Redundancy Part One: What it is & What to do
Redundancy can come as a surprise to many people, and it is possibly one of the most distressing events an employee can experience. The employer needs to ensure that there is fair treatment of redundant employees as well as the morale of the remaining workforce. Employers must understand their obligations including employees’ rights and the correct procedures to follow.
What is Redundancy?
Redundancy is a form of dismissal when an employer needs to reduce the size of its workforce. In the UK, an employee can be dismissed for redundancy if:
- The employer has ceased or intends to cease, continuing the business
- The requirements for employees to perform work of a specific type or to conduct it at the location in which they are employed, has ceased, diminished, or are expected to.
Employers must follow a correct procedure and make redundancy and notice period payments.
Employers should:
- Take all reasonable steps to avoid redundancies
- Plan and develop employment strategies to deal with the requirements of short-term labour fluctuations, minimise the risk of enforced redundancies and maximise alternative resourcing opportunities.
- Manage redundancies legally and in a way that minimises the impact on both those who lose their jobs and those who don’t.
- Provide a communication strategy to ensure that everyone in the workplace has the correct information about any redundancies.
Redundancy during Coronavirus
Many people lost their jobs because of the COVID-19 pandemic, despite government intervention to try and avoid redundancies. The future situation is still uncertain, especially now the “furlough” scheme has ended. Employers who decide there is no alternative to redundancies still must follow their normal redundancy procedures. Proceeding without the consideration of alternatives may encourage employees with over two years’ service to present unfair dismissal claims.
Redundancy Procedures
As an employer, you should consider having a formal redundancy procedure. Employers should follow these redundancy stages as a minimum:
- Planning
- Identifying the pool for selection
- Seeking volunteers
- Consulting employees
- Selection for redundancy
- Suitable alternative employment
- Appeals and dismissals
These will be covered individually in our next blog post.
Protecting employee’s health and wellbeing
It’s important to approach the redundancy process with empathy and treat everyone with respect and kindness. How the employer handles the redundancy can determine how an employee copes with the news. Take time to explain the reasons why they are being made redundant and why it’s a hard business decision. You should also discuss the actions that were taken to avoid redundancy and facilitate redeployment. Notifying an employee of redundancy is a difficult task and employers should be trained to handle redundancies with sympathy and clarity.
Being selected for redundancy can have a huge effect on one’s mental health. Immediate and ongoing support should be available to those who have been affected by the redundancy.
Furthermore, redundancy also has an impact on other employees who are witnessing their colleagues being laid off and may feel that their jobs are at risk. It is the job of the senior managers to give all staff a full explanation of what is going on and what redundancy procedure is being used.
Related Articles:
Redundancy in the UK: A Guide to Avoiding Unfair Selection
The Closure of the Statutory Sick Pay Rebate Scheme
On the 17th of March 2022, the Statutory Sick Pay Rebate scheme will close. You have until the 24th of March 2022 to submit any new claims for absence periods up until the 17th of March, or you can amend claims you have already submitted.
You will also no longer be able to claim back Statutory Sick Pay for your employees’ Covid-19 related absences or self-isolation that occur after March 17th.
From the 25th of March, the normal Statutory Sick Pay rules will return. This means you can revert to paying Statutory Sick Pay from the fourth qualifying day your employee is off work regardless of the reason for their sickness absence.
For more information on how to make your final claims click here.
Living with Covid-19: The Latest News for Employers
The UK Prime Minister recently announced the living with Covid-19 strategy for England. All Covid legal restrictions will end in England on Thursday 24th of February and free testing will stop from Friday the 1st of April.
Here’s what employers need to know:
Self-isolation
Currently, if you test positive for Covid-19 you are legally required to self-isolate for ten days or five days following a negative lateral flow test on days five and six. From the 24th of February, this will be removed. A minimum five-day self-isolation period will still be advised, but workers are not obliged to tell their employers if they have tested positive and need to self-isolate. This change may cause some issues for employers.
Although the Government’s rules have changed, employers still have a duty of care to take reasonable steps to prevent foreseeable harm from occurring to their employees. Additionally, the relaxation of the rules will cause concern for employees who are fearful of contracting Covid-19. This may result in a reluctance to return to the workplace. Employers should continue to comply with the Government’s ‘Working safely during Covid-19’ guidance, which will remain in force until the 1st of April 2022.
Employers may advise employees to self-isolate for a minimum of five days following a positive Covid-19 test and may consider going further than Government guidance in the workplace. If they do, they will have to consider their position in relation to sick pay if the employee cannot work from home.
From the 24th of February, vaccinated contacts of a positive Covid-19 case will no longer be required to test for seven days and unvaccinated contacts will no longer have to self-isolate. Furthermore, from this date self-isolation support payment will also end. The support payments for self-isolation will also end on this date.
From the 24th of March, there will be changes to statutory sick pay and the employment support allowance will come to an end.
Testing
The Prime Minister also announced that the free universal symptomatic and asymptomatic lateral flow and PCR testing will be removed from April 1st. The UK Health Security Agency will decide who is entitled to free tests, but this will be limited to symptomatic at-risk groups and social care staff. Anyone else who does not fall into these categories will have to pay.
Numerous employers are relying on regular employee testing to keep their workplace Covid free. Once testing is no longer available for free, employers will have to determine a new approach. They may have to consider purchasing test kits for their employees.
Vaccination
The Government announced additional booster jabs for those ages 75 and over. Mandatory vaccination polices have been risky, they can lead to legal risks including, data privacy, unfair dismissal, and discrimination. The Government intend to revoke plans to make vaccination mandatory for all health and social care settings in England, however, it has not been officially confirmed when or if this will happen.
Hybrid Working
Aside from health and safety concerns, some employees may be reluctant to return to the workplace due to a change in lifestyle. Employers will need to consider whether their employment contracts contain a requirement to work at the workplace, and if so, whether it is reasonable to enforce such requirements. Many employees will have the right to request flexible working, to which the Government is working on considered responses to these requests. Employers should treat these requests very carefully. If an employee has successfully performed their role at home during multiple lockdowns, then it would be extremely difficult to refuse a flexible working request.
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Remote Working: What are the risks? How to Manage them.
Returning To The Office: Top 10 Things Employers Need to Know - Part 1
Returning To The Office: Top 10 Things Employers Need to Know - Part 2
Employee Engagement Part Two: Seven Dimensions of Good Work
As outlined in part one of this blog, Employment Engagement Part One: How to Attract and Retain Employees, the seven dimensions of good work outline the factors in which employees perform better in the workplace. The CIPD Good Work Index is an annual benchmark of good work or job quality in the UK. It provides a key indicator of the current state of work in the UK.
Here is an in-depth description of the seven dimensions of good work.
1. Pay and Benefits
There is no doubt that the amount of pay an employee earns contributes to their work ethic. Similarly, the employee's benefits from the employer, including pension contributions and other employee benefits such as additional annual leave or wellness programmes, can also contribute to the employees’ work ethic.
2. Work-life balance
Work-life balance concerns how employees manage and prioritise work and their time spent with families and other relationships and leisure activities. A fifth of respondents agreed or strongly agreed that their job affects their personal life
3. Contracts
The type of contract an employee receives is a key indicator of why an employee performs better in the workplace. Non-standard contracts, temporary, zero-hours and short hours can be associated with insecurity and unstable working patterns and perhaps an indicator of how an employee performs in the workplace.
4. Job design and the nature of work
Job design can be understood as the content and organisation of one’s work tasks, activities, relationships, and responsibilities. It is evident that job design and the nature of work can be crucial to how people experience job quality. There may be benefits for workers in terms of engagement and wellbeing. There are various factors that may be seen as components of job design, these include:
- Workload (whether one has the right amount of work)
- Job autonomy (level of control over the content, speed, method, and time of work)
- Resources (time, equipment, and suitable space to work effectively)
- Purpose (feeling of doing useful work for the organisation and the wider community)
- Job complexity (whether the job is interesting, requires learning new things)
- Skills (the level of a person-job match in skills and qualifications)
- Career development (whether the job provides opportunities for skill development and career progression)
5. Workplace relationships
There is a strong belief that good relationships at work can impact positively workplace performance. The context of workplace relationships can be influenced by the size of the workplace. The smaller the workplace the more they may benefit from direct and personal interactions in the workplace. In larger organisations, the number of staff may limit workplace relationships outside of an employee’s immediate team. It is evident that good relationships at work can impact positively an organisations performance.
6. Employee Voice
Employee voice and communication between employers and management are widely recognised as important elements of job quality. Having the confidence to speak, be listened to and have an influence are crucial to shaping and delivering other elements of job quality. The most common voice channels in UK workplaces are one-to-one meetings with line managers, team meetings and surveys.
7. Health and Wellbeing
Possibly one of the most important components of good work given the COVID-19 crisis related to employee’s health and wellbeing. During the pandemic, employers have adopted various measures to promote workers mental and physical health and safety during the pandemic.
Related Articles:
Employment Engagement Part one: How to Attract and Retain Employees.
Employment Engagement Part one: How to Attract and Retain Employees.
Employees who have good quality jobs and are managed well, will not only be happier in the workplace but will also produce better quality work and feel more motivated in the workplace. With changes in the workplace over the last two years, people have switched to jobs that better suit their needs. This has made people rethink what they do, how they do it and who they do it for. The rise in remote and hybrid working has also impacted individual, team and employer engagement.
The most important element on how to attract and retain employees is purpose. Employees need to know and understand the businesses goals and values to feel connected with them. Every job has a purpose, and it is the employer’s job to help people find that purpose.
How can you show purpose?
One way you can show purpose is by giving employees recognition. People want to be recognised for how they are making a difference to the company. A good way to start recognising your employees is by creating a culture of appreciation in the workplace.
How engaged are UK employees?
According to CIPD’s Good Work Index survey, two-thirds of workers are overall satisfied with their jobs. On a day-to-day level, just over half of UK workers usually feel enthusiastic about their jobs, one in three feel “full of energy” and over half are willing to work harder than they are required to.
However, a fifth of workers feel like they are under pressure, they feel exhausted and are likely to quit their job in the next year. The Skills and Employment Survey shows that work has become more intense over recent years mainly due to the rise in customer demands, technological change, and economic recession.
Seven Dimensions of Good Work
What promotes good work in the workplace? The seven dimensions of good work outline the factors in which employees perform better in the workplace.
- Pay and Benefits
- Contracts
- Work-life balance
- Job design and the nature of work
- Relationships at work
- Employee voice
- Health and wellbeing
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Extra Bank Holiday for the Queen’s Jubilee
As you may have heard already, there will be an extra bank holiday to mark the Queens jubilee year, celebrating 70 years on the throne. The May Bank Holiday Weekend will be moved to Thursday the 2nd of June and an additional Bank Holiday on Friday the 3rd of June will see a four-day weekend to celebrate her Platinum Jubilee.
Are my employees entitled to have extra bank holiday for the Queen’s Platinum Jubilee?
It is important to note that employees do not have an automatic right to time off on a bank holiday. It will depend on the wording of their contracts.
For example, if their contracts state that their annual leave entitlement includes usual or standard bank holidays or specifies which or what numbers of bank holidays are included, they will not be entitled to this additional bank holiday.
If their contracts state that their annual leave entitlement is a certain number of days plus bank holidays, then they will be entitled to the additional day’s leave.
What are the entitlements for the extra bank holiday?
You most likely have a process in place for bank holidays, depending on whether your business needs to be staffed on these days. Here are some helpful pointers:
- Staff are entitled to the extra bank holiday if their contract states – 20 days holiday plus bank holidays.
- Staff in England and Wales are not entitled to the extra bank holiday if their contract states – 20 days holiday plus 8 bank holidays (listed).
- Staff in Scotland are not entitled to the extra bank holiday if their contract states – 20 days holiday plus 9 bank holidays (listed).
- Staff are not entitled to the extra bank holiday if their contract states – 28 days or 5.6 weeks which includes bank holidays.
If you have employees working various hours you need to remember that part-time workers should not be treated less favourably than the full-time workers.
What to do if employees are not entitled to the extra bank holiday?
You have the following options if your employees are not entitled to the extra bank holiday:
1. Open on the extra day and require your staff to work as normal.
If you decided to open on the Friday and require your staff to work, they could still request to have that day off as part of their normal annual leave entitlement. However, you do not have to grant that request.
2. Close on the extra day and require your staff to take the day as leave out of their annual leave entitlement.
If you choose this option, you will have to give your employees at least two days’ notice if they are required to use their annual leave entitlement.
3. Close on the day of the bank holiday and grant your staff an extra day’s paid leave on a discretionary basis.
Whichever option you decide to go for it would be recommended that you communicate to your staff as soon as you can.
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Pilot Testing the Four-day Working Week
For many years campaigners have been promoting the idea of a shorter working week. Nicola Sturgeon, ahead of Scottish Election in 2021, proposed a £10 million fund to allow companies to pilot and explore the benefits of a four- day working week. It was criticised that the standard 9-5 five day working week was outdated. In a recent poll it was reported that 64% of Britons would support the introduction of a four-day working week with no reduction in their pay. There is no doubt that the pandemic has influenced changes to the workplace with a lot of employers adopting the hybrid working method. The six-month pilot programme will start in the UK in June 2022. It will be conducted by a pressure group, 4 Day Week Campaign. There is hope that the four-day working week will replace the traditional 9-5. However, there are a few considerations to this implementation such as the changing of contracts, dealing with holiday entitlement and change in pay and productivity.
Changing Contracts
Once a contract is made the employer cannot make any changes without the consent from the employee. In this case changing the terms of an employment contract will need approval from the employee.
Holiday Entitlement
Legally employees are entitled to 5.6 weeks paid holiday a year (28 days inclusive of band holidays for employees working a five-day week). For someone who works four-days a week would be entitled to 22.4 days a year (inclusive of bank holidays). It is suggested that if the four-day working week was to become permanent the holiday allowances would have to reduce in line with the overall reduction in working hours. Those who worked a five-day week would result in a 20% reduction in holiday allowance.
Change in pay and productivity
The four-day working week comes with fear that employees will have to work longer hours each day to compensate for the missing day. Employees also fear that it will lead to a loss in pay for working four days instead of five. However, the Campaign calls for no reduction in the employees pay.
Furthermore, some employers who were resistant to the pilot had a concern of a decrease in levels of output leading to affects in the organisations profit. Iceland has been leading this campaign since 2015. The trials were a success, and it was found that participants maintained the same level of performance and productivity.
All in all, the campaign is advocating no reduction in the pay of employees who want to reduce their working days. It is up to employers whether they want to permanently adopt a four-day working week, there will be no change to the law to reflect this.
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Everyone's Talking About Flexible Working
Tribunal Case: Refusal to get Vaccinated
In the Allette v Scarsdale Grange Nursing Home Ltd, an employment tribunal held that a care home worker was fairly dismissed when she refused to get the vaccination against Covid-19.
Background
Ms Allette worked in a nursing home that provides residential care for people with dementia. In December 2020, staff were encouraged to have their Covid-19 vaccinations to protect their staff and residents. By the middle of January 2021, the nursing home changed their approach and required that staff had to be vaccinated to continue their employment. There had been a Covid-19 outbreak in the nursing home which resulted in the deaths of multiple residents. There was nothing in Ms Allette’s contract of employment that required her to be vaccinated nor was there anything in the nursing homes disciplinary procedure about the termination of employment due to the refusal to get the vaccine.
By the middle of January 2021, it was now made mandatory for staff in the nursing home to be vaccinated, and there was a risk of disciplinary action if she refused to get vaccinated. Ms Allette did not want to be vaccinated as she was concerned over the safety of the vaccine. She was dismissed from the workplace for gross misconduct at the start of February 2021. Her Rastafarian beliefs include being opposed to any form of non-natural medication was reason for her refusal. Her appeal against the dismissal was unsuccessful.
Tribunal Claim
Ms Allette brought claims to the employment tribunal (ET) that her dismissal was unfair due to the right to respect her private life under the European Convention on Human Rights. She also argued that the dismissal was wrongful as it was in breach of the contract.
Employment Tribunal Decision
In relation to Ms Allette’s unfair dismissal claim the ET acknowledged that the employer could have:
• Given her more opportunities to change her mind
• Placed her on unpaid or paid leave
• Sought further scientific information or material to persuade her that the vaccine was safe and necessary.
The tribunal refused to conclude that no employer would have responded the same as the care home did in the circumstances of this case.
They accepted that the nursing home cannot be in direct breach of Act.8 (on the right to respect for private life) of the European Convention on Human Rights because it is not a public authority. The tribunal went on to conclude that the employer's interference in Ms Allette's private life was justified in this case. The tribunal had to consider the balance between her right to a private life and this small employer's legal and moral obligation to protect its vulnerable residents.
When rejecting Ms Allette’s wrongful dismissal claim the ET accepted that the rights of the residents, staff members and visitors outweighed the impact that the requirement to be vaccinated had on Ms Allette.
In relation to her wrongful dismissal claim the ET accepted that there was nothing in her contract that required her to have the vaccine. However, the ET accepted that the nursing homes instructions to their employees that you had to be vaccinated to remain employed was within reason due to the:
• state of the COVID-19 pandemic nationally at that time
• consequences of the care home's outbreak
• advice on the virus and vaccination from public health authorities in England.
The ET found that there was mistrust between Ms Allette and the nursing home’s management team on what she was being told about the safety of the vaccine. According to the tribunal her decision was not made by any religious beliefs and the reason for her not to get vaccinated was unreasonable.
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Let's Get Topical - The Vaccine Policy
Covid-19: The Most Recent Tribunal Cases
There is no doubt that there is a rise in tribunal cases, recent cases include the refusal of returning to the office in fear of catching the virus. It is important as an employer to understand what employees are entitled to and understanding that there is still a fear surrounding Covid-19
Two of the most recent tribunal cases, Moore v Ecoscape UK Ltd and Lewis v The Benriach Distillery Company Limited discuss the claims and outline the decision that the employment tribunal (ET) came to.
Moore v Ecoscape UK Ltd
Ecoscape required Moore to return to working from the office. Moore sought to rely on section one hundred of the Employment Rights Act 1996, to which a dismissal is automatically unfair where an employee believes that they are in ‘serious and imminent danger’ if they leave or refuse to attend the workplace while the danger persists.
Ecoscape conducted various Covid risk assessments and adjusted the office and sanitisation procedures. They also provided Moore with a separate working space with her own equipment to address the concerns that she had. She was still reluctant to return and asked if she could work from home. Based on the nature of her work, the employer refused this request as she deals with deliveries and customers. She raised a grievance and a grievance appeal, but both were unsuccessful. She resigned and brought a claim for constructive unfair dismissal.
The ET found that the claimant’s Covid concerns related to a general fear about leaving the home and not about the employer’s workplace. She failed to involve herself with the discussions with Ecoscape about the measures they implemented and refused to visit the workplace to review those measures.
The ET concluded that Ecoscape had taken appropriate steps to accommodate the concerns of the claimant and that they failed to explore any compromises proposed by Ecoscape. In a result the claimant’s claim failed.
Lewis v The Benriach Distillery Company Limited
Mr Lewis was a forklift driver for a whisky distillery. He served 23 years of good service and was dismissed without notice for attending work when his son informed him of having symptoms of Covid-19 and had booked a Covid test. Lewis did not believe his son’s symptoms (a cough and loss of smell) were genuine. He thought his son was faking his symptoms so he could get off work.
At the time the Scottish government’s guidance required anyone who lived with someone displaying symptoms to isolate. His sons test came back positive the next day and Lewis was dismissed for gross misconduct.
An ET found that Lewis’ dismissal was unfair. There was nothing in the government’s guidance that would require someone to self-isolate if Lewis genuinely believed that his son was not in fact displaying Covid symptoms.
While assessing the case, the employer should have taken into consideration:
his 23 years of good service
his record of compliance with Covid guidance; and
that there was no advantage to him in attending work or disadvantage in not attending work – he would be paid in either case.
The ET found that there was some contributory fault from Lewis so reduced his financial awards by 25%.
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The Omicron Variant & The Workplace
