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UK HR Solutions: Managing disciplinary issues

Welcome to the second post in our new weekly series of hands-on guidance for UK HR professionals. In this series we look at common HR issues that you’ll encounter in the workplace and give you practical guidance on how to deal with them. Over the course of the series we’re covering a variety of topics, such as how to handle grievances, suspensions, poor performance, sickness absence and much more besides.

This week we look at disciplinaries.

Click here to read our step by step guide on what to do when a disciplinary issue arises.

UK HR Solutions: Grievances and how to handle them

Welcome to the first in our new weekly series of hands-on guidance for UK HR professionals. In this series we look at common HR issues that you’ll encounter in the workplace and give you practical guidance on how to deal with them. In the forthcoming weeks we will cover a variety of topics, such as how to manage disciplinaries, suspensions, poor performance, sickness absence and much more besides.

In our first edition, we are looking at grievances. The way in which an employer handles a grievance has long term employee relations implications, in addition to potential legal liabilities.

Click here to read our step by step guide to grievances and how to handle them.

UK HR Two Minute Monthly: disability discrimination; TUPE; employment status

August 11, 2020

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As we move towards a ‘new normal’, our August 2020 update outlines some of the key non-COVID related employment law developments in the UK over the last month. It includes a TUPE-related ECJ judgment which takes a different approach to our usual domestic position, as well as cases on disability discrimination and agency workers. We also provide an update of other recent points of interest. You can find our latest UK COVID-19 employment law updates for the UK here.

Unfair dismissal of long-term sick employee does not automatically mean dismissal is disability discrimination

The Employment Appeal Tribunal (‘EAT’) has held that an employment tribunal erred in focusing on an employer’s decision-making process when considering whether a dismissal arising from disability was proportionate.

The employee was dismissed for disability-related sickness absence. The employment tribunal found that she had been unfairly dismissed. It also upheld the employee’s claim that her dismissal constituted discrimination arising from disability, rejecting the employer’s objective justification defence to the disability discrimination claim. It held that the employer’s aims of protecting scarce public resources and reducing the impact of the employee’s absence on her colleagues were legitimate but that it was not justified because it was not a proportionate means of achieving either aim.

The EAT upheld the employer’s appeal against the finding of discrimination. Having accepted that the employer had legitimate aims for the dismissal, a balancing exercise between the employer’s needs and the discriminatory effect of the dismissal should have been carried out. The fact

US COVID-19: FFCRA Implications of School Reopening Plans

With school reopening plans currently a hot topic across the country, a natural corollary is:  What do those plans mean for employee requests for leave to care for a child under the Families First Coronavirus Response Act (“FFCRA”)?  Under the FFCRA regulations and previous guidance issued by the Department of Labor (“DOL”), the answer appears to be that if a child’s school is physically open and the child is permitted by the school to attend in person, then any personal choice by the child’s parents to instead have the child participate in remote schooling will not provide a qualifying reason for FFCRA leave.

The FFCRA entitles eligible employees of covered employers to take up to two weeks of Paid Sick Leave, and up to ten additional weeks of Expanded FMLA leave, when the employee is unable to work (including telework) due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19 (“Child Care Leave”).  See https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave; 29 CFR §§ 826.20(a)(v), (b).

Early on during the pandemic, the DOL made clear through its Q&A guidance that Child Care Leave is available when instruction has moved entirely online, due to the physical location of a school being closed:

  • My child’s school or place of care has moved to online instruction or to another model in which children are expected or required to complete assignments at home. Is it “closed”?
  •  

    Yes. If

    Coronavirus: new detailed UK guidance on part-time furloughing and reduction in grants under the UK furlough scheme – implications for employers

    The UK government has now released its detailed guidance to implement flexible furlough and gradually wind down the Coronavirus Job Retention Scheme (“CJRS”) to its expected end date of 31 October 2020.

    Key highlights of the new flexible furlough regime and winding down payments

    From 1 July 2020, employers can bring furloughed employees back to work for any amount of time and any shift pattern, while still being able to claim a CJRS grant for the hours not worked. Some of the key aspects of the flexible furloughing regime are set out below:

    • Employers will still be able to claim the CJRS grant for the hours that its employees are flexibly furloughed (that is, not working), compared to the hours they would normally have worked in that period.
    • The existing three week minimum furlough period will be removed. CJRS claims made via the online portal will, however, need to be for a minimum period of one week.
    • Wage caps will be proportional to the hours an employee is furloughed. For example, an employee is entitled to 60% of the £2,500 cap if they are placed on furlough for 60% of their usual hours.
    • Save for employees returning from family leave:
      • employers will only be able to claim for employees who have previously been furloughed for at least 3 consecutive weeks taking place any time between 1 March 2020 and 30 June 2020; and
      • the number of employees an employer can claim for in any claim period starting

    Coronavirus: UK Furlough Scheme – timeline of key dates including collective consultation triggers

    The UK Coronavirus Job Retention Scheme (“CJRS”) is evolving and winding down. In addition to knowing when these changes take effect, UK employers need to bear in mind the risk that they may also trigger collective consultation obligations. Set out below are some key dates for UK employers to bear in mind:

    10 June 2020: furlough claims can only be made in respect of employees who have been registered under the scheme by this date.

    16 June 2020: ‘cliff-edge’ date for conducting minimum 45 days collective consultation prior to any changes from 1 August 2020.

    30 June 2020: employers will not be able to put additional employees on furlough.

    1 July 2020: part-time furloughing is permitted.

    1 August 2020: employers will have to pay employer National Insurance contributions and employer pension auto enrolment contributions for furloughed employees.

    1 September 2020: employers must contribute 10% towards the pay of furloughed employees.

    15 September 2020: ‘cliff-edge’ date for conducting minimum 45 days collective consultation prior to the end of the CJRS on 31 October 2020.

    1 October 2020: employers must contribute 20% towards the pay of furloughed employees.

    31 October 2020: the CJRS ends.

    BCLP has assembled a COVID-19 Employment & Labor taskforce to assist clients with employment law issues across various jurisdictions. You can contact the taskforce at: COVID-19HRLabour&EmploymentIssues@bclplaw.com. You can also view other thought leadership, guidance, and helpful information on our dedicated COVID-19 / Coronavirus resources page at https://www.bclplaw.com/en-GB/topics/covid-19/coronavirus-covid-19-resources.html

    COVID-19 redundancy issues: HR frequently asked questions in multiple jurisdictions

    Summary

    We understand that our clients and contacts will be addressing complex redundancy issues related to COVID-19 in multiple jurisdictions. BCLP, together with our local counsel friends, have produced a global Q&A document covering 40 jurisdictions. We cover questions around dismissals, compensation, collective consultation and alternatives to redundancy.

    Please download our global Q&A document here.

    The document covers the following questions:

    • Is there any legislation, order or mandate prohibiting an employer from dismissing an employee in circumstances where the employer has obtained the benefit of Coronavirus government support?
    • Does an employee with a qualifying period of employment have any statutory protection against redundancy dismissal?
    • What redundancy compensation is payable to an employee who is dismissed by reason of redundancy?
    • Should an employer take into consideration a Coronavirus government support scheme before dismissing an employee?
    • Are employers subject to separate collective consultation obligations?
    • If an employer is subject to collective consultation obligations, is there any defence for a failure to comply?
    • If an employer is subject to collective consultation obligations, what is the sanction for a failure to comply?
    • What alternatives to redundancy dismissal are open to an employer?

    U.S. COVID-19: Chicago Ordinance Bars Retaliation For Taking COVID-19 Related Leave

    As the result of an Ordinance that was passed and became effective on May 20, 2020, Chicago employers are prohibited from taking adverse action against employees who take leave for certain COVID-19 related reasons.

    Covered Employers

    The Ordinance applies to all employers who are covered by the Chicago Minimum Wage and Paid Sick Leave Ordinance (“PSL Ordinance”), which went into effect in July 2017.  This includes any employer (any individual, partnership, association, corporation, limited liability company, business trust, or person/group of persons) that: (a) employs at least one Covered Employee, and (b) maintains a business facility within the geographic boundaries of Chicago and/or is subject to certain Chicago licensing requirements.

    Covered Employees

    Most employees are covered, so long as they work at least two hours during any two-week time period in the City of Chicago (including time travelling for deliveries or sales calls but not including uncompensated commuting time).

    Prohibited Retaliation

    As part of a “[d]uty to allow Covered Employees to obey public health orders,” employers are prohibited from taking adverse action against an employee “for obeying an order issued by the Mayor, the Governor of Illinois, the Chicago Department of Public Health, … or a treating healthcare provider [in the case of 2-4 below],” requiring an employee to:

  • Stay at home to minimize the transmission of COVID-19;
  • Remain at home while experiencing COVID-19 symptoms or sick with COVID-19;
  • Obey a quarantine order issued to the Covered Employee;
  • Obey an isolation order issued to the Covered Employee;
  • Coronavirus Statutory Sick Pay Rebate Scheme – UK online service to be launched on 26 May 2020

    Today, the UK government announced that a new online service will be launched on 26 May 2020 for small and medium-sized employers (with fewer than 250 employees) to recover Statutory Sick Pay (SSP) payments they have made to their employees.

    The Coronavirus Statutory Sick Pay Rebate Scheme (part of a package of support measures for businesses affected by Coronavirus) covers all types of employment contracts, including full-time employees; part-time employees; employees on agency contracts and employees on flexible or zero-hour contracts.

    Employers will be able to make their claims through a new online service in respect of payments made to current or former employees for eligible periods of sickness starting on or after 13 March 2020 on condition that they have a PAYE payroll scheme that was created and started before 28 February 2020 and they had fewer than 250 employees before that date.  Employees do not have to provide a doctor’s fit note for their employer to make a claim under the scheme.

    The repayment will cover up to 2 weeks of SSP and is payable in respect of employees who are unable to work because they have Coronavirus; are self-isolating and unable to work from home or are shielding because they have been advised that they are at high risk of severe illness from Coronavirus.

    BCLP has assembled a COVID-19 Employment & Labor taskforce to assist clients with employment law issues across various jurisdictions. You can contact the taskforce at: COVID-19HRLabour&EmploymentIssues@bclplaw.com. You can also view other thought

    Coronavirus Job Retention Scheme – extension until 31 October 2020

    Since its inception, almost one million employers have applied to the Coronavirus Job Retention Scheme (“CJRS”) to help pay the wages of 7.5m jobs (almost a quarter of all employees in the UK).  Although there is no doubt that the CJRS has been a great success in protecting jobs whilst businesses have been in hibernation, the cost to the UK taxpayer has been extraordinary – an estimated £49 billion up to 30 June 2020, according to the Office for Budget Responsibility.

    The government will be hopeful that as lockdown is eased and employees who cannot work from home gradually return back to the workplace, reliance on the CJRS will decline.  However, there are some sectors which will not be able to reopen until 4 July 2020 (at the earliest) and there will be some employers who will not be able to put in place a COVID-19 secure workplace.  With that in mind, and with a collective redundancy consultation “cliff-edge” on 15 May 2020, the government has taken steps to extend the CJRS.

    Today, the UK Chancellor of the Exchequer announced the following:

    • the CJRS will be extended for a further four months, up to 31 October 2020;
    • no changes will be made to the CJRS until the end of July 2020;
    • with effect from 1 August 2020, part-time furloughing under the CJRS (which is currently prohibited) will be permitted;
    • the existing government grant of 80% of wages (capped at £2,500 per month) will continue to remain in place; and
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