Vicarious liability during COVID restrictions
What do lockdown restrictions and the huge shift to homeworking mean for employer liability when an employee does wrong? The technical term is vicarious liability, and it still applies even though employees may not be as visible.
Particular risks include: a GDPR data loss as work is done in environments and on equipment over which you have less control but for which you are still responsible; and a health and safety breach if you haven’t properly managed the safety risks to staff working at home. There are also new risks to take account of, even if you are still operating from the office: for example, if staff wilfully ignored a requirement for self-isolation, thus exposing colleagues to risk of infection.
The starting point for managing these is having robust policies and thorough risk assessments. These will help you put the systems in place to manage risk, and the frameworks to deal with the fallout should a risk turn to reality. It is also essential to communicate these effectively to employees. Indeed, in the case of home working, each employee should be involved in their own risk assessment.
A key test of vicarious liability is whether the wrongdoing was done whilst acting in the ordinary course of employment, so it is helpful to keep this in mind when devising policies and risk assessments.
With all the lockdown rules, there is more of a blurring of the borderlines between when something is a work matter or a private one. If an employee breaks a household mixing rule, for example, should the employer get involved?
With Christmas round the corner, and sadly lots of redundancies, pre-empting rule breakers by setting up virtual social events and leaving dos could be a useful tactic.
If rules are broken, each case should be taken on its own merits. If the action brings the employer into disrepute or risks the health of others, then it is likely to be appropriate to follow your disciplinary procedures with gross misconduct a possible outcome.
Do be careful, though, to conduct a thorough investigation: what appears to be an open-and-shut case may not be as straightforward as it seems. There could be mitigating circumstances, and there are exceptions to lockdown rules that touch on sensitive subjects like private health issues and domestic violence.
If you are concerned, contact us.
Are you prepared for the points-based immigration system?
It took a global pandemic to shift Brexit from the daily headlines, but it hasn’t altered the fact that our transition period for leaving the EU ends on 31 December. Of particular note to employers is the new points-based immigration system. If you will be recruiting from overseas, you may need to act now as it takes time to follow the procedure.
The new rules see points awarded for specific skills, salaries, professions, qualifications and attributes. There is a salary threshold of £25,600 (or the going rate for that profession if higher) for skilled workers who have a job offer; and a lower salary threshold of £20,480 for shortage occupations or if a migrant has a PhD relevant to the job (effectively trading points on specific characteristics against their salary). There is no general route to recruit at, or near, the minimum wage. However, there are a number of pathways for special cases, including graduates and sports people among others.
However, according to a report from the Organisation for Economic Co-operation and Development, there was a drop of 46% in the number of new visas and permits issued by OECD countries in the first half of 2020. So the fear is that, just as UK businesses look globally for talent it dries up, thanks to restrictions on international travel caused by the pandemic.
If you don’t already have a sponsoring licence, applying for one is the first step for recruiting overseas. The government is advising that it takes eight weeks to process the application, so if you want to recruit in early 2021 it really is important to act now.
Managing whistleblowing during coronavirus
While there are some things businesses are being given a free pass on during coronavirus, whistleblowing is not one of them. This is when an employee raises a concern that’s in the public interest which they’ve witnessed at work, known as a protected disclosure. It could be a criminal offence, a health and safety breach or a cover up, among a few other specific types of complaint.
The pandemic has heightened risk in this area, with new factors to fall foul of: like COVID-security and furlough wrongdoing, combined with disrupted lines of communication making it more difficult to follow processes.
To avoid further problems, such as unfair dismissal, it remains important to understand the procedure that must be followed, and the protections that whistle-blowers enjoy. If a member of staff raises a concern which qualifies as a protected disclosure, or you are unsure, talk to your local HR Dept for advice.
The rules of extended furlough
Unsurprisingly, the news of further lockdown measures was accompanied by details of an extension to the Coronavirus Job Retention Scheme. It will now run until March 2021 and will replace other scheduled initiatives such as the Job Retention Bonus.
The extended scheme is more generous for employers than the latter months of the previous furlough scheme, with a return to 80% of wages subsidised, up to £2,500 per month. Only pension contributions and National Insurance costs are borne by the employer. Note that this may be reviewed for February and March.
Flexible furlough, where employees can work some part-time hours and benefit from the scheme proportionately, is still allowed.
An important change to note is that from December employers cannot claim for furloughed employees serving a contractual or statutory notice period. This includes employees serving notice of resignation or retirement.
If this extension means you wish to rehire employees you made redundant, or halt redundancy proceedings, please contact us for advice.
Top tips to keep your virtual business inclusive
Progress in workplace inclusivity is one thing at risk during the new normal. Many of the cues of the physical environment are just not available right now.
However, in our virtual world of Zoom, Teams and other digital platforms we get the chance to come up with new ways of fostering inclusivity by pressing the reset button on the etiquette of meetings.
For example, introduce a facilitator to ensure all voices are heard – not just the extroverts or people with power; invite people to tag their preferred name on their profile; take the opportunity to better read non-verbal signals in gallery view; and get people who may not normally feature in a meeting to participate, like a customer representative.
Some platforms even offer automatic closed captioning which can help those with hearing impairments or who speak in a non-native language. There is much more available too, so think creatively and don’t let inclusivity slide. It will help your company benefit from better engagement, better decision making and improved mental health amongst your team.
Powerful small acts of kindness
Did you hear about the French florist and care workers? Like many businesses around the world she was forced to close during the latest lockdowns. Faced with having to throw out her stock, she decided to place free bouquets on cars at a local hospital instead.
It’s just one demonstration of the sense of community spirit and togetherness which has been strengthened by the pandemic. When she reopens her shop hopefully she will have some new customers. It’s worth keeping an eye out for small acts of kindness amongst your team, as well as opportunities to be kind yourself. They’re often good for both the giver and recipient, one way or another.