COVID-19 Restrictions: Government Support for Closed Businesses; Disciplinary Issues & Remote WorkingPosted in : 'Any Questions' Webinar Recordings on 6 November 2020
In this month’s webinar recording Seamus McGranaghan and Scott Alexander discuss all manner of employment law issues, including Government support for businesses closed under Covid-19 restrictions, remote working and disciplinary issues arising from breaches of Covid-19 restrictions.
Has the extension of the furlough scheme enabled you to reduce redundancy?
Have you incorporated any COVID-19 rule breaches into your health and safety or disciplinary procedures?
Now we have a question already on furlough and what we're going to do is start off with furlough because obviously the job support scheme open and closed, that was announced as being suspended effectively, Seamus. So we have a question in here.
What's the updated position in relation to the furlough scheme and in particular, are new agreements required?
Seamus: Just as I thought we were going to have to not talk about furlough any longer after talking about it from March time. Yeah, we've now got the position where Saturday night the Prime Minister announced an extension to furlough and that initial extension was really following on from the lockdown, Lockdown 2.0 as it was referred to in the media for England and there was a brief period on Saturday where we were all scrambling on Saturday evening to check whether or not there was going to be brought in on a UK-wide basis or whether it was just for England.
It's great to have the online community there over social media that you can get the answer much quicker by liaising with colleagues online. But thankfully, we've got clear guidance then that it was UK wide and then, of course, there was rumblings and follow-through yesterday that the Chancellor announced that the furlough scheme is going to be now extended to the 31st of March 2021, and importantly under that extension, the government are going to pay for 80% of wages for hours not worked up to a cap of £2500 and the employer will be required to pay the National Insurance Contributions and the pension contributions for those hours. So it's really back to where we were at in August 2020.
Conscious of the fact that the scheme will be reviewed and possibly revised in January 2021, in order to decide whether the economic circumstances are therefore, and if they've improved enough to ask employers to increase contributions. So although we're back to the government providing 80% and that there's no sort of sliding scale in relation to that for the next three months anyway, that could change in January 2021.
So, look, even from that point of view, Scott, looking back at that first poll there, that could impact matters in January. We'll just have to see how things develop. The job retention bonus that was also offered, that was going to be paid in January if you retained your employee until . . . paid in February if you retained your employee to January, that has been pulled back at this point and they're talking about looking at some other incentive scheme that might be deployed later down the line.
Key things are really are that employers will have flexibility to use the scheme for their employees for any amount of time or shift pattern. And so we're not back to that position we were in April time where you had to have, you know, be furloughed for at least three weeks. We have a clear position that we're going to have flexible furlough available, which is really good news given that that we are in this process at the minute of restrictions, and tighter restrictions in some industries than in others. Neither the employer or the employee needs to be previously claimed or being claimed for under the retention scheme to make a claim under the extended, so anyone that hasn't been previously furloughed can now be furloughed, and from going forward.
And importantly claims under the scheme can be made 8 a.m. on the 11th of November, and also importantly claims for November must be made no later than the 14th of December, so just picking those important points out so that nobody misses out there. And then it looks that it's going to be claims for each subsequent month that we have will have to be made by day 14 of following month.
And we want to cover off just in relation to mention about there has to be an agreement in place. So what the government have been clear about again is that any agreement that's in place between the employee and the employer to either be placed on furlough or flexible furlough, that it has to be consistent with employment equality and discrimination laws. It's nothing new there from April, but it's just a reminder that if you've any new employees start that haven't been previously furloughed, you will need to look to put an agreement together for them.
Also then that the agreement that is put in place, it doesn't need to be signed off or replied to by the employee, but again, it's best practice if that can be done and if those records to be held because we know that HMRC if they do inspections can go back for a period of five years. So it's important that the records are kept.
And there has been, and I'll just mention this briefly, there has been some discussion in and around the guidance. And you know, what the guidance says is that employers should discuss with their staff and make changes to the employment contract by agreement. And to be eligible for the grant employers must have confirmed to their employee in writing but they've been furloughed or flexibly furloughed. And there's this issue around the terms of the agreement, what the agreement must say, and it does say in the guidance that the agreement must reflect the hours the employee has actually worked or not worked over the period of the agreement. And it must allow the employer to satisfy the terms of the retention scheme so that they can make a claim for in relation to hours not worked.
So this had led to some commentary where people are saying, well, then do I need them to issue a different letter every week on the basis that under flexible furlough I might need an employee to work 20 hours one week, maybe 15 the next, maybe up to 30 on another week? And that's specifically given the circumstances at the minute I think we've all noticed in our places of work that as people get notifications on the track and trace as they get positive tests where they have to self-isolate for other reasons that there can be fluctuation in staff and availability, so it's absolutely natural that there will be flexibility required in and around furlough and the hours that are worked and not worked.
From my point of view, and I know Scott we had a brief conversation about this, but I don't see the guidance as saying that you need to issue a fresh letter every week if hours are changing. My view is that you're better having an agreement in place that the employee is going to be either on furlough for a set period of time, or alternatively that it's going to be flexible furlough and make it clear in the written communication that may mean that there is flexibility to the hours worked, but that certainty and the surety for the employee is that they will never receive less than 80% of the cap of 3,500 for the hours that they haven't worked. Obviously, they get their normal remuneration for the hours that they worked.
So just to cover off that point, I don't think that there's a necessity to issue a fresh communication each week, or each month. And I think that you want to have a general communication that will cover you and obviously you need to retain your records for the hours worked or not worked for HMRC inspection so that you can file your claims under the scheme.
Scott: Yeah. Okay, so there's not a written agreement every week if it goes up and down, but there may be a number of people who were on the flexible scheme or weren't asked to do any hours. They went from off full time and getting 80% of their wage and as that was reduced and the employer had stopped paying. These people were still off but the employer might have topped it up to, by the time it was 10% or 20% whatever was required as the old furlough scheme continued, and we may be moving into a period where some employers are going, look, it's busy at Christmas. If you'd like to open, it's busy at Christmas, and we need you in for some time. And those can be furloughed, and I suppose the protection for the employee there is that they're still getting their 80%, but because it's more flexible that might not reflect what being in the old agreement. And so some employers may well need some kind of new agreement to say look, this is a flexible scheme. We might need you in. We're allowed to bring you in for some hours, you get paid for those. Any of the other hours are going to be topped up and you'll come up with your 80%.
So I think that's the situation that we have there, Seamus. But we do have a couple of questions that have been coming in on the text here on the question box.
I have a member of staff on long-term sick leave, can I furlough them?
Seamus: Yes, the guidance provides the option for the employer to furlough someone that is in long-term sick leave. And there's a discretion for the employer to do that within the guidance.
Scott: Okay. We had one in before and I'm going to double up with another one because I think it's similar here.
Can a notice be issued during the extended furlough scheme? Can people be made redundant?
But on the other side of that is a question. If people have been made redundant, if you go back to our old poll there were quite a few people who said, no, it doesn't make any difference. We still made them redundant. Can those people be brought back in and put on . .And there you go. Put on furlough.
Seamus: Yeah, so in relation to the first . . . I'm going to caveat both replies by saying that there is further guidance to be issued by the government. And I think we've been told that that's going to arrive at us by the 10th of November. It could be a bit before. It could be a bit after. Who knows but that's what we've been told. In relation to the first question, so far as I can see, there is no difference to the guidance in relation to redundancies. The specific things that would apply is that you can still make somebody redundant whilst they're on furlough, and you can use the furlough scheme in respect of their dependency pay or sorry not their redundancy pay. You cannot use it for the redundancy pay.
Scott: Seamus, let me jump in there. You may get that wrong.
Seamus: You can use it for their notice pay, but obviously you have to top up with the notice to the full 100%, but you cannot use it in respect of any redundancy payments. So it seems to me that the same position does apply as to how it applied previously, and obviously at redundancy also that the person is entitled to payment fully in relation to their holidays that they have accrued but haven't taken. But the most employers in my experience, as they're going through and working through the notice period if they're contractually able to do it, they're asking the employees to take their holidays during the notice period but then they have to obviously top that up as they would do anyway on a notice payment.
And just remind me what the second question was there, Scott. Apologies. It has been a long week this week.
Scott: Yeah. Can you bring people back? So if they've been made redundant because the furlough scheme was ending and the employer didn't have the money to pay up even with a reduced amount on the JSS 00:20:24, that made people redundant, are they able to take them back and furlough them?
Seamus: Yeah, there is specific guidance. I'm nearly sure as I frantically look through my document but I'm nearly sure it's from anyone that's been made redundant since the 23rd of September that they can be brought back and put on furlough instead. And I just double checked that now, and yeah, it is. Actually, it's employees who were made redundant, or stopped working after 23rd of September can be re-employed and claimed for.
Scott: And I take it once they come back what happens to the continuity and so on? Presumably that would be as if the dismissal hadn't taken place but they have to repay redundancy money?
Scott: They may not have had to.
Seamus: I would have thought so in relation to you if there's a change in their status and they're brought back, then there would be an issue that would arise in relation to redundancy. And it's one of the very interesting points that I haven't come across been addressed in a court or tribunal or anything like that, is that if they're brought back, where does that leave you in respect of the employee? I mean the presumption is that they come back, their period of continuous employment picks up from where they left off, and you will have to look at, you know, business need and the potential of redundancy then following the ending of this extended furlough period. And I suppose depending on just what the business requirements are at that time.
But yeah, you can imagine the difficulties that that's going to create for someone that has maybe had their redundancy monies and maybe spend part of it in relation to repaying some debts, or maybe even, you know, given loans out and things like that from it, and how the employer would go about recouping that.
Scott: Yeah, well, they may have to pay it out come the spring anyway, I suppose. So whether they get it back, they may not get it later on. But we have another tricky question here actually, which I think is very interesting one.
We have previously calculated 80% of pay as at the 28th of February. Now it's extended and people who went on furlough can be on it, or who weren't on it. Is it 80% of the current salary? There was a salary increase or change between February and 23rd of September. Do we calculate it based on the new most recent salary? Is that kind of implied by the people who have variable hours and therefore, it goes up and down that you would get a salary as opposed to whatever it was back in February?
Seamus: Yeah, I mean there is clear guidance as to how that should be calculated within the guidance. But one thing that would come to my mind would certainly be that I know that there would have been a lot of increases that could . . . particularly, like if you think around the increases to the national minimum wage in April time and the previous guidance had said that you worked . . . the calculations were based on payment dates, I think, from February time. And therefore, when you were calculating furlough you weren't calculating on the basis of those new rates.
And as regards, where we're at now, I think if you are putting somebody on to furlough at this point, my big sort of gut feeling on that would be that you have to calculate on what exactly their salary is at this moment in time. But again, that may be subject to clarification that they'll get in a week or so from the government. But certainly, if you provided for the increase in national minimum wage, and you were putting somebody under furlough now, I would have thought it's at the rate now and not what it was back in February. But for anyone that has been on furlough and that you're simply just extending it either on furlough or flexible furlough, it may be that you're working off those old figures from February, and I think we'll need to see what the clarification is next week.
Covid-19: Concerns Around Returning to the Workplace
Scott: Want to move away just a bit from furlough now. If there's other questions, send them in. We'll see if we can deal with them in some other forum or next month's update. So you're listening to Seamus McGranaghan from O'Reilly Stewart. I'm Scott Alexander from Legal Island. We got a question there, a late one in on email and it says this,
Would it be reasonable to discipline an employee who's refusing to attend her usual place of work to undertake her cleaning role as she is refusing to use public transport due to COVID risks? The employee did previously shield, but she also took annual leave last month to visit Turkey, which was done via airplane and very much a form of public transport.
Seamus: Okay. Well, the concern obviously would be that the employee is just trying to avoid attending work. And you would have a suspicion certainly that the refusal to use public transport to come to work, to say that they can't attend work. And that's a problem for the employee if they have taken other steps, such as going on holiday to Turkey and things like that. Certainly, if you were risk assessing, you would say that that was a problem.
I mean, I think fundamentally for me, it comes back to the point of, I know that we are in exceptional circumstances, but a contract of employment does not provide for how an employee will get to work or how they will travel to work. It may in certain circumstances where there's travel involved, or even if it's consideration if there has been TUPE transfer, if there's a change in the place of work. But, you know, in normal circumstances you take a job on, you're alive to the fact of where your place of work is and the employer doesn't build in costs in respect to travel or anything like that for it ordinarily for such a role. So you know, there are other options in relation to public transport for people to get to work. And I can recall a number of months back we talked about but the other options were in respect of, you know, possibly the employer looking to facilitate car parking and the sort of e-bikes that are about. But realistically, you know, is the employee really going to spend lots of money to get to work?
Ideally, I mean, you would want to work with the employee, I believe. Did you say that the employee was a cleaner? And so, I mean, it would be somebody that would have to attend work. It wouldn't be an option from working from home there, and ideally you'd want to . . . the employer would want to work with the employee and communicate with them in relation to what are the alternatives if they don't want to use public transport or have a discussion with them as to what exactly is the reason for not wanting to use public transport. And I would assume if it had been previously shielding that might be the issue. But it's looking about what other alternatives are.
Ultimately, if the employee isn't able to attend work and if it's felt that the employee has been unreasonable in their approach, you may look at two situations, either one of the employee simply doesn't get paid because they're not upholding their contractual obligations and attending for work. And I think that if you were going to take that view, you will absolutely need to exhaust all of those other options in respect of communication, and then other attempts to get people to work. Or alternatively, you may say that the employee is, you know, frustrating their contract and you might consider looking at disciplinary action.
Scott: Yeah, I mean the one of the, I suppose, the problems there is that you can't put them on furlough because you require them. As one of our listeners has just pointed out flying is not public transport, but it's certainly transport where lots of public get on it, I suppose, is the argument. But maybe what comes through from the question to me anyway, is that the employer is suspicious, and therefore they will go around looking for confirmation bias to confirm that this person is at it. You know they just want to be furloughed because they get 80% for not going to work as opposed to 100% of their wage for going in. So there's, you know, they're only getting 20% of presumably if they're a cleaner not a very high wage, and they're going to not . . . that'll be not by the public transport cost they're getting to work is the issue. But if the employer suspicious and that's the attitude, they'll go and they are trying to prove it and of course when it comes to tribunal, that can all be unfurled. That's one of the difficulties there.
So your point that you're making that you've got to explore all the other options before you take any kind of action, even if it's . . . If you can't get in, you can't get paid. Because that person shielding and the impact there, albeit the employer isn't responsible for how you get to work. That person could well be disabled or has had COVID and have got long COVID, probably don't know yet, but that could well be something that meets the definition of a disability, and then you've got an issue there. So it's a wee bit more complex, I suppose. But I think your point that you've got to really explore all the issues and go in there with an open mind.
Seamus: Absolutely, yeah.
Scott: Would be one of the things that would strike me about this even if you believe the person at it, you've got to keep an open mind with these things.
Seamus: Yeah, I mean, you know, to be fair, and to get a fair opportunity, it needs to be explored or investigated with the employee, and you know, before you arrive at any decision that the employee is at it and that there's proper consideration given and discussion with the employee, but you wouldn't rush into making a decision that deserves the investigation process.
Scott: Yeah, I think we're all a little bit fried at the minute whether, you know, if you're working and you're in HR that, you know, you're being pulled between pillar and post. We have another question, the next question I'm going to raise is about that. But just before we go on, I mentioned tribunals, and you were chatting before we came on. We were going through those questions, doing a little bit of prep, believe it or not, folks. And you were saying, Seamus, that you've been given a date for a tribunal, which is in November 2021 is the earliest you're going to get tribunal.
Seamus: Yeah. And so, I mean, it's just a point to make everyone aware of that, you know, the tribunals are doing their very best in relation to dealing with the administration of their role and their duties. But there's no doubt that COVID has had a serious impact upon, you know, courts and tribunals' ability to deal with cases and there's a reduces capacity because of the safety requirements. And yeah, I mean, the earliest date that we can find for a case was just this week was November 2022, sorry, November 2021. I'm a year ahead of myself.
I've done a couple of cases at the tribunal over the past number of weeks and I can understand that the tribunal are under pressure and they're doing the very best to work with the resources and the abilities that they have with the restrictions in mind. And it would just be that if somebody was considering a claim or were considering what the options were of the claim. And you know, you're not looking at a quick turnaround and you're looking at probably I would have thought, if you are bringing a claim, you're looking at least 18 months up to 2 years or more for a case to be listed.
And as an employer, that period of time, there are costs going to be involved and its just to bring that to everyone's attention.
Scott: One of the points you make regularly on this series of webinars is to keep records. You imagine trying to remember, if you go to this situation with the cleaner, trying to remember what actually happened two years before or a year before and keeping in mind that this person may be dismissed, and won't have a job, and is going to have to wait possibly a year and a half or longer before the case is heard. These decisions are having a big impact on everybody, you know, employers and employees. It's a very difficult time for people.
Covid-19: Health and Safety Issues
I want to move on here, Seamus. We've got a question in. And I think just talking about the HR situation and the kind of pressures that are on our customers here.
In relation to health and safety, our organisation has not committed to the employer responsibilities. How as an HR manager can I influence the management board to consider the same and the risk to all stakeholders?
So what's your advice here? We've got an HR manager who's looking at things and saying look, you're not sticking to the safety rules. Now it might be that those are slipped, or it might be that they never implemented them. What does an HR manager or even an employee do when it comes to an employer who's really not following the social distancing and etc.?
Seamus: It's a very tricky position for the HR manager to be in and I would have certainly have sympathy for a HR manager that is aware that there are failings or shortcomings within an organisation in respect of any health and safety matter, but particularly at the minute in relation to COVID. And we know that, you know, with COVID there are steps to be taken. But, you know, some of them can be more expensive if you're putting you know [Perspex 00:34:51] up or screens or anything. I mean there's an expense involved in relation to that. But others are reasonable and, you know, fairly inexpensive whether it is providing for face masks, or providing for hand sanitizer or even if it's just readjusting your rota so that there isn't as many people in the workplace at the same time or within an area within the workplace at the same time like the kitchen.
But this is a difficult matter for HR who is maybe under pressure, feeling that there are shortcomings here, and they are concerned about having to raise these issues with their board. And the implications that has personally, it could result in putting their head above the parapet, and, you know, maybe just feeling not as secure in their role if they were to raise a complaint about these issues. Obviously, the law is there in relation to protecting anybody that would blow the whistle under the Public Interest and Disclosure Northern Ireland Order.
And I suppose really my practical thoughts for this HR manager would be that it isn't an easy matter to bring these matters to the attention of the board but it is your duty and your responsibility, and you know, you do have a wider responsibility to the other staff within the organisation, and their health and safety, so if there is a shortcoming or failure should be your duty. And that could be potentially that's something that would be looked at or considered by the health and safety executive if they come in and did an audit that or if another employee reported the matter.
But I think it's important that you should look at a paper trail. And I think that it's important that the matters notified in writing to the board. And that there's protection for yourself but putting those matters in writing to the board, it's not simply just about protecting your own position. It's important to get those matters done in writing. I think there's a couple of things. There is setting out and highlighting what the failures are, what the requirements are in relation to the guidance that we've received. And then again, what are the possible ramifications for the continued failure to adhere to the guidance.
And I think that if that's provided in writing and there is notification provided, and there is nothing done by the board or the board ignore it and don't take any steps, and you may be at a point then where you feel like your next step is to blow the whistle. But I think the best that can be done in terms of an internal process is to advise and inform and make the issues clear and set out what the standards are, what's expected and how the current failures or what the current failures are, to make those suggestions in terms of improvements and hope that you can gather some agreement around the board to start to comply.
Scott: Yeah, self-interest I suppose often drives those things. And talk about driving, I get a paper every morning. I've been a Harts supporter obviously have to read about Scottish football. But I go in the number of, you know, guys that are going to work in the trades, for instance, and they're sitting in the same van and none of them has a mask. They go into the shop and don't have a mask. I suppose those attitudes are there and if that happens to be the employer that has that attitude, then there's risk being put there in workplaces. It's not as if you can't catch COVID in an office because the Prime Minister and the cabinet proved that as did Donald Trump and his people there that all caught it in a non-industrial setting.
Let's move on because there's another question here which kind of on the other side of it here, which is,
Are we within our rights to take disciplinary action against an employee who is breaching the COVID restrictions whilst they are not at work?
Okay. We employ care assistants and have informed them that we expect them to act in an appropriate manner in line with the restrictions so as not to put anyone in their care at risk. In the situation here is the employer saying, look, we're sticking by our part. We've got vulnerable people in our care, as well as employees who could catch it and so on. But we know that there are certain people who are going out there and they're going to parties or whatever at the weekend, and they're not being COVID safety aware. So can they take action against those individuals? And if they do, should it be on the basis of some other substantial reason or is that a disciplinary issue, because they've issued a warning?
And going back to that poll just to keep it going a little bit longer, Seamus. Make it more complicated for you, going back to that poll there about would it matter whether it's in the disciplinary procedure, or not, because we have 50% of the people at the start who did our poll didn't actually upgrade their health and safety or disciplinary issues or procedures, sorry.
Seamus: I mean, I do think that it is appropriate. And if you are working in a certain setting where you're working with vulnerable adults like this is in a care setting. And I do think that it's appropriate for the employer to ask their employees to be, you know, very aware of what the guidance is and to follow it. I don't think that there's any problem with the employer asking them to do that.
Look, these things are always balanced off in relation to a person's right to their private life and what they do in their private time. And one of the issues would be though that if they are working within this setting if they are doing something or undertaking activities in their private time that could put, you know, residents in a care home, or for people that they are looking after at risk. And right up to if they're elderly. I mean, those are the most vulnerable people in our society, right up to, you know, these people may be contracting COVID, and subsequently dying or having to be under serious medical treatment. So it is a serious issue.
And I think that absolutely just what I mentioned earlier on that it's really important that staff are made aware of what the expectations are and what the potential ramifications are so back to that point of making sure that you have a policy and procedure in place and that your employees are made aware of it is important.
Focusing just on the fact that these are actions that are not taking place in work. And, you know, the contract will generally govern the internal aspects of the employment but that extends beyond the workplace, certainly, if they were wearing a uniform at the time. So if they were working for an organisation and they were wearing the organisation's uniform, and they were taking these actions that were in clear breach whilst wearing the uniform, there's certainly the concern of bringing the business or the organisation in disrepute. Or alternatively, if they were maybe attending events, parties, or doing things that they were putting up on social media, that could also raise concerns for the employer because the threat and the risk would be very real of them coming into work the next day.
So I do think that there's certainly an ability for the employer to look at disciplinary proceedings if it was such a serious matter that something came out and later on that the someone had got sick, and that was as a direct result of somebody that had a positive test and then decided to come on in to work. I do think that those are matters that you could take the employee to task on, and there could be certainly some other substantial reason if it's not set out within the disciplinary policy and procedure, or it doesn't fall within the realms of that, you are looking at some other substantial reason, or you know, fundamentally, it's a breakdown of the trust and confidence between the parties.
And so, you know, I do think that that even if there isn't something in writing if it's so obviously serious and my other thoughts go to what would be the mind of a tribunal in this setting as well. I am looking at you know reductions in terms of, you know, even if it was a failure to follow certain procedures or what a tribunal was looking at in compensation. They may reduce that down to zero on the basis of the person being responsible for their own actions. So I mean I wouldn't be rushing to say to everybody if something happens, get into a disciplinary process straightaway. I think you need to carefully reflect. And there's an opportunity at the minute to look at your policies and procedures and possibly updating them.
Scott: Yeah, there is that other option that we have under the 96 orders to look at some other substantial reason, which to some extent might be easier and those that were the Annual Review yesterday, we had Mark McAllister talk about the Lafferty and Nuffield Trust case where they looked at an employee could be charged with serious sexual offense and they said look, this has reputational damage. It's not conduct. It's outside work. It's got nothing to do with your work but the impact it's had on us is such that there's nothing much we can do but terminate this contract. I wouldn't necessarily say that just because somebody does something outside work that that's the right option to go to, but you still even within Northern Ireland, we have to remind people. We still have 123 procedures, and it's automatically unfair if you don't follow those, so, you know, you still got to go through them and of course you're doing it remotely.
And you've got to be in a position of strength so if you go back to the previous question about a firm who doesn't enforce COVID rules, and then sack somebody for being in breach of those, they're not going to be a very strong position as an employer either. So I suppose there's an element of bias or balance, sorry, in this whole process.This article is correct at 06/11/2020
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