Tag: employment

Who protects against workplace injuries when the workplace is home?

February 25, 2021, By
workplace-injuries-wfh

Our Employment and Personal Injury teams join forces to help us to understand the responsibility of employers to protect against workplace injuries when staff are working remotely.

A variety of legislation is in place to govern Health and Safety in the workplace:

  • The Health and Safety at Work etc Act (HSWA) 1974
  • The Management of Health and Safety at Work Regulations (MHSW) 1999
  • The Health and Safety (Display Screen Equipment) Regulations (DSE) 1992
  • Provision and Use of Work Equipment Regulations (PUWER) 1998

Together, (the “Legislation”).

Under the Legislation, an employer has the same health and safety responsibilities towards employees who work from home and those who work in the office.

Employers are required to ensure as far as is reasonably practicable, the health, safety and welfare at work of all employees. They must also carry out a suitable and sufficient assessment of the risks to the health and safety of employees to which they are exposed while they are at work, and the risks to others not in the employment of the organisation arising out of the work being carried out.

Employees also have a duty under the Legislation to take reasonable care of their own health and safety, and that of other people who may be affected by their activities at work. They are also expected not to interfere with safety and must co-operate with their employer to enable the employer to fulfil its health and safety duties.

What kinds of injuries could happen when working from home?

  • Tripping and falls caused by cables or obstacles;
  • Injuries arising from lifting heavy objects – especially without the help of colleagues to move equipment and objects safely;
  • Back, wrist and eye strain arising from incorrectly set up work station;
  • Stress at work from difficulty in striking a balance between home and work life.
  • Feelings of isolation and poor mental health due to the lack of social contact and availability of employer support;
  • Family members at home could be affected, i.e. an elderly relative could trip over a cable or a young child could have a delivery of boxes fall on them

An employer could also risk being reported to the Health and Safety Executive and/or a regulator for unsafe working practices, failure to have a homeworking policy in place and failures to undertake the necessary and appropriate risk assessments. As legal proceedings are usually public, there could be some level of reputational damage to the employer particularly if it is found they have failed to undertake the required risk assessments or been negligent or discriminatory in some way.

An important consideration

During the pandemic there has also been a marked increase in domestic violence and abuse, both reported and unreported. It is recommended that there should be a specific risk assessment which should also cover the possibility of domestic abuse.

If an employee discloses that they are subject to domestic abuse, the employer should allow the workplace to be open for those staff or make other adjustments to their home workplace in order to keep them safe.

Employers should look out for early warning signs of domestic abuse as they have a legal duty of care towards employees. Where identified, they should support the employees experiencing domestic abuse, keep records of incidents at work, when reported and actions taken.

An employee suffering from domestic abuse may well have mental health issues which could amount to a disability and all the normal obligations would then apply for an employer. There is an implied term of trust and confidence in the employment relationship; if an employer acts unreasonably or is unsupportive in their approach towards an employee suffering from domestic abuse, this could be a breach of the implied term of trust and confidence allowing the employee to resign and claim constructive unfair dismissal.

What else can HR do to reduce the risks of workplace injuries and harm?

Employers must conduct a ‘suitable and sufficient’ risk assessment of their employees’ work activities. What is classified as ‘suitable and sufficient’ depends on several factors, including:

  • employee’s day to day activities;
  • how long they carry out those duties for;
  • equipment they use in carrying out their duties.

Most importantly, employers must review risk assessments regularly to make sure employees’ working environments at home remain safe and healthy. This includes ensuring that the work equipment used at home is properly maintained and is suitable for the purpose for which it is used.

If undertaking a full risk assessment of potential home-working workplace injuries and risks is not possible, they should provide employees with information on working safely at home. This can include guidance on taking regular breaks and checking display screen equipment. The Health & Safety Executive’s practical workstation checklist here is useful and it would be prudent for an employer to ask employees to complete this.

The number of people who are exposed to risk of an accident increases as a result of homeworking. This will need to be risk assessed; whether an incident such as this will be covered by a work insurance policy completely depends on the type of cover the employer has.

Employers will need to ensure that there are effective supervision mechanisms in place to support those working remotely, including regular telephone or video calls through Skype/Zoom etc. Employees should be encouraged to share any problems they may have and not make assumptions about the level of support required.

Proactive monitoring of performance levels may also be an indicator of whether the employee is stressed or struggling, and employers can reach out if they notice a change. It is not enough to wait for an employee to raise an issue of stress if performance levels clearly suggest there is a problem.

Employers should be alert to the possibility that certain employees may have conditions which amount to a disability and will therefore trigger the need to make reasonable adjustments. For example, while there is no general duty for employers to provide equipment for homeworking, disabled employees may be entitled to auxiliary aids as a reasonable adjustment under the Equality Act 2010.

Contact the team

Flexible working is likely to remain an option for many employees beyond the pandemic and so employers must ensure that remote working environments are safe for employees to carry out their work.

If you require any guidance on preventing workplace injuries and ensuring your staff are well when working away from the office, our employment team are here to help.

Call us on 0161 969 3131 or leave us your contact details and one of the team will be in touch.

Furlough Scheme Update: From 01 February to 30 April

January 29, 2021, By
furlough-scheme-update

This furlough scheme update has formally extended the CJRS until the end of April, and we have further clarification on the scheme’s operation between the above dates.

On 26 January 2021, HMRC published a sixth Treasury Direction in respect of the Coronavirus Job Retention Scheme (the “Furlough Scheme”). The latest Direction formally extends the Furlough Scheme until 30 April 2021 and throws further light on the scheme’s operation between 1 February 2021 and 30 April 2021 (the “Relevant Period”). 

We summarise the key points in the furlough scheme update below:

There are no changes to the core elements of the Scheme. For the Relevant Period, employers will continue to be able to claim for 80% of an eligible employee’s salary, capped at £2,500 per month, in respect of hours not worked, and will continue to be required to pay the employer national insurance and employer auto-enrolment pension contributions on furloughed employees’ pay. Employers will also not be able to make claims for employees who are working their notice period.

As promised, HMRC published the first details of employers who have made claims under the scheme on 26 January 2021. The publication provided information about employers who made claims in December 2020. These publications will continue to be made for claims made between 01 February 2021 – 30 April 2021.

The deadlines to submit claims covering the Relevant Period are as follows:

o   February: 15 March 2021
o   March: 14 April 2021
o   April: 14 May 2021

Any amendments to be made to claims in respect of the same period are subject to the following deadlines:

o   February: 29 March 2021
o   March: 28 April 2021
o   April: 28 May 2021

For non-fixed rate employees, employers are required to use the employee’s pay in March and April 2019 as their reference salary for calculating their furlough pay for March and April 2021. The Sixth Treasury Direction recognises that by March 2021, the Furlough Scheme will have been running for a year. This means that an employee who is furloughed in March or April this year could have also been furloughed in March or April 2020.

The Direction, therefore, modifies the relevant reference year for those months to 2019 instead of 2020. When calculating an employee’s January or February 2021 furlough pay, the corresponding calendar month in 2020 should be used, as the Furlough Scheme did not start until March 2020.

Similar changes have been made to the calculation of a non-fixed rate employee’s usual working hours for March and April 2021 due to the possibility that any such employee could have also been furloughed in the corresponding month in 2020.

Where a non-fixed rate employee was not employed in March or April 2019, HMRC’s ‘Calculate how much you can claim using the Coronavirus Job Retention Scheme’ explains that an employer can only use the averaging method to calculate their usual working hours.

Contact us with any questions

If you would like any assistance in relation to this furlough scheme update, or the job retention scheme in general, please do not hesitate to reach out to the team. You can call us on 0161 969 3131 or fill in our contact form and one of the team will be in touch.

January Update to the Furlough Scheme

January 8, 2021, By
furlough-scheme-update

Employees who are unable to work or are working reduced hours as a result of caring responsibilities arising from the coronavirus can be furloughed. New updates to the furlough scheme are explained below.

On Monday 4 January 2021, Boris Johnson announced a third national lockdown in England, dashing any hopes of the easing of coronavirus-related restrictions in 2021.

As part of the newly imposed lockdown, children in primary and secondary schools switched to remote learning until at least February half term. The only exceptions to this are vulnerable children and children of key workers who are still able to have in-person classroom lessons.

Following calls for extra support for working parents having to deal with enforced school closures, HMRC has updated its ‘Check which employees you can put on furlough to use the Coronavirus Job Retention Scheme’ guidance (the ‘Guidance’) to clarify that employees who are unable to work, or are working reduced hours as a result of caring responsibilities arising from the coronavirus, can be furloughed.

We have produced a tracked version of the latest changes to the relevant section of the Guidance below.

If your employee’s health has been affected by Coronavirus (COVID-19) or any other conditions

I̶f̶ ̶y̶o̶u̶r̶ ̶e̶m̶p̶l̶o̶y̶e̶e̶ ̶i̶s̶ Your employee is eligible for the grant and can be furloughed, if they are unable to work, including from home or working reduced hours because they:

  • u̶n̶a̶b̶l̶e̶ ̶t̶o̶ ̶w̶o̶r̶k̶ ̶b̶e̶c̶a̶u̶s̶e̶ ̶t̶h̶e̶y̶ ̶are clinically extremely vulnerable, or at the highest risk of severe illness from coronavirus and following public health guidance.
  • u̶n̶a̶b̶l̶e̶ ̶t̶o̶ ̶w̶o̶r̶k̶ ̶b̶e̶c̶a̶u̶s̶e̶ ̶t̶h̶e̶y̶ ̶have caring responsibilities resulting from coronavirus (COVID-19), i̶n̶c̶l̶u̶d̶i̶n̶g̶ ̶e̶m̶p̶l̶o̶y̶e̶e̶s̶ ̶t̶h̶a̶t̶ ̶n̶e̶e̶d̶ ̶t̶o̶ ̶l̶o̶o̶k̶ ̶a̶f̶t̶e̶r̶ ̶c̶h̶i̶l̶d̶r̶e̶n̶ ̶ such as caring for children who are at home as a result of school and childcare facilities closing or caring for a vulnerable individual in their household.

This update now clarifies what has previously been an area of uncertainty and confirms that working parents caring for school children are eligible to be furloughed. We believe that parents assisting primary school children will certainly be eligible. Of course, employers do not have to agree to furlough and may instead wish to explore changing an employee’s hours, unpaid leave or taking holidays as other options.

The Coronavirus Job Retention Scheme has now been extended further until the end of April 2021

Most of the eligibility requirements of the scheme remain the same but we note the following:-

  • Employers can still furlough employees for whom RTI submissions have been made between 20 March 2020 – 30 October 2020.
  • There is no longer a requirement that those employees should have been previously furloughed in order to be eligible for the scheme.
  • There is no cap on the number of employees who can be claimed for from November 2020 (as long as they were on the payroll on or before 30 October 2020).

Contact me with any questions

If you require any further information in relation to furlough and the new changes to the guidance, please do not hesitate to contact our team.

You can call us on 0161 969 3131 or fill in our contact form and one of the team will be in touch.

Update to the Job Support Scheme: JSS Open

October 27, 2020, By
jss-open-job-support-scheme.

November 1st, 2020 is when the Government’s Job Support Scheme launches. We provide the most up to date information about the latest updates on “JSS Open” here.

On Thursday 22 October 2020, Her Majesty’s Treasury announced a further update to the Job Support Scheme. This latest announcement is the second update to the scheme since it was originally introduced on 24 September 2020.

The update only applies to the Job Support Scheme so far as open businesses are concerned (now known as “JSS Open”) and effectively where you are contemplating reducing an employee’s working hours due to a down-turn in work as a result of the impact of COVID-19 on your business operations.

The JSS available for businesses legally required to close due to local and/or national restrictions (now known as “JSS Closed”) remains unchanged.
Please see our earlier update on JSS Closed here.

An overview of JSS open

The changes to JSS Open increase the extent of the Government’s financial support and protect jobs that were previously not covered under earlier versions of the scheme. In summary:

–  Employers must still pay employees their contracted wages for every hour worked.

–  In order to be eligible, employees no longer need to be working a minimum of 33% of their usual hours. This threshold has now been reduced to 20%, capturing a wider pool of employees, including those working just one day a week.

–  For every hour not worked, the Government will contribute to wages up to 61.67%, capped at £1,541.75 per month per employee. This is a significant increase in Government support compared to the previous rules where the Government’s contribution was limited to a third of wages for non-working hours, capped at £697.92 per month.

–  Employers’ required contribution to non-worked hours has now been reduced to 5%, capped at £125 per month. The revised scheme is therefore cheaper for employers to operate than previously was the case making it a potentially more viable option for struggling businesses.

–  To illustrate how the scheme now works – if an employee was being paid £587 for their unworked hours, the government would be contributing £543 and their employer only £44.

–  Employers can top up their contribution beyond 5% at their own discretion.

–  Employers will continue to receive the £1,000 Job Retention Bonus in addition to the JSS contribution, provided they meet all the requirements.

Written Agreements from employees

If you are contemplating using the new JSS Open then you must agree on the new working arrangements with your employees.

Simply notifying employees that they are being placed on the JSS is not sufficient. Therefore, it is important that you ensure that you have written agreements from all employees who have been placed on the JSS (and that you follow up with any employees who have not yet confirmed their agreement to you).

Furthermore, records of these agreements must be kept securely for 5 years as HMRC may require employers to produce them during audits (and at any time upon HMRC’s request). You are also required to keep records of how many hours employees work and the number of usual hours they are not working.

Please note that the above update reflects the Government’s guidance as in force as of today’s date. We understand that more detailed guidance will become available in respect of the above before the end of this month (including that HMRC is apparently going to issue detailed advice about what to include in the agreement with employees and will also provide more detailed worked examples).

Contact us with any questions

If you require any further information in relation to the Job Support Scheme, including how to implement it into your business, our employment team are here to guide you.

Call us on 0161 969 3131 or leave us your details and one of the team will call you back.

Coronavirus – Will I get paid if I have been told to self-isolate?

February 27, 2020, By

The government has instructed British citizens returning from Hubei province in China, Iran, northern Italy and South Korea that they must self-isolate for 14 days, even if they do not have symptoms of Coronavirus. There is a lack of clarity around the issue as to whether employees will get paid if they are not at work.

The Department of Health has sent guidance to UK employers that staff who have been told to self-isolate are entitled to take the time as sick leave.  If an employee is sick or suffers from symptoms, they will qualify for statutory sick pay or whatever their contract provides over and above that.  By law, medical evidence is not required for the first 7 days of sickness. After 7 days, it is for the employer to determine what evidence they require, but the government have advised that employers use their discretion around the need for medical evidence in these circumstances.  Whilst it is not an option for factory or retail workers to work from home, it may be possible for employees who do have the ability to do so, to continue working.

What happens if workers have been advised to self-isolate but are not actually ill?

In those circumstances, workers are not entitled to statutory sick pay.  However, ACAS consider it good practice for employers to treat the quarantine period as sick leave and follow their usual sick pay policy or agree for the time to be taken as holiday. Otherwise, there is a risk the employee will come to work because they want to get paid which could result in the virus spreading, if they have symptoms.

Employees are also entitled to time off work to care for dependents such as an ill or elderly relative or if a child’s school closes at short notice.  Again, if the employee is unable to discharge their duties at home, there is no statutory right to pay for this time off. Some employers might offer pay depending on the contract or workplace policy and encourage employees to book some of the absence as holiday after an initial period of absence.

If an employee decides that they do not wish to attend work and chooses to self-isolate, the employer should take steps to listen to the employee’s concerns. They must ensure that the employee feels safe and secure and attempt to resolve the issue to both parties satisfaction.  Employers could, if appropriate, offer working from home or flexible working as potential options.  However, if the employee insists on remaining at home, employers may be able to agree a period of unpaid leave or that the employee can take the time off as holiday.

Any failure to attend work without the employer’s authorisation could potentially result in disciplinary action.

Employment Law and Brexit

October 3, 2019, By

With the impending 31 October 2019 deadline for Brexit fast approaching, many commentators have been considering the potential impact of a departure from the EU on this date on employment law and employee and worker rights.

The government has shown appetite for implementing changes to employment rights in recent years; from the repeal of the statutory code for disciplinary and grievances, to the increase of the minimum continuous service required to bring a claim for unfair dismissal from one years to two years and the introduction (and subsequent repeal) of fees to bring a claim in the employment tribunal.

Many employment rights are derived from European legislation; such as protection against discrimination, the protection of employment in a business transfer (TUPE) and the right to paid holidays, to name but a few.

However, it is important to understand that, aside from a possible immediate effect on rights to work in the UK, an exit from the European Union will not automatically repeal those employment rights that are derived from European legislation.  This is not to say that a post-Brexit government will not address employee and worker rights at some point but what may change is difficult to predict and will depend on the makeup of any post-Brexit government.

It is also important to remember that many statutory rights are written into employment contracts and therefore, any repeals could have negative and confusing effects on businesses in terms of understanding, implementing and balancing legal and contractual positions in the event of any change.  As such, it is hopeful that any changes to employment rights are implemented only after consultation with industry, trade unions and professional bodies.

EAT decision on use of incorrect EC number on Claim Form

July 23, 2019, By
Incorrect legal documents

In the case of E.ON Control Solutions Limited v Caspall, the Claimant attempted to bring a number of claims against the Respondent, the Claimant’s previous employer. The Claim Form wrongly stated the EC number for a different Claimant, who was also bringing claims against the Respondent and who was also represented by the same solicitors as the Claimant.

A Preliminary Hearing was convened in order to consider whether the Claimant’s claims should be allowed to proceed. The Employment Judge (EJ) noted that the claim had not been rejected and decided that it was open to the Claimant to apply to amend his claim to include the correct EC number. The EJ considered that there would be no prejudice to the Respondent in allowing the amendment and that the error could be easily corrected.

The Employment Appeal Tribunal (EAT) disagreed with the Employment Tribunal. It considered that having submitted a Claim Form with an inaccurate EC number, there was an obligation on the EJ to reject the claim and return the Claim form to the Claimant, explaining why it had been rejected and explaining how he could apply for a reconsideration. This did not happen but the EAT considered that this did not mean that the obligation to reject the claim ceased to apply. The EJ had a duty to reject the claim and had the EJ done so, there would no longer have been a claim before the Tribunal that could have been amended by the exercise of the EJ’s case management powers. The EJ therefore had erred in purporting to allow an amendment to a claim that ought to have been rejected.

What is Constructive Dismissal?

July 19, 2019, By
What is constructive dismissal?

Constructive dismissal is the term used where an employee resigns in response to their employer’s conduct in breach of an important term of their employment contract.

If you have experienced the following problems at work, you may be able to bring a claim for constructive dismissal in the employment tribunal:

  • If your contractual benefits are taken away;
  • If you have been bullied or harassed at work;
  • Unreasonable changes to how you work (such as changes to your working hours);
  • If you have been demoted;
  • If your employer refused to pay you;
  • If your work environment is not safe; and
  • If you didn’t have the adequate support needed to do your job.

For a constructive dismissal claim to succeed, you will need to demonstrate the following:

  • Your employer was in repudiatory breach of the employment contract;
  • You resigned in response to that breach; and
  • You did not delay too long before resigning in response to the employer’s breach. If you continue working for any length of time without leaving, you are likely to lose your right to treat the contract as breached and will be regarded as having chosen to “affirm” the contract.

Given the requirements set out above, it can be difficult for an employee to succeed in a claim for constructive dismissal.  It is essential therefore that before commencing a claim, you have the right employment law specialists to guide you through the process.

The ability to secure practical, reliable and friendly advice from an experienced employment law expert will be invaluable during this difficult time. It is important to know the options available to you and the right expert can help to put your mind at ease, advising you in respect of any potential cause of action, preparing your case and keeping you updated with the progress of any proceedings.

If you think that you have a potential claim for constructive dismissal, get in touch with our experienced employment law team who can advise you in respect of any potential cause of action you may have and guide you through your case.  You can contact one of our employment experts on 0161 969 3131, get in touch on our website.

Can You be Dismissed for Your Social Media Activity?

July 8, 2019, By
Social media rights in work

From blogs to business forums and social gaming to social networks, it is hard to escape social media, with some commentators predicting that, by 2021, at least one third of the world’s population will be active users.

Despite this, many are unaware of the potential legal implications of social media use, particularly upon their employment. Social media or internet misuse may be misconduct amounting to a potentially fair reason for an employee to be dismissed by their employer.

In an effort to understand what may or may not be acceptable social media use from an employer’s perspective, it is useful to examine how the courts have dealt with dismissals due to social media or internet misuse.

Private or Public Usage?

Case law shows that it is possible for an employer to fairly dismiss an employee for conduct outside of work, including an employee’s use of social media.

The courts have seen many employees who have been dismissed by their employers due to “private” social media use claiming that their dismissal was not fair because the post or comment made was done so on a private social media account that only friends can see.

Unfortunately, the very fact that an employer knows about a social media post and uses it as a reason for dismissal has, in the eyes of the courts, often negated the argument that the post was private.

Even if the social media use takes place on the employee’s own computer outside of work, the key issue for employers to consider regarding whether it is appropriate to discipline or dismiss an employee as a result of this is whether or not the employee’s social media post damages or has the potential to damage the employer’s reputation.

Using Social Media in Work

Due to social media still being relatively new phenomenon it can be hard for both employers and employees to know where they stand when using social media.

A common problem for many employers is employees’ social media usage affecting their productivity and work rate. This is why more employers are adopting a zero tolerance approach to the usage of social media during working hours, whether it be by implementing social media and internet policies or blocking access to social media platforms on work networks.

If you’re trying to find out where you stand with social media usage in your place of work, you should find out whether your employer has a policy in place relating to the use of social media.

Using Social Media Outside of Work

Although many employees don’t think twice about using social media outside of working hours, this is when disciplinary actions now commonly arise.

When you set up your social media accounts, it is important to consider whether or not you state your place of work on your profiles. Having the name of your employer clearly visible on your profile details means that you are a self-stated representative of that employer; in simple terms this means that any comments, posts or opinions that are viewed in a negative light could seriously affect the reputation of the employer.

If your employer can prove that these comments had or were likely to have a negative effect on its reputation, it may be within its rights to take disciplinary action against you, which could even include summary dismissal.

Overall, social media use in the workplace can be hard to understand due to it being a grey area for many businesses; not least because a business itself may heavily rely on social media platforms for things like advertising and business development. There are not always defined acceptable use policies which can assist employees and employers alike in dealing with social media use and misuse.

If your work life has been negatively impacted by the use of social media and you’re unsure whether there is anything you can do, get in touch with our employment law specialists who can help you find out more and support you through the claim process.