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Post covid many employers are asking where they stand in the wake Of the self-isolation period ending and how this affects their current contracts and policies.

On 24th February 2022 England started “living with and managing” the risk of Covid-19, following the Government’s announcement in February.  One of the biggest changes was that the period of self-isolation that was previously required was removed.

This was not the only change. On 1st April 2022 free Covid-19 testing, such as PCR and Lateral Flow tests, stopped being offered by the Government, apart from to people in an at-risk group. The Government also stopped refunding statutory sick pay (SSP) for Covid-19 related absences, as well as ending “day 1” SSP on 24th March 2022.

What does this mean to you?

Whilst England has removed its measures, you still have a duty of care to your staff as an employer post covid. This applies throughout the UK. As such you do need to take steps to reasonably manage the risk of Covid-19 to your staff and have particular care for any vulnerable staff you have. We would therefore recommend carrying out an up-to-date risk assessment and reviewing your policies and procedures. As a business, you may:

As Boris Johnson said, individuals will need to take “personal responsibility.” Managing absence will continue under your existing absence management policy, but the important thing is that you assess the risk to your own staff, clients and businesses and set this out clearly in your policies. Taking legal advice on those policies and procedures to ensure compliance with employment law, particularly in relation to discrimination and health and safety issues, is strongly advised.

Updating Staff Contracts and Polices

Given the evolution of how the workplace operates in the wake of Covid-19, it is important to make sure that all contracts and policies are up-to-date.

What does this mean to you?

Contracts are the tool employers use and rely on to set out how the employment relationship will work. For example. they set out working times and places of work, which may be something that has changed since pre-pandemic times. You may also offer different benefits or staff incentives. Furthermore, s. 1 Employment Rights Act 1996 changed the minimum requirement for a contract of employment on 6th April 2020 and contracts for new starters should comply with this. As such, now is a good time to review your contracts.

As outlined in “managing sickness above”, new policies may need to be implemented, or existing policies may need to be reviewed. It is good practice to review your polices on an annual basis. Policies, assuming they’re not contractual, do not require employee approval and should therefore be easy to update.

If you would like advice or guidance post covid in regard to your company’s policies and procedures…Talk to Tollers on 01604 258558. Our experience Employment and HR law team is on hand to assist you with all you need to know. We’re here for you.

Can employees insist on working from home and how should employers handle these types of requests…

During the height of the coronavirus pandemic in 2020, working from home had risen by around 37%. But, with coronavirus restrictions being lifted on 24th February 2022, there are now questions being raised by both employers and employees as to whether individuals have a legal right to work from home and how requests to work from home should be handled.

What are the current rules on working from home?

On 21st February 2022, the government introduced a new strategy to help England to begin ‘living with covid’ which lifted the guidance on working from home moving forwards.

Is there a legal right to work from home?

There is no legal right to work from home unless it has been outlined within an employee’s contract of employment, or if an employer has made a separate agreement to introduce home working permanently.

Making a request to work from home

Despite there being no legal right to work from home employees do have the legal right to make a flexible working request if they meet certain eligibility criteria, including having the requisite length of service. An employer can choose to either accept or reject this request but this is subject to the circumstances of the case.

How should employers deal with a flexible working request?

An employer is expected to comply with legislation and the ACAS Code of Practice when handling a flexible working request. If they fail to do so, it could give an employee a claim in the Employment Tribunal for up to 8 weeks’ pay and the Tribunal could order that the application is reconsidered.

As part of the process when considering a request, an employer should arrange a meeting to discuss the request and issue a decision within 3 months of receiving it. Any rejection must be compliant with the reasons prescribed under legislation, and an employer can’t simply reject a request because they aren’t willing to accommodate home working. An example of a valid reason could be the burden of additional costs.

What is likely to happen in the future?

As a result of the working arrangements during the pandemic, around 72% of the public stated that they would leave their job if they are dissatisfied with their employer’s policy on home working. This suggests that there is likely to be a rise in flexible working applications in the absence of employees having a legal right to work from home.

It also indicates that employers may need to shift their attitudes to home working in order to keep up with employees’ demands on their work flexibility expectations.

This has led to the trial of introducing the four day work week in order to mitigate this issue.

Introduction of the four day work week:

As detailed in our recent article: Four day working week trial to take place in the UK,  the UK has recently introduced a four day work week through a six-month trial period, with 30 participating companies. This is a way to gain some understanding of whether working four days a week for the same wage would increase or maintain productivity when working for 80% of the time.  By moving to a productivity focused approach, it may enable companies to reduce work hours and keep up with the changing work model demands as a result of the pandemic.

Should the trial in the UK be successful, then the public could be entitled to a four-day work week. This would meet the demand during the era of ‘the great resignation’ and lead to the retention of staff and also the attraction of new staff.

If you have a question or would like further information regarding the four day work week and how this may impact your business… Talk to Tollers on 01604 258558. Our Employment team is on hand to assist you with all you need to know. We’re here for you.

More information on the four-day work week pilot can be found here

 

 

 

Carrying out a fair process when it comes to handling a disciplinary matter, or a grievance is key. But what about when an employee has a protective characteristic, either one that you are aware of, or should be aware of? It is important that a fair process looks at whether or not there are any protective characteristics that need to be considered and employers must ensure that they are handled fairly and sensitively so as to avoid a discrimination allegation or claim.

The law on equality provides a list of legally protected characteristics, these are:- age, gender reassignment, being married or in a civil partnership, being pregnant or on maternity leave, disability, race, religion or belief, sex and sexual orientation. To promote equality is to ensure that individuals or groups are not treated any less favourably to their peers as a result of their protected characteristics.

As an employer it is important to create an inclusive workplace environment for employees. This will help employees to feel valued alongside their peers, regardless of any differences or disadvantages there may be. This can and should also include the way in which an employer implements its policies and procedures.

What does this mean in practice?
Disciplinary Process:

Disciplinary issues usually arise as a result of misconduct and poor performance. Whilst some issues may be minor and resolved informally, it is important that employers understand their duties when dealing with a formal disciplinary process and to ensure that it is carried out in accordance with the necessary guidelines, internal procedures and current legislation.

Throughout the disciplinary process, particular attention should be given to any protected characteristics, or potential protected characteristics, which may be apparent or could be relevant. For example, if an employee is being disciplined for poor performance, consideration should be given as to whether there is a potential or actual disability that could account for that poor performance. If so, a sanction that fails to address that, could amount to a discrimination claim. An employee may be being harassed for a reason relating to a protected characteristic, such as sex, or race or religion and that might have had an impact on their performance or conduct.

An employee may also need adjustments making to enable them to participate in the process so that they are not placed at a disadvantage. This can include but is not limited to, holding the meetings out of the office (especially in situations where allegations of bullying or harassment have been raised, or the employee is unwell), allowing enough time between meetings, or allowing the employee options to put their case in writing and/ or face to face.

Grievance Process:

The right to raise and seek redress of a grievance is implied into an employment contract. Grievances are used by employees when they wish to raise a concern, problem or complaint with their employer. It is important for employers to deal with grievances with care and to ensure that matters are resolved as soon as possible and in accordance with guidelines. Often grievances will make reference to discrimination allegations.

Moving forward with any grievances will require application of a fair and proper process throughout the investigation, hearing and decision-making stages. Failing to do so could mean that the employer has applied an unfair process which would likely open the door to potential legal action. Dealing with discrimination allegations is a sensitive issue. Bear in mind that the employee raising the grievance will need to be shown empathy and respect and employers should be open-minded, as what is perceived to be discrimination can be subjective. As a consequence, the way in which an employer carries out a grievance may lead to a discrimination claim, if for example, the employer can’t show that they didn’t adequately consider the allegations.

As with dealing with disciplinary processes, it is important to make any reasonable adjustments to the process so that it can be carried out fairly and that the employee feels comfortable. When dealing with the grievance process, management should be cautious not to further aggravate the employee by being insensitive, uncooperative or unaccommodating.

What does this mean to you?

It is strongly recommended that employers look at the work environment to ensure that rules and expectations are clear to all employees. This will assist employers when enforcing rules and standards and should create a fair and consistent approach. These processes and practices should not be discriminatory in any way and should be continuously reviewed to reflect ongoing efforts to promote equality and inclusion within the workplace.

How can we help?

As a business, it is necessary to ensure that policies, practices and procedures are continuously reviewed and updated to ensure that the business is prioritising equality and inclusion but also to ensure that when difficult situations arise, such as grievances and disciplinaries, they are handled correctly.

At Tollers, we can assist with reviewing your policies and procedures to give you confidence that they are in line with current guidelines and legislation. We can also advise you on any specific issues in respect of disciplinaries and grievances and conducting a fair process.

If you have a question or would like further information on how we can help… Talk to Tollers on 01604 258558. Our Employment team is on hand to assist you with all you need to know. We’re here for you.

More about Employment discrimination can be found here…

How will the SSP Rebate Scheme ending affect you.  The Government has announced that England is “now living and managing” the risk of Covid-19. The phase for removing Covid-19 measures is underway. One of the measures put in place by the Government, as a result of the Covid-19 pandemic, was to introduce the Coronavirus Statutory Sick Pay Rebate Scheme (Scheme) to support small to medium sized employers. The Scheme currently allows employers to recover Statutory Sick Pay (SSP) in relation to Covid-19 related absences or periods of self-isolation. Covid-19 related absences or the requirement to self-isolate were triggered if an individual:

  1. Was experiencing Covid-19 symptoms;
  2. Had to isolate due to a household member experiencing symptoms;
  3. Had to isolate as a result of a positive Covid-19 test;
  4. Was contacted by NHS Test and Trace notifying them to isolate due to contact with a positive case; or
  5. Had to isolate for 14 days in advance of a hospital admission, procedure or surgery.

The Scheme amended the qualifying days for SSP and currently allows employees to receive SSP from day one of their Covid-19 related absence, rather than on day four. From 24th March 2022, the Scheme is ending.

What does this mean to you?

From 24th March 2022, employers will revert back to the pre-pandemic SSP rules for sickness absences and can pay employees SSP from the 4th qualifying day of sickness absence, as they did before. Employers will also no longer be able to recover SSP due to Covid-19 related absences or periods of self-isolation from the Government. This ties in with the planned removal to offer free general Covid-19 testing, such as lateral flow or PCR tests from 1st April 2022, and the removal of the requirement to self-isolate, which is already in place.

Employers will no doubt be wondering how this affects managing staff absence in light of these changes. As an employer you do still have a duty of care to your staff, particularly your more vulnerable staff members. If you have a question relating to the SSP Rebate scheme or to SSP in general or would like further information on how we can help you… Talk to Tollers on 01604 258558. Our Employment team is on hand to assist you with all you need to know. We’re here for you.

Find out more about Absence Management…

 

April 2022 is fast approaching and with it, are the usual updates to employment law. So, what do you need to know?

Gender Pay Gap Report

Employers with a headcount of more than 250 staff must report the average earnings difference between men and women at their organisation. The trigger date for this, is known as the “snapshot date” and is essentially where the headcount figure as at either 31 March for public sector employers, or 5 April for private sector companies and charities in each year, is at 250 or more.

If you met that threshold on the relevant snapshot date in 2021, then your organisation has until either 30 March 2022 (for public sector employers), or 4 April 2022 (for private sector companies and charities) to complete their Gender Pay Cap Report for the 2021/2022 round of gender pay cap reporting. The report can be submitted online through the UK Government’s website: Report your gender pay gap data – GOV.UK (www.gov.uk).

Failure to comply would mean that your organisation will be formally investigated and if found to be breaking the law, would be required to immediately publish the data and could result in court action and a fine.

Increases to Pay Rates

National Minimum Wage

From 1 April 2022, the National Minimum Wage rates are going up. They will be increased as follows:

Statutory Pay

From 3 April 2022:

From 6 April 2022:

All employers should review their pay rates, to make sure that they are compliant with these changes.

Right to Work Checks

From 6 April 2022, some right to work checks can only be carried out online. These relate to individuals who have a Biometric Residence Permit (BRP) card, a Biometric Residence Card (BRC), or a Frontier Worker Permit (FWP).

If you have a question or would like further information regarding these employment law changes and how they may impact your business… Talk to Tollers on 01604 258558. Our Employment team is on hand to assist you with all you need to know. We’re here for you.

As you will have seen in the news last week, the Government has announced that in all likelihood all Covid restrictions will be lifted later this month. Self-isolation is also set to end on or around 24 March 2022.

A lot of employers will be worried about what this means for them. Employees will have pre-Covid contracts of employment that require them to work in a specific location, usually the employer’s premises. However, since the pandemic, the majority of staff will have been working from home and may prefer to stay that way.

What should employers look out for?
  1. Health and Safety

As an employer, you are legally responsible for protecting your employees from health and safety risks. It is important that you carry out health and safety risk assessments and review the handling of Covid symptoms and positive cases. If an employee feels that their health and safety is at risk of serious and imminent danger, they have the legal right to refuse to attend work. If an employee is subjected to a detriment for this reason, it could give rise to a tribunal claim.

  1. Discrimination

By creating a blanket requirement that all staff will need to return to the office full-time, or even part-time, it may put certain people at a disadvantage. Remember that one size may not fit all. Dismissing staff who refuse to return to work, may lead to tribunal claims, so there is a need to tread carefully. Any changes to the current working arrangements should account for any impact on those with medical conditions or disabilities. It is important to have a safe space for employees to raise any concerns they have.

  1. Flexible Working

The ‘normal’ way of working has been subject to significant changes since the start of the pandemic, with an increase in home-working/hybrid working. Where employers are asking employees to return to the office or change their current working patterns, they should also expect to see a rise in flexible working requests.

How can we help?

We can draft a policy to reflect any changes to your expected working arrangements and assist you through any flexible working requests. We can also advise on processes to follow, should you have a staff member who is reluctant to return to work.

If you have a question or would like further information regarding the possible Covid restrictions being lifted and how this may impact your business… Talk to Tollers on 01604 258558. Our Employment team is on hand to assist you with all you need to know. We’re here for you.

What the BBC has to say on the possible lifting of restrictions…

Addressing the menopause in the workplace has become an important topic of conversation in recent years, despite it historically being a taboo subject for many. Employment Tribunal claims have also been on the rise with 16 tribunal claims citing the menopause in 2020, an increase from just 6 in 2019.

Employers will need to assess whether their current culture promotes a supportive environment to minimise the risk of tribunal claims and to encourage open conversations.

What are the key considerations?

Employers should endeavour to create a supportive environment for women, to encourage staff to feel confident to discuss any issues openly and with confidence that any requests or concerns will be handled sensitively and confidentially. Offering flexible working, for example, part-time or job-sharing arrangements, can also help with those experiencing more severe symptoms.

What employment claims can be brought in connection with the menopause?

Although the menopause is not classed as a protected characteristic under employment law, employers need to be mindful that treatment of staff who are experiencing the menopause could still fall under the protected characteristics of age, sex and disability, resulting in a potential discrimination claim. More severe treatment could also give rise to a constructive dismissal claim, if the treatment is sufficient enough to amount to a fundamental breach of contract.

Treatment that could give rise to claims under employment law includes belittling employees about their symptoms, failing to listen to requests for help and support or even making direct comments about a women’s age.

What steps can employers take to mitigate the risk of employment claims relating to the menopause?

Implementing a workplace policy can assist with raising awareness, by setting out how issues can be raised and how they will be handled. Although ACAS has guidance on dealing with the menopause, they also recommend that employers have their own policy in place.

Employers should also consider training managers to ensure that staff are capable of dealing with menopause-related issues. Whilst this should help employees to feel properly supported, it will also educate the workforce for those who are unaware of the impact the menopause may have on women in the workplace.

How can we help?

We can draft a bespoke policy dealing with menopause in the workplace, or assist with further advice on what steps you can take to encourage a supportive environment.

If you have a question or would like further information on how we can help… Talk to Tollers on 01604 258558. Our Employment team is on hand to assist you with all you need to know.

What the NHS says about menopause…

Tollers Employment Law services…

As you will no doubt have seen in the news, the Government announced yesterday, that the UK is going to trial a four day working week. More than 30 companies are taking part in a six month pilot. The pilot will start in June and the aim is to see if employees can work with 100% productivity and effectiveness, over 80% of the time and still receive their full-time salary.  According to previous research, 78% of staff are reported as being happier and less stressed by adopting this work pattern.

What does this mean to you?

If this pilot scheme becomes something that applies to all employers, then employers will need to consider the following:-

  1. Updating employment contracts to change the employee’s working time;
  2. Having systems in place to monitor productivity; or
  3. Updating or adding new policies.

A lot of employers have already had to change the way in which they monitor productivity and the way in which their staff force work, due to the pandemic with a lot of staff working from home, or more flexibly.  Businesses may also have to give consideration as to how they balance the business needs, for example, that there is sufficient staff cover in place to effectively run the business. Employee welfare may also need to be considered and systems put in place to manage any potential employee burnout.

What do you think about this announcement?

With companies already having to adapt the way in which they work due to the pandemic and a lot more staff working remotely or more flexibly, what do you think? Is this something that you think could benefit your employees without too much disruption to your business. Perhaps you feel that one day less a week in the business would have a detrimental impact on the running of it. Are you concerned that your staff may suffer a burnout?

Talk to Tollers…

If this is something that you think will impact you or your business, or you want to know more…Talk to Tollers on 01604 258558 our employment team is here for you, to guide you through and provide the latest legal advice.

In an attempt to relieve the pressure on GPs amidst the ongoing Covid pandemic and the vaccine booster rollout, the Government has announced a temporary change to the requirement to provide a fit note during periods of sickness absence.

What are the changes?

For any periods of sickness absence which were reported on or after 10 December 2021, or up to and including 26 January 2022, employees will be able to self-certify their absence for up to 28 days, up from the previous 7 days. For absences that last for more than 28 days, a fit note would still need to be submitted in the usual way.

How will the change impact employers in practice?

Whilst the change enables an employee to take a longer period of absence without obtaining medical evidence, given that most common illnesses are likely to be short-lived, it is unlikely that an employee will need to self-certify for the full 28 days unless they are suffering from a long-term or serious illness. With that in mind,  you can continue to monitor absences and consider commencing an absence management process if you have concerns.

It is important to note that employees will still be obliged to comply with any reporting requirements under an existing sickness absence policy, including the requirement to report in daily to provide an update on their health and their anticipated return. If an employee fails or refuses to comply then you may have grounds to commence a formal disciplinary process.

What do the changes mean for you?

As the change surrounding fit notes is intended to be temporary, it is unnecessary to update existing sickness absence policies at this stage. That being said businesses should continue to treat absences in the usual way and in accordance with the terms of any absence policy, save for requesting that an employee provides a fit note where they fall under the amended scheme.

If you have a question or would like further information regarding these temporary changes and how they could affect you as an employer… Talk to Tollers on 01604 258558 and speak to our Employment Team who is here for you.

What the Government say…

More about absence management...

Rights to work checks are changing from 1st July 2021.  If you are an employer of Nationals from the European Economic Area (EEA nationals), it is important to understand how this affects you, your business and your employees.  Ahead of these changes coming into effect Tollers Employment Team answer some of the main questions they are being asked in regard to these important changes.

Who counts as an EEA national?

An EEA National is anyone who is an EU national, or a citizen of Iceland, Liechtenstein or Norway. Swiss citizens are also included within the scope of these changes.

What are right to work checks?

They are checks made against new employees to determine whether or not they have the legal right to work in the UK. All employers have a responsibility to check their employees’ right to work.

Do I need to conduct right to work checks for all staff?

You must carry out  checks for all employees, regardless of their nationality, before employment commences. If you only carry out right to work checks on EEA nationals, or other non-EEA individuals, this could be considered discriminatory.

You don’t need to carry out right to work checks on non-employees i.e. agency workers or contractors.

When do the changes come into force?

The changes for employers do not come into effect until 1 July 2021. Until 30 June 2021, you should continue to carry out the same checks for all new employees as usual, that being verifying their passport or national ID card.

What is changing?

From 1 July 2021, employers recruiting EEA nationals will have to check whether that individual has either settled status or pre-settled status under the EU Settlement Scheme, or has a visa to work in the UK. If they do, they should provide you with a unique code to enable you to log into the online government portal to confirm their immigration status. You must keep records of your checks on the portal including the date the checks were made.

You will not be able to solely rely upon a passport or national ID card to verify an individual’s right to work from 1 July 2021 onwards.

For British citizens, a passport, or some other form of official ID, for example a birth or adoption certificate, together with an official government document evidencing their national insurance number, should still suffice.

Do the changes apply to me?

If you currently recruit or are likely to recruit EEA Nationals, then the changes to the right to work checks will apply to you.

If you have any questions regarding these new changes, what it means for you and your business or for further information on how Tollers Employment team can assist you…talk to Tollers on 01604 248558. We’re here for you.

Helpful links:  Right to work checks: an employer’s guide – GOV.UK (www.gov.uk)

https://www.tollers.co.uk/employment-law-solicitors/

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