Questions for the ‘New Normal’…. 5 questions I’ve been asked in #CEO groups in the last fortnight.

During the last fortnight I’ve given my presentation, ‘The F Word’, to about 200 #CEOs of #SME businesses, most of whom have been grappling with getting their businesses fit for the future and maximising the benefit of the CJRS to conserve their cash flow as we get the country back to work.

Here are 5 of the most popular questions I have been asked.

1.  If an employee doesn’t want to carry out their role if you bring them back from furlough can you leave them on it?

Not all my answers are so long (!) but this really is an important issue at the moment.

Although not wanting to carry out their role is different from not wanting to come back to work, you can leave an employee on furlough as long as you like and as long as the scheme is available, but just remember that it looks as if from August employers will have to contribute towards the 80% wages costs.

Grappling with the ‘reluctant returners’ is one of the most difficult issues being faced by employers at the moment.  Despite the fact that ACAS say that ‘If an employee refuses to attend work without a valid reason, it could result in disciplinary action’, any action should be preceded with dialogue.

That dialogue should endeavour to address the anxieties of staff, and in particular, the steps you have taken to make the workplace safe.

I have covered what the various anxieties might be in a previous blog, and emphasised the need to be able to demonstrate that you have complied with the Governments 5 steps to a covid safe working environment:-

  • Carried out and shared the results of a covid 19 risk assessment
  • Have cleaning, handwashing and hygiene procedures
  • Helped people to work from home wherever possible
  • Taken steps to maintain 2m distance at work
  • Where not possible to maintain social distancing, done everything practical to manage the risk

Following these steps and communicating them to employees will go a long way to removing their anxieties and preventing a claim that they reasonably perceived that they were in imminent danger if they came to work, which is most likely to be their claim if action is taken against them.

Ultimately, if someone is refusing to return to work, that could lead to a dismissal, but it is a situation where you will need professional advice.

2.  We have terminated the contract of someone with less than 2 years’ service. Notice expires end June. She wants us to keep her on furlough until it runs out. Could we or should we do that?

Someone with less than two years’ service can be dismissed without a reasonable process.  That’s not to suggest that you behave unreasonably, but you do have more flexibility with these colleagues when faced with having to make redundancies, and this is probably the context of the question.

You can extend her notice if you wish to, but take care that does not lead to her accruing the two years necessary to claim unfair dismissal.  Also note that she will accrue more holidays, so require that they be taken during her notice.

3.  Can we alter the furlough agreement re holiday clause?

Yes, employers have always been able to require that holidays be taken at specific times.  Many do it at Christmas, and some have measures that ensure holidays are evenly distributed throughout the year (phased holidays).

If you have not provided for holidays in your original furlough agreement  here’s an example of something you could add:-

‘We require you to use all accrued holiday by the end of July, and if we extend your furlough further, any more holidays accrued must also be used by the new end date for furlough.  If you have any doubts about the rate of holiday accrual, please discuss this with one of us, but basically most of you will have a total holiday entitlement of 32 days including public holidays which accrue at the rate of 2.66 days per month.

You should book your holidays in the normal way, and you may want to choose dates that you definitely would prefer us not to call you back into work’.

You do not have to follow this exactly; a lot might depend on where you are in your holiday year.  Clearing at least 50% of your accrued leave might be another option.

4.  I understood employees can carry holiday over for 2 years due to Covid, is this right?

This is only partially correct.  The Government has passed legislation which allows the carry forward of annual leave where the employee has been prevented from taking it – normally carry forward of 4 weeks of the statutory 5.6 weeks holiday is not allowed.

It is only really for situations where an employee wants to take their leave in the current year, but cannot because you are, for instance, too busy.

The Government has published guidance on the topic, which includes on the rate of pay for holidays during furlough – although, frankly, they simply quote complex regulations which are rarely followed to the letter anyway.

The consensus amongst legal commentators is that whether on furlough or during a temporary period of reduced salary or hours, holiday pay should be at the ‘normal’ (100%) level for salaried staff.  There are different rules where pay varies.

5.  If an employee agrees to resign, rather than be made redundant, can they give a resignation notice to expire at the end of July, and if they do, can they withdraw it before that time or can it be enforced?

They can give you notice which is longer than required in their contract and you can refuse to allow a withdrawal of notice.  There are circumstances in which you need to take care in refusing.

For instance, if a resignation was given in haste, such as after an argument.  Then it might be reasonable to allow a withdrawal.

A resignation under pressure might also lead to an unfair dismissal claim – for instance, a situation where you put it to someone to resign or else, we will make you redundant!

These questions were also interspersed with lots of others about the challenges of managing colleagues who are working remotely.  I covered this briefly in my recent #LinkedIn blog and I intend to return to this theme in the future.

Watch this space.

Ken Allison | 28th May 2020 | Paradigm Partners | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Ken specialises in taking the strain out of employment law related people issues through training workshops for managers, and his firm’s ‘ExecutiveHR’ service, providing telephone based support services to businesses throughout the UK.

Nothing in this article should be relied on as a substitute for taking professional advice about your particular situation.

 

 

 

202020: 20 #employment law commitments and promises to look out for in 2020!

Few people will read all of this, but if I don’t write this blog each year, there’s bound to be someone who misses it!

This year I’ve done my best to cover all the known #employment law changes and listed them in an approximate order of importance.

So, I’ve started with those items that are likely to affect all organisations regardless of size, progressed onto to those that will predominantly impact on larger organisations, and finished with those that address very specific circumstances.

These are a mixture of matters that have already been committed to legislation (with or without implementation dates) and promises made in the Queens Speech (QS) in December 2019.

Likely to affect all employers.

1. From April 2020 all workers will be entitled to a written statement of their terms (usually given in a Contract of Employment) on or before the first day of engagement. Currently this only has to be provided within the first two months of employment.

The amount of information that is required is also being increased (although most well drafted contracts will already comply), so employers will have to review their contracts, and if you currently don’t issue them until a new employee has started, you may need to look at your approach.

2. Currently women on maternity leave that are affected by redundancy must be offered a suitable vacancy where one exists. This right effectively gives them priority over other employees.

The Government has made a QS commitment to extend this right from the point at which the employer is notified of the pregnancy until six months after the end of maternity leave.

Similar rights exist elsewhere in Europe.

3. Extended leave and pay for neonatal care to support parents with premature or sick babies.

4. As promised in the Conservative Party’s election manifesto, unpaid carers will be granted a weeks’ leave.

5. A consultation followed by legislation will make flexible working the default unless an employer has good reasons not to allow it. Another manifesto promise which we will have to wait and see how it will differ from the current right to request flexible working after 26 weeks employment.

6. Calculating holiday pay for workers whose working patterns vary can be a nightmare. Currently, pay for these types of workers should reflect their average in the previous twelve weeks. From April 2020, it will be the average of the previous 52 weeks.

7. Termination payments over £30k will not only be taxable (which they are at the moment) but will also be subject to employer’s national insurance payments.

8. The introduction of a single labour market enforcement body (QS Commitment). Proposed originally in the Taylor Review, it’s envisaged that it will be responsible for areas such as modern slavery, sick and holiday pay, and other matters related to vulnerable workers.

9. National minimum wage increases come into force on 1st April with the headline National Living Wage (for those aged 25 and over) going from £8.21 to £8.72.

10. There will probably be increases to statutory pay rates for maternity, paternity, shared parental pay, adoption and sick pay from the first Sunday in April.

Similarly, caps for Employment Tribunal compensation and redundancy pay are also likely to increase.

11. Parents who have lost a child will be allowed two weeks leave (Parents Bereavement Leave), although a firm date for the introduction of this is still awaited. This leave will be paid after 26 weeks of service.

Mostly affecting larger employers.

12. Temporary work agencies must provide work seekers with a Key Information document including information about minimum expected rates of pay, and who will pay them.

13. The ‘Swedish derogation’ which allowed employment businesses to avoid pay parity requirements providing workers remain contracted to the agency between assignments will be scrapped from April 2020.

This is likely to inflate the costs of using agency workers.

14. There has been previous consultation about a ‘National Disability Strategy’ to encourage employers to retain disabled employees and others with health conditions. Detailed proposals are promised.

15. Addressing concerns about zero hours contracts, it is proposed to introduce a right to request a more predictable contract after 26 weeks, which presumably will work a bit like the current right to request flexible working i.e. a worker can ask, and an employer can reasonably refuse.

16. Executive pay reporting came into effect from 1st January 2020. This requires companies with more than 250 employees to report on the comparison between their CEOs pay and that of employees at various levels.

From now on this information must be in their annual director’s remuneration report.

Changes affecting specific circumstances.

17. Although strike action in the UK is at an all-time low, it’s hard to believe that if you are a rail commuter in the South East or North West. Minimum Service Agreements are to be introduced to set out minimum service patterns and numbers and nature of staff that must work during a strike.

18. Off payroll working arrangements (usually referred to as IR 35) have been changed in the public sector, and from April 2020 these changes apply to larger and medium sized private sector organisations.

There may be changes to the detail of this legislation, but just this week it has been confirmed that there will not be any change to the implementation date.

The rule changes mean that payments made to individuals through personal service companies will be subject to tax deductions by the client.

Small companies are exempt. You’ll need advice, but basically turnover under £10.2 million and less than 50 employees in the tax year will qualify as small.

19. Legislation to ensure tips go to workers in full.

20. Subject to a minimum of 15, an employer has to respond to a request from 10% or more of employees who ask the employer set up an ‘information and consultation arrangement’ (normally referred to as a Works Council).

From April 2020 the percentage is being reduced to 2%.

I’ve done my best to ensure that this list is comprehensive, but as ever I look forward to comments on anything you think I have missed.

It will be interesting to look back on 2020 to see how much of it got delivered.

We shall see.

9th January 2020 | Paradigm Partners | www.paradigmpartners.co.uk

Ken Allison is an engaging trainer and speaker who manages to make his topics, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Ken specialises in taking the strain out of employment law related people issues through training workshops for managers, and his firm’s ‘ExecutiveHR’ service, providing telephone based support services to businesses throughout the UK.