| HR & EMPLOYMENT LAW
Jackie le Poidevin, Editor-in-Chief, HR Adviser |
Concerned Commuters: 7 Steps to Protect Staff and Avoid Tribunal Claims
One of the biggest worries for many people as they start to return to work is whether it’s safe to travel on public transport. Do you have a duty to protect your employees from the risk of contracting COVID-19 on their commute and how should you respond to concerns?
Employees have various rights if they believe you’ve failed to keep them safe. However, the biggest risk is if they refuse to come to work because they believe their commute is too dangerous and you dismiss them as a result. Under section 44 of the Employment Rights Act 1996, employees have legal protection if they refuse to work because they reasonably believe they are in serious and imminent danger.
If you dismiss them, they can claim automatic unfair dismissal, even if they don’t have 2 years’ service, and there’s no cap on compensation. If you withhold pay while they’re not working, they can claim detrimental treatment.
Should You Be Worried?
This right has rarely been used and was presumably designed with major safety risks in mind. So, we don’t know how easy it will be for employees to bring a successful claim, especially if the risks they faced were on their commute, not in the workplace itself.
One case, Edwards v Secretary of State for Justice, has attracted a lot of commentary, as it involved several prison officers who refused to travel into work via a road that was closed after heavy snow on Dartmoor. This wasn’t a commute by public transport, as the prison sent vehicles to collect the officers. Also, the final verdict hasn’t been reported, so we don’t know which way the case ultimately went.
Despite this, there are two comments from the Employment Appeal Tribunal which shed light on how the tribunals are likely to approach any similar claims:
- It said it didn’t matter that the prison got the officers’ colleagues safely into work. What mattered was whether it was reasonable for the officers to believe they were in danger. This increases the risk of claims as, even if the risk from commuting is very low, staff only need a good reason to believe it isn’t.
- If the police had said it was safe for the prison vehicles to use the road, ‘it would be very difficult indeed’ for the claimants to win their case. This suggests that if the authorities say commuting is safe, employees can’t succeed with a claim. Unfortunately, the advice so far on COVID-19 is to avoid public transport if possible.
7 Steps to Reduce the Risk of Claims
To minimise the risk of a similar claim, there are several steps you can take:
- Continue to ensure that anyone who can work from home does so and that anyone who has to shield stays at home.
- As far as possible, seek volunteers from among your remaining staff to return to work.
- Consult staff: ask if they face any barriers to returning and try to address their concerns. This will make it harder for them to claim it was reasonable to believe they were in danger.
- Support staff to travel by other methods: for example, provide a cycle rack or somewhere to get changed into fresh clothes. Or set up a car sharing scheme, which is much safer than public transport. The government says the passenger should sit in the back, diagonally opposite the driver, with the windows open. Or reduce someone’s hours so they can walk to and from work.
- Keep staff on furlough pay as long as you can if they say it’s dangerous to travel to work. Only withhold pay or dismiss as a last resort.
- Control the risks if you do have staff coming in by public transport. For example, stagger start and finish times so they can travel outside the rush hour or provide face masks for use during commutes.
- Keep a record of what you’ve done to reduce risks to employees. If you have to take someone off furlough and require them to return, keep a record of why this was necessary.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
SSP Rebate Claim Portal Now Open: How to Make Your Claim
Employers with fewer than 250 employees (counted at 28 February 2020) can now claim a rebate for SSP paid for Coronavirus-related absences. The online portal on the Gov.uk website went live on 26 May 2020.
An absence counts as a Coronavirus-related absence if the employee is unable to work for one of the following reasons:
- They have Coronavirus (COVID-19) symptoms.
- They were self-isolating because someone in their household had Coronavirus symptoms; or
- They were shielding and have a letter from either the NHS or their GP telling them to stay at home for at least 12 weeks.
Claims can be made for periods of sickness starting on or after 13 March 2020 where the employee either had Coronavirus symptoms themselves or were self-isolating because someone in their household had symptoms, and in relation to periods of absence starting on or after 16 April 2020 where the employee is shielding.
What You Can Claim
Claims are capped at 2 weeks’ SSP per employee (even if the employee was absent for longer) and can only be made up to the weekly rate of SSP – set at set at £95.85 per week from 6 April 2020 and at £94.25 previously. You must have paid the SSP to your employee before claiming it back.
Claims can be made for employees in respect of whom a grant has been claimed under the Coronavirus Job Retention Scheme; although a claim for a grant and an SSP rebate cannot be made for the same period.
How to Claim
To make claim, you will need the following information:
- Your Government Gateway User ID.
- Employer PAYE scheme reference number.
- UK bank or building society details for the account into which the rebate is to be paid.
- The total amount of SSP paid to employees for Coronavirus-related absences.
- The number of employees in respect of whom a claim is being made.
- The start and end date of the claim period.
When claiming, you will also need to provide a contact name and telephone number. Claims can be made at the same time for multiple pay periods and multiple employees.
Although you do not need to provide evidence to support your claim at the time that the claim is made, you do need to keep records of:
- The dates on which the employees were absent from work.
- Which of those dates were qualifying dates.
- The reason for their absence i.e. whether they had symptoms or were shielding.
- The National Insurance numbers of the employees in respect of whom a claim is being made.
Record Keeping
You do not need to obtain a Fit Note for Coronavirus-related absences. However, if you can ask your employees for an isolation note from NHS 111 if they are self-isolating or a copy of their shielding.
Records should be kept for 3 years from the date on which you received the rebate.
HMRC will check claims and, if satisfied, pay the money into the designated account within 6 working days of the date on which the claim was made.
| HEALTH & SAFETY
Paul Smith, Editor-in-Chief, Health & Safety Adviser |
Cummings Debacle Shows Need to Lead by Safe Example, Now More than Ever
This week’s news is dominated by calls for Boris Johnson’s Chief Adviser Dominic Cummings to step down after allegedly breaching the lockdown rules he himself helped frame. Do current events offer any health and safety messages for leadership teams in general?
In case anyone’s been self-isolating on planet Zog, the story here is that the Prime Minister’s right-hand man Dominic Cummings travelled from London to County Durham with his wife on the pretext of arranging childcare for their son. Some have backed him; others accuse him of gross hypocrisy.
It’s not for us to feed the flames on either side, but as many managers and directors are trying to re-energise their operations after the paralysis of lockdown, the Cummings saga cannot be ignored in any discussion about how we leaders should behave in the face of risks to health and safety.
Deeds Not Words
We sometimes think it is the decisions we make that establish our credibility with the workforce. Experience, though, shows that many come unstuck when there is a gap between what is said or promised and what is actually done. ‘Walk the talk’ is good management, the basis of integrity and very relevant today.
The simple fact is that people judge organisations and, in particular, us as their leaders, by deeds not words. Senior managers hugely influence health and safety behaviour by apparently small things they do or do not do. General examples include:
- Wearing personal protective equipment (PPE) in areas where workers are required to wear it. (The PPE might be ear plugs, hard hats, safety shoes, dust masks, hi vis clothing; the exact type does not matter, but its lack is immediately noticed.)
- Obeying signs and markings e.g. designated walkways and areas barred to people on foot.
Examples specific to COVID-19 are:
- Being seen to wash hands and use sanitiser.
- Not putting hands to the face.
- Obeying social distancing rules such as restricted numbers in lifts.
- Listening to concerns and taking them seriously.
- Staying at home if you have symptoms.
Lead by Example
Talking to experienced health and safety advisers has given us many examples of how their work (sometimes over years) was undermined in a moment because senior managers did not, by their own behaviour, support the rules issued in their name.
There is something very powerful about a leader modelling the behaviour that’s requested and required of the workforce. Conversely, the slightest failing triggers moans of ‘they say it, but they don’t do it’ and ‘it’s one rule for them and another for us’ ¾ as we have indeed heard in response to Cummings.
In a household-name firm I worked for, the CEO was seen walking along a site road with no hi vis. A very junior engineer challenged him. He could easily have replied along the lines of ‘do you know who I am?’ but instead he took the point calmly, graciously thanked the engineer and went to get his PPE. Point of the story? He may have failed to lead by example in applying the safety rule, but he more than made up for it with his positive response to the challenge. Westminster bubble, please note!