| HR & EMPLOYMENT LAW
Jackie le Poidevin, Editor-in-Chief, HR Adviser |
Can You Hold Remote Disciplinary and Grievance Hearings During COVID-19?
Although employees are starting to return to the workplace, many remain working from home or furloughed. Acas has recently issued guidance on whether it will be fair to conduct a disciplinary or grievance procedure remotely when a face-to-face meeting isn’t possible. Here, we look at its advice and give some further tips.
Even if the employee can attend a physical meeting (which must be both socially distanced and private), other participants in the procedure may not be able to. There will be the investigator, the manager holding the hearing, a note taker and perhaps witnesses, and the employee still has the right to a companion. Acas says that if some or all participants can’t appear in person, you should consider:
- Whether you need to deal with the matter urgently or whether it would be fairer to wait until people can return to the workplace.
- Whether anyone involved has a reasonable objection to the hearing going ahead at this time.
My advice is that, as long as there’s no end in sight to working from home, it’s unlikely to be reasonable to wait for home workers to return to the workplace before holding a disciplinary hearing. This will only increase the stress for the employee in question. If some of the participants are on flexible furlough (which is an option from 1 July), it would seem sensible to arrange a time when as many of them as possible are in the workplace.
Using Video Technology
The guidance says that if you do go ahead with the meeting using video technology, you should ensure that:
- Everyone involved has access to the necessary technology.
- You make reasonable adjustments for anyone who has a disability that might affect their ability to use the technology.
- It’s possible to get hold of all the evidence needed for the investigation or hearing, such as records that are kept in the office.
- Everyone can see any witness statements or other evidence
- It’s possible for the employee to be accompanied during the hearing.
It’s possible to have multiple participants on a videocall and to share a screen to view documents, so these don’t seem to be difficult issues to manage in my view, as long as everyone has a computer. Reading long documents on a smartphone will be trickier, but you can post these out in advance. You may need to stop and start the videocall if the employee and companion wish to confer in private.
Warning
If an employee’s companion isn’t available, the employee can suggest another date for the hearing. Normally, this should be reasonable and within 5 days of the original date. However, Acas says you should grant a longer delay if this would be reasonable, given that the companion may have limited availability during COVID-19 (for example, due to childcare).
Are Disciplinary and Grievance Hearings ‘Work’?
While furloughed, employees must do no work. Acas says that furloughed employees can take part in an investigation or disciplinary or grievance procedure without this counting as work and breaking furlough. It says this is the case whether they are the employee whose case is being heard, the chairperson, note taker, an interviewee during the investigation, a witness or the companion. However, they must be taking part ‘voluntarily’.
This seems odd. Why would a manager be chairing a disciplinary or grievance hearing voluntarily? The employee, their companion and their witnesses aren’t providing any services for you but I would be inclined to take the investigator, chairperson and note taker off furlough temporarily.
Recording a Video Call
The guidance says there won’t usually be reason to record the meeting. If you do feel there’s a good reason to record it, you must do this in line with data protection law.
I would add that you should tell the employee not to record the meeting either (unless they have a disability and ask to do this as a reasonable adjustment). Make clear that it will be a disciplinary offence to make a covert recording. Alternatively, you may wish to agree with the employee and other participants that you will make an ‘official’ recording and share this with the employee.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
How to Calculate Statutory Maternity Pay for Furloughed Employees
An employee’s entitlement to statutory maternity pay (SMP) and other statutory payments depends on the employee’s average earnings. Where an employee has been on furlough prior to going on maternity leave, what impact does this have on the amount of SMP that they receive?
Importance of Average Weekly Earnings
The employee’s average weekly earnings is key both in determining whether an employee is entitled to SMP and, if she is, the amount that she receives, particularly in the first 6 weeks.
To qualify for SMP, an employee must, among other things, have average weekly earnings at least equal to the lower earnings limit for Class 1 National Insurance purposes. For 2020/21, this is set at £120 per week.
Where an employee qualifies for SMP, she will receive 90% of average weekly earnings for the first 6 weeks, and the lower of the statutory amount, set at £151.20 per week for 2020/21, and 90% of average weekly earnings for the remainder of the maternity pay period.
Where the employee’s average weekly earnings are at least £168 per week for 2020/21, the employee will receive the statutory amount of £151.20 per week from week 7 onwards.
Calculation of Average Weekly Earnings
Average weekly earnings are calculated over the ‘relevant period’. This is usually the 8-week period before the qualifying date. The qualifying date is the 15th week (Sunday to Saturday) before the baby is due. The end of the relevant period is the last normal payday before the Saturday of the qualifying week. Average weekly earnings are found by dividing the earnings paid in the relevant period by the number of weeks in that period. The figure should not be rounded.
How to Deal with SMP for Furloughed Employees
While an employee is on furlough, they must be paid 80% of their usual wages up to £2,500. Their employee can claim some or all of the costs back under the Coronavirus Job Retention Scheme (CJRS) as long as the qualifying conditions are met. Where an employee is on flexible furlough (available from 1 July 2020), they will be paid as normal by their employer for the hours that they work and receive furlough pay, based on 80% of their pay up to the maximum amount (equivalent to £2,500 per month) for their usual hours that they do not work.
Consequently, an employee who is fully or flexibly furloughed will not receive their usual pay for that period (unless their employer tops their wages up).
Where an employee’s period of maternity leave (or other family-related leave) starts on or after 25 April 2020, the employee was on furlough and a grant was claimed under the CJRS for any part of the relevant 8-week period, different rules apply to calculate average weekly earnings.
The earnings that are used in the average weekly earnings calculation for any part of the 8-week period for which they were furloughed are the higher of:
- The earnings that they actually received from their employer; and
- The earnings that they would have received from their employer had they not been on furlough.
Where the earnings that they would have received is unclear, the reference salary for working out how much can be claimed under the CJRS should be used. However, remember to take into account any payments that the employee would have been due to receive in the 8-week relevant period, such as bonus and commission payments.
If the employee’s period of furlough fell outside the 8-week period, the usual rules apply to calculate of average weekly earnings. Similarly, no adjustment to the calculation is needed if the employer is claiming a grant through the CJRS, but topping up the employee’s wages to full pay as the employee earnings in the period will not be lower than they would otherwise have been. Where a pay reduction has been agreed with an employee outside of the furlough scheme, the reduced pay received by the employee in the relevant period is used to work out average weekly earnings, rather than the employee’s ‘usual’ pay.
Guidance on working out average weekly earnings for SMP and other statutory payments can be found on the Gov.uk website.
| HEALTH & SAFETY
Paul Smith, Editor-in-Chief, Health & Safety Adviser |
Follow New Distancing Guidelines as Lockdown Eases
On Tuesday this week, Prime Minister Boris Johnson announced further easings of the COVID-19 lockdown in England, including (from 4 July) a relaxing of the 2m social distancing rule – as long as additional mitigation is put in place wherever possible. Since then, the Government has published new supporting guidelines, which are especially aimed at businesses such as restaurants and pubs that are now able to open for the first time since March. We set out the key points.
The Sectors Involved
Following the PM’s announcement, the Government has published a suite of further guidance setting out the approach and safeguards employers are expected to follow. The new documents cover:
- Close contact services (e.g. hairdressers, barbers, beauticians, tattooists).
- Heritage locations.
- Hotels and other guest accommodation.
- Restaurants, pubs, bars and takeaway services.
- The visitor economy.
In addition, some of the existing guidance has been updated or refocused, so, for example, the ‘Work in people’s homes’ document has been re-issued as ‘Work in other people’s homes’ and ‘Work in/from a vehicle’ has been slightly widened to ‘Vehicles’. You can view and download the complete 12 guides at: https://tinyurl.com/yaolw3rb
Key Content of the New Guidance
The new guidelines follow the same format as those issued in May and cover the same broad topics. So, we see here familiar recommendations such as consulting employees, carrying out a formal COVID-19 risk assessment, stepping up cleaning, handwashing and hygiene, and maintaining social distancing.
On distancing, there is now a subtle difference between the first set of guidelines (e.g. those dealing with factories, warehouses and offices) and the new suite: the earlier guidance required ‘2 metre separation wherever possible’, whereas the newer guides use the ‘1 metre +’ formula. The underlying belief is that 1 metre plus mitigation gives the same protection as 2 metres.
Effectively, the government is recognising the practical problems the 2m rule causes in many workplaces (especially those now being allowed to re-open), but is underlining the need to match reduced social distancing with extra mitigation to prevent infection. This could include measures such as:
- Avoiding face-to-face layouts, especially where people sit for some time.
- Reducing numbers in enclosed spaces.
- Improving ventilation.
- Using protective screens and face coverings.
- Closing non-essential social spaces.
- Providing sanitiser stations and encouraging people to use them.
- Changing work/shift patterns so that staff work in set teams.
Many organisations will be subject to more than one of the guidelines, so the key action is to download all those relevant to you and work systematically through the recommended steps.
Shielding Group May Return to Work
A further issue is that the government is advising the ‘extremely clinically vulnerable’ that from 1 August they no longer need to ‘shield’. People in this ‘at risk’ group are now being told they can cease the full shielding measures if they still adopt strict social distancing.
They will be able to return to work (though they should work at home if they can) as long as their workplace is ‘COVID-Secure’. Do, therefore, recognise that people in this group may feel especially nervous about returning to work and be ready to talk them through the precautions you are implementing to protect both them and others.