Mandatory Vaccination Policies: What Next?

In what many commentators regard as one of the most controversial developments in employment law in the modern era, the government have confirmed that COVID-19 vaccinations will be a mandatory requirement for those who work in care homes in England. This requirement, (when it comes into force, which is likely to be in the coming weeks), will have a 16-week ‘grace period’ to give those who have not already been vaccinated the opportunity to do so.

The decision follows confirmation from the government’s medical advisers that a vaccination uptake rate of one dose of at least 80% in care home staff is required to provide a minimum level of protection against outbreaks of COVID-19. It is understood that currently, only 65% of care homes in England are meeting that minimum level requirement, and it is thought that the vaccination uptake rate is as a low as 44% in some places, including London.

The requirement to be vaccinated will apply to those who work in all care homes in England under the control of the Care Quality Commission (CQC), where residents require nursing or personal care. As well as care workers themselves, this will also include those who go into care homes to do other work (such as tradespeople or hairdressers).

As you would expect, certain exemptions apply, including those who are medically exempt from being vaccinated, and workers under the age of 18.

Those covered by the new rules will need to produce evidence of having had a complete course (two doses) of an authorised COVID-19 vaccine (although at this stage is not entirely clear what evidence will be required).

For existing care home employees (who are not exempt), a refusal to be vaccinated may then mean that the employer can look to terminate the employment, without risk (although it remains to be seen how this new legislation will sit within the parameters of existing employment law). For new recruits (who are not exempt) applying for work in a care home, it appears to follow that the employer will be able to simply refuse to consider the application altogether.

Of course this has significant implications for other areas of employment law, particularly from a discrimination perspective, and therefore there is plenty of scope for potential legal challenge.

What this means for other sectors?

Controversial as this mandatory regime is in this sector, will we see the approach extended elsewhere? The government have expressly stated that “there are no plans to extend mandatory vaccinations beyond health and care workers” although as publisher Bloomsbury announces that vaccines will be compulsory for their staff returning to its office, it surely won’t be long before we start to see more companies opt for this approach.

Our advice remains that implementing a mandatory vaccination policy outside of these new rules, without exception, (and giving an ultimatum of potential dismissal) is likely to run the risk of both unfair dismissal / constructive dismissal claims and discrimination claims. We have helped a number of businesses with vaccination policies, focusing on being flexible and dealing with refusal or other issues on a case-by-case basis – and we are finding that employees are a lot more receptive to such an approach (including consideration of things like offering paid time off to attend a vaccination appointment, offering a cash incentive, or (if / when possible) providing vaccinations in the workplace). If an employee is not willing to get the vaccine, employers should consider carefully the reason why before taking action, particularly where the refusal relates to health or religious beliefs (both of which could afford the employee protection against discrimination under the Equality Act 2010).

In terms of requiring job applicants to be vaccinated against COVID-19, in theory a contract of employment / offer of employment could be made conditional upon proof of vaccination, although this does once again open up the possibility of discrimination claims.

In respect of the recruitment process, it should also be considered that having such a policy in place may deter otherwise suitable applicants, as well as causing delays in the process. During the recruitment process it is important to avoid asking health-related questions prior to making an offer of employment, which would arguably extend to questions surrounding vaccination status, so this is worth bearing in mind also. As above, the safer approach, if you feel a policy is necessary, is that it is not a compulsory vaccination policy.

As with all of these types of developments, much will depend on the way in which the COVID-19 pandemic continues to impact working life, so very much a case of ‘watch this space’, at least for now.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance. If you would like more information on the content of this article, please call the Employmentor Team on 01603 281153.

Insurers to pay out on claims by small business owners for Covid-19 lockdown losses

Whilst not strictly speaking an employment law related update, this is breaking news for small businesses who have been impacted by the Covid-19 pandemic, who have the benefit of Business Interruption Insurance (“BII”).

On Friday 15 January 2021, in a landmark judgment of the Supreme Court (the highest appeal court in the UK), it has been confirmed that insurers who rejected Covid-19 related claims under BII policies had approached the policies too narrowly, with the Supreme Court finding in favour of businesses.

Background

Following the outbreak of the Covid-19 pandemic in March 2020, and the associated lockdown measures introduced by the Government, many businesses sought to make claims under their BII policies for losses suffered as a result of the impact of Covid-19. Insurers, however, largely rejected the claims, suggesting that the pandemic was not covered by the provisions of their policies.

In an effort to provide clarity and certainty on the issue of how to interpret BII policies generally, the Financial Conduct Authority (“FCA”), which is the organisation that oversees the insurance sector, by agreement with the insurers concerned, brought a test case in the High Court to seek to determine whether or not the way in which insurance companies had rejected claims (specifically by their narrow interpretation of the wording of the policies) was permitted.

The Judgment

The test case looked at a variety of different types of insurance policies, and focused on the particular clauses that the insurance companies were seeking to rely on to reject claims by businesses for cover for their losses relating to Covid-19. The High Court found in favour of businesses in respect of the majority of clauses, and although the matter was then appealed to the Supreme Court, the Supreme Court went further, and found in favour of businesses entirely, meaning that for many businesses who had previously been told that they could not claim under their BII, they will now be able to do so.

The decision may well result in insurers reviewing their policy wordings to deal with the scenario of a pandemic and adjust premiums accordingly in the future. For the time being, however, the insurance cover upheld by the ruling will undoubtedly be a lifeline for a number of small and medium-sized businesses in particular.

Further details of the case can be found here, however, following the ruling business owners are encouraged to review their insurance provisions for any potential business interruption cover, and seek advice to establish whether clauses in their policies fall within those that will now benefit from the Court’s findings.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance. If you would like more information on the content of this article, please contact the Leathes Prior Litigation & Dispute Resolution Team by emailing email hidden; JavaScript is required or by calling 01603 610911.

Furlough Leave in 2021

Despite the Government insisting, at every opportunity, that Furlough Leave and the Coronavirus Job Retention Scheme (“CJRS”) would NOT be extended past 31 October 2020, and instead would be replaced by the Job Support Scheme (“JSS”), this was – as many of you will now know – not to be.

Leaving it until the last possible moment, the Chancellor confirmed, as part of further lockdown measures, that the CJRS would be extended, and for now the JSS has been put on hold.

More recent announcements that have been made as a result of increasing concerns relating to the Covid-19 pandemic confirmed that the CJRS will be here to stay until 30 April 2021. In addition, it has also been confirmed that (contrary to initial indications that the contributions would reduce over time) the Government contribution (80% of an employee’s salary (up to £2,500 per month) with the employer being required to pay employer NI and pension contributions) will not be reviewed, but will remain at this level for the duration of the CJRS.

As more and more businesses are impacted by Covid-19, in particular for those that are, once more, required to close their doors for a third national lockdown, use of the CJRS is on the rise. We have set out below some of the key considerations for businesses seeking to understand the application of Furlough Leave in 2021, and how it might be used to provide support during these difficult times.

What has stayed the same?

Many of the core features of Furlough Leave pre-31 October 2020 remain. Such features include the requirement that an employee does not carry out any work whilst furloughed, and that the employee will continue to accrue all other benefits and entitlements apart from full pay. You must also confirm the furlough arrangements in writing, and keep these written records for at least 5 years.

The concept of Flexible Furlough Leave – where employees can be asked to carry out part-time work and paid at full pay as normal for such work, while being furloughed in respect of any hours not worked – also remains. For the hours an employee spends not working then you can recover a pro-rata amount (up to the maximums set out above, pro rata) under the CJRS. The method of calculating such amounts is by no means easy, and so we would suggest you contact your payroll provider in the first instance, or seek our assistance if you need further information.

What has changed?

The starting point for eligibility for the current CJRS is that an employee must have been on your PAYE payroll on or before 30 October 2020 (and an RTI submission to HMRC made in respect of that employee on or before 30 October 2020). Significantly, an employee does not need to have been previously furloughed to be placed on Furlough Leave, nor does your business need to have accessed the CJRS grants before.

There have, however, been some subtle changes to the rules relating to the use of Furlough Leave, which many employers may not be aware of. Importantly, whilst the CJRS pre-31 October 2020 was available to any business “affected by Covid-19”, the current rules have shifted this emphasis slightly, confirming that from an operational perspective, only employees “whose employment activities have been adversely affected by the coronavirus or the measures taken to prevent or limit its further transmission” can be placed on Furlough Leave.

The changes to the application of the CJRS do not stop there. Previously employers had been able to utilise Furlough Leave even if an employee was working out a period of notice. The new incarnation of the CJRS provides that an employer CANNOT claim for an employee’s notice period post-1 December 2020.

There are much stricter time limits in place for the purposes of submitting your CJRS claim each month too. Since 1 November 2020, claims for reimbursement must be brought within 14 days of the end of each month. This does not give employers much time to get their paperwork prepared.

It is also worth bearing in mind that from February 2021 HMRC will be publishing a list of those employers utilising the CJRS on its website, together with an indication of the value of the claim within a banded range, so this will be a matter of public record.

Health and childcare reasons

Despite this apparent narrowing of the CJRS, Furlough Leave can still be used for those “clinically extremely vulnerable” employees who cannot attend work because they have been instructed to shield – a relief for both employers and employees in this situation.

In addition, following an amendment to the Government guidance on the CJRS on 4 January 2021 in response to national school closures, it has been confirmed that Furlough Leave and Flexible Furlough Leave can also still be used where an employee has caring responsibilities, to include where an employee is caring for children who are at home as a result of school and childcare facilities closing.

What the future holds?

As things stand, the CJRS will end on 30 April 2021. Given the previous extensions, and the current lockdown measures, it may be that the situation changes again. Alternatively, we may see the JSS finally come into effect. Watch this space!

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance. If you would like more information on the content of this article, please call the Employmentor Team on 01603 281139.

The end of Furlough Leave, but not the end of the line?

As you will be aware, in response to the Covid-19 pandemic that has swept the UK, and the world, and the devastating impact it was (and still is) having on businesses, in March 2020 the Government introduced the concept of Furlough Leave, providing grants for paying employee wages through the Coronavirus Job Retention Scheme (“CJRS”) to support businesses through this time of crisis.

Many businesses were fearful that the end of the CJRS on 31 October 2020 meant the end of this support, however, yesterday, (24 September 2020) the Chancellor unveiled his plans for a new scheme to replace the CJRS – the “Job Support Scheme” (JSS).

Key Points

1. It will apply to “viable jobs” only – the aim is to support jobs that are “viable” to avoid redundancies, applying to situations where businesses still need their employees to do some work, but less than their normal hours, due to the ongoing impact of the pandemic.
2. Not all businesses will be eligible – larger businesses (we believe those with over 250 employees, although this is yet to be confirmed) will only be entitled to use the JSS if they can prove that their revenue has been adversely affected by Covid-19.
3. Even if employers have not accessed the CJRS, they will be entitled to use the JSS.
4. Employees cannot be made redundant or put on notice of redundancy during the period within which their employer is claiming support under the JSS.
5. The JSS shall come into effect on 1 November 2020 and last for a minimum of 6 months.
6. The JSS appears to apply to any employee – (although we are still awaiting further detail in this regard) as long as they were on the PAYE payroll on or before 23 September 2020 and the employer had made an RTI submission to HMRC notifying the need for payment to that employee on or before 23 September 2020.

The Detail

Eligible employees will have to carry out at least 33% of their normal hours (and be paid by the employer in the normal way for these hours). The Government have indicated that this 33% threshold will be reviewed after the first 3 months, and may be increased.

Of the remaining time that the employee does not work, the employer will pay a third towards their pay, and the Government, by way of a grant operating in a similar way to the CJRS, will pay a further third, up to a maximum of £697.92 per month.

By way of example: if someone on £2,000 a month works 50% of their hours, they’d get £1,000 normal pay from their employer (50% of £1,000) plus £333 extra from their employer and £333 from the Government (so both the employer and the Government paying 33.3% each of the hours that the employee is not working). This means that the employee would sacrifice £333.

How?

Given that putting employees on the JSS will result in a reduction in their salary and hours, then employers must agree this with their employees, and confirm this agreement in writing.

Payments will be made to employers in arrears. As such, businesses will be required to pay the Government’s contribution before being reimbursed. As with the CJRS, employers will be able to claim these payments back by making a claim online from December 2020.

There are still questions that remain and as ever, the devil will be in the detail, however, the Employmentor Team are on hand to answer any questions you may have.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance. If you would like more information on the content of this article, please call the Employmentor Team on 01603 281139.

Flexible Furlough Leave – The NEW New Normal?

Employers and employees (and even employment lawyers) all raised eyebrows at the Chancellor’s use of the term ‘furlough’ on 20 March 2020 as part of the Government’s response to the coronavirus crisis – but it has quickly become one of the most significant developments in UK employment law of all time. It is hard to recall anything more radical. And now things are set to change ….. again.

For those of you unfamiliar with the term (and we doubt there are many, sadly,) Furlough Leave describes a situation where an employee is not required to work as a result of Covid 19, and is instead put on a period of leave.

Employers can currently recover 80% of salary, up to a maximum of £2,500 per month for any employees they have placed on Furlough Leave, from what is known as the “Government Coronavirus Job Retention Scheme” (CJRS).

An employer can place any employee on Furlough Leave, including part-time employees, employees on agency contracts, and those on flexible working arrangements (including zero-hours), as long as, broadly speaking, they were on your PAYE payroll on or before 19 March 2020.

For those employers who do not “top up” their furloughed employees’ pay to 100%, then as this will result in a reduction to their employees’ salaries of at least 20%, we have been advising employers to, where possible, seek to agree Furlough Leave and the corresponding reduction in pay with their employees, and confirm this agreement in writing.

Whilst on Furlough Leave, employees can take part in volunteer work, and can even seek alternative employment, but they are not currently permitted to carry out any work for you whatsoever.

For all other purposes, employees on Furlough Leave remain your employees, and continue to accrue all other benefits and entitlements (to include accrual of holiday).

What’s next for the CJRS?

Since its introduction, the CJRS has seen an estimated 8.4 million of the UK’s employees furloughed – at a cost to the Government so far of circa £15 billion.

On 12 May 2020, it was confirmed that the CJRS would be extended until the end of October 2020, but that employers would need to start contributing to the costs of the CJRS in the coming months. Whilst the next full version of the official Guidance to the new CJRS will not be published until 12 June 2020, what we now know is that:

• There are no changes to the CJRS for June and July;
• From August employers will need to pay the NI and pension contributions for their furloughed employees (in respect of the hours the employee does not work);
• For September employers will need to fund 10% of the Furlough Leave pay (i.e. HMRC will pay 70% up to a cap of £2,187.50) and NI and pension contributions; and
• For October employers will need to fund 20% of the Furlough Leave pay (i.e. HMRC will pay 60% up to a cap of £1,875) and NI and pension contributions.

The CJRS will end entirely on 31st October 2020 and will be closed to new entrants from 30 June 2020. From this point onwards, employers will only be able to furlough employees that they have furloughed for at least a full three-week period prior to 30 June 2020. This means that the final date by which an employer can furlough an employee for the first time will be the 10 June 2020.

In addition, from 1 July 2020, the number of employees an employer can claim for in any claim period cannot exceed the maximum number they have claimed for under any previous claim under the CJRS.

Flexible Furlough Leave

The recent announcement also set out a further change to the CJRS and the concept of Furlough Leave. Under the current Furlough Leave arrangements an employee cannot carry out any work for you at all whilst on Furlough Leave, however from 1 July 2020, you will be able to ask employees on Furlough Leave to carry out work for you, on a part-time, flexible, basis. For the hours they work for you they will be entitled to full pay, which you will not be able to recover under the CJRS, but for the hours/days they remain on Furlough Leave, not carrying out any work, you can continue to recover a pro-rata amount (up to the maximums set out above) for the time they are not at work.

Whilst in the absence of definitive Guidance from the Government, there remains a lot of uncertainty, the Employmentor Team are on hand to answer any questions you may have and will provide a further update on the new law an the CJRS official Guidance after it is published, hopefully, on 12 June 2020.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance. If you would like more information on the content of this article, please call the Employmentor Team on 01603 281139.

Coronavirus – It’s good to talk

The current health crisis is a concern for all. Coupled with the crippling effect on the economy, it is fair to say that almost all employees will be worried about the situation, and their future, in one way or another.

Whether your employees are working from home, on Furlough Leave or are preparing to return to the office, taking into account their health and wellbeing, and anticipating their concerns, is crucial in order to ensure a smooth transition in the physical return to the workplace. Failure to do so may result in employee unrest, reluctance to return to work, and sickness absence. All of that of course is best avoided if possible, particularly at a time when businesses are looking to take steps to rebuild and restart.

We have set out below some considerations and practical steps you can take to support your employees whilst also navigating through tricky business conditions, with the aim of striking that ever elusive “right balance”.

Working from home

In a recent survey, over half of employees working from home said they felt isolated, with nearly two out of five employees feeling stressed or anxious, or suffering other mental health issues.

Whilst employers are concerned for the future of their businesses (perhaps also questioning the efficiency of recently established home working practices), employees are equally likely to be concerned for the safety of their jobs, and in some cases whether they are perceived to be working hard enough.

The best practical advice to tackle that issue is this: keep in touch with your employees who are working from home. Hold regular remote meetings amongst teams, provide a weekly update to staff, and ensure managers are checking in with their teams regularly. This allows employers to keep track of workloads, productivity generally, but also, if handled appropriately, can update staff and reassure them on what you are doing as a business to weather the storm.

It is also important to note that your obligations as an employer still apply when your employees are working from home, so it is important that you make sure, as far as possible, that employees are taking regular breaks and taking care of themselves. A “checking in” phone call from you will go a long way and should also help to flag up any wider issues which might store up problems for your business later down the line.

For those with childcare responsibilities, it is important that you understand the pressures they face so you can head off any problems, on an ongoing basis. You may want to consider discussing flexible working arrangements such as staggering start times or allowing them to work their hours across additional days, and if so, how that will be managed and monitored. If both parties have a “plan” in terms of workloads and timings, it is likely to reduce the stress the employee faces and also reassure the employer that work is being handled appropriately. This open dialogue with staff on their childcare position and pressures assists with operational planning as and when staff are called back into the physical office – whilst you may assume that all of your staff will return when your premises re-open, if your parents do not have childcare options (particularly with a phased re-opening of schools), that simply cannot happen. It is best to know that ahead of time so that you can consider arrangements which both work for your business and support the employee; that may require some creative thinking and, if handled correctly, will also ensure that your employee feels supported and valued.

If you have any private health insurance, or employee assistance programmes, now is the time to be signposting employees to the support they can receive through these avenues. Even simply providing employees with information as to where they can find information or obtain further support (such as from Mind) is helpful.

Furlough Leave

Employees on Furlough Leave may be facing a number of concerns; some may feel isolated, some may worry that they won’t have a job to return to, and some may feel guilty, particularly if some of their colleagues are still at work.

As above for those working from home, ensure good lines of communication with regular updates, and referral for additional support through health insurance or employee assistance programmes. It is also a good idea to ask Furloughed employees to undertake training to develop their own skills during this time, making sure that such training does not amount to “work” (so it should not generate income for the business, and must be directly relevant to an employee’s employment). In addition to keeping the individual engaged (and reminding them they are still employed) that also benefits your business with refreshed skills that employee brings with them on their return to work.

Perhaps most crucially, as we start to see the tide change in terms of the lockdown restrictions, many employers are now at the point where they are considering how and when best to call staff back from Furlough Leave, or indeed whether they no longer require those staff and need to commence a redundancy process. It is crucial to employees’ mental health that you update your employees as early as you operationally can as to those factors. Remind employees (as appropriate) that they can and will be called back from Furlough Leave in the near future, to allow them to mentally prepare for what will represent a huge change. That should also “flush out” any employees who may not wish to be “un-Furloughed” to allow you to assuage any concerns those employees may have on a return and / or plan operationally. Equally, if staff may not be coming back, alluding to that at an early opportunity may be appropriate to allow those employees to mentally prepare for that eventuality and indeed source new work.

Returning to Work

Many people are going to be worried about what a return to work might mean; whether a return after a period of working from home or from Furlough Leave. It is important that as an employer you address these concerns and our advice is to have an open an honest dialogue to talk things through with a view to reaching a solution that everyone is happy with.

There are strict health and safety obligations on employers to ensure the safety of their employees at work in terms of protecting their physical health, and controlling the spread of the coronavirus – making sure businesses are “Covid Secure”. That is, of course, the first step any business should be taking before looking to call staff back. Doing that not only ensures that physical health is protected, but should also offer some reassurance to those who are experiencing anxiety in respect of returning to the workplace.

If employees object to returning to work, then ask them why. Try to understand what their reservations are, and see what can be done to resolve these. Communication is key here – your employees are far more likely to be productive and hard-working if their mental health and wellbeing has been considered (and that they feel as though it has been considered), as well as their physical health. Equally, having a clear view on why an employee objects to returning to work will help you in considering whether there are any steps you can agree on to make the employee feel more comfortable, and indeed whether or not such objection is reasonable. That will, of course, factor into any subsequent decision making for you.

There is no doubt that both employees and employers will face tough times in the coming weeks as both try to balance the needs, feelings, and fears of the other. The point is, as the title to this article alludes, for the mental health of your staff, good industrial relations, and indeed for operational planning, communication is key. It really is that simple – it’s good to talk.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance. If you would like more information on the content of this article, please call the Employmentor Team on 01603 281139.

You Are What You Eat?

Two recent cases look at whether or not vegetarianism and veganism could amount to a protected characteristic for the purpose of discrimination laws.

It’s that time of year when everyone wants to be healthy, watching what they eat, particularly after all those mince pies(!). Two recent Employment Tribunal cases have had a similar focus on eating habits, specifically veganism and vegetarianism, and whether or not those eating habits could amount to a ‘philosophical belief’ so as to be a “protected characteristic” for the purposes of discrimination under the Equality Act 2010, alongside other protected characteristics such as gender, race, or disability.

In a landmark ruling in September 2019, where the employer was represented by none other than Employmentor’s very own Sarah Appleton and Dan Chapman, the Claimant was unsuccessful in claiming that his vegetarianism amounted to a protected characteristic.  Simply put, the Tribunal agreed with our experts that vegetarianism is not a philosophical belief, and so the Claimant could not bring a discrimination claim based on any “banter” or other treatment he allegedly suffered by virtue of being a vegetarian.

The more recent case, Casamitjana v League Against Cruel Sports, involved a vegan Claimant asserting that his belief in “ethical veganism” (the belief not only in following a vegan diet, but also avoiding the use of animal products entirely and taking active steps not to harm any animal in any way) should be protected under discrimination law. In this case, the Employment Judge (the same Judge involved in the previous case) commented that he was “satisfied overwhelmingly” that ethical veganism (in that case) is a philosophical belief.

The key distinction between the two appears to be the cogency of the belief, i.e. the reasons for holding the belief being similar or the same. So, whilst people may be vegetarians for various different reasons, some unconnected to a “belief” per se, it appears (although the full Judgment is not yet available) in the vegan case that the Judge was satisfied that in the main, ethical vegans are ethical vegans for the same reasons, and are committed to it as a belief and way of life.

Indeed, an interesting question for future cases is whether or not “normal” (i.e. non-ethical) vegans would be protected – the Judgment of the vegetarian case appeared to suggest they would, although the perhaps deliberate clarification in the second case that “ethical” vegans are protected suggests that “normal” vegans might not be.  So we’ll have to watch this space on that one!

So what should employers do going forward?

The first point to remember is that these decisions are Employment Tribunal decisions only, and therefore not, strictly speaking, binding on either other Employment Tribunals, or, indeed, on employers. That said, both cases attracted vast media coverage and employers therefore should be prepared for more allegations of discrimination on the basis of belief – not just veganism, but other beliefs too, such as a belief in using recyclable materials, or anti-animal testing. As concern for the environment and ethical practices are more and more at the forefront of people’s minds, we anticipate that there may be increasing numbers of these types of claims going forward, looking to expand the “philosophical belief” definition further.

Contrary to some recent commentary, there is no need for employers to start changing their equal opportunities policies to refer to ethical vegans being protected, nor to bring in a whole host of new rules or training.  What employers should do though, is be mindful that more discrimination allegations are likely from staff, and to take steps (as far as possible) to minimise the risk of those allegations coming – that means treating staff fairly and with respect, and shutting down any “banter” which is inappropriate or crosses a line, as soon as you become aware of it.   Put simply, if you are nice to your staff and foster a nice working environment, they will have less reason to complain and (if they are ethical vegans) to allege discrimination.  And that sounds like a pretty good New Year’s Resolution to us…

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance. If you would like more information on the content of this article, please call the Employmentor Team on 01603 281139.

Covert Recordings of Meetings

With the majority of people carrying mobile phones which are capable of making recordings, it is not surprising that employers have seen an increase in employees covertly recording work meetings. Many times in the past we have been asked by our clients “what can we do about it?”. Historically, our dejected response has been “not a lot”. Well…not anymore!

A case handed down this month in the Employment Appeal Tribunal (Phoenix House Limited v Stockman) has confirmed that both an employee and an employer should say if there is any intention to record a meeting except in the most pressing of circumstances, and (on the employee’s part), it will generally amount to misconduct not to do so. It follows that it is therefore permissible to discipline an employee for making a covert recording at work.

 
The level of disciplinary sanction very much depends on the facts. The Employment Appeal Tribunal was keen to emphasise that, contrary to what was argued in the case before it, covert recording of meetings does not automatically amount to gross misconduct (which can result in dismissal without notice). Rather, in determining what level of misconduct has occurred, employers must consider:

1. The purpose of the recording

Was it to entrap the employer or gain a dishonest advantage? Or was it merely to keep a record, ensure that the employee was not being misrepresented, or to take advice?

2. Blame

Was the employee told specifically not to make a recording, or did they lie about making a recording? Or was it more innocent and the employee simply did not think about the fact that making a recording would not be appropriate?

3. Type of meeting recorded

Was it a meeting that would usually be minuted in some way, and a record shared, such as a disciplinary or grievance meeting? Or was it a meeting at which highly confidential, or personal information was discussed?

 
All of those factors are relevant in determining what sanction an employer can impose. Clearly an employee who records a meeting concerning highly confidential business information in order to try and trick the employer, and then lies about it, can justifiably receive a much harsher sanction than an employee who just wanted a record of the meeting, and did not think there would be an issue in taking a recording. As with everything in employment law, each case depends on its facts. Of course if you do wish to take disciplinary action for covert recording of meetings then you will need to follow a full disciplinary process, which we can assist you with.

 
The key action point for employers here is to review and update your policies. If you do not want your meetings recorded (and our advice is that it should be your general policy that meetings are not recorded by either party), that should be set out in your policies – disciplinary, grievance, bullying and harassment, performance management, and any other policies which envisage meetings being held. Equally, you should update your “misconduct list” in your disciplinary policy to set out that recording meetings covertly is considered to be misconduct, or, in some cases, gross misconduct.

 
It is also important to note, even if you do have policies in place, and the employee has acted sneakily in making their recording (etc. etc.), those recordings are still disclosable in an Employment Tribunal. So, whilst you may now be able to discipline employees for making recordings, they can still use those recordings against you… so please please please watch what you say.

All in all though, a welcome development for many employers…happy disciplining!

 
Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance. If you would like more information on the content of this article, please call the Employmentor Team on 01603 281139.

Holiday Pay Updates – Voluntary Overtime

Good news – yet another court decision on how to calculate holiday pay!

The Court of Appeal confirmed yesterday, in the case of East of England Ambulance Service NHS Trust v Flowers, that yes, voluntary overtime should be taken into account when calculating holiday pay, thus confirming an earlier Employment Appeal Tribunal decision which we updated you on back in August 2017.

Specifically, the Court of Appeal ruled that where overtime is “sufficiently regular and settled for payments made in respect of it to amount to normal remuneration”, it is irrelevant whether or not the overtime is compulsory or voluntary; it must count towards the calculation of holiday pay.

The law for now

For now, this means that we do have confirmation, from the Court of Appeal, that holiday pay should include a calculation that factors in:

• Overtime of any sort (whether voluntary, compulsory, guaranteed or not) as long as it is broadly regular and predictable;
• Commission payments;
• Shift allowances;
• Stand by payments;
• Call out payments; and
• Any travel payments which are treated as taxable remuneration (as opposed to reimbursement of expenses).

The jury is still out on bonuses, but it seems as though productivity and attendance linked bonuses that form part of “normal remuneration” will likely count towards a holiday pay calculation, whereas more discretionary bonuses such as those based on company performance will not form part of holiday pay.

We are also still unclear, at least for now, on how holiday pay should actually be calculated in practice, specifically whether it should be with reference to pay during the preceding 12 weeks, 12 months, or somewhere between the two.

Future changes – 2020

Fortunately, it is hoped that the end (or at least the beginning of the end!) may well be in sight. Planned changes to the law in April next year, as part of the Good Work Plan, include a commitment from the government to legislate to confirm a 52 week reference period for calculating holiday pay (rather than the current 12 week period), giving employers much needed clarity in this area of law.

Practical Steps

For now, legally speaking, all workers who take holiday should, for the first 20 days of their holiday (as these changes only apply to the first 4 out of the 5.6 weeks statutory entitlement), receive a payment which includes all the elements listed above.

However, given the fact that the applicable reference period, at least until April 2020, is still unclear, and given that even after April 2020, there may be different approaches for different types of worker, this area of law remains a tricky one, and employers who are at all unsure should contact the Employmentor Team, so that we can advise on the most appropriate way for your business to plan for the changes next year, and beyond.

Indeed, given that the changes in April 2020 will apply retrospectively (in that they will require a calculation to be carried out on the basis of the previous 52 weeks) we would urge businesses to start to think now about assessing their workforce and how they are paid during annual leave, so as to ensure not only that compliance next year is practicable, but also to be more confident on staffing costs and budgeting moving forward.

It is also worth noting that a further change is afoot in terms of holiday for 2020, and that is the change to the early May Bank Holiday, which will move to a Friday (8 May 2020) as part of the commemorative events to mark the 75^th anniversary of VE day.

If you would like to speak with any member of the Employmentor Team to chat through your options with regards to any of the above, please call 01603 281139 to arrange that.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.