In Changing Times What Are The Key Employment Issues Property Companies Need To Be Aware Of?
Employers lawyers have never been busier as the number of issues employers in the property industry and other sectors are grappling with currently. Even before the official end of the furlough scheme, many firms have been considering or implementing redundancy programmes. Both CBRE and JLL both announced redundancy consultations in the Summer and according to Co Star in July BNP Paribas Real Estate entered into a collective redundancy consultation process with its staff in the UK which is expected to conclude this month. These firms are not alone as businesses struggle to cut costs.
But redundancy is not the only issue on the horizon. Issues over furlough fraud, home working, self- isolation and quarantine remain on the agenda. Employment specialist Jo Moseley of Irwin Mitchell reminds employers in the sector what they need to bear in mind:
End of furlough
The furlough scheme ends on 31 October 2020. On Thursday the government announced the Job Support Scheme which will be available to most employers from 1 November. However, it’s not as generous as the furlough scheme and it’s been estimated that it will cost employers around 33% more to employ two people half time that to employ one person full time. Many businesses will therefore still have to make redundancies.
If you are planning to make 20 or more people redundant within 90 days at one place of work, you must go through a process of collective consultation with a union (if you recognise one) or with employee representatives if you don’t. If you don’t have any elected representatives already in place, you’ll need to factor in sufficient time for affected staff to elect them.
Once you have completed collective consultation you must then consult with each member of staff whom you’ve provisionally selected for redundancy to give them the opportunity to dispute their selection and consider other alternative roles they can do.
If you make someone redundant who is still being furloughed (for all or part of their working week), you can use their furlough grant to help fund their notice pay but you will need to top it up so they receive 100% of their normal pay. In addition, you must also use their normal wage to calculate their statutory redundancy payment, which is subject to a cap of £538.00 per week.
HMRC has published a new compliance factsheet which explains what steps it will take to recover furlough payments that have been wrongly claimed, when it will impose penalties and publish the names of 'deliberate defrauders'.
HMRC accepts that 'mistakes happen' and says that it isn't looking for 'innocent errors'. Instead, it is going to focus on those organisations that have deliberately not complied with the scheme and have made fraudulent claims. However, it expects all organisations who have been overpaid to contact them and repay what they owe.
If you are still claiming furlough grants, you can notify HMRC when you submit your next claim about errors. Otherwise, you have to notify them within a certain amount of time to avoid incurring penalties.
The time limits are the latest of:
• 90 days after you receive the furlough grant you’re not entitled to
• 90 days after the day circumstances changed so that you were no longer entitled to keep the furlough grant
• 20 October 2020
Self isolation and track and trace
Currently, the virus is doubling every seven days and further measures are inevitable. Everyone is expected to do their bit and to self isolate for up to 14 days if they have symptoms of coronavirus; test positive for it; live with or in a bubble with someone with symptoms, or has tested positive; or are asked to do so by the test and trace service. Employees should receive SSP if they have to self isolate from the first day as the usual rules about ‘waiting days’ don’t apply.
If a member of staff becomes ill at work, they should go home and immediately arrange for a test. You must follow the strict rules about cleaning all surfaces they have touched or could have been in contact with. Anyone with coronavirus symptoms can (in theory) get a test via the government online test site. There are two options 1) to take the test at a 'local' test site or 2) to take a home test kit. All tests should be done in the first five days of having symptoms - but home testing is only offered to people who have had symptoms for fewer than five days.
However, there are many reported delays and your employee may not know if they have the virus for several days. If they test positive, they must remain at home for at least 10 days from the onset of symptoms - longer if their symptoms persist. If the test is negative, your employee can return to work provided: 1) everyone they live with or who is in their support bubble who has symptoms tests negative 2) they are not told to self-isolate for 14 days by NHS Test and Trace; and 3) they feel well and have not had a fever for 48 hours. However, the letter containing the test result advises individuals to talk to their employer before returning to work.
The stay at home guidance advises anyone who tests positive to "consider alerting people who you do not live with and have had close contact within the last 48 hours to let them know you have symptoms of COVID-19". Therefore, if a member of staff tells you they have tested positive, ask them if they have spoken to any of their colleagues with whom they've been in 'close contact' and ask them for their names.
There are some data issues that you should also bear in mind. Government guidance about test and trace says that: "Employers may need to keep staff informed about COVID-19 cases among their colleagues. However, employers should not name the individual. If a co-worker is at risk because of close contact with the positive case, then they will be notified to self-isolate by the NHS Test and Trace service." This aligns with guidance published by Information Commissioner.
Therefore, if you do speak to other staff members, you must be careful about what you say and limit this to what is necessary to safeguard the health and safety of others working with them. The basic rule of thumb is that you should only tell the smallest possible number of people the minimum amount of personal information about someone else that is necessary to keep them safe.
Many popular European holiday destinations have been removed from the 'travel corridor' scheme and restrictions, requiring travellers to quarantine for 14 days, are imposed at short notice. You must not ask your staff to return to work if they have to quarantine and should record their absence as ‘authorised’. If they can continue to work from home you should pay them as normal, but if they can’t you don’t have to pay them (SSP isn’t available for people who quarantine). This will leave many employees out of pocket. One option is to relax your holiday policy and allow them to take any remaining holiday on their return, even if they can't give you the normal period of notice you'd expect. You may also be able to furlough them provided the employee has previously been furloughed and you adhere to the new rules.
You can’t tell staff not to go abroad on holiday, but you can discourage them by making it clear they will have to follow any quarantine advice in place and won’t be paid during this time unless they can work from home. Bear in mind though, that some people will have booked their holidays pre-lockdown and may decide to go if they can, even if they have to quarantine, without pay, afterwards. Government guidance advises employees to, where possible, work from home during their self isolation period and advises them to "talk to their employer about working from home before they travel".
As half term is approaching, it's helpful to set out your expectations in a policy or write to your staff to explain what might happen if they holiday abroad and are asked to self quarantine afterwards. This should cover: notifying you if they have travelled abroad, reporting their absence (and how it will be recorded on their records), whether they will be paid during quarantine and, if not, whether they can take outstanding paid holiday.
This article first appeared in CoStar.