Autumn Budget 2021: The Impact on Employment and Immigration

autumnbudgetimpactonemploymentandimmigration

The autumn 2021 budget highlights changes in both employment and immigration sectors. We shall discuss these changes below. 

Employment 

While this budget did not include any significant changes to employment law, there are some key changes to note.  

National living wage 

The national living wage is the lowest hourly amount that an individual aged 23 or over can be paid. The lower national minimum wages applies to employees under the age of 23 and apprentices. From 1 April 2022, these rates shall increase to:

  • £9.50 per hour for those over the aged 23 or over
  • £9.18 per hour for those aged 21 to 22
  • £6.83 per hour for those aged 18 – 20 
  • £4.81 for those under the age of 18 and apprentices 

With less than six months before the changes come into effect, employers should begin to consider the financial implications of these increases and ensure compliance with this change. Should employers fail to pay the correct minimum wage, they may face an employment tribunal claim from any affected employee(s). 

Health and social care levy 

As a result of the government’s increased spending and borrowing due to Covid-19, a new Health and Social Care levy has been introduced to increase the amount of tax each employee pays with the levy going to support the NHS and social care bodies. The levy will increase national insurance contributions by a 1.25% from April 2022 which shall be replaced by a new payment, separate to national insurance, of 1.25% in April 2023. 

This increase in tax will leave employers facing an increase in costs and employees with a lower take home salary. As a result, employers may receive questions regarding the benefits they provide and flexible working options. Therefore, employers should review their existing work arrangements and benefits packages to assess if they are fit for purpose, should employees request remote/flexible working. 

Immigration 

The Autumn 2021 budget confirms that the government are continuing with their plans to reform the UK’s immigration system to focus on attracting highly skilled workers to the UK. 

Scale-up visa 

With 49% of the UK’s fastest-growing businesses having at least one foreign-born co-founder and approximately 40% of all fintech employees in the UK being from overseas, the budget recognised the need for innovative businesses to have access to the talented and skilled individuals they need for their business to succeed. As a result, to attract highly skilled individuals and support inward investment, the Scale-up, will launch in the spring of 2022. In order to be eligible to apply for a scale-up visa, individuals must:

  • Pass the English proficiency requirement
  • Have a high-skilled job offer from an eligible business
  • Have been offered a salary of at least £33,000. 

Global Talent Network 

One launched, the Global Talent Network, will proactively find and bring highly skilled people to the UK who specialise in key science and technology industries. Through working with businesses and research institutions, the network will identify the skills needed in the UK and source talent from overseas to provide these skills. Initially, the network shall focus on the Bay Area and Boston in the US and Bengaluru in India. 

High Potential Individual Route 

The High Potential Individual Route will be open to individuals who have graduated from a ‘top global university’ to come to the UK. While the government has yet to confirm the institutions that will be considered a ‘top global university’, and whether the route is for certain sectors only, it has clarified that eligible individuals will not require a job offer or sponsorship from a registered employer. This route may provide a path to permanent settlement in the UK. 

Global Business Mobility Route

Appearing to combine the Intra-Company Route and the Representative of an Overseas Business route, this route is aimed at businesses with no UK presence who would like to establish themselves in the UK. Via this route, businesses will be able to:

  • Send multiple workers to the UK
  • Second workers abroad to a UK business with whom they have a high value contract of investment
  • Send employees and graduate trainees to the UK entity of an overseas company. 

Much like the current skilled worker visa, it is anticipated that this route will require employees to be monitored by the Sponsor Management System. 

How we can assist

Should you have an immigration or employment law query please contact a member of our team via email at contact@davenportsolicitors.com or telephone via 02079036888.

Settlement Agreements: Answers to the most common Questions Employers Ask

Settlement Agreements: Answers to the most common Questions Employers Ask

A Settlement Agreement (formerly known as a Compromise Agreement) is a legally binding agreement between you and your employer. This usually provides for a severance payment by the employer in return for your agreement not to pursue any claims in a Tribunal or a Court. At Davenport Solicitors, we are experts in helping both employers and employees alike who may find themselves in a settlement agreement situation.  In this post, we provide answers to the most common questions employers ask with regards to settlement agreements.

When should I ask an employee to enter into a Settlement Agreement?

As an employer, you can offer a settlement agreement for many reasons. Although, usually, it is because something has gone wrong at work. An employee may disagree with the way someone at work treats them. Or they may have been harassed and discriminated against. Additionally, they may have been dismissed or managed out of their job.

A Settlement Agreement would also be used where there is a dispute between an employer and employee – as a means of bringing that dispute to a close. In other words, it becomes the document that sets out the final terms that have been negotiated against the threat of legal claim against an employer.

How Are Settlement Agreements Calculated?

The amount of compensation an employer awards in a settlement agreement can depend on a variety of factors including any contractual or statutory entitlements.  Various considerations need to be taken into account when calculating an agreement.

Some elements that an employee or employer might want to consider before approaching a financial settlement include:

  1. The reason a settlement is being offered 
  2. How long will the case be protracted if a settlement is not made? 
  3. The employee’s salary or loss of any benefits or holiday pay 
  4. The length of service 
  5. How difficult may it be for the employee to find new gainful employment?

Confidentiality Clauses In Settlement Agreements – what are they and why are they needed?

Typically, settlement agreement confidentiality clauses incorporate the following standard terms:

  1. That the employee must not disclose any legitimate trade secrets or any information they have come into possession of as a result of working for the employer, to any third parties 
  2. That the employee must not disclose either the existence of or the terms and conditions of the settlement agreement to any outside third parties, except for their legal adviser, their immediate family, and those organisations where there is an obligation to do so (e.g. HMRC). Where the employee does disclose details to a member of their family, then that member of the family is also bound by the duty of confidentiality not to disclose those details to any third parties. The purpose of all this is to keep the terms of the settlement agreement private, including the compensation amount and the reasons as to why the parties have entered into the settlement agreement. 
  3. That the employee must not make derogatory remarks about the employer, its servants, or agents. There is also normally a reciprocal clause under which the employer undertakes to use its best endeavours to ensure that its servants or agents do not make any derogatory remarks about the employee

Are there any requirements to be met when entering into a settlement agreement?

In order to be valid and enforceable, a settlement agreement must comply with a number of legal requirements. They are:

  1. The employee must receive independent legal advice on the terms and effect of the settlement agreement.This requirement recognises that the employee must be absolutely certain before agreeing to waive their rights. The advice can be given by:

    – a qualified lawyer (or certified legal executive);
    – a certified  and authorised officer, official, employee or member of a trade union; or
    – a certified and authorised worker at an advice centre who is not paid for providing advice to the employee.

     

  2. The legal adviser must be clearly identified in the agreement; 
  3. The agreement must be in writing; 
  4. The agreement must specify the claims to be waived; and 
  5. The agreement must state that the above requirements have been satisfied.

Who should produce the settlement agreement?

The initial draft of the settlement agreement is usually provided by the employer (often drafted by the employer’s solicitor or another legal adviser.). The employee then takes independent advice on the terms, and there is often then a period of negotiation around these until an agreement is reached.

What happens if the employee doesn’t accept the settlement agreement?

If the employee doesn’t accept a settlement offer, as an employer, you have two options – either to increase the offer until they do, or withdraw from discussions, and either continue employment as before or commence whichever termination process is most appropriate.

Are settlement agreements tax-free?

Generally speaking, the employer can pay the first £30,000 compensation for the Settlement Agreement tax-free, but this will not apply to all payments. Taxation on Settlement Agreements differ according to a range of considerations.

How Settlement Agreement payments are taxed will depend on what kind of payment they are. For example, if the Settlement Agreement includes compensation that exceeds the £30,000 exemption, tax must be deducted at the OT tax code rate which may mean making deductions at different rates from 20% to 45% depending on the size of the excess. The OT Code does not include any personal allowances and divides the different tax bands into twelfths.

Can a settlement agreement be withdrawn?

Technically, yes it can be. An employer can decide that they do not want to proceed with a settlement agreement even after they have offered it, as long as it has not been signed by the parties. However, in our experience, so long as the parties are negotiating in good faith and seeking to agree on the terms, then this is unlikely to happen.

If you would like Davenport Solicitors to support you with further advice on Settlement Agreements or to speak to our settlement agreement solicitors in London, we welcome you to visit our contact us page, or contact us directly by emailing contact@davenportsolicitors.com or giving our experts a call on 02079 036888.

How to Include References in Settlement Agreements

twopeopleshakinghandsoveratable howtoaskforareferenceinasettlementagreement

Under a Settlement Agreement, it is likely that an outgoing employee will want to secure a reference for their new employment. There is no requirement on any business to provide a reference to an outgoing employee unless they are in a regulated industry, such as banking, finance, or care. There is no requirement for an employer to provide a favourable reference, the reference must only be true and this is the importance of negotiating an agreed form of reference under a  Settlement Agreement.

In this post, we look at how to include references in settlement agreements.

Why Include References in the Settlement Agreement

An agreed reference commonly forms part of the settlement agreement, but this is one of the things that’s often forgotten. Some employers will only confirm dates of employment and duties, whereas others are willing to comment favourably on an employee. What is agreed will depend on the employer’s usual practice and the circumstances surrounding an employee’s departure.

There is no obligation on any employer to provide a reference and it is one of the advantages of settling a case that a reference can be agreed as part of the agreement. So, if your settlement agreement doesn’t have a specific clause dealing with references, we’d strongly advise that you ask for one.

To ensure that only the agreed reference is provided, you can ask for the clause to say that requests for a telephone reference or a questionnaire will be refused and that any prospective employer will be told that only the written reference will be provided. This guard against an employer giving a bad reference on the phone or in a questionnaire.

Does the Employee have a Right to a Reference?

Unless your business is regulated by the Financial Services Authority, generally there is no legal obligation on an employer to provide a reference for an employee or ex-employee and therefore they are entitled to refuse to provide one.

If an employer does provide a reference, they must take reasonable care to ensure the information contained in the reference is true, accurate, and fair and the other to the individual alone, not to make defamatory statements. The reference must not be compiled maliciously or negligently, and thereby give an impression which is either too negative or misleadingly positive.

Agreeing to a reference can be classed as a settlement agreement benefit for an employee.

What Employers Should Consider Before Refusing a Reference in the Agreement

Where an employer provides references for some employees, it should be consistent in its approach. Employers could face allegations of discrimination, victimisation, breach of contract, or breach of trust and confidence if there are inconsistencies.

There have been recent developments in the law of discrimination. Under the Equality Act 2010, an employer’s refusal or indeed provision of a poor reference can involve unlawful discrimination.

However, the employee would need to establish that any unlawful treatment was on the grounds of one of the protected characteristics. Even if the employee is able to do so, it will usually be too late to deal with the problem of an offer of employment being withdrawn for these reasons. As with many other areas of life, prevention is better than cure.

Furthermore, references, and indeed good references, are an effective tactic to use to encourage an employee to enter negotiations on an exit. The employer and employer usually enter into a settlement agreement which includes an agreed reference. To find out more about entering into an employment settlement agreement, click here.

How to Include a Reference in a Settlement Agreement

There is no reason why an employee invited to enter into a settlement agreement should not request a reference. It is far from unusual to do so and quite commonplace to agree on the terms.

It is even quite possible to negotiate an agreement obliging the employer to respond to any further inquiry in a manner consistent with the agreed form of employment reference.  This can be a considerable benefit to the employee and providing some care is taken with regard to both the nature and timing of the request, providing an agreed reference costs the employer nothing.

An effective reference clause will say something along the lines of “A reference will be provided upon written request in the form annexed to this agreement at Annex A”. Then there will be an agreed reference attached to the back of the settlement agreement itself, headed “Annex A.”

Some settlement agreements will just state that a ‘standard reference’ will be provided upon request. This implies a very simple reference with just job title and dates of employment.

If you would like Davenport Solicitors to support you with further advice on Settlement Agreement references or creating a fair settlement agreement, call 02079 036888 or email contact@davenportsolicitors.com. You can also fill our contact form to request a callback.

Post Covid Flexible Working Requests

adults and children hugging to signify family and working from home

As employers it is important to understand why flexible working applications are made, how to handle them and in which circumstances it may be refused.

The right for employees to request flexible working has been enshrined in law since at least 2003 but the issue has perhaps never been as pertinent as it is now.

Although the right to request flexible working is a statutory right, traditional attitudes towards such working practices have often harboured negative biases, with those on flexible working terms being perceived as less ambitious or committed to their roles.

As with most things this past year however, a year of working from home due to Covid has seen much of what we do, why we do it and how we do it turned on its head.

The evidence from the past year shows that both employers and employees are now very much alive to the fact that working from the office does not necessarily equate to productivity and that there is no longer a one size fits all approach when it comes to working hours. Employees have seen that it is possible to achieve changed patterns of work and are reluctant to go back to old habits.

The role of women in the workforce and a general consensus that more needs to be done to create equal opportunities and retain this pool of talent has also never been higher on the agenda.

A cultural paradigm shift in the world of work has clearly taken place and employers can certainly anticipate a deluge of flexible working requests as we navigate a return to normal.

The law and process behind Flexible Working Requests

Who can make a request?

Flexible working requests can only be made by employees with at least 26 weeks’ continuous service. The right to request flexible working does not apply to agency workers or self-employed contractors. A request by an employee with less service than this may be validly rejected.

An employee may also only make one request in any 12-month period. This is no bar however to informal requests being made.

What can be requested?

Employers can anticipate a variety of innovative changes to work patterns as requests are required to relate to a broad spectrum of the usual arrangements for work including:

  • Changes to the hours’ employees work;
  • Changes to the times employees are required to work; and
  • Changes to the employee’s place of work.

Such variations can lead to entirely new working arrangements such as job shares, part time working and working from home. The changed working pattern will necessitate the need for employers to review and modify existing contractual arrangements between the parties.

How should a request be made?

For the request to be valid under the statutory regime, an employee must make the request in a prescribed manner which includes:

  • Making the request formally in writing;
  • Dating the request;
  • Formally stating that the request is being made in accordance with the statutory regime.
  • Detailing the variations to the working arrangements required; and
  • Stating what effect (positive or negative) that the employee thinks would arise and how this might benefit the business or be mitigated.

What to do when your business receives a Flexible Working Request?

Employers have to also abide by the statutory regime and therefore have to deal with flexible working requests in a prescribed manner which includes:

  • Dealing with the request reasonably;
  • Making a decision and notifying the employee of it within three months of the date of the request- or longer if mutually agreed between the parties; and
  • Only refusing requests on permitted grounds.

There is no statutory definition of what constitutes “reasonableness” in the context of statutory flexible working requests. However, guidance from ACAS provides that for a request to be dealt with reasonably it needs to be considered objectively and carefully by the employer taking into account the advantages and disadvantages to the business.

An employer must also effectively consult with the employee, meeting with them to discuss the request and must allow them to bring a representative to any meetings. The employer needs to be completely transparent about how the requested changes may affect the employee’s terms and conditions of employment.

Requests may only be refused on permitted grounds which include scenarios where the business will face additional costs; if client demands cannot be met; if work cannot be re-organised between staff; if additional staff cannot be recruited; if there may be a negative effect on the quality and performance of work; if there will be insufficient work for the employee to do or if the business itself had intended structural changes before the request was made.

If the request is agreed, the business must put this in writing to the employee alongside, detailing the changes to the terms and conditions of their employment.

Refusals too must be set out in writing detailing the grounds on which the request is rejected alongside an explanation of the reasons. It is good practice to allow the employee the opportunity to appeal although this is not prescribed in law.

Getting it right

The price of failing to deal with a flexible working request properly can cost a business time and money, as employees have the right to present complaints to the Tribunal for any procedural flaws.

It is therefore essential to have in place a robust process by which to scrutinise and respond to flexible working requests as well as having clear flexible working request policies in place at the outset.

For help on navigating the flexible working applications contact our specialist Flexible Working solicitors on 0207 903 6889 or contact contact@davenportsolicitors.com.

The Kickstart Scheme has launched

a person kicking a ball to signify the kickstart scheme

On 23 August 2021, the Kickstart scheme was launched, which allow employers to bid for funding to create new employment opportunities for 16-24-year-olds. This article shall focus on the implications of the scheme on Employers.

What is the Kickstart Scheme?

Under the Kickstart scheme, the DWP and Grant Recipients (the Employer) enter into a legally binding agreement through which the Employer receives a grant to employ a Participant (an Employee), who gains six months of employment.

The scheme provides new employment opportunities for young people, aged 16 – 24, at risk of long-term unemployment who are registered at job centres in areas determined by the DWP.

The Employer receives a sum per Employee to use for funded activities, which they may request once employment has commenced.

What will Employers get and what do they need to provide?

Employers get £1,500 funding per job, which should be spent on setup costs and supporting the participant to develop their employability skills.

So, as an employer you will need to provide them with training and employability support, IT equipment and support as well as a uniform or personal protective equipment, if applicable.

DWP may ask you for your records to show that you have spent the funding on setup costs and supporting their employability.

What are the Kickstart Scheme wages and other costs?

The funding covers:

  • 100% of the national minimum wage or national living wage for 25 hours per week for a total of 6 months.
  • Associated National Insurance contribution and minimum automatic pension auto-enrolment contributions.

Terms of the grant

The grant covers the national minimum wage for 25 hours per week for “new” jobs; however, the employer may choose to pay more.

In order to be eligible for the grant, the Employer must ensure that the job advertised or funded under the grant are not part of another Kickstart scheme grant agreement or application. Should the DWP suspect that the Employer has dishonestly and intentionally obtained duplicate funding, they may refer the matter to the police.

The grant is a contribution only, the employer is responsible for sourcing or providing the resources required for the funded activities and they shall not be reimbursed if they overspend.

The DWP reserve the right at its entire discretion to vary the terms and conditions of the grant agreement for any reason and may suspend payment or terminate the agreement where it is unable or not permitted to provide the funds.

Further, the DWP have no liability to the Employer for any losses caused by a delay in the payment of the grant, howsoever arising.

What do employers need to be aware of?

By joining the Kickstart scheme employers must not forget their usual obligations and risks associated with hiring a new employee such as:

  1. Kickstart participants will be employees, therefore they would be entitled to the usual employee benefits (annual leave, holiday and sick pay)
  2. Kickstart participants will have the same protections as a usual employee, such as not be unfairly dismissed (although unfair dismissal claim, requires employees to have 2 years of continuous service, they may still be entitled to bring automatic unfair dismissal claims)
  3. Discrimination law still applies – so they would still be able to bring claims for discrimination against the Employer, despite being employed for 6 months.

An employer should familiarise themselves with the Kickstart Scheme Grant Funding Agreement: terms and conditions for employers – effective from 23 August 2021 – GOV.UK (www.gov.uk) before joining the scheme.

The Kickstart scheme has benefits however, it is not without risks.

If you would like to speak to an expert employment lawyer in relation to the Kickstart scheme or any other employment or HR related matter, please contact us via email at contact@davenportsolicitors.com or telephone on 02079036888.

Navigating TUPE – An Employer’s Guide

navigating tupe

The Transfer of Undertakings (Protection of Employment) Regulations 2006 exists to protect employees’ rights in circumstances where the control of the business they are working for changes hands. This can happen where there is a transfer of ownership of the business – through a direct sale – or where the services the employee provides are outsourced. TUPE applies to all businesses no matter their size or sector and businesses cannot contract out of the provisions.

Employers need to know when TUPE applies and how to navigate and implement the rules.  A failure to adhere to the provisions can lead to claims and liabilities that could otherwise have been easily avoided.

Where TUPE does apply, the implications for a business can be hugely material.  For example, following a sale, all employees employed immediately before the transfer automatically transfer to the buyer on the same terms and conditions of employment. Having a clear plan to navigate TUPE from the outset will help the business to manage these legal and financial liabilities and allow for a smooth transition with minimum disruption to operations.

We set out below the fundamental questions and practical steps transferors (the old employer) and transferees (the new employer) need to take when TUPE applies to their business.

When will TUPE apply to your business?

TUPE will apply when there is either a transfer of a business or a service provision change.

A business transfer means the transfer of ‘an economic entity which retains its identity’. The essential test is whether the business or the part of the business being transferred retains its identity through continuing the same operations. Common examples might include the sale of a restaurant that goes on to operate as a restaurant or the sale of an accountancy business that goes on to continue to provide financial services.

TUPE can also apply to mergers, to changes to the identity of franchisees and also where partnerships are sold or transferred.

A service provision change will occur in circumstances where contracts for service are reassigned. This can happen when a business decides to outsource work by using a new contractor to provide the services, by reassigning an existing outsourcing agreement or by bringing outsourced services back in-house.

What are the implications when TUPE does apply?

Where TUPE applies the transferor essentially takes on all the rights, duties and liabilities the transferee originally had in regard to the affected employees.

On a transfer of the business or where there is a service provision change, the affected employees of the transferor will all automatically become employees of the transferee.

The terms and conditions of their existing contracts of employment will remain in full force and there will be no break in their period of continuous employment. All liabilities under their contracts will pass to the transferee and this will also include matters such as grievances against the transferor or any ongoing legal claims.

TUPE operates to provide the affected employees with enhanced employment protection.

If there are dismissals because of the transfer then those dismissals will be automatically unfair unless the transferor can prove that it was for an economic, technical or organisational reason that necessitated a change in the workforce.

Changes to the terms of the affected employees’ contracts by the transferee will also be void if the reason for the change was the transfer itself.

Both the transferee and the transferor will have an obligation to inform and consult with the affected employees. The transferor will also have a specific duty to provide employee liability information to the transferee.

The Obligation to Inform and Consult

The legislation obliges both the transferee and transferor to inform and consult with the elected representatives of the affected employees or the relevant trade union representing them.

The parties will need to inform the employees of the fact of the transfer, the expected timeline and the reasons for the transfer. They will also have to explain the envisaged legal, economic and social implications of the transfer as well as detailing any measures they expect to take as a result of the transfer.

Affected employees will have the right to bring an employment tribunal claim if there is a failure to inform and consult. Such a failure will leave the business open to a potential liability of up to 13 weeks’ gross pay for each affected individual.

Employee Liability Information

A transferor is obliged to provide a transferee with the necessary employee liability information and due diligence at least 28 days before a transfer takes place. The purpose of this is to detail the rights and obligations of the affected employees who will transfer to the transferee.

Employee liability information will include details such as the age and identity of affected employees, their employment contracts and roles, HR records, collective agreements, and any employment tribunal claims.

A transferee will have the right to bring a claim in the employment tribunal against the transferor for a failure to provide the information. Where appropriate the Tribunal has the power to award compensation subject to a £500 minimum for each employee whose information the transferor failed to provide.

Mitigating TUPE risks

Although businesses cannot contract out of TUPE they can, however, through contractual agreement mitigate their liabilities under TUPE by agreeing warranties and indemnities between themselves.

Commercially, transfers and the reassignment of services can at the point of agreement be structured in ways to mitigate the risks under TUPE.

The process for your business

When managing a TUPE transfer much of the procedure to be followed will be dependent on the specific facts of the transfer, whether the business is the transferee or transferor and the commercial objectives of the business.

No two TUPE transfers will be the same. As the legal process to be followed is so fact-dependent specialist legal advice is always advised to interpret the legislation and how it might apply to your business’s specific circumstances.

Broadly, however, businesses will need to consider the following process in a TUPE transfer, whether they are the transferor or transferee.

For the Transferor

Stage 1 – Before Committing to the Transfer

  • – Inform representatives/employees of a potential sale
  • – Whether to bid or re-bid for a contract or service

Stage 2- Preparing for the Transfer

  • – Inform/consult about the transfer and any measures
  • – Identify who will transfer
  • – Provide Employee Liability Information to the new employer (transferee)

Stage 3: The Transfer – The transfer Occurs and the Transferor Loses the Transferring Staff.

  • – Informing/consulting the remaining staff about the transfer
  • – Ensuring that all remaining employees are managed, settled and clear about their duties.

Stage 4: After the Transfer

  • – Inform/consult about potential redundancies if applicable.
  • – Inform/ consult in general to ensure good morale between staff
  • – Address any concerns to ensure that productivity is not affected.

For the Transferee

Stage 1: Before Committing to the Transfer

  • – Consider informing trade unions and employee representatives/ employees of a potential purchase
  • – Consider the advantages and disadvantages of committing to a transfer/service provision
  • – Begin to construct a TUPE plan

Stage 2: Preparing for the Transfer

  • – Inform/consult about the transfer and any measures
  • – Identify who will transfer
  • – Request Employee Liability Information from the transferor.

Stage 3- The Transfer – The Transferee Takes on the Transferring Staff and Must Consider:

  • – Informing/consulting staff about the transfer
  • – Ensuring that all employees are managed and are clear about their duties

Stage 4: After the Transfer

  • – Inform/consult about potential redundancies (if applicable)
  • – Inform/consult in general and assist employees to adjust and integrate within the organization
  • – Review the effectiveness of procedures with the organisation.

Davenport Solicitors regularly provides specialist advice to companies from a broad spectrum of sectors on the employment aspects of corporate transactions.

If you have any questions or would like to speak to an expert employment lawyer, please contact us via email at contact@davenportsolicitors.com or telephone on 02079036888.

 

No Jab, No Job

two syringes, a mask, two bottles of vaccine and a carton on a blue background

The government’s “work from home” has ended and therefore, employers may be considering introducing a no jab, no job policy. This article shall consider the legal implications of attempting to enforce such a policy.

What are employers and employees’ health and safety duties?

All employers have a common law duty implied into their contracts of employment to take reasonable care for the safety of their staff and those foreseeably affected by their actions Employers have a duty to ensure “the health, safety and welfare at work of all” their employees and an undertaking to ensure their employees are not “exposed to risks to their health or safety”. Therefore, employers have a duty to provide safe systems of work. With regards to Covid-19 provide a safe system of work can mean:

  • Social distancing
  • Cleaning
  • Face coverings
  • Regular testing

There is a duty on employees to co-operate and comply with reasonable and lawful instructions. However, what is reasonable will depend on the nature of the job and what is lawful will depend on the nature of the instruction.

What issues may arise?

Studies (Office of National Statistics report: Coronavirus and vaccine hesitancy, Great Britain: 28 April to 23 May 2021 (9 June 2021)) have shown that there is a clear disparity in vaccination hesitancy. 94% of adults reported a positive sentiment to the vaccine. However, there was more hesitancy reported amongst some ethnic minority groups with 21% of Black or Black British adults reporting hesitancy as compared with 6% of While adults and 7% of Asian or Asian British adults. There is also a disparity between religions as 11% of adults identifying as Muslim or Other reported hesitancy, compared with 5% of adults who identity as Christian and 2% who identify as Hindu. While there is no significant disparity between men (7%) and women (6%) regarding vaccine hesitancy, of the 6% that stated they were hesitant, 32% cited fertility as their reason.

Therefore, it is clear that if employers are to enforce a blanket mandatory vaccination policy, there is potential for discrimination claims. To avoid this, employers will need to ensure that their policies are drafted carefully with appropriate exceptions and will need to be capable of being objectively justified.

When objectively justifying a policy, reference will be given to the specific facts of each situation, for example:

  • The nature of the work
  • The need to protect colleagues and members of public
  • Future legislation
  • Other less onerous measures available

With regards to pregnancy discrimination, the current guidance from Public Health England in relation to pregnant women is that they should be offered the vaccine and that vaccinations can be received by women who are breastfeeding.

Questions have also been raised as to how employment tribunals would rule if they were asked to consider whether being a vaccine sceptic would be a belief under the Equality Act 2010. If it were to be held as a belief, those who shared that view would be protected from discrimination and harassment on ground of being an “anti-vaxer”.

In 2018 the Tribunal expanded the definition of “belief” to beyond religion to include veganism (Casamitjana v the League Against Cruel Sports 2018). Therefore, it is possible that although being an anti-vaxer is not a religious belief, it may still be held as a belief for the purposes of discrimination and harassment under the Equality Act 2010.

Another discrimination concern is in relation to partial or full vaccinated employees.

The government’s vaccination roll out plan prioritised older individuals. As a result, generally speaking, older employees are more likely to be fully vaccinated than younger employees. Therefore, any policy which treats fully vaccinated employees differently from partial vaccinated employees may be indirectly discriminatory on grounds of age.

Further, while the government have not produced a list of individuals exempt from vaccination, there may be situations where individuals are advised by their GP not to take the vaccine if they are allergic to one of the ingredients. This shall be judged on a case-by-case basis.

Can employees be required to have the Covid-19 vaccine?

The government have not introduced legislation that requires individuals to be vaccinated.

However, after a consultation on 16 June 2021, the government announced its intention to require all CQC regulated care homes in England to only allow entry inside their property to those who are fully vaccinated or are exempt from vaccination.  This requirement is not only for care home employee’s but for any professionals visiting, such as tradespeople, hairdressers and CQC inspectors.

Requiring employees to be vaccinated is more invasive than requiring them to use PPE and unions have criticised mandatory vaccination citing fears that it may lead to a culture of worker-blaming, taking away from the employer’s obligation to ensure a safe working environment.

Existing employees

In relation to existing employees, the employer’s ability to required them to be vaccinated will depend on the terms of the contract of employment, specifically terms relating to the issuing of instructions to employees and the compliance with employer’s policies.

However, employers must be aware that unilateral changes to employees’ contract of employment may provide employees with the grounds to resign and claim constructive unfair dismissal. ACAS guidance states that the refusal to have the vaccines may be the basis for disciplinary action or dismissal. However, this would have to be objectively justifiable to prevent discrimination and unfair dismissal claims as detailed above.

New employees

Employers may be able to insert a term into new employees’ contracts making the vaccination a condition of employment. However, discrimination claims may be brought if a job applicant believes they have been discriminated against in the recruitment process. Therefore, to make the vaccination a requirement of employment would have to be objectively justifiable to prevent discrimination claims.

Supporting staff to get the vaccine

If an employee expresses that they do not want to be vaccinated, employers should listen to their concerns. Employers may find it useful to have open, honest conversations with their employees about the benefits of being vaccinated and how they can support them. For example:

  • Providing employees with the government’s latest vaccine health information
  • If staff will be given paid time off to receive the vaccine
  • Where staff can receive the vaccine
  • Not counting vaccine-related absences in absence records or towards any ‘trigger’ systems the company may have.

Conclusion

It is best for employers to support their employees having the vaccination without forcing them.

For guidance on employment law or for employers who would like advice and assistance with ensuring that they comply with their health and safety Covid-19 obligations or the preparation of a Covid-19 vaccination policy and want to speak to an expert employment lawyer should feel free to contact our team via email at contact@davenportsolicitors.com or telephone on 02079036888.

 

Managing your workforce’s return to work from a health and safety perspective

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As the commuter lines gear back to normality, managing a safe return of your is imperative to keep your business in compliance with its duties and all involved, safe from the continued threat of Covid.

Although much has been done to mitigate the effects of the virus, a full return to normal still requires caution and proactiveness to ensure the health and safety of your workforce- and the prosperity of your business.

Under English law, all employers have both common law and statutory duties to ensure that the working environments they provide for their workers adhere to health and safety standards. Sector-specific guidance is accounted for in the legislation but a general duty of care subsists toward all employees.

During the course of the pandemic, stringent rules were put in place to safeguard employees. However, following the Government’s decision of 19 July to exit lockdown, most decisions in respect of health and safety will now be in the employer’s discretion subject to government guidance and the overarching general duty of care.

As of 19 July 2021, all restrictions on social distancing have been lifted, the legal requirement to wear face coverings no longer applies, there are no limits on the number in attendance at the workplace or other venues and the instruction to work from home no longer remains.

What you need to do as an employer:

Although not legally binding, the Government has set out extensive guidance for employers on how to manage a safe return to work for the nation’s workers.  The aim of this advice is to ensure that employers have the appropriate knowledge and tools to manage the inevitable risk to health that accompanies such a return. Included in the guidance are what are deemed “priority actions” and “common measures”. These are steps, the Government has designed to mitigate such risks and includes, employers being expected to:

  • Complete covid risk assessments;
  • Provide adequate ventilation;
  • Operate enhanced cleaning regimes;
  • Ensure staff do not attend the workplace if exhibiting symptoms;
  • Enable people to check in to the workplace; and
  • Communicate with and train staff in the latest Covid advice and measures.

Covid Risk Assessments

Employers are actively encouraged to carry out risk assessments and to put in place measures to manage risk. Useful templates for the risk assessments are provided by the Health and Safety Executive with specific ones in relation to specific sectors.

As the nature and threat of the virus change, measures and risk assessments are expected to be regularly reviewed.

Risks assessments should also include specific measures in relation to vulnerable members of the workforce such as those who may be pregnant or those with specific disabilities.

Where risks are identified, an employer must take all reasonably practical steps to minimise the risk. However, it is not incumbent on the employer to entirely eliminate all risks.

The “common measures” identified by the Government include the main areas believed to promote transmission of the virus and as such risk assessments should take account of how to minimise the risk of transmission:

  • Through aerosols;
  • Through droplets; and
  • Contaminated surfaces.

In most cases in an office setting, enhanced ventilation and cleaning regimes will suffice. However, employers must also carefully consider the nature of their employees’ roles and may find that for specific staff, for example in a customer-facing role, more measures such as continued face coverings or screens may be necessary to mitigate the risks.

Employers retain the discretion of course to put in place any enhanced measures they feel are reasonable and appropriate in the circumstances such as requiring PPE, reducing contact between staff and customers or maintaining some element of social distancing.

Employers must ensure that their risk assessments are accessible to employees. Moreover, employers must be able to transparently communicate to employees the identified risks in the workplace and the steps being taken to mitigate those risks.

The return to work for many will be an anxious time given the fear and uncertainty that the virus has caused since the first lockdown in March 2020.

Employers need to be sensitive to employees concerns and provide a safe as possible working environment. Much of this can be achieved through following the guidance and ensuring that processes for mitigating covid health risks are reviewed regularly so as to safeguard against the changing nature of this virus.

For more information regarding UK Employment Law or to talk to a specialist Employment Solicitor about how we can help your business effectively manage your workforces’ return to the office please email contact@davenportsolicitors.com or call us on 0207 903 6889.

5 Reasons Why Organisations May Not Want to Continue Home/Remote Working?

an image of a woman working remotely from the comfort of her couch with two children

 As a result of the pandemic, the way organisations operated changed drastically with employees working from home or remotely. Now the Government has mapped out a path to return to normality, organisations may choose to return to offices. By doing so, organisations may see the following benefits:

1. Supervision

Although organisations have managed to supervise during the lockdown, some have found it is difficult to supervise junior staff remotely. Some staff have not been able to carry out all their duties remotely.

2. Teamwork

Of course, staff can work as a team remotely however the chances are that colleagues are more likely to talk, collaborate and discuss ideas in the office when they are together rather than booking a virtual call.

3. Productivity

Sometimes it’s just easier to talk rather than spending 10 minutes drafting an email and being careful on how you draft the email so that a colleague is not offended. We all know that emails can sometimes come across as rude!

4. IT

Although some organisations invested heavily on their IT infrastructure during the first lockdown, there are some who have not been able to, either because they are not regulated or because they consider it too costly. The challenge organisations may find is ensuring that wherever their employees are working from, it is secure and data is protected.

5. Mental health

Working from home has been a challenge for many, either because they are trying to work and manage childcare or because they are working around the clock and have not been able to spend quality time with their partners! Being able to talk, meet, go out socially feels good. Having time to go out for a walk at lunch or a coffee is good for your mental health! The likelihood is that working from the office, gives many a structure, there’s a time to clock off!

If you find yourself needing to seek advice for employers please contact our Specialist Employment Documentation Solicitors on 020 7903 6888 or email: contact@davenportsolicitors.com.

Employment Dispute Resolution: How to Resolve Internal Disputes Effectively

animageofpeopleinanofficesittingaroundatable employmentdisputeresolution

Employment disputes at work arise from time to time.  When an employment dispute first materialises if it is handled quickly, pragmatically and appropriately, often a solution can be found which meets the satisfaction and needs of both the employer and employee.

An employment dispute could arise for several reasons. Employees may have concerns over pay and working conditions, proposals to change duties or the work location, maternity rights, concerns with redundancy, threats of termination of employment or disciplinary action, flexible working requests, changes due to health issues and following bullying, harassment and discrimination. When an employer/employee dispute arises, it is in the best interest of the company and the employee to resolve the dispute as quickly as possible, especially if both parties wish to continue their relationship in the future.

Common Examples of Employer/Employee Disputes

Issues With a Performance Review

If the employee truly thought they were going to receive a raise, promotion, or another accolade for their work; a negative review could lead to a dispute with their direct supervisor.

Conflicts With a Supervisor

Aside from disagreeing about a performance review, other types of conflicts can arise between a supervisor and a subordinate. An employee might feel as if they are not being guided properly by their supervisor or that they are being bullied by their supervisor.

Issues With Discrimination

A personal prejudice by an employee or discriminatory actions by an employer can lead to an employer/employee dispute that can cost a company thousands upon thousands of dollars.

Conflicts With Customers

If your business operates in the sales industry, your employees likely face conflicts with customers on a daily basis. Some of these conflicts can escalate if the customer feels as though they were defrauded by your employee.

Issues With Work Styles

Each employee you hire will have a different work style, which means there’s bound to be conflicts between employees or between employees and supervisors.

Conflicts With Creativity

It can be hard for employees to understand that their ideas become the property of the employer, even if it is expressly stated in their employment contract at the time of hire.

Issues With Co-workers

Not all of your employees will be able to get along with each other because of differing personalities. When co-workers begin to feud, it can potentially lead to a hostile work environment and a legal issue for your company.

Employment Dispute Regulations

The employment dispute process is governed by three main regulations; the Resolution Act 1998, the Employment Act 2002 and the Dispute Resolution Regulations 2004.

Resolution Act 1998

The Employment Rights (Dispute Resolution) Act 1998 (c 8) is a United Kingdom Act of Parliament which regulates UK labour law. The 1998 Act empowered the Advisory, Conciliation and Arbitration Service (ACAS) to create arbitration hearings as an alternative dispute resolution mechanism to the employment tribunals.

Employment Act 2002

The Employment Act 2002 was introduced to encourage more individual employment disputes to be settled within the workplace, without recourse to an employment tribunal. It introduces statutory minimum internal disciplinary and grievance procedures for all organisations that employ staff, and measures to promote their use.

Dispute Resolution Regulations 2004

 The Dispute Resolution Regulations 2004 require employers to develop and make available to employees minimum statutory procedures for resolving grievances and dealing with allegations of misconduct and poor performance in the workplace. The Regulations can be viewed here.

How to Professionally Resolve Employment Disputes

There are a number of options available to employers and employees for resolving employment disputes and avoiding an employment tribunal, including setting up a settlement agreement, using professional mediators or the use of arbitration services for unfair dismissal and flexible working claims.

Should a tribunal situation occur, employers have a duty to assist the tribunal to achieve its overriding objective of dealing with the case justly and seeking to achieve a resolution of the dispute. They must file a response form within 28 days if they wish to contest employment tribunal proceedings and comply with any order from the tribunal to provide “further or better particulars” or to disclose documents.

Furthermore, employees must adhere to the above and understand that if they enter into a conciliation agreement (arrived at through Acas) or a settlement agreement to settle a dispute with the employer, they will no longer have the right to pursue their complaint through the tribunal system.

Find out more about Employment Disputes and Employment Tribunal Claims here.

Employment Resolution Dispute Advisors

A business may face a number of different types of claims for various reasons. No matter what claim you face, informing and instructing us as your employment law solicitor as early as possible will ensure that you are represented in the best possible way.

If you would like to learn more about how Davenport Solicitors can support you if you need to resolve an employment dispute, contact us, email contact@davenportsolicitors.com or give our expert employment tribunal claim lawyers a call on 02079 036888.