| HR & EMPLOYMENT LAW
Jackie le Poidevin, Editor-in-Chief, HR Adviser |
Extra 1.7 Million Advised to Shield: Understand Your Obligations Towards Vulnerable Workers
This week, the Government told an extra 1.7 million people to shield, with those who have been attending work advised to stop doing so. The TUC has called on employers to furlough these new shielders if they can’t work from home. Read on to find out what you need to do now.
Who has Been Advised to Shield?
Before this week, 2.3 million people with certain health conditions or undergoing certain types of treatment had been advised to shield. A new risk assessment model has now identified a further 1.7 million clinically extremely vulnerable people. This takes account of factors like ethnicity, deprivation and weight to work out a person’s risk of becoming seriously ill if they were to catch Covid. The model was developed after research by Oxford University into the characteristics of people who died during the first wave. These people are being sent letters informing them of their new status.
Some 820,000 people on the list are under the age of 70, many of whom will have been working up to this point and won’t yet have been vaccinated. They are now being prioritised for a Covid jab.
What Should You Do Now?
You should treat this new group in the same way as any other staff members who are already shielding. This means that you:
- Must let the worker do their job from home if possible.
- Should consider redeploying the worker to a job they can do from home.
- Should consider offering furlough if the person can’t work from home. Even if your business isn’t closed or you’re not facing a reduction in demand, you’re permitted to claim under the CJRS for clinically extremely vulnerable workers. They will receive 80% of their normal pay, which you can recover from the Government (although you can top up their wages if you wish).
- Must pay the worker statutory sick pay (SSP) if you don’t want to make use of the CJRS. You can recoup the first 2 weeks of SSP if you have fewer than 250 employees. You might also suggest the person moves onto annual leave for some of the sick leave period to avoid losing as much pay.
Furlough will be a better option financially for both you and the individual but it’s not something you’re required to offer. Legally speaking, your only obligation is to pay SSP. Public sector organisations are expected not to use the furlough scheme.
What About an Employee Who is Living With a New Shielder?
People who live with someone who is clinically extremely vulnerable do not have to shield themselves. However, they are advised to follow the guidance on social distancing and hand washing particularly carefully. You are therefore entitled to require the person to attend work if necessary, although you must comply with the Covid-secure guidelines for your sector.
If the worker is nervous about coming into work because a member of their household now has to shield, you should do your best to agree a way forward with them. Dismissing them for a refusal to come into work should be a last resort because you run the risk of a claim for (among other things) unfair dismissal.
To try and reassure them, you should review your health and safety measures. For example, could you keep the person further apart from their co-workers, provide a screen or move them to a non-customer-facing role? Think, too, about their journey to work – if they commute by public transport, could you alter their working pattern so they can travel off peak?
As above, you might allow working from home, if practical, or furlough the worker. The CJRS permits you to furlough someone who can’t work because they’re caring for a vulnerable household member. Alternatively, you might suggest they take annual leave or unpaid leave – perhaps until their family member has had their first vaccination (which should be very soon) and this has had some time to take effect.
Is there a Right to Furlough?
You may be faced with an employee who believes they now have a right to be furloughed. However, it’s entirely up to you whether you want to use the CJRS or not for someone who is shielding or caring for someone who is shielding. You can furlough them but it’s not the case that you must.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
Are You Allowed to Provide Training to Furloughed Employees?
Under the terms of the Coronavirus Job Retention Scheme (CJRS), employers can claim a grant for the hours that a furloughed employee does not work, regardless of whether the employee is fully or flexibly furloughed. However, the employee cannot work for the employer for any of the furloughed hours for which a grant is claimed, and where an employee is flexibly furloughed, the employer must pay the employee for the hours that they actually work. Does this also mean that employers are unable to provide training to furloughed employees?
Training is Allowed
The Government guidance on the CJRS confirms that furloughed employees can continue to undertake training during the hours which the employer has recorded them as being furloughed and for which a grant has been claimed. However, there is a caveat – the training is only permitted as long as when undertaking the training, the employee does not provide services to, or generate revenue for, the employer or for a linked or an associated organisation.
Requirement to Pay NMW
Where the employer requires that a furloughed employee undertakes training while furloughed, the employer can record the employee as being furloughed, but the employee must be paid at least the National Living Wage (NLW) or National Minimum Wage (NMW) for the employee’s age.
For 2020/21, the NLW must be paid to employees who are aged 25 and above. It is set at £8.72. Employees under the age of 25 must be paid at least the NMW for their age. This is:
- £8.20 per hour for employees aged 21 to 24.
- £6.45 per hours for employees aged 18 to 20.
- £4.55 per hour for employees under the age of 18 and over school leaving age.
Apprentices under the age of 19, or over the age of 19 and in the first year of their apprenticeship must be paid at least £4.15 an hour.
The employer can claim a furlough grant of 80% of the employee’s normal wages while the employee is undergoing training while furloughed (subject to the cap equivalent to £2,500 a month). In most cases, the furlough grant will be sufficient to ensure that the employee continues to receive at least the NLW or the NMW for their age for any training hours.
However, where the employee is paid at or near the minimum wage, the furlough grant will not be sufficient to discharge the obligation to pay at least the statutory minimum wage for hours that the employee is undertaking training. Where this is the case, the employer must top up the grant so that the employee receives the statutory minimum wage for their age for any hours spent undertaking required training.
For example, if an employee is paid the NLW of £8.72 per hour, their employer will be able to claim a furlough grant of £6.98 for any furloughed hours. However, if the employee is required to undertake any training while furloughed, the employer must top up the furlough grant by £1.74 per hours to ensure that the employee continues to receive the NLW for those hours. For 2020/21, where the employee is aged 25 or over, a top-up will be required where the employee earns less than £10.90 an hour.
It is permissible to pay less than the statutory minimum wage for hours that the employee is furloughed but not undertaking training – for these hours, the employer is not required to top up the grant to the level of the relevant statutory minimum wage.
| HEALTH & SAFETY
Paul Smith, Editor-in-Chief, Health & Safety Adviser |
Covid-19 – An Inspector Calls (Well, Maybe)
As the UK’s workplace health and safety regulator, the HSE (Health and Safety Executive) is the prime mover when it comes to identifying and managing hazards. Surprisingly, though, as The Guardian revealed last weekend, it has so far not taken a single coronavirus prosecution. And even though inspectors can impose Prohibition Notices to halt an individual activity or even shut down a whole office, factory or building site, not one has so far been issued. Our expert Paul Smith, himself a former inspector, explores why.
Critics of the HSE say that it was slow off the mark as the pandemic hit the UK this time last year. For a time, it was the rabbit caught in the headlights, and in the first lockdown, inspections were paused because of the overriding need to minimise face-to-face contact to combat the new contagion. Then, the Government and the TUC called on firms to do a Covid-Secure risk assessment; but no-one, including my former HSE colleagues, had ever seen such a thing. Some inspectors must have queried ‘Why are we getting dragged into this public health crisis – it’s not been caused by employers and employers are not, by themselves, going to solve it?’
But very quickly, the HSE got its act together. It issued practical advice that is regularly reviewed and updated. It worked closely with other Government departments to produce a one-stop shop of guidelines on what ‘Covid-Secure’ means for employers. And it launched a programme of workplace checks drawing on both HSE inspectors and extra resource brought in from elsewhere.
Legacy Issues
Covid-19 hit the HSE when it was reeling from decades of underfunding driven by ‘let’s not place excessive burdens on business’ policies going right back to the Thatcher era. Even though individual inspectors have legal powers that in some ways exceed those of the police, the limiting factor is always the number of frontline inspectors. The HSE press office told us that, on 31 January, there were 967, including eight brought back from retirement to help with Covid checks. With a UK workforce of 33 million (and that’s just the ones that are employed), that gives an inspector to worker ratio of under one to 33,000 – lower than the doctor-to-population ratio in some of the world’s poorest countries. Add to this, huge additional responsibilities resulting from Brexit and the need to respond to the Grenfell fire (to mention just two) have tied up even more of the limited resource.
Legally, the HSE is in uncharted territory with Covid. Health and safety law is based on employers managing the hazards that their businesses create, but here we have a global threat. Of course, all employers must play their part, but Covid is (unlike machinery safety, handling hazardous chemicals and noise in the workplace) not something they can directly control.
Is Criticism Justified?
When it comes to enforcement, inspectors operate within strict constraints. For prosecutions, they only take cases where there is evidence strong enough to convince a criminal court ‘beyond reasonable doubt’. Prohibition notices (often talked about as if inspectors can issue them on a whim) can only be imposed when inspectors witness an ‘imminent risk of serious personal injury’ – inherently difficult for an invisible health issue.
So, let’s not be too harsh on the HSE. Arguably, they have correctly assessed the mood of the country by making their overall focus advice rather than enforcement. Although this has exposed them to criticism, it was the sane, humane and pragmatic approach to take. After all, most employers we talk to have genuinely done their best to manage this hazard that 18 months ago only a few scientists had ever heard of, and some have gone to extraordinary lengths. They’ve done so because it was the right thing to do, not because an inspector was breathing down their neck.
7 Questions to Ensure Your Business is Covid-secure
But if you are still worried about an inspection, then it’s worth working through these 7 questions. More importantly, putting these measures in place will help you minimise the risk and reassure your staff and customers:
- Have you got a written Covid-Secure assessment and kept it up to date as the pandemic and the guidance have evolved?
- Have you discussed it with your workforce?
- When you look at the safeguards it mentions, are they actually in place (e.g. social distancing, training, cleaning/disinfection)?
- Do your managers, supervisors and team leaders reinforce those safeguards, day by day?
- Have you told employees, visitors and contractors what they need to do to support your measures?
- Is everyone working at home who possibly can?
- Do you systematically check your precautions are working in practice?