In the latest advo hr feature we focus on the importance of keeping documentation and accurate records which now includes collecting and storing personal data relating to the NHS Track and Trace scheme, Coronavirus Job Retention Scheme claims, Job Retention Bonus claims and claiming back SSP. This is especially important for any potential Employment Tribunal claims that may be related to processes happening now but may not be heard at Employment Tribunal for several years due to the current backlog of cases.
Decisions made by employers should have an audit trail to be able to justify why decisions were made and to keep an accurate record of events.
With Employment Tribunal claims linked to Coronavirus potentially not being heard until 2022, any decisions made this year will need to be recorded and justified by the employer to ensure that if any cases are lodged there is a clear and accurate reflection of these documented. The burden of proof often falls to the employer to prove they acted reasonably and fairly given the circumstances. Things to consider documenting would include:
- Ensuring you have any witness statements as soon after the event as possible as given the time lag, key witnesses may no longer work for you by the time a case is heard;
- Any decisions to take action that would be different to normal is recorded with a reason given as to why this decision has been made e.g. if a final written warning has been given due to the circumstance but previously others had only been given a written warning for a similar incident;
- Selection processes for furlough and redundancies and justification why these were used.
Coronavirus Job Retention and Job Retention Bonus
For those employers who have utilised the Coronavirus Job Retention (CJRS) and wish to claim for the Job Retention Bonus, there are specific criteria that needs to be met in order to prove you are able to make the claims. Employers must keep a copy of all records for 6 years relating to CJRS claims, including:
- The amount claimed and claim period for each employee;
- The claim reference number for your records;
- Your calculations in case HMRC need more information about your claim;
- For employees you flexibly furloughed, usual hours worked including any calculations that were required;
- For employees you flexibly furloughed, actual hours worked.
You may have seen on the news that HMRC are conducting audits and arrests have been made relating to fraudulent claims under CJRS. It is vital that accurate records are kept in case HMRC audit the business. Please visit the following link more guidance on this and to see if your business is required to collect personal data in line with GDPR https://www.gov.uk/government/publications/job-retention-bonus
More information on the end of the CJRS is available on the advo news site here.
Statutory Sick Pay
You must keep records of SSP that you’ve paid and want to claim back from HMRC. The following records should be kept for 3 years after the date the payment is received for that specific claim:
- The dates the employee was off sick;
- Which of those dates were qualifying days;
- The reason they said they were off work – if they had symptoms, someone they lived with had symptoms or they were shielding;
- The employee’s National Insurance number.
You can choose how you keep records of your employees’ sickness absence. HMRC may need to see these records if there’s a dispute over payment of SSP.
GDPR and the NHS Test and Trace Scheme
Under the NHS Test and Trace scheme, some sectors are required to keep records of staff, customers and visitors for 21 days in line with GDPR protocols to ensure the personal data is only used for the intended purpose and is securely disposed of or deleted after 21 days. This became mandatory from 18 September 2020.
The guidance states that, with regard to data protection, consent is not required and the information can be shared for health and safety purposes, unless in respect of sensitive personal data such as attendance at religious or political meetings, in which case consent is recommended. It should be made clear why the information is being collated, to those concerned. Please visit the following link for more guidance on this and to see if your business is required to collect this personal data in line with GDPR: https://www.gov.uk/guidance/maintaining-records-of-staff-customers-and-visitors-to-support-nhs-test-and-trace
Health and Safety: Covid Workplace Risk Assessments
It is also recommended that there should be an audit trail showing the communication of the measures put in place to make the workplace Covid secure. This audit trail should also include any signage that is used and the advice given to employees and visitors, as well as any disciplinary action taken, following a fair disciplinary process and as a last resort, if these measures are not observed.
If you feel your organisation needs more support then advo hr is here to help. In the first instance email us on firstname.lastname@example.org to start a conversation.