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Employers' employment law updates
We produce a periodic e-newsletter for employers aimed at giving you pragmatic and relevant updates and information.
The flexible working environment
Many employers are now struggling with the issue of getting employees back into the workplace. WFH or hybrid at home and at office working looks set to continue in many workplaces. Either the business has found the model can work or accommodations need to be made for employees to retain them.
Businesses need to ensure they have given proper thought to WFH arrangements and put in place relevant contract terms and WFH policies. WFH raises particular challenges in terms of data protection and health and safety. You can find guidance on WFH on the website of the National Cyber Security Centre and the Information Commissioner. It also presents more risk of potential competitive activity by employees. Managing a remote workforce clearly needs careful consideration. There is a risk that employees who need to WFH for childcare or for disability issues will lose out on pay increases and promotions.
Employers should not just let hybrid working develop on a ad hoc basis but carefully think through the implications and put proper structures in place. A good starting point is our template Working From Home Policy which is available for a low fixed fee.
Where employees are needed back in the workplace, their legal options for insisting on home working have greatly diminished with the vaccine roll out. It seems unlikely now that most employees can reasonably believe that there would be a serious and imminent from being in the workplace, where the employer has complied with government health and safety guidance. However, there will be employees who have a medical condition amounting to a disability where WFH or hybrid working may be a reasonable adjustment for their condition.
In theory, flexible working cuts both ways with employers perhaps seeking more flexibility from employees. However, this can lead to discrimination issue, as recently highlighted in the appeal tribunal case of Dobson v North Cumbria Integrated Care NHS Foundation Trust. The Trust introduced a requirement that community nurses work flexibly, including at weekends. Ms Dobson could not do this because of her responsibilities caring for three children. She was dismissed and claimed unfair dismissal and indirect sex discrimination. The appeal tribunal found that the employment tribunal should have used its general knowledge to conclude that women, because of their childcare responsibilities, are less likely to be able to accommodate certain working patterns than men. This would make the flexible working requirement indirectly discriminatory.
All employees with 26 weeks service have the right to ask for a flexible working arrangement now, although there are many ways around the request for employers who do not consider this will meet their business needs. The Government is currently consulting on changes to the law on flexible working requests, including the right to ask for flexible working from day 1 of employment.
Posted 8 October 2021
Fire and rehire
Pressures of COVID have led to a wave of ‘fire and rehire’ which has attracted a lot of media attention. This is where employers force through contract changes by dismissing employees and offering re-engagement on less favourable terms; or where the prospect of dismissal is put to workers during negotiations about changing their terms and conditions. The practice may increase when the furlough support measures come to an end in September or if the economy is slow to recover
The Government asked ACAS to report on the issue and it was published in June. ACAS summed up their findings as: ‘Some of the participants told us about the business challenges of COVID-19 and how the use of fire and rehire can help reduce redundancies. Others believe that the practice is unacceptable, and that the pandemic has been used as a 'smokescreen' to diminish workers' terms and conditions. There was also evidence that fire and rehire practices have been used for many years and predate the pandemic.’
Of course, fire and rehire is a classic way of changing terms and conditions when agreement cannot be reached. The keys to doing it without liability for unfair dismissal are for the employer to have sound business reasons for the changes and to consult fully with the affected employees. If more than 19 employees are at risk of being dismissed, the employer will also have to go through collective consultation with employee representatives for a minimum period of time prior to the first dismissal. The employer will be obliged to give contractual notice of any dismissal or, if the employee agrees to the changes, wait out the notice period until the changes take effect, unless the employee has agreed to an earlier contract change.
In some circumstances, employers may see the risks of a fast fire and rehire strategy, which skips the consultation, as an attractive commercial solution to urgent business needs. It may consider that the risks of unfair dismissal claims and claims for a failure to collectively consult are low, particularly if most affected employees have less than 2 years service or a lack of alternative employment opportunities - meaning that most employees will accept the contract changes and work on. Where redundancies are the alternative, the employer may feel that avoiding redundancy costs and retaining an experienced workforce outweigh the risks of potential claims.
The situation is more complex where employers want to change terms and conditions in the context of a TUPE transfer or where there is a recognised trade union. Legal advice is even more important in those scenarios.
The kind of situations in which fire and rehire has been used during COVID include:
While not recommending any of them, ACAS sets out various options for addressing hire and fire ranging from strengthening unfair dismissal protections to naming and shaming employers who adopt it. However, its summary concludes: ‘We will take up the government's request to produce further guidance that encourages good workplace practices when negotiating changes to staff contracts’. This seems to indicate that there will be no legal change, but just advice published.
The ACAS report can be accessed here.
Posted July 2021
Can employers penalise workers for refusing to have a Covid vaccination?
The headline in my paper read ‘Firms can legally demand staff are jabbed’. How true is this?
Employers may be keen to ensure that all their workers returning to the workplace are vaccinated to help them fulfil their legal obligation to provide a safe workplace. It has been reported in the press that government sources are saying that companies who insist their workers are vaccinated would be protected by health and safety law relating to a safe place of work. The Health and Safety at Work Act 1974 obliges employers to take reasonable steps to reduce any workplace risks. Could it justify employers insisting staff are vaccinated? As with so much else COVID related, we are in novel territory, but here are some thoughts.
Employers could certainly not physically insist that employees are vaccinated. But, in theory, they could penalise them for failing to be vaccinated. These theoretical penalties could range from the draconian dismissal to not allowing an employee to return to work or insisting they change their job duties to one which brings them into less contact with others. But what risks of legal claims would such an approach bring?
If an employee with a minimum of two years’ service were dismissed for failing to have the vaccine, there would have to be compelling business circumstances to avoid a complaint of unfair dismissal, such as protecting vulnerable clients in a care home. Even then, the employer would need to be able to show that it had properly balanced its vaccination requirement against the employee’s human rights. This would involve looking at factors such as: What does the vaccine do? – Does it reduce transmission or does it simply suppress symptoms in a carrier? Are there any other less invasive steps that could be taken to reduce risk?
The employee would be likely to say that there are other health and safety measures which the employer could take to provide adequate protection to colleagues and clients, and so dismissal is not justified IE the measures which employers have been adopting in the pre-vaccine world. They may also say that there are alternatives to dismissal to consider such as furlough. If the employee is able to work from home, it would be even harder for an employer to argue that vaccination was required.
A clause requiring vaccination could be included in a contract of employment for new recruits. Employers still could not physically enforce this. But the contract could say that the employment would not start unless the employee produced a vaccination certificate or that it would be terminated unless the employee produced one within say 6 months. Because the employee would not have unfair dismissal protection at such an early stage in their employment, the organisation could dismiss without the unfair dismissal risk. But it would need to take account of potential discrimination claims as discussed below. Along the same lines, employers could, in theory, introduce a ‘be vaccinated or be dismissed’ rule for employees with less than two years’ service.
Disciplining or penalising an employee with two years’ service for failing to be vaccinated might lead to a claim of unfair constructive dismissal where the employee resigns and says the employer has fundamentally breached their contract of employment. As explained above, the employer would find itself justifying the vaccination requirement.
If an employer says that an employee cannot attend work and will not be paid until they are vaccinated, it will face liability for withholding wages. There is no minimum length of service requirement for this protection. Employees are entitled to be paid if they present themselves at work willing to do their duties. It would be exceptional for a contract of employment to give the employer the right to withhold wages when the employee is willing to work.
There are various scenarios which could give rise to unlawful discrimination under the Equality Act:
What is the position if an employee refuses to answer the question as to whether they have been vaccinated? Unless the employer has its data protection ducks in a row, the employee is likely to have good grounds for refusing. If the data protection angle is sorted, asking about vaccination is probably a reasonable management instruction which means, in theory, that employers could discipline employees who refuse to answer.
Asking candidates during recruitment if they have had the vaccine also requires the requisite data protection measures to have been put in place. The Equality Act also kicks in here because it prohibits asking questions to candidates about health before making a job offer unless one of very specific circumstances apply. The most relevant one would be that the question is necessary to establish that the person can carry out a function that is intrinsic to the work. This limits the number of positions where asking about vaccination would be allowed.
A more moderate approach being suggested is to inform employees of the benefits of being vaccinated and the positive impact that vaccination could have on the workplace. However, employers should protect themselves against any future concerns raised about the vaccines by keeping a copy of the government advice they are relying on in advocating vaccination. At the same time, they should also keep evidence of the efforts made to encourage vaccination to show they have been fulfilling health and safety duties. In this uncertain area, employers have a difficult balancing act. The government’s guidance changes, so employers should review vaccine advice regularly and, to protect themselves, keep a copy of the advice relied upon in case the original electronic advice disappears.
Rather than getting heavy handed with employees who are not vaccinated, it is likely to be more practical to look at alternative ways of maintaining health and safety such as continued home working, social distancing, screens, PPE etc.
A policy on vaccination can be a useful tool to set out the organisation's stance and explain the role of and expectations on managers, HR and employees. Health and safety risk assessments should also include alternative safety measures to receiving the vaccine (for example the continued use of PPE).
Posted February 2021
COVID-19 - Challenges on the return to the workplace
The biggest challenge for employers is likely to come from employees who refuse to return to work or, if they have been working from home, refuse to return to the workplace. Can employers discipline, dismiss or stop pay?
A little used piece of law is going to have its day. This is s44 Employment Rights Act 1996 (ERA). This allows employees to bring a claim for compensation if they are treated detrimentally for refusing to return to their place of work (or if they leave their place of work or say they are going to leave) because they reasonably believe there is a serious and imminent danger. Similarly, if an employee is dismissed in these circumstances, their dismissal will be automatically unfair and they will be able to bring a claim of unfair dismissal even if they have less than two years’ service (s100 ERA).
An employee who is treated detrimentally or dismissed because they say their workplace is dangerous due to the COVID-19 threat may also be “whistleblowing” and get protection for making a “protected disclosure”.
There is no limit to the amount of compensation which employment tribunals can award in these circumstances.
In the current Government assessment of the COVID-19 threat, it is unlikely that any workplace health and safety measures will exclude the risk of contracting COVID-19. Therefore, a refusal to work in the workplace may well be viewed as reasonable. Employment tribunals will have a difficult balancing exercise to determine whether the employee’s belief in the circumstances of serious and imminent danger was reasonable. Employers are not going to want to get caught on the wrong side of this balancing exercise.
In practice, this seems to mean that most employees will currently have the green light to refuse to return to the workplace. As the COVID-19 risk is assessed as reducing, the situation will change.
So, what can employers do? Ultimately, employers are unlikely to want to risk a s44/100 claim or a protected disclosure claim by penalising workers who refuse to return to work. However, there are steps which employers can take.
Properly follow health and safety requirements, including a risk assessment of the COVID-19 risk which should be in writing if there are more than four employees. The Government says that it would expect all employers with over 50 workers to publish the results of the risk assessment on their website. No matter what the size of the business, publishing the results makes sense to show employees that the issue is being addressed.
Staff consultation should form part of the risk assessment process, and this will help to give staff confidence in the COVID-19 measures which the business puts in place, making them more likely to be willing to return to the workplace.
Implementation and review of the health and safety plan is key, with the employer disciplining those who do not follow it. It is never going to be reasonable to insist that an employee returns to the workplace if proper health and safety measures have not been taken.
Government guidance on COVID-19 health and safety is here.
Can employers refuse to pay employees who will not return to work for COVID-19 reasons or dismiss them? On the face of it, this could be detrimental treatment under s44 ERA or unfair dismissal under s100 ERA, which we explained above.
Effectively, it is not going to be possible for employers to insist that the extremely vulnerable (those who received a letter telling them to shield) return to work, without the real risk of severe liability. Those who are merely vulnerable, for example because they are elderly or obese or have a less serious respiratory condition, are likely to have a solid argument that there is a serious and imminent danger to them from returning to work.
A key question will be: What was the reason the employer stopped payment/dismissed? It may be that employers will be able to argue successfully that they stopped payment/dismissed because of the absence, not the refusal to work, but this is a tricky argument which may not succeed.
The employer’s best course may be to furlough the employee, remembering that there can be no new furloughs after 10 June. Furloughing will also become increasingly unattractive as employers have to make bigger contributions from August.
It is certainly likely to be too risky to insist that employees return to work when they can actually do their job from home.
Employment Law Plus can advise on any particular situations.
Posted June 2020
Disciplinary hearing pitfalls
Often employees raise new points in disciplinary or appeal hearings which need to be investigated. The disciplinary/appeal manager needs to take care how they react to this. Of course, the new point should be investigated. But who should carry out the investigation? And what happens to the new information which it produces?
It is not the role of the disciplinary decision maker or the appeal manager to conduct this further investigation. Further investigation should be undertaken by the investigation manager.
Crucially, a copy of the outcome of the investigation (usually meeting notes or a new witness statement) should then be sent to the employee so they are given the opportunity to comment on it. This could be at a reconvened the disciplinary hearing, or it may be sufficient to give the employee the chance to write in with any comments. Then, the new evidence and the employee’s comments should be given to the disciplinary decision maker/appeal manager to take into account when making their decision.
If this process is not followed, the employee may claim that they would have made some key new argument in their defence if they had only seen the new evidence, and that this would have changed the decision made. Even if this is not true, there may still technically be an unfair dismissal.
When investigating disciplinary proceedings, some employers adopt the practice of having the investigation manager draw up an investigation report. This report usually summarises the evidence. Often, the investigating manager will also include their conclusion on whether or not the employee is guilty of misconduct. This practice was highlighted in the case of Drosfield v University of Reading.
There is nothing wrong in principle with putting together an investigation report as long as it fairly reflects the evidence collected and both the disciplinary decision manager and the employee are given the same documents relating to the investigation. However, I would not encourage this practice as it can provoke debates, which I have seen in employment tribunal hearings, about whether or not the summary in the report is fair. It seems far more straightforward and risk free to just put together the witness statements and any relevant documents and leave them to speak for themselves.
If the employer does use the report option, the ACAS guide on disciplinary proceedings makes clear that the investigator should restrict their comments to recommendations on whether the employer should take disciplinary action. The investigator should not suggest possible sanctions or prejudge the outcome of the disciplinary hearing.
Posted March 2020
What should an employer do about workplace relationships (if anything)?
McDonalds has fired its chief executive for having a relationship with an employee. But workplace relationships are common. A lot of people meet their partner at work (I did!). Does this set a precedent for how employers should react?
Having a relationship with a colleague is not normally grounds for dismissal. But the position may be different if the organisation has put in place a policy banning relationships with colleagues or making them reportable, and the employee fails to disclose it. As I explain below, employers need to approach these policies with caution.
Having a workplace policy on relationships is valid because of the potential downsides to office romances. They can cause disruption when the two staff members want to take holiday together. If one person is more senior, there is a risk that they will abuse their position to influence decisions on assessments, pay reviews and promotions, or be thought to do so. The fallout from relationship breakdowns is another risk with the possibility of personal friction and retaliatory treatment. Unwanted advances can result in harassment complaints.
It is unusual for personal relationship policies to ban relationships altogether. A ban is likely to be unworkable. A dating policy should ban inappropriate or sexual conduct in the workplace and cover scenarios where there is an imbalance of power between the parties. It should guarantee that staff privacy will be respected provided work is not adversely affected.
A clause in the policy requiring staff to disclose relationships is difficult to enforce and it may be in breach of employees’ rights to privacy under the European Convention on Human Rights. If the organisation wants to introduce this, it should set out what sort of relationships are disclosable in a way which strikes a balance between protecting business interests and respecting privacy.
Employers may be tempted to introduce a rule that couples may not work together. However, this risks claims of discrimination. In Chief Constable of Bedfordshire v Graham, a police officer’s appointment to the same division as her husband was rescinded because of concerns about the risks arising from the relationship. This was held to be indirect sex and marital status discrimination which was not justified and also direct discrimination on grounds of marital status.
Posted November 2019