For all those first aiders out there, St John’s Ambulance has just issued new guidance this week on first-aid.

The emphasis is on the first-aider, as well as the patient. Keeping up to date with information, keeping themselves safe and protecting their own situation are now more important than ever.

Full details can be found here, but importantly their CPR advice now includes very strict guidance that the “kiss of life” as it is colloquially known, or rather more accurately Rescue Breaths, are now too dangerous to carry out under Covid-19. They suggest covering the victim’s face or mouth and nose with a towel, calling for help and carrying out other CPR measures until an ambulance arrives.

Their advice for all first aiders is summed up as:

• Be aware of the risks to yourself and others
• Keep yourself safe
• Give early treatment
• Keep yourself informed and updated
• Remember your own needs

In the current climate with the prevalence of the COVID-19 pandemic, these skills become even more important. They then go on to advise how to apply these skills when managing a first aid incident.

The advice urges all first aiders to observe social distancing and safety measures, while nevertheless balancing the risk with the need to resuscitate a patient that may be in trouble from a heart, or breathing problem.

Handwashing with soap and water, or alcoholic gel are urged before and after any contact with the patient, in line with all current guidelines on keeping ourselves safe.

Sadly, their very excellent poster has not been updated, so it is inadvisable to use it.

Their advice does not go into detail on other minor first aid treatments, such as bandaging or removing a foreign object from an eye, all of which is hard to do with current social distancing rules.  So, review the normal type and frequency of first aid activities that you have.  If first aid support is regularly required, then extra PPE should probably be issued out to your first aiders to wear to give them the confidence and reassurance to want to continue offering their services.  It is probably best not to force a person to continue being a first aider if they would prefer not to, during the current pandemic as these are almost always voluntary roles.

The HSE has announced COVID-19 revisions

If there are fewer people coming into your workplace, it may still be safe to operate with reduced first aid cover. You could also stop higher risk activities, and the HSE suggest you could consider sharing first aid cover with another business, providing there is a good exchange of the type of first aid requirements each site may need. 

First aid certificate extensions

If your employees hold a first aid certificate that expires on or after 16 March 2020, and cannot access requalification training because of coronavirus, you may qualify for a 3-month extension. This applies to:

• Offshore Medic (OM)
• Offshore First Aid (OFA)
• First Aid at Work (FAW)
• Emergency First Aid at Work (EFAW)

To qualify for the extension, employers must be able to explain why their employees have not been able to requalify, and demonstrate what steps you have taken to access training for them, if asked to do so. 

Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.

Experts reckon that an interesting body of law is going to emerge from the coronavirus pandemic.

Prior to this, cases arising from employees who felt they had been harshly treated when they had refused to work, because of their perceived danger of doing so, were pretty rare.

Likewise, cases where employers were held to have treated employees unfairly were limited to just a few high-profile tribunal decisions.

We are fairly certain this is about to change. Because until now, dangerous workplaces were fairly well identified, and there were very strict procedures in place to manage the risk. And, there were employees who were judged, by and large, to understand the risks they were taking.

The problem is that it takes an extraordinary situation to produce difficult cases. Many employers may not like the results of judges’ deliberations.

The crucial piece of legislation is the Employment Rights Act from 1996. It  has been around a long time, and lays out the actions that workers can take if they believe they are in “serious or imminent” danger at work.

The Government has already stated that coronavirus poses a “serious and imminent” danger to public health. It will, therefore, not be too much of a stretch for Tribunals to rule that any workplace where social distancing and appropriate measures are not fully complied with, would present a serious and imminent danger to an employee.

And crucially, it is not whether the employer deems the danger to be serious and imminent, but whether the employee believes it is. This presents employers with a real challenge, because if they are to protect themselves, they need to be able to demonstrate that the employee was unreasonable in their belief that there was a danger, something that could be quite hard to do.

Once an employee has decided reasonably that under these terms the workplace is an unsafe place to be, there are a range of appropriate measures they can take. They could leave work, they could refuse to attend work, or they could take appropriate action to mitigate the danger themselves.

And by taking such action, the law lays down that they can neither be dismissed or suffer any detriment because of the action they have taken, providing it is appropriate.

What does this mean?

Obviously, it depends on the circumstances. But, employers need to manage the workplace properly. And, they should not place unreasonable demands on their employees in the current climate. 

Employers cannot take disciplinary action, or dismiss an employee if they reasonably  believe they are in “serious or imminent” danger, and consequently take appropriate action. In legal terms, the employee cannot suffer any detriment – which can be interpreted very widely. Bullying, harassment, missing promotion, being given unpleasant tasks, or being offered reduced pay are all detriments.

Some experts even argue that placing such an individual on furlough could, in some circumstances, be viewed as a detriment. In other words, the employee was being penalised 20% of their average earnings because the employer could not provide a safe enough environment for them to work in.

As we enter the next stage of the pandemic crisis, and employers start to look at how their business will evolve, redundancies and dismissals may well follow. It is important that employers protect themselves from the risk of further litigation, especially in an era of claims management companies might be prepared to take on some high-profile cases.

The risk is particularly high in many health and safety cases, as there could be unlimited damages, with no qualifying service criteria.  Remember also, it is not just employers that can dismiss, employees can claim constructive dismissal, or make whistleblowing claims if employers fail to deal with health and safety issues.

Not only could there be substantial damages and awards in such cases, if employers have behaved inappropriately, then in many cases automatic unfair dismissal may well be the verdict.

It may not just be the traditional ‘skivers and trouble-makers’ who appear to be a problem. There are a lot of very worried people at the moment, so be respectful of their concerns, and avoid treating them as a nuisance to be ‘dealt with’.

It is, therefore, imperative that employers, as they start to welcome workers back, do the following:

• Do a full COVID-19 risk assessment of the workplace, taking into account the Government’s guidance for social distancing and safe working.  This should include consideration of the following (this is not an exhaustive list):
  • The method of travel to work, especially if it involves public transport or shared driving;
  • Site access and egress points – including avoiding congestion peaks, having 2 metre marking on the floor/ground, hand washing stations, dealing with delivery drivers;
  • Hand washing – additional facilities and supplies of hand wash, allowing extra breaks to wash hands;
  • Toilet facilities – restriction of numbers at any one-time, extra signs, enhance cleaning regimes to at least several times a day;
  • Canteen and rest areas – stagger break times, all surfaces regularly cleaned, 2 metre distancing;
  • Meetings – minimise the numbers to an absolute minimum, keep 2 metres apart, have good ventilation (open windows), or if feasible, hold short meetings standing outside;
  • Cleaning – enhanced procedures, especially in communal areas and at shared touch points, from photocopiers and telephones/keyboards through to machinery, tools and equipment, rubbish should be emptied regularly throughout and at the end of each day, all areas used for eating must be thoroughly cleaned at the end of each break and shift, including chairs, tables, doors, vending machines etc; 
• Remember, that the hierarchy of risk control measures are in the following order:
  • Eliminate – people with symptoms of Coronavirus should not come to work;
  • Reduce – social distancing rules, washing hands before and after using shared equipment, regularly clean common touchpoints such as doors, handles, buttons, tools, equipment, stop/minimise hot desking;
  • Isolate – keep groups of workers that have to work closely together in the same teams, and in as small a number as possible, away from other workers;
  • Control – carefully supervise these new restrictions, keep face to face working to smaller time frames;
  • PPE – providing 2 metre social distancing guidelines are met, Respiratory Personal Equipment (RPE) such as face masks, are unlikely to be required, unless an employee has good reason to wear it, or, you are working in high infection risk areas such as social or health care, reusable PPE should be thoroughly cleaned and not shared;
  • Behaviours – measures necessary to minimise the spread of infection by 2-way communication over the importance of people taking responsibility for their actions and behaviours, and, encouraging people to raise concerns so that they can be addressed;             
• That they consult fully with the workforce, and explain exactly how they intend to make the workplace safer through additional control measures;
• Ensure that all workers understand they need to comply with the rules, and to respect others concerns in the current climate;
• Continue to review and adapt their working practices as employees return to work;
• Document carefully, and act on workers reasonable concerns about the workplace;

The Health and Safety Executive are already monitoring social distancing at work, even if they are not doing many visits. They are likely to be adopting an ‘intelligence based’ approach, so be careful not to give anxious employees an excuse to give them a call.

Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.

The coronavirus pandemic is presenting us all with a number of challenges.

And one of the serious challenges confronting employers is their duty to protect their workforce. Both those at home and, if they are still working, in the workplace be it care homes, manufacturing or outdoors.

Employers have a well-established primary duty towards their workforce under health and safety law. They need to take all practical measures to reduce their employees’ exposure to risks that endanger not only their health, but their safety and welfare. This is not just about physical well-being, but mental as well.

Assessing the risk

They also have a duty to assess ongoing and new risks arising from their operational activities. Once a risk has been identified, it must be assessed to ensure the employer has identified, where practically possible, any potentially harmful risks. They then need to set out measures to mitigate or eliminate such threats.

The problem is that with the coronavirus, it is inescapable that the more an individual comes into contact with others, the more they are exposed to infection.  Some organisations will already have well understood infection control policies in place, but for most this requires new ways of thinking, adapting and operating.

Employers have to balance all of these risks with the Government’s desire to keep business open, where practical, and for the organisation’s own ongoing viability.

The Government and other bodies have issued statements and guidance on this issue. In early April, the HSC, TUC and CBI, rather unusually, issued a joint statement about health and safety in the workplace. They warned that, however difficult the current circumstances, employers are expected to comply with Public Health Guidance, such as social distancing. Any that were deliberately flouting the rules and operating in an unsafe manner could expect action to be taken against them, including enforcement notices.

Asking the right questions

To ensure that they stay safe, there are a number of practical questions employers should be asking themselves. The answers to which may well mitigate risk and help show they are taking all reasonable steps to ensure the safety of their workforce.

●    How do you decide if it is safe for an employee to go to their normal workplace?

●    Do your staff understand the circumstances when they should not attend work, e.g. as part of infection control?

●    In the current climate, how easy and safe is it for individuals to get to work?

●    How safe is the exit and entry to the workplace and other pinch points?

●    Are wash and rest areas safe?

●    How do you protect necessary contractors and others that still need to come to site,  e.g. delivery drivers?

●    Can social distancing be maintained?

●    Do you have to change working arrangements to make them safer?

●    Is there sufficient hand washing facilities that can be safely accessed?

●    Is a deep cleaning regime necessary or desirable?

• Do you need to step up workplace cleaning at the start, during, or at end of the day?
• Who will do it, and do they have the right equipment and PPE to undertake it?

●    Is protection equipment necessary or desirable, and for what type of jobs?

●    Are there sufficient notices about hand washing, personal health, social distancing and how to identify the virus?

●    Do people understand how to work safely at home, and be able to regularly communicate with colleagues to reduce issues of isolation and anxiety?

●    Where workplaces have suddenly changed, due to a mass exodus to home working, have temporary self-assessment risk assessments happened?

●    Have you identified vulnerable individuals?

• What actions have you taken to ensure their safety?
• Do they need to self-isolate or shield and, if so, for how long?

●    How experienced are people at undertaking dynamic risk assessments where their working environment creates ever changing issues?

●    What do Government guidance and trade bodies advise us to do?

Your answers to these and other questions should guide and drive your actions.

There are useful Government guidelines on social distancing, specifying which businesses should be closed, along with a number of sector guides and general guidance on mental wellbeing.

Coronavirus is an extremely dangerous disease, as the number of deaths in the UK and the rest of the world demonstrates. But businesses are continuing to operate, and to operate safely.

Reasonable and effective health and safety measures are expected in any circumstances that an organisation faces. Employees are also expected to read, understand and where possible, make suggestions about their health and safety policy. And once agreed, are expected to follow  adapted measures and rules put in place to minimise infection. 

To ensure you continue to operate safely, your staff should be warned that failure to adequately follow the provisions of your health and safety policy, amended for the current environment, could result in disciplinary action.

A word of caution

Finally, however, we do need to sound a note of caution. While all employees are expected to follow your guidelines, if they raise concerns, your first instinct should not be to take action against them. Listen carefully to what they have to say. They may, after all, have some very legitimate points to make.

In addition, normal employment law still applies, even in difficult circumstances. Dismissing, disciplining or any other form of detriment to people for raising concerns can breach the Employment Rights Act, and be automatically unfair (regardless of length of service). It is also likely to be seen as taking action against a whistle-blower.

 

Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.

This publication is available at Guidance for the public on the mental health and wellbeing aspects of coronavirus (COVID-19) – updated 31^st March 2020.  There has also been a lot of media coverage about the negative impact arising from COVID-19 additional to the worry about catching the virus.  Important factors such as social distancing, self isolating, loss of income, worry about job security, sudden remote working situations and alike are all having a toll on peoples’ mental health and wellbeing.  Hence why the Government has published guidance. 

We have redacted the full document for easier reference, and kept in some of the links. It is well worth accessing the original. You may wish to consider sending this round to employees.

What you need to know

It may be difficult but, by following guidance on social distancing, or staying at home, you are helping to protect yourself, your family, the NHS and your community.

During this time, you may be bored, frustrated or lonely. You may also feel low, worried, anxious, or be concerned about your health, or that of those close to you. Everyone reacts differently to events, and changes in the way that we think, feel and behave vary between different people, and over time. It’s important that you take care of your mind as well as your body, and to get further support if you need it.

What can help your mental health and wellbeing?

Consider how to connect with others: Maintaining relationships with people you trust is important for your mental wellbeing. Think about how you can stay in touch with friends and family via telephone, video calls or social media instead of meeting in person.

Help and support others: Think about how you could help those around you – it could make a big difference to them, and can make you feel better too. Could you message a friend or family member nearby? Are there community groups that you could join to support others locally?

Talk about your worries: It is quite common to feel worried, scared or helpless about the current situation. Remember that this is a difficult time for everyone, and sharing how you are feeling and the things you are doing to cope with family and friends, can help them too.

Look after your physical wellbeing: Your physical health has a big impact on how you are feeling emotionally and mentally. At times like these, it can be easy to fall into unhealthy patterns of behaviour, which in turn can make you feel worse. Try to eat healthy, well-balanced meals, drink enough water, exercise inside where possible and outside once a day.

If you are able to go outside, consider walking or gardening (keeping the recommended 2 metres from others as outlined in the social distancing guidance). If you are staying at home, you can find free easy 10-minute workouts from Public Health England, or other exercise videos to try at home on the NHS Fitness Studio.

Look after your sleep: Feeling anxious or worried can make it harder to get a good night’s sleep. Good-quality sleep makes a big difference to how you feel mentally and physically, so it’s important to get enough. Try to maintain regular sleeping patterns, and keep good sleep hygiene practices – like avoiding screens before bed, cutting back on caffeine, and creating a restful environment.

Try to manage difficult feelings: Many people find the news about COVID-19 concerning. However, some people may experience such intense anxiety that it becomes a problem. Try to focus on the things you can control, including where you get information from, and actions to make yourself feel better prepared. It is okay to acknowledge some things that are outside of your control right now, but constant repetitive thoughts about the situation which lead you to feel anxious or overwhelmed are not helpful.

Manage your media and information intake: 24-hour news and constant social media updates can make you more worried. If it is affecting you, try to limit the time you spend watching, reading, or listening to media coverage of the outbreak.

Get the facts: Gather high-quality information that will help you to accurately determine your own, or other people’s risk of contracting COVID-19, so that you can take reasonable precautions. Think about how possibly inaccurate information could affect others too. Try not to share information without fact-checking against credible sources.

Think about your new daily routine: Life is changing for us all for a while. Think about how you can adapt and create positive new routines – try to engage in useful activities (such as cleaning, cooking or exercise), or meaningful activities (such as reading or calling a friend). You might find it helpful to write a plan for your day, or your week.

Do things you enjoy: When you are anxious, lonely or low you may do things that you usually enjoy less often, or not at all. Focusing on your favourite hobby, learning something new, or simply taking time to relax indoors should give you some relief from anxious thoughts and feelings, and can boost your mood. There are lots of free tutorials and courses online, and people are coming up with innovative online solutions like online pub quizzes and streamed live music concerts.

Set goals: Setting goals and achieving them gives a sense of control and purpose – think about things you want or need to do that you can still do at home. It could be watching a film, reading a book or learning something online.

Keep your mind active: Read, write, play games, do crossword puzzles, sudokus, jigsaws or drawing and painting. Find something that works for you.

Take time to relax and focus on the present: This can help with difficult emotions, worries about the future, and can improve wellbeing. Relaxation techniques can also help some people to deal with feelings of anxiety.

If you can, once a day, get outside or bring nature in: Spending time in green spaces can benefit both your mental and physical wellbeing. If you can’t get outside much, you can try to still get these positive effects by spending time with the windows open to let in fresh air, arranging space to sit and see a nice view (if possible), and get some natural sunlight.

Staying at home

Recent guidance is clear about the need for people to stay at home. If you are feeling anxious, it might help to think about potential challenges and make a plan for them.

Supplies: Think about how you can get any supplies you need – either from a neighbour, family friends or a delivery service so you don’t worry about running out.

If you care for other people: You may be worried about how to ensure care for those who rely on you – either your dependents at home, or others that you regularly visit. Let your local authority know if you provide care, or support someone you don’t live with.

If you are being treated or taking medication for existing conditions

Continue accessing treatment and support where possible: Let relevant services know that you are staying at home, and work out how to continue receiving support during this time.  Ask about having appointments by phone, text or online.

Keep taking your medication: You might be able to order repeat prescriptions by phone, or online using an app or website if your doctor’s surgery offers this.

●    Ask your pharmacy about getting your medication delivered, or think about who you could ask to collect it for you.

●    Continue to order your repeat prescriptions in your usual timeframe. There is no need to order for a longer duration, or larger quantities.

●    Your GP practice (or clinical team) may move your prescriptions to repeat dispensing arrangements, so you only have to contact your pharmacy to get a repeat of your medicine rather than your practice.

●    Be careful about buying medication online. You can contact NHS 111 in England if you’re worried about accessing medication.

Where to get further support

Managing physical symptoms that are triggered by stress and anxiety

It is quite common to experience short-lived physical symptoms when your mood is low or anxious; for example, faster, irregular or more noticeable heartbeat, feeling lightheaded and dizzy, headaches, chest pains or loss of appetite.

It can be difficult to know what is causing these symptoms, but often people who experience them due to stress, anxiety or low mood find that they get worse when they focus on them.

If you are experiencing stress, feelings of anxiety or low mood, you can use the NHS mental health and wellbeing advice website for self-assessment, audio guides and practical tools.

The Government website also provides further help for specific groups of people:-

            Additional advice for groups with specific mental health needs

            People with a learning disability

            Autistic people

            Older people

            People living with dementia

            Dealing with a mental health crisis or emergency

Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.

Important – do not forget

The on-going large-scale impact that Coronavirus is having on the economy, organisations, teams and individuals is the main employment crisis we are all having to deal with at present.  However, it is important not to forget that there are some substantial new statutory changes that are implemented from this week as well.  Here are the other changes that the Government has now confirmed additional to the already published new National Minimum Wage rates (including the National Living Wage), new Statutory Sick Pay and Statutory Family Friendly Pay rates.       

Statutory Figures

The annual increase in compensation limits has just been announced.  The limits apply to dismissals, including redundancies, occurring on or after 6^th April 2020.

• £538.00 – the maximum amount of a week’s pay for calculating statutory redundancy pay and the basic award; (up from £525.00);
• £16,140 – the maximum statutory redundancy payment or basic award, i.e. 30 weeks (up from £15,750.00);
• £88,519.00– the maximum compensatory award which can be made for unfair dismissal (up from £86,444.00), or one year’s gross pay whichever is the lower;

These increases mean that the maximum total unfair dismissal award is now £104,659.00; although uplifts can add a further 25%.

Employees may be entitled to receive guarantee payments for up to five days of lay off in any three-month period.  The maximum amount of such a Statutory Guarantee Payment will increase to £30.00 (from £29.00) for any one day. In the current climate, this may be more than just ‘interesting’ if your business is adversely impacted by the Coronavirus, and a loss of customers, parts etc.

The new rates take effect where the ‘appropriate date’ for the cause of action (such as the date of termination in an unfair dismissal claim) falls on or after 6^th April 2020.

Contracts of Employment

From 1^st April 2020, all employers must:

• Provide written statements of terms (contracts) to all workers and employees on day one or before;
• Provide more information than currently required, such as information about probationary periods, training requirements and benefits;
• This means not just employees, but also people who work for you, who do not really fit the category of genuinely self- employed;

This entitlement should bring clarity for many workers regarding their contractual terms from the outset of the relationship.

We have always advocated supplying such documentation on day one (if not before), so you should implement this now.

Other Changes

Agency Workers

If you use employment agencies to provide workers on some basis other than just a finder’s fee or introduction fee, then the rules are changing in the following respects:

• Agencies must provide a Key Information Document to agency workers with details of their terms and conditions;
• The ‘Swedish Derogation’ is removed, so all agency workers will have to receive pay parity (with your staff) after 12 weeks work;
• Agencies must provide statements to agency workers that the Swedish Derogation no longer applies to them;

The Swedish Derogation is/was a device to allow for less than pay parity if they ere actually employed by the agency on a contract which provided for pay even if the agency had no work for them.

Holiday Pay Calculations

The Government has announced that the default position for calculating average holiday pay will be the last 52 weeks rather than the last 12 weeks.   

This is for workers with no normal working hours, or whose pay varies with the amount of work done, or who work additional hours. It is supposed to produce a fairer calculation for those with irregular/seasonal hours.

Assuming you have payroll software, it ought to be changed to calculate differently. We are not recommending that clients who pay on P60 earnings, or other long-term period, make any changes until the law becomes clearer.  For employees in their first year of employment, we would suggest you calculate this on their last 12 weeks/3 months earnings.

You are welcome to raise any concerns with our Consultants, who would be pleased to advise you on any element of the issues arising from this newsletter.

As announced in the 2018 Budget, the public sector off-payroll working rules will be extended to the private sector from 6 April 2020. The rules will only apply to large and medium-sized businesses.

Government authorities have been engaged in a crack-down on what they view as the ‘mislabelling’ of employees as contractors. The Treasury has long held the view that a number of people claiming to be self-employed and operating through personal service companies (PSCs) are actually employees who should be paying tax accordingly. 

A short introduction to IR35

Many self-employed contractors use personal service companies (PSCs) to supply their services to their clients. This is a way of saving tax and NICs, which is why HMRC introduced IR35 as a way of combatting the risk that PSCs and other intermediaries posed to the tax base. In essence, this asks whether, but for the interposing PSC, the individual would have been regarded as an employee of the client organisation engaging them. This involves considering the nature of the work performed under the contract, and the terms under which it is performed, and is known as “deemed employment”. If the answer to this is yes, then the PSC has to account to HMRC for income tax and NICs on the payments received from the client.

At present, the tax liability rests with the PSC. The change will be accompanied by obligations on the client organisation to determine the correct position for each engagement, and notify any other parties involved regarding “deemed employment” or genuine self-employment status.

It pays to be prepared for this reform.  When similar changes were introduced in the public sector two years ago, many organisations were caught out, or attempted to impose “global” determinations, which were then challenged by their contractors.

Whilst the focus is on the private sector, the rules are also aimed at charities. Many charities will be small, so may well be exempt.

Four key questions the Client must ask itself in respect of each contractor:

1. Will the off-pay roll rules apply at all? The rules do not affect contractors supplied by an employment agency or umbrella company, where they directly employ them and operate tax and NICs on earnings they pay them, or staff supplied though a managed service company that deducts PAYE on ‘pay’.
2. Where the rules do apply in principle, is the contractor using an intermediary which meets the relevant conditions for the new rules to apply? An “intermediary” would be a company (i.e. commonly known as a Personal Service Company – PSC) in which the contractor has a material interest (i.e. holds more than 5% of shares), but could include certain partnerships which the contractor is a member or even an individual.
3. If the contractor is using a relevant intermediary (e.g. a PSC), is there a “deemed employment”? This will be for the client organisation to determine and to inform the relevant parties as mentioned above.
4. Where there is a deemed employment, who pays the PSC? In a chain of intermediaries between the client and the contractor’s intermediary (or PSC), it is the lowest UK based intermediary in the chain (that is, the one that pays the PSC) that must operate PAYE.

The problem with these new rules is that they have encouraged some organisations who hire contractors, to apply blanket decisions on whether certain contracts fall within IR35. Blanket solutions are not appropriate.

Practical Implications of the off-payroll working rules

• Determining deemed employment is not always clear cut, and it is often necessary to seek legal advice. Although there is no obligation to use the Government’s new online tool (the CEST) for this purpose, the advantage of doing so is that HMRC will be bound by the output of the service, unless it has been obtained fraudulently. The HMRC have introduced a new tool as the previous one was subject to major criticisms that it asked the wrong questions, and seemed ‘rigged’ to produce ‘guidance’ that the individual PSC should be paying income tax. It is better but still not conclusive in three respects :-

• • It regularly produces an ‘inconclusive result’.
  • CEST currently seeks to produce an answer out of a few questions on what can be a very complex and nuanced indicators.
  • The HMRC still reserve the right to challenge the ‘decision’ if they believe that it was not answered honestly/accurately.
• Informing the Agency/PSC about the determination of deemed employment. Having determined employment status, the client must inform both the PSC/contractor and, if applicable, the Agency which pays the PSC, of the outcome of the review and, if requested, provide a written response as to how the conclusion on employment status was reached. The client needs a clear process to comply with this information requirement.

• Extra costs. A key consequence of the new rules is that the client is responsible for an additional cost of 13.8% employer NICs and, if applicable, 0.5% apprenticeship levy on top of the payment. Broadly, the levy is 0.5% of pay bills over £3 million in the relevant tax year. The client is not entitled to deduct these costs from the fee payable to the PSC. The contractor, on the other hand, is likely to be in a better position (although this depends on the circumstances) as the PSC no longer has to account for PAYE and NICs on the fee received from the Agency. For a contractor who formerly considered themselves to be self-employed and that IR35 did not apply, deduction of payroll taxes will result in a significant reduction in profit for the PSC that would otherwise have been available to draw as dividends.

• Pressure to re-negotiate contracts between the Client and the PSC – due to these extra costs, it is likely that the client will wish to re-consider the contractual terms :-
  • Where possible the client may wish to re-negotiate its fee with the PSC/contractor to take account of the transfer of NIC liability to the client.
  • The client may consider getting the contractor to abandon their PSC and supply their services instead through an umbrella company, or on a fixed term employment contract.

The Consequences for the Client of getting it wrong

Even where the client is not the fee payer (and therefore not normally liable to account for PAYE and NICs of the relevant contractor), liability could apply in certain circumstances, including if the client organisation :–

• fails to notify its decision about deemed employment to the contractor/PSC or Agency with whom it has a contract to provide the services, within the timescale;
• fails to reply to the written request from the contractor/PSC or Agency for the reasons for the decision within 31 days of receiving it; or
• fails to use reasonable care in providing its view about employment status;

What Next?

Private sector companies and charities should familiarise themselves with the rules and start thinking about how they will apply to them. In particular, companies should:

• Conduct an audit of contractors used in their organisation. It is likely you will need to make individual decisions, and have different communications with each PSC. The audit will be a factual investigation, looking at what each individual does in practice; how they do it; what contracts they are engaged under; how they are paid etc. This may also be a good time to audit any off-payroll labour that is not provided through PSCs.  Questions to be asked include:
• What would the workers’ employment status be?
• Who will be responsible for accounting for PAYE/NICs?
• Who should bear the cost of any employers’ NICs? 
• What contractual protection is available in cases of non-compliance?
• Should we consider bringing the worker on-payroll?
• Liaise with agencies and specialist service providers to determine which contractors may potentially be caught by the new rules.
• Assess who will likely be primarily responsible for PAYE; then estimate any likely cost increases due to employer NICs and Apprenticeship Levy charges, and any potential changes in contractor charges.
• If liability lies with the engaging business, calculate, report and pay income tax and NI contributions or consider alternative ways of engaging them.
• The audit is likely to have knock-on consequences that may require legal advice. As well as determining employment status, you may need specialist tax advice to amend or draft contractual documentation.
• Review existing policies for engaging the different types of contractors – these may vary between business functions.
• Put in place comprehensive, joined-up processes to ensure consistent decisions are made and communicated in relation to the employment status of workers engaged through intermediaries, and to allow for such determinations to be challenged.
• Review internal systems, such as payroll software, HR and on-boarding policies to see where changes are required.

Issues

Client organisations will be required to address status determination disagreements.  The Government recognises that, in some circumstances, an off-payroll worker may disagree with a client’s status determination.  The Government proposes that clients should develop and implement their own processes to resolve disagreements based on a set of requirements set out in the legislation.  As a minimum, the Government would expect any process to include the consideration of evidence put forward by the off-payroll worker and/or client, and advising the party of the outcome of that consideration and the reasons for that outcome.

No change for “Small” Organisations

Only medium and large organisations will be subject to the 2020 rules, so will not need to determine the status of the off-payroll workers they engage. The definition of “small” has been widely awaited, and the Government have confirmed that it intends to use the existing Companies Act 2006 definition. That is where the business satisfies 2 or more of the following features:

• Annual turnover of £10.2 million or less;
• Balance Sheet total of £5.1 million or less;
• 50 employees or less;

“Small” organisations will be outside of the new obligations and services supplied to such client organisations will continue to be dealt with under the current IR35 rules with the worker and his or her personal service company effectively self-assessing whether the rules apply to that particular engagement. It is also worth noting that the IR35 rules do not apply to sole traders.

Conclusion

We recommend that organisations, if they have not already done so, thoroughly prepare for the introduction of the revised IR35 rules on 6 April 2020.

Clients should raise any concerns with their Accountants/Financial Advisors regarding any element of the issues arising from this newsletter. We provide a link here to our Control Test, which is solely focused on the employment not tax status of individuals acting as contractors.

Important – do not forget

The on-going large-scale impact that Coronavirus is having on the economy, organisations, teams and individuals is the main employment crisis we are all having to deal with at present.  However, it is important not to forget that there are some substantial new statutory changes that are implemented from this week as well.  Here are the other changes that the Government has now confirmed additional to the already published new National Minimum Wage rates (including the National Living Wage), new Statutory Sick Pay and Statutory Family Friendly Pay rates.       

Statutory Figures

The annual increase in compensation limits has just been announced.  The limits apply to dismissals, including redundancies, occurring on or after 6^th April 2020.

• £538.00 – the maximum amount of a week’s pay for calculating statutory redundancy pay and the basic award; (up from £525.00);
• £16,140 – the maximum statutory redundancy payment or basic award, i.e. 30 weeks (up from £15,750.00);
• £88,519.00– the maximum compensatory award which can be made for unfair dismissal (up from £86,444.00), or one year’s gross pay whichever is the lower;

These increases mean that the maximum total unfair dismissal award is now £104,659.00; although uplifts can add a further 25%.

Employees may be entitled to receive guarantee payments for up to five days of lay off in any three-month period.  The maximum amount of such a Statutory Guarantee Payment will increase to £30.00 (from £29.00) for any one day. In the current climate, this may be more than just ‘interesting’ if your business is adversely impacted by the Coronavirus, and a loss of customers, parts etc.

The new rates take effect where the ‘appropriate date’ for the cause of action (such as the date of termination in an unfair dismissal claim) falls on or after 6^th April 2020.

Contracts of Employment

From 1^st April 2020, all employers must:

• Provide written statements of terms (contracts) to all workers and employees on day one or before;
• Provide more information than currently required, such as information about probationary periods, training requirements and benefits;
• This means not just employees, but also people who work for you, who do not really fit the category of genuinely self- employed;

This entitlement should bring clarity for many workers regarding their contractual terms from the outset of the relationship.

We have always advocated supplying such documentation on day one (if not before), so you should implement this now.

Other Changes

Agency Workers

If you use employment agencies to provide workers on some basis other than just a finder’s fee or introduction fee, then the rules are changing in the following respects:

• Agencies must provide a Key Information Document to agency workers with details of their terms and conditions;
• The ‘Swedish Derogation’ is removed, so all agency workers will have to receive pay parity (with your staff) after 12 weeks work;
• Agencies must provide statements to agency workers that the Swedish Derogation no longer applies to them;

The Swedish Derogation is/was a device to allow for less than pay parity if they ere actually employed by the agency on a contract which provided for pay even if the agency had no work for them.

Holiday Pay Calculations

The Government has announced that the default position for calculating average holiday pay will be the last 52 weeks rather than the last 12 weeks.   

This is for workers with no normal working hours, or whose pay varies with the amount of work done, or who work additional hours. It is supposed to produce a fairer calculation for those with irregular/seasonal hours.

Assuming you have payroll software, it ought to be changed to calculate differently. We are not recommending that clients who pay on P60 earnings, or other long-term period, make any changes until the law becomes clearer.  For employees in their first year of employment, we would suggest you calculate this on their last 12 weeks/3 months earnings.

You are welcome to raise any concerns with our Consultants, who would be pleased to advise you on any element of the issues arising from this newsletter.

We often come across employers who believe that they have the right to make changes to their business without any regard to the needs, or rights of their staff.

This is half right in that employers are entitled to organise their business as they wish, and make it the size and shape that they think will be most rewarding for their needs in their market sector. What employers cannot do is implement this without some regard to the needs of their workforce if they want a loyal, engaged and stable workforce. More importantly, they cannot ride roughshod over the employment rights of their employees. Uttering the restructuring word gives no more legitimacy than any other label. The problem is that there is no legal definition of restructuring, and it means different things to different people. For many people, restructuring is just a euphemism for redundancy. The term is used because it sounds nicer, as well as being more positively active, and seems a lot less like the organisation is somehow failing. If employers want to call it downsizing or rightsizing, it makes no difference, if what they are actually describing is redundancy.

Many employers will find the need to restructure at some point, whether that means downsizing the workforce, changing the set-up, promoting existing employees or employing new ones. Whatever the procedure, employers’ methods can prove to be very unsuitable, and even illegal. If you want to avoid an unhappy workforce, and potentially legal complaints as a result of restructuring your business, then there are processes to do correctly.

Money is a significant factor in terminations – it will be of great importance to the employee, to the extent that they can claim breach of contract if suitable payments are not made. Employers must consider that under employment law, employees are entitled to any accrued salary and benefits, accrued but untaken holiday and any other accrued contractual entitlements up to the date of termination.

If there is a true redundancy situation, employees with 2 years’ service are also entitled to a statutory redundancy payment. Redundancy payment calculations are based on an employee’s age and length of service and salary (subject to a statutory maximum).

Not explaining the true reasons behind the Dismissal / Redundancy

Restructuring is often used to get rid of poor performers more easily. This is certainly not a recommended move, as it could lead to findings of unfair dismissal or discrimination in Court. Instead, the employer should be able to demonstrate the true, fair reason behind the dismissal, which should fall into one of five categories:

• Capability
• Conduct
• Redundancy
• Illegality
• Some Other Substantial Reason

We shall return to Some Other Substantial Reason (SOSR) shortly.

Redundancy

Redundancy is a potentially ‘fair’ means of dismissal, so long as the procedures followed and the circumstances are correct. A redundancy situation happens when there is no more, or not enough (e.g. you close or relocate the business, or you require fewer workers). You need to take the following steps to ensure a fair redundancy:

• Employees need to be informed of proposed redundancies by employers, undertaking consultation with the ‘affected employees’ (or their representatives) with a view to ‘reaching agreement,’ which includes considering alternative ideas to redundancy, and explaining the rationale for redundancy.
• You must select those who are at risk of redundancy in a fair and objectively justifiable way.
• There ought to be consideration of offering employees any alternative work that’s available and suitable, and you must tell them of any vacancies in the organisation. If a suitable job is available, they shouldn’t be entitled to a redundancy payment.
• You must pay a Statutory Redundancy Payment (if they have two years or more continuous service) if there’s no suitable work available at that time.

If an employer has alternative work available that’s suitable but doesn’t offer this to the redundancy employee, the redundancy dismissal of the employee may be an unfair dismissal.

Statutory Trial periods

If the employer offers a new job that’s a reasonable alternative to the old job, but where there are some differences to the old position and its terms and conditions, they’re entitled to a four-week statutory trial period in the new job.  Employers can, however, offer long periods of e.g. 3 to 6 months instead, if they do so carefully.

If, during or at the end of the trial period, either you or your employee terminates the new contract, or gives notice to terminate it – because it’s not considered a suitable alternative – the employee will be classed as being dismissed by redundancy, and still qualify for a redundancy payment.

Reorganisations and SOSR

The law has always recognised that employers are entitled to dismiss employees who refuse to go along with business reorganisations. Back in 1977, Lord Denning said that nothing should be done to impair the ability of employers to reorganise their workforce and their terms and conditions of work, so as to improve efficiency. If employees, therefore, refuse to agree to changes arising from reorganisation, they may be dismissed. Whether this is fair is a difficult issue which we will address.

There is no such stand-alone legal right to dismiss employees due to reorganisation unless it is really a redundancy. It is possible to dismiss in a reorganisation if this amounts to the fifth statutory reason, i.e. ‘some other substantial reason’ (SOSR).

SOSR may apply when a business is restructuring (but not making redundancies). At such a time, the employer may seek to make changes to an employee’s terms and conditions. Whether such changes to terms and conditions are part of such a business restructure (or not), a dismissal as a result, or refusal to accept such changes, may result in a fair dismissal for SOSR.

The starting point here is that a contract of employment can only be varied so far as the terms allow, or by the agreement of the parties. An employer which seeks to unilaterally change a contract of employment may be exposing itself to claims of constructive dismissal. However, the employee must show some flexibility to adapt to new methods and techniques.

In order for an employer to dismiss an employee for refusal to accept changes to their contract and to claim SOSR, the employer must show that the changes were necessary for a “sound, good business reason”. Fair business reasons for the changes do not have to be vital for the survival of the business — even if they are much less favourable to the employee.

A Tribunal cannot substitute its own view for that of the employer, so as to find unfairness because the employer made the ‘wrong’ decision, but the employer must be able to show that there was a strong business reason, so that the reason is ‘substantial’, and not minor or trivial. Effectively, it is a low threshold for deciding whether an employer has ‘some other substantial reason’ for dismissal.

Consultation

A Court of Appeal judgment in 1979 stated that fairness of dismissal for SOSR did not depend on consultation and negotiation, and, therefore, did not render it unfair, but the law has moved on to the extent that good consultation is now seen as the key requirement. Regardless of the correct legal position, it is advisable from an employee relations perspective, and to support the reasonableness of the employers’ behaviour, to consult and negotiate where appropriate. More recent case law has stated that Tribunals should look at the benefits to the employers, and at the advantages and disadvantages to the employee of contractual changes, when considering if the dismissal was reasonable. This is a difficult balancing exercise.

Change

Some of the variations to terms and conditions that have been deemed to be acceptable in the past, (where domestic arrangements prevented two women from changing their hours of work), would need to be considered in the light of more recent equality legislation and case law. The case law has developed to the extent that imposing or agreeing changes which indirectly discriminate on the grounds of sex or disability are likely to be unlawful, unless there is a very good business reason that has been appropriately applied.

There is a view in some circles that employers cannot change terms and conditions of employment without employees’ agreement.  This can be done, but it is not for the risk-averse. It is very difficult to predict whether this will be held to be fair where there is a clear conflict between the employer’s legitimate business interests and the employee’s contractual rights. Problems often arise when the employer want to arrange the operation of the business in a way that means changes to the employer’s job, or the way he/she carries it out, such as changing hours/shifts wages job description or location. The contract is, in theory, static so cannot be unilaterally changed. If the employer forces a contractual change, then the employees can claim breach of contract and/or unfair constructive dismissal.

There are three options open to an employer:

1. Use the flexibility built into the contract, or rely on the normal range of reasonable actions which an employer has in a changing world. This will work best if the change is minor, and, therefore, refusal to work within the new requirement would be a disciplinary offence.
2. A more significant change may constitute a redundancy situation, entitling the employee to full consultation and a redundancy payment. This is often a pragmatic solution, and one that an Employment Judge would see as a good way out, especially if there is a reduction in the work that the employee used to do.
3. However, sometimes an employer restructures its workforce but the amount of work, and the number of employees required to do the work, are not diminished overall. An employee may be dismissed because they do not fit into the new structure, and an employer may cite this as a SOSR dismissal – in which case, no redundancy payment is owed. In reality, this happens rarely. It is a ‘no fault’ dismissal, and the employer often pays a redundancy payment, both as a discretionary gesture and because, on a practical level, it is less likely to get sued, having compensated the employee to some extent for the loss of their job.

Because a restructure is akin to a redundancy situation, you would expect to see something like a redundancy procedure applied in order for a SOSR dismissal to be fair, with individual consultations and offers of suitable alternative work where feasible. It is open to the employer to argue in Tribunal that this was a redundancy but that, if it isn’t; in the alternative, it was a potentially fair SOSR dismissal due to the need to reorganise.

A Common Approach to ‘Restructuring’

Regardless of the reason whether it be redundancy or re-organisation, there are key aspects to focus on when restructuring your organisation.

Clear Purpose – You should be certain that restructuring is the only option available to you. It can be hard on a business and its staff to undergo drastic changes, so ensure that you are positive that restructuring is for the best.

Clear Communication – Restructuring can be confusing. So, it is important that you make sure you staff, suppliers and anyone else who stands to be affected by the changes, is kept informed of what is going on. This is especially important in the event that staff are going to be made redundant. Failure to communicate properly during this time can lead to staff taking you to an Employment Tribunal, with a significantly higher chance of winning a claim against you.

Consider your Options – Any restructuring should require a degree of planning and legal documentation. You should also approach it from the perspective of avoidance, which may include reducing overtime, freezing recruitment, implementing layoffs etc. If you want to effectively realign your workforce and meet business objectives, nothing will help you more than having a well-thought-out transition plan; as long as you apply it flexibly, bearing in mind the consultation process.

You are welcome to raise any concerns with our Consultants, who would be pleased to advise you on any element of the issues arising from this newsletter.

The current Coronavirus ‘crisis’ is prompting lots of advice on getting more people to work at home. This sounds like a good idea, but it should not be implemented until   it has been properly assessed in terms of viability and employee wellbeing. Health and safety for homeworkers can be a little different than for employees at an employer’s base, but it should be remembered that employers have a duty of care for all their employees, and the requirements of all of the health and safety legislation apply to homeworkers.

Homeworking is a term covering a variety of arrangements. They include:

• Office-related roles where: some employees work almost entirely at home, apart from carrying out regular or occasional duties/meetings at the office or externally, or, visiting customers/clients etc.
• Some employees split their time between working at home a few days a week (depending on the agreement with the employer), with the rest of the time spent in the office or with clients.
• Other employees work from home only occasionally.
• Travel-related roles where the job entails a lot of journeys and the employee’s home is used as a base.

More than a third of homeworkers are employees, while the rest are self-employed, or work in the family business. The number of homeworkers is predicted to carry on rising, particularly in office-related work. The trend presents challenges, and this guide aims to help both employers and employee deal with the implications.

Factors contributing to the rise in the number of people working from home include:

• Employers looking to cut overheads of business rates, rents and utility bills by reducing office space.
• Technology making it easier for some roles to be performed remotely.
• More employees asking for some flexibility in where they work, and the hours they work – both inside and outside of the organisation’s core hours. This is largely so they can better manage their personal lives.
• Increasing numbers of employees with responsibilities caring for family, including the elderly.
• The rising costs of commuting and that reducing commuting can be a ‘green strategy. Homeworkers are less affected by weather or travel disruption.
• Government policies encouraging people with disabilities back into work.
• Employers reporting the success of homeworking.

While many staff who work from home say they have a better work-life balance and improved job satisfaction, these outcomes can also play a part in employers reporting increased productivity from homeworking. Output from employees working from home often improves due to fewer interruptions than in the office. There can be more commitment and loyalty from employees who value working from home.

Negative considerations for employers include:

• Management of staff: Supervising homeworkers can be more difficult than overseeing staff in the office. A Manager and homeworker are likely to have to work harder to build trust between them. It can take more effort for Managers and colleagues to communicate with homeworkers, and vice versa.
• Development of homeworkers: While many homeworkers are as ambitious to develop as staff in the office, and can become settled in a position and not put themselves forward for opportunities. Ensure they know how they can develop.
• Extra costs: Initially, there may be an outlay in setting up homeworking. However, savings from reduced overheads should be greater in the long run.
• Employees who are carers: Employers should make it clear that homeworking is not a substitute for suitable care arrangements, that dependants need to be looked after by someone other than the employee when they are working, and that care arrangements should be in place to cover the time when the employee is working.
• The employee’s wellbeing: The employer must take overall responsibility for assessing health and safety. More later.

Homeworking works best where the needs of the employer and the employee coincide.

Common Hazards associated with Homeworking

Many replicate normal office hazards, but some are unique to the home environment. Most homes are not designed with home working in mind. Hazards include:

• Manual handling – such as carrying heavy and awkward boxes up the stairs.
• Incorrectly using work equipment – such as badly located computer screens.
• Using electrical equipment – are cables being dragged along floors due to poorly located sockets?
• Fire safety – is the working area higher than the ground floor?

You, as an employer, are responsible for the maintenance of any electrical equipment supplied to the homeworker as part of their work. But you are not responsible for the homeworker’s domestic electrical system, such as electrical sockets.

Employers should be aware that inspectors from the Health and Safety Executive have the right to visit homeworkers in the home, but it is very unlikely to happen.

Risk Assessments – their application to Homeworkers

The employer has a duty of care to its employees, and should get a risk assessment carried out before homeworking can be approved. It should set out what will happen if the risk assessment identifies concerns, including who will make and pay for changes to bring the home up to standard, and what timescale will be allowed.

It is the employer’s responsibility to ensure someone carries out a risk assessment to check whether the home workplace’s ventilation, temperature, lighting, space, chair, desk and computer, or any other kind of work station, and floor are suitable for the tasks the homeworker will be asked to do. Invariably this is done by the employee with a suitable risk assessment checklist.

The employer is responsible for the equipment it supplies, but it is the responsibility of the employee to rectify any flaws in the home highlighted by the assessment.

Once the home workplace is passed as safe, it is the responsibility of the homeworker to keep it that way, and take reasonable care of their health and safety. However, they should tell the employer if any precautions turn out to be inadequate.

• The assessment must consider the activities of the homeworker, and any related hazards. Procedures must be put in place to prevent harm to the homeworkers and others affected, e.g. family members and visitors.
• You may need to visit the homeworkers to properly undertake the risk assessment, especially where higher risk work is involved. Photographs or video pictures may make this visit unnecessary.
• Appropriate measures must be put in place to remove/reduce identified risks. Such measures must be written down if the you have 5 or more employees.
• The risk assessment must be reviewed periodically to ensure the adopted measures remain adequate.
• The risk assessment must take into consideration specific needs of employees, such as those who are new or expectant mothers. Risks include those which relate to an unborn child as well as to the mother.

Possible Health Problems

The predominant concern is the ability to detect problems at an early stage, especially if the homeworker is permanently based at home. The usual conditions, such as back problems, eye strain and headaches often feature. Another matter to look out for is psychological conditions.

The following provides a brief guide to homeworking for office staff, and does not include people working on ‘machinery’ at home. A number of potential control measures to reduce the risk of somebody being harmed are also identified. There may be additional hazards and control measures that need to be considered. In addition, you should consider whether vulnerable people, such as expectant mothers or disabled workers need additional consideration and control measures.

Display Screen Equipment

Homeworkers are likely to be vulnerable to upper limb strain from seating position or repetitive movement of using keyboards.

Control measures:

• Machinery is checked regularly and kept in a condition that does not cause harm;
• Provision of suitable seating;
• Consideration to the supply of an ergonomic keyboard and vertical mouse;
• Homeworkers should take regular breaks.

Electricity

Homeworker and family members may be affected by electric shock or fire.

Control measures:

• Domestic electrical system is adequate for the electrical equipment provided;
• Plugs are correctly wired and maintained;
• Electrical leads, wires and cables are appropriately covered and not damaged;
• Plugs, leads, wires and cables are checked regularly and kept in good condition;
• Circuit breakers are installed;
• Smoke detectors and fire extinguishers are provided.

Manual Handling of Office Equipment

The homeworker and their family members may need to install or move heavy furniture and be susceptible to musculoskeletal strain/injury, particularly to the back.

Control measures:

• Avoid heavy, bulky loads or materials;
• Avoid repetitive handling – vary the work to allow muscles to rest;
• When lifting is necessary, they must be trained in good handling techniques.

Slips, Trips and Falls

Homeworkers and their family members are also subject to the hazard of physical injury, especially if their work-space doubles up as living space.

Typical control measures:

• Keep work areas tidy and clear of obstructions or objects lying;
• Provision of appropriate storage cupboards/containers;
• Arrange furniture in order to avoid trailing wires;
• Ensure mats are securely fixed and do not have curling edges.

Isolation

Homeworking may lead to mental health conditions.

Typical control measures:

• Regular face-to-face contact between the employer and home worker through regular face time video conferencing;
• Same information and support for homeworkers as on-site workers, including information on social events;
• Facilitate communication with other home workers and on-site workers;
• Homeworkers should take regular breaks, including chatting to colleagues!

The Social Side

People, by nature, are social beings and even the most anti-social remote workers may soon find themselves feeling lonely and alienated. “Out of sight, out of mind” is the mentality that’s commonplace toward remote workers, which leads to a lack of trust, feelings of being an outsider. Being away from the main office means that remote workers don’t have the same access to a support network that on-site staff do. So, when they have a problem, either personal or work-related, they won’t have anyone to turn to. Some employees may also struggle to balance their work and home life, as there will be no separation between the two. These two responsibilities often get in each other’s way, with problems that could have been put off until the individual got home from work now staring them in the face all day.

If staff are working away from the office, it’s only natural that their employer will want to monitor them more closely than they would on-site employees. But if remote workers feel pressure to always be online and available, this could have a damaging impact on their mental health. Employers should make concerted efforts to include remote workers, whether that is by including them in group emails, or inviting them to join team meetings remotely via conference call. Inclusion efforts should extend to out-of-work activities, ensuring remote workers are invited to team social events which can help boost morale and foster a sense of camaraderie between colleagues.

Employees need to feel part of a team. It is the collaboration with others, and the ability to see the impact of your efforts that really motivates people, and keeps them engaged with their role and the business. The right kind of communication is key to overcoming the trials and tribulations of virtual working. Employers need to put the right structures in place, such as scheduled video calls and regular team-building meetups to help rapport. Managers need to lead by example and create a culture where those homeworkers feel valued.

But it cuts both ways. Everyone needs to think about what makes them productive, happy and successful in everyday life, and try to replicate this in a remote setting – whether this ranges from taking a walk at lunch time, going to the gym, ringing a friend or having lunch with a partner/friend.

Controlling the Risks

The Health and Safety Executive appears to take a relatively low-key approach to what it terms low risk environments so employers need to develop their own approaches based on realistic risk assessment.

Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.

The Suzy Lamplugh Trust has recently launched ‘Suzy’s Charter for Workplace Safety’ to help employers and employees make workplaces safer for everyone. Implementing the Charter’s simple steps can go a long way to ensuring that personal safety risks are identified, and mitigated where possible. The Trust has worked with a wide variety of organisations over the last year, including unions, large and small businesses, as well as the police and employees themselves, to create a Charter that makes it simple for organisations and the people they want to protect, to fulfil their obligations to keep workers safe.

An estimated 374,000 adults of working age in employment experience violence at work annually, including threats and physical assault. The human costs of personal safety incidents for employers are far-reaching, and can amount to as much as £6,500 for non-fatal injuries and £12,300 for ill-health per case, due to loss of productivity, insurance claims, administrative and legal costs and health and rehabilitation costs. In the case of fatalities, costs can soar to almost £100,000. The loss of quality-of-life to the individual can be even more damaging, with ongoing impacts on health and wellbeing, loss of confidence and inability to return to the workplace. Absence levels will increase and good staff may leave.

The guidance is largely aimed at workers who are away from the workplace, but some of the guidance can be applied to people when they are the only person in the office, workshop, shop floor or on site. We will be reviewing the safety issues associated with remote and home working in a future newsletter.

Suzy’s Charter for Workplace Safety

1. Embed a Workplace Personal Safety Culture

Employers can do this by ensuring regular consultation and dialogue with staff about the risks they face, and the steps they would like to see implemented. This should counter any perceptions or acceptance by employees of violence and aggression being ‘part of the job’.

Employees must follow all safety policies and procedures provided by employers which support them to feel and be safer.

2. Implement Robust Risk Assessments

Employers must carry out regular risk assessments to mitigate risks for all employees, and ensure compliance with legislation and guidance for the protection of the personal safety of workers. Risk assessments should include specific consideration of lone workers, as well as risks related to all specific environments that different staff work in, such as private homes, out of hours work in usually-populated workplaces, and remote locations etc.

Risk assessments should consider of all forms of violence, aggression, stalking and harassment, both online and offline, including behaviours motivated by prejudice on based on personal or perceived characteristics (e.g. race, gender, disability).

Risk assessments should include the impact of stress and mental health implications of violence and aggression connected to work. They should be regularly reviewed, with employees to reflect the changing reality of their work.

Training should be implemented to ensure that all employees have understood the risk assessment once written.

Dynamic risk assessments should also be carried out to take account of any temporary changes in the work environment or nature of the work.

3. Provide Robust Reporting Procedures

Employers should provide access to reporting tools for all employees, including remote workers and options to report anonymously, to enable immediate and reactive reporting of all personal safety incidents. Reporting procedures should include incident follow-up with employees to ensure employee wellbeing, and wider risk mitigation for the organisation, as well as sign-posting to support services where required. Employees should be encouraged to report incidents to the police.

4. Provide Personal Safety Training

Employers should train employees in preparing for and responding to personal safety risks according to risk assessments, policies & procedures, i.e. violence and aggression related to work, as well as skills in conflict de-escalation.

5. Implement a Tracing System

A designated colleague, called a ‘buddy’, should always be informed about the whereabouts and contact details of a specific employee while they are lone working, including out of normal office hours. Employers should ensure employees share contact details of the person they are meeting with their buddy. This should include travel details, the exact location and time of appointment, as well as name and contact details of the person they are meeting where relevant.

Have a procedure to follow if a colleague does not return or check in when expected, with clear lines of escalation inside and outside the organisation.

6. Have a System in place for colleagues to covertly raise the alarm

Enable employees to alert colleagues in case of an emergency while working alone, e.g. use of a code word, panic alarm installed in the workplace etc.

If possible, have discreet lone worker devices available, or provide access to an alert system to covertly call for immediate help, even in areas without phone signal.

7. Offer staff a Personal Safety Alarm according to their risk assessment

Depending on the outcome of risk assessments, employees should be offered a personal safety alarm which they carry to distract an aggressor where appropriate, and aid escape from a personal safety incident.

8. Regularly consult on and review Safety Policies and Procedures with employees

Keep these updated, inform staff and provide access to, and training on, all personal safety measures available.

In addition to the Trust’s guidance which we have replicated more or less in full, the HSE have some valuable words of advice.

HSE Guidance on Lone Working:

Training is particularly important for lone workers, as where there is limited supervision to control, guide and help in situations of uncertainty. Training may be critical to avoid people panicking in unusual situations.

Lone workers need to be sufficiently experienced and fully understand the risks and precautions.

Employers should set the limits to what can and cannot be done while working alone. They should ensure employees competence to deal with circumstances that are new, unusual or beyond the scope of training, for example when to stop work and seek advice from a manager on how to handle aggression.

We would add a few additional tips for employers:

• Staff need to know that you will support an approach of ‘If in doubt – don’t go’.
• The driving policy should reinforce that employees should not drive if they have undertaken a series of long working days, are really tired or feel unwell.
• A comprehensive policy on lone working should put the emphasis on the employer rather than broad assertions to “be careful out there”.
• Ensure that employees will not be criticised for raising concerns, and their issues will be treated seriously and sensitively.
• Consider the greater risks to expectant mothers, disabled or vulnerable workers and inexperienced staff
• Mean it when you say “Remember: your own safety comes first. You are not expected to put yourself at risk”.
• Have systems in place to support lone workers following a near miss or incident, including:
  • Line management support and debriefing
  • Investigating the incident
  • Reviewing risk assessments
  • Putting measures in place to prevent it happening again
  • Referring to occupational health, where appropriate
  • Advice on how to access counselling support
  • Liaising with the police

Finally, don’t let someone be harmed, put into a dangerous situation or seriously frightened before you become more proactive about lone working.  Rather think holistically about the health, safety and wellbeing of all of your lone workers and put into practice some of the sensible guidelines written in this article.

Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.