The right to request flexible working was first introduced under the Employment Act 2002. In 2007, this was expanded to include caring for adult relatives. Under the Flexible Working Regulations 2014, it stopped being necessary to be a carer in order to be eligible.

In 2020, at the start of the Covid-19 pandemic, we were told to work from home wherever possible, and lo and behold millions of people found that they could do so, reasonably effectively and safely. As returning back to offices became possible once more, 2021 saw a further increase in requests, particularly people asking to work at home some or all of the time.

In theory, the penalty for employers getting it wrong is not big, i.e. up to 8 weeks’ pay at up to £571 per week, but there are other risks:

  • Raising a grievance
  • Leaving for a ‘better employer’
  • Claiming constructive unfair dismissal
  • Making a discrimination claim

The biggest risk is a discrimination claim with the scope for unlimited compensation.

There are positives to flexible working requests. The CIPD believe that flexible working has clear business benefits for organisations and individuals. Quality flexible working can help attract talent, improve employee job satisfaction and loyalty, reduce absenteeism, enhance wellbeing, and make businesses more responsive to change. There are many flexible working options for employees to choose from. Options are not limited to shorter hours or working from home (WFH). Alternatives include, staggered hours, flexitime, compressed hours, job sharing and hybrid working.

Hybrid working is where employees travel into the workplace for some of the week and work remotely for the remainder. This is likely to become more prevalent. It also has the benefit of allowing employers to save money by reducing their office space. We have seen a tendency for employers to come up with Hybrid Working policies and think this will be a sound defence if people request something different. This may help but policy is not one of the eight valid business reasons for saying no to a request for something which better suits the employee.

What to do

The first thing to do is to ensure that the employee has set out clearly what they want, and that they have documented how they think that any adverse effects to the employer can be overcome. Many employees overlook this stage, as their primary focus is ‘it’s all about them’.

It is advisable to follow the process set out in your Employee Handbook. The whole process should take less than 3 months, and in our experience, it usually takes much less. Unless an extension is agreed with the employee, you have 3 months from receipt to consider the request and issue a decision, and follow an appeal process if so requested. It is no longer necessary to do every stage within prescribed timescales, but we would always advise employers to be prompt and avoid unnecessary delays. If there are good reasons for delay, e.g. holidays, agree this with the employee and document it.

Unless you are simply accepting the request, a meeting should be arranged with the employee as soon as possible following receipt to discuss the request. After the meeting, you should send a letter to the employee setting out your decision and the right of appeal. An appeal meeting should be held as soon as possible after the appeal is lodged, and the outcome communicated as soon as possible following the meeting.

You must be able to justify your decision. A thorough factual investigation of the viability of the working pattern sought is key. You should gather as much information as possible to allow you to assess the request fully. Be wary of views such as ‘we do not have part time jobs’ or “it will set a precedent”, these are not valid responses.

Where a request cannot be agreed, think about other options that could be reached as a compromise solution. This is your chance to show that you are a reasonable employer with a ‘can-do’ approach to problem solving and compromise, which Tribunals will look favourably upon.

Conduct the meeting with a positive attitude which demonstrates the spirit of actively trying to reach an outcome that works for both of you. Be careful not to be dismissive (or to be seen to be dismissive) of the proposal from the outset. The purpose of the meeting is to explore the request with the employee and to consider all the options.

We have reproduced the ACAS Guidance on handling the meeting:

Discussing the request

You should set up a meeting to discuss the request with your employee before deciding.

It can help to talk about:

  • the change they’re asking for
  • why they want the change
  • any problems you see with making the change
  • any other options, if the change is not possible

It’s a good idea to hold the meeting somewhere private, where you can talk confidentially. If you cannot meet face to face, you could also discuss it over the phone.

If your employee wants to bring someone to the meeting

Your employee might ask to bring someone to a flexible request meeting, for example a co-worker or trade union representative.

There’s no legal right for them to bring someone, but it’s good practice to allow it.

Allowing the employee to bring someone can:

  • show your process is open and fair
  • make the meeting more relaxed
  • reduce anxiety or stress for your employee
  • give your employee someone to talk through their options with

Decide based on logic and the facts of each case avoiding the fear that you might ‘open a can of worms’. Just because you are able to agree the arrangement for one person does not mean you will be able to do so for another.

Ensure that a refusal falls within at least one of the prescribed business grounds. This needs to be clearly stated in your explanation of why the ground(s) apply. The prescribed business grounds are currently:

  1. the burden of additional costs;
  2. detrimental effect on ability to meet customer demand;
  3. inability to reorganise work among existing staff;
  4. inability to recruit additional staff;
  5. detrimental impact on quality;
  6. detrimental impact on performance;
  7. insufficiency of work during the periods the employee proposes to work; and
  8. planned structural changes;

We would recommend explaining all the relevant reasons not just reciting them.

Issues Arising

You might receive multiple requests within a team. Consider the potential impact of granting all of the requests. If this is not possible, then adopt a fair system to decide which requests are granted and which are not. It can be difficult for employers to achieve a balance and make fair decisions when managing multiple requests, especially when requests made for childcare reasons could be riskier to decline compared to those made for personal reasons. As requests can now be made for any reason, perhaps the fairest approach is to deal with the requests on a first come first served basis, and accept as many as are workable. However, it is always worth carrying out a ‘risk assessment’ to identify which (if any) are most likely to lead to claims against the organisation if refused and making your decision based on those risks.

Legislation does not specifically provide for the use of trial periods as such, but it remains open for an employer and employee to agree the terms on which any new arrangements are entered into, including that they will apply initially only for a set period of time and are subject to review. Trial periods can work for both parties because once agreed, the changes are a permanent change and the employee should not be allowed to make more than one request a year.

You should carefully monitor how well (or badly) it is working, and notify the employee of the outcome of the trial period. Issue a new or amended contract to reflect the new arrangement and the start date (or at least ensure there is a clearly documented variation to the contract). You should make it clear to the employee that this is a permanent change, and they can only request a further change after twelve months. Ideally, the employee should sign a copy of the revised contract which you can then retain in their personnel file.

The employee cannot insist on a trial period, although in appropriate cases an employee may be able to argue that an employer should have offered a trial period as part of dealing reasonably with their request. An employer may, therefore, need to consider using trial periods and be ready to explain why a trial period was not feasible in cases where it rejects a request. The length of a trial period should be no longer than required to make a fair assessment of the proposed arrangements.

It is well to remember our mantra:

It is a right to request, not a right to demand and receive

We would, however, advise clients to keep an open mind, and seek to solve the problem fairly and positively.

CIPD View

Sensible guidance from the CIPD Includes:

  1. Try to encourage a creative approach to flexible working for all employees – even in job roles that haven’t traditionally been seen as suitable for flexible working.
  2. Ensure full-time jobs are not squeezed into part-time hours.
  3. Ensure ongoing access to development and career conversations for flexible workers.
  4. Measure and evaluate flexible working, and learn from trials using quantitative and qualitative measures.
  5. Consider the facilitators and barriers at manager, team and individual levels.

In our experience, individual Managers can still be dismissive about whether flexible working ‘will work here’. They may lack experience of managing flexibility, have met difficulties with it in the past, or simply feel they have too few resources to make it work. Busy Managers may also resist any change that they think might be disruptive or add to their own workload. It is important to acknowledge such concerns. They need to be given positive suggestions for how to overcome them, and be able to point to possible benefits of trying a new approach. Just because you have had a negative one-off experience with flexible working, or lack confidence or trust in managing people more flexibly, this is not a good enough reason to refuse a request. Each application must be treated on its merits.

Except for pregnancy itself, requests are not confined to women. Employers need to remember that men can also bring flexible working requests, and you no longer have to be a carer of a child or relative to do so – it is about personal choice.

Flexible working is a hot political issue, with many demands for reform, so the Department for Business, Energy and Industrial Strategy published its consultation document on how the proposed overhaul would work in practice. There are several proposals under consultation: including making it a day one right to request flexible working; assessing whether the eight proscribed reasons are still valid; requiring employers to suggest alternatives if rejecting the request; and using flexible working on a temporary basis. Any change is unlikely to take effect quickly.

The CIPD has published new practical guidance on hybrid working, to supplement guidance recently published by ACAS on the same topic. Both publications were commissioned by the Government’s flexible working taskforce, which has recommended that flexible working should become the ‘default’ for all workers.

However, the pandemic has clearly demonstrated the opportunities offered by new ways of working. It is impossible to visualise things going back to the way they were. With roles where flexible working arrangements are possible, both employers and employees can reap the benefits – particularly around attracting and retaining diverse talent, and living up to corporate culture and values. The expectations of both employees and employers have shifted. Employers who can offer a full range of flexible working models and not just pay lip service to the statutory regime will be seen as progressive and looked on favourably by those who value these arrangements. Flexible working has now become a vital tool in attracting and retaining the best talent.

 

 

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

The President of the Employment Tribunals has issued the annual update to the Vento guidelines, setting out the bands of awards for injury to feelings, payable in cases of discrimination at work, adjusted for inflation.

The new bands are: –

  • lower band: £900 to £9,900 (less serious cases)
  • middle band: £9,900 to £29,600
  • upper band: £29,600 to £49,300 (the most serious cases)

Awards in the most exceptional cases may exceed £49,300. These updated figures apply to cases presented on or after 6 April 2022.

The lower band applies to ‘less serious cases’ where the act of discrimination is a one-off or isolated occurrence. The middle band applies to serious cases that do not fall within the higher band. The higher band applies to the most serious cases, for example, where there has been a lengthy campaign of discrimination and/or harassment.

Peter Stanway, our BackupHR™ legal expert comments:

As yet we know of no cases in the exceptionally serious category.  Employment Tribunals have great flexibility to fix the compensation at what is fair and just in each case. They will consider all the evidence, including the claimant’s evidence about the impact of the discrimination on them, before deciding an appropriate award.

While the tribunal will assess the award of damages for injury to feelings in an objective way, the perception and the individual reaction of the claimant will be an important factor for the court to consider. The more upsetting the conduct is to the individual, the more seriously the discrimination is likely to be viewed, and the higher the award for injury to feelings. Where a one-off act of discrimination is particularly humiliating or serious, and the victim suffers serious consequences as a result, an award in the higher bands could be justified. A tribunal would require quite detailed evidence about the seriousness, before it would be prepared to award a high figure.

Claimants sometimes have unrealistic ideas about how much money they will be awarded.  Cases that make the news are there precisely because they are so unusual. A tribunal will take a measured and methodical approach when they assess how much to award, but it is hardly a science. There is little in the way of hard evidence about what is normal, but we believe that most awards fall into the lower category. According to the pressure group Working Families, a typical award for injury to feelings for maternity cases was about £5,000. We have however seen a few cases in the upper band this year.

An award for injury to feelings is meant to reflect how upset the employer made the claimant feel, not to punish the employer for how badly they have behaved. Fair treatment is a moral and legal duty, and employers have a responsibility to investigate and respond to any issue they become aware of, as well as taking all reasonable measures to protect employees from harassment and discrimination.

Having a strong and unambiguous equal opportunity policy is a powerful tool for preventing discrimination and harassment in the workplace. In addition to developing the right policy for their workplace, employers also need to make sure that everyone understands the policy (evidence is shown by training records) and that it operates effectively in practice. Policies and practices that amount to indirect racial discrimination may be justified only when the policy or practice is a proportionate way of achieving a legitimate business aim

Actions

  • Educate all your workers about discrimination through meaningful training
  • Encourage workers to respect each other’s differences
  • Respond to any evidence or complaints of inappropriate behaviour
  • Deal with any complaints of discrimination promptly and confidentially.

It is essential for employers to be proactive and prevent discrimination from occurring in the first place. Claims are difficult and expensive to defend, so best avoided.

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 Pandemic has made many employers more aware than ever of the clear overlap between employment issues with health and safety practices.

As we start to gradually return to a more normal working life, employers need to be aware of what is on the changing health and safety horizon, post pandemic.

PPE Regulations

An important update to regulations concerns PPE. A term much used during the pandemic.  Personal Protective Equipment applies in many other areas, aside from protecting people from infection.

The PPE Regulations, 1992 currently require that every employer provide suitable PPE to “employees” who may be exposed to a risk to their health or safety while at work. The amended regulations mean that from April, this duty will be extended to ensure that agency and temporary workers – so-called “limb (b)” workers – are also covered by the legislation.

The definition of “worker” can be found in the Employment Rights Act 1996. The definition has two limbs, (a) and (b):

  • Limb (a) refers to those with a contract of employment. These workers are classified as employees under the Health and Safety at Work etc Act 1974, and have always been within the scope of the existing regulations.
  • Limb (b) describes workers who work under a contract for service, e.g. self-employed contractors, and casual (zero hours) workers. These individuals have not been covered by the PPE regulations up to now.

So, from 6th April, all workers will have to be provided with suitable PPE free of charge, be they casual, agency workers, subcontractors and the self-employed, if the nature of their work so requires the wearing of suitable and sufficient PPE.

The decision to extend protection to Limb (b) workers who carry out casual or irregular work, was prompted by a 2020 High Court judgment, which concluded that the UK had failed to adequately transpose aspects of two EU Directives into UK law post-Brexit. The High Court ruled that UK implementation of EU law should extend to limb (b) workers.  The HSE, after consultation, have now updated the PPE Regulations accordingly.

So, whether you work in healthcare, tree surgery, manufacturing, agriculture or any other sector where workers need protection to allow them to carry out their roles, if a worker needs protective equipment, it will be the ‘employer’s’ responsibility to make sure they have it.

What does this mean for employers?

Up to now, many employers have resisted providing these groups of workers with PPE. They have often argued, for instance, that it was up to either the agency supplying the labour to pay for the PPE, or that the agency workers themselves supply, e.g. their own safety footwear.

This is especially true if the worker could only be on site for a couple of days at most.  So, there are likely to be some interesting conversations ahead.

For most employers, the changes to the regulations will involve very little change, as most organisations will likely have already been providing PPE based on the nature of the role itself rather than the status of the person doing it.

In the case of employers who largely rely on workers – for example food delivery companies and construction companies – it will be a significant logistical and financial commitment having to now provide safety equipment to all their workers, where previously they would just have made it a condition of work that one was worn, with the worker or their firm having to supply their own.

The Highway Code

In January, the Government announced, without much fanfare, the introduction of the new Highway Code.

Many employers will have to make sure that relevant employees are briefed on the new code. Particularly if they employ drivers, and especially if they are in transport.

The changes to driver behaviour could be significant, as the new code introduces new responsibilities for drivers and road users in a strict hierarchy. Broadly speaking, the larger, the faster and more dangerous the mode of transport is to other road users and pedestrians, the more those drivers have to take care and give priority to less protected more vulnerable users.

This means that particularly in transport, large trucks and trailers present a much greater threat than vans/minibuses, and cars in turn, present a much greater threat than motorbikes and cycles.  The objective of the hierarchy is to ensure “a more mutually respectful and considerate culture of safe and effective road use that benefits all users.”

Full details of the changes in the code can be found here, and you should make sure that your drivers are aware of them.

Employer’s Liability

The issue of vicarious liability and employer responsibility is often raised in circumstances when an employee while at work, driving a business vehicle, seriously hurts, or worse still, kills others on the road, particularly a pedestrian or cyclist.  If the employer has done all that is reasonably practical to inform, instruct and train their drivers on safe driving, then that various liability can be substantially reduced.

So, it’s not enough to just send out a briefing sheet, make sure that you capture evidence that drivers have been properly informed of the new Highway Code, and they sign to understand that they are aware of, and will follow, the new hierarchy of measures. Indeed, if you wish to completely reduce vicarious liability, send your drivers on regular (typically every 3 years) advanced driver training.  Your insurance company will usually offer a discount on your premiums if you do this.

One change that has crept under the radar is that the 2022 update prohibits any driver from using their handheld device for anything, including taking videos or photos, scrolling through playlists or playing games – even if the vehicle is not moving. While mobile phones can be used for hands-free calls, payment at tolls or booths and satellite navigation, they’ll need to be securely fixed.

This update finally pulls the Code in line with the Law, banning all unnecessary – and arguably dangerous – uses of mobile phones behind the wheel. Distracted driving is the second leading cause of collisions, after drunk driving.  In line with the revised penalties introduced in 2017, motorists face a £200 fine and six penalty points, if caught touching their mobiles during their journeys. This further reinforces the need to insist that employees do not use mobile phones, and to ensure that they are not phoned from work.

Additionally, the new Highway code requires appropriate training, as these vehicles will be classed as work equipment, so the duty to ensure that drivers are competent to drive is part of the Provision and Use of Work Equipment Regulations, known as PUWER for short.

Also, part of these regulations is that employers have a duty of care to ensure that the vehicles used for business purposes, whether they are owned by the organisation or by the employee, are roadworthy, properly insured, MOT’d and serviced. They should also be checking regularly on driving licences, disqualifications and penalties, and ensuring their drivers are properly trained.

There have been calls to reverse the changes, but this is unlikely to be a successful campaign, so they are here to stay.

At BackupHR, we constantly highlight and emphasise the fact that driving is the riskiest activity we do in our day-to-day lives. Yet, because it is also regarded by most of us as a standard life skill, employers often wrongly assume that holding a driving licence is sufficient proof of competence.  In health and safety law, that is not the case, which is why making sure that your drivers are competent, safe and hold up-to-date knowledge when in front of the wheel, is essential.  Ask yourself when was the last time you looked at the most recent version of the Highway Code? It is probably the same for many of the people employed to undertake work-related driving.

Apart from the safety issues, this new set of rules will impact your business. It might not be that obvious, but fines, points and loss of driving licence can impact on an employee’s ability to perform their responsibilities.

 

 

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

In 2022, there will be an additional Public/Bank Holiday to mark Her Majesty the Queen’s Platinum Jubilee. The Spring Bank holiday (normally due to take place on the last Monday in May) will, therefore, be moved to Thursday, 2nd June, with an extra holiday on Friday, 3rd June, creating a 4-day weekend.

This means that in England and Wales, the schedule for 2022 looks like this:

Date                                              Public Holiday  (Dates in italics are not the official holiday)

Saturday 1 January 2022            New Year’s Day

Monday 3 January 2022               Substitute day for New Year’s Day

Friday 15 April 2022                      Good Friday

Monday 18 April 2022                   Easter Monday

Monday 2 May 2022                      May Day Holiday

Thursday 2 June 2022                  Spring Bank Holiday

Friday 3 June 2022                       Platinum Jubilee Bank Holiday

Monday 29 August 2022              Summer Bank Holiday

Sunday 25 December 2022         Christmas Day

Monday 26 December 2022        Boxing Day

Tuesday 27 December 2022        Substitute Day for Christmas Day

All employees are entitled to a set number of days off work each year by way of paid leave. The minimum statutory annual leave entitlement is 5.6 weeks’ paid holiday per year, which is equivalent to 4 weeks plus 8 Public/Bank Holidays. An employer may offer enhanced rights over this legal minimum under the terms and conditions stated within their employment contracts.

However, by law, Public or Bank Holidays do not have to be given as additional paid leave, although an employer can choose to include Public/Bank Holidays as part of an individual’s statutory annual leave entitlement. If so, this essentially means that if your place of work is closed on some or all Public/Bank Holidays, you can require employees to take these days as part of their paid holidays. Equally, you may choose to pay your employees for Public/Bank Holidays on top of their normal leave entitlement, or allow employees to take them as extra holiday days, but without pay.

In the context of any organisation that remains open on a Public/Bank Holiday, it’s again up to the employer to decide whether or not an employee needs to work those days.

In essence, the rules relating to whether employees are asked to work, or not, Public/Bank Holidays, and whether or not any Public/Bank Holidays are included in the overall paid annual leave entitlement, are a matter of what is clearly expressed in the contract of employment. Whether Public/Bank Holidays are in addition to, or inclusive of the employee’s statutory or contractual annual leave entitlement, will depend on the wording within the contract of employment.

Entitlement to the additional Public/Bank Holiday in 2022

It is important to note that employees do not have an automatic right to paid time off for an extra Public/Bank Holiday. Employers are advised to check the wording of their employment contracts, and communicate with employees about whether or not they will be required to work on the additional Public/Bank Holiday in line with the terms of their contract.

We have set out below the most commonly used phrases relating to Public/Bank Holidays that we have seen in employment contracts, and what they mean in terms of the employee’s right to have paid time off work on 3 June 2022.

Contractual wording Entitlement to paid time off for an additional Public/Bank Holiday
1.

20 days holiday per annum plus Public/ Bank Holidays

 

Yes  employees will have a contractual entitlement to take paid time off on the additional holiday as the wording on holiday entitlement in the contract is not limited to the normal/usual Public/Bank Holidays. Therefore, there is a contractual entitlement to paid time off on all Public/Bank Holidays – including Public/Bank holidays which are in addition to those normally observed.
2.

28 days holiday per annum

Potentially – where the contract is silent on Public/Bank Holidays, the employee has the ability to request booking from their 28-day holiday allowance any of the Public/Bank Holidays, including the additional Public/Bank holiday, subject to Management approval. However, there is no increase in holiday entitlement as a result of the additional Public/Bank Holiday.
3.

20 days holiday per annum plus 8 Public/Bank Holidays

 

Potentially – similar to above.  The contract is silent on which Public/Bank Holidays are included within the employee’s holiday entitlement, and, therefore, an employee has the ability to request booking the additional Public/Bank Holiday as paid time off in June 2022. Although this would mean that the employee will not be entitled to one of the later Public/Bank Holidays in the year. We would recommend this is clarified to the employee at the time of booking annual leave.
4.

In addition, you will also receive pay on or in respect of each of the eight Public/ Bank Holidays as listed below:
New Year’s Day, Good Friday, Easter Monday May Day, Spring Bank Holiday, Late Summer Holiday, Christmas Day, Boxing Day.

No – where there is a list of Public/Bank Holidays contained within the contract, the employee will only be entitled to receive paid time off on those named Public/Bank Holidays listed (whether this list is some or all of those usually observed in England and Wales). Employees with such wording in their contract will be entitled to paid time off on 2 June 2022, as this is the date the Public/Bank Holiday referred to as the “Spring Bank Holiday” has been moved to.  There is no contractual right to the Platinum Jubilee Public/Bank Holiday of 3 June 2022, only by the discretion of the Employer.
5.

20 days holiday per annum plus the usual Public/Bank Holidays observed in England and Wales

No – as the additional Public/Bank Holiday is not usually observed in England and Wales, so employees would not be entitled to take paid time off on the additional Public/Bank Holiday.

The wording at point 4 above is what most of our clients will have, although it is important that you check your templates versions.

Even where there is no contractual entitlement to take the additional Public/Bank Holiday as paid time off, many employers, as a gesture of goodwill, will decide to allow their employees to take the additional holiday.  If that is not possible for operational reasons, an employer may choose to provide time off in lieu as an alternative. The goodwill lost through not offering an extra day’s leave in 2022 will often far outweigh any marginal cost savings gained from not giving the day off, or from requiring employees to take the extra day from their existing holiday entitlement.

Previous approach to time off for additional Public/Bank holidays

We previously enjoyed an additional Public/Bank Holiday in 2011 (to mark the wedding of the Duke and Duchess of Cambridge) and 2012 (for the Queen’s Diamond Jubilee). Therefore, when considering whether to allow employees paid time off for the additional Public/Bank Holiday in 2022, we would recommend considering what has been done previously. If employees have previously been offered paid time-off, or time-off in lieu to mark an additional Public/Bank Holiday, to adopt a different approach in respect of the 2022 additional Public/Bank Holiday may cause a negative reaction from employees (in particular, those with long enough service to have been working when this happened previously).

Requests for time off work

Even though employees have a right to a minimum number of paid days holiday each year, employees are not normally entitled to pick and choose when they take this time off. Employers need to manage staff rotas to ensure that they have the necessary available cover at all times to ensure business continuity.

To maintain good employee relations, it’s important for employers to handle any requests for time off fairly and consistently. As an employer, you should also be prepared for an influx of annual leave requests covering Monday, 30 May to Wednesday, 1 June 2022.  If your workplace closes on weekends and Public/Bank Holidays, the extra Public/Bank Holiday will probably mean that many of your employees will seek to benefit from 9 consecutive days off work: from Saturday, 28 May to Sunday, 5 June 2022.  As it is highly unlikely that you will be able to accommodate every request, a strategy will need to be considered in advance.

The three key considerations will be:

  • Decide on a fair approach whilst balancing operation needs;
  • Early communication about whether or not certain groups of the workforce may, or may not, be required to work the additional Public/Bank Holiday in line with stated contractual terms;
  • Set a start date and deadline for holiday/time off requests;

 

 

 

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

There are some important changes to statutory rates of pay that the Government have already announced, to take effect in 2022.

National Minimum/Living Wage Rate Increases

The National Living Wage is to rise by 6.6%  which is the biggest cash increase ever. It will go from £8.91 to £9.50 per hour.

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

  • from £8.36 to £9.18 per hour for 21 to 22-year olds;
  • from £6.56 to £6.83 per hour for 18 to 20-year olds;
  • from £4.62 to £4.81 per hour for 16 & 17-year olds; and
  • from £4.30 to £4.81 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. This will change from the current rate of £8.36 per day to £8.70.

Increased Statutory Rates

The rate for 2022/23 for Statutory Maternity (SMP), Paternity (SPP), Adoption (SAP), Parental Bereavement (SPBP) and Shared Parental (SShPP) Pay are set to increase from £151.97 to £156.66 per week.

Additionally, the rate of Statutory Sick Pay (SSP) is also set to increase from £96.35 to £99.35 per week.

The average earnings an employee has to earn to be entitled to these payments is set to increase from £120.00 to £123.00; this will be the first increase to this rate for two years.

Implementation

Exact dates of implementation are still to be confirmed, and it is worth noting that they do not all usually increase on the same date. It is expected that SMP, SPP etc. will increase on 3 April 2022, and SSP will increase on 6 April 2022. The NLW and NMW rates go up from 1 April 2022.

The rates for Statutory Redundancy Pay, Statutory Guarantee Pay, 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.

 

 

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

Mental health issues will affect one in four people at some point in their lives, and have a significant impact on employee wellbeing. Between 3rd April and 3rd May 2020, in the midst of the first pandemic lockdown with many workers unexpectedly finding themselves working from home, 2.6 million adults in the UK reported that they “often” or “always” felt lonely.

The pandemic has demonstrated just how much friendships and connection mean to us. As well as being a deeply corrosive experience in itself, chronic loneliness affects our mental and physical health and even mortality. Tackling loneliness is complex, and needs a response from all parts of society. Lockdown meant no socialising with others in person, and while this might have come as a relief to some, to others it resulted in increased feelings of loneliness. Even before coronavirus, the mental and emotional toll of loneliness within our society was a growing worry for employers and the Government. Now, with millions of us having been forced to self-isolate, keep ‘socially distant’ and work from home, it is an even more pressing challenge.

What is it?

Workplace isolation can be defined as a perceived absence of support from co-workers and Supervisors, and lack of opportunities for social and emotional interactions with the team. It happens when we have a mismatch between the quantity and quality of social relationships that we have, and those that we want. When defined like this, it becomes easy to see how workplace isolation can contribute to feelings of loneliness, particularly for those who need a greater amount of social and emotional interaction than others. Loneliness is experienced across all ages.

Some of these issues create a vicious circle. For instance, poor health/disability meaning a person cannot work and is stuck at home, can increase people’s risk of being lonely, which then leads to their health worsening, impacting their employment prospects and exacerbating feelings of loneliness.

Social wellbeing encapsulates the power of bringing people together at work to improve their health and wellbeing, through better relationships and support networks, building on the World Health Organisation’s definition of health as “a state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity.”

The concept of “social wellbeing” deserves a place alongside mental, physical and financial wellbeing strategies that are now commonplace in progressive workplaces, but in the UK, we have some way yet to go. For instance, a study by Relate found that 42% of people surveyed didn’t have any colleagues they would see as a close friend.

Why it matters

By tackling loneliness and supporting employees to build social connections, employers can ensure a more productive and resilient workforce. Workplaces where employees have a strong sense of organisational identity are more able to withstand the effects of recession and maintain performance.

Over the last 20 years, the number of people living on their own has increased by 20% and today, 48% of us believe that people are getting lonelier in general despite being so closely connected by technology. We have never been so well connected as a society as we are now, through tools like video conferencing and social media, but despite this connection, we’ve also never been more isolated.

Although we are all susceptible, evidence indicates that some of us are more likely to suffer the negative implications of workplace isolation than others. We can be alone and not feel lonely, and inversely we can feel lonely even when in a relationship or surrounded by others.

Loneliness is a subjective – and often painful – feeling that has more to do with the quality of our relationships and social interactions than the quantity. Researchers have been studying the effects of loneliness for decades, but it hasn’t been examined in the context of the workplace until recently.

Why it matters at work

Employers have a role to play in supporting the wellbeing of their employees and reducing loneliness. Our social connections at work – with peers, Managers and customers/service users – are one of the biggest overall drivers of job satisfaction. Good quality, meaningful connections are associated with better outcomes in terms of quality of work, better wellbeing and greater engagement in work.

The negative implications of workplace isolation can lead to decreased job performance, and negative work-related wellbeing, loneliness, and a decrease in emotional and psychological wellbeing. All of which can have negative organisational consequences, such as absenteeism, increased rate of turnover and an adverse impact on company culture

Persistent loneliness can increase the risk of developing serious health issues. It is linked to increased risk of coronary heart disease, stroke, depression, cognitive decline and dementia. It increases stress hormones impacting our immune function. It is as bad for our health as smoking 15 cigarettes a day, and worse than obesity, increasing the risk of premature death by 29%.

It can negatively impact mental health playing a role in mental disorders such as anxiety, paranoia and depression. More than a third of us (42%) have felt depressed because we felt alone. It can increase our chances of indulging in risky habits such as drug-taking, and is also a known risk factor in suicide.

When loneliness strikes at work, it becomes as much a business issue as a health issue. Loneliness often results in an emotional withdrawal from the organisation. Lonely people tend to be less committed, creative, collaborative and attentive, and both the quality and the quantity of their work can deteriorate. It has also been identified as a factor in workplace burnout.

How to recognise loneliness

Loneliness is a subjective experience, so there are no “hard and fast” rules about what it looks like. Many people may also hide their feelings for fear of embarrassment, or because they don’t want to appear weak, and this can make loneliness difficult to identify.  Conversely, others might seek more physical contact through handshakes or hugs, and seize opportunities to talk. So, don’t be misled by apparent extroversion.

The best approach for Managers is to take the time to get to know and really understand your people. This will help you to recognise when someone is feeling disconnected, or left out by the rest of team. Watch for changes in behaviour and body language too. If they start looking “down,” avoiding interaction, or their performance suddenly dips, then there’s a potential sign.

Listen to other team members’ concerns, too – they might be more aware of their colleagues’ feelings than you are.

What employers can do – generally

Address it from the top, by looking at culture and infrastructure. There are a wide range of actions which employers can take to enhance social wellbeing, and tackle loneliness in the workplace:

  1. Raise awareness of loneliness and help to overcome the stigma. If you have in-house HR and/or safety, ask them to put this on their agenda.
  1. Communicate any suitable employer benefits, e.g. employee assistance programmes (EAP). Put in place support structures, such as mental health first aiders to spot the signs of loneliness, and on how to sensitively approach lonely employees. Signpost people to external support services, e.g. relevant charities.  All of these encourage employees to use which give employees the opportunity to talk to someone confidentially about how they feel.
  1. Support and encourage Line Managers to act, such as training to spot the signs and symptoms of loneliness, and on how to sensitively approach and signpost employees who may feel lonely.
  1. Encourage employees to broaden their work network, reaching out to colleagues in other teams whom they may not work with day-to-day.
  1. Review the support provided to employees during key life transition points (for example caring for a dying loved one, bereavement, parenthood, or an impending retirement).
  1. Encourage flexible working (wherever possible), enabling employees to socialise whilst juggling responsibilities at home. Conversely but importantly, allow flexibility for employees to work from the office if they prefer, as being forced to work from home can be isolating. Create opportunities to regularly bring people together, and invest in technology such as video conferencing.
  1. Encourage positive relationships at work, making sure people have enough breathing space to have a reasonable level of informal conversations with their colleagues during the working day.
  1. Measure work-related stress and make a concerted effort to reduce it. Stress at work can cause friction, strain on relationships, lower levels of teamwork and cooperation – all of which can contribute to feelings of loneliness.
  1. Offer training on issues that improve relationships, such as conflict resolution, listening skills, teamwork, emotional intelligence, inclusion, and mindfulness.
  1. Consider a diversity & inclusion strategy to check you are meeting the needs of minority groups and using opportunities, e.g. networking, to reduce loneliness.

Management Action

There are many actions which Line Managers (and HR) should be doing to help employees who may be “suffering in silence.” Some of these actions are dependent on senior approval, but not all.

  1. Communicate with employees by having regular check ins, and asking employees how they feel. Managers or team members are probably most likely to identify if someone could be lonely, perhaps through things that they say in day-to-day conversation. As loneliness may not be easily to identify, it is important that Managers are checking in with employees regularly. A simple ‘how are you?’ can give employees the space to share and raise any issues that they are experiencing. Try starting internal meetings with wellbeing check-ins, or casual updates on people’s day. Remember that employees may feel shy or embarrassed mentioning that they’re having a tough time, so be ready for a one-to -one. That’s why a compassionate approach is so important.
  1. Create opportunities for employees to connect or reconnect with others, even if they can’t see each other in person. That can mean organising social activities after work. If working remotely, online quizzes, team calls and even group exercise classes can, as a result, help employees socialise with each other from home. Remember to ask employees if they want to participate in online social activities, and what they would like to do. Avoid relying solely on one form of social activity here – we can all sympathise with suffering from Zoom fatigue. Mixing things up and trying new approaches should increase levels of engagement.
  1. Take particular care with new employees. Make them welcome and monitor them, particularly if they work from home. Some new recruits are able to seamlessly work remotely, whilst others struggle, despite the job role and level of organisational support on offer being similar to what they were used to.
  1. Do team-building right. Whether in or out of the office, it can be rewarding and doesn’t have to be expensive to be effective. Build a team that has a shared direction. Purpose gives meaning to people’s efforts, and a shared purpose builds camaraderie. So, counter the energy-sapping effects of loneliness by getting your team engaged in the wider impact of its work. At the same time, keep a lookout for negative behaviours, such as rudeness, bullying or harassment, that risk damaging team spirit, and deal with these effectively. Be clear with your team about the types of behaviours that you would like to see, and work with individuals on any interpersonal skills that they need to develop. Aim to build a team that has shared values. This will help to avoid conflict and seclusion.
  1. Deal with issues. If you suspect that one of your people is lonely or isolated, work on building up their trust. When people feel like you really care, and that their voice matters, it’s easier to open up. Simple gestures make a difference.
  1. Encourage good relationships. You can’t force people to become friends. But you can encourage them to form bonds, by creating opportunities for collaboration.
  1. Remember the little things. The smallest gestures can make the world of difference. Things like making someone a coffee, or just remembering to say “hello” in the morning will show them that you care, and that their wellbeing matters to you. Random acts of kindness like these will likely have a positive knock-on effect on the rest of your team, too. Avoid inadvertently excluding someone just because you don’t relate to them as well as you do with other people on your team. Leaving someone out of the lunchtime chat, for example, can be very hurtful – and may even damage their career, particularly if you use this time to talk about work or new opportunities.
  1. Tackle exhaustion. Apart from all the other health and safety risks; the more exhausted someone is, the lonelier they can feel. Take care that your team members avoid exhaustion. Encourage them to work regular and sensible hours, to take proper breaks, and to agree clear boundaries that protect their work-life balance. And be sure to follow your own advice!
  1. Remember virtual colleagues. Remote team members are particularly susceptible to loneliness, so be sure to reach out to them regularly. Save a few minutes at the end of conference calls or video chats to catch up with them, and to ask them how they’re doing. Do not be afraid to break away from tech-based forms of communication occasionally. Email and messaging apps are great when you want to save time, but picking up the phone to have a chat with a remote team member is far more personal, spontaneous and should reassure them that they matter.
  1. Look after yourself. Managers are not super-human and can also feel lonely, especially if they focus on work to the exclusion of their own relationships and mental health.

Conclusion

Loneliness is a painful emotional response to feeling isolated.

Now that more of us are working from home, we need to be creative about how we can boost our sense of connectedness from afar – to ensure both our wellbeing and our ability to stay productive and engaged at work.

 

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

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 back in January when we sent out our Newsletter No. 141, was there are no significant changes to either the List A or B documents.

From 1st July 2021, new rules for right to work checks now apply. EU, EEA, or Swiss citizens need to provide evidence of lawful immigration status in the UK.  Employers are not required to retrospectively check the status of any EU, EEA, or Swiss citizens you employed before 1st July 2021.

Irish citizens can continue to use their passport or passport card to prove their right to work.

All other EU, EEA and Swiss citizens will no longer be able to use their passport or national identity card to prove their right to work. You’ll need to check their right to work online using:

  • a share code;
  • their date of birth;

You can also check someone’s original documents instead if they do not have a UK immigration status that can be shared with you digitally.

You could face a civil penalty if you employ a worker and have not carried out a correct right to work check.

The Home Office have now issued new guidance for Employers, including revised List A and List B documents from July 2021.  This means that we need to inform all of our clients to update their procedures.  If you use our Employment Details Form then you will find the revised right to work checks lists contained within.

The new starter and existing worker employment details forms referred to in this article can be found by clicking the links below, for you to adapt and use to suit your purposes.

Existing Worker Employment Details Form

New Starter Employment Details Form

 

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

The term “Competent Person” is bandied about quite a lot, especially with reference to Health and Safety.

Of course, large organisations understand that they have very specific legal health and safety responsibilities, or at least we hope they do. But surely not every SME, especially if they just employ one person, has to have a competent person to look after health and safety?

Well, it comes as a surprise to many employers to find out that, actually they do. Although how competent, how skilled, how technically able will depend on how high-risk the environment in which they operate is.

How is a competent person defined?

Not very well, it turns out. In fact, the relevant law, Regulation 7 of the Management of Health and Safety at Work Regulations 1999, is not exactly clear. But it does say that subject to one or two minor exceptions, every employer has to appoint one or more competent persons to ensure they comply with health and safety and fire regulations.

And, they are regarded as competent when they have sufficient training, experience or knowledge, and other qualities.  Perhaps the easier way to define competence is using the mnemonic of KATE, i.e. those with the necessary Knowledge, Ability, Training and Experience in order to correctly identify hazards and dangers that exist, or could reasonably be foreseen in the workplace, and implement sensible, proportionate solutions.

Additionally, they need the necessary authority to make sure that the workforce takes the right measures to eliminate those dangers. A competent person must meet these main criteria, so a person who is new to the job is not likely to meet this standard. They must be granted specific authority by the employer to take prompt corrective measures arising from a sensible risk assessment.

They also need to be good influencers.  A competent person also needs to be respected for their judgement at all levels within the organisation, so that when they state that corrective action needs to happen, Management listens and implements, and the workforce, by and large, follows the necessary safe working practices.  This is a quality that takes time to build.

The following actually comes from the Health and Safety Executive website, and explains it rather better than the regulations.

What a competent person does

They should have the skills, knowledge and experience to be able to recognise hazards in your business, and help you put sensible controls in place to protect workers and others from harm.

Qualifications and training

It’s not usually essential for them to have formal qualifications, and they’re not required by law to have formal training, although it can help.

Who you can appoint

You could appoint (one or a combination of):

  • yourself
  • one or more of your workers
  • someone from outside your business

Usually, managing health and safety isn’t complicated and you can do it yourself with the help of your workers. You know your workplace best and the risks associated with it.

If there’s a competent person within your workforce, use them rather than a competent person from outside your business.

Using a consultant or adviser

If your business or organisation doesn’t have the competence to manage health and safety in-house, for example, if it’s large, complex or high risk, you can get help from a consultant or adviser. But remember, as the employer, managing health and safety will still be your legal duty.

It is sadly too easy just to dump the title on some reluctant but amenable individual, and forget about it, that is not recommended, but in reality, is often what happens.  Also, what typically happens is that someone is persuaded to take it on, but it’s deemed an add-on to their actual day job, so they are not freed up the extra time and space to take on these additional responsibilities. So as a result, they do both jobs adequately only, or do not do the health and safety aspects as much as they would like so they give it up.  The employer is back to square one, having not learnt the lessons, looking for the next person that they can badger or bully into doing the job.

Failure to appoint a competent person(s) can lead to a prosecution for breaching the Management of Health and Safety at Work Regulations, which can in turn, lead to intervention by your regulatory authority, fines, or, in cases where the consequences of a breach were extreme, even imprisonment. We shall return to the issue of qualifications, but a recent case following on from the Grenfell fire disaster, shows what can happen if qualifications are not checked.

A former firefighter who carried out fire risk assessments (FRAs) on Grenfell Tower between 2010 and 2017, has admitted that he misrepresented his qualifications and experience.

At the public inquiry into the June 2017 disaster, Carl Stokes admitted he had cut and pasted large chunks of text from one FRA to the next.

Kensington & Chelsea Tenant Management Organisation (KCTMO) was also in the spotlight over lax controls when hiring Stokes in the first place, and its apparent failure to act on a highly critical report on fire risk management procedures by safety consultancy Salvus – CS Stokes’ predecessor – in September 2009.

We are not saying that sole responsibility for that terrible fire should rest with the ex-firefighter, or whoever failed to check his real abilities/qualifications, but neither of those parties comes out with any professional credibility. Not that appointing a Consultant and checking their bona fides and ‘competence’ is the entire solution. In any event, the Health & Safety at Work Act makes it clear that whilst a consultant can be used for their expertise, which by the way should be relevant to that sector, Owners, Directors, Trustees, Partners and Senior Management cannot delegate the ultimate responsibility for health and safety for their organisation to others, only the day to day organisation.  This is why the HSE and IOD Code of Practice for Directors strongly recommends that one of the Directors take on regular oversight and regularly reports to the Board on health and safety matters.  In small organisations, this person may also be the nominated competent person, but in medium and larger sized organisations, this doubling up no longer becomes practical.

Most employers, especially small ones, can easily identify a diligent, caring and knowledgeable employee, who, with a bit of training and support, will fulfil the requirements of a competent person.

Trying to establish what makes a good competent person is quite complex, but can be narrowed down to two criteria:

  1. Do they have appropriate qualifications, have they received the necessary training, and do they keep up to date with refresher training to maintain their Continuous Professional Development (CPD)? This need not be as scary as it sounds.
  2. Do they possess the experience or knowledge, and other qualities that will allow them to fulfil their duties properly? The level of competence will depend on the complexities and level of risk within the organisation. Being in charge of the stationery cupboard will be very different from the stores in a large chemical factory.

As we suggested earlier, there is nothing to stop employers having more than one competent person, so that might be two employees with different skills/ responsibilities, or an internal person working with an external and qualified Health & Safety Consultant.

If you are appointing externally, you should not appoint any health and safety professional to help you to comply with your statutory duties, as they may not have the right level of expertise in your specific sector.  We provide health and safety consultancy for some of our clients, but we are very careful to ensure that this is within our skills set, staying well clear of for example construction, heavy engineering, or highly specialised sectors. As for qualifications and training, a week’s course might be adequate for a Competent Person in an office environment, but will be nothing like as credible as a fully IOSH qualified professional who has passed exams and maintains their CPD. Good consultants will stay well clear of trying to advise in unfamiliar environments. While training is part of what makes a competent person, it is not just the result of completing a course.

And finally, a topical note. If the competent person is subject to discrimination, or is dismissed for enacting health and safety practices, they are adequately covered by the Employment Rights Act 1996 and the Equality Act 2010. A recent case held that a newly appointed health and safety person was automatically unfairly dismissed, despite having short service, because he ruffled feathers in trying to improve health and safety in his workplace. Losing a case on such an issue is not only costly in terms of compensation, but is a major PR blunder and not likely to improve relations with the HSE, or the workforce.

So, in summary, appointing one or more competent persons within your organisation is a legal requirement.  When selecting in-house, use KATE along with identifying who cares about getting things right and is already a good influencer.  You want someone that is not afraid to raise issues, justifies their reasons and preferably comes with the solution as well as the problem.  There is quite a lot of documentation to be completed, so make sure they are comfortable with that, or give them someone that can help with that administrative support.  Give them the time and Senior Management support to make a difference, and to keep you out of trouble.

Finally, if you are not sure your competent person is indeed that competent, talk to us, as we may be able to help you identify someone in-house, or help coach the current person to do a better job.  Or, you can use our expertise, if appropriate. And, if we cannot do it ourselves, we are more than likely to know who we can recommend instead.

 

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

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.