The Coronavirus Job Retention Scheme is set to close at the end of October, and many employers will be forced to consider making redundancies

The following list highlights some important points for employees to be aware of regarding their rights in respect of redundancy.

Redundancy pay

Employees on furlough leave retain the same rights to redundancy payments.

Employees with two years’ service are entitled to a statutory redundancy payment. This amounts to 0.5, 1 or 1.5 week’s pay for each full year the employee has worked for the employer capped at 20 years, the amount dependent on the employee’s age

Employees will receive 0.5 week’s pay for each full year they were under 22, one week’s pay for each full year they were 22 or older, and 1.5 week’s pay for each full year they were 41 or older.

Notice

Employees made redundant are entitled to between one and 12 weeks’ statutory notice, dependent on the employee’s length of service. Employees may have to work out this notice period or spend it on furlough leave, or employers may pay employees in lieu of notice.

Employees may be entitled to more than the statutory notice period depending on the rights afforded to them in their contract. It is important to review any written agreements that have been made with the employer to check the contractual entitlement to notice and redundancy rights in general.

If the contractual and statutory notice periods differ, the longer notice period will apply.

Outstanding payments

Employees are entitled to outstanding payments owed including any unpaid wages, expenses, and accrued but untaken holiday. Employers can require employees to take their holiday entitlement during their notice period providing that the employer gives the requisite amount of notice – twice the amount of days as the number of days required to be taken as holiday.

Insolvency

If the employer is insolvent and has not made the payments owed, employees can apply to the Insolvency Service to claim back any outstanding payments.

Volunteering for redundancy

Employers may ask employees if they wish to volunteer for redundancy. This still classifies as a dismissal, entitling the employee to the same statutory redundancy rights as someone who didn’t volunteer.

If only a limited number of redundancies are being made and an employee was thinking about moving jobs or retiring in the near future anyway, taking voluntary redundancy may be financially beneficial if their length of service means their redundancy pay would be generous.

Suitable alternative employment

If an employer offers suitable alternative employment within the company and this is unreasonably turned down by the employee, the employee may lose their right to statutory redundancy pay.

The question of whether the job offer is suitable can be contentious, so employees should try to have open conversations with their employers to discuss any alternative job offers.

Consultation

Employees who are being made redundant have the right to be consulted either individually, or if at least 20 employees within the company are being made redundant in a 90 day period, collective consultation rules apply which affects how the consultation takes place and the minimum length of the consultation.

Employees are able to put forward comments and suggestions including alternatives to redundancy, which the employer should listen to and consider.

A failure by an employer to properly inform and consult where at least 20 employees are being made redundant may entitle an employee to a Protective Award payment from the employment tribunal.

The amount of compensation awarded is at the tribunal’s discretion and can be up to 90 days’ gross pay to each employee affected. Claims for a Protective Award must be brought within three months of the date of the last dismissal.

Time off

Employees made redundant with two years’ continuous service by the date their notice period ends are entitled to seek a reasonable amount of time off work, to look for new employment or to make arrangements for training to help find another role. Pay is limited to 40% of one week’s pay for the entire time taken off.

Right to appeal

Employees may have the right to appeal the redundancy decision by writing to their employer and setting out the reasons for appeal.

Unfair dismissal and discrimination rights

In order for a redundancy to be fair, a selection criteria must be drawn up along with a pool of employees to select from for redundancy. The employer must then engage with this process fairly and select employees based on transparent and objective criteria. Once a provisional decision has been reached, the employer must follow a fair procedure for consulting with employees over this process.

An employer also needs to show that alternatives to redundancy were properly considered and that reasonable efforts were made to find alternative employment.

Employees with two years’ service are entitled to bring a claim for unfair dismissal. A claim for unfair dismissal could be made if an employee believes they were unfairly selected for redundancy, the employer didn’t follow a fair redundancy process or if the dismissal was not genuinely for the reason of redundancy.

Discrimination claims could also arise if an employee is selected for redundancy on the basis of a protected characteristic under the Equality Act, for example, or the employee’s working pattern.

Typically, unfair dismissal claims must be brought three months less one day from the last day of employment, and discrimination claims must be brought three months less one day from the last act of discrimination complained of

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Coronavirus: Your Employment-related Questions Answered

What are our obligations from a health and safety perspective in relation to our staff?

Employers have a duty to ensure the health and safety of their employees and non-employees (contractors, members of the public, etc.) so far as is reasonably practicable. This would include taking reasonable steps to control the spread of the coronavirus at sites under the control of the employer. Employers should carry out a risk assessment and then implement reasonably practicable control measures to either eliminate or mitigate the coronavirus hazard. From a practical perspective, we would recommend that employers:

  1. Ensure staff are aware of the symptoms and the latest advice on how to minimise the risk of infection.
  2. Implement a reporting procedure for anyone with symptoms.
  3. Implement a reporting procedure for individuals who have recently visited “high-risk” areas, such as China, Northern Italy, etc. This may mean that staff have to “self-isolate” if they have returned from a high-risk area (see below for further guidance).
  4. Make individuals aware of the latest government guidance.
  5. Ensure any control measures identified by the risk assessment are aligned with the government’s advice. Employees are under a legal obligation to cooperate with their employer and other duty holders to enable them to comply with health and safety legislation.

Should we place restrictions on our staff in terms of work-related international travel?

Today the 16th March the Foreign and Commonwealth Office (FCO) is advising against all and all but essential travel to some countries, cities and regions. You must check the travel advice to the country you are travelling to …

In what circumstances are our staff required to stay away from work?

Again, the position is changing quite quickly, but the latest advice from the FCO is that anyone who has returned to the UK from the certain areas should “self-quarantine” and stay away from work, even if they are not displaying any symptoms. This information is being updated on an ongoing basis, so employers should ensure they monitor the situation.

Other employees should only stay at home if they have travelled to certain countries (see the latest advice from the FCO as this list is changing) and then develop symptoms of a cough, fever or shortness of breath, however mild. As a general rule, therefore, employers should not require staff to stay away from work simply because they have travelled to these countries. Taking any steps to force them to do so (even if under pressure from other members of staff) may amount to a breach of the implied term of trust and confidence. Employees may be willing to work from home for a period of time (the incubation period for the virus is estimated to be between two and 14 days), but employers should be very careful about how they approach such conversations so as not to put themselves at risk of a claim.

Do we have to pay an employee if they self-isolate?

Clearly, if a member of staff is actually unwell with the coronavirus, you should pay them in accordance with your usual sick pay/leave arrangements. 

The position becomes less clear if they are self-isolating in line with the latest government guidance, but are not (outwardly, at any rate) actually unwell. 

We understand that the Health Secretary, Matt Hancock, told MPs: “self-isolation on medical advice is considered sickness for employment purposes. That is a very important message for employers and those who can go home and self-isolate as if they were sick, because it is for medical reasons”.  However, it is not clear on what basis he has reached this conclusion.  It may be a loose reference to the fact there are provisions buried in the legislation under which individuals can be deemed to be sick for SSP purposes in certain circumstances.  Further clarity from the government would be welcome.

Employers should obviously check their own policies/ contracts concerning pay, but it would be unusual for employees to have a contractual right to pay/sick pay in these circumstances. Some employers may choose to treat such periods of absence as sickness for their own company sick pay purposes.

Acas has recommended in its guidance on the coronavirus that employers treat such leave as sick leave and follow their usual sick pay policy or agree for the time to be taken as holiday. 

It would clearly be best practice to pay employees their normal pay in these circumstances and we note that some large employers have already adopted this approach, not least because otherwise employees may try to come into work, putting others at risk. We would, however, recommend that employers take specific advice on this issue before agreeing to anything, as there may be circumstances where it is not appropriate to adopt/continue with this approach.  It may also lead to ‘copycat’ absences once employees are aware that company policy is that they will be paid as normal when absent due to self-isolation. 

If an employee is able to work from home, this makes things simpler, as the employer should allow this and continue to pay the employee as normal. We recognise that this will not be practicable for all employees.

How should we deal with a member of staff who refuses to come to work because they are concerned about the risk of infection?

In light of the current threat level in the UK, it is unlikely to be reasonable for an employee to refuse to come to work on this basis, especially if there have been no cases in their specific workplace. Clearly, however, an employer should take steps to understand an employee’s concerns before taking any action, especially if they may be at greater risk from developing the coronavirus. In light of the current media coverage of the coronavirus and stories about whole offices being sent home, it is not surprising that some individuals are worried about contracting the virus and are keen to take steps to minimise the risk of infection.

If you are communicating with your staff about the virus and what steps the company is taking to protect the health and safety of its staff, the risk of employees refusing to come to work is likely to be reduced. If there is some basis for their concerns, you may want to think about allowing them to work from home for a period of time, taking some annual/ unpaid leave, etc. It might also be useful to remind them of other support services you have in place, such as employee assistance programmes and wellbeing programmes.

What should we do if a member of staff is confirmed as having the virus and has recently been in the workplace?

The current advice from the government is that, in such circumstances, the employer should contact the Public Health England local health protection team to discuss the situation, identify people who have been in contact with the individual and discuss any actions or precautions that should be taken. A risk assessment will be undertaken by the health protection team and advice to the company will be based on this assessment. The government says that closure of the workplace is not recommended. A knee-jerk response risks demonising the sick employee in circumstances where it may not be down to them at all.

If our staff say they want to wear face masks at work, are we entitled to say no?

In the majority of circumstances, yes. The current advice from the government is that employees are not recommended to wear facemasks to protect against the virus. It recommends that facemasks are only required to be worn by “symptomatic” individuals (as advised by a healthcare worker) to reduce the risk of transmitting the infection to other people. Similarly, the latest advice from the World Health Organization is that people only need to wear facemasks if they are treating someone who is infected with the coronavirus.

If staff are concerned about contracting the virus, they should follow normal best practice about reducing the risk of infection, e.g. washing hands frequently, disposing of tissues, etc.

If the situation worsens and we are considering closing one of our sites, do we have a right to lay off staff in these circumstances? Are we obliged to continue to pay them?

In certain sectors, employees’ contracts of employment or collective agreements may contain “layoff” provisions, which give employers a contractual right not to provide employees with work for a short period of time, usually as a way of avoiding redundancies. Employees can be laid off without pay where there is a contractual term to this effect, but they may be entitled to a statutory guarantee payment from the employer.

Employers may be able to rely on these provisions in certain circumstances, but as employees may bring claims if layoffs are not handled correctly, we would recommend that employers take specific advice on this issue before requiring staff to stay away from work, especially if they wish to be able to do so without paying them. Acas has produced guidance for employers on layoffs and short-time working.

Can we prevent staff from going on holiday to high-risk areas?

It may be possible to turn down a holiday request by issuing a counter-notice in accordance with the provisions of the Working Time Regulations 1998, but a better (and less antagonistic) approach at this stage may be to remind staff about the latest government guidance on high-risk areas and the circumstances in which they would be required to self-isolate on return to the UK, possibly without pay. Employers should ensure they do not do anything that could give employees the right to bring a constructive dismissal/ discrimination claim, etc., but they can certainly encourage staff to insure against holiday cancellation on these grounds.

Practical Tips for Employers

  1. Stay up to date with the latest guidance – The situation is obviously changing quite quickly, so employers should ensure they stay up to date with the latest government guidance and advice from public health agencies. Links to key websites are provided below:
    1. The government’s guidance for employers and businesses. This contains useful advice for employers in providing advice to staff on the virus, what to do if someone with the virus has been in a workplace setting, etc.
    2. Acas has published some guidance for employers on what they should do to protect the health and safety of their staff.
    3. The latest travel advice from the FCO.
    4. The latest advice from the NHS.
    5. Employers should review their approach in light of the latest guidance.
  • Avoid knee-jerk reactions – Employers should ensure they adopt a proportionate response to the coronavirus outbreak, based on the current level of risk in the UK, the nature of their business, available medical opinion, etc. Knee-jerk reactions could result in grievances and, at worst, claims.
  • Communicate with your staff – While the risk to health in the UK is currently still low to moderate, the extensive media coverage of the coronavirus is making many people concerned about the risks, especially if they are more vulnerable to infection, e.g. the elderly and those with certain health conditions. Employers should, therefore, ensure they are communicating with their staff about the virus, letting them know what they can do to protect themselves against the risk of infection, together with the steps the company is taking to deal with the risk, e.g. suspending business travel to China, etc. Employers should clearly be careful about the tone of their communications to avoid any unnecessary panic.
  • Have contingency plans in place – It would be sensible to review your business continuity plan to ensure you know what to do if the threat level increases. In addition, ensure that you have up-to-date contact details for your staff, emergency contact details, etc. Consider what you can do in advance to facilitate home working and to maintain key trading functions.
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Changes to UK employment law 2020

What are the changes for UK employment law in 2020?

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In this article, Sean Dempsey and Richard Lister of UK law firm, Lewis Silkin, take a look at what’s coming up in UK employment law in 2020

Lewis Silkin is the UK member firm of Ius Laboris, an HR and employment law firm alliance.

Looking ahead to 2020, various Good Work Plan reforms are coming into effect in April and the Government is planning to introduce a new Employment Bill, which will pave the way for a number of further employment law reforms. It is clear that the Government’s main priority is ‘getting Brexit done’, but we can expect several employment law reforms to be progressed during the course of this year, many of which are to be included in the proposed new Employment Bill.

Brexit impact on employment law

The prime minister has brought the Withdrawal Agreement Bill back to Parliament, and expects MPs to ratify it prior to the UK leaving the EU on 31 January 2020. The Government has, at least for the time being, ruled out extending the transition period beyond 31 December 2020. The Conservative manifesto contained no detail about long-term plans for employment law, though did include a pledge to ensure high standards of worker’s rights. For more information about the implications of the current divorce deal, and the scope for long-term divergence from the EU on employment rights, see our Brexit portal.

New IR35 rules

Changes to the operation of IR35 regime are due to take effect from 6 April 2020. Private-sector businesses engaging contractors who supply their services personally via an intermediary (e.g. a personal service company) will become responsible for determining whether IR35 is applicable. If the business considers IR35 applies, the person paying the intermediary will be responsible for operating PAYE and national insurance on the fees it pays.

Companies affected should urgently prepare for these important changes by, for example: auditing their labour supply chain to identify contractors using intermediaries; deciding on a methodology for assessing their status; and reviewing their onboarding process and documentation for contractors going forward. Before the general election, the Chancellor Sajid Javid said there would be a review of the proposed IR35 changes to ensure they were ‘right to take forward’. It seems more likely than not the reforms will proceed in April, so it remains sensible to continue preparations.

Written statements

One of several reforms being implemented from the Government’s Good Work Plan is a revamp of the rules requiring employers to supply staff with a written statement of key particulars of their employment. From 6 April 2020, statements will have to be provided to those with ‘worker’ status in addition to employees, by day one of employment. More information will need to be set out in the statement, including details of the full benefit and remuneration package. Many employers are likely to be recruiting for April starters, so now is the time to start reviewing and amending their standard documentation.

Agency workers

The law on agency workers is also changing in April. When the UK first implemented the EU Agency Workers Directive, it enacted the so-called ‘Swedish Derogation’, which provides that certain agency workers are not covered by the principle of equal treatment. This is being abolished with effect from 6 April 2020. Businesses will need to decide what to do about any agency workers on Swedish Derogation contracts and, where appropriate, migrate them onto standard agency contracts or take them on as direct hires.

Holiday pay

The reference period for calculating holiday pay is increasing from 12 weeks to 52 weeks on 6 April 2020. This change may create practical problems in relation to people who work intermittently for just some weeks of the year. Employers should review their current approach to calculation and identify any changes required, and perhaps conduct a dry run to assess any cost impact.

Information and consultation

The final April 2020 Good Work change is a reduction in the threshold for demanding information and consultation arrangements under the Information and Consultation of Employees Regulations 2004 from 10% to just 2% of employees.

Termination payments

After significant changes to the tax treatment of termination payments were introduced in April 2018, a related requirement for employers to pay employer NICs on any part of an ex gratia termination payment exceeding GBP 30,000 was put on hold. This change will now come in on 6 April 2020, making termination payments more expensive.

CEO pay ratio reporting

The first reports will be due this year under the new legislative regime requiring directors of UK-listed companies with 250 or more employees to report annually on the difference in pay between their CEO and average workers.

Parental Bereavement (Pay and Leave) Act 2018

A new right to parental bereavement leave, giving parents two weeks’ paid leave if they lose a child under 18, is expected to come into force sometime this year. Regulations setting out details of how the right will operate are still awaited.

Discrimination

The Government has promised to implement a planned reform to provide priority access to redeployment opportunities for pregnant women and new parents in a redundancy situation. The new Employment Bill will include provisions to implement these new rights.

Regulation of NDAs

The Government is expected to bring forward legislation introducing new restrictions on confidentiality clauses in employment contracts and settlement agreements. This follows the publication of a consultation response on the issue last July. There is no draft legislation yet and the implementation date is unknown.

Family and carers’ rights

The Government will be taking forward plans to allow parents to take extended leave for neonatal care (following a consultation published last July). The Employment Bill will also provide for a new right for carers to take a week’s leave each year. The Conservative manifesto said they would look at ways to make it easier for fathers to take paternity leave, but no further details have been released.

Making flexible working the default

The Government intends to encourage flexible working arrangements and consult about making them the default unless employers have a good reason otherwise. Details are not yet clear, but the plans could go further than the proposals currently under consultation that would require employers to say if flexible working is available in job adverts and publish their flexible working policies.

Employment status and protections

Despite the unresolved issue of employment status (see above), the Conservative manifesto did promise that workers would gain the right to request a more predictable working contract. This is something which had already been promised in the Good Work Plan, and forms part of the requirements of the EU Transparent and Predictable Working Conditions Directive.

The right to a more predictable working contract will form part of the new Employment Bill. The manifesto also mentioned other ‘reasonable protections’, which may refer to rights to reasonable notice of work schedules and compensation for shift cancellation, which are already under consultation.

Staff tips

The new Employment Bill will provide for legislation requiring employers to pass on all tips. The Government also plans to introduce a new Statutory Code of Practice to ensure that tips are distributed fairly and transparently.

New state enforcement body

The Conservative manifesto also pledged to create a new state enforcement body to tackle non-compliance in the labour market, following a consultation published last year.

The plan outlined in the consultation was to bring together the existing patchwork of enforcement under the remit of a single body, and then expand its remit to cover holiday pay for vulnerable workers and umbrella companies operating in the agency workers sector. The Government is likely to focus on targeting the most exploitative employers.

Upcoming cases in 2020.

Important employment cases to be decided this year include the following:

  1. Data protection

The case of Morrison Supermarkets plc v Various claimants was heard by the SC last November and the judgment is expected soon. Morrisons is appealing against the CA’s ruling that it was liable for the wrongful disclosure of payroll data on around 10,000 staff by an aggrieved employee.

2. Minimum wage

In February, the SC is due to hear Royal Mencap Society v Tomlinson-Blake, a case of huge significance for the care sector. The CA decided that care workers carrying out ‘sleep-in’ shifts were not entitled to the national minimum wage for the whole shift, but only when they are required to be awake and working.

3. Employment status

In Uber BV v Aslam and others, a case of major interest for the gig economy, the CA upheld by a majority the finding that drivers engaged by Uber are workers rather than self-employed, whenever they are signed into the relevant app and ready to work. The SC is scheduled to hear Uber’s appeal in July.

4. Equal pay

Asda Stores Ltd v Brierley (see here) is likely to be decided by the SC this year. A hearing date for Asda’s appeal is awaited.

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Employment Law Changes 2020

The Government intends to introduce a new Employment Bill which will include some changes already anticipated by the Good Work Plan. The Employment Bill will provide for:

  • The right to request a more stable and predictable contract after 26 weeks’ service;
  • The right to neonatal leave and pay for parents of premature or sick babies;
  • A single market enforcement agency to better ensure that vulnerable workers are aware of and can exercise their rights and which supports business compliance;
  • The extension of the period of redundancy protection from the point an employee notifies her employer of her pregnancy until six months after the end of maternity leave;
  • A week’s leave for unpaid carers;
  • Making flexible working the default right where employers do not have a good reason not to allow it;
  • Tips to be received by workers in full; and
  • The Government will also be bringing forward detailed proposals next year following its “health is everyone’s business” consultation. These will include measures to encourage employers to play their role in retaining disabled people and people with health conditions in the workplace. The Government intends to reduce the disability employment gap and to reach the existing goal of an increase of one million disabled people in work between 2017 and 2027
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