Welcome to the October edition of Network. In this edition we look at dealing with the long term implications of COVID-19 in the workplace including the benefit of having a specific COVID policy, the issues arising from employees working from home, the Job Retention Bonus Scheme and an interesting case relating to gender identity.
At the time of writing, we are still awaiting the Government’s further guidance of the Job Support Scheme and as soon as we receive this we will send you a separate update.
If you have any queries in relation to the articles below please do not hesitate to contact one of the Employment Team. Our contact details are below.
Head of Employment
What are the benefits of a COVID-19 policy?
Unsurprisingly, we have received a large number of queries from our clients in relation to the minefield of Covid-19 rules that have been introduced this year and the effect that they have on employment contracts, policies and procedures. We have been recommending to our clients that instead of employers dealing with matters on a piecemeal basis (such as whether their employees are entitled to Statutory Sick Pay (SSP) when self-isolating, or whether employees can be disciplined for not following social distancing rules), they put in place a “Covid-19 policy” which complements and can be read alongside your existing policies and procedures. In this article, we explore the key topics that we recommend are covered within a “Covid-19 policy”.
SSP - this year, the Social Security Contributions and Benefits Act 1992 was amended to include specific situations that an employee would be “deemed incapacitated” and therefore entitled to SSP. For example, an employee will usually be entitled to SSP if they are self-isolating for a reason related to Covid-19, if they have tested positive for Covid-19 or, from 26 August 2020, if they are required to self-isolate prior to admission to hospital. In these circumstances, SSP can now be paid from the first day of absence. A Covid-19 policy would be a reference point for employees and employers alike to establish the pay they are entitled to in their specific situation.
The notification of absence requirements has also changed in relation to Covid-19 due to the introduction of an isolation note from NHS 111. A notification from the NHS or Public Health Authority that the employee is required to self-isolate will also be sufficient evidence of incapacity for the employee to receive SSP. Employers’ current sickness absence reporting procedures will not cover such forms of evidence and therefore it will be useful to have a complementing policy to the employer’s usual sickness absence policy amending these rules in cases relating to coronavirus.
Homeworking - another prevalent matter in the wake of coronavirus which we consider in further detail elsewhere within NeTWork is homeworking. It is important that employers have clarified the rules that are in place whilst employees are working from home, particularly where this is a temporary arrangement. A Covid-19 policy should cover matters such as health and safety, data protection and the employees’ normal contractual requirements such as hours of work and place of work whilst working from home.
Holiday Arrangements - many employers have already put in place special rules in relation to holiday due to Covid-19 including requiring employees to either take or cancel their holiday and allowing employees to carry over additional holiday into the following holiday year. No doubt, these new rules have not been reflected in employers’ holiday's policies or been included in the employee’s contract of employment, due to their temporary nature. However, it is important that both employees and employers understand the rules surrounding the holiday and carry over that have been introduced under the Working Time (Coronavirus) Amendment Regulations 2020 and in light of an employer’s health and safety obligations.
Health & Safety - employers have a duty of care to ensure that they take reasonable steps to ensure the working environment is safe. Most employers will already have in place a general health and safety policy, however, additional considerations may be required in relation to coronavirus such as maintaining a Covid secure workplace, working from home and protecting the employees’ health and safety outside of the workplace. In addition, employees have their own duty to take reasonable care of their health and safety and of anyone who may be affected by their acts or omissions while at work. A Covid-19 policy would set out the steps that can be taken if an employee fails to uphold this duty.
Travel - finally, a serious issue between employers and employees has been whether or not employees are able to travel, including whether employers can require employees to travel for work both within the UK and abroad, and whether the employee has complete freedom over whether or not they travel overseas during non-working time and their annual leave. We would recommend that employers set out clear rules on their expectations regarding travel in a COVID-19 policy.
While every individual employee has been affected in a different way by Covid-19, having a clear policy setting out all the statutory rules that have been introduced this year, without having to amend existing policies and contracts, will no doubt be invaluable for employers during this period. Taylor Walton can assist you in creating a Covid-19 policy appropriate for your business, taking account both the measures and procedures that you have already put in place alongside the statutory requirements that have arisen throughout the year.
Working from home – key considerations for employers
In light of the Government’s recent announcement that we should now work from home where possible, many employees will return to or continue working from home for the foreseeable future.
In this article, we discuss some key considerations for employers in relation to home working arrangements:
Health and Safety – the duty of the employer to provide a safe working environment to continue to apply where the employee is working from home. It may be necessary to consider undertaking risk assessments and the provision of appropriate equipment to enable employees to work comfortably from home. Employers should also bear in mind the impact of working from home on the mental wellbeing of employees and ensure that employees are aware of how to contact their managers and given appropriate support. Both ACAS and the HSE have produced helpful guidance to assist employers.
Special consideration may need to be given to disabled employees who have reasonable adjustments in place whilst in the office. These adjustments should be replicated at home so far as possible.
Employers should also ensure that any existing insurance policies (such as employer’s liability insurance) continue to cover employees based at home.
Managing staff and communication – consideration should be given to whether managers have the tools in place to enable them to manage their staff and ensure that they are being productive.
Confidentiality – where staff are handling or accessing confidential or personal information, it will be necessary to put appropriate safeguards in place to protect that information. It may be necessary to implement new procedures to ensure that staff are aware of the requirements. All employers should refer to the ICO guidance on the risks presented by homeworking.
Expenses and allowances - employees are likely to incur additional expenses as a result of home working which the employer may need to reimburse. HMRC has recently published guidance on how to deal with expenses relating to homeworking. If employers do not have an agreement with the employee to reimburse additional household expenses caused by homeworking, the employee may be entitled to claim a tax relief directly from HMRC.
Where an allowance is given to an employee in relation to homeworking, consideration will need to be given to its taxable status.
Requests to work from abroad – we have noticed an increase in employees seeking permission to work from home from a different country. Before agreeing to such a request, employers should carefully consider the implications of these arrangements. There may be an impact on tax and insurance arrangements. The risk of local mandatory or health and safety laws applying to the employee should also be assessed.
Policies and procedures – as employees may be working from home for a lengthy period, it is advisable to review policies, procedures and other documentation to assess whether the challenges that may be presented by home working are properly addressed. If not, you may consider putting in place a specific Covid-19 policy to complement your existing policies.
Job Retention Bonus Scheme
On 8 July 2020, the Chancellor of the Exchequer announced that where employers keep on previously furloughed employees in meaningful employment until 31 January 2021, they may be eligible to receive a one-off bonus payment of £1,000 per employee.
All employers are eligible for the scheme and will be able to claim the Job Retention Bonus for any employee (including officeholders, directors and agency workers) that:
- met the eligibility criteria for the Coronavirus Job Retention Scheme and which the employer claimed a grant for;
- earns at least £520 per month on average between 1 November 2020 and 31 January 2021 (a total of at least £1,560 across the 3 months);
- has remained continuously employed through to 31 January 2021;
- have up-to-date Real-Time Information records for the period to the end of January 2021; and
- are not serving a contractual or statutory notice period that started before 1 February 2021.
Employers will need to ensure that they have maintained up-to-date and accurate payroll records, complied with their PAYE filing obligations and maintained enrolment for PAYE online, and have a UK bank account. Employers should now make sure they are accurately reporting their employee’s details and wages on the Full Payment Submission through the RTI reporting systems and that they have submitted all of their CJRS claims accurately and all necessary amendments have been notified to HMRC.
The Job Retention Bonus will be able to be claimed from February 2021. The bonus will be taxable and will form part of taxable profit for the purposes of Corporation Tax or Self-Assessment.
“Gender is a spectrum…” A Tribunal’s analysis of gender reassignment as a protected characteristic
In the recent case of Rose Taylor –v- Jaguar Land Rover Ltd the Claimant had worked as an engineer at the Jaguar Land Rover company for almost 20 years. In 2017 the Claimant began identifying as a gender-fluid/non-binary individual, after which the Claimant began changing the way she presented herself, including dressing in women’s clothing.
Subsequently, the Claimant was subjected to harassment including constant insults, abusive jokes, difficulties with the use of toilet facilities and receiving no support from the management. The Claimant resigned in 2018 and brought claims of harassment, direct discrimination and victimisation on the grounds of gender reassignment. Jaguar Land Rover defended the claim on the basis that the Claimant did not have a protected characteristic. The Respondent went on to say that Protected Characteristics under section 7 of the Equality Act 2010 (EA 2010) does not include gender fluid/non-binary characteristics.
The Tribunal had to consider whether the characteristics of the Claimant that she identified as a gender-fluid/non-binary individual fell within the definition of ‘Gender reassignment’ under s7 EA 2010. S7 states that a person has the protected characteristic of gender reassignment if they are “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex”. The Tribunal upheld the Claimant’s claim of victimisation, harassment, direct discrimination and constructive unfair dismissal. The Tribunal stated that it was “clear… that gender is a spectrum” and that gender reassignment “concerns a personal journey and moving a gender identity away from birth sex”. Therefore, the Tribunal held that it was “beyond any doubt” that the Claimant fell within the definition of section 7 of the Equality Act 2010.
Although this case was heard at first instance at the Employment Tribunal, it is an important ruling not only because it is the first of its kind, but because gender identity is a wide-ranging and complex issue which is rapidly evolving and the law is constantly developing with it. The implication of this judgment is that it has paved the way for other complex gender identities that may also fall within the definition of gender reassignment under section 7 of the Equality Act 2010.
Employers may wish to review their harassment, bullying and equal opportunities policies to ensure that they encompass the wide-ranging definition of gender reassignment under section 7 of the Equality Act 2010. Equally, employers may consider implementing gender identity policies for the inclusion, protection and support of those with complex gender identities. Ultimately, as with any policy, it is imperative that employees receive the appropriate training on the treatment, inclusion and respect of all individuals.
If you have any questions about these or other employment issues please call a member of the Employment Team on 01582 731161. Alternatively, you can contact us via email on firstname.lastname@example.org
The information given in this update was, at the time of publication, believed to be a correct statement of the law. However, readers should seek specific legal advice on matters arising, and no responsibility can be accepted for action taken solely in reliance upon such information.