businesses that operate a similar model to Uber.

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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.

Our first HR Forum of 2021 will be held as a webinar and will include:

Employment Law Update
A summary of the most important or interesting decisions coming out of the tribunals and courts in the last few months together with a legislation update.

Managing a Post Lockdown Workforce
With the end of lockdown and the end of the furlough scheme looking like a reality in the next few months, we take a look at the legal and practical issues that may arise with a return to some form of normality. In the short term, many employers will be keen to get their staff back into work, but what can they do about staff who refuse to attend the workplace? What about staff who refuse to be vaccinated or who remain clinically vulnerable? In the longer term, increased flexibility is likely to be on the agenda, both for employees who want to continue working from home and/or more flexibly, and for employers who are keen to protect the business from the impact of unexpected disruption in the future. We look at the challenges of managing a new more disparate workforce, including handling flexible working requests and making the changes to terms and conditions needed to future proof the business.

Details: 
When: Thursday 4 March
Where: via Zoom
Time: 10am to 12pm
Cost: Free

To reserve your place please RSVP by email to val.beck@pannonecorporate.com 

Places will be limited so please book soon. If there are any particular questions you would like to see addressed during the session, please contact jack.harrington@pannonecorporate.com

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

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Pannone Corporate has expanded its team with a triple appointment as it looks to strengthen the law firm across its specialisms.

Michael McNally and Adam Pavey have both joined as directors in the Employment and HR team. James Brandwood joins the firm as a Real Estate associate.

Michael and Adam will be responsible for advising clients on all aspects of employment law, including providing regular representation and advocacy in the Employment Tribunal.

Michael, who joins from Freeths LLP in Liverpool, has particular experience in acting for SMEs through to multi-nationals in the manufacturing, transport and logistics, hospitality and leisure and care sectors. Adam was formerly a solicitor at Poole Alcock, where he helped to develop the Cheshire firm’s employment department, with clients spanning a number of sectors. He has a particular specialist interest in healthcare.

Pannone Corporate’s employment team works with a wide range of clients, predominantly those with 400-500 employees across a number of sectors, including social housing, manufacturing, retail and hospitality.

James, who joins from Addleshaw Goddard, will work alongside a highly experienced Real Estate team, led by partner, James Wynne, which advises on a wide range of commercial real estate matters for major property groups, together with national retail and leisure operators. James will be responsible for property acquisitions and disposals, financings, as well as development, landlord and tenant transactions.

Paul Jonson, senior partner at Pannone Corporate, commented: “Both the Employment and Real Estate teams have built up an excellent reputation in recent years for their experience and expertise across their core specialisms. We’re committed to enhancing that offering and the appointment of Michael, Adam and James is testament to that drive and ambition.”

The Real Estate team recently advised Palmbest Limited, part of the Bestway Group of companies, on the acquisition of Staples Corner Shopping Park, leading the £28 million retail park transaction.

 

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A staple in every employment contract, the non-compete clause serves to act as a deterrent for any employee looking to jump ship and set up a similar business in direct competition with their former employer.

Despite being somewhat difficult to enforce, it’s their mere presence in a contract of employment that makes them as effective as they are, particularly when coupled with other clauses, such as confidentiality and protection of intellectual property.

However, there are two schools of thought emerging on the non-compete clause – one that thinks they’re an essential way of protecting a business, by deterring employees from taking ideas, clients and staff to set up shop round the corner within a certain period of time; and then another, which believes that the contractual clause is actually stifling entrepreneurship, particularly in the technology sector, inhibiting economic growth and innovation.

According to reports, the government falls into the latter and will launch a public consultation within days to determine what changes need to be made to non-compete clauses, and to make it harder for employers to block staff from leaving to set up rival companies, in an effort to nurture more start-up businesses.

Apparently, the government is concerned that current use of the clauses is thwarting workers from leaving jobs and setting up their own businesses. As such, ministers are looking at whether reform in this area could enable free movement of future talent – as seen in California and, more specifically, Silicon Valley.

For many business owners, the thought of diluting such a clause, regardless of how difficult it is to enforce, is a worrying one – particularly smaller businesses that don’t have the means to challenge employees who go on to set up rival companies. Importantly, ministers are not expected to ban non-compete clauses altogether, but instead focus on whether they are well targeted and reasonable.

Regardless of the outcome, the fact still remains that the detail within an employment contract is crucial – not only in protecting a business, but also employee rights. We see time and again the value in getting contract wording right. Nothing can be put down to interpretation; nothing can be stretched to fit a certain situation; you have to have an employment contract that is properly drafted to enable an employer to show that the restriction goes no further than is necessary to protect its legitimate business interests. This point was illustrated in the recent case of Gemini Europe Ltd v Sawyer where the High Court agreed to uphold an interim injunction, enforcing a nine-month non-compete clause in a former employee’s contract of employment. This centred on the managing director of Gemini, a company that operates in the emerging and highly lucrative cryptocurrencies sector, leaving the business and joining a competitor three days after his employment came to an end.

Despite a complex contractual arrangement, the court found in favour of the business and was satisfied that the contract was valid, enforceable and that Gemini was entitled to protect confidential information which would have given the competitor an unfair advantage.

Whether a government-inspired public consultation will lead to a reform of non-competing clauses is yet to be seen, but what it does emphasise is the importance of regularly reviewing employee contracts to ensure that not only their restrictive covenant clauses are appropriate and reasonable, but also the confidentiality provisions are up-to-date and relevant.

What’s more, any changes to non-compete clauses can only serve to emphasise and heighten the significance of other clauses contained within employment contracts, such as confidentiality and protection of intellectual property.

If you would like further information on ensuring your employment contracts are watertight, contact our employment team.

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Employees previously shielding are advised to do so again

With new nationwide restrictions due to come into force from tomorrow, the Government has confirmed that individuals who were previously advised to shield because of their increased vulnerability to the coronavirus should do so again.

Employees who fall into this category are strongly advised to work from home and, if they cannot do so, should not attend work whilst the increased restrictions are in place.

The position remains that employees who live with shielding individuals (as with all employees) can still attend work if it is not “reasonably possible” for them to work from home.

Shielding employees may be eligible for Statutory Sick Pay, Employment Support Allowance or Universal Credit. The guidance suggests that their previous formal shielding notification should act as sufficient evidence of their shielding status. The Government has not yet indicated whether new rules on SSP for shielding employees will be published. Under the previous rules, employers started paying SSP from the first qualifying day a shielding employee was off work.

The Government has also confirmed that provided they were on the payroll before 30 October 2020, shielding employees may also be eligible for the extended Coronavirus Job Retention Scheme.

If you have any questions about the impact of the new restrictions on your business or about the extended Coronavirus Job Retention Scheme, please contact Jack Harrington

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Can an employer rely on private WhatsApp messages in disciplinary proceedings, will asserting data protection breaches derail a disciplinary process, is a gender fluid/non binary employee covered under the Equality Act 2010, and can a belief that someone’s birth gender cannot be changed be a protected belief under the Equality Act 2010?

What’s New

This month we look at ICO’s new accountability framework, the extension of ACAS Early Conciliation Period, the highest costs award issue to a Claimant and the Job Retention Bonus.

Read more >

Recent highlights

How private is WhatsApp? 

The Court of Session (the Scottish equivalent of the Court of Appeal) has determined in the case of BC v Chief Constable of the Police Service of Scotland that the Police’s reliance on personal WhatsApp messages to bring misconduct charges against police officers was not a breach of the right to a private life under Article 8 of the European Convention on Human Rights.

Read more >

Data Rights and breach of contract

It is not uncommon for an employee faced with disciplinary allegations to resort to counter allegations such as breach of human rights or data rights in an attempt to put a spanner in the disciplinary works. But how likely is this to successfully de-rail the disciplinary process?

Read more >

Gender fluid/non-binary employee covered by the Equality Act

The very recent case of Taylor v Jaguar Land Rover has held than a gender fluid/non-binary employee is covered under the definition of ‘gender reassignment’ as a ‘protected characteristic’ under the Equality Act 2010 and hence was able to succeed with a claim of discrimination.

Read more >

A belief that sex and gender are set at birth and cannot be changed is held to be a protected a belief under the Equality Act 2010

The ET have made a finding in the case of Higgs v Farmor’s School that a belief that gender is set at birth and cannot be changed is a protected belief under the Equality Act.

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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

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

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

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What’s New?
This month we look at new ACAS guidance on handling redundancies, guidance for employers who have over (or under) claimed under the Coronavirus Job Retention Scheme and ongoing Government support for employers hit by the pandemic

More…

Holiday Pay
The Employment Appeal Tribunal has held that a profitability bonus was not part of a week’s pay for a worker with normal working hours, and therefore not part of holiday pay in respect of 1.6 weeks entitlement to holiday under UK law.

More…

TUPE transfers – to more than one employer!
The ECJ has handed down what may prove to be an important decision in the case of ISS Facility Services v Govaerts, deciding that where a particular service being provided to a single client is split between multiple new providers, employees can transfer under TUPE to more than one of those providers, based on the split of work they carry out.

More…

Employment Status
In two recent cases on the knotty issue of employment status, the tribunals have set out yet again the underlying principles which determine whether someone is an employee, a worker, or genuinely self-employed.

More…

 

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What’s New?
This month we look at updated pandemic data protection guidance from the ICO, preventing furlough fraud, and will working from home by the new normal?

More….

Recommending reasonable adjustments
Where a disabled employee is substantially disadvantaged by a workplace arrangement or practice, an employer must take reasonable steps to avoid that disadvantage, but how far might an employer have to go when it comes to making reasonable adjustments?

More….

Anonymous evidence
In a recent claim, the EAT confirmed it was not outside the range of reasonable responses to dismiss someone in reliance on an anonymous witness.

More…..

Disability discrimination and dismissal
In the recent EAT case of Department of Work and Pensions v Boyers an employment tribunal was found to have adopted the wrong approach by focusing too closely on the employer’s decision making process rather than conducting a balancing exercise between the needs of the employer and the discriminatory effect of the dismissal on a disabled employee.

More….

 

 

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Following the Third Treasury Direction published on 26 June 2020 setting out the mechanics of the changes to the Coronavirus Job Retention Scheme and the implementation of the ‘flexible furlough scheme’ available from 1 July 2020, there was some confusion about whether the Scheme could be used to recoup notice sums paid to employees who serve notice whilst still on furlough leave.

HMRC has now confirmed in its updated guidance that the Scheme can be used in respect of both statutory and contractual notice periods. The relevant section of the employer guidance states:

“You can continue to claim for a furloughed employee who is serving a statutory or contractual notice period, however grants cannot be used to substitute redundancy payments.”

A similar amendment has also been made to the employee guidance.

As such it is now clear that the Scheme can be used to pay the whole of an employee’s statutory or contractual notice period in circumstances where the furloughed employee is dismissed on notice. We are sure this is welcome news to employers.

Please do not hesitate to get in touch with us if you have any questions regarding the above or the Scheme generally.

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On 26 June 2020, the Third Treasury Direction was published setting out the mechanics of the changes to the Coronavirus Job Retention Scheme (‘the Scheme’) and dealing principally with the implementation of the ‘flexible furlough scheme’ available from 1 July 2020.

However, an amendment to the introduction section of the Scheme as a whole has raised concern over the ability of employers to recoup notice sums paid to employees who are dismissed whilst still on furlough leave.

Crucially, the terms of the third Treasury direction imply that payments obtained through the Scheme must be used ‘to continue employment.’

This suggests that, where employment has been terminated and the employee is working under notice, the Scheme should not be accessed in respect of those employees.

This is contrary to most commentators’ previous interpretation of the Scheme, namely that some element of notice pay could be recovered under the Scheme in many circumstances.

Given that neither the guidance nor the Treasury Direction explicitly exclude notice pay, and the guidance makes it clear that employees can be made redundant whilst on furlough, it seems likely that furlough payments made during the notice period will be recoverable, but the uncertainty is incredibly unhelpful for employers.

Urgent clarification is being sought from the Government but until further guidance is issued, employers need to be aware that there is at least a potential risk that they will not be able to recoup any part of notice sums paid to employees who are dismissed whilst on furlough leave, even if they are required to work that period of notice.

Please do not hesitate to get in touch with us if you have any questions.

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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.

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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:

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.

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What’s New?

This month we look at new ACAS guidance on handling disciplinaries and grievances during lockdown; holiday for furloughed workers; the latest report from the Low Pay Commission on compliance with the national minimum wage; and an update on the Coronavirus Job Retention Scheme.

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Constructive Dismissal – The straw which broke the camel’s back

In the recent case of Williams v Governing Body of Alderman Davies Church in Wales Primary School, the Employment Appeal Tribunal considered whether a “last straw” that is in itself entirely harmless can still form the basis of a successful constructive dismissal claim.

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Wrongful dismissal and length of service

Should length of service be taken into account when determining whether an employee has been wrongfully dismissed? No, held the EAT in East Coast Main Line Company Ltd v Cameron.

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Genuine right of substitution incompatible with ‘worker status

In the case of B v Yodel Delivery Network Ltd the European Court of Justice gave its view on whether staff engaged by Yodel were ‘workers’ and hence entitled to holiday pay.

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Discrimination in recruitment

In a case about an Italian radio interview the European Court of Justice has found that a simple statement that the interviewee would not hire homosexual employees in his law firm was capable of amounting to unlawful discrimination.

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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.

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What’s New?
This month we look at new ACAS guidance on working from home; remote right to work checks; an increase to compensation for injury to feelings in discrimination claims; the latest tribunal statistics; the last word on shared parental pay and sex discrimination; and proposals for the new points-based immigration system which will take effect from 1 January 2021.
For information about the employment law implications of the Covid-19 crisis and the Coronavirus Job Retention Scheme, please see the dedicated updates on our website

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Unfair Dismissal – The Full Story
Can a dismissal be unfair if the dismissing officer is unaware that a complaint has been withdrawn? Yes, according to the EAT in the recent case of Uddin v London Borough of Ealing

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National Minimum Wage
The EAT has held in the case of Commissioners for HM Revenue and Customs v Middlesbrough Football Club that salary deducted from employees’ wages to purchase season tickets could not count towards the National Minimum Wage

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Dismissal because of reputational risk
In the case of Lafferty v Nuffield Health the EAT considered whether an employee was fairly dismissed because of the potential reputational risk arising from criminal charges

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Liability for data breaches by rogue employees
Is an employer vicariously liable for breaches of the Data Protection Act on the part of an employee who had a personal vendetta? No, held the Supreme Court in the case of VM Morrison Supermarkets plc v Various Claimants

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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.

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Finally, after weeks of debate amongst employment law practitioners and silence on the part of the Government, the question of whether employees can take annual leave whilst furloughed has been answered with a resounding “yes”.

The latest version of the Government’s guidance for employees confirms that employees can take holiday whilst on furlough and must be paid their usual holiday pay in accordance with the Working Time Regulations. That means employers will have to make an additional payment to top up wages to full pay for furloughed employees who take holiday during furlough leave.

Where employees wish to take holiday whilst furloughed, the usual rules for notification (in their contract of employment or the default rules under the WTR) will apply. An employer may refuse a holiday request by serving counter-notice, which must be given at least as many calendar days before the date on which the leave is due to start as the number of days which the employer is refusing.

An employer who would like employees to take some holiday entitlement during a period of furlough leave (perhaps to avoid operational difficulties later in the year) can give notice of a requirement to take WTR holiday. Notice must be at least twice the length of the period of holiday that the worker is being required to take.

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.

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The Treasury has now published a formal detailed Direction to HMRC setting out how the Coronavirus Job Retention Scheme should operate. Full details can be viewed here

There is one aspect of the Treasury Direction which is of particular note.

The Direction provides that in order for an employee to be properly furloughed, there must be a written agreement between the parties confirming furlough leave, although this may be in an electronic form such as an email

This is significant as it appears to be inconsistent with the official guidance published by the Government which states that in order to be eligible for the grant employers must simply “confirm in writing to their employee that they have been furloughed.”

It is not clear from the Treasury Direction whether, if you subsequently obtain written agreement, a claim can be backdated to cover the period when you thought employees were furloughed but in fact may not have been.

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.

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The available Government guidance on the Coronavirus Job Retention Scheme (which deals with furlough leave for eligible employees) was updated on 9 April 2020, just before the bank holiday weekend, and again this afternoon.

The link to the updated guidance is here https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme.

Firstly, the date on which an employee has to have been on the employer’s payroll in order to qualify for the scheme has been changed from 28 February to 19 March 2020.

Secondly, the updated guidance contains an important clarification concerning employees absent through sickness and furlough leave – important not least because it is an issue that will arise for many employers but also because it contradicts the previous indications on this issue.

The guidance now makes it clear that whilst the furlough scheme is not intended to deal with short-term absences from work due to sickness, employers who wish to place employees who are absent through sickness (or indeed have self-isolated or are ‘shielding’) on furlough leave are free to do so.

The important point appears to be that someone’s absence through sickness etc. should not be a consideration in deciding whether to furlough them. Employees should be furloughed on the same basis as their counterparts who are able to attend work. To do otherwise risks claims of discrimination.

It also means there is nothing to prevent employees who have been absent long-term through sickness (and may in some instances be receiving generous company sick pay) being placed on furlough leave.

The final update is less official and has come to our attention via a ‘tweet’ issued by HMRC Customer Support. The ‘tweet’ in question stated that it is possible to take annual leave when on furlough leave, and it must be paid at full pay. This is a useful indication of the likely position although we should stress there has been no official guidance as yet on the subject of taking annual leave whilst on furlough leave. Our view is that entitlement to normal holiday pay will most likely be limited to the statutory minimum annual leave of 5.6 weeks.

If you would like more advice on any of the issues raised above or in our Coronavirus FAQs (read here), please do not hesitate to get in touch with us.

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Over the weekend, the Government has produced further guidance on the Coronavirus Job Retention scheme.

Key points include the following;

• Subject to any restriction in their employment contract, employees can start a new job when on furlough leave (meaning they could end up earning 80% of their old salary and 100% salary from a new job).
• In addition to basic salary, an employer can reclaim 80% of contractual commission owed to employees.
• Employers cannot however reclaim the value of non-monetary benefits such as a company car.
• Directors who are furloughed can still perform their statutory duties, but no other work.
• ‘Workers’ (as opposed to employees) who are paid through PAYE can also be furloughed and receive support through the scheme.
• Employees can be furloughed, brought back to work and then furloughed again multiple times however each period of furlough leave must last for a minimum of three weeks.
• An employer must notify the employee of their furlough status in writing and keep a record of the written notification for five years.

Further guidance can be found here

https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme

If you would like more advice on any of the issues raised above or in our Coronavirus FAQs (read here), please do not hesitate to get in touch with us.

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Key employment law changes coming in to force on 6 April 2020

Further to our update at the beginning of the year, there are a key number of changes coming in to force on 6 April 2020 including legislation under the Good work plan.

Termination payments
All termination payments above the £30,000 threshold will be subject to class 1A NICs. If you are negotiating a settlement agreement or exit package this is something that both parties will need to consider as it places obligations on the employer and may result in a smaller financial sum for the employee.
Statement of terms for all workers
All workers, not just employees, will be entitled to a written statement of terms of employment from day one of their employment (or before), rather than within two months of starting. This information must also now include: details of all remuneration and benefits; any paid leave the worker is entitled to; any probationary period; the hours and days of the week the worker is required to work; and details of any training provided by the employer.

Changes to holiday pay calculations
The reference period to calculate a ‘week’s pay’ for those who do not have normal working hours or those whose pay varies will be extended from 12 to 52 weeks. If an employee has worked for less than 52 weeks then the reference period will be the number of weeks the employee has worked.

Changes to agency worker contracts
Employment businesses must provide agency work-seekers with a key information document before the terms under which they will work are agreed. The information to be given includes: minimum rate of pay; any deductions to that pay, how they will be paid and by whom; and annual leave entitlement.
The “Swedish Derogation” provision that appears in many agency workers’ contracts (which enabled businesses to opt out of equal pay requirements) will no longer apply. Temporary work agencies must advise workers of this in writing by 30 April 2020.

Statutory Parental Bereavement PayA new statutory right will apply from 6 April 2020 which entitles employees to take one or two weeks off work following the death of a child under 18 or a stillbirth. A new statutory payment, statutory parental bereavement pay, may be payable during parental bereavement leave, this will depend on the individual’s length of service and earnings.

Statutory Sick Pay and Family Related Pay
The statutory sick pay rate will increase from £94.25 to £95.85 and the statutory rate of maternity pay, paternity pay, adoption pay, and shared parental pay will increase from £148.68 per week to £151.20.

National Minimum Wage and National Living Wage
As of 1 April 2020, National Living Wage increased from £8.21 to £8.72 per hour for those aged 25 and over.
National Minimum wage increased as follows;
• For 21 to 24 year old the rate increased from £7.70 per hour to £8.20 per hour
• For 18 to 20 year old rate increased from £6.15 per hour to £6.45 per hour
• For 16 to 17 year old rate increased from £4.35 per hour to £4.55 per hour

We are likely to see further developments as the year progresses and as a result of the current Covid-19 pandemic, but you can put yourself in the best position by taking steps now to ensure you have the correct documentation and processes in place. We can do the hard work of reviewing and updating your contracts and policies, so get in touch and we would be happy to discuss how we can help you.

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Employees are what makes a business tick but what happens when the employment relationship goes wrong?  Sometimes workplace relationships break down, issues with performance or conduct arise, disputes develop, and if these can’t be resolved internally or result in a dismissal, a tribunal claim may follow. 

Dealing with an employment tribunal claim can be costly and involve substantial management time and work, as well as being worrying for colleagues who are involved as witnesses, but there are steps you can take to minimise the chances of receiving a claim. 

Contracts and Policies 

When it comes to avoiding employment claims and protecting your business, there are no easy answers, however putting in place effective employment contracts and HR policies and applying them consistently is the first and most important step.  

The second step is to keep those contracts and policies up to date. Employment is an area of law where the goalposts are constantly being moved or removed, so a regular review of your contracts and policies will ensure that you remain compliant with current legal standards and requirements and minimise the risk of employment tribunal claims.

Training

Contracts and policies don’t work in isolation.  Ensuring that your managers are well prepared on how to, and more importantly how not to, deal with formal grievances, investigations and disciplinary hearings is a crucial step in preventing a straightforward matter from escalating into a tribunal complaint. There are a number of clear procedural stages that need to be carried out for a dismissal to meet the legal test of fairness – providing training sessions for managers will equip them with the relevant knowledge to follow the appropriate procedure. 

Training for employees on equality and diversity and the standards of behaviour you expect in the workplace is also important – conduct that some employees consider to be harmless may in fact make others feel very uncomfortable at work and may be unlawful. 

Equality and diversity training is also essential as part of a “reasonable steps” defence for your organisation in the event that a member of staff is harassed by a rogue employee.

The Human Element

An informal face to face meeting with an employee who has a concern, or about whom you have a concern, can work wonders if handled in a sensitive way. Where appropriate, a friendly, honest chat in the early stages can resolve a complaint before it develops into something more formal and if an employee feels they have been listened to and dealt with reasonably, they may be less likely to take the matter further. Similarly a word to the wise may lead to an improvement in performance or conduct without the need to take formal disciplinary action – if the problem persists you still have the option of moving to a more formal stage of the disciplinary process with the advantage that this will come as less of a surprise to the employee. 

The Letter from the Tribunal 

What happens if, despite your best efforts, you receive an employment tribunal claim?

You will often (but not always) have advance notice of an incoming claim in the form of a telephone call from an ACAS conciliator – all potential claimants must contact ACAS to discuss early conciliation before lodging a claim although there is no obligation on either party to pursue conciliation. 

In any event you should be on the look out for the arrival of a claim form – note that forms are not always sent to the right place or person so alert all managers.

Once the claim form lands, it is essential to take advice and act quickly – the time limit for responding to a claim is 28 days from the date it is sent out to you. Ignoring a claim is not an option, a failure to lodge a defence is likely to result in a default judgment being entered against you. You will need to gather all the relevant evidence and speak to the people involved as soon as possible so you are in a position to lodge the best possible defence. 

Our expert employment team here at Pannone Corporate can provide bespoke in house training and carry out contract and policy reviews, as well as supporting and advising you to defend tribunal claims. If you’d like to discuss any of these matters, or for advice on HR and employment law issues more generally, please don’t hesitate to get in touch with us on 0800 131 3355 or fill out our contact form

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