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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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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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
Remote Working: What are the risks? How to Manage them.
It is evident that remote working, whether it be fully remote or part of a hybrid working model, is a preferred choice for many employees. For employers, remote working comes with multiple risks that must be managed carefully.
What are these risks?
Employee Isolation- When working from home, it is easy to sit at the desk for the entire day and not take a break. This can lead to potential burnout. In the office it is easy to take a five-minute break for a cup of tea or just a stretch. Furthermore, employees may feel that they are less capable of having access to the appropriate support from colleagues or management. It is important the employees are aware that the same support is available to them whether they are working in the office or at home.
Data protection breaches- There is no doubt that protecting employees, contacts and customers personal data and confidentiality when they are all working from a central location is a lot easier to manage. Employees who work remotely and live in shared accommodation or use public Wi-Fi networks for work can risk data being seen and obtained by third parties.
Overlooking health and safety responsibilities- It is important that employers do not forget that they are obliged to protect the health and safety of their employees at work, whether they work remotely or at the office.
How to Manage the Risks
Promote collaboration - Try have regular Zoom/Team meetings to stay connected with colleagues. Here, employees can share their ideas with one another and an easy way to stay in contact with each other.
Raise awareness of employees’ data protection obligations - Employers should amend their data protection policy to suit the different employee circumstances. E.g., how to deal with storing documents safely, how they should be destroyed, and who has access to them. Furthermore, employers should provide training sessions on data compliance to ensure that they are made aware of their responsibilities whether they are working from home or the office.
Carry out health and safety assessments- Employers should update their health and safety policies so that they risk assess every employee’s remote working place. They should consider how safe the employee’s work set up is and how they can help them.
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Case Law: Discriminatory Dismissal
In the recent case of Stott v Ralli Ltd the Employment Appeal Tribunal ruled that the dismissal of an employee was not an act of discrimination arising from disability. In this case the Claimant was employed as a paralegal by Ralli Ltd for approximately three months. Ms Stott was dismissed by her employer due to poor performance and was paid lieu in notice. Following the dismissal meeting, the Claimant raised a grievance against Ralli Ltd and stated that Ralli had been informed of her mental health issues in several communications. At the grievance meeting, she stated that her disabilities were mental health issues, anxiety, depression and a heart condition which she claimed had affected her performance.
Ralli rejected her grievance, stating that they had not been informed about her disabilities. Her appeal against the rejection was also unsuccessful. The Claimant then went on to bring a claim in the Employment Tribunal for discrimination arising from disability in relation to her dismissal. Ralli accepted that the Claimant had a mental impairment amounting to a disability at the time of her dismissal but argued that it had not been known about at the time and that it had only been raised after her dismissal.
The Employment Tribunal dismissed Ms Stott's claim, finding that the Claimant had been dismissed for poor performance and that the Claimant had not disclosed her impairment to Ralli prior to her dismissal. Had the Claimant pleaded her claim more widely to include post-dismissal discrimination, relating to the grievance process and subsequent treatment (when the employer had knowledge of her disability) the outcome may have been different.
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Employer Update: Statutory Sick Pay Rebate Scheme
Following on from our previous blog post where we discussed 'The Omicron Variant & The Workplace', it is evident that many employers and employees are still being hugely affected by COVID-19 and as such the topic of the Sick Pay Rebate Scheme has re-appeared. It has been announced that the Sick Pay Rebate Scheme will be reintroduced across the UK with effect from the 14th of January 2022.
The Scheme allows employers with fewer than 250 employees to recover up to two weeks' Statutory Sick Pay for each employee who is unable to work due to Covid-19 in relation to days of absence after the 20th of December 2021 (even if the period of absence began on or prior to this date). The Scheme also extends to employees who are absent due to a requirement to self-isolate. Employers must submit any relevant claims by no later than 24 March 2022. Employers can make more than one claim per employee, but they cannot claim for more than 2 weeks in total.
The online service employers will use to claim back Statutory Sick Pay (SSP) is now available.
Employers are reminded that they must keep the following records for 3 years after the date they receive payment for their claim:
- the dates the employee was off sick
- which of those dates were qualifying days
- the reason they said they were off work – if they had symptoms, someone they lived with had symptoms or they were shielding
- the employee’s National Insurance number
Employers can choose how they keep records of their employees’ sickness absence but it is important these records are kept as the HMRC may need to see these records if a dispute was to arise in relation to over payment of SSP.
Employers will also need to print or save their state aid declaration (from their claim summary) and keep this until the 31st of December 2024.
Other Important Points for Employers to Note:
- It remains a criminal offence for an employer to knowingly allow a worker to attend the workplace when they are required to be self-isolating and as such it is critical that employers understand these new rules and review their policies and procedures accordingly.
- Employers are still under a duty of care to provide a safe system of work for their employees and this includes employees who are clinically vulnerable to Covid-19.
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The Omicron Variant & The Workplace
Given the recent number of omicron cases in the United Kingdom, the Government has imposed new measures to help combat this new variant but what does this mean for the employer and the workplace?
- Employers should continue to review and, if necessary, update their COVID-19 risk assessment in light of the new variant. For example, consider whether in-person meetings should be reduced or even scrapped for the time being to limit the risk of spread and to protect the most vulnerable members of staff.
- They should continue to encourage their staff to get vaccinated and extend this encouragement to boosters also.
- Any existing vaccination policy should be updated to take into account vaccine boosters.
- Consider making the wearing of face masks compulsory in communal areas if this is not already the case.
- Employers should consider relaxing any requirements for staff to attend the workplace. This would be conducted as part of updating the workplace risk assessment. Although the Government is not explicitly advising people to work from home, they are placing the burden on employers to consider whether this is the appropriate approach.
- Employers should consider putting contingency plans in place to deal with the possibility of increased absences as a result of staff being required to self-isolate, either because they have tested positive for coronavirus or they have been instructed to isolate because they have been identified as a close contact of someone who has tested positive to the Omicron variant. They must also consider
how any unexpected absences will be dealt with as a result of staff having to self-isolate upon return from any holiday abroad during the festive period. This should be communicated to staff as soon as possible to avoid/manage any possible complaints.
And lastly the big question for employers is can Christmas parties go ahead?
Although the Prime Minister, Boris Johnson, has said that the Government does not want Christmas parties to be cancelled because of the Omicron variant, there have been reports of pubs, restaurants and hotels across the UK receiving cancellations of bookings for Christmas parties and events amid fears about the variant.
It is important to realise that staff may be nervous about attending such events and therefore it is advisable for employers to communicate with heir employees as to how they feel about such an event and react accordingly. If Christmas parties are to go ahead, employers should consider additional safety measures, such as sight of a negative lateral flow test result before entry.
The key message to employers is to watch developments closely, follow government guidance and to be ready to react quickly in order to adapt to any further measures introduced by the Government in response to the Omicron variant.
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Proposed Family Leave Changes for 2022
The upcoming new year brings with it many changes/ updates to legislation. The Department for Work and Pensions (DWP) has published its proposed Pension and Benefit Rates for the year 2022/2023. The rates show increases to statutory benefits such as sick pay, maternity pay, paternity pay, shared parental pay and adoption pay which will be confirmed by secondary legislation.
From the 11th of April 2022, the following rates are expected to apply:
- The weekly rate of statutory sick pay (SSP) will increase to £99.35
- The weekly rate of statutory maternity pay (SMP) and maternity allowance will increase to £156.66
- The weekly rate of statutory paternity pay (SPP) will increase to £156.66
- The weekly rate of statutory shared parental pay (ShPP) will increase to £156.66
- The weekly rate of statutory adoption pay (SAP) will increase to £156.66
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