Temporary Lay off and Short time working

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Author: Guy Liddall

Introduction

We are in unique and uncertain times with coronavirus and the devastating impact it is having on how we live and work. Many organisations are now having to consider business survival in the short and medium term, as we do not really know how long all of the current business interruption will last. This necessitates considering whether you have to temporarily shut parts or all of your business as there is no work. Other issues are about financial reserves and whether you can continue to afford the size of the payroll, which is frequently one of the largest overheads, when little income is coming in. Equally organisations will want to be back on their feet as quickly as possible with an experienced workforce, when life returns to normal or semi normal whilst the economy starts to recover.

In employment law there are other options that can be used rather than the stark and often expensive alternative of redundancy, which is costly and will significantly hamper a rapid resumption back to normal working.

We would encourage you to think through a relevant strategy for your organisation which means grouping your workers by function and abilities. Asking who is capable of doing work at home and who needs to stay at work? Can you scale down certain work activities whilst mothballing others? Consequently, your conclusion may be that some of your employees should be temporarily laid off and some be moved to short time working. These decisions will then need to be constantly reviewed.

So what are these other options to redundancy that will allow you the flexibility to quickly respond to the changing situation?

Temporary Lay off

This happens when employees are not provided with work due to an interruption in work.  Normally this could be due to a natural disaster such as flood or fire but it can also be as a result of a loss of a large contract or significant revenue.  It is also applicable for a pandemic.

Lay off is only expected to be temporary in duration, and it is often not known for how long but there is a hopeful expectation that work will return. Therefore, it is a response to a lack of work, and as an alternative to declaring redundancies.  Providing there is a lay off clause in the employment contractual arrangements, employees are not entitled to full pay but are entitled to a guaranteed Statutory Payment of currently £29 per workless day, rising to £30 per day on 1st April, for a maximum of 5 days over a 3-month period.    On days on which a guarantee payment is not payable, employees may be able to claim Jobseekers Allowance, Universal Credit or other benefits via their local Job Centre.

There is no time limit for how long employees can be laid-off, but in the event that the lay off is not temporary they could inform the employer that they should be made redundant and claim redundancy pay if they are laid-off without pay for either:

  • Four consecutive weeks
  • Six weeks within a 13-week period

If an employee feels that they are being treated unfairly by being laid-off (e.g. unfairly being singled out) they may consider themselves as being Constructively Dismissed. There is no right to suspend without pay i.e. zero pay, unless it is very clearly expressed in writing within their terms and conditions of employment.

There is no time scale specified by law, in relation to giving people notice of being laid off (it often applies in cases of fire, flood or other ‘natural’ disasters but also applies to a lack of customers, supplies etc..) Obviously the more time you can give to people to get used to what might happen in the future, the better but if it needs to happen now, do it now, whilst communicating it as sensitively as possible.

Short time working

Employees are asked to work some of the week but in real terms they are paid less than half a week’s pay. Employees are entitled to normal full pay on the days they work and the guaranteed Statutory Payment for the days they are not asked to work.

Again, there is no time limit on these arrangements but if an employee is put on to short time working (i.e. receives less than half a week’s pay) for either:

  • Four consecutive weeks
  • Six weeks within a 13-week period

the employee can give notice that they intend to claim a redundancy payment. It is then up to the employer to reassure the employee that they can come back to work as per contract or accept that they are redundant and make the necessary payments.

Summary

Quality communication is key to the success of these alternatives.  Employers need to be clear as to why certain groups of workers or individuals are being treated differently to others.  The underlying message is that you want to keep people long term even if short term there is little or no work for them to perform.

Even if you are providing no work it is important that you ask people to keep in regular contact as it might be that a small amount of work becomes available, which it might, they can come in and be paid for that, before returning to lay off.

In both cases make sure you tell people that they will maintain continuity of employment i.e. no break in service, they also accrue full holiday entitlement with pay.  They could even find other temporary work for the duration of the lay off or short time working.

In some cases, employees may ask if they can take paid holiday during a crisis and this should be seriously considered, in a sympathetic but pragmatic manner.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

What is it?

Statutory guarantee pay (SGP) is the minimum amount that employees should be paid when they’re laid off. The right to SGP applies only to employees, not to workers such as contract or agency workers, or the self-employed.

The main qualifying conditions for SGP are that an employee must:

  • Be laid off for at least one complete working day.
  • Have been employed continuously for at least one month, including part-time employees.
  • Have an employment contract for more than three months.
  • Reasonably make sure they’re available for work.
  • Not refuse any reasonable alternative work, including work that isn’t in their contract.
  • Not have been laid off because of industrial action.

Guarantee payments are calculated by multiplying the number of normal working hours for the day in question by the employee’s average hourly rate. They’ll receive their daily rate or an upper limit value, whichever is lower.

The SGP value per day is currently £29 per day rising to £30 from April onwards.

Statutory deductions?

A drop in income, lay off or short time working,  means people pay less tax.

Some people may get a tax refund. If people are laid off and claim Jobseeker’s Allowance, they can claim a tax refund at the end of the tax year.

So the answer is yes the payment is taxed but people may get money back later, sadly I guess it is not what people want to hear as they would prefer money upfront in such circumstances.

Finally, people can work for other employers whilst laid off, subject to the terms of their employment contract or possibly the employee handbook.

But if they then refuse to return to do work subsequently offered to them by their employer, it could be argued that they have left and they are not entitled to redundancy payments either.

Finally, always take professional advice if in doubt.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

 

An Employment Tribunal Judge has ruled that ethical veganism amounts to a ‘philosophical belief’ and is, therefore, protected by law. The Tribunal’s decision, whilst not surprising, goes against the Government’s stated opinion that veganism should not be a philosophical belief capable of protection. The Government had disagreed with the Equality and Human Rights Commission’s view, following their Code of Practice to assist employees and employers navigate the Equality Act 2010, that veganism was likely to be protected.

Peter Stanway, our BackupHR™ legal expert comments:

To be classed as a philosophical belief, the Employment Appeal Tribunal has previously ruled that the belief must:

  • be genuinely held
  • not just be an opinion or viewpoint based on the present state of information available
  • relate to a weighty and substantial aspect of human life and behaviour
  • attain a certain level of cogency, seriousness, cohesion and importance
  • be worthy of respect in a democratic society, and not incompatible with human dignity, or in conflict with the fundamental rights of others

This ruling has received substantial publicity. Employers may be concerned that this could open the floodgates for all sorts of beliefs to receive such protection at work.

This is one of several recent judgements on what might constitute a philosophical belief capable of protection. Indeed, the same Judge recently held that vegetarianism does not qualify. He accepted that the Claimant was a vegetarian and had a genuine belief in vegetarianism, and animal welfare. However, vegetarianism is not capable of amounting to a philosophical belief under the Equality Act. Opinion based on logic isn’t enough.

“The belief must have a similar status or cogency to religious beliefs. Clearly, having a belief relating to an important aspect of human life or behaviour is not enough in itself for it to have a similar status or cogency to a religious belief.”

Ethical vegans oppose the use of animals by humans for any purpose. This Claimant’s belief extended beyond eating a plant-based diet. For example, he avoids catching buses due to the potential for the vehicle to crash into insects or birds. It could still be argued that being a dietary vegan or vegetarian is pretty ethical, so it too may end up being classed as having protected characteristics.

This decision is unlikely to open the floodgates to claims from the estimated 600,000 vegans currently living in the UK. However, this case demonstrates that the situation faced by employers can be highly problematic, given how difficult it is to identify what might qualify as a protected philosophical belief, and what does not. A Scottish Tribunal held that a belief in Scottish independence amounts to a philosophical belief. On the other hand, someone lost because of their belief that gender is fixed at birth and cannot be changed. Their beliefs on transgenderism were incompatible with the rights of others.

Employers may want to consider what steps they can take to provide more support to vegans, or avoid ‘discriminating’. Issues may arise in relation to catering choices, uniform composition or travel, or how to handle ‘banter’ from colleagues around veganism. They should approach these issues with similar seriousness to an employee raising the same issues based on a religious belief.

We will not be recommending that employers should now be urgently drafting ‘vegan equality policies’, but there are some ‘takeaways’ from this case.

Actions

  • Ensure that your business is welcoming and inclusive of vegan and other beliefs, creating a culture of understanding and respect.
  • Deal firmly with any incidents of harassment.
  • Make reasonable efforts to accommodate the ethical beliefs of all employees.
  • Be sensitive to dietary issues, especially those on religious, philosophical or health grounds.
  • Ensure that when you dismiss anyone, even employees with less than two years, that you provide clear reasons unrelated to being a vegan.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.

 

Coronavirus poses potential risks to employers, and the health and well-being of employees. Current health warnings are that the risk of infection is low. Consider the most recent medical advice available and keep up to date with the latest advice on travel. It is incumbent on us to maintain a sense of proportion and to take measured and appropriate steps. Public Health England state that the average number of flu deaths in England for the last five years has run at 17,000 annually, so it is important to get a perspective about Coronavirus compared with other types of illnesses.

Peter Stanway, our BackupHR™ legal expert comments:

Employers are under a duty to ensure the health and safety of all their employees, and to provide a safe place of work. These duties exist under common law and statute. Employees are also under a duty to take reasonable care to ensure that they do not endanger themselves or anyone who may be affected by their actions, or omissions at work. Employers should consider what they can do to protect their organisation and workforce. For example, they should issue clear guidance to employees who have recently travelled to China or who have been in contact with someone who has. The Foreign & Commonwealth Office (FCO) has advised against all but essential travel to Wuhan. Do not insist that an employee travels to such an area for work-related purposes. You could advise employees against travel to such areas for both work and holiday purposes. Practical alternatives to travel include postponing a trip, and holding meetings via Skype/video conference if possible.

We are not advocating devising a policy at this stage, but if you are asked by concerned employees, you should send the message that you are keeping matters under review, and will respond as and when the UK Government suggests appropriate action. You might add they need to comply with any safety instructions issued in such circumstances.  Failure to do so should be seen as a serious breach of rules.

There is currently no legal obligation to impose a precautionary suspension of non-symptomatic employees returning from holiday, or work in an area known to have experienced incidences of Coronavirus. Pressure from colleagues should not be regarded as a sufficient reason to impose a suspension.  Where a returning employee appears to be symptomatic of potential exposure, according to the latest Government advice they should stay indoors and avoid contact with other people, as you would with flu, and then call NHS 111 to inform them of their recent travel arrangements.

If a doctor certifies them unfit for work, then they should be treated as off sick as per normal operating procedures. Colleagues who have had contact with the employee should be made aware of the symptoms, and advised to seek medical advice. If a doctor does not certify the employee unfit for work, but you remain concerned, then consider briefly suspending them on precautionary grounds. It will normally have to be on full pay as you are, preventing them from working, unless you can come up with alternative work arrangements. If employees can work from home, it may be wise to require the employee to work remotely for a period, until cleared by a doctor.

How employers respond to workers who don’t want to travel right now will depend on the reasonableness of the employee’s objection. Accommodate older employees or those with immune-deficiency and pregnant women, as they are at greater risk.

Employers should also ensure that employees affected by coronavirus, or suspected of having it, are treated respectfully and not subjected to unlawful discrimination in the workplace. Guard against employees, such as Chinese migrants, being harassed or vilified in the workplace. These situations must be dealt with sensitively but firmly.

Actions

  • Check employment contracts and policies to see if there is scope to direct employees to work from home, not attend for work, or place them on leave.
  • Keep up to date with Government and Public Health advice.
  • Regularly review international work travel plans in line with guidance provided.
  • Ensure Managers know how to sensibly manage employees returning from Asia.
  • Develop a contingency plan, which is proportionate to the true risk.
  • Prepare a staffing strategy to work flexibly, or on a skeleton staff in the event that the Government substantially step up their advice about Coronavirus.
  • Do not panic or allow others to spread alarm.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.

In our recent training course, we explored why people do and do not attend work. As expected, money came out as the most important factor, but was closely followed by factors such as job satisfaction, social interaction, ambition, sense of purpose, identity – self worth, structure/ routine and being valued. These are the things which make a job worth doing, and doing well.

Peter Stanway, our BackupHR™ legal expert comments:

Employee benefits can have a tangible benefit to the business, but they are also about showing your staff that they are valued and trusted.

In April 2020, all new contracts of employment, which will have to be issued on or before their first day at work, will also have to say something about employee benefits. This is in addition to the really important benefits, i.e. holidays, sick pay and pensions – all of which have statutory minimum requirements. As we go deeper in the increasing skills shortage, those employers who only offer statutory minimum benefits and nothing else may find it far more difficult to recruit good workers, as they will prefer to work for those employers that offer a more attractive benefits package.

Providing good benefits is about investing in the work force rather than seeing it just as a cost; it is saying that “our employees are important to us, so we provide…..”. If your employees are engaging with your benefits package, they are more likely to stay with you and show their loyalty in tangible ways, and encourage others to apply for work with you. If you can reduce the cost of recruiting, inducting and training, then many benefits will pay for themselves. Paying for people to have private medical care can be expensive, but so is having them waiting a long time for treatment, especially if they are off sick whilst waiting. BackupHR™ have just switched healthcare provider and achieved a considerable saving for some improvement in benefits, and a reduced individual tax liability, so shopping around can produce a win, win for all! Providing death in service payments, i.e. life insurance, can usually be tacked on to your pensions package for minimal cost, thus providing reassurance to staff and certainly makes visiting the bereaved relatives of deceased employees a lot less uncomfortable.

Many benefits cost very little, particularly in the area of wellbeing. The CIPD reports a growing body of evidence that positively links the introduction of wellbeing programmes at work, with improved employee engagement and business performance. The FSB talk about ‘the art of the possible’, and their guides include a range of little or no cost wellbeing interventions that help bring wellbeing programmes within the reach of all small employers. Low-cost interventions, like cycle to work schemes and healthy eating options, can have a significant impact, and for employers wanting to do more, the help is available. Wellbeing programmes need not be seen as a diversion of valuable resources.

Small organisations will always struggle to keep up with the comprehensive wellbeing programmes and benefits packages available to large employers, but big does not have to mean best.

Providing employees benefits will benefit you in the form of:

  • a happier, more productive workforce
  • reduced absences from work
  • better retention rates
  • maybe even improving your own wellbeing

BackupHR™ can undertake pay and benefits surveys – if you would like to know more, contact Jackie Bolton on 01480 677981. We can also recommend a medical cover provider – again, if interested, please contact Jackie.

A recent case has highlighted a potentially helpful mechanism in Data Protection legislation for employers to use if they are concerned about employees taking data when they leave.

Rebecca Gray was a recruitment consultant and joined a rival recruitment agency. She took the (not unusual) step of emailing her own personal email account with the contact details of approximately 100 existing and potential clients. She then used this data to contact the individuals when in her new job. The Information Commissioner (ICO) brought criminal proceedings against her under the Data Protection Act 1998 for unlawfully obtaining personal data; the wronged party being the former employer (as the data controller). The problem for Ms Gray was that, while those clients may have consented to providing their personal data to her old recruitment agency, they had not given permission for her to download it and take it to be used by another agency, or for any other purpose. Ms Gray, following her guilty plea: received a fine of £200, was ordered to pay £214 prosecution costs and a £30 victim surcharge. This is nothing compared to gaining a criminal record, as well as losing her new job, and potentially devastating her prospects for future employment in her chosen career.

Peter Stanway, our BackupHR™ legal expert comments:

Preventing and managing the potential misuse of such information can be challenging for businesses. The usual and more well known recourse is to sue, or at least threaten to sue, an employee for breach of confidentiality provisions and/or restrictive covenants which have (hopefully) been included in their employment contract. Although this is the right approach in some cases, and employers should always draft contracts to give themselves this option, it can ultimately be an expensive process. Employers, therefore, may be pleased to hear that the Information Commissioner (ICO) has shown that it is prepared to use its teeth, and bring criminal proceedings against departing employees for unlawfully obtaining and using personal data. This could prove to be an effective deterrent for employees who are considering taking data with them when they leave.

There has been reluctance from employers to bring a criminal complaint against their former employees, even in the most flagrant cases. The knowledge that criminal prosecution is a potential avenue which employers can pursue for data theft, is a powerful weapon.

Actions

  • Be vigilant when recruiting new hires who claim to be able to bring client lists, or other confidential business information which could contain personal data, across with them. The ICO could target a new employer if they are aware such information probably belongs to the former employer, but have chosen to use that personal data to their own advantage.
  • Employment contracts and handbooks should include well-drafted confidentiality provisions and restrictive covenants (where appropriate).
  • Ensure that any internal policies relating to confidential information and data protection are clear about any obligations, and are properly communicated to all staff.
  • Make sure that employees are aware of their obligations, and the consequences of breaching their employment contracts and the data protection legislation. Train staff to understand obligations around data usage and the sanctions for breach.
  • Ensure that the duty to return or destroy confidential information is covered in the employer’s leaver process and correspondence.

We are not suggesting that appropriate contractual provisions should be ignored; far from it. This case suggests a way for those whose data has been ‘stolen’, even if not subsequently used, to get some retribution and justice.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.

In most disciplinary situations, it will be part of a fair process for an employer to carry out an investigation into suspected misconduct before deciding to take disciplinary action. However, the decision in Radia v Jefferies International Ltd illustrates that this will not inevitably be the case. Failing to offer an appeal hearing will often be fatal to fairness though.

Mr Radia was employed in a senior financial services role, and had to be assessed as fit and proper to carry out his duties. When he brought a disability discrimination claim against his employer, the Tribunal found that his evidence was evasive or “not credible in many respects”. Those findings led the employer to take disciplinary proceedings against him, on the basis that he had acted dishonestly and was not a fit and proper person to perform his role.

The employer did not conduct an investigation into the allegations, but proceeded directly to a disciplinary hearing on the basis of the Tribunal’s findings. He was dismissed, and not offered an appeal.

His claim for victimisation and unfair dismissal was rejected by the Employment Tribunal. He then appealed to the Employment Appeal Tribunal (EAT), and was successful in relation to the point about the appeal. The Employment Tribunal had originally found that even if an appeal had been held, it would have made no difference, and so the lack of appeal did not render the dismissal unfair. However, the EAT disagreed with that finding, as they did not consider there was enough evidence to justify that decision.

However, the Claimant’s appeal in relation to the investigation failed. The EAT found that the two phases of investigation and disciplinary are not a legal requirement for an employer, and in the circumstances, it was considered that the lack of the two stages in this case did not make the dismissal unfair. The correct question was whether the employer had concluded that holding an appeal would have been futile. Instead, the second Tribunal had reached its own conclusion on that point. This was not the right approach, so the employee’s appeal on that point succeeded.

Peter Stanway, our BackupHR™ legal expert comments:

This is a useful, but fact specific, judgment for employers, showing that it may sometimes be possible for employers to use evidence from another source rather than conducting a time-consuming internal investigation. What will amount to a reasonably fair procedure will depend on the circumstances, and how they are interpreted by the Tribunals, which makes it difficult for employers when making decisions.

Following clear procedures when disciplining and dismissing an employee mitigates the risk of an employer losing at Employment Tribunal. They provide employers and employees with a clear understanding of the process that will be followed, so they both know what to expect. Appeals are part of natural justice, so almost inevitable. They also provide an opportunity for employers to correct any earlier errors, and get a better idea of the potential claimant’s case. Failure to follow procedures also sends bad signals to your remaining workforce.

Actions

  • Conduct a fair and proportionate investigation before a disciplinary meeting.
  • Review the investigation at the disciplinary meeting, and be prepared to investigate further if the employee raises new evidence.
  • Always offer dismissed employees the right to appeal, regardless of length of service.
  • Hear the appeal fairly, and in accordance with your procedure.
  • Write to confirm the appeal decision, giving clear reasons for the final judgement.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.

Eileen Jolly became the oldest person at 88 to win a case after a hospital collected ‘discriminatory’ feedback from colleagues. She was sacked when colleagues complained about her age and “frailty”. She felt “humiliated” and “degraded” after the Royal Berkshire NHS Foundation Trust dismissed her for allegedly failing to upload details of cancer patients into a new electronic database.

The Judge added there was a “suspicion” Jolly was a “scapegoat”, and cited evidence she had received inadequate training, which could have led to the mistake.

In 2015, the system changed to an electronic patient record (EPR) system. Mrs. Jolly was informed her role had changed from Medical Secretary to ‘Patient Pathway Coordinator’ – although it was never made clear what this new role meant – and she was required to attend waiting list training. The session was “quite short” and had to be rescheduled because the trainer could not tell employees how to use part of the system. The rescheduled session ultimately did not take place.

The Tribunal ruled she had been unfairly dismissed, and her discrimination claims on the grounds of age, disability discrimination and breach of contract also succeeded. Her employer had not followed their own capability procedure. Her dismissal was “tainted by discrimination”, both age and disability.

Peter Stanway, our BackupHR™ legal expert comments:

This case demonstrates why ACAS recently published further guidance on age discrimination. They point out that age discrimination at work – treating someone unfairly because of age – is against the law other than in very limited circumstances. Age discrimination, also commonly called ageism, is one of the most common forms of unfair treatment at work. The employee age gap in some work places can now be 50 years or more.

Features of the protected characteristic of age under the Equality Act include: –

  • protection against unfair treatment because of someone’s actual age, or the age they are thought to be, or the age of someone they are associated with
  • protection against harassment because of age, and
  • different treatment because of age being allowed in very limited circumstances

Much of the problem comes from stereotyping, i.e. making assumptions about job applicants’ and employees’ capabilities, and likely behaviours because of their age.

Stereotyping can often lead to: poor decision-making when recruiting and promoting or deciding who gets trained; the de-motivation of existing staff who become aware of the stereotyping; and less trust among colleagues. The ACAS guidance and the Jolly case serve as a reminder about the importance of treating employees consistently, no matter what their age. Employers must ensure that their Managers are aware of the high-risk areas outlined in the guidance, and review their recruitment and performance management procedures, to ensure that they are not discriminatory.

Actions:

  • Avoid stereotyping – judge people on their job performance – not assumptions because of their age; like assuming that people are too old to learn new working practices and/or won’t do as well as someone younger.
  • Have different age groups in a team or project – shared goals can bring people together.
  • Encourage different age groups to swap ideas, knowledge and skills.
  • Educate Managers that age discrimination is not only unlawful, but is a disciplinary offence.
  • Adopt a “holistic approach”, and conduct proper investigations when an issue regarding an employee’s “perceived lack of competency” is raised.

I might also add that you should not invent daft job titles, and when peoples’ roles are changed, essential good quality training actually takes place.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.

It was in April but it is arguable that with modern highly stressed workforces, we should always be reminding ourselves of the approaches we need to counter stress among employees.

There will always be times when we need to work outside our normal hours; meaning early mornings, late nights or even weekends. And while technology gives us the ability to work anywhere and at any time, there are downsides to this. The pressure to be ‘always on’ can lead to stress and exhaustion, as well as impacting on staff productivity, loyalty and retention.

Employees have told BUPA they try to downplay illnesses so that they don’t take time off, and their latest research showed that workers would wait an average of 52 days before seeking help for a mental health issue, and less than one in 10 would confide in a colleague or manager.

Peter Stanway, our BackupHR™ legal expert comments:

A certain amount of workplace stress can be positive. It can help employees prepare for challenges, and some even feel they work best under pressure. Evidence shows that for most people work can be beneficial for their physical and mental health. But issues can arise when someone is stressed or overworked for a prolonged period.

When someone isn’t coping with stress you might notice they are constantly worried, lack confidence or feel emotional, and they might even tell you about physical symptoms such as headaches, nausea and tiredness. This may be due to them not having a healthy work-life balance, so they are not able to manage work stress.

When it comes to wellbeing at work, the importance of safeguarding mental health has become much more understood over the past few years. Two thirds of business leaders now report that mental health has become a boardroom priority. Good employers are putting measures into place to help protect employee mental health, reduce stress and tackle the ‘always on’ modern working culture. Smart employers know that organisations are only as strong as their people and that the experiences, wellbeing and motivation of each worker are fundamental to how the organisation performs as a whole.

Figures from the data organisation NHS Digital reveal the scale of fit notes being issued by GPs in England. The number of notes for “neurotic and stress-related disorders” rose from just over 576,000 in the 2016-17 financial year to nearly 620,000 in 2017-18.

Actions

  • Draft a common-sense Stress at Work Policy – include it in your Health & Safety Policy and publicise it.
  • Implement the HSE’s Management Standards – their guidance on Work-Related Stress should be required reading for all Managers.
  • Lead from the front – employees feel empowered to work regular hours and take breaks if they see senior leaders displaying the same behaviour.
  • Set boundaries – creating time limits for when employees can respond to and send emails helps to encourage breaks both from work and technology. This prevents excessive working hours, helps them ‘switch off’ and get the downtime they need.
  • Make goals achievable – switching off from technology completely is virtually impossible. Instead, encourage colleagues to set realistic goals for cutting back on their technology use, which they’re more likely to stick to.
  • Start the conversation – if you see a colleague working all hours, displaying signs of stress, or is always ‘switched on’, initiate a conversation about how they’re feeling, and if they need support with their workload or health advice.
  • Promote wellbeing for all staff – prevention is better than cure, so encourage people to be open and react appropriately.
  • Be supportive – staff who are experiencing mental health problems need to know that they are not alone and their illness will not be career limiting.
  • Provide training – improve awareness on the potential dangers of prolonged occupational stress.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.

An Employment Tribunal has found that Middlesbrough FC did not breach national minimum wage legislation after deducting the costs of season tickets from staff wages. The hearing heard that in 2016 the football club had deducted the cost of season tickets for the 2016-17 season from employees’ wages over several weeks. It was clear that staff were happy with the arrangements.

Middlesbrough FC argued, that the club was simply doing its staff a favour after they themselves had requested the money for their season cards to be spread out over multiple weeks. HMRC had issued the club with a notice of underpayment in respect of the season tickets, because in its view the practice was in breach of the Act whether or not the staff were happy with the arrangement. They argued: “(In other cases) there was no finding or even allegation that the companies had acted improperly but a strong line must be taken with them, to deter any other less scrupulous employees.”

The judge agreed that it had not paid staff less than the minimum wage. He found that the deductions made were permitted under the legislation.

Chairman Steve Gibson said: “We have maintained for two years that the position that HMRC had adopted was unreasonable, and that it was not in the public interest to pursue this matter against the club”. He added that the case was a waste of public money and was “symptomatic of a bureaucratic civil service who are out of touch with the real world”.

HMRC were unapologetic in their approach. They maintain that the legislation does not draw a distinction between breaches arising from uncertainty or mistake, and deliberate underpayment or indeed ‘underpayment’ at the employee’s request. Business Minister Greg Clark has promised to look at simplifying rules around
minimum wage legislation.

Peter Stanway, our BackupHR™ legal expert comments:

The ruling follows news in January that retailer Iceland is appealing against an HMRC decision that it had not paid the minimum wage, where staff were paying into a savings scheme. We identified this issue in our HR Alert last May in our feature National Minimum Wage Failures which included other football clubs.

Middlesbrough FC has effectively won the right to pay staff below the minimum wage by providing other benefits to them. This is an approach to be taken with extreme caution as even if it makes sense, the judgment is only from an Employment Tribunal and HMRC may well appeal and carry on with its approach.

We identified this issue in our HR Alert in May 2018 and reiterate our comment that the complexity of the minimum wage legislation and the way HMRC applies it means that some employers can make genuine mistakes.

The current approach of HMRC causes confusion for employers and employees. The policy behind the national minimum wage is to protect employees and ensure a reasonable level of income. Where an employee elects to dedicate part of their salary towards a benefit provided by their employer then tribunals may be reluctant in future to interfere with that policy, notwithstanding that the remaining income would take them below the national minimum wage. Hopefully HMRC and/or the Government will take note and clarify the situation for employers.

Actions:

  • Get professional advice about staff purchasing/savings schemes
  • Ensure all working time is recorded and paid
  • Avoid making deductions that take wages below the NMW threshold
  • Conduct reviews of systems and working practices, to identify exposure

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are
doing, or call us for a free initial chat on 01480 677980.