Author: 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.

The Chancellor, Rishi Sunak, has today (24th September 2020) confirmed that the Furlough scheme will be ending on 31st October, as planned.  He said he felt it important to “move and adapt” and feels it is not beneficial to continue supporting people in jobs which quite simply no longer exist.  

The new scheme announced is one which concentrates on keeping people in work.  The Job Support Scheme (JSS) encourages employers to keep people in work by allowing them to ask their staff to work on reduced hours.  Employees will need to work at least one third of their hours and be paid for that as normal by the employer.  For the remaining (unworked/lost) hours, the employer and the government will each pay the employee a third.   The employee then also foregoes his/her wages for the final third of those unworked/lost hours.   

The scheme is available for all small and medium businesses, but larger businesses will need to show that they have suffered a reduction in revenue before being eligible.  Additionally, employees need not have participated in the Furlough scheme to be eligible to participate in this new scheme.  

The scheme is set to start on 1st November and will last six months. 

No doubt there will be further details published shortly (I anticipate there will at least be a financial cap on the payments).

For any further information or to discuss generally, please contact our Head of Employment, Ilinca Mardarescu.

An estimated one third of the UK work-force can be classed as ex-offenders.  But many employers are still not familiar with how to deal with ex-offenders in the workplace.

Unspent Convictions

A (potential) employee has very little legal protection when applying for work where they have an unspent conviction.  In reality of course, some convictions are spent in prison so the offender would not be applying for an employed role.  However, an offender who has been sentenced to, say, a suspended sentence and a certain number of hours community service falls into this category also.   Theirs would be an unspent conviction and an employer would need to decide whether to offer a role to someone who has an unspent conviction or whether to terminate their employment if they are already employed.

Spent convictions

It is unlawful for an employer to subject you to any ‘prejudice’ because of a conviction if it is now spent (Rehabilitation of Offenders Act (ROA) 1974). In practice, this should not arise very often, as it would be difficult for an employer to discover a spent conviction without a standard or enhanced Disclosure and Barring Service check (which should only be done for roles exempt from the ROA), or through an employee’s own admission.

The Rehabilitation of Offenders Act 1974 (ROA) allows most convictions to be considered spent after a set period of time. Unless one receives a prison sentence of over 4 years or has any type of indefinite order, the conviction will become spent at some point.

Once the conviction is spent, this entitles (potential) employees (for applicable jobs), to portray themselves as somebody who has never been convicted, i.e. it allows employees to “lie” by not mentioned any spent convictions (subject to some specific exceptions).  If a contract of employment asks a prospective employee to disclose their convictions, they are simply not required to disclose any that are spent (see section 4(3) of the ROA). As a general rule, there would be no breach of contract in such situations for failure to disclose.  Indeed, if an employee was dismissed for failing to disclose a spent conviction, they may have legitimate grounds to bring a case of unfair dismissal.

Spent convictions should not be used as evidence in employment tribunals, without the consent of the person concerned and questions should not be asked that would elicit or hint at such information.

Fair dismissals and criminal convictions

Where an employee has been arrested for, or has been charged or convicted with a criminal offence, an important issue for an employer to consider is whether the alleged offence/conviction directly affects an employee’s work. If it does, employers then need to consider whether they genuinely and reasonably believed that the individual was in fact guilty of the offence in question before deciding whether or not to dismiss.  Importantly, a criminal charge or conviction does not, of itself, usually justify unfair dismissal – or indeed even disciplinary action itself. It must affect the employee’s ability to perform their job.

To be regarded as fair, the reason for the dismissal must be for: 

• a reason related to an employee’s conduct;

• a reason related to an employee’s capability or qualifications for the job;
• because a statutory duty or restriction prohibits the employment continuing; or
• some other substantial reason.

The employer must also have acted reasonably in treating that reason as sufficient for dismissal.

Sex Offenders Act 

The Sex Offenders Register contains the details of anyone convicted, cautioned or released from prison for sexual offences against children or adults since September 1997 (when it was set up). 

Under the Sex Offenders Act 1997, as amended by the Sexual Offences Act 2003, all those convicted of sex offences must register with the police within three days of their conviction or release from prison. This is monitored by the police, who receive notification from the courts following conviction, and both the prisons and probation service following the persons release into the community.

Disclosure of Criminal Convictions Act

Head teachers, doctors, youth leaders, sports club managers and others, including landlords, are notified of the existence of an offender on a confidential basis. This information dictates the type of employment that sex offenders can apply for.  Anyone convicted as a sex offender is barred from working with children and the vulnerable.

For any assistance on this or other employment law matters, 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, people returning to the UK must self-isolate for 14 days unless they are travelling from a country with a quarantine exemption. The current, up to date list of quarantine exemption countries can be found here.  https://www.gov.uk/guidance/coronavirus-covid-19-travel-corridors

Working from home

Where possible, employers should allow employees to work from home during the 14 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

An overpayment to an employee is classed as a payment which is made in error rather than a payment that an employee is or was entitled to but which the employee may have to repay (such as holiday pay or a bonus).

Where an employer has unintentionally overpaid an employee, there are a number of options available to recover that overpayment. The most appropriate option is likely to depend on whether the employee is still employed by the employer (as well as the actual amount in question).

Employer’s ability to recover an overpayment

Ideally, an employer should have a contractual provision expressly allowing deductions from wages in the event of an overpayment. The employer can then rely on this provision to recover the overpayment where the employee is still employed by the employer.

Without a contractual provision (or other agreement), any deduction from an employee’s wages will be in breach of contract giving rise to a potential claim. Additionally, the employer will have to rely on the common law remedy of restitution based on a mistake to recover any overpayment in the civil courts. In overpayment cases, restitution prevents the unjust enrichment of the employee at the expense of the employer. However, such cases are not without their problems and Courts have been known to find that it would be unjust for an employee to repay sums which it had relied on for a long period (i.e. a monthly overpayment paid as wages into an employees’ account which the parties had not realised for some time).

Deductions from wages

In many cases, the easiest option where the employee is still employed is for an employer to recover an overpayment by making deductions from future payments of wages over a period of time. Where the purpose of a deduction is to recover an overpayment of wages or an overpayment in respect of expenses, the unlawful deductions from wages protection at s.13-27 of the Employment Rights Act 1996 (ERA 1996) does not apply.

The employer must have paid the employee more than the wages or the expenses reimbursement that are due to them.

This differs from a mistake in the employee’s contract or other document as to the amount that an employee is entitled to, where the employer pays the employee in accordance with that contract.

It does not matter why the employee was overpaid.

The purpose of the deduction must be to recover the overpayment, not some other reason.

Tax considerations

Where an employer has deducted PAYE or national insurance contributions from an overpayment, guidance from HMRC on unintentional overpayments to employees provides that employers should make adjustments to any payments due to HMRC to reflect the correct position once the employer has recovered the money from the employee. This means that the employee’s PAYE and national insurance contributions can be adjusted so that the employee pays the correct PAYE and national insurance contributions on any wages, taking into account the overpayment.

Itemised pay statements

Where an overpayment to an employee is recovered by way of a deduction to wages, this is a deduction for the purposes of s.8 of the ERA 1996, which requires each element of the deduction to be identified on an itemised pay statement.

Where a tribunal finds that any un-notified deductions have been made during the 13 weeks immediately preceding the application to the tribunal, it must make a declaration to that effect and may make a monetary award, whether or not the deduction was in breach of contract. The maximum amount of any such award is the aggregate of the unnotified deductions made during those 13 weeks.

For advice on this or any other employment-law related matter, please contact our head of Employment, Ilinca Mardarescu

Most employees (with at least 26 weeks’ service) are now entitled to request flexible working.  And with the recent focus on remote working and an increase in work-life balance such requests and likely to increase.

So, what should you be aware of as an employer?  

Flexible working – what is it?  

Essentially, it is any working pattern other than the normal one.  It can encompass changes to the hours an employee works, the times they are required to work or their place of work.

There are countless variations to what flexible working can entail such as:

• Compressed hours (employees work the same number of hours over fewer days);
• Staggering working hours to fit around the school run/training/hobby;
• Working from home for part of the day; or
• Having a set number of hours per year but being flexible with when/how that is delivered.

Who can apply?

Almost all employees with at least 26 weeks’ service qualify

But, an employee who has already made a request is not entitled to make another for 12 months

The only exceptions to this are agency workers, directors and contractual ’employee shareholders’. 

How is a formal request made?

The employee must apply in writing and include:

• details of the change they are asking for;
• what effect they think the change could have on the business, and how the business could cope with any such changes if implemented;
• the date the request is made, and the date they would like the change to start;
• a statement that this is a statutory request for flexible working, whether they have made a request previously, and if so its date.

The employer’s obligations

An employer must consider the request in a ‘reasonable manner’.  This includes:;

• Arranging a meeting to discuss the request with the employee as soon as possible.
• Allowing the employee to be accompanied by a work colleague if they want.
• Weighing the benefits of the proposed changes against any adverse impact on the business.
• Letting the employee know your decision as soon as possible.
• Allowing the employee a right of appeal.

Employers can:

• negotiate with the employee to agree changes to what they are proposing;
• refuse an application to work flexibly (but only if there is a clear business reason to do so).

Reasons for refusing a flexible working application.

If an employer refuses the applications, this must be done on one of the following grounds:

• the burden of additional costs;
• a detrimental effect on the ability to meet customer demand;
• an inability to reorganise work among other employees;
• an inability to recruit additional employees;
• a detrimental effect on quality;
• a detrimental effect on performance;
• insufficient work at the times when the employee proposes to work;
• planned structural changes.

* An employer must give their decision within three months (although this deadline can be extended if the employee agrees).

Disagreement between the parties

Where an employer refuses a flexible working application, the employee may want to take further steps.  Ideally, the matter should be resolved internally and informally so as not to damage the relationship. Where this is not possible, an employee may decide to;

• Raise a formal grievance;
• Ask ACAS to assist them to mediate the matter;
• File a claim at an employment tribunal or via the ACAS arbitration scheme.
• The employee can make a claim if an employer fails to consider the request in a reasonable manner or to make a decision within three months.
• If a claim has been filed, an employer can be ordered to reconsider the request and/ to pay compensation. The amount payable is decided by the employment tribunal or the ACAS arbitrator and is limited to a maximum of eight weeks’ pay (currently capped at £538 per week).
• An employee may be able to claim discrimination.  If a discrimination claim succeeds, compensation is not capped.

* When considering flexible working requests, an employer should ensure that each case is considered fairly and consistently to avoid further claims, such as discrimination.  

For example, employers should:

• Not treat requests differently depending on a ‘protected characteristic’ such as the employee’s age, gender or marital status;
• Not indirectly discriminate, for example by refusing a request from a new mother without an objective justification;
• Not  refuse a request for flexible working from a disabled employee, when allowing flexible working would be a ‘reasonable adjustment’ to ensure that the employee isn’t unfairly disadvantaged;
• Not treat fixed term and/or part-time employees any differently to full-time employees.

Ultimately, employers benefit from flexible working too as studies have shown that allowing flexible working can attract employees to a business, reduce employee turnover and boost productivity and morale. 

For assistance with this subject or any other employment law related matter, please contact our Head of Employment, Ilinca Mardarescu.