What if I get the status wrong?

The BBC

The national broadcaster’s collated content surrounding the Covid-19 pandemic:
https://www.bbc.co.uk/news/coronavirus

and with regards to business:
https://www.bbc.co.uk/news/business

Whilst it is acknowledged that doctors may be working in unfamiliar circumstances or surroundings, or in clinical areas outside their usual practice. Doctors should consider the best course of action to take in these circumstances by utilising the following:

• What is within their knowledge and skills
• What support other members of the healthcare team could offer
• What will be best for the individual patient given available options
• The protection and needs of all patients they have a responsibility towards
• Minimising the risk of transmission and protecting their health.

All organisations have underperformers. Capability is a potentially fair reason to dismiss and is separate to any redundancy procedures.

Generally, capability falls into either absences through illness or underperformance in the role. Those who are absent through sickness can be furloughed, but when furlough comes to an end they will need to go back onto sickness. If you are looking to tackle absence then you need to tackle long term and short term absence in a different way.

Long term absence: You need to establish whether the employee is able to return to work (with or without reasonable adjustments) in the medium term. This requires medical opinion and be careful of disability issues. Reasonable adjustments are likely to be important.

Short term absence: You will need to demonstrate that you have fair absence triggers in place and there is normally be a 3 stage procedure: warning and final warning followed by dismissal on notice. Each stage needs a fair procedure, with written information, a fair hearing and the opportunity to appeal. Be careful of disability issues.

As for underperformance: To tackle this, you will need to have clear SMART objectives in place and evidence of the employee failing to meet these. There would then normally be a 3 stage procedure: warning and final warning followed by dismissal on notice. Each stage needs a fair procedure, with written information, a fair hearing and the opportunity to appeal.

The Home Office has not stated when it will end these temporary measures, albeit it has stated that it will provide a warning. Where employers have carried out checks using the temporary measures, the Home Office has confirmed that it will require employers to carry out retrospective checks on any of the following:

• Employees who started working for you when the temporary measures were in place
• Employees who required a follow up check during the temporary measures (for example because their previous leave was coming to an end).

It is not explicit from the guidance but these retrospective checks must require you to have in your possession the physical ID in its original form. When carrying out the retrospective check, employers must record this using the following wording “the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to Covid-19.”

These further checks must be made within eight weeks of the temporary measures ending, and employers must keep records of both checks undertaken. Where the employer discovers that the employee does not have the right to work during the retrospective check they should stop employing them.

We have developed a toolkit to assist with compliance. The Toolkit contains a specimen contract; detailed guidance; step by step guides and flowcharts; details of the factors to take into account for the status determination test; procedures for challenging the determination; and standard letters for the process.  Click here to fill in a form and register your interest in the Toolkit, which contains:

1. Detailed guidance in the form of Key Facts
2. Employment status checklist
3. Employment status assessment flowchart
4. Status questionnaire and guidance
5. Letter confirming self-employed status (agency)
6. Letter confirming employed status (agency)
7. Letter confirming self-employed status (direct with PSC)
8. Letter confirming employed status (direct with PSC)
9. Status disagreement process guidance
10. Status disagreement process flowchart
11. Letter confirming outcome of status disagreement process
12. Consultancy agreement