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Government Reforms

Managing the Impact of the Coronavirus in the Workplace

Can an employer lay off an employee or put them on short-time working?

It depends on the terms of the contract of employment. Most employees do not have an implied right to be provided with work, but do have an implied right to be provided with pay. So when an employer lays off (or puts on short-time working) an employee without pay, without having reserved the contractual right to do so, it is the non-payment which is likely to give rise to a breach of contract rather than the failure to provide work. As such, it will constitute a breach of contract for an employer to lay off employees or put them on short-time working without pay when they do not have an express or implied contractual right to do so. It is important to check the contract to see if there is the express right to do so. If not then the employer may wish to rely on the implied term but this is not far reaching and in most industries there would not be an implied term.

(a) For a term allowing lay-off to be implied into a contract:

(b) There must be a custom of laying-off within that particular business.

  • The custom must be both:
    ”reasonable, certain and notorious”; and
  • such that “no workman could be supposed to have entered into service without looking to it as part of the contract”

How long can an employee be laid off for or put on short-time working if there is the contractual right to do so?

There is no set time limit but it should be done in line with the contract and be reasonable. As such, to be on the safe side, it should normally be for as long as is reasonably necessary. For example until work picks up again where there has been a downturn in work. However, note the below caveat.

Redundancy and guarantee payments?

There are circumstances under which employees might be entitled to guarantee payments and statutory redundancy payments as a result of lay-off or short-time working. The provisions are complicated and technical. It would be advisable to take specialist legal advice if an employer is considering enforcing lay off and short-time working to ensure compliance and that the provisions are used to the best advantage of the employer. In short though, to claim a statutory redundancy payment the employee must be eligible for it, which includes (but is not limited to) being laid off or kept on short-time working (or a combination of both) for at least:

(a) four or more consecutive weeks (section 148(2)(a), ERA 1996); or

(b) a total of six weeks (of which no more than three are consecutive) in any period of 13 weeks (section 148(2)(b), ERA 1996).

An employee may be entitled to a statutory guarantee payment (SGP) on up to 5 “workless days” in a three-month period. A “workless day” is a day during any part of which the employee would normally be required to work in accordance with their contract, when the employee is not provided with work by their employer because of either of the following:

(a) There is a reduction in the requirements of the employer’s business for work of the kind which the employee is employed to do.

(b) There is any other occurrence which affects the normal working of the business in relation to this type of work.

The current maximum amount of an SGP is £29 per day.

Emergency legislation?

There is speculation that in these unprecedented times, the Government may introduce new emergency legislation to allow employers to lay off employees or put them on short-time working where there is no express or implied term in their contracts to do this. The Government may go even further and allow longer periods before redundancy claims can be made and it is possible it could increase the number of statutory guarantee days to allow workers who are laid off for relatively long albeit temporary periods to receive some income in these difficult times. The employees would also still keep their continuity of employment. This is all speculative at this time but these are clearly options the Government has open to it.

Can I force staff to take unpaid leave?

Some news stories very recently reported that Virgin Atlantic staff were told to take unpaid leave of 8 weeks. This is not the case. There would have been no valid term in their contracts to allow this. Rather, the staff were asked (not told) to take 8 weeks unpaid leave. This would have been done by way of mutual agreement with the staff, presumably to avoid Virgin having to take other more terminal measures like making redundancies.

Employers can seek to agree by way of mutual agreement various measures to assist with reducing the wage bill to get through these difficult and unprecedented times such as unpaid leave even if there is no term in the contract to allow this and there will not be such a valid term (save for lay off or short-time working dealt with separately herein). Of course it is not always going to be so straight forward and employees can object to any proposals made. Naturally businesses would then be forced to consider alternative measures including but not limited to making redundancies. Whatever measures are taken in relation to staff it is important that they are done in the right way. It is advisable to take specialist legal advice if such measures for the staff are being considered for the short or long term.

Sick Pay – New Legislation

The Government has committed to bringing in a range of extra support and measures to help workers and businesses affected by coronavirus. Please note that this advice only related to Statutory Sick Pay entitlement and not the entitlement to Company Sick Pay.

(i) What is the current position with Statutory Sick Pay (SSP) and absence due to coronavirus?

People who cannot work due to coronavirus and are eligible for SSP will get it from day one, rather than from the fourth day of their illness. SSP will be payable to people who are staying at home on government advice, not just those who are infected.

(ii) What evidence can I ask the employee for to substantiate their sickness absence due to coronavirus?

Employers are urged to use their discretion about what evidence, if any, they ask for. If employees need to provide evidence to their employer that they need to stay at home due to coronavirus, they will be able to get it from the NHS 111 Online instead of having to get a fit note from their doctor. This is currently under development and will be made available soon.

(iii) Can I reclaim the SSP paid due to coronavirus?

Employers with fewer than 250 employees will be able to reclaim SSP for employees unable to work because of coronavirus. This refund will be for up to 14 days per employee.

Good housekeeping in the workplace

There are various official communications to assist employers with their health and safety obligations as follows:

On 16th March 2020, Prime Minister Boris Johnson outlined that if anyone or anyone in their household has a high temperature or a new continuous cough, then they should stay at home for 14 days. He also advised that people should work from home where they can.

School Closures – What to do if staff need to stay at home to look after their children?

If employees are unable to work due to the closure of schools then there is not a requirement to pay them if they cannot carry out the work they are employed to do. In advance of such circumstances we would advise employers to speak with their employees to have a plan in place for how this situation can be best managed. It may be appropriate for this time to be used as a combination of unpaid leave (this can be parental leave if the employee is eligible) and annual leave that has accrued to date. Obviously each circumstance may differ and we can help you make an informed decision as to what approach is best for your business.

Homeworking – What do I need to know?

The current Government recommendation is for employees to work from home where possible. If this is something not previously utilised within your business then you may not know where to start. Our recommendation is first to identify whether homeworking is feasible, clearly for roles which involve manual labour it will be harder to accommodate homeworking than desk based roles. If it is feasible, then do you have a homeworking policy in place? If not, a short emergency homeworking policy can be provided to protect your business. A policy, even if the situation may be short term, is always advisable to protect your business by ensuring employees know what is expected from them whilst working from home. If you would like us to provide further advice on homeworking or to provide your business with a policy, please contact us.

What if the Government decide to enforce a UK wide lock down?

If the Government introduce this it means an employee may be willing to go to work but is unable to do so and conversely, employers are unable to be open to provide work.

If such strict measures are enforced which prevent employees from attending their place of work, then we expect the Government to do so with clear guidance and/or emergency legislation around how employers should approach such a step. For example we would expect to be advised whether employees should receive their normal salary whilst at home and if not, whether this will be funded by the employer or the Government. Naturally many businesses cannot afford to sustain full pay for employees unable to attend work.

However we consider (and hope) that if such a strict approach is taken, the Government will introduce appropriate guidance/emergency legislation to offer some protection and certainty for employees and employers alike.

Please note that the foregoing is a helpful overview of employment law on these keys areas as it stands at this time. It is not intended to be comprehensive and it is recommended that specialist legal advice is sought as necessary. Further, it is also susceptible to change as emergency legislation and/or guidance can be introduced at any time by the Government. Indeed, Rishi Sunak, Chancellor of the Exchequer, announced yesterday afternoon that an announcement on employment measures would be made over the coming days. We will be keeping right up to speed with developing matters.

18th March 2020

New Employment Legislation

In December 2019, the government set out its plans for new employment law legislation in the Queen’s Speech. Much of it will be familiar from the Good Work Plan and includes:

  • Creating a single labour market enforcement agency to protect the rights of vulnerable workers;
  • Requiring employers to pass on all tips and service charges to staff;
  • The right for workers to request a more predictable contract after 26 weeks;
  • Extending redundancy protection so that women who are pregnant or on maternity leave are protected from the point they tell their employer about their pregnancy until 6 months after they return to work;
  • Making flexible working the default position.

These changes could have a significant impact on employer practice and procedure. We will keep you informed if and when these come into law.

Astons Solicitors
January 2nd 2020

The Taylor Report – points of interest…

The Taylor Review – now renamed the ‘Good Work’ report, has recently been published. There are a number of points of interest but here are our top ten:-

Establishing employment status – the future of the worker – There is confusion in the current three tier system and the two categories of people that are eligible for ‘worker’ rights should be easier to distinguish from one another. The report states that the government should introduce a new name for people who are eligible for ‘worker’ rights but are not employees. The recommendation is for this group to be termed ‘dependent contractors’.

Flexibility – The government must take steps to ensure that job flexibility does not benefit the employer, at the unreasonable expense of the worker. Flexibility should be a mutually beneficial arrangement. The suggestion, therefore, is to consider the impact of increasing the National Minimum Wage for hours that are not guaranteed as part of a contract.

Managing gaps in service – Current worker rights take effect on day 1 of employment but there are many rights that require a period of continuous service before the individual becomes eligible, such as applying for flexible working or claiming unfair dismissal. Most employees would have little problem showing their continuous employment but for those that work casually or intermittently it can be more difficult. Therefore, the recommendation is that the government should extend the consideration for the relevant break in service, from one week to one month, for the calculation qualifying period for continuous service.

Calculation of holiday pay – Currently, the holiday entitlement of a worker that works abnormal working hours is based on the hours worked over a pay reference period of 12 weeks. This does not work for everyone, especially with reference to seasonal work and where there are peaks and troughs in work. Also it is often the case that agency workers and those on zero hours contracts are unaware that they are entitled to holiday pay or are too afraid to take it. The government should make increased efforts to communicate who is entitled to holiday pay. They should also consider extending the pay reference period to 52 weeks.

The receipt of paid annual leave – Individuals should have greater choice in the way in which they receive paid annual leave. ‘Dependent contractors’, those eligible for worker rights but are not employees, should be given the opportunity to receive ‘rolled-up’ holiday pay. This would mean they would receive a 12.07% premium on their pay.

Zero hours contracts – Banning zero hours contracts in their totality would neither be helpful nor practical, in fact it would negatively effect more people than it would help. It is suggested, however, that those on zero hours contracts should have the opportunity, after a fixed period of time, to request a fixed hours contract. The average weekly hours worked over the past 12 months would be the starting point for the new contract.

Temporary flexible working – Flexible working is shown to have great benefits to both employers and workers. The government should now consider how further to promote genuine flexibility in the workplace. One consideration would be whether temporary changes to contracts could be allowed. These would help workers in times when flexibility is needed for a particular caring requirement.

Statutory Sick Pay – The current policy for SSP is inflexible, it does not allow easily for a phased return to work and currently excludes those that fall below the NI income threshold. It is suggested that SSP should be reformed so that it is available to all workers as a basic employment right, similar to the National Minimum Wage. It should be payable to the employer and accrued on length of service similar to holiday pay.

Employment Tribunal Fees – Employment tribunal fees are seen as a significant barrier for some in bringing a case against their employer. In order to assist individuals to at least ensure that their claim is valid the suggestion is that government should ensure that individuals are able to get an authoritative determination of their employment status without paying any fee and at an expedited preliminary hearing.

Employers that believe they can ignore the law – Government should create an obligation on employment tribunals to impose aggravated penalties and costs orders on an employer who has previously lost an employment status case on similar terms.

There is clearly some work to do on these points but the report clearly reflects the changing nature of the current UK labour market.

Written by

Edward Aston
11th July 2017

Does travel to and from work count as working time?

The European Court of Justice (ECJ) has provided guidance on what constitutes working time for those workers with no habitual workplace.

The ECJ looked at whether, for these types of workers, time spent travelling from home to customers’ premises and vice versa was working time under the Working Time Directive. It was concluded that it was.

The case arose as a result of two companies within the same group who employed technicians who were each assigned to a particular province or area of Spain. During 2011, the provincial offices were closed and all employees were assigned to a central office in Madrid.

The technicians use a company vehicle to travel from their homes to the places where they carry out their duties and then return home at the end of the day. The companies considered that the first journey of the day or the last journey home were “rest periods” and that the working day started when the technicians arrived at work and finished when they left their last assignment. Prior to the provincial offices closing, the employees calculated the working time as starting when a technician arrived at the office to pick up the vehicle and task list and finishing when they arrived back at that office to return the vehicle.

The technicians asserted that their first and last journeys of the day also amounted to working time. The Advocate General gave his opinion and stated that he considered that the first and last journey should be considered to be working time. He reached this conclusion based on the fact that traveling is an integral part of being a worker with no usual workplace, the journeys are subject to the authority of the employer and as travel is essential in the performance of the duties, it must be regarded as forming part of the “activity or duties” of those workers.

The ECJ agreed with the Advocate General and noted that not taking the journeys into account could have health and safety repercussions. It was also noted, in response to the companies’ concerns, that because the workers are “at the employer’s disposal” for the time of the journeys, they should act under their employer’s instruction and cannot use that time freely to pursue their own interests.

This ruling could have a significant impact on those companies who employ mobile workers who spend a lot of time travelling between customers. The main impact would be on working time and rest breaks. One consideration will be whether staff should be asked to opt out of the Working Time Directive’s 48-hour working week given that the first and last journeys will have to be taken into account.

If you require any advice or support on this issue, please feel free to contact our expert team of employment solicitors.

Written by
Edward Aston
15th September 2015

 

Acas Early Conciliation

The anticipated Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedures) have been published and confirm that Early Conciliation will come into force on 6th April 2014

The new legislation means that individuals who wish to bring a claim against their employer in an Employment Tribunal will first need to contact ACAS. It is however worth noting that there is no obligation under the rules to actually par take in conciliation.

Watch this space for further updates or for a more detailed understanding of the new rules why not book a space at the next Astons Employment Law Seminar in May. For full details on the Seminar please email sda@astonssolicitors.co.uk

Written by
Edward Aston
14th February 2014

 

Zero hours in the news again

The topic of zero hours has been in the news again with three developments. Firstly, consultation on the topic is currently underway and is due to close on the 13th March 2014. The points for discussion are situations where workers on zero-hours contracts are subject to a clause preventing them from working elsewhere and secondly issues over the lack of transparency over the terms of the contracts, access to employment rights and the uncertainty of income. Employers who want to have their say have a little longer to do so.

Secondly, ACAS’s Chief Executive Anne Sharp has identified zero-hours as one of the three key areas for 2014. Finally, a Private Members Bill was published on 23 January 2014. The Bill aims to prohibit the use of zero-hours contracts and is due to have its second reading debate at the end of February 2014. The Bill has a rather narrow definition of the type of zero-hours contracts it is seeking to prohibit. It defines them as contracts where the contract fails to specify guaranteed working hours, but requires the worker to work (or be available for work) exclusively for one employer.

Historically, Private Members Bills do not have a good track record of ever becoming law so watch this space.

Written by
Edward Aston
20th February 2014