Big Interview

EMPLOYERS LEARN THE NEW LETTERS OF THE LAW

Employment law and its application during the exigencies of the pandemic have been the main source of enquiries made to experts MFG Solicitors of late.

BY HELEN COMPSON

The rules governing home-working, the related responsibilities around mental health, vaccination and now the IR35 regulations, regarding off-payroll working, that came into effect on April 6 are the subjects employers most want to talk about, said Sally Morris. Partner and head of the employment division of a firm that advises businesses on a wide range of corporate and commercial issues across Worcestershire, Shropshire and the West Midlands, she said the past few months had certainly tested employers’ mettle. “Take working from home, there are significant implications in terms of how staff are managed, dealing with appraisals and establishing what new working hours might look like,” she said. “Are people at their desks from 9 to 5 or is there more flexibility now? “And then, of course, there’s health and safety. How will that be monitored, because employers still have to carry out assessments, even for those working from home.” Homeworking was clearly here to stay and the sooner managers dealt with the practical issues involved the better. That included updating contracts of employment to reflect the new conditions, such as place and hours of work; taking steps to protect confidential information and personal data; reviewing health and safety measures and carrying out risk assessments; identifying any specific equipment that needed to be provided; considering whether any special planning or insurance arrangements were required; deciding how to manage and supervise homeworkers; and identifying the tax consequences. Sally said: “It is likely with the pandemic that companies will see an increase in applications for flexible working and, as employees have been working from home, it might prove difficult to decline some of them. “Companies would need to ensure that any refusal was made on at least one of the eight grounds outlined in law.” It was important to ensure fairness and to avoid any potential issues of discrimination while dealing with such applications, and businesses had to take particular care when a number were received at once from different employees. While all companies knew they were obliged to provide a safe working environment, some had taken their time in realising that included employees’ mental health too. “During Covid-19, companies have been required to carry out risk assessments in relation to mental health,” she said. “This can include stress audits, whereby managers need to identify risk factors. “They should identify who might be harmed and how, gauge the level of risk and then develop a solution. Importantly, they must record their findings as they are doing so and then monitor and review the subsequent action plan they draw up. “Companies must tackle the causes of work-related mental ill health, especially in the circumstances arising from Covid-19, and really they should consider appointing and training mental health first aiders.” MFG staff have themselves been working from home since last March. Good

It is likely with the pandemic that companies will see an increase in applications for flexible working and, as employees have been working from home, it might prove difficult to decline some of them.

communication had been vital in ensuring people felt supported, engaged and, as a result, motivated. The team had a weekly meeting online, but they also talked to each other throughout the week via email, telephone and their group WhatsApp. “Sometimes the Monday meeting is just about social stuff, because that’s an important element of keeping in touch with each other and maintaining morale,” she said. “Overall, strong leadership from the MFG partnership and the board has been crucial throughout the pandemic – they have been quick to react to any changes or needs – and that will continue to be important as we move out of lockdown.” Among the most frequently asked questions currently is whether employers can insist on staff being vaccinated before a return to the office. The answer is that as vaccination is not mandatory in the UK and therefore there is no legal requirement for employees to be vaccinated, employees cannot be forced to have a Covid jab. “The Government is considering whether certain sectors, such as care and the NHS, can introduce a mandatory requirement for vaccination in view of the vulnerability of the clients and patients staff will come into contact with,” said Sally. “Also, the way could be paved for employers to introduce voluntary vaccination requirements, but appropriate procedures would need to be followed to ensure this was introduced lawfully. Potentially there could be legal claims on the grounds of indirect discrimination if an individual with a protected characteristic feels they have been put at a disadvantage. “It could also be that a requirement to be vaccinated is directly discriminatory, and asking about vaccination during recruitment could be deemed a prohibited health question.” The other hot topic of the moment is IR35 and the regulations that now apply when companies contract with a worker through an intermediary service. While small businesses are not affected, medium and large companies (as defined by The Companies Act 2006) must assess whether any work a contractor does via the intermediary could be deemed as direct employment for tax purposes. Sally said: “Companies will be obliged to complete a status determination statement and if it is indeed determined that the contractor is an employee for tax purposes, then the employer must deduct and pay the tax liability via payroll.” And then, finally, there were the inevitable questions about the furlough scheme. Sally confirms the situation as it stands currently: the Government will cover up to 80% of employees’ salaries, capped at £2,500 per month, for the hours they cannot work. From July, the Government contribution will be reduced to 70% of salaries for hours not worked and employers will have to pay 10%. In August and September, the split will be 60% from the Government and 20% from employers. The furlough scheme, which is now firmly entrenched in UK employment law, has been extended until 30 September 2021.

Sally Morris