EMPLOYMENT LAW UPDATE OCTOBER 2020

This newsletter covers:

• Job Support Scheme
• Preventing the Second Wave
• Monitoring of Workers Working at Home
• Domestic Abuse and The Role of The Employer
• Redundancy

Job Support Scheme

The Flexible Furlough Scheme ends on 31 October and will be replaced by the Job Support Scheme on 1 November. This new scheme is available to all employers even if they have not previously furloughed workers. However there’s a rule that large as opposed to SME businesses will have to show they have been adversely affected by Covid-19.   

The new scheme will help where a worker is working at least one third of their usual hours but full hours aren’t available because of the current situation. The Government will help the employer pay the worker’s wages for the hours they aren’t required. But this top up is limited to one third of the wages the worker would have earned and is on the condition that the employer pay one third too. The Government’s contribution is capped at £697.92 per worker per month and is reimbursed to the employer in arrears. This means workers will earn a minimum of 77 per cent of their normal wages. Employers will continue to pay workers’ NICs and pension payments.

The scheme is focused on keeping viable jobs going over the winter, so workers on redundancy notice aren’t eligible.

The scheme is set to run for six months.

What about the Job Retention Bonus? Employers can claim the taxable £1000 Job Retention Bonus for previously furloughed staff who remain employed and not on notice on 31 January 2021. The employer must have paid them at least £1560 in total between 6 November and 5 February, with at least one taxable payment in each tax month. Claims may be made between 15 February and 31 March 2021. This is new guidance and should be checked regularly.

And the self-employed? Those eligible will receive a taxable grant worth 20 per cent of average monthly profits up to a maximum of £1875 for the three-month period November 2020 to January 2021, with a second grant available for February to April 2021.

Preventing the Second Wave

Government guidance for different sectors of the economy has been updated to take into account steps to prevent a second wave of Covid-19. These are copious and detailed, and employers must regularly review their practices.

For example, increased restrictions came into force in the hospitality and leisure industry on 24 September, many premises must now close between 10pm and 5am. This includes those selling food or drink, social clubs, casinos, funfairs, take-aways. But food delivery and drive-through services can continue after 10pm.

Office workers should work from home if they can but if they can’t, employers must ensure workplaces are safe, and measures must be put into effect after consultation. There are fines of up to £10,000 from 28 September for failure to make hospitality premises Covid-19 secure, and if practices aren’t safe, a worker might raise a grievance or even raise the matter publicly as a whistleblower.

If workers can’t work from home, employers are urged to encourage them to travel safely to and from work on foot or by bike, and for this purpose further bike racks should be installed. Employers can check with their local council for safe cycling routes, and they can stagger arrival and departure times. If workers do have to travel on public transport, employers should encourage them to socially distance. As ever, consultation is key.

Regulation 2 of the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment) (No.3) Regulations 2020 have been amended to include that workers must wear masks including in:

• Shops and shopping centres
• Restaurants and bars
• Banks
• Hotels

Workers who fail face fines of £200.

There is no further advice about workers who were previously shielding, therefore employers must decide on a case by case basis after consultation.

The rules about self-isolation have been tightened. Under regulation 7 of the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 it’s an offence to require workers to work when they should be self-isolating. Employers will face fines starting at £1000. Workers are obliged to tell employers that they must self-isolate. Self-isolation is for at least ten days if a positive test has been received, or fourteen days if someone tests positive in their household or support bubble, or if advised by NHS Test and Trace.

There are fines for failure to self-isolate starting at £1000 and increasing to £10,000. Employers should enable self-isolating workers to work at home if appropriate. Those on a low income who cannot work from home will be eligible to a £500 Test and Trace Support Payment, on top of any Statutory Sick Pay or benefits.

Monitoring of Workers Working at Home

Working at home is new territory for many, and employers are anxious to know what their workers are up to: are they motivated, are they distracted? Whereas workers are reporting they’re working longer hours and are watching their work-life balance slip away.

There are stories of employers demanding workers join a daily video conference call with their webcam on, and that they stay on it all day. Providers of surveillance software and apps have reported an unprecedented growth in demand. Because if there’s something an employer wants to monitor, there’s technology for it. Want to know what your worker is looking at on their screen? Use software that takes screenshots and records websites visited. Is your worker focussed on the task or on a perpetual coffee break? Monitor when they log on to the system, and their keystrokes and mouse movements. It’s even possible to take regular photographs of workers using their webcam – but is this appropriate?

Home is a private place for a worker, and they are entitled to respect of their private and family life and home under Article 8 of the European Convention on Human Rights. A recent study undertaken by CIPD found that 73 per cent of workers felt the introduction of workplace monitoring would damage trust between workers and their employers.

Employers should ensure that any surveillance is necessary, justified and proportionate, and should consider what changes are needed to existing policies and procedures. Workers should be informed if they are being monitored, otherwise employers are in breach of data laws.

But rather than employers suspecting their workers of shirking, should they instead be monitoring them for digital burn out and mental health issues arising from isolation?

Workers are saying they’re working harder and for longer hours, and their heads are spinning from back to back virtual meetings. Working at home can mean sitting down first thing and not stopping because there is no structure, no built-in breaks, no distractions, no travelling time between appointments and meetings. The National Bureau for Economic Research in US found the number of meetings per person had gone up 12.9 percent and the average workday had increased by up to 8.2 percent.

Domestic Abuse and the Role of the Employer

Domestic abuse destroys lives. But what has this to do with the workplace? Sadly there has been a huge increase in domestic abuse due to lockdown and the prevalence of home working: for many the workplace was a haven away from abuse.

On 29 September the CIPD published “Managing and Supporting Workers Experiencing Domestic Abuse” which sets out guidance for employers. This advice was produced with the Equality and Human Rights Commission.

Employers are encouraged to break the silence about domestic abuse. Their awareness of domestic abuse and its implications and the steps they can take will literally save lives. Every workplace should have a clear and widely communicated policy to support workers, and a framework of support.

Four steps are recommended:

• Recognise the problem
• Respond appropriately and non-judgementally
• Provide support
• Refer to appropriate help; eg counselling, professional organisations.

Domestic abuse victims may need time out for counselling and to implement drastic changes in their lives such as their accommodation and childcare arrangements. They may need to attend legal and finance appointments. Employers should as far as possible accommodate these needs.

But how can an employer possibly know that a worker is the victim of a domestic abuser if they are working at home? Injuries which may be apparent in the workplace might not be evident in virtual meetings. And what if the victim’s abuser is controlling the worker’s interactions with their workplace so that their virtual meetings are set on audio only? Employers should consider having weekly one-to-one virtual meetings with all workers working at home.

And what if a worker is in imminent danger? Don’t intervene, call 999.

Redundancy

With furlough ending, redundancies are inevitable. Acas has published helpful, clear, and up to date guidance, “Manage Staff Redundancies” with the following steps:

• Make a redundancy plan
• Avoid compulsory redundancies
• Redundancy consultations
• Select employees for redundancy
• Give employees notice of redundancy
• Work out redundancy pay
• Support your staff and plan for the future
• Acas training and support for employers

Acas, the CBI and TUC have issued a “Joint Statement on Handling Redundancies”. They recognise that times are hard and the economy is fragile, and they ask that employers exhaust all possible alternatives before making redundancies, particularly by means of effective consultation with workers and trade unions. Why is this vital? Jobs can be saved by joint decisions for part-time working, overtime cuts, alternative roles, and retraining. They set out five guiding principles:

• Do it openly
• Do it thoroughly
• Do it genuinely
• Do it fairly
• Do it with dignity

And don’t forget to include workers who are not in the workplace, whether working from home, furloughed, sick, or on maternity leave. They must be fully involved in the consultation too. Invite them into the workplace, or have a virtual meeting with them, or if that’s not an option, a meeting by phone. 

Contact Gillian Reid for advice on the issues raised in this article on 01904 716000 or email  gillian.reid@warekay.co.uk.

The topics covered are complex and are provided for general guidance only. Therefore, if any of the circumstances mentioned have application to you, seek our expert legal advice first.  In addition, due to the changing landscape (Covid-19), this article is accurate up to today however the information may change due to the fast moving government policy on this.