robbryanassociates

Changes to employment terms and conditions

In contracts, covid-19, Employment law on September 1, 2021 at 9:15 am
In normal circumstances it is not possible for the employer to make changes to the employment arrangements without a) a contractual clause providing for changes or b) the consent and agreement of both parties.
 
Sometimes a working arrangement changes and nothing is written down or recorded about the change. The written particulars of employment are important. If there is a conflict arising from what the contract requires the written terms will normally prevail. However, there is a long-established situation called “custom and practice”. It is possible for something that is done regularly and consistently over time, that is notorious (i.e. known to all) to be incorporated into a contract. 
 
There is much said about “hybrid working” and some academics and employers have stated that work will never be the same again. One survey report identified that circa 40% of employees will leave their current employment if they are unable to work remotely. Other labour market reports warn of significant churn in the employment market with employees stating an intention to leave their current workplace. The bigger debate around this is outside the scope of this article.
 
There is no single solution for ALL employers here. Some work lends itself to homeworking and variable hour working and other work does not. Most job roles have multifaceted elements to them meaning individual job roles are more blended and incorporate technology tools more than even 5 years ago.
 
We advocate discussion and an alignment of expectations. Flexibility has the potential for benefits and performance improvement. The other side of the coin is managing remote working is challenging and people benefit from meeting for working collaboration and also social interaction. It’s all too easy to say well let’s have the best of both worlds and mix it up a little.
 
We suggest when exploring flexible working, keep an eye on any core irreducible minimum involvement in office attendance, in person meetings, client service delivery and inter-employee / intradepartmental collaboration. A further period of temporary working and review could help all concerned arrive at the best working solution. Define what the new working relationship looks like in specific terms.
 
Your new agreement working agreement will be either a temporary conditional change subject to review of a permanent change to terms and conditions. So, write this down and record it as an amendment to terms and conditions of employment.
 
I opened with changes to the employment contract requiring consent and agreement. There is an exception to this. An employer may be faced to a compelling reason to reorganise the workforce in response to new ways or methods of working. Faced with reduced demand, a business may be compelled to “fire and rehire”. This term surprises many people and suggests that employment contracts can be torn up at will.
 
This process involves consulting with employees and serving notice of termination for the current job and offering new work on different terms of engagement. The strategy is not without risk, if the employee doesn’t want to work on less favourable terms, they may decide to claim they have been unfairly dismissed, even start under the new terms and bring a claim against the employer for the loss of the first job.
 
Generally speaking, if the majority of the workers agree to be engaged on new terms, rather than have no job at all, this points towards a reasonable and fair process. Should a group of employees be retained in employment, perhaps on reduced hours, rather than being made redundant this process may serve a useful purpose. The employer in this process is not selecting those to retain but applying equally the arrangement to the whole group of employees.
 
The government has commissioned a report from ACAS on the ‘fire and rehire’ practice to consider if the process is being abused. The practice has been open to employers for years. The conclusion is that there is nothing in the report to recommend any legal reform. Perhaps the timing of this report is unhelpful as in reality the furlough scheme has mitigated the use of the strategy from March 2020. Before the announcement of a ‘furlough scheme’ at half past five on a Friday afternoon, fire and rehire was perhaps the only available alternative for many businesses. From the end of September 2021 this may well be the only option available together with compulsory redundancies.
 
Key Action Point
The end of the Job Retention Scheme may well lead to a need for employment contracts to be varied by a written agreement to reflect working hours, the place or places of work and any fundamental changes in duties.  

Holiday Travel

In absence, covid-19, holiday, Uncategorized on September 1, 2021 at 9:12 am
Before lockdown in March 2020, travelling outside the UK was the focus of attention. Transnational movement was effectively banned as flights were stopped through China, wider Asia and then Italy and France. The rest is history.

Whilst the UK government is seeking to open up the economy and travel, holidaymakers are finding themselves facing complicated rules for traveling to each individual destination.  

Travelling abroad remains in a state of flux at this time. More areas have recently been added to the Green list, many foreign countries have their own changing arrangements for testing and quarantining making forward planning difficult. The travel list is reviewed every 3 weeks, with the next update due to be announced on Weds 25th August. The government list for entry to England can be found here https://www.gov.uk/guidance/red-amber-and-green-list-rules-for-entering-england
 
The costs for PCR testing have been under the spotlight in the last week and these will now be reduced.
 
Employers are finding complex travel arrangements leading to lots of uncertainty, cancellation, disruption and pleadings for every case to be treated on its merits.
 
This is an unprecedented situation. We suggest, where possible, discussing holiday arrangements in good time. Most holiday needs to be prebooked and authorised in advance.
 
Consider:
– The likelihood of cancellation, holiday leave still needs to be taken.
– The possible need for isolation on return, extended unpaid leave?
– Is there an assumption that returning isolation will be “worked from home” – is this OK or will this amount to
unauthorised leave, or be authorised as unpaid leave?
– Amending previous holiday rules to allow extended leave (if this works for all concerned)
– Objections from other work colleagues to overseas travel to high-risk areas  

Key Action Point:
Discuss holiday plans in advance, consider the impact of returning isolation and be prepared for requests to be flexible. Handle all cases as fairly as possible.

Covid-19: Workplace measures

In business principles, covid-19, Employment law, government, Uncategorized on September 1, 2021 at 9:04 am
What do employers need to do to keep work place safe?

Workplace rules for wearing face masks or visors, hand washing, distancing, pedestrian routes, workstation sanitation or other hygiene measures and other shielding / preventative controls measures remain unaffected by 19th July removal of restrictions.
 
Statistics identify that people aged between 20-29 have the highest infection rates for COVID. Vaccination in the UK is not compulsory for all. There is no general provision that an employer can rely upon at the time of writing to compel their staff, freelancers, contractors, or visitors to take up the vaccine. There is a potential conflict within the workplace where employees refuse to work together for fear of getting COVID from a colleague whose lifestyle choice has greater exposure to infection; potentially giving rise to risk without any outward sign in the case of being asymptomatic. Separating workers in this situation would be wise. Existing workplace control measures may be sufficient. Should an unvaccinated worker have to work with others closely then this may give rise to redeployment to other duties.
 
Care Homes and health workers have special circumstances and specific justification for insisting that employees are vaccinated. Following consultation and discussions regarding any viable alternative redeployment, an employee may find that an employer is compelled to dismiss the unvaccinated employee. A dismissal of this kind falls under the heading of a Some other substantial reason [SOSR] dismissal. This is a potentially fair reason for dismissal, however, the specific context, the reasonableness of the employer’s discussions, and ultimately, justification for dismissal would all be relevant considerations for an employment tribunal. Should specific legislation be passed in this area, likely to be on a sector by sector basis, dismissal would be potentially fair but we await any changes here.    

Regarding vaccination for Care Home workers, the requirement becomes law on 11th November 2021. The government has allowed a grace period of 16 weeks from the 22nd July to allow for vaccination to take place. This means 16th September is the last date for care workers to get their first jab so they are fully vaccinated before regulations come into force.

Government ministers have stated at this time they have no intention of creating legislation in relation to compulsory vaccines outside Care Homes with employers needing to assess their own circumstances. This does not rule out a policy of “no jab – no job” for a business that can justify a vaccine policy and consult with staff who may not be able to comply. 
 
Key Action Point: 
Review the workplace rules that have been in place over the last year, assess the protective measures in place, ensure that necessary measures are implemented. Communicate with staff about the purpose of the measures: why they are in place and when they will next be reviewed. Social relaxation of lockdown rules does not automatically equate to an abandoning of workplace safety measures.