Employment Law & HR News Roundup

Key updates for Employers

The biggest news this past week has, of course, been the changes to the furlough scheme.

However, here is a round-up of some other recent interesting developments and cases in the world of work:

Furlough Scheme fraud

HMRC revealed last week that it had received 1,868 reports about the fraudulent use of the furlough scheme by employers. It comes after whistleblowing charity, Protect, issued a warning about the scale of furlough fraud following the large numbers of calls it received from individuals reporting an employer’s misuse of the Coronavirus Job Retention Scheme.

The type of fraudulent activities reported included employers forcing staff to work despite being furloughed, asking staff to continue working but as volunteers and claiming for staff who were still working without their knowledge.

In order to identify and hold rogue employers to account, HMRC has outlined the processes it is following to identify fraud when checking claims and also new powers have been recently conferred to HMRC to hold directors liable for tax charges in instances where they deliberately misuse the Coronavirus Job Retention Scheme.

Quarantine period for employees returning to UK from overseas

On 22 May 2020, the government announced that a 14 day quarantine period would be introduced for most people arriving from overseas from 8 June 2020. The requirement to self isolate (which involves not going to work, school, public areas, using public transport or taxis and not having
visitors unless they are providing essential support) applies to everyone, including British nationals and those who live in the UK, returning to the UK from overseas. There are several exceptions from the self-isolation requirement including the following:

– People who live outside the UK but work in the UK and travel between their country of residence and the UK at least once a week.
– Road haulage, freight workers, pilots and flight crew, Eurotunnel drivers and crew, seamen and masters, and postal workers transporting mail into and out of the UK.
– Medical professionals who are travelling to the UK to help with the response to COVID-19.
– Anyone moving from within Ireland, the Channel Islands and the Isle of Man providing they haven’t been outside these areas in the previous 14 days.
– Seasonal agricultural workers who will self-isolate on the property where they are working.

So, in summary, if you have employees who live outside the UK but work in the UK at least once a week or they fall into the categories listed, they will not need to quarantine.

Although travelling to and from work is permitted, international work-related travel continues to be restricted due to current limitations on movement in the UK, with the government advising against
all but essential travel.

NHS Track and Trace: Workplace guidance published

The Department of Health and Social Care has published workplace guidance following the introduction of the NHS test and trace service.

As you will be aware, the NHS test and trace service will provide will testing for anyone with COVID-19 symptoms, get in touch with anyone who tests positive to obtain information about their recent contacts and, where necessary, notify those contacts that they need to self-isolate to stop transmission of the virus.

The guidance is aimed at helping employers manage transmission of the virus by ensuring their workplaces are as safe as possible, encouraging staff to act on any notifications to self-isolate and supporting them while in self-isolation. Click here to read the guidance:
HERE

Arsenal women’s football team fined for discriminating against former coach

In other news, Football club Arsenal Women has been fined a whopping £50,000 by the regulatory body of the Football Association for dismissing a youth football coach after he told them he could be autistic.

Robin Carpenter was a coach for the club’s under-15 team from 2007 until he was dismissed in 2014 only a few days after he told the club his concerns about potentially having autism.

The regulatory body found that Arsenal Women had treated Mr Carpenter less favourably by reason of his disability. As well as being fined, Arsenal Women’s staff are being required to undertake an education programme on discrimination.

The club had previously settled an unfair dismissal and disability discrimination claim brought by Mr Carpenter for £17, 200.

The case highlights how important it is for employers to be mindful of their legal obligations when dealing with an employee who discloses that they have or may have a disability. In this situation you should consider whether you need to obtain medical evidence to find out more about the employee’s condition and prognosis, discuss with the employee whether/how their disability is impacting on their ability to do their work and whether there are any reasonable adjustments you can make to support the employee in the workplace. Above all, as demonstrated by this case, until you are fully informed about the nature and extent of an employee’s health condition and the potential impact it may on their work, do not take any detrimental action against the employee.

Redundancy and competitive interviews

In a recent case of Gwynedd Council v Barrett, an Employment Appeal Tribunal said that an employer could use an interview process to consider applications for alternative employment from redundant employees but made an important distinction as to when this would be appropriate and where it wouldn’t.

On the facts of the case, the employees were teachers whose roles had been made redundant following a reorganisation of school services. Rather than using a selection/scoring process, the employer used an interview process to consider applications for alternative employment. This meant the teachers were applying for their former jobs in a new school on the site of their former school.

The Tribunal found that the employer acted unfairly by effectively making the employees apply for their own jobs. The Tribunal also found that the employer had failed to consult or offer the employees an appeal against their dismissal. Consequently, the Tribunal held that the claimants had
been unfairly dismissed.

On appeal, the Employment Appeal Tribunal upheld the Tribunal’s decision that the dismissals were unfair. However, the Employment Appeal Tribunal was careful to distinguish between (1) a situation where the employees were effectively being asked to apply for their former jobs and (2) a situation where the employees were invited to apply for a new post by competitive interview.

In the first situation, it was more appropriate to use a process of consultation and selection/scoring (where you pool together employees carrying out the same or similar roles and then apply objective criteria to select which employees will be made redundant).

In the second scenario, where new roles have been created, a competitive interview process could be used to consider redundant employees for
alternative employment.

The Employment Appeal Tribunal said that, in this case, the employers approach to alternative employment was to simply require the claimants to apply for their own jobs, with no consultation or appeal, and it was not perverse for the tribunal to find that unfair.

The case may be of interest to employers who are looking to restructure because of the current economic climate and make redundancies. As a general rule, where you require fewer employees to carry out the same or similar role, a process of consultation and selection is advisable. However,
a competitive interviewing process can be used where, as a result of the restructuring, new roles are created.

If you need advice on making redundancies, we can advise you on the best procedure to follow with advice that will be tailored to your business and your plans for the future.

We also offer a DIY redundancy package  HERE.

Case reference:

Gwynedd Council v Barrett – Employment Appeal Tribunal

This article was written and researched by Miranda Amos, Solicitor at our Salisbury Office.  Miranda advises clients across Hampshire, Wiltshire and Nationwide.

 Miranda is the firms expert on maternity, pregnancy and parental rights. If you have any questions or concerns about the proposed changes or any issues in your business please do get in touch with Miranda directly!

Don’t forget getting advice from a Solicitor does not have to be complicated or costly!

Other Relevant Articles for Employers

The reluctant returner: How can employers deal with employees who do not want to return from furlough

What notice pay do you pay during furlough?

Furlough and Annual Leave

Furlough / Job Retention Scheme & Parental Rights

Business Reputation Considerations and Furlough

Furlough and Directors

Returning to work after lockdown & furlough

Key points employers should be considering during furlough

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External Resources

PHE and BEIS: COVID-19: guidance for employees, employers and businesses

World Health Organisation guidance

Workplace social distancing guidance

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 DIY Redundancy Documents & Process for Employers available to download for £100 plus VAT includes:

1. Redundancy plan – step by step guide
2. Timetable to use – collective consultation and non-collective consultation versions
3. Letter warning employees of redundancy situation
4. First letter to employee representatives re proposed redundancies
5. Letter to employees requesting volunteers for redundancy
6. Letter to employee representatives with details of collective consultation process
7. Ballot paper for election of employee representatives
8. Nomination form for employee representatives
9. Notice to employees with outcome of the elections
10. Notice to employees re Employee representative elections
11. Letter follow up on individual meeting
12. Letter offer of alternative employment
13. Letter to individual employees – provisional selection for redundancy
14. Letter to individual employees confirming dismissal for redundancy
15. Example Redundancy selection criteria

You can purchase the documents here: HERE

For more information or to access these offers for employers please contact us on 01983 897003 or by email: alison@realemploymentlawadvice.co.uk

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Don’t forget getting advice from a Solicitor does not have to be complicated or costly!

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