Leading lawyers from Aaron & Partners have warned of the new challenges HR professionals, business owners and managers will face as a result of coronavirus
Leading law firm Aaron & Partners has outlined the potential new challenges HR professionals, business owners and managers may face as employees across the UK start to return to the workplace following the lockdown period.
A team of lawyers from the firm have warned that the risks of contracting the virus coupled with the government guidance regarding mitigating them, mean that workplace policies and practices will need careful consideration and will likely require changes before workplaces can reopen.
Claire Brook, an Employment Law Partner at Aaron & Partners said: “The impacts of COVID-19 have been significant and businesses have had to make considerable changes to the way they operate. For HR professionals and managers, this has meant making business critical decisions whilst managing a range of unfamiliar people issues presented by the pandemic.
“As the government begins to ease its lockdown measures, employers will no doubt be planning for some form of return to the workplace in the near future, with some sectors already allowed to return as long as it is safe to do so. However, it’s clear that the workplace will be very different from the pre lockdown situation and employers need to consider the government guidance regarding the changes they need to make.”
Layla Barke-Jones, a Senior Associate in the Dispute Resolution team at Aaron & Partners, added: “Health and Safety will be one of the greatest concerns for employees returning to work. Carrying out a risk assessment is a statutory requirement for employers and businesses need to carefully plan and implement measures to ensure their workplace is safe for employees to return to.
“To offer some help and guidance and avoid potential disputes, we’ve produced a list of five likely issues that could arise as people return to their place of work to help HR professionals, business owners and managers navigate this period.”
- Mental Health
The CIPD reported that mental health related absence is the most common cause of long-term sickness absence in UK workplaces and we expect that this will increase as a result of the coronavirus pandemic. Some employees may have experienced bereavement, financial pressure, reduced motivation, increased anxiety, feelings of isolation, depression or even post-traumatic stress.
Employers have a duty to consider the welfare of employees and this includes mental health and wellbeing, therefore they should consider how they can support employees experiencing poor mental health whilst they are working remotely, and once they return to the workplace. Regular communication with employees will be vital as individuals will have had different experiences during this time.
- Health and safety issues
Health and wellbeing of employees and visitors is paramount and extends beyond the workplace doors and into the lives of everyone they come into contact with – it’s not a tick box exercise but a crucial step in being able to beat the disease and get back up and running.
Each workplace will have its own unique set of challenges and will need to think carefully about the risk of spreading coronavirus and carry out a thorough risk assessment, a helpful aid could be to think of three categories – people, surfaces and space and the risks of spreading coronavirus attached to each. The government has published industry specific guidance, found here: https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19.
HSE in Northern Ireland has produced a useful template for a risk assessment which provides a good starting point and can be found here: https://www.hseni.gov.uk/publications/example-covid-19-risk-assessment-template
The key is to communicate the measures that are put in place, monitor compliance and review. Given how quickly things are changing it will be essential to do this regularly (perhaps daily at first) and in line with the changes in government advice.
- Increase in Flexible Working Requests
Whilst there is no right to flexible working (it is simply a right to request), employers should consider the appropriate response to requests and proactively consider the health and safety requirements.
It’s important to take a fair and consistent approach towards flexible working requests to avoid any potential claim for unfairness, grievances and/or potential discrimination claims under the Equality Act 2010.
- Differing experiences of furloughed and non-furloughed employees
Careful consideration should be given to return to work relations as each individual will have had a very different experience during lockdown depending on their personal circumstances. This will also include the different work experiences between non-furloughed and furloughed employees.
HR teams have the opportunity to shape a supportive culture and environment to reduce the risk of tensions and/or any escalation or inappropriate outbursts at work.
- Bereavement issues
Many employees will have suffered bereavement during this period and beyond the existing framework on bereavement leave and pay, those affected may have been faced with the trauma of saying goodbye to their loved one remotely (or may not have even had that chance at all).
Employers should consider the potential long-term support they can offer, and any adjustments, such as a phased return to work, additional mental health support or flexible working hours that may be appropriate for an employee who has suffered bereavement in this way.
The UnRefundables: Shoppers left out of pocket post-pandemic
- One in ten shoppers (11%) left out of pocket or without refunds since pandemic
- One in three shoppers (36%) actively avoiding purchasing due to refund worries
- Clothes, hotel bookings, flights and electronics top list of UnRefundable items
New consumer research commissioned by Visa has revealed a sharp increase in people unable to access returns or refunds for items bought during lockdown, with one in ten (11%) of those who requested money back still waiting for, or denied access, to a refund or voucher – a 215% increase from pre-pandemic times.
These items, coined “UnRefundables”, have left millions of concerned shoppers out of pocket. Of those that were able to access refunds for their items, one in five (20%) only received partial refunds, through cash or vouchers.
The consumer survey of 2,000 UK respondents and conducted by Opinium, revealed returns and refund requests have increased by 16% since the start of the pandemic, as more than two fifths (41%) of shoppers tried to return and refund items, services or events. Almost half (49%) of people who experienced refund issues didn’t get to use their purchase – receiving faulty or incorrect goods, items not arriving, products not being as advertised, being charged multiple times or billed the incorrect amount, or a purchase that wasn’t authorized.
UnRefundable fear putting pause on consumer spending
The research revealed that frustrations regarding refunds could have knock-on effects for British businesses, with over a third (36%) saying they have avoided making big purchases due to fears their money would not be returned and a quarter (28%) are more worried about securing a refund since the pandemic started.
Despite now being able to travel abroad and within the UK, there is increased concern amongst consumers making travel related purchases. In fact, one in three (34%) respondents say they are worried about a travel booking being refunded due to a local lockdown or “second peak” of the virus.
This follows a big increase in people trying to get refunds on flights and hotel bookings, with a fifth (22%) saying they have had more difficulties trying to get money back on cancelled holidays and events.
Why can’t Brits access refunds?
Over two fifths (43%) have been deterred from requesting a refund for an item, service or event at all – citing confusion about the returns process (15%), lack of time for the process (10%), the return window (also 10%), as well as no access to a printer for return labels (8%) as key pain points. Worryingly, one in 10 (10%) were not able to contact the company to pursue a refund.
The refund wait time has also increased notably during lockdown, with 12% saying it took over a month to get their money back compared to 7% who got a refund beforehand. Older people (aged 55+) are experiencing the biggest wait for refunds, with 5% waiting over a month before the pandemic, compared to 17% who have experienced this wait time since.
Visa has teamed up with personal finance expert Jasmine Birtles to allay consumers’ fears of being left out-of-pocket over the summer.
Jasmine Birtles commented: “If you bought something online that’s not up to scratch or hasn’t turned up, but the seller won’t budge or they’ve gone out of business, it can be tempting to chalk it up to a poor purchase decision or simply bad luck. With money a particular worry for many households currently, it’s important to research your refund options – you don’t always have to accept rescheduled dates or vouchers for equal or lesser amounts that leave you out of pocket and inconvenienced.
“If, after speaking to the retailer, you are still unable to get a refund, there are alternatives available to claw back those costs. You should contact your bank that issued your Visa card and ask them to pursue a chargeback claim, where they may be able to submit a claim to the retailer’s bank to request your money back. You can pursue a chargeback claim if you received only a partial refund, goods that weren’t as described, or have been offered alternative refund methods, including vouchers, points and rebooking. Your bank has 120 days from when the payment was made to make a chargeback claim, which is great news for people who might have missed the returns window. However, it’s worth noting that banks’ timeframes may vary and it’s best to file a dispute as early as possible to allow plenty of time. For travel, concert tickets or future-dated items, this time limit begins on the day of the event or holiday booking – providing extra reassurance to those worried about making holiday purchases.”
Jeni Mundy, UK & Ireland Managing Director, Visa, commented: “With consumer spending crucial to Britain’s economic recovery, it’s concerning to see that people are worried about securing refunds should they need to, and that in some cases this is even preventing them from making purchases. It’s important that people understand the many options open to them to get their money back should something go wrong. A good place to start is to get familiar with a seller’s cancellation, refund and exchange policy before you buy – this can often be easily found on their website. Another good way to put yourself in the driving seat when it comes to getting your money back is to pay using a Visa debit or credit card – this opens you up to the option of making a chargeback claim or provides credit card protection to ensure you aren’t left out of pocket.”
Visa’s UnRefundables: Top items being returned
- Clothes, shoes and accessories (31%)
- Hotel bookings (21%)
- Flights (20%)
- Theatre tickets (14%)
- Electronics (14%)
- Food and drink (10%)
- Home appliances (10%)
- Concerts (9%)
- Furniture & home furnishings (9%)
- Sporting goods (8%)
New Moneypenny Survey Shows How Office Life has Transformed in Post-lockdown Return to Work
A new survey by leading outsourced communications provider, Moneypenny, into the return to work post-Covid lockdown, shows that almost half (45%) of office workers surveyed are returning to work immediately, with a further 31% due back in the next one to four months, however 48% admit to having some concerns about COVID risks and a further 15% are not at all comfortable about going back to the office.
For some workers the return to work has been further delayed, with 5% not required to return to work until January 2021 at the earliest, and 18% having no specific date to return.
The North East and East Midlands have the most workers already back at work among those surveyed (53% in both regions) compared to the East of England which has the lowest proportion (41%).
Navigating the new commute
A reluctance to use public transport is shown in the fact that only 16% of those surveyed will use it to commute, while 66% will use their car. The East Midlands had the highest percentage of workers choosing to drive to work, with 81% saying they’ll commute by car, compared to 53% of those in London. Manchester had the lowest percentage of workers stating they’d be using public transport, with only 7% claiming it to be their commuting method of choice, while London had the most (29%).
Local Office Economy
In a blow to those hoping returning workers will boost the local economy, the survey showed more than 35% said that they won’t be visiting any local amenities when they go back to work. There is a clear difference between the age groups however, as 51% of those aged 18-24 and 41% of those age 25-34 said they’d visit a nearby sandwich bar, compared with 21% of 45-54 and 11% of 55-64s who would do this.
Wearing masks in the office
The survey showed that 61% said their company has made masks compulsory, of which 28% require them to be worn at all times, in all areas, while 33% require them to be worn only in communal areas. A further 26% said their company has made masks voluntary and they plan to wear one, while 13% said they are voluntary but they won’t wear one.
When asked whether they minded having to wear a mask at work, 37% said they had no problems with the new rule, however, a further 36% said they would find it too much to do a whole day of work wearing a mask and 13% said they don’t mind wearing a mask at work short-term, but would be less happy if the policy was for the long-term. A disgruntled 9% don’t like having to wear a mask at work at all, as they feel it inhibits their freedom and human rights and they don’t like being told what to wear. A further 2% said they’ll refuse to return to work so long as masks are compulsory.
In larger cities, masks are more likely to be compulsory at work, with 40% of those in London stating that their companies have already made them compulsory for all areas of the office, compared to just 14% of those surveyed in Yorkshire.
Co-workers and social distancing
Social distancing at work is clearly a concern, as 16% of those surveyed said that they don’t trust their colleagues to social distance in the office, while 37% trust some, but not all colleagues. Scotland’s workers seem to be the least trusting, with 23% of workers stating they distrust team members.
Death of the tea round?
Some offices have banned the sharing of equipment completely (cited by 31% of those surveyed) while even without a ban, a further 35% said they won’t be sharing stationery and equipment with colleagues.
Even the tea rounds have been called into question. While 47% said they will make teas and coffees for their colleagues, 38% will only make tea for themselves and 14% said their companies have banned tea rounds.
Office workers in the East of England are most likely to only make drinks for themselves (51%), in contrast with London, where 25% will make drinks for themselves.
Commenting on the survey, Joanna Swash, CEO of Moneypenny said: ‘We were interested to see how many office workers are either already back at work or will be going back in the next few months. While there is inevitably nervousness about Covid risks, it is positive to see the large proportion of people who are happy to work with their company in following the new health and safety rules and we’ve certainly been impressed by how innovative and agile our own clients have been in adapting to the new normal at work.’
Honest services wire fraud and the need for caution on multilateral development bank projects
By Joshua Ray, Legal Director, Rahman Ravelli www.rahmanravelli.co.uk
A recent court case extended US prosecutors’ extraterritorial reach for tackling corruption. Joshua Ray explains the implications for those accused of wrongdoing on multilateral development bank (MDB) projects
Imagine the following scenario: You are an executive for a Paraguayan construction firm that has just secured a contract with the Paraguayan government to build a hospital in that country. The scale of the project means you will need to hire a number of subcontractors and, as you are in charge of choosing those subcontractors, you decide to seek bribes from those wanting the work. Such action is ill-advised and morally problematic. But as commercial bribery of this sort is not illegal in Paraguay, you may have breached your company’s code of conduct but you have not committed a crime under Paraguayan law.
Yet, unfortunately for you, the funds for the hospital were loaned to the Paraguayan government by the World Bank via a wire transfer from its Washington DC headquarters. And under a recent decision from the US Second Circuit Court of Appeals, United States v. Napout, you may have just committed “honest services” wire fraud under US law—even though you never stepped foot out of Paraguay and did not break your home country’s laws. The Napout decision is important as it expands the extraterritorial reach of US prosecutors’ anti-corruption efforts. For the reasons that I detail below, it has significant implications for foreign businesses, especially those engaged in projects sponsored by multilateral development banks (MDBs), whose financing comes from the US.
As they did after the 2008-2009 financial crisis, the World Bank and other MDBs are counteracting the current virus-induced global economic downturn with plans to deploy hundreds of billions of dollars in loans, primarily to governments in the developing world. Much of this will be parcelled out to private sector entities to construct hospitals, testing facilities, sanitation systems and other important infrastructure. Such projects carry the risk of corrupt local officials and business leaders siphoning off such funds for themselves. MDBs are mandated by their charters to take all reasonable steps to combat fraud and corruption on MDB-financed projects. They do not have law enforcement powers but they satisfy their mandate by building provisions into their contracts with direct borrowers (e.g. governments) that compel the borrowers to adhere to the highest ethical standards during the execution of MDB-financed projects. MDB contracts require borrowers to give the banks freedom to audit any of their books and records that relate to MDB funds.
This right of an MDB being able to audit the books extends to any indirect beneficiaries of MDB funds for a project, such as suppliers, consultants and contractors. Such third parties must also agree to submit to the MDB’s jurisdiction to investigate and sanction them for corruption, fraud or other misconduct. Punishments imposed by MDBs can be harsh, and can include debarment; where a company is prevented from bidding on MDB-financed projects for a number of years or even indefinitely. When an MDB uncovers misconduct through its own investigations it can – and often will – refer its findings to national law enforcement agencies; which can mean even more serious problems for those investigated.
The significance of the Napout decision regarding such situations is that it enables US prosecutors to pursue MDB-related bribery even when the purported wrongdoer is not subject to the US Foreign Corrupt Practices Act. Prosecutors can now pursue suspects for such bribery even if that suspect is not a US company, issuer or agent and has no other connection to the US.
The Second Circuit’s Decision
The appellants in Napout, Juan Angel Napout and Jose Maria Marin, were two former executives at football’s world governing body, FIFA. They had been convicted of using their positions to obtain millions of dollars in bribes relating to the sale of marketing and broadcasting rights. Napout had been president of Paraguay’s national football federation and Marin held the same post in the Brazilian football federation.
They both appealed on the basis that their convictions were the result of impermissible extraterritorial applications of the US honest services fraud wire statute. The crux of their argument was summed up by Napout’s counsel, who argued that the US had no authority to police the relationship between a Paraguayan employee and his Paraguayan employer and an alleged scheme involving South Americans that took place almost entirely in South America.
The issue of whether the honest services fraud wire statute had been improperly extended to extraterritorial conduct was then reviewed by the Second Circuit. It concluded that as long as a wire fraud scheme involves a wire transmission from, into or through the US that is “essential” or more than “merely incidental” to the overall crime, the extraterritorial application of US law was permissible.
The appellants argued that honest services wire fraud was a materially different crime than regular wire fraud, as the focus of honest services wire fraud was not the use of the wires but the bad-faith breach of a fiduciary duty owed to the scheme’s victim. They argued that as the actual conduct underlying an honest services fraud scheme occurred abroad, it could not be prosecuted in the US solely because it used US wires. But the Second Circuit disagreed: all that was required to uphold Napout’s and Marin’s convictions were facts showing that the use of US wires in their case (transfers of bribes in and out of US banks) was “essential” to their scheme. On that issue, the Court easily determined that the wires were essential: at least $2.4M of Marin’s payments were sent to his New York bank account and $2.5M of Napout’s were paid in US dollars generated by wire transfers originating in the US.
Implications for Participants in MDB-Financed Projects
The decision in Napout is relevant to MDB-financed projects as it clarifies the breadth of the honest services wire fraud statute and shows the ease with which US prosecutors can use it to target conduct that occurs almost entirely abroad.
The “honest services” variant of wire fraud is somewhat unique to US law and it is not universally recognised: a main piece of Napout’s defence, for instance, was that honest services bribery in a commercial context was not illegal where his conduct took place. But in the Second Circuit’s view, this fact was largely irrelevant. The Court ruled that the men had violated the statute by knowingly violating their duties to FIFA under the organisation’s code of ethics.
So, what does this mean in practice? The Napout decision confirms that the reach of US anti-corruption efforts extends far beyond the bounds of the FCPA; which applies only to bribes paid to “foreign officials” by US issuers, domestic concerns or their agents. Using an approach based on honest services fraud, all that US prosecutors need in order to have jurisdiction is for an “essential” US wire to be used in the scheme. As several of the main MDBs are based in the US – including the World Bank and Inter-American Development Bank – a fraud or corruption scheme involving MDB money could easily make “essential” use of a US wire transmission; thus rendering the offenders subject to possible US prosecution.
This is an important point for companies and individuals participating in MDB-financed projects to keep in mind: even if commercial bribery is legal (or at least widely accepted) in the country where the project takes place, if the ultimate funding is flowing from the US then extreme caution must be taken to ensure that US wire fraud statutes are not violated. This is particularly critical for projects taking place in developing countries where accepted business practices have not yet caught up with norms elsewhere.
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