Stress Awareness Month

A blog for employers on managing stress in the workplace

April is Stress Awareness Month and each year we discuss reducing stress as well as coping techniques. Over the last year there has been an increase in people feeling stressed in the UK.

Many of the reasons for the increased stress is due to the pandemic but it is important to realise that this has affected people in different ways and for different reasons. Some people have experienced loneliness, homeschooling, zoom fatigue, burnout, reduction or loss in income, shielding, loss of loved ones, illness, long covid, increase in caring responsibilities and more.

Both employers and employees have had to adjust, whether it be to a lack of or abundance of work and many businesses have undergone a change to remote working. 

We have put together some suggestions of how to manage or reduce stress:

  • Stress Risk Assessment

Employers have a legal duty to protect staff from stress in the workplace. The Health and Safety Executive provides a free downloadable stress risk assessment which you can use. You can download it here: https://www.hse.gov.uk/stress/risk-assessment.htm

  • Ask

It sounds simple doesn’t it? However it is easy to get caught up in the day to day things or to think that staff are no longer stressed because the lockdown is easing. Make a point of asking yourself and staff if they are ok. Not just ok in the workplace but ok overall. 

This can be done in formal reviews but can also be done in everyday conversations. 

  • Keep in touch

If you are still remote working as a temporary measure or as permanent measure make an effort to keep in touch. Not working in the same place sometimes means that you don’t see when someone is feeling a bit down. Emails, slack and other forms of business communication can easily just be about business so be intentional about keeping in touch. 

You may choose to have regular video meetings, team catch ups or quizzes, or physically meet up once a month or so.

This can help in fostering a culture where staff feel able to talk if they need to.

  • Monitor the workload

Some businesses have experienced a boom over the last year, others may have made staffing cuts and shared the work amongst the remaining staff. Try not to overload staff with too much work, too much over time can cause burnout which will result in more mistakes, lower quality work and sick days. By looking after your staff you will be looking after your business.

  • Have a shut down time

Being able to work from anywhere at any time sounds amazing but it can lead to us having less time to relax. It can be tempting to send an email at 11pm or on a Sunday morning because we can. The problem with this is that it can mean we don’t get dedicated time where we are not thinking about work. It may also mean that the recipient of that email feels the need to think about work during those unsociable hours. Try to have boundaries which includes a clear shut down time each day.

  • Remind people to take annual leave

This applies to both employers and employees. The ban on non-essential travel and the ability to work from home may mean that staff are less likely to take a break. Encourage staff to use their annual leave. Annual leave is a health and safety measure, it is there to help people to rest and recoup.

  • Training

Managers do not always know how to manage or identify stress in the workplace. You may want to consider stress in the workplace training for managers and their team members.

  • Contact professionals

Even though employers have a duty to protect staff from stress they are not always qualified or equipped to help. 

There are many mental health charities and professionals who can help with workplace wellbeing. You can reach out to them as a manager or colleague or you may choose to signpost staff to them.

Examples include:

Mind https://www.mind.org.uk/

Anxiety UK https://www.anxietyuk.org.uk/

We hope you have found this blog useful. We have a number of other blogs on Employment Law and HR topics, you can find these on our website at http://www.orchardemploymentlaw.co.uk

What Does The Budget Mean For Employers?

BUDGET 2021 – KEY POINTS

You will all be aware that the Chancellor, Rishi Sunak, unveiled his Budget last week.

In this blog, we go through the key points from the Budget and lay out what it means for businesses and employers.

Furlough Extended
The Chancellor announced that the furlough scheme, which was due to end at the end of April 2021, has now been extended until the end of September 2021. Employees placed on furlough will continue to receive 80% of their wages (up to £2,500 per month).

As with previous extensions of the furlough scheme, employers will be expected to contribute towards employees’ wages from July, as follows: –

● 10% in July;
● 20% in August and September.

Employers will also need to continue to meet the cost of National Insurance payments and pension contributions.

Who is Eligible for the Furlough Scheme?
The rules surrounding furlough differ slightly depending on what period the claim is for.

For furlough claims on or before 30th April 2021, to be eligible, the employee must have been on their employer’s PAYE payroll on 30th October 2020. The employer must also have made a PAYE Real Time Information (RTI) submission to HMRC between 20th March 2020 and 30th October 2020, thus notifying a payment of earnings.

Employees do not need to have been furloughed previously.

For furlough claims from 1st May 2021 onwards, the employee must have been on their employer’s PAYE payroll on 2nd March 2021. Again, the employer must also have made a PAYE RTI submission to HMRC between 20th March 2020 and 2nd March 2021.

Employers are not required to have previously claimed for employees before 2nd March 2021 to claim for periods on or after 1st May 2021.

The employee can be on any type of contract, including zero-hours, fixed-term or temporary.

Can I Re-Employ an Employee Who Has Recently Left or Been Made Redundant?
HMRC has confirmed that some employees can be rehired, and then put on furlough.

For claims on or before 30th April 2021, employers can choose to re-hire any staff made redundant after 23rd September 2020 and put them on furlough, as long as the employer made a PAYE RTI submission to HMRC in relation to that employee between 20th March 2020 and 23rd September 2020.

However, for claim periods starting on or after 1st December 2020, employers cannot claim for any days where a furloughed employee was serving a contractual or statutory notice period.

There is no obligation on employers to re-employ staff.

Apprenticeships
A further announcement made by the Chancellor is that the Apprentice grant has been doubled to £3,000 for any business taking on an apprentice under the Government apprenticeship scheme. This is an increase from £1,500.

If you require support with the matters above or any other Employment Law support please feel free to get in touch at http://www.orchardemploymentlaw.co.uk

Employer Responsibilities After Brexit

Now that the UK has officially left the EU, employers may be wondering what if anything they need to do about current and future staff who are  EU nationals. This blog is a whistle stop tour on where we are and what we need to do next.

Audit

The first step is to access whether any of your staff are directly impacted by Brexit. This means doing an audit of your staff to see how many EU nationals you currently have working for you. 

Remind and Encourage

All EU nationals who were in the UK up until 31st December 2020 are able to apply for an imingration status which will allow them to continue to have the right to work and live in the UK. 

There are two types of status which EU nationals can apply for and they are known as Settled and Pre-Settled.

Settled status is available to people who have been in the UK for 5 years or more.  Settled status allows EU nationals to work and live in the UK indefinitely providing they do not leave the UK for a period longer than 5 years.

Pre- Settled status is available to staff who have been in the UK for  less than 5 years. This status gives them the right to work and live in the UK for a temporary period and those with Pre-Settled status can apply to convert their status into Settled status once they have been in the UK for 5 years.

EU nationals have a deadline of 30th June 2021 to apply, employers should inform and gently encourage staff to apply. However, employers should be careful not to harass staff members.

After 30th June employers will need to check that all staff have the right to work.

Check qualifications

If your staff work in a regulated industry you will need to check to see whether their EU qualifications are still valid. In most cases they will be valid but it is still important to check via the .gov.uk website.

Sponsorship

EU nationals who arrived in the uk after 31st December 2020 will need to be sponsored by  a UK employer if they wish to work in the UK.

Employers must have a sponsorship licence in order to sponsor an employee. There is a cost for the licence and it can take up to 8 weeks for the licence to be approved.

If you currently have staff who require sponsorship or you have a business model which employs foreign nationals it is a good idea to apply for this licence early. You should note that sponsorship is not transferable so you cannot rely on sponsorship provided by a previous employer.

Staff who require sponsorship will be subject to a minimum earnings threshold of £25,600 per year and must be doing a job which has a minimum qualification entry of A levels or equivalent.

The minimum earnings threshold is reduced to £20,480 if the job is listed on the shortage occupation list.

There are also a number of other criteria which the employee or worker must meet in order to be eligible for sponsorship.

Need further information?

We hope that you have found this blog useful, if you require specific information about anything in the blog or any other Employment Law or HR matter please feel free to contact us at http://www.orchardemploymentlaw.co.uk

FAQ’s From Employers In Another National Lockdown

Here we go again.. although we had all hoped that lockdowns were limited to 2020 the latest announcement of the prime minister on the 4th January saw the nation back in lockdown.

In this blog we will answer some employer frequently asked questions.

My business is not allowed to open, what do I do with my staff?

The furlough scheme will remain open with the government contributing 80% of pay to staff. There is no legal requirement for employers to furlough staff as it is entirely at your discretion. However, in an ideal world  you will want to keep all of your staff as it is better for them, it also will allow you trade as soon as your business is allowed to.

Remember that there is no automatic right to furlough staff and that you may need a written agreement. For more information read our blog Furlough Explained here: https://orchardemploymentlaw.wordpress.com/2020/03/25/furlough-explained

Although furlough is the preferred option for most employers and staff it is not free. The employer may still have to spend time or pay for someone to do the furlough administration.  Employers still have to consider pension contributions, national insurance, tax, accrual of annual leave and possibly employees gaining an extra years service which could have cost implications in the future. 

I cannot afford to furlough staff what can I do?

If you cannot afford to furlough your staff or you choose not too you may need to make redundancies.

Nobody likes to make redundancies but with ongoing costs such as rent, tax and insurances and little to no income you might not have much choice. There are rules and processes  around redundancies including, how much notice you should give, who can be selected and how meetings should be conducted. Always seek advice before making redundancies.

We are holding a webinar on how to conduct redundancies, you can Friday 22nd January you can email us for information on info@orchardemploymentlaw.co.uk or book using the following link:

https://www.eventbrite.co.uk/e/135518029073

We are a business which is allowed to open, do I have to let my staff work from home?

The national lockdown guidance is that all those who can work from home should work from home.

There are obvious positions where staff will not be able to work from home such as construction, engineering, child care, retail, manufacturing and the list goes on. In these instances staff will not be allowed to work from home.

As an employer you have a duty to keep your staff safe, this may extend to protecting them from catching Covid19 in the workplace wherever possible. So, if your staff are able to work from home effectively and productively you should allow them to do so.

That being said, not all job roles can be done effectively from home. They may be required to be physically present to open post, respond immediately to situations or you might not have the infrastructure to allow them to work from home.

The guidance may also vary person to person as well as job role to job role. You are still able to expect a reasonable output from staff and if a staff member is not productive or effective when working from home they might not have this option.

It is important to remember that fear of catching coronavirus can be a genuine concern and should be treated sensitively. You should try to reduce risks in the workplace such as social distancing, heightened hygiene and providing screens.  If staff are still unable to come to work you may consider other options such as using annual leave, unpaid leave or furlough. It is better to seek advice on a case by case basis and each situation will be different.

My staff are unproductive because they are homeschooling as well as working from home, what are my options?

In the first instance try to be understanding, working from home around dependents is no easy task. Maybe you could agree to a more flexible work pattern to allow staff to manage home and children. An example of this might be allowing staff to start earlier or later in the day, compressing their hours or reducing their hours. 

Any agreement is just that and should be done by consent.

Even the most understanding employer can still require work to be done accurately and productively if staff are unable to work productively at home you may want to consider using furlough or asking staff to use either parental leave or annual leave.

Be careful because you do not want to accidentally discriminate against women who are known to be more likely to  have the burden of childcare.

I have some staff members who can work from home but want to attend work, are they allowed to?

This is a matter for employers to decide, there will be some individuals who want to attend work for mental wellbeing reasons or because they do not feel able to work from home. If you are able to reduce risks in the workplace by making the environment Covid secure you are able to allow them to work from the office.

What about staff who are shielding?

Shielding came back into action on 4th January 2020 for the most vulnerable members of society. Staff who are shielding should have received a letter from a medic or the NHS informing them that are to shield which means that she should not leave home.

If staff are told to shield employers should not expect them to work away from their home. If they can work from home you should allow them to do so. If they are unable to work from home you can either put them om furlough or Statutory Sick Pay, staff also have the option of using annual leave.

We hope that you found this blog useful, if you did please share it with someone else who may benefit from reading this.

This blog is general information and is not intended to substitute advice, if you would like specific advice or support with Employment Law you can contact us via our website at http://www.orchardemploymentlaw.co.uk

Reflecting On 2020

Here we are again in the final month of the year but  we can honestly say that this year has been like no other.

At Orchard Employment Law we have been a socially distanced shoulder to cry on, a virtual ear, a supporter of those businesses who have experienced growth and have had to keep up Employment Law changes which seemed to change almost monthly. We deciphered phrases like furlough, job support scheme and job retention scheme and tried to be there whenever we were needed.

We have seen some of our colleagues and clients struggle both personally and in business. Missing their loved ones, working from home whilst homeschooling, feeling the challenge of limited or no work or an increased demand for which they had not planned for. It is not all doom and gloom, we have also witnessed some amazing business pivots and even business mergers. Best of all community spirit has been wonderful and we have all learned to appreciate some of the simpler things in life.

Our team has grown to include Natalie one of our HR advisors. Lucy celebrated her 3rd year at Orchard. We also moved into a bigger office but ironically have spent much of the year working from home and it is fair to say that Jemma’s speaking skills have been in demand.

Jemma started the year by speaking at Olympia, a well known venue in London. By March it seemed as though business events would be a thing of the past but event planners and delegates across the UK moved to host some of the biggest digital events we had ever seen. It has been amazing to see how resilient and creative people can be. This resulted in Jemma speaking at over 20 events this year.

At this time of year we would usually be talking to readers about planning for the new calendar year however, we know that for many there is too much uncertainty for grand plans. 

So with that in mind we just want to wish you a Merry Christmas and hope for a happy New year.

Seven Tips for Working From Home

Seven Tips for Working Remotely

Some call it Lockdown 2.0 others call it the second lockdown but one thing is for sure and that is that more workplaces will go back to remote working, we have Seven tips for those staff who are working from home, and how to effectively manage your team remotely: –

  1. Don’t Forget About Data And GDPR

Out of sight may be out of mind but it is important to remember your legal obligations around data. It is also just as important to remind staff about data protection. This may include making sure that they they have headphones if they are taking phone calls in the presence of others. Making provisions for the disposal of confidential waste, this could include investing in a shredder and not leaving their computer or laptop open when they step away from their desk.

2. Set Up A Designated Workplace

It is important that staff try as much as possible to keep their workspace separate from their home space.

If they have space, a home office, spare bedroom, or some other dedicated area that offers privacy is the best option.

This way, work can be separated from home life more easily. It will help staff to focus on their work and not be distracted by the little jobs that always need doing around the home. It also means that they will be able to enjoy their down time without thinking about work.

3. Work Safely with Equipment

Employers are still responsible for the health and safety of employees and whilst you cannot pop round to their homes, you can talk to them about protecting their health.

One easy thing you can do is to ask your staff to complete a Display Screen Equipment (DSE) questionnaire. You can find this here https://www.hse.gov.uk/msd/dse/ and it is free to fill in.

Remote working also may mean that your staff are working around the kitchen table, on an ironing board or some other makeshift office space. This is not always good for posture and it is, therefore, important to remind staff to take regular breaks and stretch their muscles

4.Keep Connected

Remote working can get lonely and we all know that of a lot of people have suffered with their mental health over recent months.

It is, therefore,  important for employees to stay connected with each other as well as the boss.

Hold regular video meetings or phone calls to keep in touch with everyone. Ask staff what they are working on and encourage them to share what’s on their minds.

We know that video meetings are not a substitute for human contact but they are still very good. Most people communicate with more than just words – we use eye contact, facial expressions and other forms of body language to convey how we are feeling.

We have found that daily video meetings with the whole team each morning have been helpful in building and maintaining a working and personal relationship

5.Be Clear About Your Expectations

Everyone thrives on structure, including your staff. Employees will have core hours that they are expected to work. It is important to remind staff of this and that they are expected to stick to their core hours as much as possible.

Of course, this may not always be possible but staff should communicate with management if they are experiencing difficulties in this area.

Be clear and realistic about your expectations; this is not a chance for staff to make unreasonable mistakes, be rude to customers or to spend very little time working. If staff are struggling to work in their normal hours then consider moving their hours temporarily; you may get more output early in the morning or late in the evening.

Remember though that you may still need to look at capability or disciplinary procedures.

6.Get dressed

Encourage staff to get up and get dressed as if the day were a normal working day and they were commuting to their workplace.

Changing into work clothes can help staff to mentally prepare for the day and make the switch from home life to work mode, and will also help to distinguish between ‘homeworking’ and ‘home life’.

This will be a personal choice though, we all know someone who will work in smart jacket and pyjama bottoms.

7.Ask for Help and Support

Remember to ask for help and/or support when you need it. These times are tough for us all and we all need to support each other as much as possible

You should also encourage your staff to talk to you and ask for further support and guidance if needed.

Remember that you are all part of a team and should be supporting each other as much as possible, especially remotely.

We hope these tips are of use to you. If you have other tips that you find successful, please do share them with us.

We are hear to help with Employment Law and HR. If you have further questions or you are in need of some support you can contact us at http://www.orchardemploymentlaw.co.uk

Unpicking the Job Support Scheme

Orchard Employment Law provide answers to some frequently asked questions.

Both Employers and employees have been concerned about the future of jobs once the Furlough scheme ends on the 31st October so it is no surprise that people were eagerly awaiting the announcement of the new job support scheme. 

We bring you answers to some frequently asked questions.

What is the Job Support Scheme in a nutshell?

This scheme will allow employers to reduce staff hours and to claim some monies from the government.

All small and medium businesses will be eligible to use the scheme but large businesses will only be able to claim if they can show that their turnover has reduced as a result of the pandemic.

How many hours must an employee work to be eligible for the scheme?

Under the new scheme the employees work at least at least one third of the employees normal hours. The minimum hour requirement might increase after January 2021.

What will I have to pay as an employer?

As an employer you will be required to pay national insurance and pensions. You will also have to pay 100% of the hours which the employee works.

You will also have to contribute towards the hours which the employee does not work. Your total contribution will vary depending on the percentage of time the employee works. The total minimum contribution from an employer (including hours worked) will be 55% but it could be as much as 80%.

Just as with furlough, it is likely that the employee will be on a reduced salary on the job support scheme.

Can I use the scheme on a new employee?

Employees who been employed on of after the 23rd of September 2020 are eligible for the scheme.

What if the employee has not been furloughed in the past?

There is no requirement for the business to have used furlough in the past or for the employee to have been furloughed before.

Can I rotate staff on the scheme?

Yes, you can rotate staff  on and off the job retention scheme but they must be on the scheme for a minimum of 7 days at a time.

Is there an automatic right to put an employee on the scheme?

No, as this will be a reduction in wages you will need to check your contracts to see whether or not you have the right to reduce pay. If you do not have the right to reduce pay you should negotiate with your staff and have a written agreement for them to be on the scheme. We recommend you take advice on this so as not to end up with a claim against you.

You should also have clear and transparent reasons as to who is put on the scheme and who isn’t. You are still required to follow UK employment laws and this means not discriminating against people.

Will I still be able to make redundancies if I use the scheme?

You will still be able to make redundancies but you cannot use the scheme during the notice period. Employees should receive their full redundancy and notice pay (pre furlough and job support scheme.

Do I have to use the scheme instead of using redundancies or lay off?

No, there is no obligation for an employer to use the job support scheme.

Can we contact you for support?

Yes, we provide advice and support to employers  with all HR and Employment Law matters. You can contact us at www.orchardemploymentlaw.co.uk

Stepping into Quarter 4 of 2020

Adverse weather, Furlough, Redundancies and Annual Leave

October is almost upon us and so now is a good time to start preparing for the colder months. We have a few hints and tips for you for coping with the colder weather: –

Adverse Weather

It happens every year. Snow, ice, frost and fallen trees can cause havoc on our roads and also on public transport, so much so that you could have staff who are late to work or even unable to make it in at all because of the winter weather.

You are under no obligation to pay staff who are unable to attend work, but it is always a good idea to put things in place which allow your staff to maintain pay and also for your business to continue to function.

Think about allowing staff to arrive later at work, work from home (if they are not already) or make up their hours on another occasion.

If you do decide to pay staff who cannot attend work, ensure that they are told that it is an act of goodwill and is not intended to be contractual.

School Closures

This year has been a difficult year with the school closures that we have already had because of the pandemic.

Unfortunately, the weather can also be a factor when it comes to school closures and sometimes, even if your staff can travel to work, their children’s schools may decide to close, meaning that your staff have no childcare and, therefore, might be unable to get into work.

As above, you are under no obligation to pay staff who are unable to attend work but it might be a good idea to think about what staff could do if they have no childcare.

Many businesses will have had staff working from home due to the pandemic and know that this can be successful. So letting staff work from home when their children’s school is closed is a good idea. It may well be that your staff are still working from home anyway.

You should also think about allowing staff to arrive later at work or make up their hours on another occasion.

In past years, we have suggested allowing staff to bring their children into work to give the children some educational, interactive and inspiring experiences. However, this year due to the pandemic, we would not suggest this.

Annual Leave Reminders

Some businesses have their annual leave year starting on 1st January and ending on 31st December. If this is the case for your business, now is the perfect time to remind staff about their unused annual leave allowance.

Employees who have been furloughed during the pandemic will continue to have accrued statutory annual leave entitlements, as well as any additional entitlement provided for in their Employment Contract.

You do not usually have to allow staff to roll over their unused annual leave into the next year unless there are exceptional circumstances such as maternity leave or illness.

However, the Government passed new emergency legislation at the start of the pandemic to ensure businesses have the flexibility they need to respond to the pandemic and to protect staff, and all other workers, from losing their statutory annual leave entitlement.

This means that staff are able to carry annual leave forward if the impact of pandemic meant that it has not been reasonably practicable to take annual leave this year.

Where it has not been possible, the untaken annual leave may be carried forward into the following two leave years.

If you are not allowing your staff to carry their holiday forward into 2021 and 2022, now is the time to remind them that they still have unused leave to take.

And believe it or not, you are also able to refuse an annual leave request if it is not a convenient time for your business or if there are too many staff off.

That being said though, it is essential that staff have time off to rest, so you should be reasonable when refusing holiday requests.

Many employers are also unaware that they can impose annual leave on their staff. So if your business has a down period or if your staff have unused annual leave, you can simply give them a day off. Remember to give notice though.

Sickness

It is inevitable that staff will become sick over the winter months with colds, coughs and flu, as well as the continuing risk of contracting COVID-19.

It is important that all businesses have a clear Sickness Policy in place so that staff know who to contact, and by what times and by what means, if they need to call in sick.

Furlough

As you will all be aware, the Government’s Furlough Scheme is ending on 31st October 2020, meaning that businesses will be required to go back to paying their staff their full wages as well as employer contributions to NIC and any pension schemes.

Redundancies

Unfortunately, due to the Furlough Scheme ending, sadly some businesses may need to think about making staff redundancies.

It is important that businesses follow the consultation regulations carefully when making redundancies, including the correct time limits if more than 20 staff will be made redundant.

Remember to also keep in regular contact with your staff if redundancies are inevitable. Staff will already be feeling anxious about their futures and keeping them up-to-date with current progress and consulting with them about how to move forward it important.

Preparations for a Second Wave of COVID-19

We are all expecting there to be a second wave of COVID-19 in the future, whether that be in the next couple of months or after Christmas.

If and when it does happen, it is important to be ready in terms of how your business is going to be able to function. Make sure your systems and processes are all in order and tighten up all those that aren’t, including a Homeworking Policy and keeping in regular communication with your staff.

If you would like any other information on things to deal with in the run-up to winter, drop us an email at info@orchardemploymentlaw.co.uk

The importance of managing misconduct (even if it is a small issue)

It is important to deal with employee matters as soon as possible, even if they are minor issues.

One reason for this is to avoid what we call ‘The Straw Effect’. The straw effect is where managers ignore small issues (usually because they want to be nice or do not wish to make a fuss) and then act what seems like unreasonably for a minor issue when in reality is is ‘the last straw’ or ‘the straw that broke the camel’s back.’

Employees need to be aware of what is and what is not acceptable in the workplace and if they are not informed of these then they will behave and carry out their work in the way(s) that they feel are correct.

It may be the case that minor issues are dealt with by having an informal chat with the employee. If the employee then carries as before then formal disciplinary actions may be required. If an employer does not deal with conduct issues at the time that they occur, there is very little that can be done about these in the future. They can be used as historical evidence in any future matters but, unless a disciplinary or conduct hearing is held and warnings are given to the employee at the time of the incident(s), an employer cannot give warnings for these incidents in the future, without reasonable reasoning. Misconduct issues should be dealt with and investigated as soon as they become known to management.

Failure to investigate misconduct not only sends the wrong message to employees but also runs the risk of scrutiny by third parties. Fair disciplinary procedures should apply to all alleged incidents of misconduct. These include investigation and disciplinary meetings (where necessary), the right for the employee to appeal the decision, and different individuals carrying out the different aspects of the process, i.e. one person carrying out the investigation, a second person carrying out the disciplinary and a third person dealing with any appeal.

If a business does not have enough members of management to carry out the different stages of the process, it may be that an outside party, such as a business owner from another business or an HR consultancy firm, carries out some of the process.

When disciplinary proceedings involve accusations of alleged historical misconduct that have only now come to light, additional issues must be taken into consideration, including: –

● Why have the allegations only come to light now?

This could simply be down to evidence only emerging now. The investigator should consider the time of the alleged incident(s) and whether the employee’s behaviour might not have merited disciplinary action at the time of the incident(s).

● Was the employee’s line manager aware of the alleged misconduct at the time it occurred?​

If the answer is yes then it is crucial that the investigation considers why disciplinary action was not undertaken earlier. If the misconduct was ignored or accepted by the line manager, there is the possibility that this could undermine any subsequent decision to dismiss or impose any other disciplinary action on the employee. If you have concerns that line managers are not performing to the correct duties, you should consider providing training on how to deal with misconduct in the workplace, including the importance of dealing with misconduct when it arises.

● How can we investigate something that happened in the past?

You must believe that the alleged misconduct actually took place, and be serious enough, for a dismissal to be considered fair. A proper investigation and disciplinary hearing must be carried out and evidence provided to support this belief. The circumstances of the alleged misconduct will determine what is reasonable. If witnesses are no longer available, you could base your decision on evidence if this evidence can be corroborated, sounds feasible and there appears to be no ulterior motive. If documents or other evidence are unavailable, then it may not be reasonable to rely on personal recollections of the contents of that evidence.

A recent case held at the Employment Tribunal has awarded the Claimant £25,000 compensation for unfair dismissal. Mr. Trice had worked for Southeastern Railway for eight years and, at the time of the incident which led to his dismissal, was working light duties at Paddock Wood Railway Station after suffering a broken ankle.

Mr Trice had found himself alone in the ticket office after his colleague had left the window open to go to the shop. A customer approached the window to buy a ticket and, although Mr Trice was not authorised to issue tickets, he went ahead and assisted the customer. Southeastern Railway started an investigation and during this period, Mr Trice admitted that he had acted incorrectly and was very apologetic.

Despite his contrition, Southeastern Railway dismissed him without notice. The colleague who had left the ticket window unattended to go to the shop was only giving a warning, despite also breaking the rules. The Employment Tribunal held that Mr Trice had been wrongly dismissed, saying: -​

“We agree that the Claimant’s actions constituted misconduct and warranted at least a warning but we do find it outside the reasonable range to dismiss. “The Claimant’s motive was to assist a customer, albeit misguided, and there was clear contrition and acceptance he should do differently in future.”

The tribunal went on to say that, instead of dismissing Mr Trice, Southeastern Railway should have provided further training.

This case highlights the fact that employers should consider both motive and whether or not a staff member is remorseful about any alleged misconduct.

We do not know the history of Mr Trice’s employment with Southeastern Railway and, therefore, cannot say if there had been any previous incidents which should have been investigated by Southeastern Railway but in which nothing was done.

It could be that Mr Trice’s conduct and disciplinary record with Southeastern Railway was, on paper, very good but if there were incidents that were not investigated and/or dealt with following correct procedures, then this could have influenced the decision to dismiss Mr Trice.

If you would like any further guidance on carrying out or assistance with conducting a proper disciplinary hearing, or for more information on management training, please feel free to contact us at info@orchardemploymentlaw.co.uk

“We agree that the Claimant’s actions constituted misconduct and warranted at least a warning but we do find it outside the reasonable range to dismiss. “The Claimant’s motive was to assist a customer, albeit misguided, and there was clear contrition and acceptance he should do differently in future.” The tribunal went on to say that, instead of dismissing Mr Trice, Southeastern Railway should have provided further training. We do not know the history of Mr Trice’s employment with Southeastern Railway and, therefore, cannot say if there had been any previous incidents which should have been investigated by Southeastern Railway but in which nothing was done. It could very well be that Mr Trice’s conduct and disciplinary record with Southeastern Railway was, on paper, very good but if there were incidents that were not investigated and/or dealt with following correct procedures, then this could have influenced the decision to dismiss Mr Trice. If you would like any further guidance on carrying out or assistance with conducting a proper disciplinary hearing, or for more information on management training, please feel free to contact us at info@orchardemploymentlaw.co.uk

If the answer is yes then it is crucial that the investigation considers why disciplinary action was not undertaken earlier. If the misconduct was ignored or accepted by the line manager, there is the possibility that this could undermine any subsequent decision to dismiss or impose any other disciplinary action on the employee. If you have concerns that line managers are not performing to the correct duties, you should consider providing training on how to deal with misconduct in the workplace, including the importance of dealing with misconduct when it arises. ● How can we investigate something that happened in the past? You must believe that the alleged misconduct actually took place, and be serious enough, for a dismissal to be considered fair. A proper investigation and disciplinary hearing must be carried out and evidence provided to support this belief. The circumstances of the alleged misconduct will determine what is reasonable. If witnesses are no longer available, you could base your decision on hearsay evidence if this evidence can be corroborated, sounds feasible and there appears to be no ulterior motive. If documents or other evidence are unavailable, then it may not be reasonable to rely on personal recollections of the contents of that evidence. A recent case held at the Employment Tribunal has awarded the Claimant £25,000 compensation for unfair dismissal. Tony Trice had worked for Southeastern Railway for eight years and, at the time of the incident which led to his dismissal, was working light duties at Paddock Wood Railway Station after suffering a broken ankle. Mr Trice had found himself alone in the ticket office after his colleague had left the window open to go to the shop. A customer approached the window to buy a ticket and, although Mr Trice was not authorised to issue tickets, he went ahead and assisted the customer. Southeastern Railway started an investigation and during this period, Mr Trice admitted that he had acted incorrectly and was very apologetic. Despite his contrition, Southeastern Railway dismissed him without notice. The colleague who had left the ticket window unattended to go to the shop was only giving a warning, despite also breaking the rules. The Employment Tribunal held that Mr Trice had been wrongly dismissed, saying: -​

Back To Work As The Lockdown Is Eased

With many businesses having re-opened or planning to re-open shortly, employers will need to consider how to keep staff and customers and clients safe and put certain measures in place.

Risk Assessments

It is important to remember that businesses have a legal obligation to protect employees and visitors to their workplace. Employers should carry out a Risk Assessment and make sensible adjustments where necessary.

If an employer refuses to carry out a Risk Assessment, the Health and Safety Executive or local council can issue an enforcement notice.

Employers can visit https://bit.ly/31mmi6u to carry out a Risk Assessment.

Social Distancing

Two-metre social distancing will still be required, albeit that the Prime Minister has stated that where it is not possible to stay two-metres apart, guidance will allow people to keep a distance of ‘one-metre plus’, meaning people should stay one-metre apart, and also take other precautions to reduce the risk of transmission.

To help staff and customers to adhere to the social distancing rules, employers should: –

  • Put up signs to remind staff and visitors of social distancing guidance;
  • Avoid sharing workstations;
  • Use floor tape or paint to mark areas to help people keep to a two-metre distance;
  • Arrange a one-way traffic system around the workplace.

If it isn’t possible for staff and visitors to keep two-metres apart, employers need to think about how they can be kept safe. Employers should, therefore, consider the following: –

  • Does an activity need to be carried out in order for your business to be able to operate?
  • Keep the time required for an activity as short as possible;
  • Use screens or barriers to separate people from each other;
  • Stagger arrival and departure times of staff and visitors.

Hygiene Procedures

It is extremely important that staff and visitors carry out good hand-washing, cleaning and hygiene procedures.

The frequency of surface-cleaning and hand-washing should be increased: –

  • Encourage everyone to follow the guidance on hand-washing and hygiene;
  • Provide hand sanitiser around the workplace;
  • Regularly clean and disinfect surfaces which are used and touched regularly.

Home Working

Many businesses have decided that their staff will not return to their workplaces until January 2021, with staff continuing to work from home. If this is the case for your business, it is important that staff continue to be consulted and feel valued.

  • Make sure that staff have access to all remote working systems;
  • Communicate regularly with all staff, both as part of team-meetings (via video conference) as well as individually;
  • Ensure that staff have the right home insurances in place.

Employers are also still responsible for the health and safety of staff who are working from home, so you should ensure that staff complete a DSE risk assessment (https://bit.ly/3eJQ88S). This will need to be completed each time a staff member moves their workstation (from one room to another, for example) and also when they return to their workplace.

Staff morale is likely to be low and people will be missing their colleagues. It is extremely important to ensure that staff are looking after their own physical and mental well-being.

Further Guidance

The Government has produced guidance for different sectors to help employers, as well as employees and the self-employed, to understand how to work safely during the coronavirus pandemic. You can find this here https://bit.ly/3g81GTv

Remember that your staff are likely to be nervous about returning to the workplace. You should talk to your staff and ask them if they have any concerns, and reassure them of the measures that you have put in place to keep them safe.

If you would like any more advice, please email us at info@orchardemploymentlaw.co.uk or call us on 01634 564 136.