| HR & EMPLOYMENT LAW
Jackie le Poidevin, Editor-in-Chief, HR Adviser |
Freedom Day: What Exactly Does Boris’s Announcement Mean for Employers?
From 19 July, the Prime Minister has announced that he will (probably) be lifting almost all Covid restrictions. Subject to a final decision next week, people will no longer be instructed to work from home if they can, to wear face masks or to socially distance. With cases of the Delta variant rising and millions of people still waiting for their second jab, here are some key points to consider when deciding whether to lift precautions in your own workplace.
Your Health and Safety Duties are Unaffected by this Announcement
Under the Management of Health and Safety at Work Regulations 1999, you must assess workplace risks and reduce them to the lowest reasonably practicable level. Under the Employment Rights Act 1996, staff members also have the right to stay away from the workplace if they reasonably believe it poses a serious and imminent danger.
You might argue that if Boris Johnson says it’s safe for people to mingle freely, you don’t need precautions and can dismiss anyone who refuses to come into work. However, the Prime Minister hasn’t actually said this. He’s said that people should take personal responsibility for whether to wear a face mask in a given situation or keep their distance from others. He also thinks it’s better on balance to lift restrictions now than in the winter – but that doesn’t mean there’s no longer a risk from Covid.
It therefore remains your responsibility to decide what’s safe in your particular workplace. As long as you take sensible precautions, it will be very difficult for employees to argue a dismissal for refusing to work was unfair. Without safeguards, the situation is likely to be very different, at least until everyone has had the chance to get double vaccinated.
This Announcement May Make Your Staff More Worried About Attending Work
Employees who have been working from home had been expecting to return to an office with social distancing and other measures in place. If you remove these safeguards, this is likely to make many staff more nervous about returning.
Anyone who commutes by bus or train will also have to contend with fellow passengers not wearing masks or keeping their distance (and we’ve been repeatedly told that our own mask only protects others). People will also be mixing more outside work, making a workplace outbreak more likely.
You may be concerned that if you keep your precautions in place, it may now be harder to enforce them. For example, if you dismiss someone who repeatedly refuses to wear a mask when dealing with customers, there’s a risk they might claim the dismissal was unfair. However, the Kubilius decision showed us you are entitled to enforce your own policies if you act reasonably. In this case, a tribunal held that a lorry driver wasn’t unfairly dismissed for refusing to wear a face mask, even though this wasn’t required under government guidance.
Given that everyone is used to social distancing and to wearing masks if they’re in close contact with customers, it should be relatively easy to keep these rules in place. Sweeping them out of the way immediately on 19 July is much more likely to result in grievances and tribunal claims.
Absenteeism is Likely to Rise
While you can control the risks in your own workplace, you can’t stop staff mixing outside work. A surge in absence therefore seems inevitable. There are a few things you can do, though:
- Encourage staff to test themselves regularly, or test at work, so you can catch cases before they cause too much damage (although there are suggestions that lateral flow tests will no longer be free from next month).
- Retain measures such as social distancing and staggered shifts to limit the number of employees who have to self-isolate if you get a confirmed case.
- Offer full pay to staff who have to self-isolate to encourage them to stay away, rather than potentially spreading the virus to colleagues.
On a positive note, if the government’s position doesn’t change in September, fewer parents should need to be absent to look after children who are self-isolating. This is because children will no longer be required to self-isolate because someone in their bubble has tested positive.
Steps You Should Take Now
My advice would be to:
- Look out for the formal government announcement on 12 July and updated guidance for your sector. At this stage, it’s not clear how much the guidance will change, if indeed it changes at all.
- Carry out a new risk assessment and then consult with staff about what safety measures are appropriate.
- Put your requirements in writing, share these with staff and make clear what will happen if they breach your rules.
- Plan how you’ll cover for absent staff.
- Set out guidelines for your customers and visitors. There’s nothing to stop you asking them to wear a mask to protect your staff and although some won’t comply, it’s likely most will.
- Let people who are worried about commuting or coming into work keep working from home for the time being, unless there’s a very good reason why this isn’t appropriate.
Take a gradual approach to the return-to-work process and the lifting of precautions to reduce anxiety.
| HEALTH & SAFETY
Paul Smith, Co-Editor-in-Chief, Risk Assessment & Compliance; Editorial Board Member, Health & Safety Adviser |
Attacks on Employees: a Growing Threat Employers Must Assess and Manage
One of the grimmer sides of the pandemic is the abuse of shopworkers who have been sworn at, spat on and physically assaulted when asking people to queue, wear masks and observe social distancing in and around stores. Here, we reveal how far the employer’s duty to protect at-risk employees extends: sadly, this includes anyone who deals with the public. We summarise two recent cases in which firms were prosecuted for failing to meet their duty, and set out the key actions employers should take to protect their staff, and themselves.
Even pre-Covid, the British Retail Consortium (BRC) was warning that violence against employees is one of the most pressing issues retailers face, highlighting that 115 shop workers are attacked in their workplace every day. As a result, the Commons Home Affairs Committee is calling on the government to make attacks on shop staff a specific criminal offence, a call which major retailers such as Tesco, Boots and the Co-op have backed.
The Employer’s Legal Duties
But is violence at work potentially a health and safety issue for all employers? Yes, says the little-known 1983 appeal case West Bromwich Building Society v Townsend. Here, the threat came from people seeking to rob a building society, but the wider message is clear: where staff face a risk of violence, employers must take steps to assess and minimise the risk.
A year ago, we would have struggled to cite a single violence-at-work prosecution, but in just the last few weeks, we have seen two. In the first, G4S Care and Justice Services (UK) Ltd was fined £250,000 plus £13,787 costs after an employee suffered very serious head injuries when he was assaulted by four trainees at a Milton Keynes young offender’s facility. Inspectors criticised the firm for:
- Failing to put in place robust procedures.
- Allowing inexperienced staff to work alone with young people who presented a high risk of violence.
In the second case, care agencies Options for Supported Living and Fulwood Care Ltd were fined after an untrained Options employee was stabbed by a ‘high risk’ resident, despite care plans and risk assessments saying two care workers must present at all times, given this resident’s history of aggression/violence. An Options manager was also formally cautioned for her part in the incident.
Managing the Risk
Workplace violence is: ‘any incident in which a person is abused, threatened or assaulted in circumstances relating to their work’ (Health and Safety Executive). Violence and its impact can lead to low staff morale, high absenteeism and staff turnover, raised insurance premiums and possible compensation claims. For staff, it can cause physical and mental pain, stress and disability. To manage the risk:
- Implement a written policy that faces up to the problem and commits to measures for dealing with violence to staff. You can find a model Violence at Work Policy on your Online Resource Centre.
- Do cover who is responsible for which parts of the arrangements and set out how you will report, classify and record incidents.
- Say how incidents will be monitored, investigated and reported to outside bodies such as the police. Also, set out how you will support staff suffering verbal abuse or physical injury (for example: counselling, special leave, advice on legal action).
- Set out your training arrangements for both staff and managers/supervisors.
- Train staff to recognise violence ‘triggers’, defuse situations of escalating threat and that it’s ok to ‘walk away’.
- Consider physical measures such as changes in the design of the working environment and installing safety/security devices such as screens, CCTV, alarms and panic buttons.
Don’t get trapped into ‘violence is a risk of the job’ thinking: it blocks progress to safer ways of working.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
CJRS is Winding Down: the Key Points You Need to Know
As the Coronavirus Job Retention Scheme (CJRS) starts to wind down, employers must now begin to contribute to payments made under the scheme to those employees who remain furloughed or flexibly furloughed.
Under the scheme, employees who are furloughed or flexibly furloughed receive a grant of 80% of their usual pay for their unworked hours. The grant is capped at £2,500 a month, proportionately reduced where the employee is not furloughed for the full month.
The scheme, which was introduced in March 2020 will close on 30 September 2021.
The final phase of the scheme runs from 1 May 2021 to 30 September 2021. For May and June, employers could claim the full amount of the grant that they are required to pay to the employee; however, this changes from 1 July.
Employer Contributions: July 2021
For July 2021, the employee will still receive a grant of 80% of their usual pay (up to the cap) for their furloughed hours. However, the employer is only able to claim 70% of the employee’s usual pay for those hours, up to a maximum of £2,187.50 for the month (proportionately reduced if the employee is not furloughed for all of July). The employer must make up the difference between the amount that they must pay to the employee and the amount that they can claim from the Government. For July, this will be 10% of the employee’s usual pay for their furloughed hours, to a maximum of £312.50 where the employee is fully furloughed for the whole month.
As previously, the employer must also meet the costs of the associated employer’s National Insurance on the grant payment, and also any employer pension contributions due under auto-enrolment.
Grant claims for July 2021 must be made by 14 August 2021.
Employer Contributions: August and September 2021
For the final 2 months of the CJRS, the employer contribution is increased to 20% of the employee’s usual pay for their unworked hours, up to a maximum of £625 per month.
For August and September 2021, the employee will, as previously, continue to receive a grant of 80% of their usual pay for their furloughed hours, up to the cap of £2,500 a month or equivalent. However, the amount that the employer can claim back for each of these months is reduced to 60% of the employee’s usual pay, capped at £1,875 per month of equivalent. As in July, the employer must make up the shortfall and meet the cost of the associated employer contributions and any employer pension contributions that are due.
Grants for August 2021 must be claimed by 14 September 2021, and grants for September 2021 must be claimed by 14 October 2021.
At a Glance
The following table shows what employers can claim and the contribution that they must make for the final 3 months of the scheme.
| Month | July 2021 | August 2021 | September 2021 |
| Employee’s grant for unworked hours | 80% of usual pay for unworked hours up to £2,500 a month | 80% of usual pay up for unworked hours up to £2,500 a month | 80% of usual pay for unworked hours up to £2,500 a month |
| Government contribution for unworked hours | 70% of usual pay for unworked hours up to £2,187.50 per month | 60% of usual pay for unworked hours up to £1,875 per month | 60% of usual pay for unworked hours up to £1,875 per month |
| Employer contributions for unworked hours | 10% of usual pay for unworked hours up to £312.50 per month | 20% of usual pay for unworked hours up to £625 per month | 20% of usual pay for unworked hours up to £625 per month. |