Should Home Workers be paid less than their Office Based colleagues?

A classic newspaper QTWTAIN (Question to which the answer is No), following reports in today’s newspapers in which an unnamed government minister suggested that civil servants who work from home should be paid less than those who come to the office. Given the speed with which policy U-turns take place, the Business Secretary has now said  a few hours later that this will not happen.

However, as I’ve seen similar arguments advanced in other business magazines, notably in the US, it’s worth thinking through the logic of this argument from a business, ethical and legal perspective.

The business arguments seem to be two-fold.

Firstly, people working from home are not commuting so are therefore saving money. Consequently they don’t need as much salary.

However, this fails to consider that people working at home will have higher utility bills (heating etc) and in many cases are expected to pay for their own office furniture, IT equipment, and other associated costs. So the net effect may be far less, even if you ignore the bigger question of what salary is paid for.

Secondly, it is suggested that people who work from home aren’t as productive or as willing to put in extra effort as those who attend the office. Setting aside the fact that I’ve yet to see any research or evidence to support this point, it starts from the assumption that people only “work hard” if they are closely supervised and will “slack” if they aren’t. Yet many jobs today (wherever they happen to be based) don’t require that level of micromanagement because they are task or outcome based – performance is measured on results rather than whether someone is sat at a workstation for 8 hours.

Ethically and legally, it is very difficult for a business to justify paying staff who do the same job in different locations (home or office) at a different rate, and since it’s still the case that a majority of home-based staff are women an employer who thinks of doing this is leaving themselves open to Equal Pay and Sex Discrimination claims.

The legal process for reducing someone’s pay is also a difficult and time-consuming one for an employer. Contractual changes need to be consulted on and if an employee doesn’t agree then businesses are left in the legally-fraught ‘fire and rehire’ scenario. Even if you get away with this legally, cutting people’s pay is far more likely to demotivate them and affect their productivity.

There are big issues for businesses who may be trapped in long-term leases for warehousing or office space they no longer require, as well as those businesses (such as coffee shops and sandwich bars) which are set up to service office workers who may no longer exist. This also leads to a broader policy debate about what our city centres and business districts can or should be there for, if their current purpose is no longer required. But that falls outside the remit of an HR blog post, although I might respectfully suggest it is something government ministers might want to pay more attention to.

No Jab No Care Home Job?

There’s been much in the media today about the fact that the Government is to ‘require’ care workers to have the Covid-19 vaccination in order to continue working in front line support. Those who don’t will either have to be moved into work that doesn’t bring them into contact with residents or dismissed.

While the employment law implications are one which may worry business owners, the decision throws up a whole series of HR issues for that particular sector – ones which may also have implications for a lot of employers in the broader health/social care sector (which includes many of my charity clients)

Firstly, it’s important to remember that no vaccination is required by law in the UK.  The often quoted example that ‘doctors and nurses must have a Hepatitis B vaccination’ is based on clinical guidance issued by Public Health England which is then adopted by individual NHS and other healthcare employers as part of their health and safety policy/risk assessment process.  

If the government introduce a specific law (which would take some time to go through the parliamentary processes) or regulation (which wouldn’t) then sacking someone who fails to comply would be fair in law as a ‘statutory restriction’. (Update 21/6/21 – the change will be introduced by regulation, effective October 2021) An employer must still go through a fair process – exploring redeployment options before taking a decision to dismiss – and a dismissal would be with contractual or statutory notice.

If however they introduce the new rules as (prescriptive) guidance then it will be down to the individual employer to build them into their health and safety policy and recruitment guidelines.  While employers would be expected to follow them, it would be very difficult to justify dismissing someone (or not recruit someone) using the statutory restriction argument. Employers would probably have to rely on the catch all “some other substantial reason”, again ensuring that they dismiss with appropriate notice.

In addition to the risk of potential unfair dismissal claims, the sector already faces serious staff shortages with some estimates that there are 100000+ vacancies at the moment. The prospect of sacking otherwise competent staff at a time when it is difficult to recruit, and reducing further the number of prospective job candidates, is likely to cause further problems.

Care businesses will also need to communicate the changes clearly and effectively to staff; take time to collect appropriate vaccination records; perhaps give time off for people to be vaccinated; and ensure that staff understand the consequences of not being vaccinated. This is particularly important for the small number of people who are advised not to have the vaccination because of a health condition, which may mean there are also disability discrimination issues to be addressed.

None of this is to say that the aim of having all care home workers vaccinated (or indeed health and social care staff more generally) is a bad one. But we have seen too many instances in recent years of rushed new regulations being implemented without proper thought-through consequences, and subsequently having to be amended or repealed, for employers to be confident that another hastily announced policy will be any more effective.

It’s a mixed up, muddled up, shook up world?

At the start of 2020 (when a new virus affecting people in parts of China was hardly being covered in the news) I published a blog post on the issues of philosophical belief and how employers should consider issues relating to it, in the light of two high profile cases. on veganism and gender-critical beliefs.

The Employment Appeal Tribunal (EAT) has ruled today on the appeal in the gender-critical case. That case originally failed on the grounds that the claimant’s gender-critical beliefs could not count as a philosophical belief on the basis that they failed the 5th legal test, that a belief “must be worthy of respect in a democratic society and not be incompatible with human dignity or in conflict with the fundamental rights of others”

The EAT overturned this view, stating that a belief would only fail the 5th test if it was ‘akin to Nazism or totalitarianism’ or espousing violence and hatred ‘in the gravest of forms’; a belief that simply was ‘offensive, shocking or even disturbing to others…would not be excluded from the protection’.

This is a subject which results in much heated and vitriolic debate, particularly on social media platforms. The purpose of this post is not to discuss the merits of these views (or the decision itself) but to highlight to employers a key part of the judgement. The EAT was very clear and explicit that:

a. This judgment does not mean that the EAT has expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing.


b. This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else. Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of {Equality Act] EqA will be for a tribunal to determine in a given case.


c. This judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the EqA. They do. Although the protected characteristic of gender reassignment under s.7, EqA would be likely to apply only to a proportion of trans persons, there are other protected characteristics that could potentially be relied upon in the face of such conduct.


d. This judgment does not mean that employers and service providers will not be able to provide a safe environment for trans persons. Employers would continue to be liable (subject to any defence under s.109(4), EqA) for acts of harassment and discrimination against trans persons committed in the course of employment.

The above points are taken directly from the judgement (which you can find here if you want to read it in full) – they are also evidence that court judgements aren’t always in impenetrable legalese! They are however a very useful reminder that discrimination, bullying or harassment are something which an employer is liable for regardless of whether the alleged harasser claims they are only doing so because they have a particular religious or philosophical belief.

A solution to the Sick Pay conundrum?

There’s been much in the press over the last few months about the fact that the UK’s Statutory Sick Pay (SSP) scheme – of around £95 per week – is one of the lowest in the developed world, and as a result acts as a disincentive for individuals to self-isolate during the current pandemic. More recently, there have been suggestions that the Government is considering paying a £500 grant to individuals to encourage them to self-isolate when required to do so (although latest reports claim the government has decided against this approach).

In addition, SSP is only payable to employees – not the self-employed or contractors – and only if they earn more than £120 per week. As a result, the lowest paid are also excluded.

Some of the concern about a change to the rules is from the Treasury around costs. But it needs to be remembered that:

  • Employers currently bear the cost of SSP (there are some temporary exceptions for Covid)
  • The minimum earnings figure dates back to when employers could claim some of the cost of SSP back. This was abolished several years ago and consequently is a meaningless anachronism.
  • There are several other cumbersome and pointless rules around SSP that again, date back to the days it was subsidised by central government. (if you are interested, google concepts such as “waiting days” and “linked periods”)

So, here’s a suggestion of how the government could improve SSP generally, encourage people to self-isolate and limit the long-term costs (though there would be a short term increase).

1. Set the SSP rate to £327 (a 37.5 hour week at the current minimum wage of £8.72 per hour), or 80% of weekly wages if normal salary is less than £327 – 80% being the furlough rate the government seem happy to pay. This could rise annually in line with minimum wage rates or simply be reviewed periodically.

2. Employers still pay the £95 per week contribution, which would rise on an annual basis as it currently does.

3. The scheme would cover all employees, regardless of earnings – no minimum level – and people classed as “workers”.

4. If costs were an issue, the length of time SSP would be paid could be reduced from the current 28 weeks to say 20 weeks.

5. The self-employed would be able to claim an equivalent payment from the DWP/HMRC based on evidence of their earnings.

6. The same rules on evidence (self-certificate for up to 7 days, doctor’s note thereafter) would still apply.

People earning £400 per week or more would obviously see a fall when off sick, but considerably less than currently. And it needs to be remembered that many employers offer more generous sick pay schemes anyway, which would not be affected.

Am interested to know any potential downsides that employers, HR professionals or policy makers can spot – either as short-term response to Covid or as a longer-term solution (I accept that I’ve picked £327 as an illustration and the rate could be higher – or lower).

Woolly Bully

Workplace bullying is back in the news in the UK, so I thought it might be helpful to outline the position for small businesses.

Bullying isn’t defined in employment law, although harassment is (section 26 of the Equality Act) – harassment being ‘unwanted conduct that…violates someone’s dignity…or creates an intimidating, hostile, degrading, humiliating or offensive environment” for an individual (my emphasis). Although this definition of harassment relates specifically to the protected characteristics under the Act, it does form the basis for many organisations’ policies on conduct for all staff.

In practice, bullying is often considered to be harassment by someone in a position of power over the individual – such as a boss.

Bullying can take many forms, but some I’ve encountered in my working life include

  • Giving impossible targets for a subordinate  – setting someone up to fail
  • Making public derogatory comments about a more junior member of staff, either when they are present or to other team members in their absence
  • Shouting, swearing or other verbally aggressive behaviour.
  • Micromanaging an individual, picking up every slight error
  • Treating an individual differently (for example enforcing applying a strict lunchbreak when others are allowed to take as long as they like).

It’s important to remember that both the Equality Act and case law have made it clear that it is the perception of the individual, not the intention of the alleged bully that is what counts – so “I didn’t mean it” is not an excuse for unacceptable behaviour, although it may be a mitigation for any penalty given (something I have discussed before).

Other excuses that won’t wash include “I just have high standards and expect everyone to conform to them” (you can have high standards without being aggressive towards your subordinates) “X is not up to the job” (performance management is about being supportive and agreeing clear targets) or “I’m just a woman operating in a man’s world, so I need to show I’m strong and decisive” (a poor culture doesn’t excuse your bad behaviour)

Of course, this doesn’t mean automatic dismissal for someone found to be bullying their subordinates – an employer is expected to make a reasonable decision considering all the circumstances of the situation. So a manager who hadn’t realised the effect their actions were having on their team members might be given a warning. It’s for you to decide. But you also need to consider the impact that not dealing with a bully will have on, not just on the individual who has raised the concern but on the rest of your workforce.

Bullying allegations can be difficult for small businesses to deal with, especially if the person accused is one of your key managers. But failing to act can lead to more negative consequences.