Ask the Experts Update 10-23 December 2022

HR & EMPLOYMENT LAW Jackie Le Poidevin, Editor-in-Chief, HR Adviser Email: hr@agorabusiness.co.uk

Do We Have to Pay a Pregnant Employee Who Can’t Come into Work Due to Snow? 

Our HR Adviser Ask the Experts Email Helpdesk has been busy dealing with your queries raised by the recent adverse weather we’ve been experiencing. Many businesses require employees who can’t make it into work due to snow and who can’t work from home to take a day’s annual leave or unpaid leave. However, one of our readers asked us what happens if an employee is pregnant and argues that she’s at greater risk than other employees. By withholding pay or deducting holiday unless she comes into work, are you encouraging her to take an excessive risk and, if anything happens to her or the baby, could you be held responsible? Let’s have a look at whether you might be liable in this situation. 

What Does the Law Say?

There are a few relevant legal duties here:

1. You have a duty to protect your staff and others (including a pregnant worker’s baby) from workplace health and safety Employees also have a duty to look after their own and others’ health and safety.
2. You must assess the risks to pregnant staff at work and prevent or reduce them as far as you can. If it’s still too dangerous for her to work, you must suspend the worker on full pay for as long as the risk persists.
3. Employees have the right to refuse to work without suffering a detriment (such as loss of pay) if they reasonably believe they or others are in serious and imminent danger.
4. A pregnant member of staff might try to claim indirect discrimination if it’s harder for her to comply with a policy (here, a requirement to come into work during bad weather or sacrifice pay or annual leave) than it is for a non-pregnant colleague.

How Likely is a Claim to Succeed?

Arguably, by withholding pay from people who don’t come in, you may be encouraging them to take risks with their health and safety because they may feel they can’t afford to stay home. So this isn’t a completely safe approach, especially if there’s an added risk factor like pregnancy – or perhaps disability or age.

On the other hand, it’s your employees’ choice where they live and how they travel to and from work. It’s obviously important to take precautions on your own site, such as gritting paths or putting down matting and anti-slip flooring inside your entrance. However, the state of the roads and pavements outside the employee’s home and along their commuting route are outside your control and are not work risks.

There’s one not very enlightening case from 2014 about prison officers who weren’t paid after refusing to get into a minibus to travel to HMP Dartmoor along a road closed due to snow. The employment tribunal held that it wasn’t reasonable for the officers to believe they would be in serious and imminent danger if they made the trip. However, the Employment Appeal Tribunal said the tribunal had made some mistakes and sent the case back to be reconsidered.

Unfortunately, this means we don’t know the final outcome of the case but the facts were very unusual anyway. The prison provided the bus, so this isn’t comparable to most commutes, and the prison was also in a much more remote area than most workplaces will be. There’s therefore no case law to suggest that employers are responsible for staff members’ safety during their commute.

3 Tips to Reduce the Risk of Claims

To minimise the likelihood of a claim, it would be sensible to do the following:

1. Never order an employee to come into work during adverse weather. Instead, say you expect staff to attend work if it’s safe to do so but make clear they shouldn’t put themselves or others at risk.
2. Give employees who decide not to come in the option to take annual leave or to make the time up later if possible. They may feel they shouldn’t have to use holiday in this situation or some may have used up their year’s entitlement already. However, offering a choice creates less pressure to come in to avoid losing pay.
3. Listen sympathetically to a pregnant employee’s concerns. Ultimately, though, she would have an uphill struggle claiming that you’re obliged to pay her due to a potentially unsafe commute or that you’re responsible for an accident that happens outside work. 

HEALTH & SAFETY Michael Ellerby, Editorial Board Member, Health & Safety Adviser and Risk Assessment & Compliance Email: hsadviser@agorabusiness.co.uk

Take an ‘Elephant’ Approach to Tackling Your COSHH Risk Assessments

Are you at risk of failing before you start? Many organisations quail when faced with the sheer number of substances to capture with their COSHH risk assessments, to the extent that they don’t know where to start. Desmond Tutu once wisely said ‘there is only one way to eat an elephant: a bite at a time.’ By this he meant ‘everything in life that seems daunting, overwhelming, and even impossible can be accomplished gradually by taking on just a little at a time’. We advise that you apply the same approach to creating you COSHH assessment.  

Here are a few simple steps to start the process and make it more manageable.

1. Start with a meaningful inventory: first, get a good understanding of the scale of the problem and try to reduce it. Don’t just collate a huge list of chemicals but construct your inventory of substances hazardous to health carefully, keeping one eye on finding some easy fixes or simplifications.

2. Get rid of redundant materials: if materials are no longer required, then arrange for their safe disposal. This way, you no longer need to include them in your COSHH inventory or in the resulting COSHH risk assessments.

3. Don’t waste your time assessing non-hazardous substances: at a very early stage in the process, identify which of the substances in your inventory are non-hazardous, as these do not need to be included in your COSHH assessments.

4. Group very similar materials together: it’s quite common for similar risks to be posed by similar substances that are used in a similar way. By way of example, different coloured paints may all pose the same risks to the health of the user. Different oils and lubricants may be grouped together if the hazards, uses, and routes of exposure are the same. In such cases, it’s extremely likely that all of the like materials used in the same way can be grouped together for the purposes of your COSHH assessment.

5. Departmental lists: pass the task of compiling the COSHH inventory to the individual departments. This has the benefit of sharing the tasks (although you will need to ensure that others are doing their bit) and also of making it easier to identify redundant materials and to group similar materials together. You may need to invest in a little bit of training but this will not be wasted time.

6. Don’t be fooled by different names: check out some of the substances on your lists that are used for the same thing (such as lubricants, cleaning materials, etc.). This will help to keep the list looking shorter.

Need a Further Culling?

Having collated a meaningful, but reduced, list of substances, it is may be prudent to perform a second review with a view to reducing the list further. You should:

• Meet with department heads and request that they actively look to reduce the size of the list, with a focus on some of the more hazardous materials.
• Challenge a few of the long-held beliefs.

Create an Approved List of Substances

To prevent the list from just growing again, introduce a level of control in the form of an approved list of substances. This should limit what people can purchase without getting further agreement. Anything that is not on this list needs to be authorised to ensure:

• That it is already covered (different name for largely the same thing), or
• We have agreed to the provision of a new substance, and a preliminary assessment of risks (COSHH and other) has been undertaken.

The COSHH risk assessment work still needs to be done, but now it is on a reduced number of substances and with less time being wasted on unnecessary work.

PAYROLL Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser Email: pab@agorabusiness.co.uk

PAYE: How to Use the New Recurring Direct Debit Functionality 

Employers are now able to use a recurring direct debit facility to pay their PAYE bills. HMRC have recently published guidance explaining how and when payments are collected under this facility, and where interest may initially be charged and subsequently withdrawn. The guidance was published in the December 2022 edition of HMRC’s Employer Bulletin.

The Process

The collection process under a recurring direct debit can only commence and conclude on a bank working day. Where an employer has signed up to make payments via a recurring direct debit, they will receive a secure message to their business tax account showing the amount of the direct debit. This is called the advance notification. The amount due should match the amount reported to HMRC under RTI and employers are advised to check that this is the case.

The advance notification will normally be issued on the 20th of the month. Where this falls on a day that is not a bank working day, it will be issued on the next bank working day.

The direct debit will be collected on the third working day after the advanced notification is issued. This means that it will always be collected after the 22nd of the month.

Check You Do Not Receive a Penalty

The normal rule is that where PAYE is paid electronically, the payment must reach HMRC’s bank account by the 22nd of the month. If payment is made after this date in more than one tax month of the tax year, penalties will be charged. However, as HMRC do not collect recurring direct debit payments until after the 22nd, there may be instances where the online account shows the payment as being overdue and interest as being charged.

HMRC are aware of this and once the direct debit has been collected, their financial systems should automatically update the employer’s account and remove any interest that has been charged during the period from 22nd of the month to the date that the direct debit was collected. The payment should not be treated as late and the employer should not receive a late payment penalty. It is prudent for employers to check their accounts to ensure that the necessary adjustments have been made by HMRC.

December Timetable

Where payment is made by recurring direct debit in December 2022, the following timetable applies:

1. The advance notification is issued on 20 December 2022.
2. Direct debit collection will commence on 21 December 2022.
3. The payment will be collected from the employer’s bank account on 23 December 2022.
4. Interest charged for late payment will be removed by 24 December 2022.

Advantages

Paying by direct debit provides a slight cashflow advantage as payment is not collected until at least the 23rd of the month. As the process happens automatically, employers do not have to worry that they will miss the deadline. However, it is sensible for employers to keep an eye on their PAYE account to ensure that any interest charges have been removed.