You may have missed it, but last week the head of the HSE (the Health and Safety Executive) had a pretty torrid time in front of a Parliamentary Select Committee.

One of their main criticisms was that, throughout a year when over 120,000 people have died, many of them had been of working age, the HSE has only managed to issue one enforcement notice.

Their defence was that the service itself has suffered a substantial drop in funding, and despite the Government making £14 million available to them to concentrate on the pandemic, that was only one 10th of the amount of funding they had lost over the past decade. And with only 382 inspectors, they were woefully short of people on the ground.

A number of commentators have since published some fairly damning assessments of the organisation’s performance. In our view, many of these do not go far enough. The HSE, at a point when they were probably most needed in their existence, simply disappeared off the map.

We have looked through our blog from last year, and we see that in early April we reported that the HSE, alongside the TUC and the CBI had taken part in a joint statement. This reminded employers that they were expected to comply with Public Health Guidance. Those deliberately flouting the rules could expect action to be taking against them, including enforcement notices.

One year later, with numerous reported instances of rules flouting at work, how can we have seen just one enforcement notice?

Inspections are one part of the equation; another part is guidance. We are a small consultancy, with limited resources. We sent out a detailed bulletin on 17th April, explaining how employers should approach their health and safety planning, and indeed we helped many of our clients with COVID workplace risk assessments.

IOSH, the organisation that represents health and safety qualified professionals, waited in frustration for the HSE to publish a specimen risk assessment. In the end this was not forthcoming until the end of July, believe it or not. And the document produced was so general as to be of limited use. IOSH had already produced their own at the end of May and it was of a much higher quality.

The problem with any organisation that is set up to manage risks, is that they tend to risk assess everything. We have no problem with that, but it did look as if they reckoned it was too dangerous to send their inspectors out into the field. So as far as we can tell from our clients, no inspections took place much before the middle of September. By that time over 41,000 people had lost their lives, many of them are likely to have caught the virus in the workplace. So much for strict enforcement action.

Since that time inspections have been ramped up significantly, but again to little effect.

When this pandemic started what we expected was the HSE to get fully involved. We expected them to provide employers with a toolkit so that they could properly risk assess their own workplace against a new, serious and imminent danger to health. We expected them to take very high-profile enforcement action against a number of employers, highlighting the need for others to comply or risk a similar fate.

That none of this happened suggests that the HSE went missing in action. At the very time that we needed them most, despite all of the cuts that had taken place, employers got no guidance and no enforcement. No carrot and no stick to make sure they behaved in a safe and secure way.

We understand that this was a new and very dangerous environment in which to operate. But we’re glad that the fire service, the police and the armed forces do not take a similar view when faced with similar dangers.

Heading for the hills and hoping it all goes away is probably not the best strategy. Letting employers figure it all out for themselves with no assistance is no better. Let us hope that if we ever have another or similar crisis that the HSE learns from this and steps up to the plate much quicker and more effectively.

And let us hope that the Government, who have spent hundreds of billions keeping the economy going, recognises that services like the HSE are important and deserve better funding.

 

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

Important – do not forget

Notwithstanding the impact that Coronavirus is continuing to have on the economy, organisations and individuals, the Government have not been entirely pre-occupied with vaccination and Brexit.  However, it is important not to forget that there are some new statutory changes effective soon.  Here are the main 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 6th April 2021.

  • £544.00 – the maximum amount of a week’s pay for calculating statutory redundancy pay and the basic award; (up from £538);
  • £16,320.00 – the maximum statutory redundancy payment or basic award, i.e. 30 weeks (up from £16,140);
  • £89,493.00 – the maximum compensatory award which can be made for unfair dismissal (up from £88,519) or one-year’s gross pay whichever is the lower;

These increases mean that the maximum total unfair dismissal award is now £105,813.00; 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 remain at £30.00 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 6th April 2021.

IR35

With effect from April 2021, the new IR35 regime will apply to large and medium-sized businesses in the private sector who engage contractors (End Users). This will apply where an individual (contractor) provides their services through an intermediary (such as their own limited company – often referred to as a personal services company or PSC) in circumstances where the nature of the engagement would, absent the intermediary, have the characteristics of an employment relationship for tax purposes. They will be required to determine whether a contractor who is suppling their labour via their own intermediary, would be an employee of the End User if engaged directly by the End User. If the End User determines that IR35 applies, the Fee Payer – the entity that has the direct contractual relationship with the contractor’s own intermediary – must operate PAYE/NICs as appropriate. This means that it will be the ‘employer’s’ duty to determine status, not that of the individual who runs a personal service company.  Businesses could be liable for PAYE or NI contributions if a contractor is deemed by HMRC to fall within the scope of the IR35 rules.

According to Grant Thornton, only six in ten employers are ready for the upcoming changes, despite organisations having had an additional year to prepare for the extension of updated IR35 rules into the private sector.

Future Changes

Despite much fanfare, speculation and hype, there is not much else changing in the world of new employment legislation. The Government will probably put forward an Employment Bill.  It will probably contain proposals to extend redundancy protection to pregnant employees, and for up to six months after the return from maternity leave. There could be a new right for parents to take statutory leave of up to 12 weeks for neonatal care, a new right for carers to take unpaid statutory leave and making flexible working the default.

HMRC Investigations

What may impact other clients is that HMRC, who are charged with enforcing the NMW, are taking an aggressive approach to investigating alleged or potential ‘technical’ breaches of the Regulations. To guarantee that workers are paid correctly, HMRC regularly uses its authority to conduct civil investigations.

Research has revealed that NMW investigations increased from 2,807 (2018) to 3,561 in 2019. Investigations such as these can be costly for employers. Penalties can reach up to 200% of arrears owed to workers – which is a maximum of £20,000.

It is easy for businesses to inadvertently fail to comply with the national minimum wage.  Employees can be on the minimum wage or a bit more but if they stay on a bit late or come in a bit early, then that may take their hourly rate below the threshold. Many employers have fallen foul by failing/overlooking to give young people their age-related rates following a birthday. Be diligent.

Whilst the sums HMRC fine businesses are often modest, the consequences of being named and shamed for a business can be devastating. They may first try a telephone ‘fishing trip’, so be very wary of your answers. It is important that if you are investigated by HMRC you seek advice from the outset.

 

 

 

 

 

Clients are welcome to raise any concerns with their Consultant, who will be pleased to advise you on any element of the issues arising from this newsletter.

It is to be hoped that 2021 will be better for employers than 2020.  One thing that remains certain is that this period remains a key time for development of employment law.  It has been said that death and taxes are the only certainties in life.  Death we have sadly had plenty of during the pandemic; taxes we are likely to eventually see increased to pay for the huge financial cost to the Government of COVID-19, but employers may wish to add a third – changes to employment law. To this end, employers must ensure they keep up-to-date with all legal requirements, and take the necessary steps to prepare.

Prepare for changes to Minimum Wage and Other Statutory Rates

The Government has confirmed that minimum wage rates, including the National Living Wage, are still to increase from 1st April 2021 despite the coronavirus pandemic. Additionally, the National Living Wage, currently paid to those aged 25 and over, is to be expanded to include those aged 23 and over. The rates are to increase as follows:

 

April 2020

April 2021

% increase

National Living Wage (23+)

£8.72

£8.91

2.2%

21 – 22 year old rate

£8.20

£8.36

2.0%

18 – 20 year old rate

£6.45

£6.56

1.7%

16 – 17 year old rate

£4.55

£4.62

1.5%

Apprentice rate

£4.15

£4.30

3.6%

The current accommodation offset, as of 1st April 2021, has increased from £8.20 to £8.36 for each day – midnight to midnight – that you make the accommodation available to the worker in a pay reference period, up to a maximum of £57.40 (£58.52 from 1st April 2021) a week. The effect on minimum wage pay depends on whether or not you charge for the accommodation.

Additionally, proposed increases to family leave and sick leave pay have been announced. Whilst these are yet to be confirmed:

  • Weekly pay for maternity, paternity, shared parental, parental bereavement and adoption leave is set to increase from £151.20 per week to £151.97 per week; and
  • Statutory sick pay is to increase from £95.85 to £96.35 per week;

New immigration laws

From 1st January 2021, the free movement of persons ended, meaning individuals from the EU will no longer have the automatic right to live and work in the UK. Instead, a whole new set of immigration laws are to be introduced. There will be a new points-based immigration system in place from 1st January 2021. EEA nationals arriving in the UK from 1st January will need to comply with the same visa requirements as other non-UK nationals.

All foreign nationals will now need to seek to enter the UK in the same way, and there will be a number of methods in which they can seek to do this. However, the majority are expected to use the new “Skilled Worker Route”. To be able to work in the UK legally under the “Skilled Worker Route”, foreign nationals have to meet specified criteria in order to earn at least 70 points. Crucially, this involves being offered a job from an approved sponsor. Employers will need to make sure the sponsor licence is in place in good time (licence applications can take about 6 weeks to process).

Employers should understand how the new system will affect their recruitment, and should consider whether they will need to apply for a sponsor licence. We suspect most of our clients will not do this.

They should encourage (or continue to do so) their existing EEA employees to apply for settled or pre-settled status. Such people already in the UK before the end of the transition period have a grace period until 30th June 2021 to apply under the settlement scheme. Employers also need to understand the rules on right to work checks during this period. They are slightly different than those checks which started back in 2008.

Gender pay gap reporting – again (for some)

HR and payroll teams working within large employers had a reprieve from crunching their gender pay gap numbers in 2020, after the Government paused publication in the light of the Covid-19 pandemic. We understand that reporting is back on the agenda in 2021, with a deadline for private sector employers of 4th April 2021.

There are some unanswered questions about what needs to be reported. It is not yet clear whether employers will have to report the missing 2019/20 figures at the same time as their 2020/21 figures. It is also unclear whether staff who were on furlough on the snapshot date of 5th April 2020 should be included in the 2020/21 figures. And, if they are to be included, is their pay their normal rate of pay or the reduced furlough rate of pay? To tackle this, those employers should clearly outline in the accompanying narrative why the figures present the data that they do. Watch out for further guidance from the Government and be ready to adjust calculations.

Organisations outside of the gender pay gap reporting regime will escape these issues for now – but there are plans to reduce the reporting threshold to employers with 100 or more employees. The Equal Pay Bill 2019/21 is on its way through Parliament, and aims to reduce the threshold for gender pay reporting and bring in ethnicity pay reporting for employers at the same threshold. Although these changes are unlikely to be effective in 2021, they would involve a great deal of preparatory work, and will require many employers for the first time to undertake and collate equality monitoring data.

In addition, the Bill seeks to reform equal pay law and, among other things, would introduce a right for employees to know what their colleagues are paid. This could shine light on pay disparities, and trigger equal pay disputes on an individual, or group basis. With the Supreme Court’s decision in the high-profile Asda equal pay dispute expected shortly, pay inequality issues will be back in the public eye in 2021.

IR35 requirements

Originally due to take effect from 6th April 2020 but delayed to 6th April 2021, changes to IR35 rules will affect medium and large employers within both the private and third sector (charities and not-for-profit), who use individual contractors. The rules are aimed at reducing tax avoidance for contractors employed via personal service companies.

Under the new rules, eligible organisations engaging contractors through intermediary companies are responsible for determining their employment status, and assessing whether or not IR35 applies. If it does, the organisation that pays the individual’s fees is deemed to be their employer for tax and National Insurance purposes. This is known as the “status determination”. The determination process is notoriously difficult, and you may well need to take professional advice. Once the status determination has been made, the client organisation must notify various parties of its decision, and provide an opportunity to challenge the assessment.

Comply with any new rules on Modern Slavery statements

Currently, organisations which supply goods or services, that undertake business in the UK, and have a total turnover of £36 million, need to produce an annual statement outlining the steps that they are taking to combat instances of modern slavery and human trafficking in their own organisation, or within their supply chain. The Government has announced plans to require an increase in the number of employers that need to produce a Modern Slavery statement.

It has not been confirmed when the new requirements will come into force, but the registry is expected to be launched in “early 2021”.

Extended redundancy protection for mothers

Currently, those on maternity leave who are at risk of redundancy must be offered suitable alternative roles in advance of others. This protection ends once the employee returns to work. Future changes will mean that this protection starts from the date the employee informs her employers that she is pregnant. It doesn’t matter whether the employee informs them verbally or in writing. This protection will last for a further six-month period once the employee returns to work.

The extended protection will also be available to those on adoption leave and shared parental leave. It is not confirmed when this will come into force.

Wave farewell to the furlough scheme

The Coronavirus Job Retention (Furlough) Scheme remains a key part of the Government’s economic support during coronavirus, covering a proportion of employee earnings  for employers to help them reduce large-scale redundancies. However, it is likely that 2021 will finally see the scheme end. Currently, the Government has announced that it will end on 30th April 2021. Whether it will be extended further from this date remains to be seen, but employers need to be aware that with the vaccination programme now being rollout, further continuation of the CJRS beyond the stated deadline seems unlikely.

Payroll teams dealing with furloughed employees will need to ensure that final claims are made to HMRC in good time. Employers need to have a strategy in place for what happens afterwards: will furloughed staff be brought back to work, or made redundant? If they are considering redundancies, they should also be prepared to think about alternative job options, when and how to consult.

Prepare for new limits on drafting your employment contracts

The Government has begun consultation on measures to reform post-termination non-compete clauses in contracts of employment. The proposals would be intended to allow workers greater freedom to find new or additional work, and to discourage the widespread use of non-compete clauses. It is possible that non-compete clauses could be made unenforceable altogether, meaning employers would not be able to include them in employment contracts at all.

The Government is also seeking views on extending the ban on exclusivity clauses in employment contracts, to prevent employers from restricting low-paid employees (i.e. those earning below £120 per week) from working for another employer. Currently, the ban only applies to those working under zero-hours contracts.

What else?

Other employment law developments that the Government has previously announced, but not yet set out a timetable for, include:

  • further reforms to exit pay in the public sector;
  • a new right for all workers to request a ‘more predictable’ contract;
  • an increase to the length of time required for continuity of employment to be broken (from one week to one month);
  • new law to restrict the use of non-disclosure agreements (NDAs) in settlement agreements, if there’s been an allegation of harassment or discrimination;
  • the introduction of a single labour market enforcement body to ensure that vulnerable workers are protected, and to support businesses in compliance;
  • payment of all tips and service charges must go to workers;
  • extended leave of up to 12 weeks for parents of children requiring neonatal care;
  • a new right to a week’s (unpaid) leave for carers; and
  • protection for whistle-blowers is on track to be strengthened;

Anything Else?

There will inevitably be cases making or reinforcing new law. The big cases due in the Supreme Court are on average holiday pay (decision not until the Autumn) and employment status for ‘gig workers’ (Uber).

Employers should get ready for an influx of requests from staff who have got used to the benefits of working from home. Rejecting requests will be harder where the employee can demonstrate that they have already worked effectively from home during the extensive period of the current pandemic. The Government may support requests by legislating so that all jobs should be advertised as open to flexible working.

 

 

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

For the first few months of the pandemic, the HSE (Health and Safety Executive) were criticised, probably justifiably. They were very slow to get their act together and to offer sound practical advice to businesses trying to effectively manage their risk.

It was also noticeable last year that their enforcement team was fairly invisible too, but in the last few months there are signs that this is changing. Certainly, in December, and increasingly in January, we have had reports from our clients of unannounced inspections by the HSE. Luckily, many clients have been following our advice, and have passed these inspections with flying colours.

The HSE have now ramped up their efforts, and recently reported that they have undertaken 32,300 site visits during the pandemic.  Between 6th and 14th January, the Health and Safety Executive (HSE) received 3,934 complaints relating to coronavirus, and took enforcement action in 81 cases, issuing either a verbal or written warning, but with only one company facing tougher action.

It is also worth remembering that many other organisations are regulated by local authority Environmental Health Officers (EHOs) who have the same powers regarding unannounced visits, and enforcement action if they so decide.

For workplaces to remain open in England, employers must carry out an appropriate Covid-19 risk assessment to develop safe working practices to reduce the spread of the virus.  So, we  thought it might be helpful to underline the sorts of things the inspectors are looking for:

  • Written evidence of each organisation’s Covid 19 workplace risk assessment;
  • What Covid Secure safe working practices are actually in place;
  • Where possible certain groups of workers are working from home;
  • Relevant signs are in place reminding people of the safety measures to follow;
  • Social distancing measures where the workplace is large enough to permit it;
  • Regular cleaning regimes, such as washing and sanitising facilities, including the strength and type of sanitiser used;
  • Hygiene processes for communal contact surfaces, e.g. door handles, and the sharing of equipment;
  • How the organisation instructs and mandates the wearing of face masks;
  • The use of mitigating factors like laminated screens for those who are less than 2 metres apart;
  • Good ventilation, including opening windows if necessary;
  • Access to canteens and rest rooms are regulated through the use of timed breaks;

In other words, they are keen to see how seriously employers are taking responsibility during the pandemic, and how they are ensuring, in the face of rising infections, that their workforce stays safe.

Most of our clients who have been inspected are in the manufacturing sector, but there are reports of increasing inspections in things like retail, where they are open, and other sectors.

It should be remembered that the HSE/EHOs have extensive powers to just turn up and demand to inspect your workplace.  So, not only is it necessary to have all of the above in place, it is also important to demonstrate that these measures are being regularly reviewed, and that the workforce is complying, with Management enforcing when they are not.

 

 

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

It is nearly two years since we sent a previous newsletter, which is when we updated our Employment Details Forms for new and existing employees, to reflect changes in Data Protection legislation (GDPR).

The end of the transition period, after leaving the EU, on 31st December 2020 meant we needed to review the right to work section of these forms in the light of new immigration law. The good news is that there are no significant changes to either the List A or B documents that need to be checked.

We have, however, taken the opportunity to include provision for Online Checks, which are likely to be an easier option for both parties, especially in the current climate, where face to face meetings may be difficult, and Post Office delays may make people more reluctant to post documents. It must be stressed that online checks, which have been available since 2018, only apply to migrants, so will not work for the majority of job applicants.  It gives employers access to up-to-date, real-time information about migrants’ right to work, making it easier for individuals to prove their rights in the UK. The Right to Work Checking Service is secure and free to use, and means that employers can use the online service to demonstrate they conducted the necessary right to work checks on migrants.

Do not forget that job applicants are protected against discrimination relating to race. The nature of right to work checks opens up the risk of a race discrimination claim if employers treat people differently based on their race, or perceived race when carrying out these checks. The same documentation and checking processes need to be completed on all prospective employees (and current employees where appropriate), without making assumptions based on appearance or name, without seeing evidence.

For those unfamiliar with doing these checks, there is a 3-step process:

Step One: Obtain original documents from the prospective employee prior to starting employment, or at the latest, on the first day of employment.

Step Two: Take all reasonable checks to verify that the document is genuine, relates to the actual prospective employee, and does not exclude the right to work in that particular type of work.

Check:

  • Photographs are consistent
  • Dates of birth are the same
  • Names are consistent or evidence of a name change
  • Qualifications are current and consistent with other documents
  • They are genuine and have not been tampered with
  • They relate to the person providing them.

Step Three:  Copy the document in a non-alterable format and keep securely.

They need to be retained securely for the length of their employment, and at least two years after that. We recommend that the checker writes the date of checking on the copy, and signs it as a certified copy. All of the document ought to be copied, unless the document is a passport or travel document in which case just copy

  • The front page
  • Any page containing personal details, e.g. photograph and date of birth
  • Any pages with a UK Government right to work endorsement

We have made a few minor changes to the wording, e.g. to reflect that it is now simpler for UK nationals without British passports, to demonstrate their citizenship by enabling them to use short birth or adoption certificates, which they can get for free, instead of the long versions.

Other form changes

Whilst we were making these changes, it seemed like a good idea to review the rest of the forms, not least because of changing requirements and sensitivities.  For example, we have removed some information that is no longer required. The medical questions have also been slightly amended so that they now read better.

You will also see that we refer to the word “worker” rather than “employee”, as it is important that you undertake the right to work checks for everyone that works for you, which will include casual workers and those with contracts for services.  Also, it is advisable to have their personal contact details to hand should you need them, although other sections of the form may not be relevant to them.

In light of the way that driving licences are now verified, i.e. electronically via a shared code, and the fact that driving offences are also subject to time limits, we have re-worded the driving licence details section within the New Starters form, and added into the Existing Worker form, as employer’s still have a duty of care to check all their existing workers are allowed to drive, even if that is only to drive to and from work in their own private vehicles.

The words about privacy in relation to data protection have also been amended.

Please note that we have changed the declaration wording to reflect the fact that if people have been ‘misleading’, then they will be dealt with appropriately according to their length of service.  This means employees with less than 2 years’ service will not be subject to the full obligations of the Disciplinary Procedure, but will be dealt with appropriately via the simplified three step process.

The form for new workers should be used with immediate effect.  It is recommended that, unless clients have conducted a thorough review of all workers’ personal details recently, that they take the opportunity to update the personal data they hold on their workforce, as data protection law requires. Despite exhortations and contractual obligations, workers are often very tardy in updating their employers about addresses, personal contact details (email and mobiles), medical details, and relevant driving licences etc.

Right to Work Checks during Covid 19

Checks continue to be mandatory, and employers must continue to check the prescribed documents. Right to work checks have been temporarily adjusted due to coronavirus. This is to make it easier for employers to carry them out.

Since March 2020, the following temporary changes have been made:

  • Ask the worker to submit a scanned copy or a photo of their original documents, via email or using a mobile app, rather than sending originals
  • Checks can now be carried out over video calls; ask them to hold up the original documents to the camera and check them against the digital copy
  • Record the date you made the check, and mark it as “adjusted check undertaken on [insert date] due to COVID-19”
  • If the worker has a current Biometric Residence Permit or Card, or status under the EU Settlement Scheme, you can use the online right to work checking service while doing a video call – with the applicant‘s permission to view their details

If the job applicant or existing worker cannot show their documents, you must contact the Home Office Employer Checking Service. If the person has a right to work, they will send you a ‘Positive Verification Notice’. This provides a statutory excuse for 6 months from the date within the notice.

When the pandemic ends, employers will be asked to carry out retrospective checks on existing workers who started working during these measures, or required a follow-up right to work check during these measures i.e. whose documents were the List B category.

We will be running a free webinar on right to work checks within the next month, so if you are already on our database you will be sent an invitation to register.  However, if you are not and you would like to receive invitations to our webinars etc., please contact Jackie Bolton on 01480 677981 or jackie@backuphr.com.

If your organisation has not already been doing right to work checks, then we suggest that you listen to our webinar, and start retrospectively undertaking these checks, in order to potentially avoid the quite substantial penalties that the Home Office can issue, which include:

  • a civil penalty of up to £20,000 per illegal worker;
  • a criminal conviction carrying a prison sentence of up to 5 years;
  • an unlimited fine;
  • closure of the business, and a compliance order issued by the court;
  • disqualification as a Director;

We would recommend that even if you are not able to listen/participate on the actual day, if you register for the webinar, you will still receive a recording (including a copy of the presentation), which you can watch at a more convenient time.

 

 

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

A recent case before the Supreme Court has caused some rather unexpected ripples.

The details of the case are not important, but it was about how Coroners handled verdicts of suicide. The Supreme Court held that in cases where a verdict of suicide is reached, the burden of proof now only has to be “on the balance of probability” that the victim intended to take their own life. This is known as the civil level of proof, rather than the criminal level of “beyond reasonable doubt”.

So far so good, and this would appear to have very little to do with health & safety law. But the Chief Coroner, apparently wanting clarity on a similar verdict, on lawful killing, asked for it to be considered at the same time by the Supreme Court. Both verdicts are known as short form conclusions.

It is also rumoured that the Chief Coroner asked for this to be done so that Courts did not subsequently decide that both Short Form verdicts should be treated the same. In other words, the Supreme Court would make a distinction and retain the higher level of burden of proof for unlawful killing.

Be careful what you ask for. The Court, on a majority verdict of 3-2, so hardly convincing, has decided that the civil level of proof should apply to unlawful killings as well. This now has a significant effect on employers.

Until now, obtaining a verdict of unlawful killing needed a very high burden of proof. And without that verdict, it was unlikely that the Crown Prosecution Service would pursue any employer after an accidental death at work for corporate manslaughter or gross negligence. By making such outcomes more likely, it raises the prospect of far more prosecutions in these circumstances.

This has caused considerable debate in legal circles. Some have questioned the original decision, many have questioned the decision to include unlawful killing and suicide in the same verdict, and others have pondered on the long-term effect of this change in the law.

What most seem to agree on, however, is that interested parties (families on one side and employers on the other) in Coroners’ decisions will almost certainly take a much more active interest. Families aggrieved that any employee has potentially been unlawfully killed will seek to intervene much more in the Coroner’s investigation. Employers will seek to protect themselves far more, with all of the subsequent legal costs and possible media interest that such cases attract.

And long-term, we can expect an increase in prosecutions in this area. A reminder that corporate manslaughter can be extremely serious for an organisation if it is proved. Courts have the ability to levy unlimited fines and custodial sentences for responsible persons. In employment sectors where life threatening industrial accidents are more likely to happen, responsible employers are already taking enormous interest in their employees’ health and safety.

But with the extension of the law, and the lowering of the burden of proof, we are certain that more employers in other employment sectors will be caught in this net sooner or later.

This is yet another reason to take health and safety very seriously. If you are unfortunate enough to have a fatal incident at the workplace it can have profound legal implications for the organisation. Not to mention a very negative impact on employee morale and your own ability to sleep well at night.

 

 

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

A landmark case, which we have reported on before, will have a significant impact on employers who manage agency workers and those in the “gig economy”.

The case, involving the Independent Workers Union of Great Britain, means that workers are now entitled to the same protection as employees in certain aspects of health and safety. In particular, if they suffered detriment because they have decided to protect themselves from serious and imminent danger, on health and safety grounds such as COVID-19.

The crux of the case was that the UK Government had not implemented some aspects of European health and safety law. Especially with regard to limb (B) workers. These are typically couriers, taxi drivers, delivery personnel etc.

Under existing health and safety law, employers are under a general duty to protect the health and safety of not just employees, but others who may be affected by their business operation. As a result of this case, sub-contractors, agency workers and those in the gig economy will now have the right to refuse work that they do not believe to be safe, and will need to be provided with PPE, if necessary, by the employer.

Of course, the current situation is complicated by Brexit. Nobody knows quite how European law is going to continue to be incorporated in UK law over the next few years. However, as a result of this case, experts are certain that existing law will continue to apply after we leave the EU, until the Government decides to change it.

So, employers should consider taking the following actions, to make the situation clear for both workers and their Managers.

  • Clarifying workers contracts so that all parties understand their rights;
  • Ensuring that the Employment Handbook or policies address the treatment of workers to ensure that it is compliant, or, have a separate Handbook specifically for workers;
  • Similarly, update workplace risk assessments and procedures to ensure that they apply equally to workers as well as employees;
  • Ensure that workers are conversant with your operational and safety procedures, risk assessments and employment policies;
  • Understand where workers, as well as employees, needs to be provided with PPE;
  • Train line Managers to understand that all of their workers, not just employees, need to be provided with the relevant information, instruction, training and supervision to ensure their health, safety and wellbeing is looked after;

It is easy to think that because you sub-contract work to those who are either employed for another organisation, or who are self-employed, you do not have the same responsibility for their welfare. Actually, employers have a very wide responsibility for all of those who visit their premises, including customers and visitors, and this extends to third parties like delivery drivers, who are entitled to access to toilets.

It is important that employers understand what these changes mean, as it is easy to fall into the trap of thinking that your duty of care to workers is lower.

 

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

If there is one issue that employers are particularly concerned about at the moment, it is the treatment of the extremely vulnerable.

There are two sides to the problem – situations where either the employer or the employee does not want to come onto site, and those where either party is desperate for them to return to work. Sadly, at the moment, there are often situations where whichever one side wants, the other is very nervous about.

Much has been written about shielding, which officially ended on 31st July, and employers’ duty of care to all of their employees, particularly to the clinically extremely vulnerable, to whom the employer has an even higher duty of care as this virus presents a serious and imminent danger to health.

The extremely vulnerable are clinically defined, those having an illness or a condition that would make them particularly susceptible to a coronavirus infection, and those over 70.

Since 31st July, it has been a decision for both sides, employer and employee, to make between them as to where an employee can work, and whether this is feasible. It is perfectly acceptable for the clinically extremely vulnerable to attend work, but the workplace must have been properly risk assessed, and be well enough organised for them to do so safely.

The vulnerable are also expected to work. We would advise employers to continue to talk to employees with less severe health issues than the clinically extremely vulnerable. Many of them are anxious about being at work, yet some are keen to remain working in one way or another.

The same applies to employees that live with, or support, vulnerable members of their family, as it is apparent that there are many misconceptions about what they should do.

The Government also has better data on new infections, and since the recent lockdown has introduced local COVID alert levels, with rules and advice based on the level of risk in a local area, known as the 3-tier approach.

We recommend that employers undertake an individual risk assessment with each affected employee. This risk assessment would not only identify how safe the COVID secure work environment is for them, but specify other control measures that might be needed in their case.

Such measures could include:

  • Screening and ventilation around their workstation;
  • Moving them to a different role where perhaps they are less customer facing, or have less interaction with other members of staff;
  • Allowing them to bring their own facemask into work to reduce their exposure;
  • Temporarily giving them different duties, which could be performed from home;
  • Changing their hours or shift patterns so they avoid crowded public transport, or interaction with colleagues;

Every situation will be different, hence the need for an individual risk assessment. The Government has said that in cases where furloughing is not possible, SSP is the fall-back position. Harsh, because SSP is less than £100 a week, but better than nothing at all.

Even before 1st August, we were being asked how to handle the clinically extremely vulnerable employees who want to return to work. Is it a request that an employer has to grant?

Once again, it will depend on the circumstances of the individual, and the situation at work. If the employer, having carried out an individual risk assessment with the person, deems it safe, then the employee can return. It will mean implementing appropriate and possibly additional control measures.

If, on the other hand, the employer still feels that there is too high a risk to the individual, then they may have to gently suggest, or insist, they remain at home, explaining that they would be failing in their duty of care as an employer, to let them back into an environment that currently has too high a risk to them. Nor can an employer ask the employee to indemnify them against the risk if they are allowed back to work. This is a meaningless act, as the employer cannot discharge their health and safety responsibilities solely to the employee.

It is a difficult balance of risk for employers and employees, especially where some employees feel that their mental well-being is suffering more than their health by being kept at home.

And while some employers/Managers are extremely keen to see a full team once again, remember the Government’s continuous guidance – work from home wherever it is possible.

This is not simply a question of protecting the individual by keeping them at home, it reduces the demand on public transport and the transport network, and reduces the number of interactions between travelling employees before they even get to the workplace. Especially during times of high infection, such prudence has proved instrumental in managing the current outbreak.

No one is advised to follow formal shielding advice again, unless they receive a new shielding notification advising them to do so. From now on, refer employees to the new local COVID alert levels for your area. If employees are required to travel into an area at a different local COVID alert level (for example to go to work), they should follow the guidance for whichever area has the higher alert level.

Work advice for clinically extremely vulnerable people at all local COVID alert levels
Everyone is currently advised to work from home where feasible.

If people need support to work at home, or in the workplace, they can apply to Access to Work, who will provide support for the disability-related extra costs of working that are beyond standard reasonable adjustments an employer must provide. Such people are very likely to be disabled. Access to Work is a Government organisation who do much good work, advising on, and supporting reasonable adjustments, to keep people in work or get them back to work. Failure to use them may be held against employers who do not attempt to make adjustments.

If they cannot work from home, they can still go to work.

Employers are required to take steps to reduce the risk of exposure to COVID-19 in the workplace, and should be able to explain the measures they have put in place to keep them safe at work, and provide the risk assessments to support their rules.

There are three ‘threats’ to employers who are not managing the risk of COVID-19, in that the Health and Safety Executive (HSE) and local authorities can take action ranging from ‘specific’ advice’, issuing enforcement notices, stopping certain work practices until they are made safe. The second threat for flagrant breaches of the rules and disregard for employees’ welfare is prosecution. Finally, there is always the possibility of a personal injury claim for employers whose negligence causes someone to suffer serious illness.

So, in summary, as we have oft repeated this mantra:

  • judge each case by its merits;
  • talk to each and any employee whose health (and/or age) means they are vulnerable;
  • be reasonable when agreeing what actions to take; and
  • document what is done;

 

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

The following three interactive courses are a must for new Managers, as well as being good refreshers for experienced Managers, as case law and good management practices continue to evolve over time.  They will cover much of the knowledge and many of the skills needed to be a successful Manager of people.

How has COVID-19 Changed Employment – “What does the employment relationship look like now”

Newmarket – 30th June 2021 & Norwich – 13th July 2021

The employment landscape post Covid-19 will look somewhat different from that of pre Covid-19. We’ve all learnt many new words and/or terms that have become common place in our everyday lives.

Organisations have had to adapt to new working practices, with some now considering not returning to the old.

While not definitive, our course will look to cover a range of topics, including: how have employment practices changed; Home and flexible working; Post Brexit challenges; Lay-off & short-time working; Video conferencing; Returning to the office; Vaccinations; plus others.

Discipline & Dismissal – “When Can and Should you Dismiss”

Norwich – 19th October 2021

Dismissing staff can have serious implications if done badly.  The law requires that you have a fair reason for dismissal (e.g. restructuring is not necessarily redundancy), and that you follow fair processes.

This course will cover the differences between a fair and unfair dismissal; why following the ACAS code and internal procedures is essential; and the key practical issues to consider when dealing with discipline, dismissal and redundancy processes.  The aim of the course is to encourage delegates to follow proper procedures and apply sound judgement.

We have designed the course to suit those who are new to Management, as well as being a worthwhile refresher for the experienced Manager looking to enhance their existing skills, and wants to be more successful by learning new/different approaches.

Performance Management – “Acknowledging Good and Dealing with Poor”

Newmarket – 10th November 2021 & Norwich – 23rd February 2022

How do you decide that someone is performing well?  If they are, how do you encourage them to be even better, and if not, what do you do about it?  These are challenges which Managers face on a daily basis.

This course helps Managers with these issues by having realistic expectations on what people are capable of doing; knowing when to use performance improvement plans and programmes for personal development; whilst continuing to motivate and encourage good performers.

Employment Myths – “Surprising Facts about What you Can & Can’t Do”

Norwich – 30th November 2021 & Newmarket – 22nd March 2022

Managing people often strikes fear and dread into Managers, but it does not have to be that way.  By coming along to our short, but informative course, Managers will gain the confidence needed to manage people, and most importantly, avoid finding themselves on the wrong side of employment law – which can be costly!

Based on our extensive HR experience, we will talk about the most misguided beliefs that Managers hold as fact about employment law.  We will also discuss the most frequent mistakes Managers make when dealing with staff; as well as difficulties created through lack of documentation, or not knowing or following their own employment procedures.

We will identify the key employment policies and why Managers need to be familiar with them.  This should also assist Managers to understand the importance of why these policies need to be applied correctly.

The course will debunk myths to make sure you avoid fear and confusion when dealing with staffing issues.  We’re here to give you the confidence to manage people effectively and we’ll do this through fun interactive sessions and an extensive quiz to help reinforce the learning.

We have designed the course to suit those who are new to Management, as well as being a worthwhile refresher for the experienced Manager, looking to enhance their knowledge.

All our training courses are highly participative, practical in content, and are intended to challenge our delegates into recognising there are always alternative ways of dealing with people and/or situations.

An Employment Tribunal has determined that the protected characteristic ‘gender reassignment’ under the Equality Act 2010 includes protection for non-binary individuals.

Peter Stanway, our BackupHR™ legal expert comments:

Protection under the Equality Act has looked at the concept of gender identity through a binary, medical lens, requiring an individual to have gone through, or be proposing to go through, a formal gender reassignment process. For several years, this view has been challenged as many people either do not identify traditionally, i.e. male or female, or are not transitioning, or going through a gender res-assignment process. A recent judgment moves away from the traditional approach, determining that protection can extend to those who identify as non-binary.

An Employment Judge in Birmingham has given judgment in the case of Taylor v Jaguar Land Rover (JLR), who was “subjected to insults and abusive jokes at work”, and had rest room access restricted. She received little support from the business.

Ms Taylor worked as an engineer at JLR for almost 20 years. She previously presented as male but in 2017, began identifying as gender fluid/non-binary and from which time, she usually dressed in women’s clothing.

She brought claims of harassment, direct discrimination and victimisation on the ground of gender reassignment. JLR argued Ms Taylor, did not fall within the definition of gender reassignment under s.7 of the Equality Act 2010. The Judge did not agree, and furthermore, considered it appropriate to award aggravated damages, because of the appalling way she was treated and the insensitive approach taken by JLR in defending the proceedings.

The implication of this judgment is that other complex gender identities may also fall within the definition of gender reassignment under s.7 of the 2010 Act, where individuals propose to undergo a process of moving their gender identity away from their birth gender.

It is not legally binding, so the legal position remains unclear; employers should, however, be alert to this judgment and begin to take steps to review their workplace, including their practices and procedures, to ensure that they would not be at risk of a similar discrimination claim. A main consideration should be the training that their employees receive on the anti-discrimination ethos of the organisation, which should contain an instruction not to harass colleagues. The language of gender diversity may present unfamiliar territory for many; however, it is of vital importance that employers continue to educate themselves, and their staff, to ensure they promote an understanding workplace, in line with modern standards around equality and inclusion.

Other Actions

  • Dress codes can be worded neutrally, rather than having separate codes for men and women. This may help avoid a host of issues, including not just the exclusion of non-binary employees, but other potential discrimination claims.
  • Ensure that employee records include diverse gender options (not just ‘male’ or ‘female’).
  • Where an employee has advised that they identify as a different gender, it is important to take the time to understand as much as you can about the employee’s situation. Confusion can arise from misunderstanding about terminology and consequent misuse of terms.
  • Arrange a meeting with the individual, to start discussions around their identity. Each person will have a different experience, so each situation should be addressed individually.  Seek to learn more about their background, and it will provide a platform to explore issues, such as the pronouns or set of pronouns which others should use in relation to them.
  • Ask the individual how and what they feel comfortable talking to their work colleagues about regarding their transition.  A better understanding early on will help others to be more supportive, and hopefully may help to reduce curious but potentially intrusive, and hence, unwanted questions or comments.  
  • Assess any practical or logistical barriers, e.g. the need for gender-neutral toilets/ facilities. This can be a sensitive/controversial issue, so should be handled sensitively, considering whether employee consultation is appropriate.

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.