robbryanassociates

Making Flexible Working Work

In contracts, covid-19, family, Uncategorized on March 16, 2021 at 11:03 am

Flexible working arrangements are now helping to keep many businesses operational amidst restrictive coronavirus regulations. Many companies that once thought flexible working arrangements could not work for them, are now functioning with remote working and flexible working hours. The picture is very mixed. At one end of the spectrum Microsoft has decided that some jobs will no longer return to the office. This is diametrically opposed by Goldman Sachs saying that home worker is “a temporary aberration” that does not fit their dynamic interactive culture.
 
In our experience there is a place for homeworking. For the majority that is not full time but a portion of the working week. The “closed-minded” approach of an employer may now find some kickback!
 
This can include reduced stress to better engagement. It is recognised that employees able to achieve a work-life balance are more likely to be happier and more productive at work. It could be that it’s simply different working hours or some days working remotely. There are recruitment and retention benefits too. Opportunities for flexible working is likely to be a question from candidates in the future and some employees may start to seek out an employer who has a flexible working policy in place.
 
However, we suggest that now is the time for employers to assess potential benefits as part of the inevitable excess of re-examined job roles and functions upon return to the workplace post-Covid and in the foreseeable future.
 
There will be some compliance issues: working hours are subject to the Working Time Regulations. A change in location must be preceded by a health and safety risk assessment in respect of that workplace and equipment being used.
 
A foundation of trust is also needed for flexible working practices to be effective. For example, remote staff or out-of-hours working can mean less day-to-day visibility. Staff surveillance software is available, but this may undo all the good that flexible working can achieve and does not always make for a good relationship between the parties.
 
Also, consideration needs to be given to the impact of changing working procedures for some that can impact significantly on others, from employee workflow to client relations.
 
Just because a working pattern has been in place since lockdown, it is not necessarily the best thing for your business. It might be, but it might not. The sooner steps are taken to have those discussions the “returning” or “non-returning” workers the better! 
 
Changes that you agree to should improve and not hinder your business in the long run. If you wish to discuss how flexible working might work in your business, email us to book a flexible working strategy call. 

10 Questions Employers are asking about Furlough

In covid-19, Uncategorized on June 7, 2021 at 12:14 pm

If you still have employees furloughed under the scheme, now is the time to start planning for the future. Here are the top questions employers are asking:

1. How is the grant available under the JRS changing?

From 1 July 2021, the Government grant will reduce to 70% of furloughed employees’ wage costs for unworked hours. Pay for furloughed employees must remain at a minimum of 80% which means that employers must contribute 10% from their own pocket.

From 1 August 2021 until the closure of the JRS, the Government grant will reduce to 60% of furloughed employees’ wage costs for unworked hours. Employer contributions will therefore increase to 20%.

This means that from July 2021, employers will have to cover a portion of the employee’s actual wages, as well as the national insurance and pension contributions that they have been liable for for some months now.

2. When do I want my employees to return to work?

If there is work available for the employee to do, then you can get them back into the workplace as soon as possible. It should be remembered that there will be additional costs to the employer for keeping an employee on the JRS from 1st July 2021, so this may also be a factor in making your decision

3. How much notice must be given about a return to work?

There is no minimum notice period required for returning from furlough, but it is advisable for employers to talk to staff about any plans to end furlough as early as possible and address any concerns or problems there may be. Should you have any employees who are returning from abroad, consideration should also be given to allowing for any quarantine periods that may be necessary before their return.

4. What do you do if your employee has Health and Safety concerns about returning?

You may want to consider informing employees what health and safety steps you have taken to make the work-place safe. You can give them a copy of the risk assessment if required (An example risk assessment is available on our website)

Note that there is new legislation that means workers (as well as employees) cannot be subjected to a detriment by their employer for leaving or refusing to return to their workplace or for taking steps to protect themselves in circumstances of danger which the workers reasonably believe to be serious and imminent.

These rights are contained in a piece of legislation which comes into force on 31 May 2021 and the full text of which can be found at: https://www.legislation.gov.uk/uksi/2021/618/pdfs/uksi_20210618_en.pdf

5. Do I need to confirm the end of Furlough Leave in writing?

You should confirm to the employee in writing the end of the furlough leave period. This letter is required as a record for your audit trail for HMRC. A template letter for your use can be found on our website.

6. Can annual leave be taken at the same time as furlough and can holiday pay be claimed through the scheme?

Yes, but the employer must top up to 100% pay. It can be taken during both full and flexible furlough.

80% can be claimed through the scheme until the end of June 2021. From July 2021, employers can claim 70%; this drops to 60% in August and September. The remainder must be made up by the employer.

7. Can you enforce annual leave during furlough?

Yes. Government guidance confirms that employers can require a worker to take annual leave when on furlough.

8. What about shielding for clinically extremely vulnerable employees?

Shielding was paused in England and Wales from 1 April 2021 and in Scotland from 26 April 2021. However, guidance confirms that clinically extremely vulnerable individuals are still eligible for furlough even though shielding advice is not in place. It also confirms that there is no requirement for an organisation to be closed or experiencing a wider reduction in demand in order to furlough someone who is clinically extremely vulnerable.

9. Can I make someone redundant when they are on furlough?

Although the JRS is in place to try and avoid redundancies, it is inevitable that some businesses will assess that redundancies are required. The Government guidance confirms that employees can be made redundant while they are on furlough. Redundancy processes are still subject to the normal rules when carried out during furlough and, to prevent an unfair dismissal claim, reasonableness of the decision will be a key factor. This includes the financial position of the employer. As part of the process, employers should consider why furlough, with its ability to claim capped wages from the JRS, was not suitable in the circumstances.

10. Can I make a claim for wages payable during the statutory notice period?

No. This was permitted in the early stages of the JRS, however, guidance was subsequently amended to confirm that, for claim periods starting on or after 1 December 2020, a claim cannot be made for any days on or after that date during which the furloughed employee was serving a contractual or statutory notice period (this includes people serving notice of retirement or resignation).

If you have any further questions about the return to work procedure, or on the JRS in general, then please don’t hesitate to contact your consultant.

Dealing with DSARs

In business principles, discipline and grievance, Employment law, Uncategorized on March 30, 2021 at 10:45 am

Data Subject Access Requests (DSARs)

Employers sometimes have to deal with DSARs from employees trying to bolster grievances or from former employees. It can be very onerous to comply with DSARs, which are one of the core data subject rights under GDPR. The following guidance from the Information Commissioner’s Office provides some clarity on the subject.

Employers often hold large amounts of data on employees and if the employee has been vague or deliberately wide in the DSAR, it may be wise to ask for clarification as to the information sought. The ICO has now confirmed that the clock can be stopped while organisations wait for a requester to clarify their request.

Any DSAR must be dealt with effectively, within one month of receipt. This can be extended by two months if the DSAR is complex. Such complexity arises if it involves information from many different email accounts or requires a significant amount of redaction of others’ personal data.

As an employee making a DSAR does not have rights above other employees, redaction will need to occur if an employer must provide emails that contain personal data relating to others. Therefore, it’s possible that large sections of emails may be blacked out.

Following case law under the Data Protection Act, the ICO’s guidance makes it clear that data controllers should make reasonable efforts to retrieve data but should not conduct searches that would be unreasonable or disproportionate to the importance of providing access to the information. It is not necessary to ‘leave no stone unturned’ – reasonable efforts should be good enough.

Employers need to be able to demonstrate they have looked in any email back-up systems and data saved on individual managers’ PCs. As a result, it is likely that managers may need to be asked to check and confirm they have not saved such information outside of their email account.

Organisations may also wish to closely consider retention periods for employee data. Keeping all data and emails relating to an employee during their 20-year career is likely to make an employer wish it had brought in a retention policy to delete data after six years, if a detailed DSAR is raised.

Data controllers need not comply with manifestly unfounded and excessive requests and the ICO has now provided additional guidance and broadened its definition of these terms. To determine whether a request is manifestly excessive employers should consider whether it is clearly or obviously unreasonable, considering all the circumstances. They should be prepared to justify their position to the ICO in the event of a complaint.

The ICO confirms what can be included in the “reasonable fee” that can be charged for dealing with excessive, unfounded or repeat requests. The fee should be reasonably calculated and can include the costs of making the information available, including photocopying or using an online platform, equipment and staff time. Data controllers may wish to give some thought to their hourly rates and whether they can provide information about these in their privacy notice.

Complaints about how an employer responds to DSARs are sent to the Information Commissioner, although employees often attempt to complain about it to employment tribunals as well. In extreme cases the Information Commissioner can serve enforcement notices and impose financial penalties.

Despite what employees often think, the Information Commissioner cannot award them compensation, although they could bring a court case seeking compensation for harm and distress arising out of failure.