| HR & EMPLOYMENT LAW
Jackie le Poidevin, Editor-in-Chief, HR Adviser |
5 Steps to Keep Pregnant Workers Safe During COVID-19
Many pregnant women have wrongly been sent home on statutory sick pay (SSP) during the COVID-19 outbreak instead of being suspended on medical grounds on full pay, the Labour Party has claimed recently. Here, we explain what your duties are towards pregnant employees during these challenging times and what legal risks you face if you get your obligations wrong.
What’s the Issue?
SSP is £95.85 a week, whereas women must earn at least £120 a week on average in the 8 weeks before their maternity leave to be eligible for statutory maternity pay. Labour is saying that many women who were wrongly put on SSP have failed to earn enough to qualify for maternity pay, potentially costing them thousands of pounds. It is calling for a change in the law to address this issue.
Prior to 1 August, pregnant women with a serious health condition were advised to stay home and ‘shield’. Those without a serious health condition were placed in the vulnerable (but not extremely vulnerable) category, which meant they could keep working and didn’t have to shield, but you did have to take extra care to keep them safe. The advice to shield has now been lifted but there are still certain steps you must take to comply with your legal obligations towards your pregnant workers.
Key Steps to Comply with the Law
- You must carry out an individual risk assessment whenever an employee tells you she’s pregnant, looking at any special risks in your workplace and any complications the woman is experiencing.
- You must reduce any risks to the employee and her baby to as low a level as you reasonably can. If there’s a higher risk of exposure to COVID-19 in the workplace than outside it, even after you’ve followed the COVID-secure guidelines, you must take further action. Options include:
- Letting the employee work from home if possible.
- Changing her hours so she doesn’t have to commute by public transport during the rush hour.
- Changing her duties – this might be necessary if she has a serious health condition and would otherwise be at high risk of infection (for example, in a health, care or school setting).
- Ensuring she can social distance at all times.
- If you can’t offer a safe working environment or ‘suitable’ alternative work, you must suspend the employee on medical grounds for as long as necessary. The suspension must be on full pay, not SSP. Once you reach 6 weeks before her expected week of childbirth, her maternity leave will automatically start.
- As an alternative to a medical suspension, furlough leave remains an option until 31 October 2020. However, to be eligible, the employee must haves already been furloughed for at least 3 weeks before 30 June. She must agree to be furloughed, so you may need to top up her wages so she’s not worse off financially than if you’d suspended her.
- If the employee is reluctant to come into work when you consider it to be safe or refuses suitable alternative employment, the least risky options would again be home working if possible or furlough leave. Alternatively, you could offer annual leave or unpaid leave (though the latter will affect her SMP entitlement).
What are the Legal Risks?
Failing to carry out an individual risk assessment for a pregnant worker or to protect her health and safety could be sex or pregnancy discrimination. Employees can bring claims from day one of employment and there’s no cap on awards.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
How to Correct Claims Under the Coronavirus Job Retention Scheme
HMRC are increasing their compliance effort as regards incorrect and fraudulent claims under the Coronavirus Job Retention Scheme (CJRS) and contacting employers who they believed have claimed too much or claimed in respect of employees who are not eligible under the scheme. If you think that you might have made a mistake, it is prudent to check claims and take action to correct any errors. This applies equally if you have under-claimed.
What to Do if You have Claimed Too Much
If you have made a mistake when claiming money under the CJRS which has resulted in you claiming more than you were entitled, you will need to pay the excess back to HMRC. This can be done in various ways:
- By adjusting the next claim – the claim is reduced by the amount of the over-claim.
- If you have no further claims to make, contact HMRC (either using the web chat or by phone on 0800 024 1222) to arrange to pay the money back.
Deadlines apply for telling HMRC that you have claimed too much money. You must notify them of the over-claim by the latest of the following dates:
- 90 days after the date that you received the grant to which you were not entitled.
- 90 days after the date that you received a grant that you were no longer entitled to keep as a result of a change in your circumstances.
- 20 October 2020.
Thus, where the money that needs to be paid back was received on or before 22 July 2020, it must be repaid by 20 October 2020; where it was paid after this date, it must be repaid within 90 days. Failure to repay money which has been claimed in error or fraudulently within this timescale may result in a penalty being charged.
If you realise that you have made a mistake when completing the online claim form within 72 hours, the claim can be deleted. A correct claim can then be submitted.
If You Fail to Tell HMRC About an Over-claim
If HMRC ascertain that an employer has claimed too much under the CJRS and not repaid it within the required timescale, they will issue an assessment to recover the over-claimed grant monies. The assessment must be paid within 30 days. Interest is charged on amounts paid late. Late payment penalties may also be charged if the amount remains underpaid 31 days after the due date.
HMRC stress that they are not actively looking for innocent errors in their compliance approach – the focus is on fraudulent claims.
If You have Not Claimed Enough
It is possible that when making a claim under the CJRS, that you did not claim the full amount to which you were entitled. This may be because you made a mistake when working out the amount of the claim or because you did not take into account all of the employee’s earnings. You may also have omitted to claim the associated employer’s National Insurance and pension contributions for periods up to 31 July 2020.
If you have not claimed the full amount under the scheme, you must still pay your employees their minimum furlough pay for periods for which they were furloughed. You must also pay the associated employer’s National Insurance over to HMRC, and make any pension contributions due under auto-enrolment.
If you have under-claimed, you should contact HMRC to amend your claim. However, it should be noted that because the claim amount is being increased, HMRC may carry out additional checks.
Employers are no longer to add employees to claims for period up to 30 June (the deadline for doing this was 31 July 2020). However, they can still amend other errors that may have resulted in an under-claim.
| HEALTH & SAFETY
Paul Smith, Editor-in-Chief, Health & Safety Adviser |
Training Under Coronavirus? You Must be Joking! How to Carry it Out – and Stay COVID-Secure
All employees are legally entitled to training so they know the hazards their work could create and, just as importantly, what to do to stay safe. But, cramming maximum numbers into your training room is clearly incompatible with social distancing, so what practical steps should we be taking to ensure your training does not increase the infection risk?
We know that some readers have been confused when they have tried to apply to training the Government guidelines on meeting people outside your household. These suggest that numbers should be limited to six, clearly a big restriction on how many can be trained at once. Our understanding, though, is that these limits apply to social, not work, settings. In the workplace, you have discretion as long as you comply with whichever of the ‘working safely’ guidelines are relevant.
Think of Training as ’Meetings’
Although this does not cover training specifically, the nearest and next best thing is ‘meetings’ where the guidelines give the following as specific steps that will normally be needed:
- Using remote working tools to avoid in-person meetings.
- Only absolutely necessary participants should physically attend meetings and should maintain social distancing guidelines (2m, or 1m with risk mitigation where 2m is not viable).
- Avoiding transmission during meetings, for example, by not sharing pens, documents and other objects.
- Providing hand sanitiser in meeting rooms.
- Holding meetings outdoors or in well-ventilated rooms whenever possible.
- For areas where regular meetings take place, using floor signage to help people maintain social distancing.
Applying this to training means you should restrict it to what is essential and use other (virtual) means if you can. For example, it may be possible to deliver training via Zoom, Skype, Teams, Google Meet or one of the other meeting platforms. Alternatively, eLearning packages and webinars enable people to be trained wherever they are and whenever it is convenient.
For face-to-face training that cannot be avoided, though, you should follow the above 6 pointers in addition to the general measures (e.g. social distancing, extra handwashing and increased surface cleaning) as set out in your COVID-19 risk assessment. It may well be that you already stipulate maximum numbers per room (‘occupancy’) as part of this, so clearly these limits should also apply when rooms are used for training.
7 Practical Tips for COVID-Secure Training
- Try to train people along with others they already work with, so as to minimise new contacts.
- Trainers should lead by example in applying precautions such as social distancing, wiping down surfaces and using sanitiser.
- If you use outside facilitators and trainers, you need to brief them on the safeguards you expect.
- Position training room furniture to support social distancing; this will usually mean temporarily removing at least some tables and chairs.
- Remind delegates of COVID-19 safeguards as part of the ‘housekeeping’ session at the start.
- Consider in your arrangements the potential pinch points of people entering and leaving the rooms at the beginning/end, and at breaks, etc. You need to maintain social distancing at all times, not just when people are sat at a desk during the course. Staggering breaks (one part of the group has their break while another works on an assignment) can also help here.
Trainers should redesign group work, such as syndicate exercises, so that they still achieve their learning goal but in a socially distanced way. Expecting people to work in close proximity, especially facing each other, is now a big no-no.