Author: Ilinca Mardarescu

Employers with 50 or more employees who cannot work from home can now register for rapid lateral flow testing kits to distribute to staff.

What is rapid lateral flow testing?

Rapid lateral flow testing (LFT) is a means of testing people who show no symptoms.  It usually takes only 30 minutes and can be easily done at home or at a specialist LFT site.  

The method used is the same as the more traditional PCR test (i.e. a nose and throat swab) and then pacing the swab in a vial of liquid for 30 minutes before testing the liquid to see if the person has the infection.  Where the test comes up positive, the person is asked to confirm the test result with a standard PCR test.

LFT is not to be used for anyone with symptoms.  Anyone with symptoms is asked to attend a normal testing centre for the traditional Covid test.

It has been accepted that the LFT is not as accurate as the traditional PCR test.  However, making LFT widely available is considered to be key in assisting those who are asymptomatic know whether they have the virus (and thereby taking them out of circulation and risk of spreading the infection further by ensuring they self-isolate).  

Should employers sign up for LFT?

It is an employer’s duty to protect the health, safety and welfare of its employees.  Many jobs are unable to be carried out from home and for those LFT can assist the employer in discharging its duty.  Moreover, if an employer utilises the LFT wisely, it can protect its business from struggling to cope and averting all of its employees becoming affected.

Employers currently need to put in place measures to stop the risk of COVID spreading.  This includes social distancing, regular and thorough cleaning, masks and physical barriers and cleaning stations to name a few.  However, with LFT becoming more available, employers should consider also imposing strict “bubbles” within the workplace. LFT could therefore mean that where an employee tests positive, only that smaller bubble is at risk rather than the entire workplace.  

What if an employee refuses to take the test?

Employers should already have a COVID policy in place dealing with the measures all staff are required to take to keep the workplace safe.  The requirement for all staff to participate in LFT should be added to this and a further copy distributed to all staff.  This requirement would be considered a reasonable instruction by the employer (unless there are specific medical reasons for not doing so) and employees could face disciplinary action for refusing.  It is important to note that employees are also required to ensure the health and safety of not only themselves but those around them.  

For assistance with this or any employment-related area, please contact our Head of Employment, Ilinca Mardarescu.  

 

The ever-changing regulations regarding who has to self-isolate upon return from what country has thrown up many questions for businesses and individuals alike.

The list of countries from which you have to self-isolate is constantly changing and the decisions are often announced very quickly.  

The Department for Business, Energy & Industrial Strategy has issued new guidance for employees and employers on employment rights when self-isolating on return to the UK from a country subject to quarantine restrictions.

Currently, all travel corridors have been suspended effective 18 January 2021. The current, up to date information on travel quarantine rules can be found here.  https://www.gov.uk/guidance/coronavirus-covid-19-travel-corridors

If you arrive in England from anywhere outside the UK, Ireland, the Channel Islands or the Isle of Man you will need to self-isolate for 10 days.

Working from home

Where possible, employers should allow employees to work from home during the 10 day self-isolation period. 

Taking annual/unpaid leave

Employees may be able to take annual leave to cover the period of their self-isolation, subject to certain entitlement requirements.  Employers may also be able to tell their employees to take annual leave provided adequate notice is given.

Employees may also be entitled to take annual leave if they are forced to travel to deal with family or dependent emergencies. If that is not possible, employees should be allowed to take unpaid leave.

Where a new country liable for quarantine is announced

Employees should talk to their employer as soon as possible to discuss options. Clearly, the employer having a clear policy for all staff in such situations will be beneficial to both parties concerned.

Sickness

Employees will not be entitled to sick pay if they are required to self-isolate following travel abroad.  Sick pay is only available where an employee is actually ill and evidence of this is usually required by way of doctors’ notes.

Dismissal

When dismissing staff, employers must do it fairly. Valid reasons include capability, conduct or redundancy.  Even if employers have a valid reason, the dismissal is only fair if it’s a reasonable response in the circumstances and they follow a fair procedure. 

Dismissal should always be a last resort and employers should consider alternative arrangements first, such as agreeing with employees to take annual leave or unpaid leave. Where possible, employers should explore the option for the employee to work from home or to agree work that can be completed from home.  Employers who dismiss an employee because they have had to self-isolate following travel abroad may be liable for unfair dismissal.

A clear and detailed policy issued to all employees covering travel and restrictions will assist in such cases.  A policy would provide certainty to all parties concerned and will make it clear to employees what is to be expected if they are caught out by new restrictions.

For any assistance in creating a suitable Travel Policy for your business, please contact our Head of Employment Ilinca Mardarescu

Tesco, Asda and Waitrose all announced last week that they will deny entry to shoppers not wearing face masks (unless medically exempt). No doubt more will follow.

Additionally, we have all seen an increase in police challenging individuals as to why they are not wearing a mask.  Government guidance does state that the police can take measures if members of the public don’t comply with the law in relation to wearing masks.  However, members of the public are not required to carry with them any specific form of medical exemption certificate.

Shops can refuse to allow an individual to enter a store (which is private property) as long as that refusal is not discriminatory in any way.  Businesses have been spending money on ensuring the workplace is safe and secure for those who work in them and they have a general duty to protect the health and safety of its own staff as well as members of the public.  But what about those employees who refuse to wear a mask in the workplace?

Employers will need to tread carefully in mandating the wearing of a mask.   Indeed, a blanket approach could lead to claims of discrimination.  Where there are genuine medical reasons why employees are unable to wear a mask, they cannot be forced to do so.  Employers should generally already know about any medical conditions affecting their staff. It is good practice to ask, at the commencement of employment, about any on-going medical conditions in order to be able to effectively protect the health and safety of all of its employees.   It is also a good idea to include a clause in the contract of employment requiring employees to keep an employer updated as and when their medical condition changes.

Difficulties arise when there is a need to balance the health and well-being of all staff against those of one or two.  The majority of employees may be happy to wear and mask and may expect others to do so around them – they may have their own vulnerable family to consider.  I should be noted that employees have the right not to be pressured or abused in any way if they are unable to wear a mask.  In such situations, open communication with all parties is paramount.  A conversation should be had with those unable to wear a mask and consideration given as to what other measures can be put into place.  This could include moving them to another part of the business which is quieter or has less contact with others, ensuring social distancing is possible, utilising other protection methods such as Perspex barriers and asking those employees who cannot wear a traditional mask to wear a face visor instead.

A full COVID policy should be put into place in all workplaces, covering what is expected of employees in terms of extra precautions and safety measures to be adhered to.   For any assistance with this or any employment-law related topic, please contact our Head of Employment, Ilinca Mardarescu

ON 4th January 2021, the Prime Minister issued a statement urging everyone to stay at home. This new Tier 5, imposed nationally, has meant that all schools will be closed and people have been urged not to leave the house except for essential and specific reasons. This is much more akin to the first national lockdown which took place in March 2020.

But what does this mean for jobs and the workplace?

Guidance on what this means has been published by the government. This states;

You may only leave your home for work if you cannot reasonably work from home.

Where people cannot work from home – including, but not limited to, people who work in critical national infrastructure, construction, or manufacturing – they should continue to travel to their workplace. This is essential to keeping the country operating and supporting sectors and employers.

Public sector employees working in essential services, including childcare or education, should continue to go into work.

Where it is necessary for you to work in other people’s homes – for example, for nannies, cleaners or tradespeople – you can do so.

Otherwise, you should avoid meeting for work in a private home or garden, where COVID-19 Secure measures may not be in place. Employers and employees should discuss their working arrangements, and employers should take every possible step to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working. The risk of transmission can be substantially reduced if COVID-19 secure guidelines are followed closely. Extra consideration should be given to those people at higher risk.

As previously, more information and detailed legislation will be published soon. The law, once passed, is due to take effect from the early hours on Wednesday. However, the new restrictions mean that people may not leave the house without a reasonable excuse and the police will have the power to enforce this.

We have all been here before. Thoughts of home-schooling again and memories of the last lockdown mean we may well dread this next lockdown. But businesses – and to a certain extent individuals – are more prepared for this type of lockdown than ever. We have done it before; we can do it again.

For any assistance with how this will affect you in your employment or business, please do get in touch with our Head of Employment, Miss Ilinca Mardarescu.

As of 1st December 2020, the ACAS Early Conciliation period has been extended to last for a set period of six weeks in all cases.

But who is ACAS and what is the Early Conciliation period?

ACAS is an independent public body that receives funding from the government.   It provides free and impartial advice to both employers and employees on issues relating to employment law including best practice, policies and assist with early settlement of claims.

For most claims which are brought in the Employment Tribunal, it is a requirement that the Claimant notify ACAS prior to issuing proceedings, of his/her intention to issue proceedings.  This is easily done by filing in a simple form on the ACAS website.

Once the Claimant has notified ACAS, the matter will be referred to an ACAS conciliator, also known as a conciliation officer.  The conciliation officer will contact the Claimant to explain the early conciliation process. They will check the information given on the form, discuss the matter generally and establish whether the Claimant wants to try to settle the dispute.  If the Claimant is open to negotiation, ACAS will contact the Respondent (the employer) to start the process of trying to reach a settlement.

Neither party are compelled to enter into negotiations and ACAS does not have the power to force participation in settlement discussions.  However, it is often a good idea for the parties to participate in the process seriously before matters proceed to a more formal stage. Once proceedings are issued at the Employment Tribunal, the parties have to adhere to the Orders given by the Tribunal and in the majority of cases legal costs will then start to be incurred. 

ACAS does not provide legal advice and cannot advise either of the participants on what to do or what is reasonable in terms of negotiating a settlement.  For this reason, it is advisable for parties to obtain their own legal advice on the strength of their case during this process.  Knowing the likelihood of success is an important factor when negotiating a settlement.

Once the six week period has passed, ACAS will issue a certificate to the Claimant to confirm they were notified of the claim as requiered.  The certificate has a number on it which needs to be quoted on the Claim Form (ET1) when issuing proceedings at the Employment Tribunal. 

For any assistance with the Early Conciliation process or other employment-related matter, please contact our Head of Employment, Ilinca Mardarescu.

As of Thursday 5th November 2020, all of us in England will enter the second period of national lockdown.  Currently, this is expected to last 4 weeks ending on 2nd December 2020, although by now we must all appreciate that this may yet still change.  

Alongside this announcement, the government confirmed the extension of the existing Coronavirus Job Retention Scheme (CJRS), also known as ‘furlough’.  This had been due to end on 31 October but has been extended for one month.  Interestingly, the extension not only means businesses can continue the scheme where needed but the contribution amount has also increased to the earlier amount of 80% of an employees’ wages.

As previously, there are a few crucial points which businesses need to be aware of such as:

• Following the right HR process;
• Identifying who can go on furlough;
• Updating contracts or putting a written agreement into place for affected staff;
• Claiming the 80% wages from the government.

Unlike the first lockdown, the government has stated that those who cannot work from home can continue to work (subject to the forced closures of certain businesses such as bars, restaurants, non-essential shops and the like).  For those continuing to work on site, businesses will need to be extra vigilant to ensure they keep their premises as safe as possible for all staff.  A review of the health & safety assessment should be undertaken to ensure businesses do not face potential claims from employees or indeed fines.

For those with employees working from home, a robust work-from-home policy should already be in place.  However, if this has not been reviewed recently it is important to consider areas such as GDPR compliance when staff are working from home, the use and monitoring of equipment, relevant insurance and clear guidelines for all as to the practicalities for home-working.

For any assistance on these matters, please contact our Head of Employment, Ilinca Mardarescu.

Another week, another amendment! Rishi Sunak has announced yet further amendments to the new Job Support Scheme (JSS) which is due to start on 1st November. In fact, he has split the scheme into two separate schemes – one will be known as JSS Open and the other as JSS Closed.

Unsurprisingly, JSS Closed will deal with businesses that have been required to close under lockdown regulations whilst JSS Open will support those businesses which are open but working on a very much reduced basis.

Under the new JSS Open, an employee will need to work at least 20% of their normal hours. This has therefore reduced considerably from the 33% originally announced. Employees will receive their normal pay for the hours they work, and two-thirds of pay for the hours they do not work. This is subject to a cap of £3,125 per month.

For that two-thirds top-up, the government has increased its contribution substantially confirming it will pay 61.67% and the employer will only be liable to contribute 5%, plus NI and pension contributions on the full amount. This reduction will greatly assist struggling businesses.

Importantly, it has been confirmed that there must be a written agreement between employer and employee, agreeing to these changes.

Under JSS Closed, employees will receive two-thirds of their normal wages, fully funded by the government (subject to the same £3,125per month cap). Employers will only have to pay the NI and pension contributions on that amount but will not be required to contribute to wages directly. Again, there must be a written agreement between employer and employee, agreeing to these changes.

All SMEs and large businesses are eligible if their turnover has fallen due to coronavirus (according to their VAT returns). Although not strictly prohibited, large businesses which are currently paying out dividends are discouraged from applying.

The government is setting up an online portal (similar to the previous one used for CJRS/Furlough) for employers to use to claim back the payments. The first claims can be made from 8 December 2020.

Further details will no doubt be released soon. Meanwhile, for any assistance with implementing these schemes or the written agreement necessary, please contact our Head of Employment, Ilinca Mardarescu.

There has been much discussion on Chancellor Rishi Sunak’s new Job Support Scheme (JSS) which is due to start on 1st November.  This scheme was announced on 24th September to support those in viable jobs but whose hours or level of work was temporarily reduced.  The JSS would contribute 1/3rd of the shortfall of wages (capped at £697.72pm) for employees who will be working reduced hour and the employer would contribute a further 1/3rd of the shortfall, with the employee foregoing the final third.  This would be available for employees who will be working at least 33% of their normal (pre-furlough) hours.

This month however, a new, extended scheme was announced.   The aim of this is specifically to cover those businesses which have been ordered (due to local restrictions or national legislation) to close completely.   Pubs, bars and betting shops in areas such as Liverpool (which was last night placed into the COVID alert: Very High band) will therefore be able to benefit from the new, extended scheme.In that situation, the government will pay two thirds of their employees’ salaries, up to a maximum of £2,100 per month. Under the scheme, employers will not be required to contribute towards wages and will only be asked to cover NICS and pension contributions.

Businesses will only be eligible to claim the grant while they are subject to restrictions and employees must be off work for a minimum of seven consecutive days.

This scheme will begin at the same time as the “normal” JSS, on 1 November 2020.  Initially, it has been announced that it will be available for six months but that will be reviewed in January 2021.   As with the JSS, payments to businesses will be made in arrears via a HMRC claims service that will be available from early December. 

Further details on the scheme will be published soon but should you have any queries meanwhile in relation to this or any other employment law related query, please contact our Head of Employment, Ilinca Mardarescu.

With restrictions locally and nationally being very closely monitored by the government, the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 came into force today (28th September 2020).  

The regulations now make it a criminal offence for an individual to breach his/her self-isolation where they have been advised to self-isolate through the NHS track and trace system or where they or someone they live with has tested positive for Covid-19.  The regulations also set out mandatory periods for self-isolation, and a duty to notify the Secretary of State or NHS approved bodies of the names of people in the same household as anyone who has tested positive for Covid-19.

Importantly, there is now also an obligation on a worker to tell their employer that they are self-isolating. 

For employers, regulation 7 makes it an offence to knowingly permit a worker (including an agency worker) to attend any place other than where the individual is self-isolating.   This includes individuals who are required to self-isolate because they live with someone who has tested positive.  So if an employer knows a worker has tested positive (or lives with someone who has tested positive), it is now responsible for stopping the worker from working (unless they can work from home).  Any employer who fails to do so will face a fine, starting at £1,000.

It is advisable for employers to update workers as to the new regulations and ensure everyone knows and understands the new reporting obligations. For any assistance with drawing up Covid-19 policies in line with the new regulations, please contact our Head of Employment, Ilinca Mardarescu.