@deliver_els, Author at Employment Law Services (ELS) LTD

Managing Staff Absence Effectively & Legally

Posted on 14 July 202231 May 2023 by @deliver_els

We look at the issues arising from both short-term and long-term absences and the steps employers can take to manage staff absence effectively and legally.

In the UK, the total economic cost of sickness absence, lost productivity through worklessness, and health-related productivity losses, are estimated to be over £100bn annually.

Incapacity for work is generally understood to mean that a person is not fit, through illness or injury, to perform their duties. There is a statutory definition of incapacity, for the purposes of statutory sick pay (SSP).

The main issues an employer will need to consider when dealing with sick employees include:

Entitlement to SSP and/or contractual sick pay, including deciding whether qualifying conditions have been met. Many employers will have sickness policies which set out relevant qualifying conditions.
The reason for absence, and whether it is genuine. This will entail ascertaining the true medical position and may involve seeking a medical report.
Whether the incapacity has been caused by workplace factors such as stress, bullying or an accident at work.
Whether the absence coincides with any periods of holiday.
Whether the absence is related to a disability and whether any reasonable adjustments may need to be made.
Considering whether the employee may be eligible for permanent health insurance or ill-health retirement.
Whether dismissal is appropriate and, if so, ensuring a fair process is followed.

Having an effective policy in place will help employers to deal with absences consistently and effectively as well as putting employees on notice as to the standards of attendance and reporting that the employer expects from them. This in turn will help reduce legal risk.

Sickness Absence Reporting Requirements

Employers should ensure that they set out the reporting requirements for staff who are unable to attend work due to illness or injury. Employers will have differing views on the time by which absence must be reported. In many workplaces it may not be practicable to notify anyone earlier than the normal opening time at that workplace. However, where staff work shifts, the workplace may be open long before the employee’s shift starts (or even open 24 hours a day) in which case the employer may require sickness to be notified at least an hour in advance of the start of a shift, so that cover can be arranged if necessary.

Evidence of Incapacity

For the purposes of company sick pay, an employer is free to choose what evidence of incapacity it requires. Many employers require self-certification for up to seven days’ absence, and a medical certificate thereafter, as this is in line with the statutory sick pay (SSP) requirements. For SSP purposes, an employer cannot require a doctor’s certificate for the first seven days of sickness absence. Whether they do so after that is largely up to the employer, but most do. Strictly speaking, employees need not self-certify absence of less than four days for SSP purposes, as SSP is not paid for the first three days of absence. However, an employer may still wish to ask for self-certification of shorter periods as part of its absence management strategy.

Employers can in theory require a doctor’s certificate for all absences as a pre-requisite of company sick pay, although this is rare. Many employers require self-certification. (See Practice note, Managing sickness absence: Evidence of incapacity.)

The “Statement of Fitness to Work” (or “fit note”, which replaced the old-style sick note in April 2010) enables GPs to certify that an employee is “not fit for work” or that they “may be fit for work” taking account of advice that the GP then sets out. This may include recommendations such as a phased return to work, altered hours or duties, or other adaptations. When presented with these statements, employers should generally hold a return-to-work interview to discuss any changes that may be needed.

Return to Work Interviews

Return-to-work interviews give an employer the opportunity to welcome a member of staff back to work. In addition:

They provide the opportunity to confirm the details of the absence for record-keeping purposes.
The provide an opportunity to discuss any changes that might be needed to facilitate a return to work.
In the case of someone who has had several short, intermittent absences (and who is unlikely to be on a phased return-to-work programme), they provide the opportunity to establish whether there may be any underlying health or other (for example, disciplinary) issues that the employer should investigate further.

An effective sickness absence policy can fulfil several purposes. First, it sets out the employer’s sick pay arrangements including the rates of pay and the requirements for notifying and providing evidence of incapacity. It is a legal requirement that terms and conditions relating to incapacity for work due to sickness or injury, including any provision for sick pay, are given to the employee in writing. This can be done either in the “principal statement” of employment terms given under section 1 of the Employment Rights Act 1996 (ERA 1996), or in a reasonably accessible document such as a staff handbook, referred to in the statement. (Section 1(4)(d)(ii), ERA 1996.).

Second, the policy provides a procedure for managing longer-term incapacity including obtaining medical evidence, considering alternatives for rehabilitating the employee into work (including any reasonable adjustments for disability under the Equality Act 2010), and ultimately providing a fair procedure for dismissal where this is the appropriate course of action.

Managing Long-term or Persistent Absence

The purpose of a sickness absence meetings procedure is for employers to address issues caused by illness, as well as staff being away from and not contributing to its business. Issues are likely to arise when it is believed that illness is not genuine or where repeated periods of absence or long-term absence are impacting on colleagues, departments, and the employer’s business.

The procedure needs sufficient flexibility to deal with each individual case. Employers should consider adjourning any meeting in the procedure to consider any new matters if they arise. As soon as a case is identified as a conduct rather than an ill-health issue, it should be transferred and dealt with under the employer’s disciplinary procedure.

While it would seem probable that the right to be accompanied does not extend to meetings which are not disciplinary in nature, including those relating to ill-health, providing the right to be accompanied and adding the discretion for the employer to exercise flexibility would be prudent. Whether, and to what extent, discretion is exercised can only be decided on a case-by-case basis.

Medical Examinations

Medical advice can:

Establish the reason for absence and whether any illness is genuine.
Indicate the likely length of continued absence.
Assess the effect of an illness on an employee’s ability to do their job, what they are capable of and what, if any, adjustments can be made to help them to return to work.
Assist in arranging a phased return to work from long-term sickness absence.
Establish whether an employee is likely to qualify for any employment benefits, such as permanent health insurance (PHI) or early ill-health retirement.

Highlighting the potential to ask for medical advice may put off employees who are minded to “fake” illness to take time off work. It also draws attention to the need to co-operate with the employer’s attempts to understand ill health absence.

The steps an employer must take when requesting a medical report (whether from a general practitioner, a specialist consultant, a company doctor, or an occupational health specialist), must take the impact of the Access to Medical Reports Act 1988 and data protection legislation into consideration.

Stage One: Initial Sickness Absence Meeting

The purposes of the first meeting will depend on the type of sickness absence being investigated and whether any potential conduct issues have arisen in the individual case.

Prior to convening the initial sickness absence meeting, full details of the absence record along with reasons should be made available to all participants. The employee should be made aware of the date and location of the formal meeting and the reasons for it. In addition, they should be informed of the right to be accompanied by a work colleague or trade union representative at the meeting.

In cases of long-term sickness absence, the central issues will be the nature of the employee’s illness, how much longer they are likely to be away and whether they are going to be able to return to their job. It may be too early to predict a return date and it may be decided to obtain medical advice (either from the employee’s and/or the employer’s medical advisers) on both this and the employee’s ability to resume their job/adjustments at this stage.

In cases of intermittent absences, the issue may be the cause of the employee’s absences and the likelihood of recurrence. An employer may need to explain the impact that the absences are having on the employee’s colleagues and on the employer’s business. It may be decided to obtain medical evidence on the nature of the employee’s illness, the likelihood of recurrence and any steps that can be taken to reduce recurrence.

A meeting can end with a summary of matters discussed and action that it has been agreed will be taken. This can then be confirmed in writing as detailed under the procedure.

Stage Two: Second Sickness Absence Meeting

After the first stage of the sickness absence procedure, the second stage provides for further meetings with a view to resolving difficulties caused by short-term intermittent absences and the return to work of an employee on long-term sickness absence.

The second stage of the procedure should be designed to be flexible, accommodating the individual characteristics of each case. The suggested purposes of the further meetings in the procedure can act as a checklist for employers, to ensure that they are considering those matters relevant to a fair and non-discriminatory dismissal (should it ultimately terminate the employee’s employment).

Stage Three: Final Sickness Absence Meeting

The third stage of the procedure is reached when meetings under the second stage have not achieved their intended aim (overseeing a long-term absentee’s return to work or the eradication of sporadic absences).

This meeting should provide the employer with an opportunity to review the action it has taken to achieve its aim, why they have not worked and whether there is any reasonable prospect that waiting any further will be productive. The meeting also provides the employee with the opportunity to put forward anything that they consider the employer should have done.

Otherwise, the final meeting is likely to result in the termination of the employee’s employment. The employer should check that all prior warnings that it is relying on in making the decision to dismiss are valid. Failure to do so may result in a dismissal being unfair.

Appeals

If the decision is taken to dismiss the employee, they must be informed of their right to appeal against this decision.

Do You Need Assistance to Manage Sickness Absence Effectively and Legally?

The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers on their legal obligations to ensure compliance. If you have any queries about your legal obligations you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.

Getting Hybrid Working Right – A Guide for Employers

Posted on 6 July 202231 May 2023 by @deliver_els

Hybrid working is on the rise across the UK following the Covid-19 pandemic but are employers ready to address the range of legal and practical issues it creates?

What is Hybrid Working?

Typical hybrid work arrangements allow employees the flexibility to alternate between working in the office or remotely giving them the independence to choose how they can work best on any given day. Hybrid workers may work exclusively at home (on a full-time or part-time basis), divide their working time between home and their employers’ premises, or may work at home on an occasional basis. They may be mobile workers who use their home as an administrative base, or they might work away from the employers’ premises in purpose-designed centres or local hubs.

The Covid-19 pandemic certainly acted as a catalyst for hybrid working, forcing many employers to pivot to an alternative working model to continue trading through the lockdown but the trend towards flexible working continues despite the removal of lockdown restrictions.

In October 2021, we confirmed that the UK Government had published its proposals to reform the existing flexible working legislation to make the right to request flexible working a day one right and the government’s flexible working taskforce has since recommended that flexible working should be the default position for all workers post-pandemic, so it seems clear that hybrid working is here to stay.

Undoubtedly, there has been a steady increase in the number of hybrid workers who spend part of their time working from their workplace and part of their time working from a remote location, such as their home, and the results of a recent Acas survey on hybrid working show that 60% of employers surveyed have seen hybrid working increase following the COVID-19 pandemic. In addition, 52% have seen an increase in staff working from home full-time.

Hybrid Working: Considerations for Employers

The term “homeworker” is not defined in the Employment Rights Act 1996 (ERA 1996) but as the move towards more flexible working continues and the demand for homeworking or hybrid working increases, many employers will need to address a broad range of practical and legal issues. Key considerations for employers include:

The contractual and policy provisions, such as:

Content of section 1 and section 4 statements
Changing terms and conditions of employment
Hours of work
Salary and benefits
Expenses
Confidentiality
Equipment, data security and monitoring
Right to enter
Trial periods and a right to revert

The legal and practical considerations, including:

Reporting and appraisals
Data protection
Health & safety
Computers and display screen equipment
Insurance
Tax

Hybrid Working: Issues Employers Should Address

Employers introducing hybrid working arrangements or entering homeworking arrangements will need to address a variety of legal and practical issues, including:

Considering the need to tailor standard employment contract clauses to encompass homeworking or hybrid working.
Introducing new policies and reviewing existing policies to set out the arrangements and conditions for homeworking or hybrid working.
Taking appropriate measures to protect confidential information and personal data.
Reviewing the health and safety implications of the arrangements, including carrying out a risk assessment.
Deciding whether any special equipment should be provided.
Considering whether any special planning or insurance arrangements are required.
Deciding what arrangements should be made for the management and supervision of certain types of homeworkers and hybrid workers.
Identifying the tax consequences of homeworking and hybrid working.

Do You Need Assistance to Introduce Hybrid and/or Homeworking?

Long Covid IS a Disability Says the Employment Tribunal

Posted on 29 June 202231 May 2023 by @deliver_els

An employment tribunal has determined that an employee with long COVID symptoms was disabled within the meaning of section 6 of the Equality Act 2010 (EqA 2010).

At the beginning of June and with a suspected 1.8 mission people in the UK estimated to be experiencing Long Covid Symptoms, we considered whether Long Covid is a disability under the Equality Act. At that time the likely answer to this question was both unclear and untested but following a recent ruling at the Employment Tribunal, the answer in this case at least appears to be a clear YES.

Background of the Long Covid Case

From April 2001, Mr Burke was employed as a caretaker by Turning Point Scotland, a charity providing a range of services for individuals facing learning disabilities, alcohol and other drug use, mental health, autism, early onset dementia and Huntington’s disease.

In November 2020, he tested positive for COVID-19 initially with only mild, flu like symptoms but after isolating, he developed severe headaches and fatigue. Because of these symptoms, Mr Burke had to lie down to recover after waking, showering and dressing and he struggled standing for long periods. He could not undertake household activities, like cooking, ironing and shopping and experienced joint pain, a loss of appetite, a reduced ability to concentrate and difficulties sleeping. He also felt unable to socialise.

From January 2022, his health began to improve. However, the symptoms were unpredictable, and he would experience improvement only to suffer from fatigue, exhaustion and sleep disruption that continued to affect his day-to-day activities.

Mr Burke remained off work from November 2020 and fit notes provided by his GP referred to the effects of long COVID and post-viral fatigue syndrome. Two occupational health reports were obtained by Turning Point Scotland, one in April 2021 and the other in June 2021. Both reports concluded that it was “unlikely” that the disability provisions of the Equality Act 2010 would apply to Burke and that he was fit enough to return to work. Despite this, relapses of his symptoms (in particular, fatigue) meant that he did not return to work and having exhausted his entitlement to sick pay at some time in June 2021, he was eventually dismissed in August 2021 because of ill health.

Mr Burke subsequently brought disability discrimination claims, among other claims. Turning Point Scotland sought to have the disability claim struck out on the basis that his condition did not constitute a disability under the Equality Act and a preliminary hearing was held to determine this point.

The Employment Tribunal Judgement

At the preliminary hearing, the tribunal had to determine whether Mr Burke was disabled during the relevant period. It concluded that he was.

It considered that he was not exaggerating his symptoms and had a physical impairment (post-viral fatigue syndrome caused by COVID-19), noting that there was no incentive for him to remain off work when he had exhausted sick pay. The physical impairment had an adverse effect on his ability to carry out normal day-to-day activities and this effect was more than minor or trivial and long term because it “could well” be that it would last for a period of 12 months when viewed from the dismissal date (the last alleged discriminatory act).

The tribunal noted that the employer’s own view was that there was no date when a return to work seemed likely.

Case: Burke v Turning Point Scotland [2022] 5 WLUK 490 (27 May 2022) (Employment Judge Young).

What Can Employers Do to Manage Absence in Suspected Cases of Long COVID?

In consideration of both the EHRC statement and the established definition of a disability under the EqA 2010, Employers should adopt a cautious approach when managing cases of suspected Long COVID that may be considered a disability under the EqA 2010.

Key steps Employers should take include:

Investigate the cause and likely length of absence: Employers should establish the reason for absence and consider whether an individual is likely to return to work in the foreseeable future.
Obtain medical evidence: Depending on the illness in question, employers should consider requesting that the employee attends an examination with an independent specialist doctor or occupational health expert. The employer will normally bear the cost of an examination where it has been undertaken at their request. Information from an independent specialist who has not previously been responsible for the employee may be seen as more reliable than information from an employee’s GP.
Meet and consulting with the employee regarding medical evidence. If the employer has obtained a medical report, it should meet the employee to discuss the report and consult with the employee before taking any action on the basis of its recommendations. Consultation involves an ongoing exchange of information and views concerning the employee’s illness between the parties and full evaluation of any available medical evidence. This is especially important where there is any conflict between the evidence put forward by the employee and that obtained by the employer.
Consider reasonable adjustments or alternative employment. In consultation with the individual, the employer should consider whether there are any reasonable adjustments open to the employer to enable the individual to return to work in some capacity in the foreseeable future. Employers should also consider if there is another job within the business that might be more suitable for the employee. Any discussion of redeployment should be approached sensitively, as an employee may see it as a criticism of their abilities, or a demotion. If the job is in another office the employer will need to consider any relocation arrangements. Reasonable adjustments may also need to be made to the procedure itself. For example, meetings could take place at the employee’s home or other convenient location, the employee might require more notice of meetings than provided for by the employer’s policy or more time to read material and prepare for meetings.
Dismissal and its alternatives. Where it looks as if the employee will not be able to return to work, or the prognosis is such that it cannot be said when (if at all) the employee might be fit, the employer will need to consider the situation carefully. There may be options to explore other than the obvious route of dismissal on capability grounds. It is important to consider these options both from the point of view of unfair dismissal law and because there may be contractual entitlements which arise and failure to explore them may give rise to claims for breach of contract.

Do You Need Assistance with a Long-Term Absence Issue?

Is Long COVID a Disability Under the Equality Act?

Posted on 6 June 202224 July 2024 by @deliver_els

1.8 million people in the UK are estimated to be experiencing long COVID symptoms by the latest Office of National Statistics (ONS) COVID-19 Infection Survey, but how many are likely to be considered to be disabled under the Equality Act 2010?

According to the latest Office of National Statistics (ONS) COVID-19 Infection Survey, based on self-reported long COVID symptoms, it is estimated that 1.8 million people in the UK are experiencing long COVID symptoms.

What is Long Covid?

Where COVID symptoms persist for more than 4 weeks, someone will be diagnosed with ongoing symptomatic COVID but where symptoms persist for more than 12 weeks and cannot be explained by any other conditions, they will be diagnosed with Post-COVID Syndrome or “Long COVID”. Developing Long COVID doesn’t appear to be linked with how ill someone is when they first get COVID-19 and people who had mild symptoms at first can still have long-term problems.

The most common symptoms of Long COVID include:

extreme tiredness (fatigue)
shortness of breath
chest pain or tightness
problems with memory and concentration (“brain fog”)
difficulty sleeping (insomnia)
heart palpitations
dizziness
pins and needles
joint pain
depression and anxiety
tinnitus, earaches
feeling sick, diarrhoea, stomach aches, loss of appetite
a high temperature, cough, headaches, sore throat, changes to sense of smell or taste
rashes

Is Long COVID a Disability?

The short answer is: Maybe.

This answer will provide very little comfort for employers managing absences related to suspected cases of Long COVID and the absence of a test capable of diagnosing Long COVID and varying recovery times complicates matters even further.

In a tweet posted on 7May, the EHRC stated that “without case law or scientific consensus, the EHRC does not recommend that “Long COVID” be treated as a disability”. Unsurprisingly, COVID support groups and unions expressed concern at this approach and, the following day, the EHRC published a clarificatory statement, in which it said that, although long COVID is not currently a condition which automatically constitutes a disability under the Equality Act 2010 (a deemed disability), if a person’s symptoms have a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, long COVID might amount to a disability, which would be determined by an employment tribunal or court in the usual way.

The Equality Act 2010 Definition of a Disability

In cases that do not involve deemed disabilities or excluded conditions, the question of whether an individual is disabled will be answered with reference to the all-important statutory definition in section 6(1), EqA 2010, which says:

“A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.

Claims a Sick Employee Might Bring

The EqA 2010 prohibits direct disability discrimination indirect disability discrimination, discrimination arising from disability, disability harassment and victimisation in the workplace. It also puts employers under a duty to make reasonable adjustments for disabled employees and job applicants who are placed at a substantial disadvantage because of their disabilities.

There are a number of different claims that might arise out of an employee’s sickness, depending on whether the employee is disabled under the Equality Act 2010 and whether the employer ultimately decides to dismiss the employee by reason of their incapacity.

What Can Employers Do to Manage Absence in Suspected Cases of Long COVID?

Key steps Employers should take include:

Investigate the cause and likely length of absence: Employers should establish the reason for absence and consider whether an individual is likely to return to work in the foreseeable future.
Obtain medical evidence: Depending on the illness in question, employers should consider requesting that the employee attends an examination with an independent specialist doctor or occupational health expert. The employer will normally bear the cost of an examination where it has been undertaken at their request. Information from an independent specialist who has not previously been responsible for the employee may be seen as more reliable than information from an employee’s GP.
Meet and consulting with the employee regarding medical evidence. If the employer has obtained a medical report, it should meet the employee to discuss the report and consult with the employee before taking any action on the basis of its recommendations. Consultation involves an ongoing exchange of information and views concerning the employee’s illness between the parties and full evaluation of any available medical evidence. This is especially important where there is any conflict between the evidence put forward by the employee and that obtained by the employer.
Consider reasonable adjustments or alternative employment. In consultation with the individual, the employer should consider whether there are any reasonable adjustments open to the employer to enable the individual to return to work in some capacity in the foreseeable future. Employers should also consider if there is another job within the business that might be more suitable for the employee. Any discussion of redeployment should be approached sensitively, as an employee may see it as a criticism of their abilities, or a demotion. If the job is in another office the employer will need to consider any relocation arrangements. Reasonable adjustments may also need to be made to the procedure itself. For example, meetings could take place at the employee’s home or other convenient location, the employee might require more notice of meetings than provided for by the employer’s policy or more time to read material and prepare for meetings.
Dismissal and its alternatives. Where it looks as if the employee will not be able to return to work, or the prognosis is such that it cannot be said when (if at all) the employee might be fit, the employer will need to consider the situation carefully. There may be options to explore other than the obvious route of dismissal on capability grounds. It is important to consider these options both from the point of view of unfair dismissal law and because there may be contractual entitlements which arise and failure to explore them may give rise to claims for breach of contract.

Do You Need Assistance with a Long-Term Absence Issue?

Bank Holiday Office Closure – Platinum Jubilee Celebrations

Posted on 31 May 202230 May 2023 by @deliver_els

On the occasion of Her Majesty The Queen’s Platinum Jubilee, the offices of ELS will be closed on Thursday 2 June and Friday 3 June 2022 and shall reopen at 9.00am on Monday 6 June 2022.

Whatever your plans might be for this extended Bank Holiday weekend, we wish you well!

Calls for Menstrual Leave and Better Workplace Support in the UK

Posted on 17 May 202230 May 2023 by @deliver_els

Following approval by Spanish politicians of a draft Bill to provide three days of paid leave for people with severe period pain, UK menstruation and period pain charities have called on the UK government to introduce menstruation leave.

Currently under UK law, those who experience period pain should use their sick leave for time off work. Period charity, Bloody Good Period, suggest more is needed to support those who have painful periods. According to the charity, 73% of people who menstruate have struggled to complete their work as they would like due to their periods and for 79% of respondents, this is due to pain. In addition to menstrual leave, they call on the government to “improve communications, culture and broader policy around periods in the workplace” and ensure employers have a better understanding of the range of challenging period symptoms.

Endometriosis UK supports people who have the condition where tissue similar to the lining of the womb grows in other places, such as the ovaries. The charity has said that the culture of “squeamishness and silence around menstrual health” must be challenged and that those experiencing pain which affects their work should be able to expect that they will be listened to, believed and supported.

Health and Safety Executive Publishes Revised Advice for Workplaces

Posted on 12 April 202231 May 2023 by @deliver_els

On 31 March 2022, the Health and Safety Executive (HSE) published revised advice to workplaces regarding COVID-19. We take a look at the revised guidance and other steps employers can take to reduce the spread of respiratory infections in the workplace.

The revised advice follows the relaxation of COVID-19-related measures across the UK. The advice notes that COVID-19 will remain a public health issue and that guidance for workplaces is being replaced with public health advice.

For the public health principles for reducing the spread of respiratory infection in workplaces and Employers are encouraged to check the relevant position and timescales for the nation they are operating in:

General Advice for Employers

By way of general advice, employers should note the following:

The HSE no longer requires every business to consider COVID-19 in their risk assessments or to have specific COVID-19-related measures in place. There is, however, a requirement to protect those who will come into contact with COVID-19 due to their work activity (for example, if they are researching COVID-19 in laboratories). In these cases, employers must still complete a relevant risk assessment and implement control measures. There is currently a specific public health requirement for a COVID-19 risk assessment and reasonable measures applicable to employers in Wales, but this is not regulated by the HSE.
Employers must continue, as always, to comply with general health and safety law. Although the HSE will no longer require COVID-19 control measures, employers must continue to consult workers and their representatives on any changes they make that might affect health and safety.
Employers should continue to have regard to available guidance on protecting those who may be at higher risk from COVID-19 and on vaccinations, including advice from public health bodies and other government departments.

The advice is due to be reviewed by the HSE again on 30 April 2022.

By way of general advice on reducing the spread of respiratory infections, such as COVID-19 and flu, in the workplace, employers should consider the following:

In addition to recognising symptoms, employers may wish to consider how best to support and enable their workforce to follow the latest public health guidance.
To reduce the spread of infections, employers should maintain clean working environments, encourage and enable staff to get vaccinated and consider ventilation (see HSE guidance Ventilation in the workplace). There is no requirement to report workplace outbreaks of respiratory infections to local public health teams.
The requirement for every employer to explicitly consider COVID-19 in their health and safety risk assessment has been removed. Those who work with COVID-19, such as laboratories, must continue to do so. Otherwise, employers may choose to do so.
To control occupational health and safety risks, employers should continue to comply with the requirements for cleaning, ventilation and welfare facilities in the Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992/3004) or, with regard to health and safety on construction sites, the Construction (Design and Management) Regulations 2015 (SI 2015/51). Employers have a duty to consult with their employees, or their representatives, on health and safety matters.
Employers may wish to consider the needs of employees at greater risk from COVID-19, including those whose immune system means they are at higher risk of serious illness from COVID-19.

Do You Need Assistance with an Employment Issue?

Everything Employers Need to Know About Redundancy

Posted on 30 March 202231 May 2023 by @deliver_els

The legal obligations UK employers face when considering making redundancies and the significant legal implications of getting it wrong was brought into sharp focus recently in the P&O Ferries case. We look at the various steps UK employers need to take to make redundancies fairly and legally.

The shocking decision by P&O to dismiss 800 UK workers with immediate effect last week sent shockwaves across the UK, with the media and politicians of all parties describing P&O’s actions as “shameful” and “illegal”.

P&O have since stated that they had no choice and were forced to act swiftly in the way that they did, to protect their business and whilst swift action may have been necessary, the fact remains that they completely disregarded redundancy employment laws, not least their legal duty to collectively consult and to notify the Secretary of State of the proposed redundancies at least 45 days before the first dismissal took effect.

The consequences of P&O’s actions could mean that P&O face claims at the employment tribunal and costly awards for unfair dismissal, in addition to Protective Awards for failing to consult, on a massive scale.

What is Redundancy?

The statutory definition of “redundancy” encompasses three types of situations: business closure, workplace closure, and reduction of workforce. The dismissal of an employee will be by reason of redundancy if it is “wholly or mainly attributable to” the employer.

There are a variety of circumstances that can give rise to a redundancy situation, including:

A diminished need for employees to do work of a particular kind.
Changes to terms and conditions where more than 20 employees are affected, and dismissal is a possibility.
Reduction in the numbers of employees doing a particular role.
Removal of a role or group of roles.
Closure of a department, site or entire business.

It is important that employers don’t confuse legitimate redundancy circumstances with other issues which do not give rise to a redundancy situation.

Examples of situations that do not give rise to redundancy include:

Issues of performance, conduct.
Where an external company could do the work better or more cheaply.
The same work could be done under different terms and conditions e.g., less qualified.
Where the employee is required to do additional work, but it remains “work of the same particular kind” and they refuse to do that.
Transfers of employment.

What Every Employer Needs to Know About Redundancies

Many employers find dealing with redundancy to be an unnerving prospect and affected employees often find it very stressful, but to avoid potential problems employers must follow the correct procedures and apply them fairly to avoid facing potentially costly claims at the employment tribunal.

To undertake a redundancy exercise, employers need to know:

What “redundancy” means.
How to deal fairly with individuals being considered for redundancy to minimise claims for unfair dismissal.
What the alternatives to redundancy are, including lay off and short time working.
How to determine an employee’s entitlement to a statutory or contractual redundancy payment.
When they must inform and consult collectively (with trade unions or employee representatives) about redundancy.

It is important that employers carefully consider their situation before deciding to progress with redundancies. Key points to consider include:

What are your reasons for making a particular person/group/role redundant?

Are these reasons likely to impact the business permanently or are they temporary?

How many redundancies might be necessary?

How quickly do these issues need to be addressed?

How much would redundancies cost?

What alternatives might be possible?

Employers have a legal obligation to consider how they might avoid compulsory redundancies. Some of the alternatives they should consider include:

Short time working and/or temporary layoffs.
Voluntary redundancy.
Temporary reduction in pay or hours.
Permanent reduction in pay or hours.
Redeploying to alternative roles and providing retraining (if reasonable).
Dismissing short service employees (where no risk and T&Cs allow).
Reducing/removing benefits.
Stopping/limiting overtime.

Issues to Address in a Redundancy Situation

Establish there is a genuine redundancy situation.
Consider pool and criteria for selection; list any alternative vacancies.
Consult with the affected employees, collectively if making 20+ redundant.
Notify the Secretary of State if making 20 or more redundancies.
Score affected employees using established criteria.
Consult individually with those provisionally selected for redundancy.
Follow up on feedback from consultations.
Meet with affected employees to confirm the outcome.

Other considerations include:

Is there a job that would be a suitable alternative within any associated business or alternative sites?
Does ‘Bumping’ apply? This is where an employee not previously at risk is put at risk to ‘save’ other employees.
Are any affected employees pregnant?
Are any affected employees on maternity leave?
Are any senior roles affected?

Employers will need to proceed with caution if any of the above scenarios apply.

Redundancy Pool & Criteria for Selection

Identify the ‘pool’ for selection

Make selected pool wider, not narrower.
Identify appropriate skill set for what is needed in the future.
Apply selection criteria.

Selection Criteria

Evidence based.
Non-discriminatory.

Notifying the Secretary of State

Employers must notify the Secretary of State that it is planning to make collective redundancies:

At least 30 days before the first dismissal takes effect (in other words, the date on which notice is to expire or employment is to end) where the employer proposes to dismiss 20 to 99 employees within a 90-day period, or
At least 45 days before the first dismissal takes effect where the employer proposes to dismiss 100 or more employees within a 90-day period.
The notification must be in writing (either by letter or on a form HR1) and a copy must be provided to the employee representatives. The employees cannot be given notice of dismissal.

Employee Consultation

Must be meaningful, with a view to getting agreement, not a means to an end.
Includes those off on long term sick leave, family friendly leave, fixed term (funding).
With union or collective consultation body (if authorised to consult on such matters).
Usually initial group/then individual.
Letters at each stage and 48 hours’ notice between meeting and the right to be accompanied.
Minutes should be taken at each meeting.

Statutory Redundancy Pay

A statutory redundancy payment is payable to employees with 2+ years’ service.

Age weighting: half a week’s pay for each full year under 22, one week’s pay for each full year between 22 and under 41, one and half week’s pay for each full year 41 or over.
Length of service is capped at 20 years.
Max gross salary £544.
Max £16,320.
Notice Pay is the greater of contractual or statutory.
Statutory notice is one week for each complete year of service after one months’ service up to a maximum 12 weeks’ notice.

Options for notice period:

Work out notice.
Paid in lieu of notice (PILON).
Garden leave.

Where Most Employers Get Redundancies Wrong

There are many steps involved in making lawful redundancies that employers can miss, some of the more common being the following:

Not establishing the contractual position.
Not identifying the right pool.
Not using any/appropriate selection criteria.
Not consulting properly (individually or collectively).

The Implications of getting it wrong can include employment tribunal claims for:

Unfair dismissal
Not genuine redundancy (the real reason for dismissal).
Unfair process.
Unfair selection.
Unfair scoring.

The maximum compensatory award for unfair dismissal is currently £88,519 but where discrimination has been a factor, awards for compensation are unlimited.

A Summary of the Redundancy Process

Where less than 20 employees are to be made redundant at one establishment within 90 days, the approach can differ:

No risk of discrimination or under 2 years’ service:

If under 2 years’ service, and no risk of discrimination, a shorter process can be followed if the contract/handbook allow that.
No entitlement to redundancy pay, just notice pay.

Risk of discrimination or over 2 years’ service:

A minimum of three meetings (at risk, how can we avoid, if no ideas, dismissal).
If pools of candidates, objective criteria will need to be used relating to that particular role.
Scoring needs to be fairly done.
Right of appeal.

Where 20 or more employees to be made redundant at one establishment within 90 days:

Need to collectively consult with appropriate representatives.
Representatives are recognised trade union or employee representatives elected through a ballot.
Must provide prescribed information via HR1 to BEIS.
Must consult for at least 30 days before the first dismissal or for 100 days if more than 100 employees.
Right of appeal.
Protective award for a failure to consult = 90 days gross pay.

Conclusion

A redundancy dismissal is likely to be unfair unless the employer:

Establishes there is a genuine redundancy situation.
Identifies an appropriate pool for selection.
Consults with individuals in the pool.
Applies objective selection criteria to those in the pool.
Considers suitable alternative employment where appropriate, subject to a trial period.

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Regulations revoke statutory requirement for mandatory vaccination for health and social care workers in England

Posted on 24 March 202231 May 2023 by @deliver_els

On 1 March 2022, the government confirmed that it would introduce regulations revoking the statutory requirements for vaccination as a condition of deployment in health and social care settings in England.

On 15 March 2022, the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No 3) Regulations 2022 (SI 2022/206) came into force. These revoke:

The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (SI 2021/891), which introduced a statutory requirement for mandatory vaccination for workers in Care Quality Commission (CQC) regulated care homes on 11 November 2021.
The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No 2) Regulations 2022 (SI 2022/15), which were due to introduce a statutory requirement for mandatory vaccination for health and social care workers on 1 April 2022.

The Department of Health and Social Care has also withdrawn its operational guidance on vaccination of care home workers and workers in social care settings other than care homes, reflecting that vaccinations are no longer a requirement for workers in these settings.

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The Employment Aspects of the Welsh Administration’s Long-Term COVID-19 Strategy

Posted on 22 March 202231 May 2023 by @deliver_els

On 4 March 2022 the Welsh Government published Together for a safer future: Wales’ long-term COVID-19 transition from pandemic to endemic, setting out its long-term strategy for COVID-19 once all legal restrictions have been lifted.

The Welsh Administration envisages replacing the legal duty to isolate with guidance, and an end to asymptomatic testing from the end of March or early April. Between April and June 2022, PCR tests for symptomatic cases will give way to home testing with LFTs. Around the end of June, LFTs will cease to be available and self-isolation support payments will end.

Businesses will be encouraged to continue with good infection control practices and to keep workplaces safer from all respiratory illnesses. They are advised to exclude symptomatic individuals from the workplace, provide adequate sick pay, and avoid a culture of presenteeism for sick employees.

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The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers on their legal obligations to ensure compliance. If you have any queries about your legal obligations you can call us on 0800 612 4772, Contact Usvia our website or Book a Free Consultation online.