Employment Law Update | January 2021
Employment Law Update | January 2021
Our HR Consultant, Daniel Meyer-Lopez, provides us with the Employment Law Update – January 2021.
Furlough the yellow brick road?
Following further restrictions being placed on the entire country, it is likely that a lot of businesses will benefit from the ‘furlough’ scheme which has been extended until the end of April 2021.
At present, the scheme still allows businesses to fully or ‘flexibly’ furlough their staff members subject to the needs of the business. This has to be done for at least seven days, i.e. any agreement has to last for at least seven days to be valid.
Employers must enter into a furlough agreement with their staff. Especially where they are only paying 80% of their salary as this will amount to a change to their terms and conditions. At HPC we have these agreements and we can prepare these for you.
Sick of it all?
In last month’s employment law update, we discussed absence and how to address it.
Just to remind you, according to the Office for National Statistics (ONS) in the year 141.1 million days were ‘lost’ in 2018 due to illness or minor injuries.
We always highlight the need to ‘get it right’ and to make sure you follow a fair process if you are dismissing staff members on the basis of ill health.
Jaguar Land Rover Case
Once again, ill health makes it in the news following another high profile case against a large employer – this time, Jaguar Land Rover (JLR).
The case relates to Mr V Rumbold (the Claimant). He had worked for JLR for several years and had been absent for a total of 808 shifts due to problems with his hip. He had triggered the absence process due to the high level of absences.
The Claimant was due to attend an Occupational Health (OH) but failed to do so as he stated that he was not aware of the appointment.
The Claimant was asked to attend an investigation meeting for (amongst other things) his levels of absence, failure to follow the correct reporting procedure, and his alleged failure to engage in the occupational health reviews. He was essentially dismissed for these reasons.
The Claimant appealed the decisions on the basis that he felt that the decision had been ‘prejudged’.
Following the dismissal, he submitted a claim for disability discrimination.
The Tribunal found in the Claimant’s favour on the basis that JLR had not followed their own absence process. The fact that JLR is a large organisation with access to both HR and OH functions there was no excuse to not ‘get it right’.
The Tribunal did however make a deduction to any compensation awarded on the basis that the Claimant had not fully engaged in the process himself and so was guilty of ‘contributory fault’.
This case highlights a number of issues that employers always need to consider:-
- If you have a sickness absence policy, make sure you follow it. Tribunals will come down on businesses for not following their own policy;
- If employees are being referred to occupational health, make sure that they attend the meetings. This is because if there is no up-to-date medical evidence then businesses will be at significant risk;
- The size of the business will be taken into account when considering whether the business acted ‘fairly’;
- Make sure you obtain advice on the process and how best to follow it. This case highlights that if you don’t follow your own process you will be criticised;
- It is always risky to discipline someone for long term absence as they are likely to be considered disabled under the Equality Act 2010.
In cases like this, there is always an option to enter into a settlement agreement to end the employee’s relationship. In the JLR case above, the employee had been paid over £95,000 in sick pay. Employers need to therefore be conscious of the ongoing cost of employment versus entering into a settlement agreement.
With the recent announcement to ‘Stay at Home’, businesses are once again forced to send their staff to work from home.
There are a number of issues that this brings with it which I will cover off.
It is so important to make sure that you are in contact with your staff. People deal with the lockdowns in different ways. Some people will love being at home as they may use that time to get in shape (it is January after all). However, there are some who may have little or no support network or who may be juggling work and homeschooling because for example their partner works nights and sleeps during the day or they are a single parent. It is therefore important to keep in touch with your staff regularly.
There was a report published on LinkedIn stating that some people were working between 50 and 70 hours a week during the first lockdown. It is very easy to not switch off when working from home as you can ‘just log back on’ or ‘just check my e-mails’. It is a good message to remind staff of the need to take time for themselves too and to monitor how your staff are working. If you receive e-mails from employees at 8.00 pm and they normally work until 5.30 pm then you are under a duty as an employer to make sure that they are not over-working. As staff could then go on sick leave if they are constantly working excessive hours.
You may find that productivity falls during the lockdown. You need to factor in employees’ own personal circumstances. If they are juggling homeschooling and work, initially speak to your employee and find out what the issues are and how the business can support them.
Once you have spoken with your employee, if the issues are purely not working, or not performing to the normal level, then this can be addressed by way of the usual performance management route.
If you have any concerns or would like to discuss anything further, please get in contact with the HPC team today.
T: 0844 800 5932