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

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

A short introduction to IR35

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

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

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

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

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

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

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

Practical Implications of the off-payroll working rules

  • Determining deemed employment is not always clear cut, and it is often necessary to seek legal advice. Although there is no obligation to use the Government’s new online tool (the CEST) for this purpose, the advantage of doing so is that HMRC will be bound by the output of the service, unless it has been obtained fraudulently. The HMRC have introduced a new tool as the previous one was subject to major criticisms that it asked the wrong questions, and seemed ‘rigged’ to produce ‘guidance’ that the individual PSC should be paying income tax. It is better but still not conclusive in three respects :-
    • It regularly produces an ‘inconclusive result’.
    • CEST currently seeks to produce an answer out of a few questions on what can be a very complex and nuanced indicators.
    • The HMRC still reserve the right to challenge the ‘decision’ if they believe that it was not answered honestly/accurately.
  • Informing the Agency/PSC about the determination of deemed employment. Having determined employment status, the client must inform both the PSC/contractor and, if applicable, the Agency which pays the PSC, of the outcome of the review and, if requested, provide a written response as to how the conclusion on employment status was reached. The client needs a clear process to comply with this information requirement.
  • Extra costs. A key consequence of the new rules is that the client is responsible for an additional cost of 13.8% employer NICs and, if applicable, 0.5% apprenticeship levy on top of the payment. Broadly, the levy is 0.5% of pay bills over £3 million in the relevant tax year. The client is not entitled to deduct these costs from the fee payable to the PSC. The contractor, on the other hand, is likely to be in a better position (although this depends on the circumstances) as the PSC no longer has to account for PAYE and NICs on the fee received from the Agency. For a contractor who formerly considered themselves to be self-employed and that IR35 did not apply, deduction of payroll taxes will result in a significant reduction in profit for the PSC that would otherwise have been available to draw as dividends.
  • Pressure to re-negotiate contracts between the Client and the PSC – due to these extra costs, it is likely that the client will wish to re-consider the contractual terms :-
    • Where possible the client may wish to re-negotiate its fee with the PSC/contractor to take account of the transfer of NIC liability to the client.
    • The client may consider getting the contractor to abandon their PSC and supply their services instead through an umbrella company, or on a fixed term employment contract.

The Consequences for the Client of getting it wrong

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

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

What Next?

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

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

Issues

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

No change for “Small” Organisations

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

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

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

Conclusion

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

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

While the chaos of the coronavirus pandemic engulfs us all, it is easy to forget that normal life continues, and legal cases continue to be decided and decisions published.

Two enormously important cases this week, involving two of our largest employers, have big implications for the relationship between employers and employees, especially with regards to Vicarious Liability.

Peter Stanway, our BackupHR™ legal expert comments:

Vicarious Liability has often sent a shudder down the spine of many employers. It is the legal principle that assigns liability for an injurious act to a person who, while they did not cause the injury, has a particular legal relationship to the person who did act negligently. Typically, it relates to the liability that employers have for their employees’ actions while they are at work.

Morrisons

The first case involved Morrisons. An employee in their Internal Audit Department had borne a grudge against the company ever since he had received a warning about his conduct.

So, when he had access to the payroll for around 120,000 employees, he had taken a copy of the data file. The following Sunday, in an act of revenge, he sent a copy of this to 3 national newspapers and published all of the data online. He was sent to prison for his actions.

A class action had been taken by around 9,000 affected employees against the company. This alleged that their employer was  were vicariously liable for this data breach. In other words, Morrisons were as responsible for the data breach as if they had ordered it themselves. Initial judgement had gone against Morrisons, and it had been upheld in the Court of Appeal, who amongst other legal reasoning said that this is why employers have insurance!

All of this had prompted real panic among employers, who could now be held to ransom by disgruntled or misguided employees. They could simply release data they had stolen and give the company a massive headache and a big damages bill.

The Supreme Court, however, disagreed with both judgements. We won’t bore you with all of the legal arguments, but it boiled down to the argument that employers were liable for the action of employees when they were legitimately pursuing the company’s interests. In other words, because this was a spiteful act of vengeance by the employee and well beyond what was expected of him during his normal duties, the company could not be held liable.

This does not mean that every data breach accidentally released by an employee cannot be found to be the company’s fault. In fact, the judgement warned companies that it did not let them off the hook, but the case in point was a particular set of circumstances, where the employee was not even pretending to pursue the company’s best interests.

Barclays

In a second case this week, Barclays Bank also won an appeal in the Supreme Court against its own employees. This case was about deciding if the company could be held liable for the actions of other companies or individuals who were employed to do its work.

The case was brought against a doctor who ran his own company, providing pre-employment health screening for employees. It was alleged that the doctor, who died some time ago, had performed inappropriate intimate examinations of female employees over and above that required for the health checks requested.

Originally it was held that as the doctor was an agent of the bank, and asked to do its business the bank could be found liable, vicariously, for his behaviour.

Again the Supreme Court disagreed. And they said that an organisation (or person) can only be held vicariously liable for the acts of someone who is not his or her employee, provided the relationship between them is sufficiently akin or analogous to employment.

So while an organisation is responsible for its employees, they are only responsible for others if they look like and act like employees. Independent contractors are not employees and the bank cannot be responsible for their actions.

The doctor in this case ran his own business, could decide whether or not to do the checks, was free to do them when he wanted rather than when the bank insisted and so on. In other words he was an independent supplier to the bank with his own insurance, and his own liability through his affairs.

An earlier judgement had suggested using a similar test that HMRC uses to identify workers to decide if the organisation is liable for their behaviour. Meaning those that are not fully employees, but look quite like them – organisations like Deliveroo and Uber come to mind.

The Supreme Court said that while it was tempting to tidy up the law so that the two were aligned, the common law principle of vicarious liability was well established and did not need to be aligned to anything else.

Important Cases

Both decisions are highly significant. Had either been upheld, then the notion of vicarious liability would have been extended, and presumably subsequent decisions could have extended it even further.

The law has now been established that organisations can only be held liable for the actions of their employees if:

  • They are seen as employees or workers of the company, not independent contractors;
  • They are pursuing the company’s legitimate interests;
  • They are not pursuing their own misguided agenda;

Heed the Supreme Court’s warnings, however. You do need to recognise that in most circumstances the actions that your employees perform while they are working are also your responsibility.

There are numerous areas where this applies, one of the most overlooked is employees using their own cars to do the company’s business. If the car is not properly serviced, nor properly insured, then the company could well find itself liable if the employee is involved in an accident.

Actions

  • Ensure that self-employed contractors have adequate insurance and insofar as you can that they are professional and monitored.
  • Make sure that you have systems in place which make it difficult for employees to cause damage which will reflect badly on you.
  • Check that your insurance is adequate because despite these cases, judges will still have sympathy for victims and want to offer some sort of recompense.

 

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.

 

Important – do not forget

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

Statutory Figures

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

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

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

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

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

Contracts of Employment

From 1st April 2020, all employers must:

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

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

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

Other Changes

Agency Workers

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

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

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

Holiday Pay Calculations

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

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

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

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

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

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

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

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

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

Not explaining the true reasons behind the Dismissal / Redundancy

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

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

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

Redundancy

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

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

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

Statutory Trial periods

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

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

Reorganisations and SOSR

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

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

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

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

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

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

Consultation

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

Change

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

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

There are three options open to an employer:

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

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

A Common Approach to ‘Restructuring’

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

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

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

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

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

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

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

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

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

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

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

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

Negative considerations for employers include:

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

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

Common Hazards associated with Homeworking

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

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

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

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

Risk Assessments – their application to Homeworkers

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

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

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

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

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

Possible Health Problems

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

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

Display Screen Equipment

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

Control measures:

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

Electricity

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

Control measures:

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

Manual Handling of Office Equipment

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

Control measures:

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

Slips, Trips and Falls

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

Typical control measures:

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

Isolation

Homeworking may lead to mental health conditions.

Typical control measures:

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

The Social Side

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

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

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

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

Controlling the Risks

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

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

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

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

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

Suzy’s Charter for Workplace Safety

1. Embed a Workplace Personal Safety Culture

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

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

2. Implement Robust Risk Assessments

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

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

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

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

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

3. Provide Robust Reporting Procedures

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

4. Provide Personal Safety Training

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

5. Implement a Tracing System

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

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

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

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

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

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

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

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

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

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

HSE Guidance on Lone Working:

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

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

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

We would add a few additional tips for employers:

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

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

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

Mental health is becoming an increasingly high-profile issue within the working environment.  Helping to develop resilience techniques is one approach that many employers are increasingly focusing on.

Resilience can be defined as the capacity to recover quickly from difficulties, because it is rare for individuals never to be confronted with adversity or challenging circumstances during the course of their lifetime. People who are resilient tend to harness their inner strengths and resources, to rebound quickly and more fully from setbacks. It can help people to boost their levels of confidence and wellbeing. ‘Resilience is the process of adapting well in the face of adversity, trauma, tragedy, threats or significant sources of stress.’ American Psychological Association.  However, my personal favourite definition of resilience is by Vivian Kamori who says  ‘Life is not about how fast you run, or how high you climb, but how well you bounce’.

Contrary to popular belief, resilience is not something that you either have or don’t have; we do not have a ‘fixed level’, it can be developed. Of course, there are links between resilience and personality; some people will naturally have more self-belief, greater energy levels, or a more positive outlook on life. Part of the reason dialogue on resilience has entered the mainstream is because it complements contemporary definitions of wellbeing. Wellbeing, as we now know it, favours holistic models of health, many of which existed for centuries, e.g. Mindfulness, but have been re-discovered.

Resilience is not some magical inherent personality trait; it takes hard work to overcome hardship, but there is a growing body of evidence that resilience can be cultivated.

Optimism  and Health

Some of the factors that make a person resilient are a positive attitude, optimism, regulating emotions, and the ability to see failure as a form of helpful feedback. Optimists also tend to experience less stress than pessimists or realists and because they believe in themselves and their abilities, they expect good things to happen. Negative events are seen as minor setbacks to be easily overcome, and view positive events as evidence of further good things to come. Believing in themselves, they also take more risks and create more positive events in their lives. Research shows that optimism helps blunt the impact of stress on the mind and body after bad experiences. Optimists don’t give up as easily as pessimists, they are persistent, and they are more likely to achieve success because of it.

One of the purposes of negative emotions, such as fear, is to narrow our thinking to deal only with an immediate threat. We are programmed to see danger in order to survive, and this is related to what is known as “attentional bias”, where we filter out everything except what we are concentrating on. It is why most of us stop talking when we are driving through a very challenging situation. This is instinctive, and is built into us in order to keep us safe. However, if individuals feel threatened they will close down and become less creative and productive. These negative emotions shut down the part of our brain that is responsible for logical thinking. This restricts our thinking power, and traps us into a negative spiral of inaccurate perceptions and misinterpretations. This can often be seen in the workplace in times of crisis when, arguably, creativity is necessary but not ‘natural’.

Long term research showed that people who had written upbeat diaries when they were young, outlived their more negative peers by an average of 10 years. Those who were able to express at least some positive emotions were more resilient and less likely to slip into despair than those who were overcome by negativity.  Giving up smoking can increase your life span by three to four years so negative thinking is over twice as dangerous as smoking! Other studies have linked a pessimistic explanatory style with higher rates of infectious disease, poor health, and earlier mortality. Studies have shown optimistic breast cancer patients having better health outcomes than pessimistic and hopeless patients.

The conclusion from the research was that this is not just down to positive thinking, but also because optimism allows us to engage in activities that put us in the way of opportunity which, in turn, gives us the resilience to not accept defeat. The more positive emotions we have, the more we can build up a well of positivity which can be accessed in times of adversity. Positivity improves our ability to deal with adversity. There are grounds for believing that deliberately changing our thinking patterns will positively affect our abilities to deal with adversity. Hardships are seen as “learning experiences” by optimists, and even the most miserable day always holds the promise for them that “tomorrow will probably be better.”

Optimism helps to improve health in several ways.

  • By reducing the sense of helplessness that tends to set in when people feel out of control, optimism helps to motivate people to take constructive action (primary control) they otherwise would not bother with.
  • By making it possible to believe that bad situations can improve, optimism motivates people to change those bad situations (e.g. to stick to health regimens and to seek health advice, addressing life problems early on before they spiral out of control). By nipping problems in the bud before they become entrenched, optimists end up (on average) having to solve fewer difficult life problems than do pessimists.
  • Optimism also improves a person’s ability to develop friendships and supportive relationships because it motivates people to think that other people will like them. Having friends and social supports helps reduce people’s risk for disease, particularly the recurrence of chronic disorders.
  • Finally, optimism affects the body at a physical level by influencing the immune system; Optimists catch fewer contagious disease than pessimists. People who are habitually pessimistic tend to have lower immune activity than people who are optimistic. This is true regardless of physical health or temporary emotional states.

Positive thinking does not mean ignoring the problem in order to focus on positive outcomes. It means understanding that setbacks are temporary, and that you have the skills and abilities to combat your challenges. What you are dealing with may be difficult, but it’s important to remain hopeful and positive about a brighter future.

Optimism – Training

There are ways to train ourselves to think more often like an optimist.

Distraction

Distraction involves thinking of something else when a negative thought enters your mind. For instance, if you want to redirect your attention, you can first use a thought stopping technique. Some people keep an elastic band around their wrist, which they snap when they find themselves ruminating about some negative situation. This kind of approach can be effective when combined with an attention shifting exercise. For example, after stopping the negative thought, pick up a small object and study it intensely. Notice its shape and composition; think about its various uses and so on. This will help to completely shift attention from the negative thought pattern

Disputation

Pessimism is a habit as much as it is anything else. Like any habit, it can be changed if one is willing to put in the effort. The best method for dealing with habitual pessimism is to learn how to dispute (argue against) a negative interpretation of events. This is about arguing with yourself to. While distraction is good first aid when dealing with negative thoughts, disputation is effective in properly addressing them.

The disputing process has several steps involving learning to identify which thoughts are pessimistic thoughts; a process requiring some self-awareness.

The four elements of effective disputation are:

  1. Finding evidence to counter pessimistic beliefs. The best way to dispute a negative belief is to show that it is factually incorrect. Pessimistic responses are often over-reactions led by emotions, rather than a sound evidence base.
  2. Finding alternative explanations. Most events have many causes. Pessimists have the habit of latching onto the most pervasive, most permanent and most personal. It is good to consider if there are any less destructive causes and then focus on changeable, specific and non-personal explanations.
  3. Exploring the implications of your pessimistic beliefs. Where you have rational evidence that your negative explanation is true we need to reconsider the implications of this belief. This is sometimes called de-catastrophising.
  4. Examining the usefulness of these beliefs. Sometimes the consequences of holding a belief matter more than the truth of that belief.

Conclusions

Just as it is important to develop coping-mechanisms in order to deal with stress and uncertainty, fostering the ability to cope with crises and difficulties is equally important. In most organisation, it is virtually inevitable that at some point, things will not go to plan. Setbacks occur, and there are bad days to go alongside the good ones. It is of critical importance, therefore, to be able to recover from such setbacks and not to be defeated. A healthy amount of self-confidence and ‘thick-skinned’ nature vis-à-vis criticism and negative feedback can also prove vital for overcoming hard times. Resilience is as central to wellbeing as it is to team and organisational performance.

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

There will be a number of important employment law developments in 2020. 

National Minimum Wage Rate Increases

The National Living Wage is to rise by 6.2% in what the Government says is “the biggest cash increase ever”. The rise is more than four times the rate of inflation.

The Government will increase the National Living Wage (NLW), which applies to workers aged 25 and over, from £8.21 per hour to £8.72 from 1st April 2020.

At the same time, the National Minimum Wage (NMW) rates will be increased as follows:

  • from £7.70 to £8.20 to per hour for 21 to 24 year olds;
  • from £6.15 to £6.45 per hour for 18 to 20 year olds;
  • from £4.35 to £4.55 per hour for 16 & 17 year olds; and
  • from £3.90 to £4.15 per hour for apprentices;

If you provide some form of staff housing as part of the contractual arrangements, then the daily accommodation offset will apply. It has not been announced whether it will change from the current rate of £7.55 per day.

The rates for Statutory Redundancy Pay, Statutory Guarantee Pay, Lower and Upper Earning Levels and Tribunal Awards are not yet announced; we will send an update as soon as the new rates are published. They are expected in March.

Increased Statutory Rates

The weekly rate for Statutory Sick Pay is expected to increase from £94.25 to £95.85 from 6th April 2020.

The current weekly rate of Statutory Maternity Pay is £148.68 or 90% of the employee’s average weekly earnings if this figure is less than the statutory rate. This rate is rising to £151.20 from 5th April 2020.

Also on 5th April 2020, the rates of Statutory Paternity Pay, Statutory Adoption Pay and Statutory Shared Parental Pay will also go up from £148.68 to £151.20 (or 90% of the employee’s average weekly earnings if this is less than the statutory rate).

Statement of Main Terms (Contracts of Employment)

As part of the provisions of the Good Work Plan, these will become a day one right for both employees and workers from 6th April 2020. Previously, employers have had two months in which to provide this to their employees, meaning that they will need to have the document ready straightaway going forward. Contracts will also need to contain additional details, which are outlined below:

  • the terms and conditions relating to work will extend to cover terms relating to normal hours of work, days of the week the worker will be required to work and whether these days/hours may vary;
  • terms relating to other forms of paid leave, such as family-friendly leave;
  • details of other employee benefits, not just those relating to pay, such as benefits in kind or financial benefits;
  • terms about probation periods, including those relating to length & conditions;
  • details of training provision and requirements;

Failure to provide a statement, or where a statement is provided which does not contain the required information, could lead to the employee making a reference to a Tribunal to determine their terms of employment. Additionally, an employee may receive compensation for a failure to be provided with a statement where they win an alternative claim at the Employment Tribunal. We have been advising our clients to do this for many years because it avoids uncertainty. We recommend that it is sent along with your Handbook, with the offer letter, so avoiding slip ups on day one, and also because it looks professional.  Therefore, if you are not currently issuing contracts and Handbooks prior to employment, this will now need to be part of the day one induction process.

Extension of the Holiday Pay Reference Period

As part of another provision of the Good Work Plan, the holiday pay reference period, which is used to calculate the average pay of those who work irregular/ variable hours, will be extended from 12 to 52 weeks from 6th April 2020. The aim of this development is to provide a fairer approach to holiday pay when workers are working flexible hours. It will be important for employers to keep track of employees’ working time throughout the year, including overtime, to ensure they are correctly remunerated whilst on annual leave. This may make it easier for some employers to calculate out average holiday pay, especially where pay varies seasonally. It is believed that the change is to the default position of 12 weeks, so we are not recommending any change until the law is clarified.

Agency Workers

From 6th April 2020, agency workers will have a right to receive from the agency a document known as a “Key Facts Page”. This document must contain specific details about their basic terms, including the minimum rate of pay they can expect and how they will be paid. This will be similar to a contract with key information to help them make informed choices about the work they accept. This document is required to clarify specific matters, including the type of contract the worker is employed under, and their minimum rate of pay. It must be provided on Day One.

Employers and agencies will also no longer be able to make use of Swedish derogation contracts as these contracts, which allow employers to avoid providing agency workers with equal pay after 12 weeks of an assignment, will become unlawful. Once in force, all agency workers will become entitled to equality of pay, when compared to comparable full-time employees, once they reach 12 weeks’ service within one assignment. Employment businesses will have to notify their agency workers of this change by providing them with a statement by 30th April 2020.

Parental Bereavement Leave

The right to parental bereavement leave will also become effective in April 2020. Although an exact date has still not been confirmed, we know that qualifying parents will be entitled to two weeks of paid bereavement leave following the death of a child under the age of 18. The weekly rate will be the same as the other family friendly statutory rates of SMP, paternity leave etc. The Government consultation explained that ”bereaved parent” will be defined based on the employee’s caring responsibilities for the child to avoid excluding those who are not the child’s legal parents. To qualify, individuals aside from direct parents will need to have the following parental caring responsibilities for the child: adoptive parents, legal guardians, those with court orders providing daily care responsibilities, foster parents, kinship carers. 

Public Holidays 2010

To mark the 75th anniversary of the day that Nazi Germany surrendered (VE Day), the Government has decided to move May Day from its usual first Monday in May spot. The holiday will take place on Friday 8th May, repeating the move in 1995 when it was changed to mark the 50th anniversary. The decision was announced in June 2019. Unfortunately, the message failed to reach many publishers in time and, as a result, millions of diaries and calendars have been sold carrying the wrong date. Travel firms have already noted a surge in bookings for the “incorrect” date with people clearly expecting to be on holiday on the Monday. This will leave some employees reliant on either the goodwill of the airline or travel company with regard to making changes, or they will need to talk to their employer.

The Government has reminded everyone that employers are not required to give Bank/Public Holidays as paid leave, and can choose to include them as part of a worker’s statutory annual leave. Employees often incorrectly feel that they have the right to paid time off on Bank/Public Holidays. However, this will be down to the wording of their employment contracts.

As the Government has advised, employers may require staff to work on Bank/Public Holidays providing they still receive the appropriate amount of annual leave in return. Employers will need to decide on their approach, specifically whether they will let staff take the Friday off instead, or insist that the workplace is closed on Monday as in previous years. This needs to be communicated fully as soon as possible.

Additional Developments

The Government are still sort of committed to streamlining the employment status tests, so they are the same for employment and tax purposes, to avoid employers misclassifying employees/workers as self-employed. There will be a significant change with the extension of IR35 to the private sector, and we will be notifying clients of this in more detail in our next Client Newsletter.

Changes, such as CEO pay reporting, will only affect those clients who employ more than 250 employees, thus classing them as large employers.

Summary

Even though the Government is still embroiled with issues surrounding Brexit, some of the changes listed above are actually of real significance so are not be ignored.

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

In the Supreme Court Judgment of Newcastle Hospitals NHS Trust v Haywood, it was held that there is a term implied in all employment contracts that written notice only applies when it is read (if the contract does not spell out something different).

Mrs Haywood had no express term in her contract as to how written notice was to be given, and in terms of when it ran. The Trust issued a written notice of dismissal by recorded delivery. If the written notice of dismissal was taken to run from 27 April 2011, she would receive a non-actuarially reduced early retirement pension (but not if notice was received before 27 April). She was away when the letter was sent on 20 April. Her father in law collected the letter from the post office on 26 April, and she read it on her return home on 27 April 2011.

Peter Stanway, our BackupHR™ legal expert comments :

The Supreme Court held that notice ran from 27 April 2011, as Mrs Haywood did not have a reasonable opportunity of reading it before then.

This decision is about the common law position as to when notice of termination takes effect. In Gisda Cyf v Barratt in 2010, the Supreme Court had previously held that the “effective date of termination” for the purpose of unfair dismissal law was the date on which the employee opened and read the letter, or had a reasonable opportunity of doing so. However, the Supreme Court had been careful to limit that decision to the interpretation of the statute in question.

Implications

Employers who wish to give written notice of termination to an employee who is absent from the office will need to take additional care to ensure that it has been “communicated”. It is always clearer and safer, wherever possible, to give notice and to communicate dismissal face to face, or at least by phone. It is advisable to keep records of the date and time of any such conversation, and exactly what was said. It should be followed by written communication.

A recorded delivery letter has to be signed for, so best to do it as well as posting first class. An emailed letter (to an address the employee is using) or even a telephone call (followed up in writing) may provide added certainty of the date from which notice runs.

In this case, the NHS Trust sought to do this by using various methods, including special delivery and email. However, they did not help themselves by sending notice of termination when they knew the employee would be away from home on holiday. If you have to send a letter, make sure you follow it up with telephone calls and emails (where you can) to try to obtain confirmation that it has been received.

We recommend that documents sent by email should be accompanied by a delivery receipt and a read receipt. If the timing of communication is crucial, consider sending the letter by courier (where it can be signed for), or even instruct a specialist process server. This will make it more difficult for the employee to demonstrate that they did not personally receive it. If a particular date or timescale is important, an ‘astute’ employee may plan to be hard to contact; this should be considered.

Actions

  • Plan dismissals carefully, and consider when people may be away.
  • Ensure you know how and when they can be notified of any decision, and where written confirmation can be sent.
  • Use several methods of communication, preferably including verbal and email.
  • Be very clear about dates.
  • Include a clause in contracts about when notice is deemed to take effect.

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.

 

The Court of Appeal has held that regular overtime should be included in the calculation of holiday pay.

In the case of Flowers and others v East of England Ambulance Trust, ambulance crews argued that their voluntary overtime should count towards their ‘normal’ remuneration, and therefore be included in holiday pay. The Employment Tribunal held that ambulance workers’ non-guaranteed overtime in respect of “shift overruns” should be included in the calculation of their holiday pay, but that on the facts of this case, purely voluntary overtime did not have to be included. They had brought unlawful deductions from wages claims in relation to how the Trust calculates their holiday pay. 

The case went to the Employment Appeal Tribunal (EAT), which held that even voluntary overtime had to be included, by which time the Trust had conceded that it should pay for shift ‘overruns’ as these were not really voluntary, as they are essential to efficiency and patient safety. It was acknowledged that it is not open to any of the claimants to leave at the end of the shift if they are in the middle of an emergency call.

The Court of Appeal held that for a payment to count as “normal” remuneration, it must have been paid over a sufficient period of time. This will be a question of fact and degree. Items which are not usually paid, or are exceptional, do not count. Items that are usually paid, and regular across time, may do so. One decisive criterion or test for determining whether a particular component of pay is part of normal remuneration is where there is an “intrinsic link” between the payment, and the performance of tasks that the worker is required to carry out under their contract of employment. However, that is not the only decisive criterion or test. What matters is the overarching principle and its object. Applying these principles, the voluntary overtime worked by the claimants should have been considered in calculating their holiday pay.

Lord Justice Bean stated that voluntary overtime should be counted when calculating holiday pay if it is sufficiently regular and settled for payments made in respect of it to amount to normal remuneration. 

“… There is no separate requirement that the hours of work are compulsory under the contract.”

This decision follows the decision of the EAT in Dudley Borough Council v Willetts in 2018, which held that the issue was whether payments for voluntary overtime fell within the Working Time Directive concept of “normal remuneration”. This recent case has gone one step further than the Dudley case, and now means voluntary overtime should be included in holiday pay calculations, even if it is irregular pattern, provided it has been regularly paid over a sufficient period of time.

The CA did not address the issue of how to distinguish between voluntary overtime which was ‘sufficiently regular and settled’, or broadly regular and predictable, which should be included and that which was ‘exceptional and unforeseeable’ which was not. This leaves open further challenges on the point, not least litigation on where the line is to be drawn before voluntary overtime should be included.

Comment

This case is not authority for the proposition that all voluntary overtime must now be included in the calculation of holiday pay. Notwithstanding this point, employers should now include regular overtime and regular commission payments in their holiday pay calculations, or run the risk of a successful “unlawful deduction from wages” claim against them.

What is “regular enough” is a question of fact in each case. So, if a person works overtime irregularly, for example, where there is no predictable pattern to it, or there are big gaps between the overtime working, then employers can still argue that it is not a regular payment which should be included in holiday pay. If you have employees whose overtime is not ‘regular’ but is ‘settled’, then you may need to review your approach.

The principle that people should not be worse off when they go on holiday is difficult to argue with, but for some employers it is a financially challenging issue, and the administration of it is far from simple.

Issues Arising

Litigation Risk

Making a claim for unlawful deductions is not difficult, and has little risk to employees. It is possible to argue on the facts, and on the extent that back pay should be made, but defending such claims should be a last resort.

Reduce Exposure

It is easy to say reduce your overtime working, but we recognise that this is easier said done, with skills shortages or high workloads, but it has to be the safest way of reducing such exposure. Making it more irregular may also help.

Introduce it to a Degree

The right to be paid for non-guaranteed overtime in holiday pay applies only to holiday pay for the four weeks’ minimum annual leave under EU law, not to the additional 1.6 weeks provided for by the Working Time Regulations. Employers need to decide their policy on how to treat the additional 1.6 weeks’ statutory minimum leave, and any additional contractual entitlement.

If you decide to include pay for overtime in all holiday pay to avoid complicating the administration of payments, you still have to decide whether this is just to contractual entitlements above 4 weeks, or to also pay the extra on bank holidays which may seem even more complicated.

Calculation Period

The default position is that calculations should be based on the last 12 weeks’ pay. Many have payroll systems which make this an easy and inexpensive option. Other employers choose longer time frame to calculate average earnings, as the law permits this approach and may in future encourage it, rather than the default of the last 12 weeks default.  The problem with this approach is that it may be more expensive than taking an average period of longer than the recent few weeks/months. We have clients who take a rolling 12-month average or last year’s P60 earnings or earnings over the holiday, financial or calendar year. This means that everyone can plan what holiday pay will be paid and avoids fluctuation, particularly if taking holiday after periods of working long hours.

Individual or Group?

The law would suggest that those individuals who fall into the regular overtime working category are different to people who are not quite ‘regular’. The first person may be entitled to average pay, the second possibly not. The legal result is that employers should, therefore, take an individual approach to see which employees’ voluntary overtime qualifies as normal pay, as the time sufficiency will vary from person to person. Many employers do not want to be having to make frequent decisions about whether a particular employee has become, or ceased to be, regular in their overtime working. In those circumstances, it may be easier to say” You will get average pay, if you are a production worker, engineer or whatever category/ department”.

Other Groups

Part-timers who work extra hours are not doing overtime in the traditional sense, but they should be paid an average payment.

It is well established in case law that commission and some regular bonus payments should be reflected in holiday pay. It is likely to carry over into regular stand-by and call-out payments.

Supreme Court Appeal?

The Ambulance Trust has applied for permission to appeal to the Supreme Court. We still do not know whether such permission will be given. Employers could hope and plan for this to happen. Such an approach would have the attraction of delay, and the chance that the judges in that Court might provide more clarity, especially over the issue of sustained but not regular overtime.

If the factoring in of yet more people into average holiday pay calculations is of a concern, talk to your Consultant then we may soon know whether a further decision is pending, and would be happy to discuss how it relates to your circumstances.

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