Employment Law Discussion of Home-working, Cash Shortages and Redundancy

Posted in : 'Any Questions' Webinar Recordings on 5 February 2021
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Home-working; Cash shortages; Redundancy

In this webinar recording, join Seamus McGranaghan of O'Reilly Stewart Solicitors and Scott Alexander of Legal Island, as they address and discuss your burning questions including topics such as:

  • Furlough / Home-working
  • Cash shortages and Redundancy
  • Constructive Dismissal
  • Occupational Health Assessments
  • and much, much more

The Recording

Transcript

Scott: Good morning, everybody. Welcome to the Employment Law at 11 webinar with Seamus McGranaghan from O'Reilly Stewart. I am Scott Alexander from Legal Island. I'm joined as well in the background with Rolanda Markey. She's going to be operating all the polls and all that kind of good stuff, and we'll be taking your questions. If it's the first time that you've joined us today, there's a little question box in your right-hand side, and you can send in any questions and hopefully, we'll get through them in the next 45 minutes. We've had a series of questions in before, and we'll come to those in a moment.

Just before we do, we have a couple of little announcements here. Employee Wellbeing Toolkit early learning. Sorry, eLearning, eLearning Toolkit, you can see there. Yesterday was the Time to Talk Day. Legal Island, we have health champions who created a lovely video, I have to say. It was great. And they produced a couple of checklists that would help people. So if you know anyone that's feeling a bit down, and you've got the weekly update email today, you can click on those links and circulate those. But if you want to train your staff and make sure that they're staying well, mental health and wellbeing, coping with fatigue, managing stress, and of course, building resilience, you can get information if you click there. And if you want, if you type "yes" into the question box right now, then we will get Debbie from our eLearning team to get in touch with you and explain that. There's lots of discounts if you take the package and it's all very good. The feedback we've been getting has been fantastic, I have to say.

Poll Questions

Poll Question: Does your organisation use LIFO as a criterion in redundancy selection?

80% of listers have not discussed the COVID-19 vaccine or encouraged employees to have it

72% of listeners had revised their workplace risk assessment in the light of the spread of the new variant of COVID-19

So there were figures out this week. It's in the certainly the Review of Developments in the South that we send every Friday. The Central Statistics Office in Ireland, they reckon that the underlying unemployment rate in the south 25%, officially it's six, but when you add in their equivalent furlough payments down there, the pandemic unemployment payment and the employment wage subsidy scheme, it's actually around 25% of the people have no work.

We're looking here. Seamus, it's coming through there, that poll, 30% are looking at redundancies. 70% no. Again, that's relatively encouraging but still worrying that there's now 30% of the people who are on furlough are likely to be made redundant. Any comments there, Seamus?

Seamus: Yeah, I think that that's probably fair and representative of what I would be thinking in terms of my conversations with clients. I think that a lot of employers have adjusted and have been able to push on and push through with business. I think that there's a lot of hope in relation to vaccine and things starting to move again. And just an interesting comment there, that it's a very different time for people. Some people are thriving through this pandemic, there's opportunities and they're able to seize them and move forward, but I think for the majority of us, there's definitely a struggle with it. And it doesn't surprise me that there will be an uptick potentially in redundancies.

I think employers are concerned that, specifically employers whether businesses have been shut in retail or hospitality. There's a genuine concern about the level of business that they will have whenever they reopen. It may be a very gradual build up as things start to maybe settle down and return to what we've been used to, but yeah, I mean it's understandable but absolutely, 30% is still very, very concerning and even the figures there from the south and underlying 25% in total and that causes serious concern not just for the employees but for the ongoing effect on that, you know, on rents and mortgages, on our utilities, everything else, you know, it's very concerning.

Scott: Yeah, it is indeed. Now you would expect that some people, if the business is open, the furlough scheme would stop because their businesses are open but so many are predicated on a business plan that needs 70%, 80%, 90% occupancy in order to make profit, and your point there that, if you can't fill your restaurant or, semi-fill it or whatever, because there are limits on numbers, it may not be worth opening. So it's things like that are going to be difficult. With a lot of the tourist things, they're not the same. If you're walking a bit in a mask for two hours or, not allowed to have crowds, it's going to be very difficult for a lot of organisations.

Anyway, today, we're going to be looking at furlough, we're going to be looking at redundancy, if we have time, we'll look at constructive dismissal and occupational health and we've got a little question that we've had in very recently about cash and deductions from salary for money that's gone missing. So we'll be dealing with that as well. So if you any other questions, fire them in the little question box there. We'll try and get through as many as possible. If we have to stay on because we get lots and lots of questions, then we'll stay on for a few minutes after 11:45.

Compulsory Vaccinations for Covid-19

But let's crack on with the first question here. Seamus,

Can employers force employees to attend the workplace if they have or have not had the vaccine?

We have one employee who is stating that he will not return to the workplace despite safety measures being in place. Can we take action now? If not, can we insist that vaccinated employees return to the workplace? Working from home isn't efficient in our opinion. So that's a kind of mixture. I know we were chatting before we went live. You've a client who's an employee, who's refusing to go in, even though safety measures are in place. This is a situation about vaccines. So what about vaccines? Do employers have any control at all over employees who have or indeed who have not been vaccinated?

Seamus: Well, I think that there's an element of realism that we have to think about with vaccine. I think that from what my understanding is we have something like over 260,000 vaccines now delivered in Northern Ireland, brilliant and brilliant figures with a population of about 1.8. And we know that the government are working through their various priority groupings. There isn't a situation at the minute where employers can have a vaccination, an internal vaccination program, and very much the position remains from the government that there's a clear message there that we stay at home, and we work from home where possible. And so, you know, at this moment in time, where you are able to work from home, you should be staying at home.

It certainly is a valid question, and whereby, if somebody has got and received their vaccine, are they in a position to return for work? And I did see this morning there on, I think it was, the Sky News this morning, that they were doing an interview with some CEV people in England. And I'm not sure if I picked it up right or not, but I think the position was that the government were saying that there was still a recommendation to stay at home until you've had your second jab. And so, certainly, it's not a complete resolution as regards vaccine, but some further good information this week where they said that some of the vaccines will limit the high contagious that can be if you've had your vaccine so you can limit it.

But there still is that realistic side that even if you've had your vaccine, you can still spread it around, so certainly there still is caution to be taken. As it stands at the minute, we're following the government message. And I think it'll be quite some time before we see vaccinations issued to the general workforce. I think we're looking into certainly the summer before that process starts for the general sort of public and outside of those priority groups. So we're working through the phased vaccine program as it is at the minute, and employers have a duty of care to all of their staff, and especially with regard to health and safety. So it's essential to treat all employees fairly and reasonably.

So I don't think that there's an automatic position where an employer can say, "Oh, you've had the vaccine, straight back into work you come." It's just not as straightforward as that. I think, asking vaccinated staff to return to work, it could be construed as a reasonable request, I think, that where vaccinations have been given. And if we think about the health service and things like that as well, it could certainly be a reasonable request. But it will depend on factors and I think it will, you know, the industry you work in will be important and the size of your workforce and again how well you can still manage the various requirements in relation to COVID-19 precautions within your workplace.

It always comes down for me, it's best for employers to consult with their employees in an open manner and to try and find flexible working arrangements for employees who have health concerns and whether that's maybe working at home for three days and coming into the office for a few days but it should always be best placed if you can get agreement and consult in relation to that. Forcing employees to return to work whilst the pandemic is ongoing, I think could potentially give rise to disability discrimination issues. And so employers do need to be careful specifically around those CEV employees or employees that are shielding.

And so I would caution against taking an action right now. I think part of the question there was, can we take action now? And I think it's a matter of, you know, taking a balanced approach and let's try and work through this vaccination process. I certainly do think that, you know, the scales will balance out at some point where can be a reasonable request for people to return to work.

Scott: Okay. And I suppose our poll that we had earlier there where only 20% of the people listening anyway who ticked the box, have been chatting to their staff about those issues. It's one of those areas where it's difficult for an employer because if somebody's had the vaccine or not, it's personal data, and they don't have to share it, you know, but it's one of those good news stories. I'm sure that the people and Legal Island, we're fairly open about stuff like that. I think when I get my vaccine, I'm not too far away. I'll be on the list before you, Seamus. I'll let everybody know. Don't you worry, I'll let everybody know but it's one of those things that's worth discussing in case there are people that are concerned in some way. But you're right at the moment, you know, the figures seem to suggest that you don't even have to vaccinate everybody to have that herd immunity. In which case, why would you have to force somebody to have a vaccine if they want to have a vaccine seems to be the way it's going.

Payment for Covid-related Absence

We had another question, Seamus, that came in now. The person who sent it in yesterday would know, it's too long to read out, and it came from an employee but it was a case of somebody who is so stressed about the situation and COVID, and the dangers of going into work. And there was a survey from the Health and Safety Executive showing that, I can't remember now, it was 25% or 50%, of all the whistleblowing complaints about health and safety that have been sent to them in the last year, they've been around issues of a failure to enforce social distancing in the workplace.

So the person that wrote into us was concerned about this, and they have an occupational sick pay scheme, but it doesn't pay out for everything. And the employers are refusing to pay in this case because he's off with stress. So is there anything around those areas where there's some kind of discretionary payments when it comes to sickness and COVID? So this person is from reading the question correctly, doesn't actually have COVID, and may not even have to shield as such, but there's dangers and there's concerns about going into the workplace and is very stressed about the whole situation. So the psychological stress and the employer saying, we're not going to pay you full pay, because you're off on stress. Any issues around that for employers or indeed employees?

Seamus: It would always give cause for concern where a statement of fitness for work has been submitted that it's been signed off by the GP or by the doctor, and, you know, on the basis of the medical evidence that the employer has it can be very difficult to argue around or behind that. And the risk would be that if there's a contractual right to occupational sick pay, or there's a company set pay scheme there, the concern would be that you could be looking at some form of breach of contract or potentially some sort of unlawful deduction of wages. And two-fold of claim, you could have somebody going off to look at a claim or possibly early conciliation or somebody that could say, "Well, look, this is just a fundamental breach of my employment rights and I'm going to resign or bring a claim for constructive dismissal." And it sounds more that, you know, that there's risk of damaging the employee-employer relationship.

I can certainly understand employers' frustrations where they feel that they are following the guidance where they're giving, you know, where they have in place all of the necessary measures, and they have an employee who maybe isn't shielding, and there's no specific medical reason for it but they're very anxious about it and that may be because there's maybe some sort of underlying health issue with the employee and maybe anxiety and things like that. And certainly, we're all very aware that this pandemic has had a toll on everybody's, you know, mental health, and we're aware of that.

But it's about managing again, it seems to me that the lines of communication need to be very clear. But the risk for the employer would be the potential of some form of claim being brought, or some sort of claim that there has been a breach of the contractual entitlements. So the employer would need to consider that carefully and maybe just review their policies and procedures to make sure that by refusing to make the payment that they're not in any breach.

And again, it's just about trying to, you know, communicate and consult with the employee, address the concerns that the employee has about the workplace, and try your best to encourage and to satisfy and make comfortable to the employee that it is a safe place to work.

Scott: Okay. Presumably though, there is nothing in law that would stop an employer from saying, "We only give full pay for certain things." You know, like, we'll give you full pay if you're off with cancer, we'll give you full pay if you got a liver issue, we'll give you full pay if you're off with COVID, but we won't give you full pay if you're off with . . . you could if you can't afford to give contractual sick pay for everything, you could have a list of certain things that are, you know, I don't know, life threatening or whatever, that would be on that list without it being in breach of statute, presumably that would be possible. I'm sure lots of organisations and things like that.

Seamus: I think that it would be. I think that you just need to be careful that you're not sort of treating anybody less favourably or you're not prioritising one person's illness or disability over another. So I don't think that there is the possibility of that and I think it's helpful. And for those circumstances that, you know, if you have a limited pot in relation to, you know, occupational sick pay that it's used and it's used for the right reasons. And certainly, I do think that there is the possibility of doing that.

I'm aware as well that employers out there have set up different sick pay schemes in relation to whether it's just a normal illness, whether it's because they have to self-isolate and whether it's because they have COVID, or whether there is some other underlying issues there as well. So certainly, there is a way and a means to deal with that if you're the employer and I suppose it's just about trying to be fair, as best you can to staff. The risk is always that it's open to abuse and that's where the employer can kind of have some difficulties and, but as I say, where you have medical evidence in front of you, it can't be difficult to move away from that.

Furloughing Staff

Scott: Okay, let's move on. There's another question here coming in.

Can employers furlough employees who are unable to work from home, but need to stay home for childcare reasons, or because they are vulnerable, even though there is work available for them?

Seamus: Yes, an employer can, employers can furlough employees on that basis. The only caveat is within the guidance is as long as, for instance the childcare responsibilities are due to COVID-19 or coronavirus. So a lot of circumstances have arisen there. I know that there's huge issues for parents that are trying to work from home, that also have their children at home because of school closures, and trying to manage the various competing interests that that they have and it's hugely difficult for parents and for those employees. So as long as there's a valid reason and there is the ability to place the employee on furlough.

But the reality is that for a lot of these instances, there's still work to be done and business still needs to take over. And again, we're operating from the point of view that we are trying to make sure that the business is surviving in order to avoid redundancies or high levels of redundancies. For me, that's really looking to see if there is agreement that can be reached, possibly, that you vary the working hours permit, and parents or employees to maybe work different hours. You might have one parent works in the morning, one in the afternoon, and one sort of late in the afternoon and things like that. It's about, you know, being flexible.

But ultimately, the guidance is clear that you can look at furloughing those employees and again anyone that is vulnerable and unable to come to work because of their illness or if they're CEV. They can also be placed on the on the furlough scheme. A bit of a risk that if you refuse to do that that it could amount to some form of discrimination, particularly in and around parents. If it's a mom that has the issues or difficulties, you could be potentially looking at some form of discrimination on the basis of gender, or possibly a disability and discrimination if you're looking at somebody with underlying issues under CEV.

Providing Facilities for Remote Working

Scott: Okay. Following on from that we have another question here.

We have provided stand-up desks for some staff at work. If in future they wish to work some days at home, are they entitled to such a facility at home as well?

Seamus: Well, that sounds like a little bit of a luxury to me. And I think the short answer is no, you know, not if you're not obliged to do that under the terms and conditions of the contract of employment. And I think look, we have to take a common sense approach when it comes to working from home, just a practical side that certainly employees need to be able to work from home, so they need the tech, they need desks and they need chairs in order to do that. But that's not necessarily a point that the employer will have to, you know, start to cater for specific work desks or specific work chairs. Most of us are at home working off our dining tables and our kitchen tables and on our chairs. You do need to give consideration to facilitate anybody with health issues or disabilities. And I've had a number of queries from clients where early on in the pandemic they've said, we've an employee here complaining about their back and they're looking for a chair and the chair is going to cost £200 and I'm in the middle of a pandemic and this is all too much. And you sort of have to remind the client of their responsibilities and their duties.

I think the other point is, is that none of us expected . . . I mean, we're nearly a year down the line. I think whenever we have our webinar next month, we'll certainly be hitting the anniversary of all of this taking off. We're nearly a year down the line. None of us expected that we were going to be doing this for a year. And there's an element of maybe back in March last year, where we were filling a hole, filling the gap and you know, working with what we had. But now we've moved on. We've moved further. We're so far down the line that it has to come a point where there is proper consideration given to assisting employees working from home and helping them to be as productive at home as possible.

I do think it stretches slightly for someone to say I need a stand-up desk to work from home, and you don't need a stand-up desk to work from home. But for me, that's maybe just a bit too far in terms of, it's a bit of a luxury item. But I think, Scott, in my mind, it's also thinking about, you know, there's this great talk of returning to normality. And I'm not quite sure. There's been a lot of discussion about what normality will look like and I think that for a lot of businesses working from home has worked very well. It has worked successfully. It has helped both the employer and the employee. It's helped the employer save costs, in relation to all of the usual things go along with having people in the office, and it has also helped the employee on a cost basis, too, and in terms of their work-life balance.

So if it is going to be a longer consideration, I think, there might need to be better consideration given to making sure that there are those comfortable elements of being able to work from home. I think from an employer's aspect, absolutely, look, you want to make sure that the employer or the employee is being as productive, that you're getting the most out of them. And if there's simple straightforward and relatively cheap steps that you can take, I don't see why you wouldn't.

Deductions from Pay for Cash/Till Shortages

Scott: Okay, thank you very much. I'm going to conversation on here, Seamus. We'll come back to some of those COVID questions, but yesterday was Time to Talk Day. It's Time to Talk Day I think because everybody's depressed because of this lockdown and everything else. So there are a couple of questions that have come in there about do you pay SSP from day one if they're off with COVID and there's some questions coming in there about travel to new locations and so on. I'll come back to some of those if I can.

But the question here I think it came through from a bank or a building site person here.

My question relates to the role of cashiers, whether it is lawful for an employer to have a policy that requires an employee to refund the employer regarding any discrepancies in cash, assuming that it's a cash shortage.

For example, if the cashiers till is short at the end of the day, when it's balancing, can the employer have a policy that the employee pay back the difference? Reading the rest of this question is quite long. The core question is, is there anything in law to say that an employer cannot have such a policy? I know there are laws in relation to retail and such like, Seamus, but maybe dealing with this part first. What's the situation with an employer deducting monies because there's a till shortage or, I don't know, we were chatting before we came on live, somebody drives off a filling station, that kind of thing.

Seamus: Yeah, and this is a question that, from an advisory point of view, that does come along from time to time. The basic legal position on is that an employer is not allowed to make any deduction from an employee's pay or wages unless the contract of employment says that they can, or that there is something in writing that it's been agreed in writing that those deductions can be made. And so the straightforward, out of the box position is that the answer is no, unless there's some kind of agreement in place that the employer can make the deductions. And there are circumstances that arise that employers could find very frustrating but there are human errors and mistakes that happen as well when it comes to dealing with cash and there's always an element whereby the employer has to have a little bit of leeway and give in relation to a cash shortages.

There's other circumstances that are just silly mistakes and maybe go beyond the pale of explanation and concerns would arise in relation to maybe is an employee taking money and things like that. But the employer needs to be very careful about making deduction from wages and I think part of the question did relate to this idea that, you know, if you have maybe young employees in retail earning minimum wage, you certainly cannot make any deductions that would bring their salary below the minimum wage. So it can create problems.

There are specific exemptions for people in retail and hospitality and the employer is not allowed to take more than 10% of an employee's gross wage in any pay period. And if that isn't enough to cover the damage, then they have to take it on subsequent paydays, but again it would be down to if there being a strict agreement permitting the employer to make those deductions. And it does seem very unfair that, you know, an employee would come to work, would do work and it would be paid for work, and they would be penalised for some silly mistakes that can happen. But I accept the fact that it could be hugely frustrating for an employer specifically whenever there are stupid mistakes made or whether there's larger concerns. I think where there are larger concerns, there's a disciplinary process to go through in relation to that. But you do need to be careful just from a minimum wage position as well that you're not making substantial deductions, even if there isn't agreement in place to do so.

Scott: Okay and then just to clarify, Seamus. That agreement has to be in place before any deductions are made so you're not allowed to . . . if I'm right now, like, do this for years, but from memory, you have to have the agreement in place before the loss happened?

Seamus: Yes.

Scott: Am I wrong? If there's 50 quid going out the till, you can't then come up with an agreement to pay back the 50 quid over 5 weeks. You have to have the agreement before the money's gone missing. Is that correct?

Seamus: Yes, and you'll sometimes come across it in things like the staff handbook or in the policies and procedures, but it's something that the employee should be clearly aware of in advance of commencing the position. Usually, if you're working in a job or role that is dealing with cash, that is vastly reduced nowadays, but there still is a number of positions out there where there's cash involved or where there's a loss to your business. You know, a classic one if you're a very bad waiter and you're dropping more than your fair share of plates and delf and things like that, is the employer entitled to recover some of those costs from your salary? Very difficult and particularly whenever you look back in relation to the rules now in and around deductions for uniforms and things like that as well, it can be very difficult to justify those matters. But certainly, yes, it should be a matter that's agreed in advance of the loss happening.

Remote Working

Scott: Okay. We put a question in here and it says that, just on my screen here. You don't know this, but the person has left so hopefully, they can pick up, as all our listeners can, on the listen back function. And in fact, if you don't know, but you like podcasts, we're turning these Seamus McGranaghan chats into podcasts, so you can get them from your podcast reminder or provider as well. But this question says,

If your office has been moved and adds on over an hour travel time daily and you have been working remotely for 12 months, should you have to return to the office? Should there be any financial payment made by the employer to accommodate the loss of time/additional cost of travel and parking?

So presumably, there's additional parking costs as well. Anything that, Seamus? Didn't expect that one but it's come in, so let's have a . . .

Seamus: No. My view on that would be that there wouldn't be, and, you know, I think like if the job title is, or if the job was set up and the terms and conditions provide for the employee to work from home, you know, it would be very unusual for jobs to pay for anyone to travel to work or for having to park or buy lunch or anything like that. I mean the traditional aspect of it is that we get our salary for the work that we do and how we get there and back is a matter for ourselves.

If the contract specifically says that they work from home and that they don't need to attend the office, there's a potential that you could say that there's expenses arising as a result of that. But you would imagine that any good contract will have something built in to say that there has to be flexibility around attending the office and that's part and parcel of the terms and conditions of the role. So I think, look, that would be a dangerous precedent to set whereby you would have somebody that is expecting to have their expenses met for attending the office.

Scott: Yeah, well, I suppose it depends. It might arise a lot more in future where employers say okay your designated office is the home. And so, going back to your point there about having a well-constructed contract, if that's what you're going to have where you're saying you're required to work from home or the office and people understand because location is one of the points that has to be covered in all terms of conditions of employment under the law, so I suppose that'll be important going forward.

There have certainly been . . . I've seen in the past, particularly in the public sector, where if somebody has to move, usually by compulsory transfer but maybe not all the time, that there'll be a payment made for maybe up to three years to help somebody acclimatise the difference. So I'm not sure with this question if the office is actually moved whilst this person's been from working from home and they're now having to travel an hour further than they did prior the lockdown, if you know what I mean, or whether they're just saying, wait, my office is now an hour away and always was but I'm presuming that there may be a change.

You know in those circumstances to avoid redundancies, part of the discussions might be around making some kind of compensation for a period of time at the very least to help employees who are being put out, not that there's a requirement or not, may be redundancy or otherwise. Is that the case?

Seamus: Yeah, I mean, I think that's right. I suppose, like, it'll depend. You can absolutely envisage these sorts of issues arising in the future, particularly for anybody maybe that started a role within the past 12 months and haven't actually worked in the office, and they've been so used to working from home. And there is a cost saving benefits to being at home. There's also the other side that you're at home and you're using your own heat and light and all of that kind of stuff. And, yeah, I think look, it would certainly be one that you'd be wanting to focus on the contract and make sure that there's some flexibility for the employer in relation to that. And there are certainly, there's plenty of jobs out there that you can do solely from home and that's not a problem. And I think just you have to have a well-constructed contract of employment there.

But certainly, there's plenty of negotiations that go on between employers and employees in relation to travel and if there's a proposed demand to terms and conditions during the term of the contract, you know, that there could be sweeteners provided by employers to employees in that respect. So it's all in there but at the same time, I would be cautious about it for someone then that would be saying, I need additional expense here to travel in and out of work and for parking.

Redundancy

Scott: Okay, let's move on to the redundancy question that came in this week, and it ties back to the poll that we did that we showed that there's only very 10% people listening today actually use last in, first out.

A recent case criticised the employer for using LIFO as a criterion for selection. When can LIFO be used in a redundancy selection, if at all, in Northern Ireland?

Let's look for Northern Ireland first. I know you're going to bring in the GB situation and maybe Rolls Royce and so on, but what about the situation? There's issues, particularly, to deal with affirmative action and religious discrimination. There's issues around other types of discrimination. What is the situation? Is it banned or is it still okay to use LIFO in Northern Ireland when making redundancies?

Seamus: Well, LIFO or last in, first out, it's a common factor that's considered in redundancy situations. I think that's the general point, but the problem with it is that it's not always fairly applied. And what you're really looking at is, you know, tends to be length of service, and it can be a helpful criterion for assessing individuals for redundancy. But it can be problematic and it can give rise to indirect discrimination, you'd mentioned some there, but also sometimes age where younger employees have shorter lengths of service and have less opportunity to acquire a long service record compared to older employees or sometimes on gender women tend to have shorter lengths of service than men due to the fact that they've taken breaks in their employment for childbirth or childcare purposes.

So it can be controversial in my experience, it is still used, and it is still used here in Northern Ireland. The position with LIFO that actually gave me a bit of a shock to the system because I remember preparing an article in relation to the Rolls Royce and United case. This was a Court of Appeal case and then when I looked at the date of it, it was July 2009, and I couldn't quite believe that I can't remember whether I was preparing an article maybe just for my own purposes, or whether it was for Legal Island at the time. But a long time ago, but I mean that the essence in and around that case was that it was fine, that LIFO was still okay to use but there was more of a concern in and around it as using as a sole selection criteria or criterion at the time.

And so my experience tends to be that sometimes people will use it as a tiebreaker criteria at the end of a process. But I find it's, in essence, when you're trying to retain your skill base and your knowledge base, it can be helpful to make them understand why employers want to use it. I find that it's logical and it provides objective criteria and often, we were speaking there before, Scott, and we were saying that often the problem is with the criteria that you . . . that the objective criteria doesn't take you anywhere. It doesn't give you a, you know, a common denominator between your employees or some sort of distinction. And then if you stray into the subjective criteria it becomes very difficult to gain and because it's very difficult to stand over that aspect of it.

So it's a tricky one. But it tends to be used, you know, maybe not as the sole criteria certainly and maybe more as a tiebreaker basis to keep it fair.

Scott: Yeah, I mean, I suppose it is clearly discriminatory on a number of grounds and if it is indirectly discriminatory, it would have to be justified, and it would have to be seen to be a proportionate means to a justifiable end. The bottom line has been whenever I've looked at it and many cases gone by when I worked at the Labour Relations Agency just so many employers don't keep records. And the only thing they do know is the start date of the employees. So that's why the . . .

You know they have this great matrix and there's nothing to put in it, except starting date and finish end. You know, so it's maybe for some people the reality is that they're going to be using LIFO and going to have to justify it and most people, I think, would see there's a, you know, it seems a bit harsh getting rid of somebody that's got 20 years and keeping somebody that's got two months. So people can see that kind of thing coming up.

But my view is that redundancy is almost impossible to get right, unless everyone just volunteers, or you're closing everything down, and you're as well doing non ET settlements the Labour Relations Agency because there's always a valid claim or a potentially valid claim, when it was . . .

Seamus: The arguable claim, yes.

Scott: It's so difficult to get right for employers. You're damned if you do and you're damned if you don't as an employer when it comes to the redundancies, and you're trying to get the best workforce to take the place forward once you've made those redundancies, and that's . . . LIFO's easy and people can understand it but it's very blunt, you know, so maybe not the best one to use.

Territorial Jurisdiction

We have a couple of other questions have come in here. Looking at this one here.

What is the situation regarding a GB registered company that has a Northern Ireland office? As I believe, Northern Ireland is still under EU employment law, and GB is under UK law. I don't know if that's quite the case, but here, Seamus?

Seamus: Look, the basics are that if you have an employment contract in Northern Ireland, and if you work in Northern Ireland, then you're governed by the legislation that applies here in Northern Ireland itself. A common misconception sometimes is that you'll get GB companies and the employee will live, will work and reside in Northern Ireland and their work is here. If their contract of employment is governed by English and Welsh law, and not Northern Irish law but ultimately, they're entitled to benefit from the legislation that applies in the jurisdiction that they work in here in Northern Ireland.

And so, you know, from my point of view, if it's the opposite way around where you are a NI company but you're employing people over in England, they're entitled to enjoy terms and conditions in England, that legislation that would apply. Thankfully, it all is pretty much similar. Obviously, look, there's a number of differences but you know you're governed here and you're protected here by the legislation and by the courts, the jurisdiction of the courts here in Northern Ireland.

Scott: Okay, thank you very much, Seamus. Now we've a couple of questions, so I'll just keep the webinar going just for 2 or 3 minutes more if that's okay. There's somebody written in about education where LIFO can't be the only criterion, which is what you said, Seamus, for most employers, but if they've applied all the others, then they can do that.

Furlough

Just finally before we move on, on furlough what are the rules surrounding training of staff on furlough? Is it reasonable for an employer to request employees to complete training on new systems, etc., on their site whilst they're on furlough?

Seamus: Yes, my understanding is that it's always been the position that you could engage in training whilst on furlough, and there's the obvious position now as well that you can do the hybrid of furlough and engaging in work as well. So I wouldn't imagine that there should be any difficulty arising as a result of that, and it's a good time for employers to do that if there are new systems and things like that again, provided that if they're planning to do it from the workplace, that it is absolutely necessary for the purposes of the business and they can provide a safe and healthy work environment.

Scott: Okay, so might be in that case that maybe there's some . . . The date of training, you may class that as work and other times you may class it as furlough. But other than that, there's nothing really to stop people taking part in some training is what you're saying . . .

Seamus: No.

Scott: . . . here during the furlough period. Okay, we'll stop it there. There's number of number of questions that we've had coming through, so thanks to everybody. If we haven't got around to them, we'll hopefully get around to them next week, or sorry next month.

The next webinar from Seamus will be on the 5th. There's, there's no leap year this year, that'll be right. That'll be the 5th of March. And we also have a one-off webinar, there was Kevin Empey, who used to be with Towers Watson. He's from Dublin and he's looking at agile work so shaping the post-COVID world of work, and really looking at agility. So that's an all-Ireland webinar if you want to join us on the 18th at 11 o'clock. Again, Seamus is speaking at our HR symposium, which has some fantastic speakers and some great subjects if you want to join us and that will be on the 5th of March or the 4th of March. I can't remember now, but it's not that far away. Fourth must be because the 5th is Seamus. There we go.

And one final remark. We did have somebody that wrote in there just as I mentioned the Employee Wellbeing Toolkit saying that it was very good exclamation mark. So if you're interested in that, drop us a quick line just now and we'll get Debbie to get in touch. Like I said, at the moment, a lot of fear, people need a little bit of wellbeing.

So thanks everybody for listening. You can listen back. It should be up on the website later on today. I think we will have the transcript sometime next week or next fortnight or so, anyway so you can always check back on any of the old webinars that we've done with Seamus, and you can look at the questions. We've broken them up into written question and answers on the Ask Seamus pages in the Employment Law hub on the Legal Island website. So thank you very much. Thank you very much, Seamus. I'll see you next month if not before.

Seamus: Thank you.

Scott: Take care. No problem. Bye-bye.

Seamus: Bye.

    

This article is correct at 05/02/2021
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Seamus McGranaghan
O'Reilly Stewart Solicitors

The main content of this article was provided by Seamus McGranaghan. Contact telephone number is 028 9032 1000 or email seamus.mcgranaghan@oreillystewart.com

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