At the beginning of May further guidance was published for employers in respect of the CJRS.
Whilst on furlough, employees who are union or non-union
representatives may undertake duties and activities for the purpose of
individual or collective representation of employees or other workers. This
clarifies that it is not a breach of furlough to accompany a colleague during
disciplinary or grievance meetings, or redundancy consultation.
Directors paid in Dividends can Furlough
The guidance also outlined that directors who pay themselves
once a year (typically one-person businesses where most revenue is taken as
dividends) are, subject to certain conditions, eligible for furlough.
This week we start our new
series, examining key employment law concepts. Join us as we provide you
with a weekly examination of the nuts and bolts of various topics, focussing on
the areas of advice about which our client’s frequently contact us.
Feel free to get in touch with any of the MLP team, if you have any queries on the information provided or if there is a burning issue that you would like us to address.
What is unfair dismissal?
Unfair dismissal occurs when an
employer dismisses one of its employees (as it does not apply to workers) for
an unfair reason and/or they do not follow the correct procedure for the
How can an employer avoid
dismissing an employee unfairly?
Dismiss the employee
for a fair reason
Ensure the decision
to dismiss the employee is reasonable
Follow a fair
What are the fair reasons for
dismissing an employee?
qualifications for the job
substantial reason of a kind which justifies a dismissal (eg to force through a
How does an employer know if
their decision to dismiss the employee is reasonable?
The test here is whether the
decision to dismiss the employee is within the range of reasonable responses
open to an employer in similar circumstances. This means that there may
be various options open to an employer in a particular situation that would all
be considered fair. The decision that the employer takes will therefore
be considered to be reasonable, provided it is not viewed as one that no
reasonable employer would have taken, if they had been in the employer’s shoes.
What basic procedure should
an employer follow to ensure fairness?
Advise the employee
that they are commencing a procedure that may culminate in their dismissal
Invite the employee,
in writing, to attend a meeting
Allow the employee
to be accompanied by a Trade Union Representative or colleague at the meeting
Consider all the
relevant information and make a reasonable decision
Inform the employee
of their decision, in writing
Allow the employee
the right of appeal against the dismissal
What is the length of service
necessary before an employee can make an unfair dismissal claim?
The employee must have been
employed by the employer for 2 years (if less than 2 years, don’t forget to
include the employee’s period of notice in assessing the length of
service). If not, a claim for unfair dismissal cannot be made unless one
of the statutory exceptions applies (eg the employee was dismissed after her
first month, when the employer discovered that she was pregnant).
What is the time limit for
lodging an unfair dismissal claim
An employee must submit a claim
to an Employment Tribunal within three months/less one day from the effective
date of termination of the employment – the date of leaving the job, if it is
with immediate effect or upon the expiry of a period of notice.
An Employment Tribunal can make
various Orders, in the event that you are found to have unfairly dismissed an
employee. These include making you give the employee their old job back
and financial compensation. Financial compensation comprises 2 elements –
a basic award, which is akin to a redundancy payment and a compensatory award,
which is limited to 1 year’s salary and currently capped at £88,519.
Next week….annual leave
Please don’t hesitate to contact
the team at MLP with ideas about topics or for detailed advice in connection
with any of the issues raised.
The Chancellor of the Exchequer, Rishi Sunak, has
today confirmed that the Government’s Coronavirus Job Retention Scheme will
remain in place until October 2020.
This announcement follows concerns raised by
business leaders, workers and politicians alike that the end of the scheme,
under which employees can be furloughed from their jobs with 80% of their wages
covered by a government grant claimed by their employer, could result in
significant damage to the UK economy.
The scheme will now be extended to the end of
October 2020 (the original end date was the end of June 2020).
Mr Sunak also confirmed that there will be no change
to the way the scheme operates until the end of July 2020, following which
additional flexibility will be implemented into the scheme for August,
September and October.
This additional flexibility will include allowing
employers to bring back their employees part time, in contrast to the current
system which only subsidises employees who are not working at all.
Against expectations, Mr Sunak confirmed that
employees will continue to receive 80% of their salary, but employers will be
required to make a contribution. There had been speculation that the scheme
would be lowered to only cover 60% of an employee’s wages.
As has become a common refrain as economic measures
have been introduced throughout the coronavirus pandemic, the finer details of
the scheme, include the level of contribution required from employers, are
eagerly awaited, which we expect to receive by the end of May. The MLP Law Employment team will make sure
you are kept up to date on every development as it happens, so keep an eye on
our twitter account @HRHeroUK or get in touch with us on 0161 926 9969 or firstname.lastname@example.org.
On Sunday 10 May 2020, Prime Minister Boris Johnson
announced significant changes to the Government’s coronavirus guidance. These
changes cover many fundamental aspects of everyday life, including social
interactions and exercise. However, perhaps of most significant for those in
business, is the change in guidance on who can return to work.
So what has changed?
The Prime Minister’s announcement confirmed that all workers who
cannot work from home are, from Wednesday 13 May 2020, “actively encouraged” to
return to their physical place of work and that sectors of the economy that are
allowed to be open should be open.
The Government’s recovery plan, entitled “Our
Plan to Rebuild: The UK Government’s COVID-19 recovery strategy”, specifically states that this this includes food production,
construction, manufacturing, logistics, distribution and scientific research in
laboratories, with the only exceptions being workplaces such as hospitality and
non-essential retail, which for the time being must remain closed.
How can my employees return to work?
If you have employees who are unable to work from home, and your
business is permitted to be open, you can implement a return to work from
Wednesday 13 May 2020. In doing so, you must follow the new “COVID-19 Secure” guidelines,
which set out sector by sector guidance on health and safety measures to be
implemented by employers when bringing employees back to work.
The guidelines are lengthy and should be read in detail by any
employer intending to bring their employees back to work. The guidelines
supplement existing health and safety and employment law obligations.
In summary, amongst other things the guidelines state that
consult with employee representatives about the return to work;
conduct risk assessments, share these with employees and in some
cases publish these online;
implement strict and enhanced hygiene and social distancing
measures, which will vary from workplace to workplace and industry to industry;
minimise interactions between employees, customers and third
parties, including by staggering working patterns, using floor markings and
implementing other physical distancing measures;
encourage employees to avoid public transport when travelling to
Interestingly, on the subject of personal protective equipment
(“PPE”) the guidelines indicate that this is of minimal benefit in comparison
with the hygiene and distancing measures outlined above and that, should it not
be possible to implement these measures, an employer should give careful
consideration to whether the proposed activity should really be carried out at
What hasn’t changed?
If you are a hospitality business or “non-essential” retail
outlet, for the time being the situation remains unchanged for you. Under the
Government’s recovery strategy (see link above), it is envisaged that your
business will be able to reopen as normal on 4 July 2020 at the earliest,
subject to the Government being satisfied that the coronavirus pandemic is
The situation also remains unchanged for employees who are able
to work from home, who must continue to do so for the foreseeable future.
Similarly, the Government’s guidance on individuals who show
symptoms of the coronavirus is unchanged, meaning a 14 day isolation period
will still be required for the individual and their household.
How can MLP Law help?
Employment Team at MLP Law can also help you with any of issues raised in this
update. Just contact us on 0161 926 9969, email@example.com or on our employment law-specific Twitter account @HRHeroUK.
Law is also are hosting a free live Post-Lockdown Q&Q webinar on Thursday
14 May 2020 at 9.30am – 10.30am, where we will be expanding on some this week’s
developments. You can register your place by emailing firstname.lastname@example.org or email@example.com.
Zoom quizzes, lockdown, social distancing, furlough: just a few of the words and phrases we have been unable to escape for the past two months. Life pre Covid-19 now seems like a distant memory. Despite the Prime Minister’s recent announcement that the lockdown rules would be relaxed slightly, we are still a long way off to returning to normal.
As a result of Covid-19, 7.5 million people are currently taking advantage of the UK Government’s furlough scheme, putting unprecedented strain on the economy. Understandably, the Government is keen for the country to get back on its feet as soon as possible. One of its key strategies to help things return to normal is with the upcoming roll out of the new NHS coronavirus contact-tracing app (App). Put simply, the App, using Bluetooth signals, is designed to track people down who have been in ‘close contact’ with someone who has Covid-19. These people may then be asked to self-isolate to halt any further spread of the virus. For clarity, ‘close contact’ means being within 2 metres of an infected person for more than 15 minutes.
The App is currently being trialled in the Isle of Wight, and at the time of writing, has been downloaded around 55,000 times. If deemed successful, it will be implemented across the rest of the UK in due course.
It’s been less than 2 years since the UK’s data protection laws got a massive overhaul thanks to the GDPR. In addition, devices such as Alexa, Google Home, and Hive are quickly becoming part and parcel of our daily lives. As a result, there is an ever increasing awareness of how companies collect and use our data, raising very real concerns about our privacy.
It is perhaps unsurprising therefore that there have also been many concerns about how exactly the App will monitor users and what information it will collect, and potentially share, about them.
According to the NHSX (the NHS’s digital arm), the App will not collect personally identifiable data from users and therefore, users of the App will remain anonymous. Moreover, the App will not track users’ location and will not, for example, monitor their movements for law enforcement purposes, such as to locate, identify, and fine users who are not self-isolating. Nor will the app be able to access any other information on the users’ phones. Crucially therefore, App will be used for the sole purpose of managing and (hopefully) eliminating the spread of Covid-19.
Notwithstanding NHSX’s comments about how the App will be used, many users are still concerned about the risk of privacy intrusion. However, as explained above, such concerns are unfounded, and in any event, users are free to delete the App and its data at any stage.
Taking everything into account, the use of the App will most likely result in a dramatic decrease in the spread of Covid-19. Surely the benefits of this: countless lives saved, businesses reopening, and significant pressure being taken off the NHS – far outweigh these minor (and unfounded) privacy concerns.
On this basis, if it helps with to speed up the release of the lockdown measures then we’re all for it on behalf of our clients. Do you agree or not? Let us know.
For advice on the App or any other advice on Data Protection, Technology, ITor Privacy please contact our commercial and IP team on firstname.lastname@example.org or 0161 926 9969
The legislation and rules surrounding annual leave can often be difficult to interpret, so the team at MLP have tried to outline in plain terms answers for the queries we are asked about most often.
How much annual leave are employees entitled to?
Full-time employees have the right to 5.6 weeks (28 days) of paid annual leave per year.
How about for part-time employees? How is their annual leave entitlement calculated?
Those working part-time are entitled to the same amount of holiday as full-time employees, but their entitlement is calculated on a pro rata basis.
Part-time leave is calculated by multiplying the number of days worked per week by 5.6. This means that if an employee works three days a week, they will be entitled to 16.8 days of paid annual leave. If someone works four days a week, they will have the right to 22.4 days.
Do I have to pay my employees for bank holidays?
Employees do not have a legal right to be paid to be off work on public holidays. Generally, bank holidays are counted as part of the statutory 5.6 weeks.
What do we need to pay employees while they are on holiday?
For workers with fixed working hours, holiday pay amounts to their weekly normal remuneration.
If an employee’s hours vary from week to week, a week’s pay is calculated as the average weekly remuneration (including commission and bonuses) over the previous 52 complete weeks (or, if the employee has been employed for a lesser period, to the period of complete weeks for which they have been employed) counting backwards from the first day of holiday.
Can I require employees to take annual leave at certain times?
Yes. You can enforce periods of annual leave by giving a period of notice that is double the length of the annual leave that you are going to ask an employee to take i.e. 2 weeks’ notice for 1 week’s annual leave.
Is guaranteed overtime included in the calculation of holiday pay?
Yes. Guaranteed overtime, where the terms of the employment contract dictate that an employer pays for agreed overtime, must be included within the calculation of holiday pay.
What about non-guaranteed overtime?
Overtime which the employer does not have to offer, but which employees are obliged to do under their contract, should be included where it has been worked for a sufficient period of time to be considered ‘normal’ working hours for that employee. This only applies to the minimum four weeks of leave that is established in EU law. It does not apply to the additional 1.6 weeks’ leave that is provided by the UK Regulations.
Does commission need to be included as part of holiday pay?
Yes, an employee’s holiday pay must be based on their basic pay and any results-based commission (which varies with the amount of work done) and so would have been earned if they were not on annual leave.
Can I pay an employee in lieu of holidays?
No. This can only be done upon termination of the employment relationship, where any accrued but untaken leave must be paid.
What is rolled-up holiday pay? Is it legal?
Some employers have a practice of “rolled-up holiday pay”, which involves not paying holiday pay while the employee is on leave, but paying the employee an extra amount during the weeks that the employee works. It is a practice, however, that can be viewed as discouraging employees from taking a rest from work. After several, high-profile cases in this area the current advice from the Government is to avoid this approach and instead pay holiday pay as and when the holidays are taken by the employee.
Are employees on long term sick leave and maternity entitled to annual leave?
Statutory holiday entitlement is still accrued while an employee is off work sick or on maternity leave.
Can employees carry over untaken annual leave?
Generally, the right of carry over applies only to the 1.6 weeks of annual leave that employees are entitled to under UK law. This means that if an employee receives 28 days’ leave they are able to carry over up to a maximum of eight days, subject to agreement with the employer in a “relevant agreement”, for example the contract of employment. If the employee’s annual leave entitlement exceeds 28 days, again, you may allow the employee to carry over any extra leave depending on the terms in their contract or the staff handbook.
Employees are generally not allowed to carry over the 20 days that they are entitled to under EU law, unless they have been unable to take annual leave because they are on leave for a different reason, for example sick, maternity or parental leave, in which case they can carry over some of their unused leave to the next year. An employer must allow the employee to carry over up to 20 days if they were sick or, for example, on maternity leave, and could not take the leave in that leave year. Following the Covid-19 pandemic, however, this right has been now extended to allow carry over for up to 2 years, for any reason, in respect of those 20 days.
Next week….disciplinary procedures
Please don’t hesitate to contact the team at MLP with ideas about topics or for detailed advice in connection with any of the issues raised.
MLP Law are advocates at ensuring our clients’ needs are provided for, including preparing them for events during lifetime as in death, to ensure peace of mind. Given the unprecedented circumstances we find ourselves in, at the time of a global crisis, it is now more important than ever to ensure you are fully prepared and have taken the necessary legal advice. At MLP Law our team of experts are here to talk you through the process, guaranteeing a service which is tailored to your individual needs.
There has been increased focus on Wills and estate planning as more people take time to consider what would happen to their estate if they passed away. However, under the current circumstances it may not be possible for all individuals to undertake full estate planning and Will instructions due to ill health and the rigorous legal requirements which need to be met for a Will to be validly executed. In these circumstances, it may be necessary to view what other options are available to vulnerable individuals who may not have the ability to undertake full estate planning advice and validly execute a Will.
In contrast to the legal formalities of preparing a Will, lifetime gifting and deathbed gifts are less stringent in their requirements to be valid. One thing that individuals may look to, is whether deathbed gifts are effective and transferring property to individuals, as opposed to the formalities of making a gift under a Will.
To make a valid deathbed gift, the donor must have met criteria set out in the earlier case of Keeling v Keeling. The case determined that to be satisfied the deathbed gift is valid the person making the gift must have:
Contemplated impending death when making the gift;
Made the gift conditional upon contemplated death; and
Physically transfer the gift to the recipient
It is important that the individual’s capacity is assessed so that it is clear they fully understand the effect of making a gift on their deathbed and ensuring that the individual intends to make such a gift, without any undue influence from third parties.
Given the confusion over such gifts being made, with the minimal formality at a time where the donor is most vulnerable and near to death, it is advisable that the individual seeks professional advice on how best to deal with any deathbed gifts being considered.
Transfer of Property:
Again, under the current circumstances it may not be possible for someone to execute a valid Will with such strict formalities which must be met together with the in-depth planning sometimes required. Where this is not possible due to individual circumstances, it may be necessary to look at alternative options to ensure your wishes are met following death.
Individuals may look at transferring ownership of a property prior to death as a way of ensuring the property passes to the intended beneficiary(ies). Transferring property prior to death must be done with the advice and guidance of a professional so that various considerations and risks including tax implications can be considered.
Having reviewed the wishes of the individual and discussed the consequences of making the transfer of a property, the transfer can be completed by Deed. The requirements for the execution of a deed are less formal to that of a Will and may mean that individuals are able to ensure that their wishes are met, particularly in the current circumstances.
In the age of social distancing and lockdown of the nation, it is important that individuals get the correct advice and guidance.
How can MLP help me?
If you’re thinking about making or updating your will or require assistance with estate planning needs, please get in touch with our Wills, Trust and Probate solicitors who would be happy to have a chat with you to discuss the best way to do this, whilst following all the guidance and protocol on staying safe during the coronavirus.
Disciplining employees is an inevitable part of running a business and needs to be handled correctly. Failure to follow the correct procedure when dealing with a disciplinary issue can leave you open to problems with morale, not to mention costly claims.
Why is it important to have a Disciplinary policy/procedure?
Documenting the rules in writing means that your employees know what conduct is and isn’t acceptable in the workplace. Your disciplinary procedure is the means by which you outline and maintain these expectations and lets your employees know what they can expect should they break the rules.
What can go wrong if we don’t follow a fair disciplinary procedure?
If you were to dismiss someone without having good reason for the dismissal, or by not following a fair disciplinary process, then they could bring a claim against you in the Employment Tribunal.
Do I have to investigate a possible disciplinary offence before disciplining the employee?
Yes. You should always carry out an investigation before deciding whether to discipline an employee.
This should be carried out as soon as is reasonably possible and will help establish an understanding of the facts before deciding whether to discipline. You need to ensure that this is carried out with an open minded approach and avoid jumping to conclusions.
Am I obliged to hold a disciplinary meeting with the employee?
Yes. You should ensure that you arrange to hold a disciplinary meeting before deciding whether or not to take any disciplinary action or issue a disciplinary warning. This gives the employee the opportunity to put forward their side of the story, therefore enabling you to make an informed decision.
Can the employee bring anyone to the disciplinary meeting?
Employees are legally entitled to have someone with them at the disciplinary meeting, this can either be a work colleague or trade union representative. There is no right for employee to bring a legal representative or relative unless you have specifically provided for this in the employment contract, or there are exceptional circumstances which justify this.
Who chooses the employee’s representative?
The employee is entitled to choose who they would like to accompany them to the meeting, provided this is a work colleague or union representative. If, however, their request is unreasonable i.e. the proposed companion is also involved in some part of the disciplinary process, can’t reasonably attend or does not want to be involved then you can reject their request.
What disciplinary action can I take?
Where disciplinary action is considered necessary you need to decide on an appropriate penalty. The issue in question may warrant any level of disciplinary action from recorded oral warning through written warning to final written warning. If the employee already has a current final written warning on file, or if the offence is considered sufficiently serious then dismissal may be the appropriate outcome, although this decision should not be taken lightly. Similarly, a single act of gross misconduct may justify dismissal without prior warnings, but again should be considered very carefully
Is there a time limit for informing the employee of my decision?
You need to ensure that you take the time to consider your decision carefully, following any disciplinary hearing. You need to inform the employee of the decision in writing and while there is no specific time limit on this, it is best to do it as soon as possible after the meeting and in accordance with any disciplinary procedures you may have.
Can the employee appeal against my decision?
Yes. Employees have the right of appeal against any disciplinary action taken against them, not just where the outcome is dismissal. The employee may feel that your decision is unfair or that the penalty imposed is too severe.
Can the same person conduct both the disciplinary and appeal hearings?
Wherever possible, the person hearing the appeal should be somebody more senior to the manager who carried out the disciplinary and, in addition, not have been involved in the case prior to the appeal. Whoever hears the appeal needs to be able to consider it as impartially as possible.
Next week…employee status.
Please don’t hesitate to contact the team at MLP with ideas about topics or for detailed advice in connection with any of the issues raised.
Covid-19 is very much at the forefront of everyone’s mind during these unprecedented times. MLP Law are advocates at ensuring our clients’ needs are provided for, and whilst our offices may be temporarily closed to the public, we are still working hard to ensure that we adhere to these standards.
With many law firms, banks and building societies closed across the UK, many people have been left concerned on how to deal with the estate of their loved ones.
What is Probate?
Probate is a term commonly used to deal with the estate of someone who has died, and is used to describe the step taken.
If the person owned assets in their own name, including a property, it is often necessary to apply for a grant of representation. A grant of representation is the legal document which gives a person authority to deal with the deceased’s property.
If the deceased left a Will, it will name someone that they have chosen to administer their estate, known as an executor. In this instance, if required, the executor will need to apply to the probate registry for a grant of probate to provide them with the authority to sell, transfer and deal with the deceased’s assets.
If there is no Will left, the estate is distributed in accordance with the intestacy rules. The intestacy rules will say who is capable of applying to administer the estate. In this instance they would need to apply for a grant of administration. Again, the grant of administration provides the personal representative with the authority to sell, transfer and deal with the deceased’s assets in the same way a grant of probate would.
Can I still get probate during lockdown?
Whilst HM Courts and Tribunal Service (HMCTS) have assured us that they are continuing to meet requirements to process applications, they have advised that since lockdown began they have seen a fall in applications by 50%. The fall in applications has been seen in both personal applications and solicitor applications.
HMCTS believe that the fall in applications are due to people being unable to obtain the information they require and solicitors unable to access offices to collect original Wills.
HMCTS have said that they are “fully aware” that the fall in applications during lockdown means there will be a surge in applications due to Covid-10 death as well as a demand from backdated applications which have not been dealt with during lockdown.
How can MLP help me?
Whilst our offices are temporarily closed at present, we are still offering all the same services as usual meaning that we are able to access original documents and send applications to the probate registry as normal.
Our specialist team are available to discuss your instructions and requirements with you over the telephone and via email. We are able to work with you to gather the information required regarding your loved one’s estate and prepare the necessary paperwork to submit your application.
Once your paperwork has been approved, we can then send them to you by post for signing. When they have been correctly signed, the application can be submitted to the probate registry without any delay.
Given the changes in the Probate Registry’s application process, both lay persons and professionals can use the online service to register the applications. The introduction of professional applications using their online system from the 18th May 2020, allows for a reduction on the practical difficulties faced during these unprecedented times.
The practical difficulties caused by Covid-19 have also been addressed by the probate registry by urgent procedural changes they have introduced to make the process easier. The probate registry has agreed that they will accept electronic signatures on statements of truth, in place of the usual wet ink signature required. As such, where it is not possible for individuals to sign a document in person or where this is likely to cause significant delays, we are able to prepare the paperwork for electronic signature.
Can you administer an estate during the coronavirus lock-down?
Although some services may be unavoidably delayed due to office closures, once you receive the grant of probate or grant of administration from the probate registry, you can deal with the account closures, sell the property, settle any outstanding liabilities and collect funds from the estate in one place.
Again, there may be practical difficulties in dealing with the estate administration but most institutions are adapting to the changes in current circumstances.
Our specialist team are dealing with these matters on a daily basis and are available to assist in any queries you may have in dealing with the estate administration in the correct manner.
If you require assistance dealing with the estate of a loved one, particularly given the practical difficulties when dealing with Probate and Estate Administration during the global pandemic, please contact our Wills, Trust and Probate solicitors who would be happy to assist.
Our specialist team are dealing with these matters on a daily basis and have the experience to navigate their way through the challenges you may face. We would be happy to discuss the best way to do this, whilst following all the guidance and protocol on staying safe during the coronavirus.