Steve.Richardson - Profile

This is the latest update from Amanda Pillinger, a well respected employment solicitor, who has been consistently helping small business owners and employees, as well as adding useful information all through the pandemic. 

Coronavirus Job Retention Scheme

As you will be aware, the CJRS has been extended to the end of April 2021, with 80% of salaries being paid through HMRC,  up to a maximum of £2,500.  Employers remain responsible for paying pension contributions and National Insurance contributions. There is no news of any further extension to the scheme, despite the fact that we anticipate that some businesses will not be permitted to open until early summer. I will keep you updated with any developments.

The guidance setting out which employees are eligible to be furloughed is at Check which employees you can put on furlough to use the Coronavirus Job Retention Scheme – GOV.UK (www.gov.uk)

Key points are:-

• Full-time, part-time, agency, flexible and zero-hour employees are all eligible, provided that the reason they cannot work is covid-19 related
• Any employees who are extremely clinically vulnerable and have been advised to shield are eligible, regardless of whether there is a business reason to furlough them -this includes the additional 1.7m due to get shielding letters this week
• Employees who are unable to work, including from home, due to caring responsibilities arising from coronavirus, such as caring for children who are at home as a result of school and childcare facilities closing, are eligible regardless of whether there is a business reason to furlough. (As schools start to open to children, I expect the number of employees eligible under this provision will reduce).
• Employers can claim for employees who were employed on 30 October 2020, as long as they have made a PAYE Real Time Information (RTI) submission to HMRC between 20 March 2020 and 30 October 2020. This applies even where the employer has not previously claimed under the scheme.
• From 1st December 2020, employees are not eligible to be furloughed during any period of statutory or contractual notice
• Furlough is not to be used to cover periods of pre-booked holiday where the employees would otherwise be in work
• I believe that the scheme can not be used to cover employees who are sick or self-isolating due to COVID-19 – in such cases there is an entitlement to SSP
• From 10th December 2020 employees on long term sick have no longer been eligible (unless they would have been furloughed for business reasons)

If you have any queries about the scheme, please contact me.

Updated Shielding List

This week the government announced that an additional 1.7 million people will be advised to shield. I understand that emails/ letters are already being received. Whilst this bumps them up the priority list for vaccination, it also has implications on their workplace. Current shielding advice has been extended to 31st March 2021.

The current government guidance for people who are shielding states “You are strongly advised to work from home because the risk of exposure to the virus in your area may currently be higher. If you cannot work from home, then you should not attend work.”

As set out above, provided they were employed on 30th October 2020, people who are advised to shield are eligible to be furloughed under the Coronavirus Job Retention Scheme. You do not need to have used the scheme before to make a claim.

All furloughed employees should sign a furlough agreement. Please let me know if you require such an agreement.

I am however hearing of employees who have decided that they do not want to shield, despite being advised to. In such circumstances, where they are unable to work from home, I suggest that you respond to them along the following lines:-

Dear [INSERT NAME]

I understand that you have recently been advised to shield. The current government guidance for you therefore states “You are strongly advised to work from home because the risk of exposure to the virus in your area may currently be higher. If you cannot work from home, then you should not attend work.”

You have said that you would like to continue to attend work. I acknowledge that the guidance is not mandatory, but your health and safety must be a priority. As you are aware, we have followed government guidance to reduce the risk of COVID-19 transmission and we have risk assessments in place. We will continue to review these and follow current guidance.

Given that you have been advised to shield, and given that you cannot work from home, you are eligible to be furloughed. If you would like to be furloughed please let me know and I will provide you with a furlough agreement to sign.

You are therefore welcome to remain at work but please let me know if you change your mind.

Redundancies

In the absence of any further extension to the furlough scheme, I anticipate that a number of employers will be considering redundancies over the coming weeks. Many businesses put plans on hold when the rules of the furlough scheme changed on 1st December 2020, meaning that employees could not be designated as furloughed during any notice period.

There is no restriction on employees being furloughed during redundancy consultation, so businesses needing to make redundancies are able to commence redundancy consultation before the end of the scheme.

Where less than 20 redundancies are anticipated, there is no statutory procedure to follow and most processes can be completed within about 2 weeks. Where 20 or more redundancies are anticipated (within a 90 day period) there are statutory timescales that must be complied with. Depending on the number of anticipated redundancies, the consultation process can take up to 45 days.  You will therefore appreciate that, for planned large scale redundancies, it may be advisable to start the consultation process in a few weeks if it is to tie in with the end of the furlough scheme.

Common issues that need to be considered where a business is contemplating redundancies include:-

• Collective consultation – what the obligations are and when must a business collectively consult
• If collective consultation is needed, how should employee representatives be appointed
• How long should consultation take
• How to work out who should be in each redundancy pool
• What criteria can be used to select employees in a redundancy pool
• What ways can we avoid redundancy – such as pay cuts, reduced working hours, lay off
• What to do if an employee refuses to engage in the consultation process
• How to consult with employees on maternity leave or long term sickness absence
• How to deal with employees on zero hours contracts
• How to respond to requests for voluntary redundancyHow to calculate redundancy entitlements
• What is a fair procedure

Please contact me if you require any assistance or advice regarding redundancies.

Contracts of Employment

All my clients are aware that up to date contracts of employment can protect a business. Given recent experiences, I would suggest that contracts are updated to include the following:-

• a clause entitling the employer to lay off employees or introduce short time working
• subject to my advice below, a clause making it a condition of employment that all employees in certain roles (other than those with genuine medical conditions where this is not possible) are vaccinated against COVID and that the vaccinations are up to date
• a clause to address homeworking and any additional requirements on employees

I am willing to carry out a free review of all employment documentation, including contracts and handbooks. I will produce a report setting out recommended changes together with a fixed fee quote for updating your documentation. Please let me know if you would like to take advantage of this offer.

Home working/ Flexible working

The current guidance is that people should only leave their home for work if they cannot reasonably work from home. Whilst I accept that many employees cannot work effectively at home, this may be insufficient to justify a requirement to work in the office, especially where employees worked from home in the first lockdown.

We are however seeing increasing numbers of employees asking to return to work due to mental health issues. Where the employee has a supporting letter from a GP or occupational health adviser, this can be permitted. Where there is no medical evidence, it is advisable to ask the employee to provide proof of their condition. Clearly, where employees do return to work, risk assessments should be carried out and guidelines should be followed to make sure the workplace is safe.

As workplaces begin to open, some businesses are planning a more flexible approach to working arrangements, promoting a continuation of homeworking for at least part of the working week. These employees will need to ensure that they have up to date contracts of employment to cover homeworking requirements.

We are also seeing an increase in the number of flexible working requests being made by employees. Many employees are justifying their requests by saying that they were able to work from home during lockdown so there is no reason for them to return to the office. Employers receiving such requests should take care and should ensure that they follow a reasonable procedure in responding. If an employer does not want to grant the request, they should refer to at least one of the eight business reasons that can be used to justify refusal. Please contact me if you would like assistance in responding to a flexible working request.

Schools opening

As stated above, provided they meet other eligibility criteria, parents are currently eligible for furlough if they are unable to work due to childcare responsibilities.

As schools start to reopen, there will be an expectation that these employees will be able to return to work (currently from home unless they cannot reasonably work from home). Some parents will have previously relied on after school child care and, as such, may ask that they are flexibly furloughed with their working hours being limited to normal school hours.

Most of my clients are taking a flexible approach in these cases. Flexible furlough arrangements can be put in place and amended working hours can assist.  It is however important to remember that the decision on whether to furlough an employee rests with the employer. An employee cannot demand that they are furloughed, even when they have childcare responsibilities.

S 44 of the Employment Rights Act (no change from my previous advice)

As I have previously advised, where an employee refuses to attend work in circumstances where they reasonably believe there is a serious and imminent danger to their health and safety, they must not be subject to detrimental treatment. As such, if you have any employees who are unable to work from home but are refusing to attend the workplace due to concerns about H&S, you should not subject them to any detrimental treatment. This will include taking disciplinary action against them or downgrading attendance figures in the context of a redundancy selection process.

There is still much debate on whether employees refusing to attend work in these circumstances are entitled to be paid or not. I still believe that the appropriate response is to withhold pay.

In the first instance, provided the employer has followed all government guidance in making the workplace Covid secure, and provided the employee has no specific reason for refusing to attend work (such as being more susceptible or vulnerable to the virus), we would argue that it was not reasonable for the employee to believe there was a serious and imminent danger to their health and safety. If we are able to succeed on this point, the employees will not be protected from detrimental treatment.

In any event, by withholding pay, one of the following scenarios will occur:-

• the employee would return to work;
• the employee would remain off work and would be unpaid (and other employees would not be encouraged to raise similar concerns in the expectation of getting paid time off work);
• the employee would remain off work and would be unpaid, but would submit a claim for unlawful deduction from wages – it is unlikely that such a claim would be considered by the tribunal within the next 12 months. In the event that the claim is successful, the employer would be ordered to reimburse deducted wages so would be no worse off than they would have been had they paid the employee in the first place. In addition, cash flow may be in a stronger position that time; or
• the employee would resign, claiming constructive dismissal – again, it is unlikely that such a claim would be considered by the tribunal for at least 12 months.  As such, in the current economic climate, the employee would risk being without salary or compensation for a significant period – this in itself is likely to be a deterrent to employees considering this option. Provided there was no discrimination, the maximum value of the claim would be 12 months’ salary plus a basic award equal to the statutory redundancy entitlement. The employee would also be required to mitigate their loss by trying to find alternative employment. Any income from a new job would be deducted from the value of the claim. The cost to the employer of one constructive dismissal claim may therefore still be less than the cost of paying full salary for other employees jumping on the bandwagon in the event that employees refusing to attend work receive full pay.

If you have any employees refusing to attend work, please contact me so I will be able to advise on the specific circumstances. I am aware of a number of “s.44 letters” circulating online so I am expecting a few to appear.

Vaccinations

This is an issue that is being addressed a lot in the media. Some employers have announced that they will make vaccination compulsory and this is causing much debate.

My view is that employees seeking to make vaccination compulsory for existing employees are likely to find that this is unlawful. In particular,  they could receive claims of constructive dismissal (on the ground that the requirement is wholly unreasonable), disability discrimination, religious discrimination or sex discrimination.

That said, where employees work in the NHS or care sector, employers will find it easier to justify a requirement for all employees to be vaccinated, due to the fact that they need to reduce the risk of staff passing the virus to vulnerable patients and residents.  In order to strengthen any defence to claims of unfair dismissal, these employers would need to prove that there were no other suitable roles for the employee. They would also need to talk to the individual employees to see if it was possible to address any of their specific concerns, perhaps by obtaining another version of the vaccination.  

I also believe that some employers will be able to insist that future employees are vaccinated before commencing employment (ie. make vaccination a condition of employment). Provided that any requirement excludes those who are unable to be vaccinated due to medical conditions, religious belief or pregnancy, and provided the employer can justify the requirement, I believe this will be lawful. I suspect that this will apply to a number of sectors where there is an increased risk of transmission including:-

• care
• childcare establishments
• retail
• emergency services
• home services (where employees are required to work in homes of the public)
• leisure/ sport facilities

Please contact me if you would like to discuss this further.

COVID-19 testing (no change from my previous advice)

The government have issued guidance to employers who wish to introduce testing for employees. The guidance can be found at Coronavirus (COVID-19) testing: guidance for employers and third-party healthcare providers – GOV.UK (www.gov.uk)

In particular, it confirms that before deciding to establish a testing programme, employers are advised that they are clear on:

• who the testing will cover – for example, whether this is all directly employed staff, or includes individuals working onsite, like contractors
• what the focus of the programme is: staff with symptoms or without symptoms
• how often staff will be tested
• the appropriate facilities for carrying out the tests
• which test should be used (to be clear, virus tests are designed to detect active infection whereas antibody tests only reveal evidence of previous infection)
• what the arrangements will be for any individual who does not wish to be tested
• how the employer will use test results, including its policies on matters like handling health information, absence from work, self-isolation, diversity, non-discrimination, and so on
• the compatibility of the programme with its legal responsibilities to staff including under health and safety, equalities, data protection and employment law
• how, and by who, the legal duty to report test results to Public Health England (PHE) will be carried out
• the affordability of implementing a testing programme

I believe that employers will have stronger cases for insisting on testing for employees, given that no substance will be inserted into the body. In addition, I believe that employers will be able to justify the requirement to test those who are still in the workplace, on the basis that a large proportion of people who test positive are asymptomatic. Asymptomatic people can still pass the virus to others, so testing allows you to have more control over the workplace and to protect other employees.

Employees may be reluctant to agree to be tested as they may be concerned that, if they test positive they will be required to self-isolate and will only receive SSP. This is an issue that you should therefore consider. Could your employees work from home or would you consider temporary enhanced sick pay to protect the workforce? 

I hope that this assists but please do not hesitate to contact me if you have any queries or require assistance on any employment/ HR issues.

Amanda Pillinger
amanda@pillingerandassociates.co.uk
01789 336957 / 07764 764806

Reproduced with permission. 
Source - www.pillingerandassociates.co.uk

erm no... 

I suspect I'm thinking too hard...

It's a fascinating point, and something it took me a long time to get my head around. We manage a number Facebook pages on behalf of Trading Standards for our Trusted Trader business. We normally do a daily post, and there is some interaction, but very limited, making us question and investigate from time to time the viability of them.

But they have continually proven a great way to get brand messages out and analysing marketing data from new members, we know they are a great source of new leads, with a lot of lurkers researching the scheme and deciding if it's suitable for them.

Another interesting measurement is this forum, which I concede I have little time to interact as often as I'd like, and in the past have toyed with the idea of closing it just to simply things, but it has an incredible number of lurkers. For example, in the last 30 days it has generated 23,680 page views, yet the actual new post count is very small. The reason why we put so many adverts on is to monetize the lurker traffic, which works incredibly well. (If you are a member, you shouldn't see any adverts). There is zero point putting ugly adverts on pages that don't generate any traffic, so the forum is actually a good little earner. In an ideal world it would be nice to see a lot more engagement and new posters, but I think the heyday of the traditional forum has waned, with bigger platforms such as Quora taking centre stage.

But because it still generates respectable traffic, any new messaging will get a good audience. This is the key to anyone submitting content or devoting time to social media, forums or blogging platforms. Is the effort with the reward? 

Project a positive image of yourself and your business, don't just go in with the tiresome sales pitch. Lurkers are normally looking for something, so let them learn something about you and your business and turn a lurker into a client or contact.

Having that same positive image and reputation across multiple platforms should become part of your blended marketing strategy. The days of constant self-promo "buy my stuff, buy my stuff" posts should be long gone, but a lot of people are still figuring this out.

These type of scams seemed to have rocketed during the pandemic and subsequent lockdowns. The phone rings, and it's either Amazon confirming that they are about to take £xyz out of your account and if you want to speak to an adviser, press 1, or a variant of it alledging to be BT, the taxman, your bank and pressing 1 to get a refund/be transferred to the fraud team.

The transfer to 1 is to cut you over to a premium rate number and keep you talking, or it may be to entice you to give away personal information. The frustrating thing is they have gone from very unconvincing and humorous, to actually starting to sound plausible 

My worry is how many older folk or more vulnerable people fallen prey to this. The scam itself has been around for a few years, but it seems to have increased in the last 12 months, particularly as more people sign up or increase their online services, or maybe struggling financially and worry when they receive a call.

Make sure you educate older friends and family to be wary of these calls and if in any doubt, just hang up. If your bank or Amazon is genuinely trying to get I touch with you, they will email/write to you.

If you are concerned or have a relative who may be at risk from this type of call, then think about investing in a call blocker device. 

Chartered Trading Standards Institute points to CRP Call Blocker as the best-selling and most trusted call blocker brand worldwide and is available from Amazon or www.cprcallblocker.com.

Or there is also a good article from Which explaining different call blocking options - How to block nuisance calls

Stay safe and don't let the scammers win 

eh? It's a joke 

Hiya Trena, just saw this, having a forum catchup, between homeschooling, and everyone moaning at me 

I call myself a realistic optimist. There are too many people out there that will happily tell me the world is doomed, everything is a disaster and the situation is hopeless. I rarely post on my personal Facebook because everything is depressing or everyone wants to rant or fight. The media doesn't help, especially rags like the Daily Fail and their hysterical linkbait headlines.

But things will get better, they always do. Question is when.

Vaccines are getting rolled out, to be honest, 100% better than anyone could have predicted based on recent performance!

Of course there will be different strands of the virus, and vaccines may become less effective. But less is different from non effective, and hospitals can cope with some poorly people as opposed to lots of dying people.

By the Spring, all the at risk groups should have been jabbed, so there should be no need for any more lockdowns. The rest of us mere youngsters will be jabbed throughout the year, then when everyone's jabbed, say Nov onwards, it will be a routine annual booster at the docs, like the flu jab. That's my optimist side.

As for realist, the economy cannot sustain indefinite down tools, so the wheels of industry have to be going by the Spring if we stand any chance of recovery in the next 10 years, which as we all know, major recessions tend to be cyclic, so that we will be about time for the next catastrophe

I personally think the lockdown will be a phased lifting, which is already planned with the primary schools in Early March (earlier for Scotland) and then a full lifting by 1 April, which would be quite apt!

If I'm a month out and it's 1 May, I'd be surprised, but that's still Spring

Feel free to reply when it's August and we're still locked down.... 

Likewise sorry to hear that. Check out Rebeccas link (was broken, just updated it), some good stuff on there.

I worry about my kids anxiety and mental wellbeing (and all kids to be honest). It's really tough on them, homeschooling (we try!), but mainly the lack of interaction and community with their peers. The lack of exchanging and sharing ideas. They try over zoom, but it's clunky, ad-hoc and no substitute for real contact.

One of mine is struggling more than the other, which is manifesting itself through temper and losing control. So after a suggestion from someone else, I bought a £15 inflatable punch bag off Amazon with a £12 set of boxing gloves. What a difference, the drill now is rage developing, then head upstairs and batter the bag, which is about 3 times a day 

If it only lasts during lockdown it's money well spent. We also religiously go out for a walk first thing in the morning. Not very far, about a mile around the local village. But after bullying everyone out of the house, we all come back feeling refreshed, relaxed and ready for the day. It just seems to start us off on a more positive mindset.

In the afternoon I tend to go on a decent walk, 8 - 10 miles, just to burn off the frustration (and all the weight I put on from the first 2 lockdowns! )

But me personally I need to get out of the house. Get your headphones on, find an interesting podcast, music, learn a language, anything other than your normal work routine, put any worries aside and burn some energy.

Remember you're not alone and don't believe anyone who says they aren't struggling. 

My mates just recovered after a bad bout of it, he's a bus driver in Swindon. I do wonder when I look at all the empty buses driving round what the point of them is. Maybe they are on a reduced schedule, and the lack of cars makes them see more frequent, but there does seem to be a lot of empty buses trundling round all day long.

But you would think few people would be deliberately confrontational when asked politely to put a mask on, but we know every village has its idiot.

I walked into Tescos on autopilot the other day not wearing a mask. A young female member of staff challenged me straight away, politely but firmly, making feel a right pratt and left me apologising profusely. 

Anyone should have the confidence to confront someone not wearing a mask, as long as it's done politely.

I'm getting tired of Union or leftie led ramblings of its not our job. It's everyone's job. If you are on a bus, it's just a much up to you as a passenger as it is the driver. The virus couldn't give two hoots what is say is in the HR policy or Union guidelines. IMHO 

Sorry a bit late to this one.

The thing that would make me nervous staying as a sole trader would be the risk of liability, particularly with your type of business. So for me personally, I would go the Ltd route. There's no real increase in fees unless you currently do your own books and can file a tax return, and if you stay under £85,000 turnover, you don't need to worry about VAT.

Pay someone else!