Now that the government have confirmed face coverings are no longer compulsory in hospitality shops or on public transport in England from 19th of July, businesses will be asking what the implications of this are for them.

From next Monday, rules change, instructing those in England to make their own decisions around whether they want to wear a face covering. Discuss businesses more flexibility in deciding whether or not to require the workforce to continue to wear facemasks within the workplace.

However government advice is to continue the encouragement of wearing face coverings if indoors around a large volume of strangers. Ultimately, within the workplace it is down to the employer whether or not face coverings are mandatory.

It has however been announced that on transport for London services and Manchester trams, face coverings will be a condition of travel except for those who are medically exempt.

In Scotland and Wales the rules are different, face coverings are still required in certain settings. Here we discuss what this means in practice for English employers…

Should I stop asking my team to wear face coverings in the workplace now that rules have been relaxed?

As a business, you still have a duty of care to safeguard health, safety and well-being of your workforce. This has not changed because of fluctuating government advice regarding face coverings.

In making your decision you should consider the nature of your team and listen to any concerns that were raised that is likely to be employees who welcome not wearing a face covering stop space however face coverings I worn to protect others around an individual rather than the individual themselves.

You may have younger employees who aren’t vaccinated yet or clinically vulnerable employees with concerns around other colleagues not wearing face coverings.

Employers need to review the coronavirus risk assessment in view of these changes. Reviewing your risk assessment will aid in a decision on which measures such as face coverings need to stay for the time being. Moreover, your policy on face coverings in the workplace needs to be updated and communicated to the workforce so that employees understand what the rules are.

If you do decide to make face coverings mandatory, remember that some of your workforce may be clinically exempt.

Alternatively, you may want to implement a policy that face coverings are no longer mandatory however if staff feel more comfortable wearing a face covering that they are welcome to do so or face coverings are only required in certain situations, such as large meetings etc.

Be prepared for resistance from employees that haven’t got the desired outcome from your new policy. Employees are however expected to comply with any workplace policies set by the employer. However, to manage any resistance to the changes, try to accommodate requests from individuals who are not happy with the outcome, and explain how their requests have been taken into account in your coronavirus risk assessment.

Also, it’s worth bearing in mind that public transport may also be a concern to employees, if others are no longer required to wear a face covering particularly in busy travel periods such as rush-hour.

If I eliminate face coverings in the workplace what can I do to ease concern from employees?

From HR and health and safety perspective, here are the measures to consider to help your workforce transition to returning to the office.

– encourage social distancing
– ensure work areas are well ventilated with open windows if possible
– continue with regular coronavirus testing in the workplace
– ensure excellent workplace cleanliness with plenty of hand sanitiser and extra hygiene measures
– allow employees to wear face coverings if they want to
– have a section in your face covering policy stating that if employees request colleagues within close proximity to wear a face covering that they do so
– remind employees to respect that colleagues wishes; there are many reasons employees may be uncomfortable with not wearing face masks which are not immediately apparent
– inform colleagues that it’s okay to politely let someone know that they aren’t comfortable with someone being close to them without a face covering on
– send out a letter (we can provide this for you) to encourage vaccine take up amongst employees
– if at all possible, consider paying employees on sickness absence leave with coronavirus in full (although it’s difficult for an employee to prove that they caught coronavirus at work, it will ease concerns that employees know if they do contracted the virus they won’t suffer financially)
– where possible, allow vulnerable workers to work from home until the majority of the workforce is vaccinated
– consider adjusting working hours for concerned employees so that they can avoid peak travel times

Summary

From next Monday (19 July 2021), it will be the employers choice whether or not to require the workforce to wear face coverings in the workplace.

Trying to balance the individual circumstances of employees will be a difficult task for employers.

Whichever decision employers come to is likely to be met with resistance from employees that oppose your decision. Ensure employee concerns are listened to, and the workplace coronavirus risk assessment is revised and available for employees to view.

Keep your risk assessment under regular review to control measures to combat the virus spreading.

Be prepared to justify your approach to the workforce. If you think you would benefit from assistance with anything discussed in this article, or anything else HR and employment law related, give our friendly team a ring today on 0161 603 2156 to discuss how we can help.

It’s pride month, and here at Supportis HQ we celebrate our LGBTQIA+ colleagues, clients and contacts all year round. We believe allyship in and out of the workplace is so important as an antidote to isolation for those targeted by oppression. In the last few days a major decision has been released from the Employment Tribunal regarding workplace views on transgenderism, here we discuss the implications of this decision, which some have condemned as regressive…

In this article, we discuss the case of Maya Forstater v CGD Europe and others, in which the Appeal Tribunal has held that a person’s views on whether someone else can identify as a different sex and gender to the one they were assigned at birth (identifying as transgender) is a philosophical belief and therefore protected under s.10 of the Equality Act 2010.

Ms Forstater, the claimant, tweeted that people can’t change their biological sex, and questioned government plans to permit people to declare their own gender.

Subsequently her contract wasn’t renewed following investigation after complaints from multiple colleagues who were offended by her comments, that she defined as “material reality”.

The claimant complained that she was discriminated against due to her beliefs. The employment tribunal (ET) then held a preliminary hearing to work out whether her beliefs were a “philosophical” within the meaning of The Equality Act 2010.

The ET described her belief as absolutist, and said that her decision to “refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment”, was one that was “not worthy of respect in a democratic society”.

However, the EAT (appeal tribunal) found that Ms Forstater’s belief did fall into the 2010 Act.

The matter will now, the EAT ruled, be remitted to a freshly constituted ET to work out whether the treatment about which she complains was due to or associated with that belief. However, Mr Justice Choudhury made it clear that this judgment doesn’t mean that the EAT has expressed any view on the merits of either side of the transgender debate.

He also emphasised that the judgment doesn’t mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity and nor does it mean that businesses won’t be ready to provide a secure environment for transgender persons.

This EAT ruling has been described as a step backwards for inclusivity and equality for all.

HR implications

Although EAT rulings are binding, it’s still uncertain whether this decision are going to be appealed and whether a Court of Appeal will side with the ET or this recent EAT decision.

As was made clear by the EAT judge, the choice during this case doesn’t allow individuals the liberty to harass others who don’t share their “philosophical beliefs” – simply because a view is classed as philosophical doesn’t mean that individuals can’t be mindful of how they manifest those beliefs.

With that said, employers must be mindful of the difference between an employee having certain views, however offensive, and using those views to cause offence or to harass others. this might be the difference between a good and unfair dismissal or discrimination of the individual who holds the philosophical belief. Crucially, where cases like this are observed within a company, it should be thoroughly investigated and a thorough disciplinary, or grievance, procedure needs to be followed.

If you think your business would benefit from watertight policies, procedures and round the clock HR advice contact our friendly team today to see how we can help on 0161 603 2156.

 

There has been speculation for a while around whether getting the coronavirus vaccination will become compulsory for things like jobs and travel.

Reports now indicate  the Government will indeed shortly confirm that he COVID-19 vaccine will be compulsory for workers in care homes. Although nothing is yet set in stone, it’s thought that affected staff will have a period of 16 weeks to get vaccinated, or face redeployment and possibly job termination in around 10,000 care homes across England.

It’s thought this will apply to care homes in England that:

• are CQC-registered;
• have at least 1 resident over 65; and
• where the worker has no medical exemption from having the vaccine.

Similar rules could be put in place for other healthcare staff. Although nothing is confirmed, here’s what we know so far…

The Government is considering amending the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 to increase vaccine take up

This would mean older adult care home providers could only use those staff who have received the Covid-19 vaccination (or those with a legitimate medical exemption) in line with Government guidance.

The Department of Health and Social Care (DHSC) explained: ‘older adults in care homes have been significantly affected by the pandemic because of their heightened risk of infection, often with devastating consequences, as well as the risk of outbreaks in these closed settings,’

In this context, a consultation has launched (now closed) seeking views on proposals to make the vaccination a condition of deployment in older adult care homes.

The Social Care subsection of the Scientific Advisory Group for Emergencies (SAGE) has advised that an uptake rate of 80% in staff and 90% in residents in each individual care home setting would be needed to provide a minimum level of protection against outbreaks of COVID-19.

This is for a single dose against the current dominating variant.

As of 4 April, 78.9 per cent of all eligible workers in all older adult care homes had received at least their first vaccination.

However, this masks significant variation at a regional, local and individual care home level. As of 8 April, 89 local authorities have a staff vaccination rate under 80 per cent, including all 32 London Boroughs, while 27 local authorities have a staff vaccination rate under 70 per cent.

The consultation document is currently being translated into a range of languages including Albanian, Arabic, Bengali, Chinese, Kurdish, Nepali, Punjabi, Polish, Romanian, Somali, Turkish, Ukrainian and Urdu.

What is the consultation considering? 

Care home managers are ultimately responsible for the safety of people living in their care. Under the proposed change to regulations, it would therefore be their responsibility to check evidence that workers deployed in the home are vaccinated, or medically exempt from vaccination. This means that workers would need to provide evidence to the manager that they have been vaccinated.

As a result, the government is carefully considering the best way for people to prove that they have been vaccinated to their employer. This may involve, for example, showing vaccination status on a mobile phone app. The government is also considering the least burdensome way for people to demonstrate to care home organisations that they are medically exempt from vaccination.

Looking at how this requirement would be introduced, the government is evaluating what would be an appropriate grace period for new and existing care home workers before they are required to be vaccinated. It is likely that care home managers would be expected to keep a record of vaccinations as part of their staff employment and occupational health records.

The intension is to permit care homes to retain a skilled, compassionate and caring workforce, keep the workforce and the people they care for safe, and make working in adult social care an attractive career choice. It is recognised that some people may choose not to be vaccinated, even if the vaccination is clinically appropriate for them. In these circumstances they will no longer be able to be deployed in a care home setting and providers will need to manage this in a way which does not destabilise the provision of safe, high quality care.

Care home managers are being asked to anticipate how they would respond to the requirement, thinking about staff who are not vaccinated. For example, would they expect to redeploy unvaccinated staff or cease employment for unvaccinated staff? These potential options should be taken into consideration.

If you have any queries around this subject, or anything else HR and employment law, give our friendly team a call on 0161 603 2156 to discuss how we could help your business flourish.

We get this question a lot at Supportis… can I ask about an applicant’s health at pre-employment stage?

Only in EXCEPTIONAL circumstances can you ask about an applicant’s health at pre-employment stage such as:

👉 to find out whether a job applicant will be able to carry out an intrinsic part of the job
👉 to find out if a job applicant can take part in any assessment to test their ability to do the job or to find out if reasonable adjustments are needed to enable a disabled job applicant to take part in any assessment
👉 to monitor the diversity of people applying for the job
👉 where another legal requirement means an employer has to ask health- or disability-related questions. For example, Merchant Shipping Regulations prohibit the employment of seafarers unless they have a valid medical fitness certificate

Our key word is NECESSITY – is it absolutely necessary to ask? 💡

Our golden rule is the information relating to health and/disability should be collected separately from other information given in the application for the job ✅

The Equality and Human Rights Commission (EHRC) has recently found that a care agency asked unlawful pre-employment health questions on a job application form.

The National AIDS Trust reported that Elite Careplus Limited (ECL) was questioning applicants’ health during their recruitment process.

The EHRC reminded employers that the Equality Act 2010 makes it unlawful for employers to ask about an applicant’s health or disability before they have been offered the job, or before including them in a pool of successful candidates to be offered a role at a later date, except in specified situations.

It has provided this information about pre-employment health questions.

The EHRC Chief Executive said ‘Disabled people often face significant barriers to employment and are twice as likely to be unemployed. No one should be put off from applying for a job out of fear of being asked detailed and unnecessary questions about their health. Employers might think they’re doing the right thing when they ask these questions, but not only are they unlawful, they risk ruling out great potential employees.”’

ECL, which has now changed its practices, previously included a medical questionnaire asking applicants if they ever had a number of health conditions. These included, but were not limited to:

• tuberculosis, asthma, bronchitis or chest complaints
• depression, mental illness or nervous breakdown
• dermatitis or skin trouble.

Potential recruits were also asked if there was:

• any current/recent medication condition or treatment which might affect attendance or performance at work
• any illness/medical condition that prevented you from attending work, normal duties or activities for more than one week during the past year

If you have any questions about HR or Employment law, please don’t hesitate to contact our friendly team today on 0161 603 2156 today to discuss how we can assist your business in staying legally compliant.

In 2020, the UK government announced that reforms to the off payroll working rules (IR35) would be postponed until 6 April 2021 due to the pandemic.

HMRC introduced IR35 (aka the ‘off-payroll working rules’) in April 2000 to legislate what it calls ‘disguised’ employment.

The name IR35 originates from this press release published at the time by HMRC.

So what is IR35?

IR35 assesses whether a contractor is a genuine contractor as opposed to a ‘disguised’ employee, for tax purposes.

IR35 are 2 sets of anti-tax avoidance legislation, designed to combat tax avoidance by employers and contractors who supply services to their clients via an intermediary, such as a limited company, but who would otherwise be deemed as an employee if the intermediary was not used.

IR35 seeks to limit contractors and their clients taking advantage of tax rules by working in a self-employed style, when they should be deemed employees.

We’re a small company. Does IR35 apply to us?

New IR35 rules apply exclusively to private sector medium-large sized businesses and all public sector companies. By virtue of the Companies Act 2006 provisions, small private sector businesses are exempt from the IR35 rules.

How do I know my business is classed as ‘small’?:

• Annual turnover must be less than £10.2 million;
• Balance sheet total must be less than £5.1 million; and
• You have up to 50 employees

I am a contractor working for a public sector/large private sector business. What does this mean?

• Under IR35, you must pay the same tax as you would if you were an employee. You may also be entitled to additional employee/worker rights (e.g. minimum wage, maternity pay, discrimination protections)
• You will also have to pay a ‘deemed employment payment’ when the current tax year elapses, to account for any tax deductions or NIC that an employee would have paid. Work out what you owe here

I operate as a business and am therefore outside of the IR35 rules. What does this mean?

If you operate as a genuine business, you are outside of the IR35 rules. Some indicators that you fall outside of IR35 include:

• You can pay yourself a salary
• You can withdraw further income as dividends (not subject to NIC) whilst your limited company pays tax only on its profits at the corporate 20% rate
• You have your own business insurance
• You own your own equipment
• You market yourself using a professional website
• You work with multiple clients

What do the IR35 changes mean?

In 2000, when IR35 first came into force, contractors were responsible for assessing their own IR35 status; it was the individual’s limited company/agency who had responsibility for accounting for any tax and NIC due where IR35 was applicable.

From April 6 2021, responsibilities for determining IR35 status and paying relevant tax will be passed from contractors to the private sector businesses engaging them – to align with the public sector.

Should HMRC decide status has been incorrectly assessed (operating inside IR35), the businesses will be held liable rather than the contractor.

IR35 private sector reforms exclude small business’, meaning contractors who engage their services will have to set their own IR35 status.

IR35 applies to me. What do I do?

You will have to pay the extra income tax and NICs. To find out your employment status for tax click here

To find out how much you will have to pay, click here

Also:

• Keep an eye on the news for any related updates
• Ensure to maintain consistent assessments of your engagements
• Pay your tax and NI relevant to your status and keep records of payment
• Make sure the work you provide complies with your written agreements
• Review your IR35 status if anything about your working practices changes
• Keep due diligence records
• Ensure communication and agreement with your contractors

Please note that this article is purely advisory, and the official government IR35 guidance is available here. Please give us a call on 0161 603 2156 if you have any further queries for anything HR or health and safety related, we will be happy to assist.

Case Spotlight: Northbay Pelagic Ltd v Anderson

In the recent case of Northbay Pelagic Ltd v Anderson, it was held at the Employment Appeal Tribunal (EAT) that the Employer’s decision to dismiss the employee, because the employee had installed a surveillance camera at work, was in fact unfair.

The complainant was a director and employee of the company, a fishing business, and relations between himself and other Directors had broken down.

In 2016, Mr Anderson was put on suspension for disobeying a reasonable management instruction, and subsequently dismissed for gross misconduct then removed as a director from the company.

There were various grounds given for his dismissal, including failure to follow management instructions and also that following the initial suspension, Mr Anderson had installed a surveillance camera inside his office. A claim was brought at the Employment Tribunal for unfair dismissal.

The tribunal considered that around the time of dismissal, Mr Anderon had raised suspicions around another Director that had sought access to the complainant’s computer password.

Tribunal Decision

The tribunal held that the complainant suspicions were reasonable; by setting up the surveillance camera, Mr Anderson had taken measures to see if his personal data was being accessed without his knowledge or consent. The camera was found not to be covert as it covered both the complainant’s office and another office next door, and also because there was other CCTV in the office building.

The Employment Tribunal upheld the claim and decided that Mr Anderson’s dismissal was unreasonable, as the camera was not covert, so using the camera as a reason for dismissal was not a reasonable ground.

The employer put in an appeal to the EAT and argued that the ET had decided that the dismissal was unfair instead of viewing the fairness through the eyes of the employer. The appeal was rejected, as it was held that the complainant’s actions were demonstrative of him trying to protect his interests as an employee, a director, manager and a shareholder of the business.

The Appeal Tribunal held that the privacy of the other staff in the office was not threatened by the installation of the camera, as there was no evidence of other staff being caught on camera, and it was only those who were trying to access Mr Anderson’s office that were captured on the camera.

Northbay failed to fulfil its obligation to balance the complainant’s interests in protecting his confidential information with the other staff’s privacy rights, the EAT found.

The EAT disagreed with the initial tribunal’s reasoning that the camera was not covert. However, the EAT upheld the decision that the dismissal of Mr Anderson fell outside the band of reasonable responses.

Mr Anderson’s failure to follow a management instruction was remitted to a fresh tribunal to reconsider.

Implications for Employers

If an employee installs a covert camera at the workplace, this could amount to serious or gross misconduct and/or breach of the implied term of confidence and trust between the employer/employee.

Careful investigation into the employee’s reasons for the covert surveillance must be undertaken by the Employer in these instances, for example if the employee has evidence that their privacy was at risk of being breached.

Employers should not jump straight to summary dismissal if a covert camera is found. Instead they should weigh up the employee’s interest to protect confidential information against its own interests, including the privacy rights of other staff, before deciding to dismiss.

While every case is dependant on the facts, Employers should approach this topic with caution; where the risk to privacy of other employees is negligible, a dismissal for gross misconduct may not be justifiable.

Further Advice

If you need any advice on this topic, or anything else HR-related, please give us a call on 0161 603 2156 today for a free, no-obligation chat around how we can protect your business.