Key employment and commercial law considerations for charities moving forward

Here, we outline the key points from their talk. It is worth noting that the presentation was given prior to the Chancellor’s summer statement. An update on the announcements made can be found here.

Bringing employees back from Furlough and best practice when it comes to redundancy

As lockdown continues to ease and many organisations start to return to their offices and bring furloughed staff back, how to do so in a safe and responsible manner is top of the agenda.

Charity chairs and vice chairs have a responsibility to have oversight of the employment relations in their charity, including providing safe working environment and a safe system of work. This duty has been around since the introduction of Health and Safety at Work Act 1974 and that extends (because of the Equality Act 2010) to making sure that that employers and board members do not discriminate on grounds of a protected characteristic such as disability or age. Those who are disabled may be at higher risk if they catch COVID-19.

The cornerstone of the guidance is enabling workers in work settings to attend work but still observe social distancing as much as possible. This risk assessment is probably the most challenging one you will ever do and your role is to oversee the drafting of it, review it, analyse it, approve it and monitor its implementation. This is a document that will protect you from difficulties if further down the line someone complains that no risk assessment was completed or it was inadequate or faulty.

Assessing the risk means

• Identifying what work activity or situations might cause transmission
• Think about who could be at risk
• Decide how likely it is that someone could be exposed
• Act to remove the activity or situation or if this isn’t possible, control the risk.

The consultation aspect of the risk assessment process is vitally important as the guidance advises that it must be done in consultation with unions or worker health and safety representatives. You need to make sure the risk assessment is produced in consultation with representatives from your staff and you have to listen to what they say, not ignore them. If it falls to someone with a lack of experience or training it would be a good idea to give them the necessary training.

Managing risks

Managing risks is all about not overlooking the current lockdown guidance, which assumes that those who can do should continue to do so for the foreseeable future and employers must make every reasonable effort to facilitate this. Only when homeworking is not possible must every reasonable attempt be made to social distance.

If social distancing cannot be followed, this should raise the question of whether the activity placing workers at risk of not being able to observe social distancing needs to continue for the business to operate safely.

No one is obliged to work in an unsafe environment, particularly those who are especially vulnerable and you will need to be sensitive to the needs of those vulnerable people.

Once the risk assessment is done and approved, you will need to make sure it is published on your website and also internally.

The Government has produced a ‘five steps to Health & Safety’, which will need to put on your website and posted internally.

It will need to say

1. You have carried out a risk assessment and shared the results

2. You have cleaned the workplace thoroughly and have provided handwashing and hygiene procedures

3. That all reasonable steps have been taken to help people work from home

4. That all reasonable steps have been taken to maintain a 2 metre distance

5. Where people cannot be 2 metres that the employer has done everything possible to manage the transmission risk.

Who is to go into work?

When deciding who should go to work, employers must consider who is essential to be on site or visiting a household and allow others to continue to work from home, such as office or support staff. Those remaining on site delivering front line services are likely to be those in key worker roles which are critical for the business to continue or for safe facility management.

It is, in effect, about capacity – what can your building accommodate in terms of capacity that is not full capacity but instead capacity adjusted to take into account social distancing?

Extremely vulnerable people need to shield themselves from any contact with other people and include those with pre-existing conditions such as cancer or those who have undergone an organ transplant. They may also be treated for respiratory problems or they may be pregnant women with heart disease. These people clearly have to shield.

Vulnerable adults are those with breathing problems, anyone entitled to an influenza jab (free of charge), pregnant women or those over 70. Even those under 70 with health problems, such as respiratory, heart disease, kidney disease, liver disease, diabetes type 1 or 2, will need to self-isolate and stay at home to protect themselves from risk. Similarly, those who do not fall into the above category may have to self-isolate because someone in their house is experiencing COVID-19 symptoms or may be vulnerable or extremely vulnerable. If that happens, whilst you can pay them Statutory Sick Pay you can also put them on furlough and many employers have done so.

Arrivals and Departures

Staggering arrival and departure times reduces crowding in and out of the workplace and providing additional parking or other facilities such as bike racks to help people walk, run or cycle to work where possible, thus reducing public transport use.

For the workplace, employers will need to provide more entrance and exit points, more storage for workers to store their coats and bags and alternatives to key fob arrangements for access to the building, unless these are touch free. Employers might want someone allocated to act as security, keeping a safe distance.

As staff move around the workplace or site, they should be a reduction in non-essential trips in the building or on site. Separate zones should be set up to accommodate separate cohorts or groups.

Employers should also eliminate hot desking and if it is necessary, work stations should be shared by the smallest number of people and cleansed between occupancy shifts. Reducing job and equipment rotation is also to be recommended. One way flow through the buildings is repeated throughout the guidance.

Common areas

It is also important to include consistency in common areas.

That means:

• Working with landlords and other tenants in multi-tenant buildings to ensure consistency in common areas such as receptions and staircases.
• Staggering break times to reduce pressure on break rooms or places to eat. Using safe outside areas for breaks.
• Creating additional space.
• Using protective screening for staff in receptions or similar areas.
• Encourage storage of personal items in personal storage spaces.
• Regulating the use of locker rooms and changing areas to reduce concurrent usage.
• Providing pre-packed meals to avoid opening staff canteens.
• Reconfiguring seating and tables to maintain the spacing and so reduce face to face interactions.

Flexi-furlough

From 1 July 2020, the Government introduced a flexi-furlough scheme designed to help employers bring back certain employees on a part-time basis under any flexible arrangement. Provided they bring them back for at least a week at a time they can rotate them as they wish.

In terms of the Coronavirus Job Retention Scheme, clearly employers are going to be expected to pay more towards the scheme whilst employees are still able to take advantage of the 80% salary up to the cap of £2,500.

In light of this, there are likely to be discussions about what a charity will look like and many senior management teams within charities are currently making and reviewing business plans. The key question is do you start implementing change now? If you do, you need to take into consideration that at the moment 80% of what you normally pay to staff in terms of notice pay is reimbursed by HMRC, but when they are under notice, they are entitled to full normal notice pay. So your charity will still get some of this covered by CJRS.

Reasons for restructure

There has to be a reason for a restructure. What does this mean? Usually, it is the same people being employed but doing different jobs for different pay. You may be looking at adapting the business model with less management and less administration. People could be taking on more duties for the same or less money.

The role of a charity Chair is to ensure that there is oversight and that the proposals that come forward are justifiable and any chairperson needs to challenge with rigour any assumptions.  Certainly if you are looking at more than 20 employees to be made redundant over a 90 day period, you will have to go through more hoops through collective consultation.

Redundancy

Redundancy is not about the person, it is about the job that they are doing.  There has to be a cessation or a diminution, i.e. reduction, in the requirements for them to carry out work of a certain kind.

Is this just about over-capacity or is it the case that some person’s roles and duties are going to be redistributed amongst remaining employees?  The impact for them may be important as far as pooling is concerned. You will need to ensure that the case for redundancy is justified with sufficient factual and evidence detail because of the requirement to meaningfully consult.

Consultation

Consultation must be done correctly and it is important that any line manager involved knows how to conduct it appropriately. Certainly consultation in the sense of being meaningful, means that you have to be receptive to alternatives.

When you are consulting with people over redundancy, always use the words “potential” or “may”, not “will” and “must”, because those words can denote that you have made up your mind and this will detract from a fair process for redundancy.

It is not just the reason, but what you are trying to achieve that needs to be consulted about.

You will need to consider whether there should be a voluntary scheme and a window of opportunity to accept applications for voluntary redundancy or perhaps early retirement.

If having closed the window for voluntary redundancy you do not get enough volunteers or you turn down some who you wish to retain, then you will need to move onto compulsory redundancy.

The ACAS website is a useful resource where you can download a number of redundancy letter templates.

There are also likely to be people on maternity leave and they are protected because you cannot make them redundant during their maternity leave. But you should make them aware of what is going on because they are entitled to return to the job that they used to have before they went on maternity leave and they do ‘trump’ other employees as far as suitable alternative employment, is concerned, so you will need to make way for their return to work and not assume that they are going to be made redundant at the end of their maternity leave.

Pools for selection

In relation to pools, there is such a thing as a pool of one and that usually means that one person doing one job is redundant and that their skills are not interchangeable with someone else.  If however they do have interchangeable skills and experience, then you will need to put the person who you think is more likely to be made redundant into a pool for selection along with other people who have similar skills and experience, even if that means unfortunately upsetting the other people and putting them at risk.

You will have to distinguish between what they can do under their contract and what they are currently doing functionally.  Because the contract job description is not the be all and end all as far as identifying whether they are in a pool of one or more and again you need to consult and you may have to be flexible with your pooling.

Selection criteria

Criteria has to be objective and you will need to get together a matrix of criteria to use, which is objective and can depend upon number of factors from output or quality of work to skills, attendance, disciplinary record and even length of service.

Avoid making any criteria which amounts to a provision criterion or practice (PCP) which has an indirect, detrimental effect on people of a certain protected characteristic such as disabled or older people or people of one gender or another.

You will also need to decide on your weighting and again, that will need to be consulted about, whereas if you, for example, give disciplinary record a score of 5, but output and quality a score of 15, then you are obviously giving more weighting to the latter.

Suitable alternative employment

Having scored and consulted over the scoring, you will need to consider suitable alternatives and there will usually be genuine vacancies, but there also may be vacancies in the future. This is important as any Employment Tribunal, which is asked by an ex-employee to assess the fairness of the steps that your charity has taken in making them redundant; will assume that if you give someone notice and it is of, say 3 months duration and a new position appears in the future, they should be considered for that and not simply written off.

You will also need to consider bumping or transfer redundancy, which is to bump a candidate who is selected for redundancy into another position occupied by another employee with perhaps less skills or less service and bumping that 2nd employee out, to retain the first employee’s skills.

You will also need to ensure that the suitable alternative is suitable by skills and terms, but that is not to say that you cannot offer a lower position on less money if that is the only position that is available.

You can conduct competitive interviews for other roles if it is not for same or substantially similar role to the one that is being made redundant.  The old practice of getting people to apply for their jobs is considered unfair.  The practice of getting people to apply for different roles where their existing jobs have been eliminated due to redundancy is fair.

Finally in relation to suitable alternatives, you will need to consider the trial period of 4 weeks and also put in place requisite training and support to help them into the new role.

Dismissal and challenges

You will need set out in your final dismissal letter for redundancy why they had been selected and why their position is redundant, the notice they can expect to get and when that will expire, when the notice will be implemented, when their employment will come to an end, their statutory redundancy entitlement, remembering the maximum statutory redundancy pay (SRP) is £16,140, their holiday pay entitlement and whether any benefits will continue after their employment has come to an end, such as private medical insurance.

You will certainly need to give them the right of appeal which means that you will need to ensure that one of your board members, if not you as chair, will need to be reserved for the appeal process.

Finally when challenging a dismissal, you may want to consider the use of settlement agreements, particularly if you are prepared to provide an ex gratia payment.  Often we see the practice of people applying under voluntary redundancy schemes being expected to sign settlement agreements because this avoids the potential challenge later.

Key commercial considerations

As lockdown continues to ease, what should charities consider as we move into another financial quarter of business as unusual?

A continued focus on governance – keeping the charity’s objects and policies in mind and under review at all times. Try to be dispassionate and use the policies to guide decision making.

Focussing on financial resilience – draw up scenarios for the financial future of the charity and what it will mean – being prepared for bad outcomes. Look hard at unrestricted funds and how these can be best applied in the current circumstances. Consider ways that restricted funds may be used if schemes are put in place to alter or widen the scope of use.

Be familiar and follow Charity Commission Guidance – https://www.gov.uk/guidance/coronavirus-covid-19-guidance-for-the-charity-sector

Serious Incident Reporting – charities should keep the need for a serious incident report to the Charities Commission in mind, particularly if Covid-19 is representing a significant harm to your charity. As part of your annual return, you confirm that all serious incidents have been reported, so it is worth erring on the side of caution if you are in two-minds whether Covid-19 (or any other issue) amounts to a serious incident. Significant harm is defined as harm to beneficiaries, staff, volunteers or others who come into contact with your charity through its work, loss of your charity’s money or assets, damage to your charity’s property or harm to your charity’s work or reputation

Partnerships – consider ways to work with other charities or other partners to share the resources you do have, which may even suggest…

…Mergers and other “corporate” actions – all the economic arguments around duplication or internalising of costs equally apply to charities and it is worth considering who may be a viable option for a formal merger.

The Charity Commission also notes that a merger may be useful to continue or improve services to beneficiaries. Legal advice will be needed about possible modes of merger, charity law compliance and charities will also need to take serious consideration of cultural fit.

Real Property assets – have you got the correct property configuration for your workforce? Can your property assets be better leveraged in a new home/office mode?

Financial distress – look at Charity Commission advice https://www.gov.uk/government/publications/managing-financial-difficulties-insolvency-in-charities-cc12/managing-financial-difficulties-insolvency-in-charities and take professional advice if you think your charity is at risk of being insolvent. Charity trustees may be liable under insolvency laws for inappropriate actions taken by a charity with financial troubles. As lots of charities have a corporate form, methods and tools designed for companies may help a suitably structured charity through a period of financial distress, such as a creditor’s voluntary arrangement.

Where services are opening up, take heed of Government guidance and requirements for doing this in a safe and compliant way. For example coffee shops and restaurants will need to keep names, dates and contact details of all customers in order to support track and trace efforts. This will need to be done in a way compliant with Data Protection laws. Charities as employers will also need to heed guidance applicable to the service in relation to keeping employees safe.

Look at operational risks and perform contract reviews – can you reduce long term obligations and introduce more flexibility or allow more time/brevity in how obligations are met in your commercial contracts? Many contracts include variation clauses that should be checked to ensure that variations are properly communicated, agreed and documented. Get advice if contracts you are relying on are being cancelled or amended to your detriment.

While there is a tendency to focus on the challenges, it is also important to consider the positives that have come out of this situation. Keep the value from positive outcomes during lock-down – don’t lose what has been learnt through the lock-down by going back to old ways. There have been many successful online fundraising initiatives and increased use of technology has reached a range of new service users, which has in turn helped with a general heightened public awareness of the charitable sector.