Employment and Workforce ManagementFIS 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.
The FIS Human Resources (HR) and Employment Toolkit
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 such as Citation and The Joint Taxation Committee for their support in developing these resources for our membership.
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
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
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 2020
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
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
UK visa sponsorship for employers
With a new points based system planned to support immigration from January 2021, businesses employing workers from outside of the UK will need to consider becoming a sponsoring organisation.
To get a licence, you cannot have:
- unspent criminal convictions for immigration offences or certain other crimes, such as fraud or money laundering
- any history of failing to carry out your sponsorship duties
You’ll need appropriate systems in place to monitor sponsored employees.
UK Visas and Immigration (UKVI) will review your application form and supporting documents. They may visit your business to make sure you’re trustworthy and capable of carrying out your duties.
Construction businesses will predominently need to apply for a Tier 2 Visa
Tier 2 is for skilled workers who you want to employ long-term or permanently. It’s split into – the role must meet the job suitability requirements.
Sponsorship management roles
You need to appoint people within your business to manage the sponsorship process when you apply for a licence.
The main tool they’ll use is the sponsorship management system (SMS).
The roles are:
- authorising officer – a senior and competent person responsible for the actions of staff and representatives who use the SMS
- key contact – your main point of contact with UK Visas and Immigration (UKVI)
- level 1 user – responsible for all day-to-day management of your licence using the SMS
These roles can be filled by the same person or different people.
You can also appoint an optional level 2 user once you have your licence. This is an SMS user with more restricted access than a level 1 user, for example they cannot withdraw a certificate of sponsorship.
HR contractors and agency staff
You must have at least one level 1 user who is your employee. You can have other level 1 or level 2 users employed by third-party organisations contracted to provide you with HR services. Your level 2 user can be a temporary member of staff supplied by an agency.
UK-based legal representatives
You can allocate any of the roles to a UK-based legal representative, apart from the authorising officer role. Your representative must be qualified to give immigration advice or services.
Apply for your licence
Find out more on how to apply online for your licence.
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.
FIS COVID-19 Employment Toolkit
A range of resources specifically developed for FIS Members to support them through the complexities of employment through the COVID-19 Crisis
COVID-19 Job Retention Scheme and Furlough
The COVID-19 Job Retention Scheme
If you cannot maintain your current workforce because your operations have been severely affected by coronavirus (COVID-19), you can furlough employees and apply for a grant that covers 80% of their usual monthly wage costs, up to £2,500 a month, plus the associated Employer National Insurance contributions and pension contributions (up to the level of the minimum automatic enrolment employer pension contribution) on that subsidised furlough pay.
The employer can choose to top up, but is not obliged – all the usual deductions (e.g. NICS etc) apply.
Full details on and the claims portal is set up on the Government Website Here
What is Furloughing?
In UK employment law, the term ‘furloughed’ has previously had no legal significance. The strict meaning of the word is a temporary leave of absence from work, it is in effect an enhanced lay-off process. All contractual benefits (e.g. holidays) continue to accrue.
How do I go about unfurloughing staff?
In due course, all businesses will be looking to bring their furloughed workers back to work, or to consider other options, once the COVID-19 Job Retention Scheme (CJRS) comes to an end.
The CJRS, originally scheduled to finish at the end of June, has been extended until the end of October 2020 to run in four stages:
- June and July: The government will pay 80% of wages up to a cap of £2,500 as well as employer National Insurance (ER NICs) and pension contributions.
- August: The government will pay 80% of wages up to a cap of £2,500. Employers will pay ER NICs and pension contributions.
- September: The government will pay 70% of wages up to a cap of £2,187.50. Employers will pay ER NICs and pension contributions and 10% of wages to make up 80% total up to a cap of £2,500.
- October: The government will pay 60% of wages up to a cap of £1,875. Employers will pay ER NICs and pension contributions and 20% of wages to make up 80% total up to a cap of £2,500.
Remember – the Furlough scheme closes to new entrants on the 10th June (this does not prevent refurloughing, but does mean people can no longer be furloughed for the first time)
Will employees be classed as “homeworkers” during this period and will home become their usual place of work?
Do I have to consult with an employee before making them a furloughed worker?
Employers should discuss with their staff and make any changes to the employment contract by agreement. When employers are making decisions in relation to the process, including deciding who to offer furlough to, equality and discrimination laws will apply in the usual way.
To be eligible for the grant employers must confirm in writing to their employee confirming that they have been furloughed. If this is done in a way that is consistent with employment law, that consent is valid for the purposes of claiming through the scheme. Collective agreement reached between an employer and a trade union is also acceptable for the purpose of such a claim. There needs to be a written record, but the employee does not have to provide a written response. A record of this communication must be kept for five years.
You do not need to place all your employees on furlough. However, those employees who you do place on furlough cannot undertake work for you
Is there a minimum period for Furlough?
Any employees you place on furlough must be furloughed for a minimum of 3 consecutive weeks. When they return to work, they must be taken off furlough. Employees can be furloughed multiple times, but each separate instance must be for a minimum of 3 consecutive weeks. Each period of furlough can be extended by any amount of time whilst the employee is on furlough. However the scheme end date is the last day you can claim for through this scheme.
How do I go about unfurloughing and returning staff to the workplace
Excellent guidance from the CIPD help you plan your organisation’s next steps following a period of furlough or once lockdown measures start easing is available here.
Is it possible to Furlough someone Part Time?
The Government has updated its guidance on the Coronavirus Job Retention Scheme, which confirms how the scheme will change from 1 July 2020 to provide for ‘flexible furloughing’:
- Employers can only furlough an employee who has previously been furloughed prior to 30 June. The exception is employees returning from statutory maternity and paternity leave, provided that their employer has previously furloughed other employees
- Employers can bring furloughed employees back to work for any amount of time and on any work pattern while still claiming grant for the hours not worked. Flexible furlough agreements must be for a minimum of one week, and employees can enter into a flexible furlough agreement more than once
- Employers must confirm in writing with employees and keep records of how many hours employees work and the number of hours they are furloughed
- If an employee is flexible furloughed over two different calendar months, a separate claim must be submitted for each month
- From 1 August, employers will have to contribute towards the cost of furloughed employees’ wages.
When making a claim, employers will need to provide the number of hours an employee would have usually worked as well as the number of hours they actually worked, and the Coronavirus Job Retention Scheme calculator has been updated to assist in working out claim amounts for flexible furloughing.
The first time you will be able to make claims for days in July will be 1 July, you cannot claim for periods in July before this point.
Frequently Asked Furlough questions
A more detailed Q&A provided by FIS Employment Support partner Citation available here.
This resource on the CBI website is also useful. As is Coronavirus Employment Schemes – Construction Leadership Council advice.
Guidance on advice to provide staff
Guidance on advice to provide to staff including: how to help prevent spread of COVID-19; what to do if someone suspected or confirmed to have COVID-19 has been in a workplace setting; advice to give to individuals who have travelled to specific areas; and advice for the certification of absence from work resulting from COVID19.
More support (e.g. policy documents, RAMS and training support is available in our COVID-19 H&S Toolkit)
Managing Remote Work
- Business Training Continuity During Public Health Events
- Settling Into Your New Remote Job: 3 Tips to Help You Ace Your First Month
Thanks to www.findcourses.co.uk for sending these in, it helps us all when the community shares in this way.
FIS Webinar – COVID-19 and Employment Matters (24 March 2020)
Listen to experts from ClarksLegal discuss employment and contractual matters – https://attendee.gotowebinar.com/recording/6474066707118183942
The Construction Leadership Council’s Talent Retention Scheme
This portal aims to help individuals showcase their experience and expertise and help businesses find the skills they need.
If your an employer click here for more details
If you’re and individual click here for more details