Ask the Experts Update 28 May-10 June 2022

Rail Strikes: Employees’ Rights and How to Minimise Business Disruption

The RMT union has announced a series of national rail strikes later this month which, if they go ahead, look set to cause widespread disruption to commuters and businesses. The walkouts are planned for Tuesday 21, Thursday 23 and Saturday 25 June, with a Tube strike also due to take place on 21 June. The various lockdowns have put office-based businesses in a good position to weather the storm by returning to mass remote working on strike days. However, if home working isn’t a possibility for your business, what are your options? We suggest ways to try and keep your business operational, as well as examining the question of whether you’re obliged to pay those staff who can’t make it into work.

Do You Have to Pay Staff Who are Absent Because of the Strikes? 

There’s no legal obligation to pay employees who aren’t available to work. It may seem harsh to withhold pay when it’s not the person’s fault that they can’t come in – and of course you can choose to pay them in this situation to avoid bad feeling.

However, the counterargument is that you’ll have some employees who go to great efforts to make their way in and they may feel it’s unfair that colleagues who didn’t try as hard are still paid. 

If you have a policy on what you’ll do if there’s travel disruption, you should follow this and remind staff and managers of your approach. Otherwise, if you decide you’re not going to pay staff who don’t attend work, you should inform them of this as soon as possible to avoid misunderstandings and to give them time to try and make alternative travel arrangements. You could suggest they take any time off as annual leave to avoid losing pay.

Consistency is Key 

Whatever approach you take, it’s important to be consistent. Agreeing to pay one absent team member and not another might lead to an allegation of discrimination. Similarly, if you’ve always paid absent staff in this situation before, employees might be able to argue it’s a breach of contract (even if there’s nothing formally written down) to withhold payment now.

6 Actions to Keep Your Business Running 

You’ll clearly want to try and keep your business running as normally as possible on strike days. These are some steps you can take to minimise disruption and find a solution that works for both you and your employees:    

1. To help you plan, ask team members if the strikes may affect them and discuss alternative ways to travel in. For example, can they take a bus to a different rail line that isn’t as badly affected?  
2. Ask staff who drive to give a lift to colleagues affected by the strikes.  
3. Be flexible about start and finish times to allow for roads that are busier than usual, cancelled trains and unfamiliar routes. It’s reasonable to expect staff to allow more time for their journey so they don’t arrive late but you should give them some leeway if things don’t go to plan and make allowances for commitments like the school run. You could ask employees who are late to make up the time rather than disciplining them. 
4. If employees who aren’t dependent on the trains (e.g. because they live close or drive) aren’t scheduled to work, ask them if they can swap days with colleagues who will struggle to get in. 
5. If you have more than one branch, arrange for staff to attend a workplace nearer their home. 
6. Tell staff to inform you as soon as possible if they can’t get into work or are going to be late.  

Get on Board with Love Your Lungs Week and Protect Your Workers from Wood Dust Exposure   

With the British Lung Foundation’s ‘Love Your Lungs’ week coming up soon (21-27 June), now is a great time to do what you can to reduce workplace exposure to wood (and other) dusts. According to the Health and Safety Executive’s statistics, 12,000 people in the UK die of lung disease or develop occupational asthma due to workplace airborne contaminants. Follow our advice to understand the risks posed by exposure to wood dust and the steps you can take to protect your workers’ health. 

Why Wood Dust is Hazardous to Health 

Wood dust is created when machines or tools are used to cut or shape wood. Substantial amounts of wood dust are produced in sawmills, as well as in the furniture-making and carpentry industries. When wood dust is inhaled, it is deposited in the nose and throat, with the finer dust particles penetrating deep into the lungs.   

Wood dust causes occupational asthma as well as cancer. Exposure to wood dust is strongly associated with nasopharyngeal carcinoma. Those who are exposed to on-the-job wood dust, or who work in occupations associated with the dust, have elevated rates of lung cancer. 

Both hardwood and softwood dusts have a Workplace Exposure Limit (WEL) which must not be exceeded. 

• The WEL for hardwood dust is 3mg/m3 (based on an 8-hour time-weighted average). 
• The WEL for softwood dust is 5mg/m3 (based on an 8-hour time-weighted average). 

When dealing with mixtures of hardwood and softwood dusts, the WEL for hardwood dust of 3mg/m3 applies to all wood dusts present in that mixture. 

How to Protect the Health of Your Workers

Adequate control of wood dust is achieved when: 

• The 8 principles of good control practice are applied (Schedule 2A of COSHH): 

1. 1. Minimise emission, release and spread. 
   2. Consider routes of exposure.
   3. Choose control measures proportionate to the risk. 
   4. Choose effective control options.
   5. Use PPE as a last resort. 
   6. Review the effectiveness of controls. 
   7. Provide information and training. 
   8. Use of the control measures do not actually increase the risk.

If the same LEV unit serves multiple wood working machines, then the operatives need to be aware of how to balance the extraction to get the level of protection from dust. 

LEV only works when switched on. This is a matter for design (interlocked to the power to the woodworking equipment) or supervision. One common reason that LEV is not used is that it can be very noisy (a different health risk that you will also need to address). If possible, site the motor and the fan away from the workplace. 

Using Health Surveillance 

Because of the health effects caused by wood dust, workers exposed to the dust should receive health surveillance, so set up a suitable health surveillance programme. 

Fire and Explosion 

Finally, wood dust is combustible, and the dust can form an explosive atmosphere in air. These risks will need addressing separately.

P11D Deadline Approaching: What You Should Do Next 

If you provided employees with taxable benefits in 2021/22 which you did not payroll, you will need to tell HMRC about these on form P11D by 6 July 2022. You will also need to file a P11D(b) by the same date. This is required even if all taxable expenses have been payrolled and you have no P11Ds to file. You may need to change the way you file your expenses and benefits returns this year as HMRC have decommissioned their Expenses and Benefits Online Service. Consequently, if you used this service in the past, you will need to find an alternative filing route.  

Form P11D 

Form P11D is the return of taxable expenses and benefits provided to employees. You will need one form for each employee in respect of whom you have benefits and expenses to report. You will need to include taxable expenses and benefit provided to employees in 2021/22 unless those benefits have been: 

1. Payrolled. 
2. Included in a PAYE Settlement Agreement. 

You do not need to include expenses and benefits which are covered by an exemption. However, an exemption will only apply if all the associated condition have been met. 

The information required varies from benefit to benefit; although in all cases you will need to enter the taxable amount. This will usually be the cash equivalent value unless the benefit has been made available under an optional remuneration arrangement (such as a salary sacrifice scheme) and the alternative valuation rules apply. Under these rules, the benefit is taxed by reference to the amount foregone where this gives a higher taxable amount. 

You must also give your employees a copy of their P11D (or details of the information it contains) by 6 July 2022. 

Form P11D(b) 

The other form in the expenses and benefits return stable is form P11D(b). This is both the employer’s declaration that all required P11Ds have been submitted and the statutory Class 1A return. If you payrolled benefits in 2021/22, these will be need to be taken into account, along with those returned on the employees’ P11Ds, when calculating your Class 1A National Insurance liability. If you don’t have any P11Ds to submit, but you payrolled benefits in 2021/22, you will still need to file a P11D(b) to notify HMRC of your Class 1A liability. 

If you provided taxable expenses and benefits previously, but did not do so in 2021/22, you will need to file a nil declaration if HMRC have either sent you a P11D(b) to complete, or a notification to file one. It is important that a nil declaration is made where required to prevent a penalty being charged. The declaration can be made online. 

Class 1A National Insurance for 2021/22 must be paid by 22 July 2022 where the payment is made electronically and by the earlier date of 19 July 2022 where payment is made by cheque. 

Your Filing Options 

Forms P11D and P11D(b) can be filed in paper format. However, HMRC discourage this and most employers will prefer to file electronically. 

Although HMRC’s Expenses and Benefits Online Service is no longer available, 2021/22 expenses and benefits returns can be filed electronically using:

1. HMRC’s PAYE Online Service. 
2. Commercial software. 

Employers must be registered for PAYE Online to use this service to file expenses and benefits returns. The service is free to use, but can only be used to file a maximum of 500 returns. If you need to file more than 500 returns, you will need to use a commercial software package. This may be your payroll software package or a dedicated package for filing expenses and benefits returns.