January 2021 - MLP Law

Managing Performance Management

During the last few months of unprecedented change and often emergency interventions by business to survive and adapt in light of the Pandemic, the day to day management of normal operations has often had to recede into the background.  In many  ways, however, this could be a good time for focusing on effective management strategies, such as the performance management of staff.

The aims of performance management

The principal aim of performance management is to ensure that employees contribute in the best way possible to the objectives of their employer.

If employers manage their employees well then the employees will be aware of:

  • what the aims of the business are
  • what their role is in achieving the aims of the business
  • the skills they need to achieve that
  • what level of performance is expected of them
  • how they are doing measured against expectations
  • how they can develop

Ways of motivating under-performers

Fortunately, most of the things that are likely directly to motivate an individual are within the control of the manager. They include:

  • delegating tasks appropriately
  • holding meetings with the team regularly to review progress
  • maintaining a clear appraisal system, to produce a record of performance strengths and weaknesses and clarify aims and objectives going forward
  • recognising good performance appropriately and adequately (even making sure simply to thank employees for a job well done should not be underestimated)
  • ensuring employees have the equipment they need to perform their jobs
  • providing employees access to appropriate training, coaching and other development opportunities

Procedures for tackling persistent under-performers

In some case, however, despite an employer or manager’s best efforts, an employee will not be performing to the required standards.  In such instances, legal advice should be sought regarding the appropriate procedure but, in summary, an employer should take the following approach:

  • Informal meeting – with aims and objectives for improvement followed in writing (useful to send the employee a letter)
  • Formal meeting – with a clear timetable for improvement and warning of any potential sanction
  • Sanctions – If no improvement, introducing sanctions, which can include demotion or dismissal

Please don’t hesitate to contact the team at MLP Law with ideas about topics or for detailed advice in connection with any of the issues raised. You can reach us at employment@mlplaw.co.uk or @HRHeroUK or on 0161 926 9969.

Further extension to restrictions on eviction – but with a change….

Throughout the pandemic, restrictions have been imposed on landlords’ ability to commence possession proceedings and evict tenants. This has applied to both the section 21 “no fault” route, which in normal times simply requires a landlord to give two months’ notice to quit without having to provide any reason, and also to the section 8 route, which is based on a breach of the tenancy by the tenant – usually non-payment of rent.

Given the further lockdown recently ordered by the government, it was no surprise that the restrictions on evictions – which would otherwise have expired on 11th January 2021 – have recently been extended.

A Statutory Instrument laid before Parliament on Friday 8th January, the Public Health (Coronavirus) (Protection from Eviction) (England) Regulations 2021, came into force on 11th January and has extended the existing restrictions until 21st February 2021. This means that even where a possession order may already have been granted, court bailiffs and enforcement officers will not actually be able to attend at the premises to enforce a warrant of possession and evict the tenant.

Interestingly, however, at least one aspect of the restrictions has been relaxed. The Regulations do provide exceptions as to when evictions can proceed, and the current Regulations state that an eviction can take place where the Court is satisfied that “the case involves substantial rent arrears”

‘Substantial rent arrears’ are defined as

“a case involves substantial rent arrears if the amount of unpaid rent arrears outstanding is at least an amount equivalent to 6 months’ rent.”

This is a change from the preceding Regulations in two ways:

  1. the arrears previously had to be equivalent to at least 9 months’ rent rather than 6; and
  2. there is now no stipulation that arrears which arose after 23rd March 2020 (i.e. which arose because of pandemic-related issues) cannot be taken in to account.

The previous Regulations in effect prevented the court from taking into account any arrears which had arisen after the start of the first lockdown, in order to safeguard tenants who had found themselves adversely financially affected, for instance by being furloughed or losing their job.

That protection has been removed and it does now appear that a court could find that “substantial rent arrears” exist, so as to satisfy the exception and allow eviction to proceed, even where the arrears have all arisen after the onset of the pandemic.

It remains to be seen how willing judges are to use these powers in the face of rising numbers of cases of Covid 19 and against a background of a general tightening (rather than relaxation) of restrictions on movement and association.

It seems likely that the restrictions will be extended further beyond 21st February, but we shall have to wait and see whether the protection afforded to tenants is further diluted.

Change to the “How to Rent” booklet

Landlords will (or at least should!) be aware that they are required to provide certain mandatory information to tenants before the tenant moves into a property let on an assured shorthold tenancy. One of those items is a copy of the “How to Rent” booklet published by the Ministry of Housing Communities and Local Government.

The booklet must be served on the tenant before a section 21 notice can be served for all new and replacement tenancies entered into since 1st October 2015. If the booklet was served previously served, there is no requirement to re-serve it at the start of each ‘replacement’ tenancy unless it has in the meantime been updated.

Landlords should therefore be aware that the latest periodic revision to the “How to Rent” booklet was published on 10th December 2020, and that if entering into a new assured shorthold tenancy, or a “replacement tenancy (i.e. one which is between the same parties and in respect of the same property after the expiry of an earlier fixed term AST), they must serve a copy of the new version of the booklet on the tenant.

The actual changes to the booklet are fairly minor – incorporating reference to new electricity safety regulations – but the important point for all landlords to consider is whether they need to serve a copy on their tenant before giving notice to quit.

Even if it wasn’t served before the tenant moved in, this can be rectified by serving it afterwards – the only requirement is that a copy must have been provided before any section 21 notice is served.

If you have any landlord and tenant issues that you require assistance with, please do get in touch – by telephone on 0161 926 9969 or by email to markt@mlplaw.co.uk.

Increased Diversity in Flexible Working

Flexible working has become more popular with male employees since the beginning of lockdown, according to a study of employers*, with 68% of employers surveyed reporting an increase in interest from male parents and carers since the pandemic began.

The survey also showed a more general uptake in flexible working during the pandemic compared to pre-Covid.  While just under half (49%) of organisations said that at least half of their staff flexed their hours before the crisis, this jumped to 85% during the coronavirus crisis.

With that in mind, we have set out a brief guide to flexible working.

Eligibility

Most individuals with employee status who have at least 26 weeks’ continuous service with their employer may make one flexible working application to their employer in any given 12-month period to be allowed to vary their terms and conditions of employment.

Making a Role more Flexible

Requests can be made to:

  • change the hours the employee is required to work
  • change the times when the employee is required to work
  • change where the employee is required to work

Other types of requested contractual change, for instance, an application to change duties, do not fall within the statutory scheme.

An Employer’s Response to a Request

Once a valid application has been submitted, the employer:

  • is obliged to deal with it in a ‘reasonable manner’.
  • is obliged to notify the employer of its decision on the application within a period called the ‘decision period’.
  • is only entitled to refuse the application if it considers that one or more of certain defined grounds for refusal applies.

Defined Grounds for Refusal

An employer can refuse a flexible working request for one of the following reasons:

  • The burden of additional costs
  • detrimental effect on ability to meet customer demand
  • inability to re-organise work among existing staff
  • inability to recruit additional staff
  • detrimental impact on quality
  • detrimental impact on performance
  • insufficiency of work during the periods the employee proposes to work
  • planned structural changes

Potential Claims to an Employment Tribunal

The employee may bring a claim to the employment tribunal if their employer fails in one of its obligations when dealing with the request.  Importantly, an employee has no right to insist that the employer accept their request to alter their terms and conditions.

Employees are also able to bring a claim if they suffer detriment or dismissal as a result of exercising their flexible working rights.

Please contact the Team at MLP for advice in relation to responding to a flexible working request or any other employment related queries you may have.

*The poll of 26 UK employers was conducted by Working Families in September 2020.

Brexit and the GDPR: Most UK businesses operating in the EU will now need to appoint an EU representative. Check out our guide below for further information.

Since 1st January 2021, following the end of the Brexit transition period, the EU GDPR no longer has direct effect in the UK. This means that data flows between the UK and the EU member states are no longer permitted, unless appropriate safeguards have been put into place. 

If you only undertake business within the UK, this is not likely to affect you. However, if you also operate in the EU, you may be required under Article 27 of the GDPR to appoint an ‘EU representative’. 

If you do need to appoint an EU representative, they will serve as your business’ contact for data subjects and will act on your behalf regarding your EU GDPR compliance. This representative should be based in one of the states where some of the individuals whose data you are processing are located. You should also provide all the EEA based individuals whose personal data you are processing with details of your chosen representative.  

Criteria

The requirement to appoint a representative will only apply if you process personal data on behalf of individuals living in the EU. Therefore, if you mainly contract with other businesses (and therefore do not process much, if any, personal data), it is unlikely that you will need to appoint a representative.

If you are unsure as to whether you need to appoint a representative or not, we advise undertaking an assessment of your data processing activities in the EU.  Please let us know if you would like assistance with this.

Risk of fines

Finally, it is worth remembering that breaches of the GDPR can be costly. By not appointing a representative when you are required to, you may be liable for a fine of up to €10 million, or 2% of your revenue from the most recent financial year (whichever is higher).

How we can help

Put simply, if you deal with customers in the EU, but do not have an office there, it is likely that you’ll need to appoint an EU representative.

If you think you require advice on this and if you would like to discuss your data processing activities in further detail, contact our Commercial and IP team on 0161 926 9969 or commercial@mlplaw.co.uk  to receive expert legal advice for your business.

Supreme Court hands down judgment in Covid business interruption test case.

On Friday 15th January, the Supreme Court gave its judgment in the case on whether insurers are obliged to pay claims in relation to loss of profit caused by Covid-19 brought under business insurance policies.

The test case – which was the first under the courts’ Financial Markets Test Case scheme – was brought on policyholders’ behalf by the insurers’ regulator, the Financial Conduct Authority (FCA). It followed widespread concern over lack of clarity and certainty for businesses seeking to recover losses incurred as a result of the pandemic.

Judgment was given in the original case in September last year, largely in policyholders’ favour, but both the FCA and certain of the insurers appealed that decision. Unusually, as a result of the importance and urgency of the issues involved, those appeals were ‘leapfrogged’ to the Supreme Court, bypassing the Court of Appeal.

In its judgment, the Supreme Court substantially allowed the FCA’s appeal and dismissed the insurers’ appeals. This paves the way for thousands of affected businesses struggling to survive through the pandemic to have their claims paid.

Inevitably, the court’s judgment is complex and runs to more than 100 pages. However, Lord Briggs – one of the Supreme Court justices who heard the case – provided this succinct summary of the outcome:

“all of the insuring clauses which are in issue on the appeal to this court…. will provide cover for business interruption caused by the Covid-19 pandemic, and that the trends clauses will not cut it down in the calculation of the amounts payable.”

In the judgment, the court determined how four types of clauses commonly found in business interruption policies should properly be interpreted.  These are:

  • ‘Disease clauses’ – clauses which generally provide cover for business interruption losses resulting from the occurrence of a notifiable disease, or at a specified distance of the business premises;
  • ‘Prevention of access clauses’ – clauses which generally provide cover resulting from public authority intervention preventing or hindering access to or use of the business premises;
  • ‘Hybrid clauses’ – clauses which combine both of the above clauses; and
  • ‘Trends clauses’ – clauses which generally provide for business interruption loss to be quantified by reference to how the business would have performed had the insured risk not occurred.

The Supreme Court’s judgment on how widely these clauses should be interpreted in relation to Covid-19 is favourable to policyholders, meaning that the range of circumstances in which insurers must pay claims will be considerably wider than insurers had previously maintained.

It should be noted that business interruption claims still require the policyholder to show that it has suffered a reduction in profits as a consequence of Covid-19. If profit levels have been maintained, there will be no loss that can be recovered.

The FCA has said that it will produce a Q&A document for policyholders and will move to confirm its draft guidance on these claims before the end of the month.

It is also reasonable to assume that, given the general tenor of the Supreme Court’s decision, the starting point in any complaint made by a policyholder about non-payment under a business interruption policy will be that it is for the insurer to show why the claim should not be paid and that the onus is very firmly on it to justify its refusal to do so.

If you have any questions or queries in relation to this blog, please do get in touch – by telephone on 0161 926 9969 or by email to markt@mlplaw.co.uk.

Can I dismiss an employee who refuses to be vaccinated?

With the vaccine roll out underway in the UK, it is hoped that its adult population will be vaccinated by September of this year.  This guide focusses on the issue of employees who refuse the vaccine and the options available to their employer.

Human Rights Law

A vaccination requires an individual’s informed and voluntary consent; any institution forcing vaccination is likely to fall foul of the European Convention on Human Rights and, potentially, criminal laws too, as such action could constitute an unlawful injury.

Contracts of Employment

As any medical intervention requires freely given consent by the individual, the insertion of a clause in a contract of employment mandating the employee to be vaccinated as a condition of employment would be unenforceable.  Similarly, existing contractual clauses requiring employees to co-operate with medical examinations will also not assist an employer wishing to impose the vaccine on staff.

Discrimination Law

It may also be that an individual’s anti-vaccination position could amount to a protected philosophical belief under the Equality Act 2010. If a fervent anti-vaxxer could establish that their belief was genuinely held and worthy of respect, then they may find success at an Employment Tribunal.

Religious discrimination arguments could also be made. There are several religious issues at stake when it comes to vaccinations, but the main one is the fact that many vaccines use pig gelatine, which could cause problems for several religious groups, as well as vegans – all of whom are protected under the Equality Act.  There is no suggestion, however, that the current vaccines being rolled out by the UK government contain pig gelatine.

Disciplinary Action

Disciplinary action must be considered very carefully before being instigated.

If an employee’s refusal to be vaccinated is down to a disability or other protected characteristic under the Equality Act, and results in disciplinary action from their employer, they may be able to issue a direct or indirect discrimination claim.  There may also be risk of a claim of constructive unfair dismissal if they resign in protest after such disciplinary action.  A more prudent approach for employers would be to help employees make informed decisions regarding their vaccination by sharing impartial, factual information.

In some circumstances, however, employers may have a duty to ensure a safe working environment by enabling vaccination of their employees in circumstances where they will have close contact with the clinically vulnerable. For example, it could be argued that requiring a care home employee to be vaccinated, and disciplining them if they refuse, is reasonable because of the high-risk nature of the work, ultimately justifying disciplinary action or even dismissal.

Where an employer is contemplating dismissal in response to an employee who refuses to have the vaccine, it is important to ensure such a decision withstands scrutiny.  An employer would be advised to consider all other reasonable options first, such as redeployment to lower-risk roles or requiring the employee to undertake social distancing measures where feasible.  It is likely that disciplinary action or dismissal will be proportionate only in more extreme circumstances, where no other reasonable steps to protect vulnerable persons are available. 

If you have any questions or queries in relation to this blog, please do get in touch – by telephone on 0161 926 9969 or by email to Julies@mlplaw.co.uk

The review of “Do Not Attempt Cardiopulmonary Resuscitation” (DNACPR) Decisions during Covid-19

The Care Quality Commission (CQC) has recently announced that it will look to review the use of “Do Not Attempt Cardiopulmonary Resuscitation” decisions during the coronavirus pandemic. The Care Quality Commission’s review will consider the following:-

  1. The individual’s experiences in care homes.
  2. The individual’s experiences in primary care i.e. care which is provided by GPs, community pharmacists, dental and optometry services.
  3. The individual’s experiences in Hospitals.

When and how are DNACPR decisions currently used?

Under the BMA’s existing “Decisions relating to Cardiopulmonary Resuscitation” 2016 Guide (3rd edition), DNACPR decisions are used to:-

  1. Ensure that good-quality care is provided to people who are reaching the end of their life stage.
  2. To ensure that good-quality care is provided to people who may be at risk of cardiorespiratory arrest.

At present, DNACPR decisions are considered to be “anticipatory care planning”, as they allow people to make informed decisions in advance about their medical treatment and how they would like to also be supported by medical professionals.

Why has the CQC decided to review the use of DNACPR decisions?

At the beginning of 2020, there were general concerns that elderly and vulnerable people may be subject to “Do Not Attempt Cardiopulmonary Resuscitation” decisions without their consent or, by way of them being provided with as little information as possible in order to assist them with these types of decisions.

Following these concerns, the Care Quality Commission (CQC), British Medical Association (BMA), Care Provider Alliance (CPA) and Royal College of General Practioners (RCGP) published a joint statement to suppliers in April, which confirmed that it is “unacceptable for advanced care plans with or without a DNAR form to be applied to any groups of people of any description.”

When will we know the outcome of the CQC’s review?

As of December 2020, the CQC has provided an interim report of their findings. The CQC’s interim report sets out that following a review of DNACPRs it has found that there has been some confusion and miscommunication regarding their application since the beginning of the pandemic. This was highlighted by multiple agencies.

The CQC expects the following:

  1. All care providers to assure themselves that any DNACPR decisions have been:-
  2. Made appropriately in discussion with the person.
  3. In line with legal requirements and best practice.
  • All providers and local systems to ensure that any discussions regarding DNACPRs take place as part of a discussion focusing on the individual’s needs and care planning which is also in line with legal requirements.

The CQC will be publishing its final report this February.

How might the CQC’s review of DNACPR decisions affect me?

If you have considered or have made a Health & Welfare Lasting Power of Attorney, in which you have provided specific instructions to your Attorney(s) that you do not want to be resuscitated. Your decision may need to be reviewed in the near future, in order to comply with the CQC’s upcoming DNACPR report.  

If you would like to discuss making a DNACPR or have any worries regarding an existing DNACPR which you have in place, please contact our Wills, Trusts and Probate department who will be delighted to assist you with this and any other future care planning needs and requirements which you may have on 0161 926 9969 or by email at wtp@mlplaw.co.uk

https://www.bma.org.uk/media/1816/bma-decisions-relating-to-cpr-2016.pdf

https://www.cqc.org.uk/news/stories/cqc-review-use-dnacpr-during-pandemic

https://www.cqc.org.uk/sites/default/files/20201204%20DNACPR%20Interim%20Report%20-%20FINAL.pdf

The EU Settlement Scheme – what now?

You may have seen our blog from early December 2021, in which we highlighted imminent changes to immigration rules for EU, EEA and Swiss citizens living in the UK. These changes will take effect after 30 June 2021.

To briefly summarise, a new “EU Settlement Scheme” now determines how EU, EEA and Swiss citizens (referred to in this blog as “EU nationals”) can continue living and working in the UK beyond this date. The right of Irish citizens to live and work in the UK is not affected by the new immigration rules within the UK.

Under the EU Settlement Scheme, individuals with either “settled status” or “pre-settled status” will retain the right to live and work in the UK after 30 June 2021.

But what do these terms mean and how is “settled status” or “pre-settled status” attained?

What is settled status and who is eligible?

EU nationals who started living in the UK by 31 December 2020 and have done so continuously 5-year period will be entitled to receive settled status, provided that they have spent no more than 6 months (180 days) outside the UK in any 12 month period (save for a single absence of up to 12 months due to a work placement, study or serious medical condition).

Settled status enables individuals to stay in the UK as long as they like.

What is pre-settled status and who is eligible?

Any EU nationals who started living the UK by 31 December 2020 but who have not yet achieved 5 years’ continuous residence in the UK (and are therefore unable to receive settled status) are entitled to receive pre-settled status, provided that they have spent at least one day in the UK in the previous 6 months.

Pre-settled status entitles the individual to stay in the UK for a further 5 years from the date they receive pre-settled status.

Individuals with pre-settled status may apply to convert their pre-settled status to full settled status upon achieving 5 years’ continuous residence in the UK.

Pre-settled status cannot be extended. If an employee does not meet the requirements for settled status, they will need to apply for an alternative visa before their pre-settled status expires. IF they do not, they will lose the right to live and work in the UK. Similarly, anyone who leaves the UK for a period of two consecutive years will lose their pre-settled status and would also need an alternative visa if they were to return to the UK to work or to stay for longer than 6 months. 

How should employers deal with EU nationals employed in the UK who do not have settled or pre-settled status yet?

Employers may encourage its employees from the EU to apply for either settled or pre-settled status before the cut-off date of 30 June 2021. This deadline is strict and the Home Office has indicated that late applications will not be accepted unless there are exceptional circumstances.

Employees who do not apply for either settled or pre-settled status by 30 June 2021 will lose their right to live and work in the UK unless they obtain an alternative visa. Employers can request a copy of the certificate of application (if this has been issued within the last 6 months) or use the Government’s online checking service in respect of any employees whose their application is still pending.

Can I insist that my employees apply for settled or pre-settled status?

Employers cannot insist that its employees apply for settled or pre-settled status, nor can it insist on receiving proof of status for existing employees and any new hires until after 30 June 2021. Until then, their EU passport is sufficient proof of their right to work.

Employers can remind its employees to apply for settled or pre-settled status under the EU Settlement Scheme but not to be too heavy handed (or discriminatory) in their approach.

Employers should be mindful that it could be indirectly discriminatory to specifically ask only EU nationals to re-prove their right to work in the UK after 30 June 2021. However, offering such staff assistance and encouragement to make an application through the EU Settlement Scheme would likely be justifiable, given that this is the likely to me an individual’s best way of retaining a right to work in the UK following 30 June 2021.

After 30 June 2021, how can I check if an EEA/Swiss national has the right to work in the UK?

Firstly, it would be good practice for employers to audit their employee records now and then, after 30 June 2021, re-check any staff whose nationality or immigration status has not been confirmed. In doing so, however, employers should avoid targeting only new recruits (or excluding longer servers) and should not simply target some nationalities and not others, in order to minimise the risk of discrimination claims.

Employers can check EU employees’ status by using the Government’s online checking service. From the employee side, employees with settled or pre-settled status can obtain a digital code and provide this to their employer to confirm their status.

What if I recruit an EU national between 1 January 2021 and 30 June 2021?

Employers should check whether the new recruit was resident in the UK by 31 December 2020 and, if so, encourage and assist them to apply for the appropriate status under the EU Settlement Scheme by 30 June 2021.

In the meantime, EU nationals can continue to use their passport or ID cards as proof of their right to work in the UK.

If the employee moved to the UK after 31 December 2020 and has no prior residence in the UK, they will need to obtain a visa in order to continue to work beyond 320 June 2021.

There are other potential options for EU nationals who move to the UK after 31 December 2020. For example, if they have lived in the UK for at least 5 continuous years they may be entitled to settled status. Alternatively, if their partner is a British citizen or has status under the EU Settlement Scheme, they could obtain a visa as a family member, although this is likely to depend on the precise circumstances of their situation so specific advice should be sought if this is identified as a possible option. EU nationals who are also UK or Irish nationals will be exempt from the requirement to hold a work visa.

In most other situations, EU nationals without status under the EU Settlement Scheme or another route to a VISA (such as through a family member as referred to above), will need a work visa under the UK’s new “Points Based System” in order to work beyond 30 June 2021. Employers who employee EU nationals under the Points Based System will need to hold a sponsor licence.

Can I hire, or continue to employ, EU nationals after 30 June 2021 if they do not have and are not eligible for status under the EU Settlement Scheme?

As mentioned above, EU nationals without status under the EU Settlement Scheme will need a work visa in order to continue to work in the UK after 30 June 2021. This therefore means that any employer who wishes to recruit, or continue to employ, EU nationals after 30 June 2021 will need to hold a sponsorship licence.

Employers who wish to apply for a sponsor licence should do so in good time before 30 June 2021, to guard against delays in the application process. It is currently anticipated that it may take 3 to 4 months between submitting an application for a sponsorship licence and a visa being granted to the employee.

What if I need asisstance help?

If you would like to discuss any of the issues raised in this blog, please get in touch with the MLP Law Employment team on 0161 926 9969, employment@mlplaw.co.uk or @HRHeroUK on Twitter.