Covid belief case

A woman who stopped attending her workplace because she was scared of catching coronavirus was not discriminated against when her employer subsequently stopped paying her, a Tribunal has ruled.

The woman, identified only as X, had taken the decision not to return to work in July 2020, citing “reasonable and justifiable health and safety concerns” around Covid in the workplace. X also told the Manchester tribunal she had “a fear of passing Covid on” to her partner, who was at “high risk of getting seriously unwell” from the virus.

“I made a protected disclosure in good faith and asserted my statutory employment rights about a danger to the health and safety of myself and others, which I reasonably believed to be serious and imminent,” X told the tribunal.

However, on informing her employer, identified only as Y of her decision not to return to work, X was informed that she would no longer be paid.

According to X’s statement, her employer told her: “I do not accept you had a reasonable belief that returning to work would put you or your husband in serious and imminent danger.” Because her wages had been withheld, X argued that she had suffered a financial detriment because of this belief.

Judge Leach did not dispute that X’s concerns were genuine. However, he ruled that a fear did not amount to a belief, describing it instead as a “reaction to a threat” and a “need to reduce that threat”.

Leach also described X’s concerns as “a widely held opinion… [that] attending a crowded place during the height of the current pandemic would increase the risk of contracting Covid-19 and may therefore be dangerous.

“Few people may argue against that. However, a fear of physical harm and views about how best to reduce or avoid a risk of physical harm is not a belief for the purposes of section 10 of the Equality Act,” he said.

While an employment tribunal’s ruling was not binding on other courts, this ruling is an welcome indication of how future cases might be treated says Chris Wilkinson from Expert HR Solutions Limited. He went on to say that Employers could reduce the risk further by conducting regular specific Covid risk assessments of both the workplace and individual employees.

If you want help on this or any other employment law matter why not call us on 01202 611033, the first 30 minutes are free. We have also teamed up with a local Health and Safety Consultant (Thorp and Co Ltd T/A CT Health and Safety) to be able to offer the risk assessments to non-retained clients.

Holiday and Covid

With the ever-changing travel advice over the past few months, how to handle annual leave requests from employees has become a bit of a minefield.  From 4th October 2021 there are now just red and rest of the world lists, with amber and green removed.

Under the new rules, double-jabbed travellers don’t need to self-isolate when returning from Rest of World countries, but those that have only received one jab or are unvaccinated against Covid do.  This makes the rules even harsher for unvaccinated or single jabbed employees than they were previously for those returning from green list countries did not have to isolate.  It also remains the case that countries can move from one list to the other at the drop of a hat.  This blog provides our advice on how to handle employees who have to quarantine.  The issue will remain a consideration for at least the next few months as we approach another major holiday period, Christmas.

The first consideration is whether an employer even has a right to know where an employee intends to go on holiday.  If so, can the answer form part of any formal approval process.  Our view is that this is a legitimate question that employees can be required to answer, given the operational impact of different holiday locations.

Secondly can an employer refuse holiday requests to people who will have to quarantine when they return from abroad?  Our advice has been that imposing a blanket ban is not a good idea as it could create discrimination claims.

The next issue is what happens to the time when an employee needs to quarantine or isolate?  There are several options, but employers should have employee relations in mind when considering what to do. The simplest solution, where the job permits, is to allow the employee to work from home or their quarantine hotel.

This won’t be a solution for all and again to ban those that can’t work from home from taking a holiday could lead to discrimination claims.  An alternative might be for the employee to take additional annual leave to cover the period of quarantine.  If they do not have enough leave left in the current leave year you could ask them to take unpaid leave or deduct the required time at the start of the next leave year allowance.

The preference would be to have agreed with the employee before they go away how their time in quarantine will be treated.  But that may not be possible in all cases such as when a country is suddenly placed on the red list. As with anything, what employees really need is transparency about their employer’s policy. If there is that clarity, then employees can make informed decisions and it mitigates the risk of grievances and claims following the return from holiday.  We would also suggest that employers shouldn’t be too draconian in their approach, are happy to advise on creating an advice document that fits the make-up of your workforce and has considered the potential for discrimination, just call 01202 611033

Redundancy and Furlough

In what we believe is the first judgement at Tribunal of an employee claiming unfair dismissal when made redundant as the work done by the claimant had diminished as a result of Covid 19 Has been heard in favour of the claimant.  The case involved a care worker who provided live in support to the person she looked after.

The claimant provided the care from October 2018, but the person she provided care for was admitted to hospital on 8th February 2020 and subsequently discharged to a care home.  This obviously resulted in no requirement for live in care.

On 18th May 2020 the respondent wrote to the claimant stating that they were not able to offer any live in care work and invited to a meeting to discuss the situation.  The purpose of the meeting was stated as “to discuss the reasons why her employment may come to an end; whether the claimant believed her employment could be continued and if so how, and what alternative work may be available.”  The claimant was given the opportunity to be accompanied by a Trade Union representative which she took advantage of at the meeting on 12th June 2020 held via Zoom.

At the meeting the claimant was informed that the only work available was domiciliary care work.  The claimant declined this as not a suitable alternative to redundancy as none was available within a commutable distance from her home.  A second meeting took place on 6th July 2020.

On 13th July 2020 the respondent wrote to the claimant that no alternative to redundancy could be found, and the claimant was given notice of dismissal on grounds of redundancy.  The claimant was dismissed, paid more than statutory redundancy pay, a payment in lieu of accrued but untaken leave and a payment in lieu of notice.

The claimant appealed the decision on the grounds that she should have been furloughed rather than be made redundant.  The Judge ruled that to determine whether someone has been dismissed for reason of redundancy three questions must be asked:

  1. was the employee dismissed?
  2. if so; had the requirements of the employer’s business for the employees to carry out work of a particular kind ceased or diminished, or were they expected to cease or diminish?
  3. If so; was the dismissal of the employee caused wholly or mainly by the ceasing or diminishing?

The judge ruled that he was satisfied that the employee was dismissed on grounds of redundancy and that the claimant had rejected the domiciliary work.

So why did the judge rule that the dismissal was unfair.  In his ruling he gave the following reasoning.  He said, “I am of the view that the failure to give consideration to the possibility of furlough and the failure to offer a proper appeal render the claimant’s dismissal unfair.”

It appears from this landmark ruling that in any case of redundancy whilst the furlough scheme is in place it must be considered as a potential suitable alternative to redundancy.  The ruling also makes clear that the person hearing the appeal must be credible to overturn the original outcome and personally to investigate all evidence and grounds presented and not just ‘rubber stamp’ the original outcome.

If you are thinking of making people redundant as a result of Covid 19 we at Expert HR Solutions strongly advise you seek professional advice on the process to follow.  You can contact us on 01202 611033.

Holidays, Covid 19 and Quarantine

Businesses need to consider how they are going to treat holiday requests in relation to the current published lists of Countries on the Red, Amber and Green lists says Chris Wilkinson from Expert HR Solutions.  As we now know the number of countries on the green list is low and the government require any people returning from those on the Amber or Red lists as a result of non-essential travel to quarantine.

If businesses can legitimately require employees to wear a face mask or be vaccinated in certain circumstances, as recent employment tribunal decisions have shown, it is not beyond the realms of possibility that they may be able to veto certain holiday destinations too.  The questions business owners need to ask themselves now is how they will react when as looks likely the government relaxes the work from home rule on 21st June 2021 and some or all of your employees decide they want to return to the workplace.  Whilst the vaccine rollout has been a great success this is not true worldwide.  If an employee returns to the workplace either every working day or even just some days, and requests a holiday is it reasonable to ask them where they are intending to go.  We believe it is absolutely legitimate to establish where they are going.  If they are intending to holiday in the UK or in any country on the green list then there is no increased risk so it should be safe to grant the request.  You may want to establish whether they have had one or both jabs and whether they have access to the freely available home testing kits.  You may also probably legitimately ask them to complete the test prior to returning to the workplace after the holiday having shared the outcome of the test with you.

Employees thinking of going on holiday to an amber list country and simply working from home on return may therefore need nothing more than permission for the holiday.  This is because they present little risk to the rest of the workforce and could be considered to be in quarantine at home for the requisite time.  You need to consider whether you would permit them back into the workplace before the results of the test they are also required to undertake are known to both them and you.

Many businesses limit the amount of holiday that can be taken at any one time.  Typically, this is capped at two weeks.  Cautious employers may want to stop holiday plans that involve employees being out of the office for the duration of their holiday plus up to 10 days of quarantine on return.

Alternatively many organisations simply will not want to run the risk of employees bringing home new strains of Covid and infecting the workforce, or even just getting ill themselves. It is certainly possible (and likely) that some employers will attempt to ban staff from travelling to amber or red list countries.  Our civil liberties are simply not what they were pre-Covid.  As a slightly less draconian measure employers may well wish to announce to employees that they should not travel to amber list countries for holidays and that they must seek permission from management to do so but ban travel to the red listed countries.

Whichever approach you adopt you should clearly communicate it to staff sooner rather than later.  Employees who fail to comply with a reasonable management instruction may be subjected to disciplinary action. It could also potentially be a breach of the relationship of trust and confidence between the parties. The threat of this may be sufficient to stop employees booking holidays in amber list countries, where the employer is set against this.  With the guidance from the government ever changing, employers should exercise caution, as we have already seen countries can be moved from one list to another at relatively short notice. If you wish to discuss this or any other employment issue feel free to give us a call on 01202 611033.

Latest Government Guidance of Covid 19 Safe Workplaces

The announcements on 22nd September by the Prime Minister and by the Chancellor on 24th September at first sight appeared to be a major shift and almost a return to a national lockdown says Chris Wilkinson from Expert HR Solutions.  However, he adds, when you look in more detail at the sector specific guidance the change is not, in most cases, so dramatic.

The rules are not simple and we would encourage business owners to take a fresh look at the guidance for their sector which can be found at:, and then clicking on the appropriate sector.  The website does give an option to download the files, if you do, we do advise you keep a log of the date it was last changed as the documents are regularly updated and it is important you use the latest versions.

We thought it would be helpful to try and explain the main changes, but can’t be certain we have picked up everything.


The ability to fine both individuals and Companies who fail to comply with the rules will be brought into legislation, they have also been increased in size and in most cases a sliding scale for persistent offenders introduced.  Hence our advice above that you check the web site regularly for the advice for your sector, ignorance of the guidance will not be a defence.

Workforce Management

Here it is mostly a change of emphasis, previously the guidance said if employers could go to the workplace they should.  It now says if they can work from home they should.  However, it goes on to highlight both the commercial and mental health benefits of meeting other people and again highlights the measures Employers should take to be able to declare their workplace Covid 19 safe.  Most of these measures have not changed and still include things like enhanced cleaning regimes, staggered start and end times, back to back or side to side workspaces, social distancing, sanintising shared equipment.

The new measure we picked up that no applies to all sectors is the requirement to run a rolling 21-day Track and Test log with contact details of who has come into contact with whom including employees and visitors.

All of the guidance documents have been updated to reflect the new definitions of those who are ‘Clinically extremely Vulnerable’ who should not be invited back into the workplace as they should be Shielding, and those now referred to as ‘Clinically Vulnerable.’  This latter group may have been Shielding under the old definitions but can now go out.

The furlough scheme will end as planned on 31st October 2020, but the Job Support Scheme will be introduced on 1st November 2020 and run for 6 months.  Under the scheme employers can bring employees back into work for a minimum of 33% of their usual hours, and the employer has to pay all of the hours worked.  For the hours not worked both the government and the employer will pay one-third of their equivalent salary with the government grant capped at £697.92 per month.

The Self Employment Income Support Scheme (SEISS) has been extended until January 2021.  An initial taxable grant using the same eligibility criteria will cover three months’ profit for November to the end of January worth 20% of average monthly profits up to a total of £1,875.  A second grant will be available from February to the end of April but details of this have not been announced.

Pubs, Restaurants etc

The main changes are for this sector.  They must now close by 2200, table service only is permitted, the test and trace rules are tightened as above and display and NHS QR Code poster from 24 September as an alternative for customers to providing contact details.  The rule of 6 as the maximum size of any group indoors or outdoors is to be more rigidly enforced.  There is also now a requirement for staff to wear masks at all times and for customers to do likewise whenever they are moving around the establishment.

Loans and VAT relief

The VAT reduction to 5% for the hospitality and tourism sector has been extended to the end of March 2021.  The deferred payment of VAT has been changed to give companies the option to pay back in 11 smaller installments rather than the full lump sum in March.

The period to pay back any of the loans already announced has been increased from the current six years to ten.  The period to apply for these loans has also been extended to November.

The Prime Minister warned that if these measures do not have the desired effect of reducing the infection rate the Government will look to tighten the guidance even further, he went on to say that it was entirely possible that these measures would have to be in place for the next six months.  If you are worried that your workplace may not be following the guidelines why not give us a call on 01202 611033, we will happily try to guide you through the requirements for your sector.

Coronavirus and Carrying Leave Forward

The Government have announced they are intending to relax the regulations that only permit Workers to carry forward untaken leave from one year to the next in exceptions circumstances says Chris Wilkinson from Expert HR Solutions.  If they have not taken all of their statutory annual leave entitlement due to Coronavirus they will now be able to carry it over into the next 2 leave years.

Currently, almost all workers are entitled to 28 days holiday including bank holidays each year.  However, most of this entitlement cannot be carried between leave years, meaning workers lose their holiday if they do not take it.  There is also an obligation on Employers to ensure their Workers take their statutory entitlement in any one year, failure to do so could result in a financial penalty.

The positive spin being placed on this by the Government is that the new regulations will allow up to 4 weeks of unused leave to be carried into the next 2 leave years, easing the requirements on business to ensure that workers take statutory amount of annual leave in any one year.  This will mean staff can continue working in the national effort against the coronavirus without losing out on annual leave entitlement.  The changes will also ensure all employers affected by Coronavirus have the flexibility to allow workers to carry over leave at a time when granting annual leave could leave them short-staffed in some of Britain’s key industries, such as food and healthcare. Chris says many Contracts we review state categorically that leave can’t be carried forward from one leave year to the next, these will require amending.  If you are unsure whether your Contracts of Employment are compliant with these new regulations why not take advantage of our free review and send them to us.  You do not need to be an existing client to take advantage of this service says Chris and you will get a report that tells you if and where your Contracts need amending in their entirety.  For existing clients we have been including a discretionary carry forward clause for some time, so you do not need to worry.

Flexible Furlough and Holiday whilst Furloughed

The Government has changed the guidance on Furlough again.  From 1 July , employers can bring furloughed employees back to work for any amount of time and any work pattern, while still being able to claim the grant for the hours not worked.  However, there are some additional requirements to satisfy if you want to do this:

  • only employees that you have successfully claimed a previous grant for will be eligible for more grants under the scheme.  This means they must have previously been furloughed for at least 3 consecutive weeks taking place any time between 1 March and 30 June 2020.
  • For the minimum 3 consecutive week period to be completed by 30 June, the last day an employee could have started furlough for the first time was 10 June.

From 1 August 2020, you will be asked to contribute towards the cost of your furloughed employees’ wages.

In addition, a previously furloughed employee can start a new furlough period on 22 June which would have to continue for at least 3 consecutive weeks ending on or after 12 July.  After this the employee can they can then be flexibly furloughed for any period.

  • after 1 July, employers cannot make claims that cross calendar months, so the employer will need to make a separate claim for the period up to 30 June.
  • Although flexible furlough agreements can last any amount of time, unless otherwise specified the period that you claim for must be for a minimum claim period of 7 calendar days.

The guidance on furlough and holidays has also changed.  If you want an employee to take holiday you can:

  • require workers to take holiday
  • cancel a worker’s holiday, if they give enough notice to the worker.

But if you do either of these you must give the employee notice:

  • double the length of the holiday if the employer wishes to require a worker to take holiday on particular days
  • the length of the planned holiday if the employer wishes to cancel a worker’s holiday or require the worker not to take holiday on particular dates.

Employers can ask workers to take or cancel holiday with less notice but need the workers’ agreement to do so.

Employers are obliged to pay employees who are on holiday additional amounts over the grant, though will have the flexibility to restrict when leave can be taken if there is a business need and the correct notice is given.  This applies for both the furlough period and the recovery period.  If an employee usually works bank holidays then the employer can agree that this is included in the grant payment.  If the employee usually takes the bank holiday as leave then the employer would either have to top up their usual holiday pay or give the employee a day of holiday in lieu. There is no statutory right to Bank Holidays, but the Working Time Directive stipulates that every full-time worker must have a minimum of 25 days holiday a year, so if the Employer is granting 20 days annual leave they will also have to grant 5 of the 8 Bank Holidays.  It is not specifically stated, but presumably this means that the total amount of holiday entitlement that can be carried forward if employees have not been able to take it due to Covid 19 is limited to 25 days not 28.

Furlough Fraud

The number of reported cases of fraudulent coronavirus job retention scheme claims has risen steeply, official figures show, as the government starts to wind down this support says Chris Wilkinson from Expert HR Solutions.  Given that approximately 9.6 million jobs have been furloughed and to 22nd July only 6,749 (0.07%) reports of furlough fraud had been received.  It is also not clear what has caused the 53% increase in just three weeks says Chris.  HMRC are actively asking Employees to contact them if they are not being paid what they entitled to, the Employer is asking you to work while you’re on furlough, or the Employer has claimed for times when the Employee was working.  The scheme is plainly popular with around 1.2 million Employers using it.

Chris says he doubts much of the reported furlough fraud was intentional.  He said the lack of clarity around the scheme, coupled with Employers having to work really hard to both save jobs and plan the future of their business, was inevitably going to lead to mistakes.  At the beginning of the scheme he continues the Government was actively encouraging use of the scheme to avoid mass redundancies, but the enforcement element was almost completely opaque.

The scheme gets more complex with Employers were required to pay national insurance and pension contributions for furloughed employees from 1 August.  From 1 September employers will also be asked to contribute at least 10 per cent of furloughed employees’ wages, going up to 20 per cent in October, the last month of the scheme.  Particularly for staff working variable hours and days working out furlough pay was never for the faint-hearted.  The flexible furlough scheme, whilst welcome, adds further complexity requiring Employers to work out how many hours each employee usually works and deduct this from the number of hours they have been furloughed by following a series of complicated stages. 

Chris suggests employers undertake extensive job retention scheme audits now before HMRC investigate.  If errors were discovered these should be corrected, a process put in place to ensure it didn’t happen again and HMRC promptly notified, he said.  The primary penalty even for any inadvertent errors imposed under the Finance Act 2020 is a ‘failure to notify’ penalty.  The consequence of that is that the penalty may be 100 per cent of the income tax charge.  He added that errors were inevitable, but it was a defence to show reasonable steps had been taken to ensure compliance with the scheme.  Last month a man from the West Midlands became the first person to be arrested over suspected furlough fraud involving nearly £500,000.

Redundancy and Covid 19

It is inevitable that as the Furlough Scheme draws to a close Employers will have to consider the option of redundancies says Chris Wilkinson from Expert HR Solutions.  This Blog to explains what Employers should bear in mind to stay the right side of Employment Law and the legislation introduced as a result of Covid 19.  As businesses try to navigate the financial impact of the Covid-19 pandemic, many will continue to look for ways to cut costs.

It is critical to remember says Chris that furloughed workers have the same redundancy rights as any other employee, including in relation to protection from unfair dismissal and discrimination.  Therefore, while it may be legitimate for employers to make staff who are on furlough or have returned from furlough redundant, they should ensure the usual redundancy criteria are met.  Thus, the redundancy is genuine, and a fair redundancy process has been followed. 

Nothing introduced as a result of Covid 19 changes an employees’ right to receive at least statutory redundancy payment if they have two years’ continuous employment or more.  They are also entitled to any contractual redundancy pay entitlement.  The redundancy payment should be based on their normal wage not their furlough salary. 

The same rules apply to statutory notice pay, but the situation is not as clear cut over the calculation of contractual notice pay.  In summary the following applies to the notice period and pay:

  • if an employee is entitled only to the statutory minimum notice period, the employer must pay 100 per cent of the employee’s normal pay in respect of that notice period;
  • if the notice period set out in an individual’s employment contract is at least one week more than the statutory minimum, the employer can pay them their reduced rate of pay in respect of their notice period. 

While it may be simplest for employers to consider employees on furlough for redundancy before looking to the wider workforce, they should remember that the usual discrimination protections continue to apply.  Businesses should follow a proper redundancy selection process and give careful consideration to the criteria applied to minimise the risk of discrimination claims.

If you would like help on this or any other employment matter why not seek a FREE consultation by calling us on 01202 611033.

Job Support Scheme

The Job Support Scheme has undergone a substantial change as a result of the announcement in Parliament by the Chancellor on 22nd October 2020.

What is it?

The Job Support Scheme is designed to protect viable jobs in businesses who are facing lower demand over the winter months due to Covid-19, to help keep their employees attached to the workforce. The company will continue to pay its employee for time worked, but the burden of hours not worked will be split between the employer and the Government (through wage support) and the employee (through a wage reduction), and the employee will keep their job.

The scheme will open on 1 November 2020 and run for 6 months, until April 2021.

Who is eligible and what do they pay / receive?


All employers with a UK bank account and UK PAYE schemes can claim the grant. Neither the employer nor the employee needs to have previously used the Coronavirus Job Retention Scheme.

Large businesses will have to meet a financial assessment test, so the scheme is only available to those whose turnover is lower now than before experiencing difficulties from Covid-19. There will be no financial assessment test for small and medium enterprises (SMEs).

The Governments’ expectation is that large employers using the Job Support Scheme will not be making capital distributions, such as dividend payments or share buybacks, whilst accessing the grant. Further details will be set out in guidance.

Employers will have to pay 100% of the hours worked, but these have been reduced from 33% of usual hours to 20%.  They will also have to pay 5% of usual hours not worked down from 33%.

Employers using the Job Support Scheme will also be able to claim the Job Retention Bonus if they meet the eligibility criteria.

Employers must agree the new short-time working arrangements with their staff, make any changes to the employment contract by agreement, and notify the employee in writing.


Employee’s must be on an employer’s PAYE payroll on or before 23 September 2020. This means a Real Time Information (RTI) submission notifying payment to that employee to HMRC must have been made on or before 23 September 2020.

In order to support viable jobs, for the first three months of the scheme the employee must work at least 20% of their usual hours. After 3 months, the Government will consider whether to increase this minimum hours threshold.

Employees will be able to cycle on and off the scheme and do not have to be working the same pattern each month, but each short-time working arrangement must cover a minimum period of seven days.


The government will fund 62% of the wages for hours not worked. This more than doubles the maximum payment to £1,541.75 a month. In the most generous case, the taxpayer will now go from funding 22% of wages to just under half.

What does the grant not cover?

The grant will not cover Class 1 employer NICs or pension contributions, although these contributions will remain payable by the employer.

What can employers not do if they join the scheme Employees cannot be made redundant or put on notice of redundancy during the period within which their employer is claiming the grant for that employee.

How can I claim?

Employers will be able to make a claim online through from December 2020.  They will be paid on a monthly basis.

Grants will be payable in arrears meaning that a claim can only be submitted in respect of a given pay period, after payment to the employee has been made and that payment has been reported to HMRC via an RTI return.

HMRC checks

HMRC will check claims. Payments may be withheld or need to be paid back if a claim is found to be fraudulent or based on incorrect information. Grants can only be used as reimbursement for wage costs actually incurred.

HMRC will be able to demand to see the written agreement given to the employee, which means employers would be wise to get employees to sign and date such agreements each time they go on and off the scheme.

The Governments’ intention is that employees will be informed by HMRC directly of full details of the claim.

Furlough and Christmas

The extended job retention scheme which is in place until 31st March 2021 is more complex than the original scheme says Chris from Expert HR Solutions.  Employees can be on full or flexi-furlough and it has also reverted to the original governmental contribution of 80% of wages for hours not worked with the same cap of £2,500 / month.

The guidance makes it clear that workers continue to accrue holiday in the normal way and that they can take holiday while on furlough without interrupting that furlough period.  But the holiday must be paid at the employees’ full rate with the extra 20% being borne by the employer.

Nevertheless, the furlough contribution could seem attractive to employers that might be slowing or shutting down over the festive period, making it tempting to place some or all of their workers on temporary furlough for that time so that they can recover 80% of the holiday costs.  It is not permitted to place workers on furlough if they are only being put on furlough to take holiday, or the employer usually does less business over the festive period, as this means the slowdown or shutdown is not related to the pandemic.  The guidance does not address the situation where the slowdown is worse this year, or where an employer is not in a position to weather a seasonal slowdown, as a result of the cumulative effects of Covid on their business.  In these cases, it would be up to the individual employer to consider whether they can legitimately furlough their workers in the usual way.  If the worker is genuinely already on furlough and the employer would like them to take holiday during the festive period to minimise excessive accrual that could cause disruption if and when business picks up, it is possible for the employer to insist on holiday being taken at this time.

To safely do the latter there must be a contractual provision to allow employers to tell their staff when to take holiday, including during a slowdown or shutdown.  If so, then they can exercise this right as per the contract.  If there is no such provision, the employer may direct their worker when to take holiday if they give them double the amount of notice as the amount of holiday that they would like the worker to take.  This year this means the employer must give 16 days’ notice for a complete shut down between Christmas and New Year or secure the agreement for less notice from the employee in writing. If you would like advice on this or any other employment matter why not give us a call on 01202 611033 the first 30 minutes is free.

Lockdown Three

I am really sorry to start 2021 with such a difficult Blog announcement says Chris from Expert HR Solutions, but this is really important.  Here we go again we are effectively back into a National Lockdown until at least mid-February and possibly March 2021.  The rules are much stricter and clearer than those that existed under the Tiering system, you must stay at home.  Although the legislation to enforce this is not you in force you should follow this guidance immediately, and legislation will be in place probably by midnight tonight.

Leaving home

You must not leave, or be outside of your home except where necessary.  You may only leave the home to:

  • shop for basic necessities, for you or a vulnerable person;
  • go to work, or provide voluntary or charitable services, if you cannot reasonably do so from home;
  • exercise with your household (or support bubble) or one other person, this should be limited to once per day, and you should not travel outside your local area;
  • meet your support bubble or childcare bubble where necessary, but only if you are legally permitted to form one (use the links above to see if you can form a bubble);
  • seek medical assistance or avoid injury, illness or risk of harm (including domestic abuse)
  • if eligible attend education or childcare.

Colleges, primary and secondary schools will remain open only for vulnerable children and the children of critical workers.  All other children will learn remotely until February half term. Early Years settings remain open.  Higher Education provision will remain online until mid-February for all except future critical worker courses.

If you do leave home for a permitted reason, you should always stay local in the village, town, or part of the city where you live. You may leave your local area for a legally permitted reason, such as for work.

If you are clinically extremely vulnerable you should only go out for medical appointments, exercise or if it is essential.

Meeting others

You cannot leave your home to meet socially with anyone you do not live with or are not in a support bubble with.  You may exercise on your own, with one other person, or with your household or support bubble.  You should not meet other people you do not live with, or have formed a support bubble with, unless for a permitted reason.  Stay 2 metres apart from anyone not in your household.

You may only leave your home for work if you cannot reasonably work from home.

Where people cannot work from home, including, but not limited to, people who work in critical national infrastructure, construction, or manufacturing they should continue to travel to their workplace.  This is essential to keeping the country operating and supporting sectors and employers.  Public sector employees working in essential services, including childcare or education, should continue to go into work.

Where it is necessary for you to work in other people’s homes for example, for nannies, cleaners or tradespeople you can do so.  Otherwise, you should avoid meeting for work in a private home or garden, where COVID-19 Secure measures may not be in place.  Chris says we strongly advise Employers who wish to open their workplace carry out both a building and an employee Covid 19 risk assessment before doing so.  If you are not sure what this involves then please contact us on 01202 611033 as we have an HSE approved format.

Employers and employees should discuss their working arrangements, and employers should take every possible step to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working.

To finish on a more positive note the Chancellor has announced some new one-off grants to businesses that are forced to close as a result of this lockdown as follows:

  • £4,000 for businesses with a rateable value of £15,000 or under;
  • £6,000 for businesses with a rateable value of between £15,000 and £51,000;
  • £6,000 for businesses with a rateable value of over £51,000.

If you have any questions about this or any other employment law issue, please call us on 01202 611033, your initial consultation is free.

Breaking Lockdown Rules

Given that as a nation we are unlikely to be free of Covid 19 restrictions for some time yet what should employers do with employees who have broken the current restrictions but still come into the workplace asks Chris Wilkinson from Expert HR Solutions.  Read on to find our advice.

The issue of compliance raises legitimate questions about how far employers can go in formally disciplining employees who they suspect are breaking Covid 19 regulations while they are away from the workplace.

Employers have a duty of care to protect the health, safety and welfare of their staff and customers, and therefore they should do what is reasonably practicable to try and achieve this.  This means ensuring everyone is protected from anything that may cause them harm by controlling any risks to injury or health that could arise in the workplace.  In the current climate, this focus has extended to include measures such as installing sanitisation stations and making sure that social distancing measures are being adhered to by those who are still physically attending the workplace.  A team member who has attended work when they’re under a legal obligation to self-isolate is running the risk of facing disciplinary action on the basis that they’re contributing to endangering the health and safety of their colleagues. 

There is plenty of case precedent allowing employers to take disciplinary action against an employee if their actions could harm their work colleagues or if they do something outside of work that could directly affect their ability to carry out their duties.  The most common of these is probably committing some Road Traffic offence when driving is an integral part of their work.

It is our view, says Chris, that non-compliance with Covid-19 regulations outside of the workplace could justify disciplinary action in certain situations.  For example, an employee who attends mass gatherings and you can gather the evidence that shows they have done so. This has the potential to not only endanger the health and safety of colleagues who share a workspace, but to damage the employer’s reputation as well.  Therefore, the employer would be justified in taking disciplinary action against that individual in this situation.  Remember that taking disciplinary action requires the employer to have reasonable belief that misconduct warranting action has been committed.  It does not require you to prove beyond all reasonable doubt that it has happened.

Every case is different and each one would turn on its own facts, but businesses should try to adopt a consistent approach with these types of issues and consider all the information available to them before making a decision as to whether a formal disciplinary matter needs progressing.  If you are not sure what to do why not give us a call on 01202 611033 the first consultation is always free.

Easing of the National Lockdown

As the National Lockdown is eased and more and more Employees will be returning to the workplace, here at Expert HR Solutions we thought it would be a good idea to set out some guidance on what Employers should be thinking about, should be doing and things to avoid.

As we all know the vaccine roll out is going very well, but there are some people who are reluctant.  We believe it is important that Employers do everything they can to encourage their staff to get the vaccine when offered.  This means you need to talk to them to find out their intentions and if they are reluctant find out why.  There is a huge amount of disinformation out there so make sure they are getting their information from a reputable source and not just Social Media.  They will not be in control of where and when they are offered the jab, the sites will be local to their home, but Employers can help encouraging them to take them up by offering to pay for reasonable time off at their normal rate of pay.  Because the Government has decided not to make the vaccine mandatory and not to introduce Covid 19 passports we do not believe it would be legal for Employers to insist on everyone having the vaccine.

With one in three people being asymptomatic another key pillar of the Government plan to reopen the economy is the rollout of rapid testing.  This seems a sensible precaution for employers to take, particularly if social distancing is problematic in the workplace.  If you want to take advantage of the free Government Supply of lateral flow test kits you must register your requirements at before 31st March 2021.  Please bear in mind these tests can only be used in the workplace, they are not to be given to employees for them to take home.  You can get tests that you can give to employees, but you will have to purchase them.  Given that it will be a long time before everyone is vaccinated it would be sensible to plan to repeat the tests regularly.

Things to consider and tell your Employees your intentions are:

  • What you will do if someone is told to self-isolate, who bears the cost, does the employee get paid is it a disciplinary offence;
  • What you will do if an Employee fails to comply with Government Guidance on travel, socialising etc.
  • Encourage your staff to regularly check the government guidance at

If you have any questions about this or any other Employment issue why not give as a call on 01202 611033.

Planning for Post Furlough

The government’s job retention scheme, which has provided a lifeline for numerous businesses, has been extended until the end of September.  However, says Chris from Expert HR Solutions, now is the time for you to start considering what will happen to your business when the scheme ends.  The reality is likely that redundancies may be unavoidable, but seeking professional advice can ensure that the process is fair.

Making redundancies is something that you never want to do, but failing to tackle the issue in a timely and structured manner can make it worse —addressing the problem as far in advance as possible means that you can fully explore alternatives to redundancies first.  For example, some employees may want reduced hours or could be prepared to take a salary reduction.  If you are considering 20 or more redundancies, the law states that there must be a consultation period. Still, the process requires time for consultation and dialogue, even if fewer redundancies are likely.

Many employees are currently working from home, self-isolating or on furlough and consulting with them is likely to raise some challenges.  Traditionally the preferred process would be carried out face to face, but there is no legal requirement to do so.  They can take place over the phone or video conference if everyone agrees and there is a clear need to do so.

With over 20 redundancies, it is normal for collective consultation to be triggered. The employer has to consult with representatives of affected employees.  These can either be Trade Union representatives or employees who have been nominated by everyone who is affected.  It is also your responsibility to ensure the representatives have suitable IT or teleconferencing facilities and ensure they have access to the people they represent.

If you decide to avoid the consultation process by using Settlement Agreements, you must ensure that each employee receives independent legal advice. You must also contribute to the cost of obtaining that advice.

The coming months may be a difficult period for many organisations, says Chris. It is essential to explore all available options, plan ahead, and take a structured approach to benefit both your business and your staff.  We have helped many organisations through this process, says Chris, and if you want advice, why not give us a call on 01202 611033? The initial consultation is free.

Carry forward of accrued leave not taken due to Covid 19

The Working Time (Coronavirus) (Amendment) Regulations 2020 included a clause that stated that where it had not been reasonably practicable for a worker to take some or all of the four weeks of holiday the Working Time Directive entitles them to then the untaken amount can be carried forward into the following 2 leave years. Now that most popular holiday destinations do not require isolation on return to the UK we thought it would be useful to let you know what you must do and what it would be wise to consider. Please note there are slight variations between the devolved countries on what people must do on return from abroad.

Firstly, it is important to stress that this right to carry forward does not apply to missed Bank Holidays. Helpfully in their guidance, which can be found at the government have published advice on what they think what is meant by the words ‘reasonably practicable’ in the legislation. They also indicate that if workers were furloughed then they could easily have taken leave and therefore should not need to carry any forward with the big proviso that there pay needed to be made up to the full amount for it to count as annual leave.

Do not forget as soon as your company moves into a new leave year the worker begins to accrue a new allowance of annual leave. To ensure they do not lose out on the carried forward leave we advise you get them to take that first before beginning to take leave from the new leave year. Under both the Working Time Directive and your duty of care it is important that you encourage workers to take the leave in the year that it is accrued.

Remember carried forward leave is subject to the usual rules around payment in lieu. Your duty is to facilitate workers to take annual leave and not replace it with a financial payment. If the worker leaves your employment any untaken leave accrued but not taken must be compensated by payment in lieu. This includes any carried forward under the Covid 19 exemption.

If you want advice on this or any other matter regarding employing people, please give us a call on 01202 611033. The first 30 minutes are free. Finally the only foolish question is the one you do not ask.