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Archive for 2021|Yearly archive page

Temporary Changes to GP Sick Notes

In absence, covid-19, government, health and safety on December 20, 2021 at 10:36 am

Last week (17 December) temporary changes were announced with rules relating to GP Sick Notes that will be in place until 26 January 2022.

If you are currently managing sickness absence this is important.

For absences from 10 December to 26 January 2022 employers should not ask employees for proof of sickness until the absence has lasted for 28 days or more. This change was implemented due to GP resources being wholly devoted to vaccine booster rollout.

Also, Statutory Sick Pay can not be withheld from employees during this period. This may conflict with your own policies relating to reporting sickness absence. This is a significant change from the usual requirement that requires a medical certificate to be provided after 7 days of absence.

These changes are effective now and will take precedent until 26 January.

Whilst employers cannot ask for proof of sickness for non-Covid related absences, it remains possible to ask for proof of a positive test or isolation request for those absences that are Covid related.

For those clients currently managing sickness absence, you may not be able to obtain a first or renewal sick note. You should continue to consult with absent employees and assess the likely timing of their return to work. This does not impact on your ability to pursue occupational health reports and in some cases you may wish to bring this forward.

Update to Covid Measures – December 2021

In covid-19, government, health and safety on December 13, 2021 at 9:30 am

In September the Government first announced a Plan B, if stricter COVID controls were needed. Following recent data regarding the spread of the Omicron variant, from Friday 10 December the following changes will be implemented: 

From Friday 10 December, masks must be worn in most public venues, including theatres and cinemas, unless someone is medically exempt. This will not apply in premises where people are eating or exercising (such as gyms or nightclubs).

From Monday 13 December, guidance to work from home wherever this is possible will be reintroduced.

By Wednesday 15 December, Covid passes will become mandatory for nightclubs, unseated indoor venues with more than 500 people, unseated outdoor venues with more than 5000 people and any venue with more than 10,000 people.

A COVID pass will require two doses or a negative lateral flow test within 48 hours of an event.

Many employers will have experienced some form of homeworking in the last year or so and be familiar with the challenges this brings. 

At this point in time businesses are not being asked to close and there is no financial support being offered. A projected 1 million Omicron cases by the end of the month will create challenges with even minor illness and a need for testing and isolation.

How to deal with the extra bank holiday in 2022

In business principles, contracts, holiday on December 8, 2021 at 11:35 am

To mark the Queen’s Platinum Jubilee, an additional bank holiday has been announced to take place on Friday 3rd June 2022. Whilst June 2022 may be far from your mind, most employers’ holiday years commence on 1st January each year, and with only a few weeks left of 2021, it’s certainly worth considering how this may or may not impact your employees’ holiday entitlements for 2022 and if an employee is entitled to this extra days’ holiday. The answer to this question will vary depending on the wording of the employee’s contract.

In a standard year, there are 8 Bank Holidays in England & Wales, these being New Year’s Day, Good Friday, Easter Monday, Early May Bank Holiday, Spring Bank Holiday, Summer Bank Holiday, Christmas Day and Boxing Day.

In 2022, the May Spring Bank Holiday will be moved to Thursday 2nd June and an additional Bank Holiday on Friday 3rd June will create a four-day weekend to help celebrate The Queen’s Platinum Jubilee. Therefore, employers should be aware that on top of the extra Bank Holiday, there is also a re-shuffle of when the Spring Bank Holiday, usually at the end of May, is taken.

If the contract states an employee’s holiday entitlement includes Bank Holidays and then lists the standard Bank Holidays that are recognised as part of the holiday entitlement, then there would be no need for the employer to give an extra day for The Queen’s Platinum Jubilee. This would also be true if the contract just states the entitlement includes the usual or standard Bank Holidays.

If the contract states holiday entitlement includes bank holidays, without listing the Bank Holidays or referencing the usual/standard Bank Holidays, then the employee would be entitled to the extra day, as the Queen’s Platinum Jubilee is a Bank Holiday, and the contract states the employee is entitled to Bank Holidays as part of their annual entitlement.

Even if there is no contractual right to the extra Bank Holiday, an employer can decide to give the extra day as a gesture of goodwill. Many employees may assume that they will get the additional Bank Holiday, while legally an employer may not be required to give Friday 3rd June 2022 as a day off, they may decide to allow the day to enhance employee relations.

Again, if there is no contractual right to the extra Bank Holiday, an employer can decide to close on Friday 3rd June 2022, without giving an extra day’s holiday. Notice could be given, ideally at the start of the holiday year, if not sooner, that an employee must save a day of their yearly entitlement to cover the closure for the Queen’s Platinum Jubilee. This is similar to what many employers do for Christmas shutdowns, however like above an employer should think about employee’s expectations and how such a decision may affect employee relations.

It would be good practice for an employer to forewarn employees of their entitlement or not, of the extra Bank Holiday. If you are unsure of what your employees may be entitled to then please contact your consultant to discuss this. 

If you have no employment contract in place (we highly recommend you implement this immediately as you have a legal duty to do so), your approach would be to consider what ‘implied contractual terms’ are in place, i.e. what have you done in previous years with regards to holiday arrangements or what communications surrounding holidays have you shared with employees.

Covid safety measures this winter

In business principles, covid-19, health and safety on December 8, 2021 at 11:35 am

COVID Safety Measures (from the HSE Weekly Digest eBulletin 02.12.21)

With winter weather making workers reluctant to keep windows and doors open, it is even more important to ensure your workplace is adequately ventilated. Good ventilation helps reduce the risk from aerosol transmission and prevent the spread of COVID-19.

Following useful feedback from businesses, HSE has updated its website providing ventilation during the pandemic to make the advice easier to find and understand.

There is advice on using CO2 monitors to identify poor ventilation. This covers the types of monitors to use, how to measure CO2 and deciding if a workspace is suitable for monitors.

There is also a new video on keeping vehicles ventilated, explaining how you can reduce the risk of transmitting the virus when using vehicles.

There is guidance on balancing ventilation with keeping people warm at work and simple steps you can take to make sure your workplace is adequately ventilated without being too cold.

These include:

  • partially opening windows and doors as this can still provide adequate ventilation
  • opening higher-level windows to create fewer draughts
  • if the area is cold, relaxing dress codes so people can wear extra layers and warmer clothing

For full details see HSE web page

National Insurance and Real Living Wage increases

In business principles, contracts, government, pay, Uncategorized on December 8, 2021 at 11:34 am

Increase to NI from April 2022

The Government has announced plans to increase National Insurance payments by 1.25% from April 2022 to raise funds for social care and the NHS. Employers will need to prepare their payroll teams for these changes and communicate the impact on take-home pay to staff. From April 2023, the increase must appear as a separate deduction on payslips as a “levy”.

Real Living Wage

Not to be confused with the compulsory National Living Wage (NLW), the Real Living Wage is an hourly rate of pay calculated by the Living Wage Foundation charity based on what people need to live on to pay for costs including fuel, energy, rent and food. It’s paid voluntarily by almost 9,000 UK employers, but it’s separate to the ‘national living wage’ and the ‘minimum wage’, which are the legal minimum rates set by the Government.

The Living Wage Foundation has just made its annual announcement of the rates to be paid in 2021/22 by accredited employers – £11.05 an hour for London and £9.90 an hour for the rest of the UK. Accredited employers should implement the rise as soon as possible and within 6 months. All employees of accredited employers should receive the new rate by 15 May 2022.

Recent Cases of Interest

In business principles, contracts, Employment law, Equality, pay on December 8, 2021 at 11:33 am

Rest Breaks for Part-time Workers

In the recent case of Forth Valley Health Board v Campbell, the Claimant was a phlebotomist who was employed to work for the Board for 16 hours per week.

It was the Board’s practice to allow employees a 15-minute paid break if they were working a shift lasting 6 hours or more. Campbell did receive a break when he worked a 6-hour shift but not when he worked a 4-hour shift. His argument was that this was unlawful because full-time employees received a paid break for all shifts they worked.

The Employment Tribunal upheld Campbell’s claim and ruled that the Board’s practice was less favourable to part-time workers who, by definition, worked less hours than full-time workers. This was therefore contrary to The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

However, the Board appealed against the Tribunal’s ruling and the matter was referred to the Employment Appeal Tribunal, who then overturned the decision and dismissed Campbell’s claim. Their justification for this reversal was that the reason Campbell did not always receive paid breaks was because of the length of the shift he was working rather than because of his part-time status. They went on to say that this was demonstrated by the fact that he did receive paid breaks when he was working his longer shifts and other part-time workers also always received the paid break when they were working shifts of 6 hours or more.

Policy Changes to Income Protection Schemes

Some employers choose to provide an income protection scheme for their employees whereby an insurance policy is taken out with a third-party provider. This provider will then fund the payment of a proportion wages to an employee covered under the scheme who is then signed off work through ill health for longer than whatever period is specified in the policy.

In the recent case of Amdocs Systems Group Ltd v Mr J Langton before the Employment Appeal Tribunal, when Langton started work in 2003, he received details of the income protection scheme informing him that if he was off work for more than 13 consecutive weeks, he would receive a payment under the scheme equating to 75% of his wages. The scheme also specified that if an employee was off work for more than a year an escalator provision of an annual 5% increment would be applied.

Langton was then signed off on long-term sick leave in 2009. It was only when he was still off work in 2015, when the business transferred to a new owner, that he noticed the escalator payment had not been applied.

On raising this with his new employer he was informed that the scheme provider had been changed in 2008, and that there was no provision for an escalator payment under the current scheme. The employer took the stance that that its obligations were limited to the amount which was covered by the insurance policy and that there was no liability. Langton subsequently issued a claim through the Tribunal system for the shortfall.

The Employment Appeal Tribunal ruled that Langton was entitled to rely on the details of the scheme that were given to him back in 2003. He was therefore contractually entitled to the annual increase in payments and the employer was ordered to pay up.

This decision flags up an important point that if the payment of income protection benefit is to be limited to that payable through an insurance policy, it is essential that the benefit is expressly referred to as being subject to any changes of insurer or to the insurance policy and conditional on the payments being received from the insurer. 

It also serves as a reminder for employers taking on employees following a TUPE transfer to carry out appropriate checks in relation to historical liabilities under income protection or other similar schemes.

Carers Rights Day – how can you support your employees who have caring responsibilities?

In absence, business principles, contracts, Employment law, Equality, family, Uncategorized on November 25, 2021 at 11:25 am
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Thursday 25th November marks ‘Carers Rights Day’ – an opportunity to recognise all that carers do, as well as for employers to find out more about how to support carers in the workplace.

Research by Carers UK and Age UK shows the importance of employers engaging with employees who are carers. One report found that 10 hours of caring per week can make it a significant challenge to stay in work. Their recent research in the light of the Covid-19 pandemic also tells us that:

  • Four in five unpaid carers are providing more care for relatives
  • 78% reported that the needs of the person they care for have increased during the pandemic
  • Two thirds (67%) worried about how they will cope through further lockdowns or local restrictions.

Those in their late thirties to fifties, known as the ‘sandwich generation’ may be balancing caring for elderly parents whilst also bringing up children and working. They are also likely to represent a higher proportion of those at the peak of their profession – talent that businesses want to retain.

According to Carers UK, leading companies, such as Centrica, have demonstrated strong business benefits to supporting carers and have suggested that, cumulatively, UK companies could save up to £4.8 billion a year in unplanned absences and a further £3.4 billion in improved employee retention by adopting flexible working policies to support those with caring responsibilities.

How carer-friendly is your business? Do you have policies in place to support those who wish to more flexibly?

For short-term temporary arrangements, an employee may seek time off for dependants.

The length of this leave is meant to be short and no longer than two days in most situations. It can be longer in some circumstances. An employer is not permitted to require an employee who has requested or taken time off for dependants to rearrange their working hours or make up the time that has been lost. What is reasonable time off will depend on the specific circumstances.

Trial periods, temporary changes, or even career breaks / sabbaticals, in support of retaining a skilled and knowledgeable worker who would otherwise be lost to the business could be a possibility. However, employers should seek advice if they intend to amend terms or have a break in the relationship as continuity of employment needs to be specifically addressed as well as arrangements to return back to previous terms and conditions if that is the intention.

For permanent changes to the working relationship an employee can make a request for flexible working.

Employees, part time or full time, with 26 weeks of service, have the right to request a flexible working arrangement. However, currently, the Government has launched a consultation into changing current flexible working legislation, with the proposal to make the right to request flexible working from day one of employment.

Flexibility is commonly around times of work, or days of work; however, this can also include the type or pattern of work, or even the place or work. The employer has a duty to consider the request in a reasonable manner and respond in writing as soon as practically possible no later than three months after a formal request. An employee making a request has protection from any dismissal or detriment due to their request being made.

If you would like help reviewing your employment policies, please get in touch – 01462 732444  www.robbryanassociates.org.uk 

For further reference: https://www.employersforcarers.org/resources/research/item/1460-juggling-work-and-unpaid-care-a-growing-issue

Be Ready for Bad Weather

In absence, business principles, contracts, Employment law, family, pay, Uncategorized on November 25, 2021 at 10:06 am

Snow. Love it or hate it, if you’re an employer bad weather can cause all sorts of problems. It pays to be prepared.

As we approach the end of a mild November, low temperatures and the possibility of ice and snow are forecast across much of the country. Indeed, bad weather such as flooding or severe winds can disrupt work at any time of the year. Here are some of the common questions employers ask us:

What if the workplace can’t open?

If the workplace can’t open, or there is no work available, staff are entitled to pay in full for any hours they would have worked, unless there is a contractual right to lay-off.

What if the workplace can still open?

If the workplace is able to open, staff are expected to try to make it in to work unless otherwise informed by their employer. If they do not arrive at work they are not entitled to pay.

You also have a responsibility to make sure the workplace is safe for staff to attend. Paths may need to be gritted, for example.

What if employees are unable to travel to work?

There may be travel disruption which makes it difficult or impossible for staff to arrive at work on time, if at all. There is no legal obligation for employees to be paid for time they have missed but alternatives such as making up the time could be offered. Employees should inform their workplace as soon as possible if they are going to be absent or delayed. The employer also needs to consider their duty of care in asking employers to attend the workplace in dangerous weather. Extra consideration may need to be given if you have an employee who is at extra risk e.g. if they are pregnant or have a disability.

If employees are unable to travel to work consider the alternatives:

  • Working from home
  • Flexible start/finish time
  • Working from an alternative site
  • Using annual leave
  • Using banked time-in-lieu
  • Making up the time at a later date

What if schools are closed?

Employees may be absent if their children are unable to attend school or if they are carers and a nurse does not arrive. Employees have a statutory right to a reasonable amount of time off to deal with emergency situations involving dependants and this will cover the breakdown in care arrangements. This time off is usually unpaid, although this will depend on the organisation’s policy. Employees should keep their manager informed of the situation.

Be Prepared:

  • We advise that you include a ‘Bad Weather Policy’ in your Employment Handbook so that management and staff are clear on your company’s protocol should severe weather strike.
  • If you already have a policy make sure staff are aware of it in advance of expected bad weather
  • Consider how you can communicate with your workforce in the event of severe weather

If you would like guidance on implementing this in your workplace, contact us at Rob Bryan Associates Limited Main Office: 01462 732444  www.robbryanassociates.org.uk

Recent Cases of Interest

In business principles, contracts, Employment law, Equality, Uncategorized on September 27, 2021 at 10:54 am

Forstater v CGD Europe and Others – Discrimination on the Grounds of Philosophical Belief

The Equality Act 2010 protects against discrimination based on 9 protected characteristics, namely age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, pregnancy and maternity.

In the recent case of Forstater v CGD Europe and others, Ms Forstater registered a claim with the Employment Tribunal that her contract with CGD Europe, who are a registered research or think-tank charity, was not renewed because of her gender-critical beliefs.

Before deciding whether there was any wrongdoing on the part of CGD Europe, the Tribunal had first to consider whether her belief was indeed protected by the Equality Act.   

In a complex scenario centred around transgender rights and identity, Ms Forstater’s viewpoint was, in a nutshell, that biological sex was real, important and unable to be changed. Her claim raised the debate about the scope of trans rights and the relevance of an individual’s biological sex, versus their gender identity.

Initially the Tribunal found that Ms Forstater’s beliefs were contrary to trans rights previously established by the European Court of Human Rights. However, the Tribunal’s decision has now been overturned by the Employment Appeal Tribunal, who considered that Ms Forstater’s views were deserving of respect and that only the most extreme beliefs should be excluded from protection under the Equality Act.

Ms Forstater’s claim has therefore now been referred back to the Employment Tribunal for them to consider whether CGD Europe’s original decision not to renew her contract was discriminatory.

Follows v Nationwide Building Society – Indirect Associative Discrimination

Ms Follows had been employed by Nationwide Building Society as a Senior Lending Manager and for the last 7 years had been home-based allowing her to look after her disabled mother.

As a result of a re-structuring exercise the society decided to reduce the overall number of Lending Managers and stipulated that those to be retained must be office-based. As a result, Ms Follows made a claim to the Employment Tribunal of unfair dismissal, indirect associative discrimination and indirect sex discrimination.

The tribunal upheld all of these claims against the Nationwide on the basis that the stipulation about office working put Ms Follows at a disadvantage because of her association with her disabled mother and that her dismissal had taken place without reasonable steps being taken to avoid that disadvantage.

This is the first time that a claim of indirect associative discrimination has been upheld since the introduction of the legislation in the UK.  

Proposed Flexible Working from Day One

In business principles, contracts, Employment law, family, government on September 27, 2021 at 10:47 am

The Government has launched a consultation into changing current flexible working legislation. This is open until 1 December 2021. Its proposal is to make the right to request flexible working from day one of employment.

Its aims to bring more employees in to the scope of the legislation and believes it will benefit productivity, motivation, retention and help attract more talent to organisations.

Its proposal is to introduce measures to help make flexible working the default, unless employers have good reasons not to. The consultation will also assess whether the current 8 business reasons for refusal are still valid. The process of managing flexible working requests and the time scales will also be assessed. There is also consideration to allow employees to submit more than one request per year, which is currently all they are entitled to do.

We will await the outcome of the consultation and if the proposal is approved we can assist you with amending your current policy within the handbook to ensure you continue to be legally compliant.

Until then, all current rules and processes will remain in place as usual.