When a snow day arrives, businesses suffer the effects of enforced staff absences. Employers are left counting the cost of the lost days, and forecasters predict more bad weather may be on its way.

Organisations such as the TUC and CIPD urge employers not to play “Scrooge” by trying to force employees to get into work or threatening to dock their pay if they fail to come in. However, the financial burden on an employer can be significant. So, what exactly are employers’ obligations in this situation?

Do I have to pay employees who are unable to get into work due to travel difficulties?

Take a look at your employment contracts and Employee Handbook. These might specify whether an employee is entitled to be paid on “snow days”. If they are silent, however, then the default position is that the obligation is on the employee to get into work, regardless of any travel difficulties caused by the weather or otherwise. If they do not attend, they are on unauthorised absence and they are arguably not entitled to be paid.

Be careful, however, if you are going to take this approach. Firstly, there is a potential that the employee can argue that failure to make payment in these circumstances is an unauthorised deduction from wages (assuming this is not covered in the employment contract). The defence to this would be that there was no entitlement to pay as no work was done, but it may be an argument you would prefer to avoid. Secondly, you should assess whether the financial benefit of withholding pay is outweighed by the impact on staff morale and productivity. This is particularly so if the weather and travel conditions are extreme and, even with the best of intentions, employees are unable to get in.

Above all, you should ensure that your approach is consistent. Ideally, tell staff in advance (in written format, e.g. memo or email) what your approach is going to be or, even better, have a “Bad Weather Policy”. Consider whether employees are able to work from home or whether alternative travel arrangements can be made. Otherwise, clearly explain to employees that either: (a) any time off will be unpaid; (b) time off will be paid but that they are expected to make up the time later; or (c) they can request the time off as paid annual leave or unpaid time off for dependant’s leave (see below). Prior notification is particularly important if you have made payments in the past in such circumstances.

As an aside, be careful if you are trying to insist on employees taking annual holiday retrospectively. Employees will need to agree to this unless the contract specifically allows for you to do this.

I have an employee who is able to get into the office but says s/he cannot come in because his/her child’s school has closed. What shall I do?

Employees with responsibility for a dependant are entitled to emergency time off in circumstances in which there is an unexpected disruption to childcare. Unless the school closure was announced significantly in advance, such that the employee had sufficient time to arrange alternative childcare, this would probably be an emergency situation and employees are entitled to take time off and not suffer any detriment for doing so.

Strictly speaking, the time off is unpaid (unless the contract of employment says otherwise) but employers may again want to consider the impact on morale that this approach would have. Again, it is important to be consistent in your approach. You should be especially careful where other employees who are unable to make it into the office due to travel are being paid.

One of my employees failed to come into work today, blaming the snow. I think he is using it as an excuse and could have easily come in. Where do I stand?

If you believe that an employee is falsely using the weather conditions as an excuse for absence or lateness, this can be treated as a disciplinary matter. If you consider the matter to be serious enough (e.g. if it is a persistent or blatant case), you should investigate in line with your disciplinary policy and take action as appropriate. However, in less serious or one-off cases, you may be better placed simply having a quiet word with the employee and letting them know that any further time off will have to be taken as holiday or will be unpaid. Bear in mind that it can often be difficult to prove or disprove an employee’s ability to come into work in bad conditions.

Am I obliged to allow employees to work from home?

Home working can be a good alternative for employees who are unable to get into the office. Use of remote computer access and such devices as iPhones can mean that employees are able to seamlessly work from home. You do not, however, have to allow employees to work from home if you do not think it is appropriate.

If you do permit home working, be clear on what you expect from employees. A home working policy would be a good idea, which should also cover the health and safety aspects of working from home.

Some employees who have made it into work are resentful of the fact that their colleagues are having a day off, while they have to work. Am I obliged to reward them?

In short, no. They are only doing what they are contractually obliged to do. If their colleagues are not being paid for having time off, or if they are using annual leave, this may address their concerns. However, if you have exercised your discretion to pay employees who do not come in, then those employees who have fought their way into work may feel that they have been treated unfairly.

It is a generous employer who grants those employees time off in lieu or some other financial reward. However, from a morale point of view, their efforts should not go unnoticed and a word of thanks, or an email to those employees who have made it in, can go a long way.

Employers should also consider any weather warnings and travel advice and allow employees to go early if necessary to avoid potentially dangerous travel conditions. Also, you wouldn’t want staff to be stuck in the office overnight!

The above provides a general guide to issues that might arise. However, each situation is unique and different considerations may apply in your case. We would therefore recommend that you consult a solicitor, or other suitably qualified person, about your specific circumstances.

Contact Mark Fellows for more information.

Partner Mark Fellows, Head of the Sherrards Employment department explores when you should consider to suspend an employee.

Whilst suspension is a precautionary measure, it is important to note that the question over whether to suspend in the first place is still a vital question to be asked before any steps are taken.

This has been highlighted by a recent tribunal matter where a school had suspended one of its teachers in order to investigate allegations that she had used unreasonable force against two of her pupils. Whilst some may think that the severity of these allegations would warrant the suspension of the teacher, the High Court held that it had not been necessary for the school to suspend the teacher and that they could have considered alternative measures. However, on appeal, the Court of Appeal confirmed that the school had had reasonable and proper cause to suspend the teacher.

Suspension is most commonly used for employee allegations involving gross misconduct. The suspension of an employee can therefore be a useful tool, providing an employer with invaluable breathing space to properly investigate an incident in the workplace.

If used inappropriately however, suspension can result in an employer being faced with a constructive dismissal claim from an aggrieved employee. It can damage employee relations or be seen as casting a shadow over an employee’s competence or character. Accordingly, it should be used with care.

ACAS provides the following guidance in relation to suspending an employee: https://archive.acas.org.uk/suspension

When can you suspend?

The above case confirmed that the appropriate test for an employer is not whether it is “necessary” to suspend an employee but whether an employer has “reasonable and proper cause” to suspend an employee. Requiring suspension to be “necessary” was deemed to be too high a bar and so this case has confirmed the threshold for suspension.

This means that an employer may legitimately be able to suspend an employee who is suspected of stealing. In these circumstances, the employer’s “reasonable and proper cause” may be to ensure that the employee in question is unable to carry out any further misconduct.

An employer may also be able to justify suspension on the basis that there is a risk of the employee interfering with investigations, tampering with evidence or attempting to influence witnesses.

Tips for suspending an employee

If you think the suspension of one of your employees is required, you can mitigate the risk of a constructive dismissal claim by:

1. Making it clear that suspension is not disciplinary action in itself or intended to be a punishment;
2. Reassuring the employee that suspension is not an indicator of guilt or that the outcome of any investigation is predetermined;
3. Confirming that you will be conducting a full and proper investigation and setting a clear timeline for future communications;
4. Notifying the employee of a point of contact (such as a member of HR) during their period of suspension; and
5. Confirming that suspension is a temporary measure.

You should also set clear boundaries and expectations for a suspended employee. For instance, you should make it clear that whilst on suspension they remain an employee of the company, bound by the terms and conditions of their employment and should remain contactable during working hours (apart from during periods of pre-arranged annual leave).

You should also make it clear that they are required to co-operate in your investigations and to attend investigation and/or disciplinary meetings. Depending on the allegations made, you may also wish to make it clear that they should not contact any of their colleagues and/or attend the workplace whilst your investigations are ongoing.

In order to avoid any doubt, we would recommend that a letter is sent to the employee in order to confirm the terms of their suspension.

Potential issues

Problems can arise for an employer if:

1. The suspension is communicated to others in an improper way – employers should be careful how they explain the employee’s absence to others and ensure that they do not imply any wrongdoing or fault on behalf of the employee. Suspension is still viewed by some as carrying a negative stigma and so you may decide to explain an employee’s absence in an alternative way;
2. Suspension is too high a sanction – an employer needs to consider whether the potential disciplinary matter is serious enough to warrant suspension in the first place. Minor misconduct will often not warrant suspension. On the other hand, it may actually damage an employer’s case if they do not suspend in a clearly very serious case;
3. Suspension continues for too long – employers should try to complete their investigation as quickly as possible and should review suspension if and when new evidence comes to light. If, for example, you discover clear CCTV footage which refutes the allegations made, you may consider ending a period of suspension prematurely (whilst continuing with your investigations);
4. Suspension is unpaid – employers should not suspend an employee without pay unless they have the express right to do so in the employee’s contract of employment. Even with the required provision, this is likely to be a high-risk strategy and in practice, there are limited circumstances where you would not pay a suspended employee.

In summary, where the question of whether to suspend arises at the outset of an internal procedure, it is worth remembering that this decision will be material to the fairness of the entire process and that it is important to be able to show reasonable and proper cause in order to suspend an employee.

To find out more, please contact Mark Fellows. 

On Friday 20^th March, the Government announced new measures to support businesses finding themselves in financial difficulty as a result of the impact of the Covid-19 pandemic. Below, Mark Fellows Partner in the Employment team, summarises the announcement and what it means for you and your business.

Please bear in mind that the Government announcement is lacking in some important detail, we endeavour to provide this to you in the coming days.

There are, therefore, a number of questions that remain unanswered.

The Government’s website for support for employers states:

• Under the Coronavirus Job Retention Scheme, all UK employers will be able to access support to continue paying part of their employee’s salary for those employees that would otherwise have been laid off during this crisis.
• To access the scheme, employers need to designate affected employees as ‘furloughed workers’ and notify their employees of this change. The guidance states that “changing the status of employees remains subject to existing employment law and, depending on the employment contract, may be subject to negotiation”.
• Employers must submit information to HMRC about the employees that have been furloughed and their earnings through a new online portal.
• HMRC will reimburse 80% of furloughed workers’ wage costs, up to a cap of £2,500 per month.

The Government’s website providing support to employees states:

• If an employer intends to access the Coronavirus Job Retention Scheme, they will discuss with you becoming classified as a furloughed worker. This would mean that you are kept on your employer’s payroll, rather than being laid off.
• To qualify for this scheme, you should not undertake work for them while you are furloughed. This will allow your employer to claim a grant of up to 80% of your wage for all employment costs, up to a cap of £2,500 per month.
• You will remain employed while furloughed. Your employer could choose to fund the differences between this payment and your salary, but does not have to.
• The Government intend for the Job Retention Scheme to last at least 3 months from 1 March 2020 but will extend if necessary.

Mark highlights key areas which are worthy of further discussion:

In order to benefit from this scheme, employers would have to notify the employees of the change to them being furloughed workers. Since there will be no contractual right to do this – as it seems to be a completely new concept – employers would, in effect, need the employees’ agreement to the change. On the basis that the alternative is redundancy, then I would assume that most employees would accept the change.“One particular challenge is that the guidance is using terminology unfamiliar in an employment law context – despite saying that “changing the status of employees remains subject to existing employment law”. The guidance also repeatedly refers to employees who would have “otherwise been laid off”. Laying off, in an employment law context, has a very specific legal meaning – which is to provide employees with no work (and no pay) for a period while retaining them as employees. This seems to be exactly what they are now referring to as “furloughed workers”. The Government presumably mean “laid off” in the vernacular sense, which is to be made redundant (i.e. have their employment brought to an end).

So, once the employer has agreed with an affected employee that they will be reclassified as a “furloughed employee”, then the employer can reclaim 80% of the employees’ wage costs up to £,2,500 a month. However, what we are not clear about is:

• What classifies as “wage costs”. The employee guidance talks about “all employment costs”. This might include the cost of benefits, pension, employer’s NI etc.
• Whether the cap of £2,500 refers to the 80% value or the 100% value – likely the 80% value.
• What happens when employers have already reduced employees’ salaries – can they claim the full 80% or only 80% of the reduced salary?
• What happens to employees who have already been made redundant? Can they be reinstated in order to benefit from this scheme?
• Whether there are any minimum service requirements. What happens if an employer has a new employee joining – can they immediately be furloughed?
• How long the wait will be for reimbursement – if there is a significant wait, it doesn’t help with the immediate cash flow issue.
• Whether furloughed employees continue to accrue holiday, what happens when they are on sick leave, and are they still entitled to pension contributions?

Employers need to think very carefully about whether to use this and for whom. One particular issue that jumps to mind is how non-furloughed employees will feel about still working – and probably picking up more of the workload to cover for their furloughed colleagues – and potentially receiving the same pay (80%) as those who are not working.

Employers will also need to consider what their approach will be to topping up the salary costs (or not) – particularly for those employees earning over £30K, for whom the cap will not fully cover their 80% salary.

Some of these questions may be answered in the next few days, but some of them are likely to remain unclear. I aim to update you as soon as the Government provide further guidance.”

As you will appreciate, whilst we have outlined options and some of the legal implications, this note does not constitute legal advice as each situation will be different and commercial considerations will no doubt dictate what you as a business ultimately decide to do.

Sherrards is here to support you should you need specific assistance.

To find out more, please contact Mark Fellows.

This is a truly exceptional and unprecedented time for all organisations, and you will already be thinking about the measures that you may need to implement in order to safeguard the future of your business. Taking steps now, even as a contingency, could be crucial in getting through this challenging period.

We have outlined below some of the options that exist in a situation of this nature:

GOVERNMENT SUPPORT – announcements are being made daily about various financial measures introduced by the Government, whether it be an opportunity to recover Statutory Sick Pay or grants and loans to help businesses during this critical period (Government link here). Utilise these to the fullest extent and communicate any impact on your business, with your staff.

LAY OFF – not to be confused with redundancies but lay off refers to a situation where an employer provides employees with no work (and no pay) for a period while retaining them as employees. They are effectively on unpaid leave for a temporary period. This is a measure often used when the downturn in work is expected to be short-term. Ideally the right to lay off is set out in the contract of employment and if it isn’t, generally speaking you would need the consent of the employees concerned. There are significant legal implications if you impose this measure without consent. Note also that after 4 weeks, an employee has the right to seek a redundancy payment, with the effect of bringing their employment to an end.

SHORT TIME WORKING – is where you ask an employee to reduce their contractual hours, again for a temporary period of time, with a corresponding reduction in pay. For example, asking somebody to work 3 days a week, instead of 5, and reducing their salary accordingly. The same principle as above applies here in respect of having the contractual right to do so and needing consent in the absence of that.

TEMPORARY SALARY REDUCTIONS – it is open for you to ask employees to consider a temporary reduction of pay to help the business navigate through the next few months. This would clearly need the consent of the employees concerned and would be open to discretion as to the amount of the reduction, and for how long. For example, the top earners could take a pay reduction of 20% and the lower earners, 10%. You also have the option to offer to make up the shortfall at a later point.

COLLECTIVE REDUNDANCIES – if you are proposing to make 20 or more employees in the same establishment redundant, within a 90-day period, it will trigger collective consultation obligations which has additional legal implications. In particular, there is a minimum period of consultation that ordinarily must be observed and a financial penalty if this is not met. Likewise, there will be consultation obligations if you are proposing to change terms of employment. This is a complicated and very technical area and one where legal advice should definitely be sought.

REDUNDANCIES – it is obviously open to a business in these times to consider making employees redundant. The difficulty with a situation like this is that it could be a hasty and premature step if this turns out to be a short-term crisis. The problem is that these truly are unchartered territories for businesses in the UK and indeed, around the world. From a legal perspective, employees with less than 2 years’ service have no entitlement to a statutory redundancy payment and provided their dismissals take effect at least a week before they accrue 2 years’ service and are due to redundancy, they will have no right to claim unfair dismissal. For employees with over 2 years’ service, they have a right to claim unfair dismissal which means that you will generally need to consult and comply with the legal requirements of carrying out a fair redundancy.

SICK PAY – there is currently ambiguity about whether employees who are self-isolating are entitled to paid sick leave. If an employee is unwell, then the situation is relatively straightforward – your normal sick pay rules should apply. If somebody is self-isolating on the basis that they have chosen to do so, but are fit and able to work, then it is arguable that they are not entitled to sick pay. The Government has however indicated that employees who are isolating as a result of adhering to their advice, or advice from a GP / NHS 111, will be eligible for Statutory Sick Pay. For some businesses, Statutory Sick Pay can be recovered for up to 14 days where covid19 related. Further details are pending. This may also be a time to review your occupational sick pay scheme and how that might apply in the context of this situation.

HOLIDAY – as a means by which to mitigate the financial impact this situation will have on your employees, there is the option to ask employees to consider utilising some of their holiday entitlement during periods when they might otherwise be laid off without pay. You would need to consider what accrued entitlement exists and again ideally obtain the agreement of the employees concerned.

OFFERS OF EMPLOYMENT – in addition to a recruitment freeze, you may also want to consider whether to withdraw offers of employment or alternatively defer the start date. This is important in the context of redundancy, as a business is under a duty to consider whether it has any suitable alternative employment. If offers have been made, but not accepted, these can be withdrawn with minimal implications. If offers have been made and accepted, they can still be rescinded albeit with the potential for a damages claim, arguably limited to the period of notice that would have applied once their employment had commenced.

In our experience, a key issue in respect of the above is regularly communicating with your employees and being open about the reason for the measures you are introducing.

As you will appreciate, whilst we have outlined options and some of the legal implications, this note does not constitute legal advice as each situation will be different and commercial considerations will no doubt dictate what you as a business ultimately decide to do.

Sherrards is here to support you should you need specific assistance.

Click here to contact Mark Fellows, to find out more. 

“IR35” – it could almost be mistaken for a character from the latest Star Wars film, and whilst IR35 is not a new concept, it will be hitting the private sector in 2021*. If your business currently engages consultants or contractors operating as part of a personal service company, this is a premiere that you ought not to miss.

What is “IR35”

“IR35” refers to existing legislation that was designed to close a tax loophole whereby an individual could in theory, work as if an employee of an end user client but seek to avoid being subject to PAYE deductions by supplying their services through an intermediary, usually a personal services company. Like the Hokey Cokey, you were either ‘in’ or ‘out’. If inside IR35, you were caught and the individual should be paid via PAYE. If outside of IR35, then the arrangement was regarded as genuine self-employment for tax purposes.

So, what has changed?

Firstly, the old regime required the consultant / contractor to determine their own status for tax purposes, and they generally bore the risk of getting this wrong. With effect from April 2021, and in respect of the private sector, the onus passes to the entity engaging the individual, which in many cases will be the end user who receives the services. The engaging entity will therefore have to satisfy themselves as to whether the consultant / contractor is inside or outside of IR35.

In addition, if the consultant / contractor is inside IR35, and the new rules applies to the entity engaging the individual (see below), then in principle that entity becomes responsible for accounting to HMRC for tax and national insurance in respect of the payments made to that individual. The situation becomes more complicated if a recruitment business is involved, where it supplies the individual to the end user entity and pays the individual directly.

This change of approach already applies to the public sector and insofar as the private sector is concerned, it only applies to engaging entities that are not “small”.

A “small” company is one which satisfies two or more of the following requirements:

• Its annual turnover is not more than £10.2 million.
• Its balance sheet total is not more than £5.1 million.
• It has not more than 50 employees.

How do you know whether a consultant / contractor is ‘in’ or ‘outside’ of IR35?

HMRC have an online questionnaire, known as CEST, which is designed to give you a definitive answer to this conundrum. If the questions are answered honestly, then it can be relied upon in the event of a later dispute. However, some of the questions are difficult to answer, and a possible outcome of CEST is that it is unable to make a determination on the matter!

As it happens, the test under IR35 is similar to (but not the same as) that which applies in employment law, in determining an individual’s employment status. This means that particular focus will be placed on the extent to which the end user controls the consultant / contractor, the extent to which the services need to be performed personally by the consultant / contractor (as opposed to having a right to substitute) and the extent to which mutuality of obligation exists between the parties. It also means that the label that the parties attach to the arrangement is far from determinative.

What should you do?

If you engage consultants / contractors, we would recommend you take the following steps:

• Review those arrangements and consider utilising CEST;
• Ensure that you have a written contract that formalises the arrangement, and is drafted to best protect your business;
• Take specialist advice – your accountant on the tax side, and an employment lawyer on the legal side.

It follows that if you decide that somebody is ‘inside’ IR35 and will be treated as an employee for tax purposes, that equally will make it more likely they will be regarded as an employee for legal purposes, and that carries its own separate implications.

*As of 17th March 2020, the Government announced the delayed introduction of IR35 to the private sector to April 2021.

For further information, please contact Mark Fellows. 

With the Coronavirus Job Retention Scheme (the Furlough scheme to you and me) coming to an end on 30^th September 2021 (*as it stands…Rishi, any update?), the vaccination program in full flow, the children happily returning to school (absent the dreaded ‘bubbles’) and staff going back to work, you would be forgiven for thinking that normality beckons.

Whilst this is all a positive step forward for the economy, and frankly much needed, it will inevitably open up a number of additional considerations for employers given what is still a challenging period. We outline below some things to consider:

• The End of Furlough – decisions will need to be made about those employees on furlough. If the employer can bring them back, then those conversations should be happening imminently. If sadly there is a need to consider making redundancies, again the process should be instigated now to allow for the necessary period of consultation. A common misconception at the moment is that the redundancy is a given because the employee has been on furlough – that does not follow, and it is still necessary to meet the legal test that the role is no longer required.

• Risk Assessment – for the workplace, it is hugely important that existing risk assessments are revisited, and new assessments undertaken considering the guidance, particularly in respect of social distancing and the new isolation rules. What the risk assessment should cover will vary depending on the nature of your work and work environment. The HSE have a handy template and guidance for Covid risk assessments, click here for the template. Employers can also use the Governments online tool, click here  for more information.

• Don’t mention the…Vaccination – well, you can, because of course the new isolation rules take into account whether somebody has been vaccinated. However, just be wary that this is likely to be a sensitive and potentially controversial issue. There is already a challenge to new legislation making the vaccination compulsory for those who work in care homes and in other sectors, some employers are applying their own conditions and requirements about staff being double jabbed. For us employment lawyers this whole area makes us twitch, considering the potential for discrimination claims right through to GDPR compliance. It is an entire topic in itself and is one to discuss with your twitchy employment lawyer.

• It is good to talk – the need for communication has never been more important, as we enter a new phase of safe working practices, hybrid working and that awkward moment when you don’t know if to shake a hand, fist pump, elbow bash or even go completely off piste and embrace. Keep staff in the loop not just about the changes being implemented within the workplace, but why they are being implemented.

There is no “one size fits all” solution to these matters and that is not us simply rolling out that old legal cliché. It is without doubt a matter for each employer to consider, in the context of their business and the staff they employ.

To find out more, please contact Mark Fellows.