Businesses and HR departments have been reacting to the unexpected throughout 2020 – and whilst 2021 isn’t showing signs of that stopping, there is an opportunity to plan for some of the known challenges in the coming year to ensure you steer clear of any potential penalties.
We look at six potential ‘clangers’ and explain how these can be avoided:
The HR press recently reported an unfair dismissal ruling. The employee, who won his case, had already received £95,000 in sick pay across 808 days off sick BUT the company failed to follow procedures when dismissing for capability. Where is that facepalm emoji when you need it? As they say … snooze and you lose.
Our questions to you …
Are any of your managers snoozing when they need to be on it and owning your procedures? Has remote working made any managers lazy when it comes to the day to day management of issues? Has HR switched off and gone home when it comes to ensuring managers are on it?
COVID is a reportable disease under RIDDOR. Please don’t end up being penalised as a result of not knowing your responsibilities around reporting and COVID.
Across the UK, 44 workplace deaths relating to COVID were reported in just an 8 week period between 6 October and 23 November last year but still too few in HR understand that COVID deaths count as workplace fatalities. These 44 deaths resulted from over 2000 workplace outbreaks of COVID and 5000 workplace COVID infection cases reported.
Our question to you …
Do your managers and HR really grasp what they need to report, who reports it and when it needs to be reported by?
Diversity & Inclusion
Across 2020 we have been aware of various diversity initiatives that seek to solve one problem but in turn create another problem.
A classic is … don’t exclude those who used to feel included through the actions you take to include those who used to feel excluded. Wrap your head around that! Yes, you need to be more inclusive, but you won’t achieve this by vilifying, demonising, closing down, ‘cancelling’, or treating as ‘less’ those who used to feel included. We all have flaws, we all have biases and we all make mistakes so let’s work towards a balance in all things, education for all and respect as a key part of the culture we work in. If in doubt about whether you too are solving one problem but creating another, why not go back to redefining inclusion in your business? Don’t lose sight of the end goal … INCLUDING everyone.
Another classic is … nominating one person who has a protected characteristic (e.g. race, religion, ethnicity, age etc.) to be responsible for diversity initiatives and then finding your diversity initiative is skewed to focus solely on their one specific protected characteristic.
We have even read of bullying and discrimination claims being levied against a Head of Diversity due to their behaviour towards others – the case that comes to mind was a HoD being accused of homophobia and ageism. Just because someone has one protected characteristic does not give them saint status, we all have biases and your Head of Diversity ideally will have a wise and educated head on their shoulders and a balanced/rounded approach to all things Diversity.
Finally, remote working has resulted in many employees spending far more time with their own families and ethnic groups. This means we are seeing reduced opportunity for integration, less collaboration with others, less social interaction between different groups of people including groups dominated by a particular age, race, religion, sexuality etc. Many of us are no longer working in multi-cultural, diverse environments as we turn our cameras off and hide behind texts and emails. Be careful not to lose the inclusive environment you previously had when everyone eventually returns to face-to-face interactions.
Our questions to you …
Where are you at with diversity – is it time to rethink your approach, have you solved any issues but in so doing created others? What is on your action list for 2021?
It is all too easy in these times of remote working for the introverts, younger (less experienced) workers, less tech savvy workers and the quieter (or shy) ones amongst us to lose visibility, or become invisible. The consequences of this are that they may be overlooked for wellbeing support, promotion opportunities, training, social interactions, performance management or even absence management.
Just because managers stop seeing them though does not mean they can’t sue you if you overlook them for promotion, a pay rise or neglect their welfare. Of course, more important than suing you is the potential you have to lose the good will, engagement and high productivity of good workers who slowly become disenfranchised through ‘invisibility’.
Our question to you …
As remote working becomes the permanent option for many, are your line managers competent and confident in managing their teams to ensure you are both protected legally but also operating in a way that ensures the ongoing productivity and motivation of all?
Remote working from far away
Another clanger we might mention here are those workers who either never had the right to work in the UK, or who have lost the right to work in the UK as a result of Brexit. More easily spotted when you sit next to them in the office, but not so easily spotted when they are remote workers in some unnamed country – after all we can all work from anywhere, can’t we? Can’t we? NO!
But just how many in HR are really confident about the rules on employing remote workers who do not have the legal right to work in the UK and aren’t based in the UK? And what about current UK based employees who are now asking to ‘work from home’ for an extended period in an overseas country? We doubt that many in HR are confident of the laws around all of this.
“What does it matter where I work from” is what we often hear from job applicants – well it does matter and just because your interview was conducted by someone in the UK and your contract was emailed out from the UK does not mean you have the right to work under that contract – from Barbados, to Russia, or even Brazil … or wherever it is you are based. Remember that Statutory Illegality is one of the fair reasons for dismissal in the UK should you find someone has no right to work after you issued the contract.
Of course a contract issued to someone outside of the UK and working outside of the UK also potentially provides no protection whatsoever to the employer who issued it – there are so many countries with an incredible number of rules between them that might be relevant when considering the employment status and rights of your employee. Also, no assumption should ever be made that just because personal taxes have been deducted in the UK that another country cannot insist on tax also being paid locally.
As a final note of warning, don’t assume either that employing someone who is physically working from home in a different country won’t expose your business to corporation taxes. It can happen if you are not careful what arrangement you set up.
Here are two good reads on this whole topic. Bear in mind that with Brexit so recent, some of the information is out of date, but there is lots in here that is really good food for thought.
To finish this section, let’s be clear on some of the penalties of dropping a clanger here…….
- No right to work in the UK – fines used to be £10,000 per person and is now £20,000 if you are found to be employing someone without the right to work i.e. not good enough checks done or none done. If you have knowingly employed someone without the right to work then the fines are unlimited, with potential criminal liability too.
- Contract not enforceable in the local country – danger zone around confidentiality clauses, pay clauses, restraint of trade, non poaching, dismissals etc.
- Employment rights unexpectedly arise in local territory creating liabilities not intended (income tax or social security liability in that country) or even the risk that you as the Employer are regarded as having created a permanent establishment there.
Our question to you …
Do you really know where every is who is remote working currently and have you checked that their location will not give rise to any unpleasant surprises?
On top of everything the real clanger of the year could well be IR35. Postponed from last April to April 2021 this will change how we employ contractors. Don’t get caught out. Read our IR35 article if you want to know if this will affect you.
Busy times ahead for HR and Managers this first quarter of the year as we head into more lockdowns, wellbeing issues, rising tribunal claims, workplace grievances, but there are things you can do to reduce the likelihood of clangers being dropped – you can start by sharing this article 😊
How we can help
Jaluch is here to support – HR guidance (no contract required), training (e.g. TUPE and contract law), eLearning (e.g. immigration, data protection) and we are also delighted to offer a series of wellbeing sessions designed to reduce the likelihood of claims for bad backs, stiff shoulders and necks etc. that come from too much home working. Contact us for more info on these or anything else.