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COVID-19 AND EMPLOYMENT LAW: HELPING GET EMPLOYEES BACK TO WORK AND BACK TO BUSINESS

This article is written further to the webinar Employment Law webinar that we hosted on Wednesday 30th September.

There has never been a more important time for employers to re-assess the employment relationship. Furlough leave is coming to an end and the new Job Support Scheme is already causing worry. Many employees are returning to newly negotiated terms and conditions and many businesses are facing complete overhaul in light of the impact the pandemic has had and are exploring redundancies.

Employers do not generally want to make redundancies but a correct and fair process can help achieve the best, most useful results. The important thing is to start with a clear assessment of what the business needs. It might be that employees can go part time, however it will need to be considered whether the Job Support Scheme makes this more expensive than cutting down the workforce.

Businesses worry about losing key staff and not being able to guarantee them a return but the redundancy process can actually be helpful in this regard, as many businesses find things are changing on a weekly basis and other alternatives to redundancy arising throughout the consultation process.

The employment relationship is all about being reasonable. Communication with staff and documenting everything is paramount. Most employees treated with empathy will be on your side, and, of course, the relationship is mutual.  Employees need to understand the reasons for the changes, which is where clear and concise communication helps.

Naturally the process of change can be trying when employees refuse to engage, or, for example, an employee on maternity leave cries discrimination when she has been selected fairly.

However, as long as businesses have genuine business needs and fulfil the statutory definition of redundancy, that work is diminishing or disappearing in that particular area, it will be difficult for anyone to mount a challenge, maternity leave or not.

Getting back on track can of course present difficulties. What of the problem employees who refuse to come back, the one who flouts your new social distancing guidelines or do not self isolate when they are supposed to, potentially putting others at risk? In these cases, businesses must be robust and prepared to make it clear that such actions merit possible disciplinary sanctions, including dismissal. Suspension on full pay is also an option whilst you investigate and decide what to do.

There is no doubt these times of adjustment will be difficult for businesses re-grouping, cutting down or changing around their workforces but as far as the logistics go, get the right team around you and there will be no situation that cannot be sorted out on a legally sound basis.

About the Author

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.

Philippa Wood is a solicitor with many years’ experience advising on all areas of contentious and non-contentious employment law. Her clients include individuals and companies of all sizes from entrepreneurs to global brands. Philippa qualified as a solicitor in 2005 after working for 13 years in the media, most notably being part of the start-up team for two national cable television stations in the 1980s and 90s. 

This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.

For more information or assistance with a particular query, please in the first instance contact Adam Mikula on 020 7947 5354 or by email on adm@prospectlaw.co.uk.

For a PDF of this blog click here

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COVID-19: THE JOB RETENTION SCHEME

Last month the government introduced the Job Retention Scheme, to help employers affected by the Covid-19 pandemic. The scheme introduced the concept of “furlough leave” and provides for employers to recover up to 80% of employees’ pay from HMRC.

Whilst some companies are benefitting from the current circumstances, many small companies, who are the backbone of the UK economy when things are going well, are facing huge downturns in profits and therefore laying off or making employees redundant. For them this news was welcomed, although many are still confused about who qualifies for the scheme, how to apply for it and how to calculate the amounts to claim back.

The scheme is open to all UK employers who had created and shared a PAYE payroll scheme on 28 February 2020 and have a UK bank account. The scheme covers full and part-time employees, employees on agency contracts and employees on flexible or zero-hour contracts, provided that they were on the employers’ PAYE payroll on 28 February 2020, and regardless of their contract type.

Employees who were made redundant after 28 February 2020 can qualify if they are re-engaged by their former employer, as can those who went on unpaid leave (were laid off) after 28 February. It has not been confirmed but it appears the intention is to prevent employees who are on unpaid leave or who have left for reasons unrelated to the pandemic (i.e. resigned before the crisis but not yet left employment) from being transferred onto furlough leave and receiving a windfall. Slightly contradictory to this, it appears also to be available to employees who were given notice of redundancy before and for reasons unconnected with the pandemic, who were subsequently made redundant after 28 February. However, employers should take advice on this before furloughing staff, as HMRC has indicated that it will be making retrospective audits once the crisis is over.

Where an employee has more than one job, their employments are treated separately for the purposes of furlough leave, and the reimbursement cap applies to each employer individually.

To apply for the scheme, the employer should decide which employees to designate as furloughed employees; notify them of the change; consider whether it needs to consult with employee representatives (ie when 20 or more employees are affected); agree the change with the employees, who must consent to a pay cut if the employer is not going to top up the 80% grant to full salary; confirm the new status in writing; submit information to HMRC through an online portal; and ensure that the furloughed employees do not undertake any work for the employer.

The online portal through which employers apply for the grant is expected to be operational by the end of April and HMRC will backdate claims to 1st March. Many employers are asking how they pay their staff in the meantime but unfortunately there is no easy answer to this and it will be up to the individual concerned as to whether they can afford to wait or perhaps take a percentage only of this month’s salary – otherwise the employer may find themselves having to dip into their own pocket.

About the Author

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.

Philippa Wood is a solicitor with many years’ experience advising on all areas of contentious and non-contentious employment law. Her clients include individuals and companies of all sizes from entrepreneurs to global brands. Philippa qualified as a solicitor in 2005 after working for 13 years in the media, most notably being part of the start-up team for two national cable television stations in the 1980s and 90s. 

This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.

For more information or assistance with a particular query, please in the first instance contact Adam Mikula on 020 7947 5354 or by email on adm@prospectlaw.co.uk.

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EMPLOYMENT LAW: THE EFFECTS OF RECENT CHANGES TO THE EMPLOYMENT RIGHTS ACT 1996

Following the government’s Good Work Plan, fundamental changes are being made to the particulars to be given to employees, and now workers, on starting work. Terms can be provided as a ‘Section 1 Statement’ of mandatory particulars, or within an employment contract (together referred to herein as Particulars).

The key changes are:

  • Employers now need to provide Particulars to workers as well as employees.
  • Particulars must be provided on or before the first day of employment. Prior to April 6th, employers had two months. There is now no minimum service requirement and all workers will have a right to written Particulars.
  • Some information can still be provided within two months of the start of employment and can be provided in instalments, if the employer prefers. These exceptions include information about pensions, collective agreements, any training entitlement (not including mandatory training, even if paid for by the worker) and information about disciplinary and grievance procedures.

Particulars now need to contain details of:

  • The days of the week worked, whether the working hours are variable and how any variation will be determined;
  • Any paid leave;
  • All remuneration and benefits;
  • A probationary period (if applicable); and
  • Any entitlement to training provided by the employer and whether this is mandatory and/or paid for.

Terms relating to incapacity and sick pay, any paid leave entitlement which is additional to annual leave and holiday pay (such as maternity and paternity leave), particulars of training provided by the employer, pension schemes, notice periods and certain information about disciplinary and grievance procedures should be contained in a reasonably accessible document and referred to as such within the Particulars. 

The laws stipulating that employees can only bring a tribunal claim for the failure to provide a Section 1 Statement if they are also bringing another specified claim in the tribunal and that the capped amount of compensation for failure to provide a Section 1 Statement is four weeks’ pay (subject to the prescribed statutory amount of a ‘week’s pay’) remain unchanged .

Existing employment contracts do not need to be amended, however employees can ask for them to updated if they wish. All new Particulars should reflect the new law.

About the Author

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.

Philippa Wood is a solicitor with many years’ experience advising on all areas of contentious and non-contentious employment law. Her clients include individuals and companies of all sizes from entrepreneurs to global brands. Philippa qualified as a solicitor in 2005 after working for 13 years in the media, most notably being part of the start-up team for two national cable television stations in the 1980s and 90s. 

This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.

For more information or assistance with a particular query, please in the first instance contact Adam Mikula on 020 7947 5354 or by email on adm@prospectlaw.co.uk.

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PHILIPPA WOOD PROVIDES AN UPDATE ON GENDER PAY GAP REPORTING REQUIREMENTS

This year has seen the 100 year anniversary of women getting the right to vote.  Serena Williams recently jumped up in defence of women’s rights in the face of criticism of her recent behaviour towards an umpire. We have never been so aware of the alleged differences between the treatment of men and women.

Philippa Wood, from Prospect’s employment team, provides an update on gender pay gap reporting.

Reporting Obligation

Reflecting this mood is the ECHR, introducing for the first time last year obligations on employers with 250 employees or more to report after each full year on any “gender pay gaps” in their workforces. This year, the results are still coming in, with some companies still (for some reason!) resisting publishing their reports. However, in the main they already reveal an unfortunate and continuing trend.

Gender pay gap reporting requirements hit their one-year deadline last month (September 2018), kicking in what are now mandatory duties for larger companies to disclose the difference in earnings of men and women.

Findings to Date

The UK has been revealed to have one of the highest gender pay gaps in Europe. The median across the economy is 18% in favour of men, with pay gaps of over 40% not uncommon in some sectors.

Whatever the reasons – outdated attitudes, differences in education, domination of men in the highest paid sectors of the economy – the report highlights that businesses also need to take responsibility for “the impact of their own policies, practices and culture” and recommends that the reporting obligations go even further in the future and require organisations to explain gender pay gaps and action plans to overcome them.

“Organisations cannot rely on excuses about societal attitudes and trends to avoid examining their own contribution, conscious or otherwise, to their gender pay gaps and the effectiveness of their measures to address them. They must take responsibility for closing these gaps by taking effective action.”

In light of evidence that the gender pay gap is higher in smaller businesses the report also recommends that the Government “widens the net of organisations required to publish gender pay gap data to those with over 50 employees”.

Economic Effects & Sanctions

The reasons for the report are widely debated. However, the government maintains that it is of vital importance to the economic health of the country that these gaps are narrowed. Influential studies, including Kinsey, maintain that there is a high economic cost in failing to “secure and reward the contribution of women in the workforce”, estimating that, were the gender pay gap to close, this could add £150 billion to GDP in the next 7 years.

With regards to compliance, reporting obligations were found to have been (in general) effectively enforced by the ECHR, although there was a lack of clarity over the sanctions, which arguably are not effective enough to put people off ignoring their responsibilities.

The present sanctions are argued to be too weak and some organisations (Allen & Overy being the worst offender) delayed publication, opening the door to criticism of the powers of the EHRC.

If the report is heeded, many more organisations should in the future be under no doubt that the Government appears serious about closing this gap, or at least getting full disclosure from businesses to arm it with the means to start doing so.

In conclusion, the report is clear in its support of continued and widened reporting obligations, stating: “Increased transparency should, over time, improve fairness. And a more equal role for women in the workplace will contribute to economic growth.”

About the Author

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.

Philippa Wood is a solicitor with many years’ experience advising on all areas of contentious and non-contentious employment law. Her clients include individuals and companies of all sizes from entrepreneurs to global brands. Philippa qualified as a solicitor in 2005 after working for 13 years in the media, most notably being part of the start-up team for two national cable television stations in the 1980s and 90s. 

This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.

For any questions about equal pay or concerns over or queries about possible sex discrimination claims, please in the first instance contact Adam Mikula on 020 7947 5354 or by email on adm@prospectlaw.co.uk.

For a PDF of this blog click here

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ZERO-HOURS CONTRACTS IN ENERGY AND INFRASTRUCTURE PROJECTS: THE FUTURE IS CONFUSED

Statistics released last month show that zero-hour contracts were greatly on the rise last year, including in the energy and infrastructure sectors. Although the government is criticised for doing little to tackle the perceived exploitation of workers on these contracts, they remain just as popular, if also as divisive, as ever.

These controversial “no-ties” agreements, which allow employers to contract whenever and for however long they want, with no guarantee of work, are not suitable for everyone. But for a proportion of the workforce, the flexibility these contracts allow makes them appropriate and convenient.

The oft repeated refrain from critics of zero hours contracts is that employers have no obligations to workers and take advantage of them, bringing them on board when they want them only to spit them out when they’ve gained what they need. Indeed, some zero-hour contract employees report a vulnerability that renders them unable to speak up when treated unfairly, but employment lawyers will tell you there are plenty of employees with “rights” who are the same. Employees may be protected on paper but when it comes down to a dispute, for example, who holds the cards? It’s often a game of chess rather than a legal fight, zero-hours or not.

The need for an occasional workforce 

Some businesses need workers irregularly. These contracts provide these firms complete flexibility over when and how they utilise their workforce whilst giving them no obligation to actually offer work. Now that a change in the law means that “exclusivity clauses” are unenforceable, workers can turn offers of work down without fearing the loss of future work from that company. Some industries may find a series of fixed-term contracts, consultancy agreements or engaging agency staff more suitable, however any business that does not know from one day to the next how many staff they need will still find zero hours’ arrangements useful.

There are reports that the use of zero hours contracts is levelling out, and may even be likely to decrease. Companies develop relationships with certain workers but, now that they cannot guarantee the availability of preferred workers, will zero hours’ contracts be used less?

Those companies that are already using zero hours’ contracts will have a good bank of contacts, so will be more likely to have immediately available back-up – not unlike under consultancy agreements. Now that workers do not have to take on work when it is offered, businesses will necessarily be looking at ways of getting a better bank of different people to rely on whilst maintaining, wherever possible, the flexibility to take on staff only when they require their services. This approach lessens the risk from the employer’s viewpoint of deemed “employment status” (i.e. mutuality of obligation) evolving in due course between employer and worker.

The ‘Uber’ Case

With the ground-breaking “Uber” case finding that drivers are “workers”, people who hold mid-way status between employees and the self-employed and benefit from some of the main worrisome claims for employers such as unfair dismissal and sick pay, and with certain faces naturally becoming more and more established at one location, mutuality of obligation may in fact be developing in any event. Are the lines between employee / worker and / or free to choose becoming blurred and leading zero-hours’ contracts to their natural end?

There will still be obligations on companies, of course. Companies need to keep track of which members of staff are working and when, whilst making workers aware that they need to be informing the firm of what else they are doing and for how long. Companies should be able to ensure that they do not fall foul of Working Time Regulations, since unless workers opt out of the 48 hour working week, this part of the Regulations applies to all their jobs as if they are one.

As always, the most effective way to ensure this and other vital information is recorded properly and that other important issues are dealt with at the same time is to have good, solid terms and conditions agreed from the outset.

About the Author:

Philippa Wood is a solicitor with many years’ experience advising on all areas of contentious and non-contentious employment law. Her clients include individuals and companies of all sizes from entrepreneurs to global brands. She advises on the full range of employment issues: defending all types of discrimination claims including maternity, stress & bullying; unfair and wrongful dismissal; directors’ disputes; whistleblowing; agents and agency regulations; redundancy, restructuring and outsourcing including TUPE claims; remedies hearings and contributory costs; collective bargaining; arranging and heading up employer and employee training days and sessions; drafting executive service, consultancy and fixed term and permanent contracts of employment, staff handbooks and sickness policies; advising on how to implement service provision changes; flexible working and statutory leave requests; and employee monitoring and data protection issues.

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.

This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.

For more information or assistance with a particular query, please in the first instance contact Adam Mikula on 020 7947 5354 or by email on adm@prospectlaw.co.uk

For a PDF of this blog click here