Return to work conversations

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We recommend that employers instigate a discussion with staff about their working environment and any new measures post-pandemic working.

Over recent months many employees have worked from home. Some mixed homeworking with attending the office. Some working teams have been bubbled to minimise and reduce the risk of exposure to Covid.

On 19 July the government advice, “to work from home wherever possible” ceased. There is an expectation that over the summer months there will be a gradual phased return back to “normal” working. What is normal however, remains to be seen.

Within some organisations this has left teams fragmented and displaced from the normal place of work. There is no single recipe that will satisfy every workplace.

For some businesses, returning the majority of workers back to the normal place of work is a priority. If a manufacturer has the means of production in one place, there is a need for people to return there. Other employers, such as those providing professional services, have experienced new ways of working. These new ways potentially offer employees a hybrid form of working. A way of working that some may have a desire to continue.

We do not offer a single solution to employers on the best way of working, however, we strongly suggest that employers have a clear working strategy that meets the needs of their business.

Clear expectations for employee and employer are key.

If employees need to return to the office, performing their duties “at the main place of work” as set out in their terms and conditions of employment, then this expectation should be made clear. The temporary arrangements since lockdown March 2020, may be

a) brought to an end,

b) continued for a further review, or

c) a new varied arrangement should be confirmed in writing.

We advocate talking to your staff now.

Calls over recent weeks into our offices from a variety of clients have highlighted the problems that can be caused by failing to establish clear expectations.

Some employees have assumed that their working from home arrangements will continue indefinitely. There have been some genuine employee issues where care responsibilities have changed during the last 18 months. Some of this is completely unrelated to the Covid-19 pandemic and would have happened anyway. Where an employee has care responsibilities for elderly parents or care for children there are well established processes for making a “flexible working request”. It is likely there will be circumstances where flexibility will need to be requested, considered and either rejected or accepted. The last months have potentially masked these issues and the relevant discussions have not taken place.

In a set of different scenarios, employees have decided to make lifestyle changes. These changes may have been influenced by having the flexibility of working from home. The 2 most common issues arising are firstly, the employee has moved house, and secondly, the employee has taken responsibility for a pet. We are aware of circumstances where employees have “declared” that they are now working a new pattern of work, or from a different place and they are unwilling or reluctant to now resume activities from the workplace. One employee cited that they are only able to attend their normal London based office on occasion with advance notice due to them now being domicile in Scotland!

We would suggest a simple practical step of organising a discussion with all staff around what working arrangements are being contemplated or now necessary for the resumption of future activity. (There is an outline framework for the types of topics for discussion).

These may include:

• Acknowledging what adjustments have been in place since lockdown, including full or part-time furlough

• Does the employee have any caring commitment that have arisen or changed during the recent period?

• Does the employee having the underlying health conditions that need to be accommodated or considered? (Including any fears or concerns about returning to the workplace)

• How will the employee travel to work? Are there any special considerations here?

• Will the employee need any further training on new or updated company process?

• Is the employee familiar with new health and safety procedures or other measures in place?

• Is the employer aware of who to contact if they have any symptoms or contact triggers in relation to Covid exposure?

• What arrangements are in place for accrued holiday?

• Does the employee have any fears, concerns, or additional need for support at this time or in the future?

We recommend employers to be proactive in communicating their future intentions and also identifying specific issues for employees that may impact on operational efficiency, employee performance and good productive working relationships.

10 Questions Employers are asking about Furlough

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

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.  

Sleep-in Payments Ruling

The Supreme Court has ruled that care workers are not entitled to national minimum wage for ‘sleep-in’ shifts. This follows appeals in the cases Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and another (T/A Clifton House Residential Home).

The court referred to a recommendation first made in 1998 by the Low Pay Commission, and accepted by the government as part of the National Minimum Wage Regulations 1999, that sleep-in workers should receive an allowance and not the NMW unless they are awake for the purposes of working. The same recommendation was also included in the National Minimum Wage Regulations 2015.

It was however made clear that this ruling only applies to shifts where an employee is expected to sleep during their shift, which the claimants in this case were.

Making Flexible Working Work

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. 

Spring Budget update

Last week the Chancellor announced this year’s budget. We highlight the key points from the HR perspective below:

Furlough

• Extended to the 30^th September 2021.
• Employees will continue to receive 80% of wages (up to the set maximum). This will be funded in full by the government until the end of June.
• From July the government will start reducing its contribution. Businesses will need to contribute 10% from July and 20% from August.

Sick Pay

• For businesses with less than 250 employees, 2 weeks Statutory Sick Pay can still be claimed from day 1 for anyone off sick or instructed to isolate and unable to work due to Covid-19. There was no mention of this being withdrawn.

National Minimum Wage

• Increased to £8.91 ph from 1^st April. (For a full table of updated statutory rates see our newsletter)

Apprenticeships and Kickstarter

• Incentives raised for businesses taking on apprentices.
• Kickstarter scheme enabling businesses to hire a long term unemployed 16 – 24 year old. The Government will fund up to 25 hours a week at National Minimum Wage for 6 months.

Training and Recruitment

Enrolment for two new training schemes will  open soon:

• Help to Grow Management –management training with mentoring and with the Government covering 90% of the cost; and
• Help to Grow Digital – offering small firms free training and 50 per cent discount on software.

Covid-19 Latest updates

Our latest updates and resources relating to coronavirus will be posted on our website – https://www.robbryanassociates.org.uk/2020/03/12/coronavirus/

Coronavirus – Advice for employers

For our most up to date information see our webpage – https://www.robbryanassociates.org.uk/2020/03/12/coronavirus/

With the government preparing for widespread cases of the coronavirus(Covid-19), employers should monitor the official advice to maintain an up to date picture of the situation and best protect the health and safety of their staff.

Where can I find the official advice?
Government list of guidance
Government advice for businesses
NHS advice
Government action plan

What can employers do to minimise the risk in the workplace?
ACAS has produced a useful guide providing practical advice to help employers protect their staff. Good hygiene is key to preventing the spread of infection.
We suggest that you print the NHS guide out and pin to your noticeboard or another prominent place. You should also issue regular memos to circulate the latest official advice.
The government guide has advice for what do if someone in the workplace falls ill with symptoms linked to the virus or is diagnosed.
Employers should prepare an action plan which is ready to be put in place should there be an outbreak of the virus at work.

Sick Pay
If an employee has coronavirus:
Your usual sickness procedure and entitlement apply.

If an employee is advised to self-isolate:
If the employee has been advised by NHS111 or a doctor to self-isolate they should inform their employer immediately. If they are given written notice they are entitled to sick pay. The latest legal advice as of yesterday is that isolation without the illness does not qualify for SSP – although many are saying it would be good practice to pay. The Trade unions and others are seeking specific emergency laws to have a sick pay fund for those who wouldn’t normally be paid – they argue without this people will be motivated to attend the workplace with symptoms.
Some employees will be able to work from home while in isolation.

Latest news update Workers to get SSP from first day off https://www.bbc.co.uk/news/uk-51738837 (NB: this is the government’s intention – we await further detail)

Working from home
At present, there is no advice for workers to avoid travel in the UK but employers may want to consider in advance what provision there may be for working at home.

Travel abroad
As and when the virus becomes widespread, in some places travel and movements are likely to be more restricted.
If travel is for business purposes, consider if the meeting could take place via video conferencing instead.
If an employee is travelling for leisure we advise you to discuss with the employee their plans and pose the question regarding returning and self-isolation. You can agree in advance that should they need to self-isolate it would be unpaid authorised absence. It’s then an elective choice to go on holiday taking a risk or to cancel.

The Christmas Party

It’s the season to be merry and jolly and that means a word of warning from your HR advisors about the company Christmas party.

It’s advisable to issue a statement to employees in advance of a Christmas party or similar work-related event reminding employees of conduct matters, including the dangers of excess alcohol consumption, and behaviours that could be viewed as harassment. It would be wise to remind your employees that whilst the event is intended to be fun, it is an extension of the workplace and similar rules will apply.

The Equality Act 2010 makes employers liable for acts of discrimination, harassment and victimisation carried out by their employees in the course of employment, unless they can show that they took reasonable steps to prevent such acts.

In October 2018, a recruitment company was held vicariously liable for the actions of its boss when he punched a colleague on a Christmas night out. In Bellman v Northampton Recruitment, a “significantly inebriated” managing director caused a sales manager brain damage at a post-party drinks gathering. The ruling is of interest because technically the incident did not occur at the company event. However, because of the seniority of the staff member, the fact he was asserting his authority, and that the company had paid for alcohol and the taxis to the after-party, there was a strong enough link for vicarious liability.

Our advice is to plan your party carefully and remind all those attending of expected standards of behaviour. Employees can be disciplined for misconduct after a Christmas party if the incident is sufficiently closely connected to work to have had an impact on the working situation.

In Gimson v Display By Design Ltd, the employer was found to have fairly dismissed an employee for a brawl after the end of a Christmas party. However, you need to be careful where more than one employee is involved in the same incident. Where the circumstances are truly parallel, employees must generally be treated the same. Establishing “who is to blame”, however, can be difficult where memories are blurred by alcohol and the evidence is unclear. In Westlake v ZSL London Zoo, two zoo keepers got into a fight at London Zoo’s Christmas party as a result of which Ms Westlake was dismissed and the other zoo keeper, Ms Sanders, was issued with a final written warning. Given the lack of clear evidence as to who started the fight, the employment tribunal found Ms Westlake’s dismissal to be unfair. The tribunal observed that the employer could have legitimately dismissed them both or issued both with final written warnings.

Another issue that often crops up is what if an employee fails to come to work or arrives late the day after the Christmas party? If disciplinary action is to be taken for lateness or non-attendance after the Christmas party, employers should ensure that staff are informed that this is a possibility in the advance statement or company work events policy. Where an employee does not attend due to illness, the employer should follow its attendance management policy and procedures.

If you would like advice on your employee policies please get in touch www.robbryanassociates.org.uk/  01462 732444

Spoilsports?

It’s the summer which means it’s a peak time for sports tournaments – whether it’s the football world cup, Wimbledon, the Olympics or many other major events; your employees may be keen to keep up with the action.

But how can employers maintain productivity without being kill-joys? Can you boost morale by allowing staff to participate?

A Flexible Approach

• One way to facilitate employees following major tournaments is to allow games/events to be screened or listened to in the work place if your type of business allows. Remember not all employees will be fans so consider a sport free zone as well.
• Allow employees to start or finish earlier or work later to fit in around key events.
• Consider your internet/social media/mobile phone policy – can this be relaxed to allow employees to follow the action?

Annual Leave Requests

• More organised fans may have already requested time off but in the case of knock out competitions as teams progress to the next round you may get a flurry of leave requests. Follow your usual policy and be fair and consistent in how requests are granted.

Absence

• An employee calls in sick or fails to arrive on the day of the big game? Follow your usual procedures.

Hungover Staff

• Sport and a few drinks often go hand in hand. But what if your employees are turning up for work in an unfit state? Again, your usual policy should be followed. You should also have a policy in place regarding drinking during working hours.

And as we head to the finish line…

• Don’t forget it’s not all about UK sports. You may have staff supporting a number of different countries so make sure any flexible arrangements include them as well.
• Some people hate sport! Avoid them becoming resentful by being open in your communications and not allowing them to have an increased work load due to others taking advantage of a flexible working approach.

If you need advice on developing or implementing your workplace policies RBA would be pleased to hear from you.

Rob Bryan Associates Limited Main Office: 01462 732444 www.robbryanassociates.org.uk