Category: Employment Law

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

In the UK there are currently around 12 million people (1 in 6) suffering from hearing loss, and with an ageing population this is predicted to rise to 14.2 million by 2035 (1 in 5).   As many as 40% of people over 50 years old have hearing loss, and this rises to reach an alarming rate of over 70% for those over the age of 70.   Not being able to hear clearly, or at all, can lead to those with hearing impairments withdrawing from both social and everyday situations, creating an isolated bubble which can often result in issues such as loneliness and depression.  With research showing 80% of people find a lack of deaf awareness by corporations to be their main barrier to services, it is important that we all take steps to adapt our practices wherever possible to offer a service that is accessible to all, and thereby helping combat these issues.

Inductive Loops for Hearing Aids

There are many ways in which steps can be taken to help make the office more deaf aware for our clients, such as by installing an induction loop in client facing areas like reception and meeting rooms.  An induction loop helps to improve the clients listening environment by submitting a signal to the hearing aid which removes background noise and distraction.  There are two main types of induction loops; a Counter Loop which is installed permanently in areas that are consistently busy and noisy (such as your reception area), and Portable Loops which are lightweight and easy to use and are particularly suited to small group conversations where the participants are sitting within 1 metre of each other (such as for use in your meeting rooms).

Staff Training

With over 70% of those with hearing aids choosing services where staff are deaf aware, arguably the most important step which a corporation can take is to train staff so that they can communicate effectively with clients.  Examples of effective communication include the following:

• Finding a light room that is away from any noise or distractions so that your client can understand you as clearly as possible.
• Even where a client utilises hearing aids, always ask first if they would prefer to lip read you.  
• Face towards the person you are talking to, and use simple gestures to attract their attention such as pointing or waving.
• Speak clearly, using normal lip movements, facial expressions and gestures, and avoid shouting or speaking too slowly or quickly.
• Keep your speech concise by using plain language and avoiding any waffle, and make sure the client understands what you are saying.  If they do not, repeat what you have said or rephrase your sentence clearly.
• Be aware that due to the pandemic, the wearing of facemasks may make communication particularly difficult for those relying on lip reading and facial expressions.  Writing things down and using simple gestures can help.

Action on Hearing Loss, the UK’s largest charity helping those with hearing impairments, offers various staff training workshops and more information can be found here https://www.actiononhearingloss.org.uk/how-we-help/businesses-and-employers/.  Staff should also look out for clients wearing the Hidden Disabilities Sunflower lanyard to help identify those that may need greater assistance.   

British Sign Language

In addition to the above communication training, you may also consider training your staff to use British Sign Language via local courses, or through Action on Hearing Loss’ programme ‘Louder than Words’ https://louderthanwords.org.uk/british-sign-language-bsl-training/.  Alternatively a BSL regulated interpreter can be arranged to be present at your client’s meeting to translate, and this can also be booked through Action on Hearing Loss.

As clients suffering from a hearing impairment are much more likely to enquire about your services online, rather than by phone, it is helpful for them if you clearly state on your website any action that you may have taken to ensure your company is deaf aware.   If you would like to find out more information on hearing loss and how you can adapt your services to better accommodate clients, then please see the charity Action on Hearing Loss.  

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.

The Chancellor yesterday announced a number of financial measures to get the country back on track and spending.

Crucial amongst this was of course his announcement regarding the CJRS, or Furlough as it is widely known.  

Currently, approximately 9.3 million workers are having 80% of their salaries paid for by the government (up to the £2,500 a month threshold) under the furlough scheme.  The scheme has been extended to October, but with increased employer contributions being tapered between now and the end of October.

As employer contributions start to increase businesses may well start considering redundancies, and the Chancellor is well to aware of that.  However, he rejected calls to extend the scheme citing the fact that the longer people are out of work the more their skills could “fade”.  Instead, he has tried to encourage businesses to keep on employees by awarding them with a £1,000 bonus for every staff member kept on for three months from when the furlough scheme ends in October.

He clarified that this means businesses will only receive the bonus if they pay the employee throughout November to the end of January.  Furthermore, the employees must be paid at least £520 on average, in each month.  

Whether this will be enough to prevent businesses from making redundancies only time will tell. 

For advice on any aspect of ensuring a safe return to work for staff, or any other employment queries, please contact our Head of Employment, Ilinca Mardarescu.

Employers are increasingly looking at ways of saving costs and there has been much in the media about companies requiring their staff to accept a reduction in pay.  But, is this lawful?  And what should you do as an employee if the question has been raised?

Your salary is a fundamental term of your employment contract so an employer cannot simply change that without your agreement.  However, there may be repercussions if you refuse to accept a change – such as redundancies.

When considering the issue of a reduction in wages both employers and employees should try to work together if possible.  Issues which need to be considered are:

• Has a proper consultation taken place?
• Is this happening company-wide?  If not, why not?
• Can an end date be agreed so that the reduction only lasts for a certain period?
• If a reduction in wages is required, will there also be a reduction in hours worked?  Or in respect of targets where appropriate?
• Has everything been clearly recorded in writing?

It is also important not to fall foul of the current National Minimum Wage legislation.

Reduction in wages is often a very emotive subject for employees who rely on their wages to pay their bills.  It is therefore crucial it is handled correctly to avoid the employee making a claim of unfair/constructive dismissal or breach of contract.

For advice on this or other employment queries, please contact our Head of Employment, Ilinca Mardarescu

We have all heard about the imminent changes to the Coronavirus Job Retention Scheme (“CJRS”).

Here is an easy-to-follow guide setting out the financial changes over the coming months.  

The important point to note is that employees who are “on furlough” will continue to be entitled to receive 80% of their wages (up to £2,500 per month).  What is changing is who will be paying for this.

July August September October

CJRS contribution – wages	80% (up to £2,500)	80% (up to £2,500)	70% (up to £2,187.60)	60% (up to £21,875.00)
CJRS contribution – Employer’s contribution pension and NIC	Yes	No	No	No
Employer contribution – wages			10% up to £312.50	20% up to £625
Employer contribution – pension and NIC	No	Yes	Yes	Yes

Employers can still choose to top up employee wages above the 80% total (and £2,500 cap) should they wish of course. 

Despite the above increased contributions employers will now be able to ask staff to work for them on a part-time basis whilst also being on furlough.    Employers will have to pay the employees for any hours worked and the wage cap above will need to be calculated on a pro-rate basis.

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

Redundancy occurs where an employees’ dismissal is:

• wholly or mainly attributable to the fact that the employer has ceased or intends to cease to carry on the business for the purposes of which the employee was employed, or in the place where the employee was employed; or
• due to the fact that the requirements of the employer for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where the employee was employed have ceased or diminished or are expected to cease or diminish.

The crucial question therefore is whether the requirements for employees to do that type of work has ceased or diminished. So, the amount of work needed to be done might remain the same (or may even increase) but if it can be done with less people (perhaps due to the increase of the use of technology) then there is a redundancy situation.

Examples of genuine redundancies include:

• the work the person does is no longer needed due to a downturn of business, a new line of work which requires a different skill set, or new processes or technology being introduced;
• the employee’s job no longer exists because the work is being done by other employees;
• the workplace has closed because the employer has ceased trading or has become insolvent; or
• the employer’s business, or the work the person is doing, moves to another location.

Employers may try to claim that the reason for the termination of an employee’s role is redundancy but this needs to be clear on the facts/evidence.  Redundancy should not be used as an excuse to terminate the employment of an employee for other reasons.  Any redundancies based on an employee’s pregnancy, race, religion or other discriminatory factor will be automatically unfair and may also give rise to a claim of discrimination. 

Even where such genuine redundancy situations exist, employers must still follow the correct redundancy procedure or they risk the redundancy being deemed to be an unfair dismissal.

Employers will need to follow a specific redundancy procedure which shows the employer acted fairly.  This means employers will need to:

• identify the relevant “pool” of employees which are likely to be affected by the redundancy;

• decide upon a fair selection process and be able to clearly show how this will work;
• enter into a period of consultation with employees where the above information is discussed and finalised;
• undertake the selection process and hold individual consultation meetings with each employee to discuss whether or not they have been provisionally selected for redundancy. 
• The consultation meetings for those that have been provisionally selected for redundancy should also include discussions about whether it would be possible to avoid redundancies somehow (potentially by redeploying them into suitable alternative roles internally or considering any other suggestions put forward by employees). 

Consultation periods will vary in time and there is no set time period for how long consultations should take when there are only one or two employees being made redundant.  However, the minimum time period for larger redundancies is set as follows:

• For 20-99 proposed redundancies – 30 days minimum consultation.
• For 100 or more proposed redundancies -45 days minimum consultation.

There is no statutory right to appeal your redundancy. However, it is good practice in accordance with the ACAS guidelines and if there is a contractual dismissal policy or a procedure set out in an employee handbook for instance not following this could mean the termination would be classed as unreasonable resulting in a finding of unfair dismissal, or in some cases could amount to a breach of contract claim.

The above is a general guideline and it may be appropriate in some circumstances to consider offering voluntary redundancies first or consider “bumping”.  Bumping occurs when an employee whose role is not at risk of redundancy is nevertheless dismissed and the vacancy left is filled by an employee whose original role was redundant. The dismissal in this scenario is still considered to be by reason of redundancy.  Employers may wish to consider a bumping redundancy as a way to retain more skilled and experienced employees within the business.  Tribunals have held that whether or not there is an obligation to consider bumping in a particular case depends on number of factors including how different the two roles are, the qualifications of the employee at risk of redundancy, and whether or not the other employee would take voluntary redundancy.

In practice, it is important to invite employees to consultation meetings in the correct way (i.e. in writing and allowing them to bring with them a trade union rep. or colleague with them should they wish).  In larger consultations, employee representatives will need to be appointed.

For more specific advice on anything to do with redundancies please contact our Head of Employment, Ilinca Mardarescu.

Late on Friday 29th May we heard a bit more about how the CJRS will run in the next few coming months. Whilst the Treasury Directive and Employer’s Guidance has not yet been published, the main points are as follows: 

– The last day on which any new employees can be placed on Furlough will be 10th June. 

– From 1st July employers will be able to ask employees to come back to work on a part-time basis without it affecting their entitlement to Furlough. This means that employers could, for example, ask an employee to work 2 days per week and be on Furlough for the remaining 3 days per week. As businesses open up more I predict this will be highly utilised. 

– From August, employers will be unable to claim back NI & pension contributions. This will have to be paid for by the employer as normal.

– From September, employers will need to contribute 10% of an employee’s wages (so the government will only reimburse 70% of wages up to a max. of £2,190). 

– From October, employers will need to contribute 20% of wages (so the government will only reimburse 60% of wages up to a max. of £1,875). 

The scheme will close for good on 31st October 2020.

https://www.gov.uk/guidance/claim-back-statutory-sick-pay-paid-to-employees-due-to-coronavirus-covid-19

For any assistance on implementing any of these changes, please contact our Head of Employment, Ilinca Mardarescu 

What seems like a long time ago now, the government promised that statutory sick pay (SSP) will be payable from day 1 of illness (as opposed to from the 4th day of sickness as is usually the case) if the reason for the illness is coronavirus.  Employees are also entitled to SSP if they are shielding on the advice of the government or if they have to self-isolate because they are living with someone who has symptoms.  

In addition, the government have just now extended the entitlement to SSP to people who have been told to isolate under the new “Test and Trace” system which has just been announced.  

To date, it has been up to the employer to pay this upfront and claim the payments back at a later stage.  The government has finally published its guidance for employers on how to claim this back including what information they will need.  Employers have been reminded that they must keep records (which HMRC may later insect) for 3 years at least which must include:

• the dates the employee was off sick
• which of those dates were qualifying days 
• the reason they said they were off work – if they had symptoms, someone they lived with had symptoms or they were shielding
• the employee’s National Insurance number

They have also released an online check to see whether employers are eligible for a rebate.  

This can be found at:

https://www.gov.uk/guidance/claim-back-statutory-sick-pay-paid-to-employees-due-to-coronavirus-covid-19

For any assistance on claiming these rebates or calculating SSP, please contact our Head of Employment, Ilinca Mardarescu