Employment & Workforce Management Toolkit
FIS members can access a range of services to support them in managing people in their workforce. Some useful resources are provided below, but members can also access our Dedicated Employment Law Helpline via 0121 707 0077.
Information has been assembled to support members in managing their staff. Below is backed up by specialist helplines that can support you with planning or disputes related to your workforce and can be accessed by calling the FIS Office on 0121 707 0077. We are grateful to experts Citation for their support in developing these resources for our membership.
Right to Work: Hiring Overseas Workers from 1 January 2021
Movement of People – what should you be doing now?
Now that the UK has left the European Union, freedom of movement of people no longer applies and a new points based system has been implemented to manage immigration. There are a number of actions that employers are recommended to undertake.
Within this there are two groups to consider, those who will have a right to work through the settlement scheme (those resident before the 31 December 2020) and those relying on a visa (i.e. individuals newly arriving from the 1 January 2021). Note Irish citizens, based on historic agreement that pre-dates UK – EU arrangements, retain a right to work in the UK and are not subjected to the new rules detailed below.
Individuals resident in the UK before the 31 December 2020
Individuals resident in the UK before 1 January 2021 can apply for settled or pre-settled status the individual (regardless of how they are employed). They will not be subjected to the points based system if they appled for residency before the 1 July 2021.
THE SETTLEMENT SCHEME FORMALLY CLOSED ON 1st JULY 2021.
Late applications to the EU Settlement Scheme
If an EU citizen applies for a job after 30 June but has not applied to the EU Settlement Scheme by the deadline and has no alternative immigration status in the UK (such as a visa under the points-based immigration system), then they will not be able to pass a right to work check and should not be employed.
There may be situations after 30 June 2021 in which you identify an EU citizen in your workforce who has not applied to the EU Settlement Scheme by the deadline and does not hold any other form of leave in the UK. They may tell you they have missed the deadline through no fault of their own and you may believe it to be disproportionate were you to take immediate steps to cease their employment.
Where an EU citizen has reasonable grounds for missing the EUSS application deadline, they will be given a further opportunity to apply – see reasonable Grounds for failing to meet the deadline on Page 26 of this guide.
Managing Individuals arriving in the UK from the 1 January 2020
Individuals arriving from the 1 January 2021 will need to secure a visa in order to demonstrate their right to work. Visa’s will be awarded via the Points Based Immigration system where an individualy is required to apply for a visa. Applicants will need to secure 70 points and the visa will be linked to employment through a sponsorship process. Businesses intent on employing newly arriving workers from outside of the UK will need to consider becoming a sponsoring organisation.
How the Points Based System Works
The table below explains how points will be allocated for anyone on the Skilled Visa route will work, including mandatory and tradeable points.
|Offer of job by approved sponsor||Mandatory||20|
|Job at appropriate skill level (RFQ3+)||Mandatory||20|
|Speaks English at required level||Mandatory||10|
|Points for Salary|
|Salary of £20,480 to £23,039 or at least 80% of the going rate for the profession (whichever is higher)||Tradeable||0|
|Salary of £23,040 to £25,599 or at least 90% of the going rate for the profession (whichever is higher)||Tradeable||10|
|Salary of £25,600 or above or at least the going rate for the profession (whichever is higher)||Tradeable||20|
|Job in a shortage occupation as designated by the Migration Advisory Committee||Tradeable||20|
|Education qualification: PhD in a subject relevant to the job||Tradeable||10|
|Education qualification: PhD in a STEM subject relevant to the job||Tradeable||20|
There are two lists essential to support a visa application.
1. Skilled Occupations List (determines whether the occupation is eligible for the Mandatory 20 Skill Level Points).
A full list of skilled occupations is available via the link below. Trades deemed to be at the RFQ3+ Level most relevant to the Finishes and Interiors Sector are:
- Carpentry and Joinery
Many occupational areas within the Finishes and Interiors Sector (e.g. Drylining, Ceiling Fixing, Partitions Installer) are not deemed to be at an RFQ3+ level due to be listing in making it very difficult to secure visas for new labour arriving from overseas.
2. Shortage Occupation List (determines whether the occupation is eligible for the Tradable 10 Shortage Points).
No construction occupations are currently listed on the shortage occupation list, this will be reviewed annually.
More information on the Points based system including appendicies on skilled and shortage occupations is available here
FIS remains concerned and continues to press the Home Office for greater flexibility in this process for employers to support the sector in the short to medium term. More detail of FIS lobbying work is available here.
Right to works checks
As an employer it will be your responsibility to check that the individual has a right to work. You could face a civil penalty (up to £20,000) if you employ an illegal worker and have not carried out a correct right to work check.
Additional sanctions that can be impose:
• in serious cases, a criminal conviction carrying a prison sentence of up to 5 years and an unlimited fine;
• closure of the business and a compliance order issued by the court;
• disqualification as a director;
• not being able to sponsor migrants;
• seizure of earnings made as a result of illegal working
The term employer refers to those who employ staff under a contract of employment, service or apprenticeship, whether expressed or implied and whether oral or in writing. In the transitionary period 1 January 2021 to 1 July 2021, employers do not need to check settled or pre-settled status, just basic right to work chekcs (e.g. passport from EU will suffice), as long as you do this you get a statutory exemption from any right to work issues associated with that individual after the 1st July. This is seperate to Right to Remain and it is imperative that people who can apply through the settlement scheme do so before the deadline of 30 June or they will lose other basic rights such as healthcare.
From July you will need to check that the individual has a right to work either through settled or pre-settled status or through an appropriate visa. The onus is on you regardless of whether they are employed or working on a contract of service (labour only sub-contractor) should be subjected to Right to Work (RTW) checks that ensure people working for you have the right to work.
As long as an individual has settled or pre-settled status there is no cost implication to the employer. If they are qualifying through the points based system a visa is required and there are cost implications, since the visa must be linked to employment you will need to register as a sponsor organisation to be able to employ new workers (i.e. those who do not have settler or pre-settled status) from the EU.
A great starting poing for any business is the Government’s Right to Work Checklist
Under the new right to work checks, if we employ a gang under a limited & pay that limited company for all the labour they’ve supplied, do you know if we need to check the eligibility of each member, or is it the responsibility of the ‘gang leader’?
Specific responsibility will be determined by nature of the contract that you have with the supplier of labour. Although there is no legal requirement to check the RTW of those who work for a different entity, best practice will be to confirm within the contract where responsibility rests and ensure that this covers any GDPR related issues that would prohibit sharing of essential information to support compliance checking.
Once responsibility is clear, it would be sensible to exercise reasonable endeavours to audit your supply chain on a regular basis to ensure appropriate checks are taking place and also to ensure that robust procedures are in place to ensure that there is no risk to you or your workforce under the Modern Slavery Act.
For the avoidance of doubt – labour only subcontractors who work under a contract for services and who are subject to the direction and control of the end user, will be workers and therefore subject to RTW checks by their employer.
Managing Right to Work through a VISA process
To become a sponsor you will need to apply for a sponsor licence. We have been advised that the application process can take up to eight weeks.
- If you have workers from the EU or EEA who wish to continue living and working in the UK after 30 June 2021, you should advise them to apply for settled and pre‐settled status.
- You will need to implement procedures to confirm that an individual has a Right to Work. new
Remember you do not need to be a sponsor to recruit Irish citizens or anyone from the resident labour market with an existing right to work in the UK. This includes EU citizens with settled or pre-settled status, and non-EU citizens with indefinite leave to remain in the UK.
Guidance around Self-employment remains unclear, but there are processes that support the sponsorship of sub-contracted workers (arriving after the 31 December 2020), however, these must be sponsored and guidance currently states. “Where a worker is not your direct employee, we will look closely at the arrangement to make sure you can fulfil your sponsor duties and we will take action against you if we find you are not.”
Travelling for Work in the EU (including Ireland)
If you have workers who travel to the EU for work purposes, they may need to apply for a visa or work permit from 1 January.
Summary – key actions
- If you are planning to recruit from overseas from 1 January, you will need to obtain a sponsor licence. We have been advised that the application process can take up to eight weeks.
- If you have workers from the EU or EEA who wish to continue living and working in the UK after 30 June 2021, you should advise them to apply for settled and pre‐settled status.
- Update your processes to ensure that right to work checks are undertaken (remember the requirements ramp up from 1 July 2021)
A range of excellent free to access resources have been produced and shared by our friends as the Association of Labour Providers, including a handy guide and an update on the impact of Human Trafficking on the new UK Immigration System
FIS has raised a number of concerns with officials about the proposed system and the difficulties specific to our sector based on the skills shortage list, employment models and administrative burden. This conversation is ongoing through the Construction Leadership Councils Brexit Taskforce, Movement of People Workstream.
Modern Slavery can take many forms including the trafficking of people, forced labour, servitude and slavery. Construction remains high risk particularly in terms of forced labour. Employers and most notably companies engaging workers through gangs and labour agencies must be vigilant. It is estimated that there are approaching 140,000 people currently impacted by Modern Slavery in the UK.
Planning workflows, the RACI Approach
Essential part of a manager’s role is identifying roles and responsibilities and delegating. Applying the RACI model can help in terms of breaking things down, deciding how each task contributes to your overall goal and how this can be measured.
The RACI model is a straightforward tool used for identifying roles and responsibilities, ensuring all tasks are allocated effectively that there is no confusion over those roles and responsibilities during a project. The acronym RACI stands for:
Responsible: The person who does the work to achieve the task. They have responsibility for getting the work done or decision made. As a rule this is one person; examples might be a business analyst, application developer or technical architect.
Accountable: The person who is accountable for the correct and thorough completion of the task. This must be one person and is often the project executive or project sponsor. This is the role that responsible is accountable to and approves their work.
Consulted: The people who provide information for the project and with whom there is two-way communication. This is usually several people, often subject matter experts.
Informed: The people who are kept informed about progress and with whom there is one-way communication. These are people that are affected by the outcome of the tasks so need to be kept up-to-date.
A RACI matrix supports the model and is used to discuss, agree and communicate roles and responsibilities.
FIS has developed a template RACI matrix to support members, it is available to download here –Template FIS RACI Tool
CIJC Working Rule agreement
The Construction Industry Joint Council (CIJC) Working Rule Agreement – sometimes referred to as ‘The Pink Book’ – is an agreement between employers and Trade Unions setting out terms and conditions, including national pay rates, that are applied in principle by ‘adherent bodies’ and others across the industry.
The aim of CIJC is to help avoid industrial disputes, and simplify the process of negotiating terms between employers and workers. In addition to standard rates of pay, not taxable expenses such as travel and accommodation costs, are incorporated into the agreement.
FIS is represented and the FIS Board were consulted and views fed in via our membership of Build UK. Other organisations involved in the negotiations include Civil Engineering Contractors Association (CECA), Home Builders Federation (HBF), National Access & Scaffolding Confederation (NASC), National Federation of Builders (NFB), National Federation of Roofing Contractors (NFRC), Painting & Decorating Association (PDA), Scottish Building Federation (SBF) and Trades Unions Unite the Union and GMB.
- The new CIJC Pay rates and allowances 2022 are available here
- The new CIJC Holiday Entitlement 2022 are available here
- it is advised that they are read in conjunction with the CIJC Working Rule Agreement
FIS Competency Framework (SAKE)
The FIS Skills and Competence strategy is built on the SAKE Framework, measuring competency through a combination of Skills, Attitude, Knowledge, Experience.
Skills: The practical application of knowledge learnt through on and/or off-the-job training.
Attitude: The mindset or approach required for competence, across the entire occupation.
Knowledge: The information, technical knowledge, and ‘know-how’ the individual needs to successfully carry out their duties.
Experience: The enhanced knowledge or skill acquired through practical experience.
You can download an example template for a competency framework for Drylining occupations here
- Built environment and fire industries set out blueprint for improving competence and driving culture change
- You can download an example template for a competency framework for Drylining occupations here
- Visit the FIS Skills Hub or further information on competence, training and qualifications supporting the sector.
Advice on Home Working
In light of the spread of COVID-19 more people are being asked to work from home. Some are used to this and others not, below is an example of information circulated by FIS Member Mansell Finishings to their team to advise on some bits of good practice for you to observe.
- Get Dressed – maybe not in full smart business attire but sitting there in your PJs will start you off on the wrong footing and you will sub consciously not feel like you are ‘at work’
- Plan your work area – set up a comfortable and as private as possible space and make sure those in the house with you understand that you have to work.
- Plan your tasks each day – sounds obvious but this is more important than ever when working from home. Your line manager should be doing this with you anyway and checking in with you but it pays to be self sufficient and pro-active in this area.
- See it as a productivity challenge – If managed correctly you can get more work done from home. Deal with the small tasks and the big project type stuff too. Eg. Use the first hour to get rid of the niggly little tasks best you can and then start to work on those ‘big’ tasks. You know the ones you have been putting off for a while but in your hearts of hearts you know need doing. This is the type of stuff that always goes on the back burner when in the office because of distractions, well now you can concentrate in peace and get it done
- Stick to your normal working hours – don’t be tempted to lie in till 10am and then work late for example. If you normally work 8.30am till 5pm with ½ hr lunch then stick to these hours. And don’t stay up till 3am watching Netflix because you know you are working from home the next day!! Go to bed when you normally do on a school night
- Stay Active and take breaks – get up and move around. If your able to go out for a little walk on your lunch break then do so.
- Don’t get distracted – Don’t have the TV on in the background and switch off social media apps (if you don’t use them for work) or certainly the notifications for them. You can always check them at lunchtime or on breaks etc.
- Phone people – find a reason to ring your colleagues rather than just e-mailing, it is important to still have some form of human interaction. Better still use some form of video call to communicate with your colleagues.
Thanks to Paul Rigby, Mansell Finishes Limited, Head of People for sharing this.
ACAS advice on homeworking is available here
FIS Associate Citation have produced for us a detailed guide to temporary homeworking due to coronavirus, support for employers and employees – you can access the toolkit here
What is Redundancy?
Redundancy is a form of dismissal when employers need to reduce their workforce. Workers being made redundant may be eligible for certain things, including:
- redundancy pay
- a notice period
- a consultation with your employer
- the option to move into a different job
- time off to find a new job
If an employer is proposing to make redundant 20 or more employees at one establishment within 90 days, legal requirements regarding collective consultation apply.
How much redundancy pay a worker is entitled to depends on:
- your age
- how long you’ve worked for your employer
You may be required to offer more than the minimum amount the law says you should get (‘statutory’), if it’s in your contracts.
You can us the Government Redundancy Pay Calculator here
ACAS have developed a full redundancy toolkit including template resources here
FIS Members can access the Employment law helpline via 0121 707 0077
Lay-offs, Short-time working
The COVID-19 virus has put strain on businesses across the construction sector. Previous downturns have taught us that companies who take decisive action to manage short-term issues are more likely to survive the longer term. Loyalty to your employees requires leadership and a times you may be required to make some difficult decisions to protect future jobs. Below we look at some of your options.
What is a lay-off?
When employees are not provided with work by their employer, and the situation is expected to be temporary, they are regarded as laid off.
In what circumstances can an employee be laid off?
This can be done where there is an express contractual right agreed between employer and employee.
The right of an employer to lay off may also be implied if it can be shown (by clear evidence) that it has been established over a long period by custom and practice.
Both parties may agree to alter the contract terms so that the lay-off is not a unilateral act by the employer but by mutual agreement (for example, where the only alternative is redundancy).
Do employees have any right to payment during a period of lay-off?
Not if there is a specific term in their contract allowing you to lay them off without pay. When they are laid off, they might be entitled to a statutory guarantee payment from you, limited to a maximum of five days in any period of three months. The daily amount is subject to an upper limit which is reviewed annually. On days when a guarantee payment isn’t payable, employees might be able to claim
On days on which a guarantee payment is not payable, employees may be able to claim Universal Credit (in light of the Coronavirus situation, the ability and process for claiming has been simplified). More information is available here.
How long can a lay-off last?
This will depend on the terms specified in the contract. However, the employee may in certain circumstances give his or her employer written notice of an intention to claim a redundancy payment. If there is no contractual right or agreement the employee may try to claim breach of contract or unfair dismissal.
What is short-time working?
Short-time working occurs when employees are laid off for a number of contractual days each week, or for a number of hours during a working day.
As in the case of a lay-off, the employer must have an express or implied power in order lawfully to reduce the amount of pay. Normal practice would be for the workforce or their union to agree to short-time working as an alternative to redundancies.
Where there are no express or implied rights to short-time working, employees may claim that the employer’s action amounted to a dismissal (constructive or otherwise) and complain to an Employment Tribunal of unfair dismissal.
They may also sue for loss of wages in a civil court or, in certain circumstances, in an Employment Tribunal or claim that the employer has made an unlawful deduction of wages under Part II of the Employment Rights Act 1996 (to an Employment Tribunal only).
Again it may be possible for employees to access support through Universal Credit and more information available here.
Can a claim be made for a redundancy payment because of lay-off or short-time working?
If an employee is either laid off (that is, receives no wages) or put on short time working (that is, receives less than half a week’s pay) for four consecutive weeks – or for six weeks in a period of 13 weeks – because of a shortage of work, the employee can give the employer written notice that he or she intends to claim a redundancy payment.
You can access the full ACAS guide to Short Term Working and Lay-off here
FIS Members can access the Employment law helpline via 0121 707 0077
Off Payroll Working - Big changes in April 2021
On the 17th March the Chancellor announced that proposed changes in April 2020 would be delayed til 2021
Regulations related to people working in your business who are there regularly, but they are not on your PAYE system because they are paid via other routes are changing in April 2020 and businesses need to prepare.
If they come through an agency and the agency pays a wage that runs through PAYE, the problem is solved.
If they work for their own limited company and the agency, or your firm, pay the limited company, you are square in the target of the off-payroll rules (ir35) that start in April this year.
These rules effectively say that the firm using the labour is responsible for any unpaid PAYE however long the chain of intermediaries and agencies and personal service companies, if
no PAYE is imposed and paid in the chain (this risk previously used to rest on the contractor).
FIS Members are advised, where they believe a worker to be in scope, to undertake a CEST (Check employment status for tax) test.
A test can be done anonymously but if you test a worker and it shows that they are self-employed it is useful to log it with that
person’s name and print a copy as evidence that you did the test.
If the CEST test shows that the person is an employee you must notify the personal services company that they work for, or the
agency or intermediary and you must get their reassurance that PAYE will be applied to the payments. You need to be confident that you trust this reassurance because your firm is on the hook for any unpaid PAYE that HMRC discover later.
The CEST website has a lot of guidance about off-payroll working and is the best place to read up about the issue. Not all accountants agree that the tests online are correctly weighted but remember that the test shows where HMRC have drawn their line. You could ignore a result and argue that a worker shown by the tests as employed was in law self-employed, but you should be prepared to pay the accountancy and legal fees that would arise if HMRC challenged you (which they would if it came to their attention).
Take care and remember to keep the evidence of the off-payroll checks you make so that you can demonstrate that you took proper care (even if you are ever found to be wrong).
FIS Members can access detailed advice through our membership of the Joint Taxation Committee, find out more here
Midlife pension review for the self-employed
If you are self-employed and not sure how to deal with your pension, or feel a bit lost when it comes to retirement planning, then Money Helper has a dedicated appointment service, called Midlife Pension Review, which can help you with what this means for you and your pension.
Creating an Electronic Communications Policy
All companies should have a formal Electronic
Communication Policy. A template policy below is provided for members to adapt as necessary to suit their company needs.
Managing holiday leave
After several years of travel restrictions, the UK is heading for a huge holiday season this year, and many employers will have been receiving an influx of holiday leave requests in recent weeks. As an employer, it is important to know your responsibilities when it comes to calculating annual leave. FIS HR & Employment partner Citation, have put together this handy guide.
Fairness, Inclusivity and Respect (FIR) Toolkit
Creating a working environment that encourages fairness, inclusivity and respect is more than a legal responsibility, it is a moral imperative and it makes good business sense.