January’s TOP 5 HR Questions

1.Can employers ask employees if they have had a coronavirus (COVID-19) vaccination?

An employer that intends to ask employees if they have been vaccinated against coronavirus (COVID-19) must be clear about its reasons for doing so. To comply with its data protection obligations, the company must ensure that it has a legal basis for processing such information and that it complies with the conditions for processing special category data (which means information relating to employees’ health) under the UK GDPR.

The Information Commissioner’s Office has published guidance for organisations on when collecting vaccination data can be justified. https://bit.ly/vaccinationguidance, so make sure you have a read of this first. Depending on its reasons for asking about vaccination status, an employer may be able to rely on its legitimate interests and compliance with employment rights and obligations as the basis for processing such data.

It is likely to be easier to justify collecting such information in certain workplaces, for example in a health or care setting where coronavirus presents a specific risk. Employers should consider carrying out a data protection impact assessment before collecting vaccination data.

If you decide to collect this personal data, then you must ensure that it is kept securely and that it is shared only with the specific people who need to access it. It must be kept for no longer than necessary. An employer could consider keeping anonymised records, if its aim is to monitor levels of vaccination across the workforce, rather than recording whether specified individuals have been vaccinated.

The employer must provide employees with information about how and why their vaccination data is being processed. This could be an update to your existing privacy notice or could be provided as a separate document.

Employers should be aware that an attempt to impose a mandatory vaccination policy would risk a number of legal claims and employee relations issues.

2.Can unused statutory annual holiday be carried forward to the next holiday year?

Workers are entitled to 5.6 weeks’ statutory holiday each year = 28 days; 20 days holiday and 8 days of Bank Holidays (although there are 9 this year for the Queens Jubilee!)

The four-week holiday entitlement may not be carried forward into the next holiday year (although see below for different rules that apply as a result of the coronavirus (COVID-19) crisis). The position with the additional 8 days Bank Holiday is different. Regulation 13A allows for a relevant agreement to provide for any of the additional holiday entitlement to be carried forward into the leave year immediately following the leave year in which it falls due. This doesn’t tend to impact that many of our clients as most of our clients don’t require their employees to work on a bank holiday.

The Government has amended reg.13 of the Working Time Regulations 1998 to allow workers to carry over up to four weeks’ annual leave into the next two holiday years, where it has not been reasonably practicable for them to take it as a result of the effects of coronavirus.

3.Must employers provide equipment for employees who work from home?

While there is no specific duty on employers to provide equipment for employees working from home, they should ensure that employees have everything they need to be able to work safely and effectively. Where the employer requires employees to work from home, it should provide the equipment or agree to reimburse employees for the cost of suitable equipment. Where the employer allows, rather than requires, an employee to work from home for some of the time (for example under a discretionary hybrid working arrangement), it should agree with them who will be responsible for providing the equipment.

Employers have a specific duty in relation to the use of display screen equipment, in addition to the general duty to ensure employees’ health and safety. The employer must arrange a risk assessment to ensure that the employee has an appropriate workstation, including the desk, chair, keyboard and screen. Employers are required to take steps to reduce the risks to the lowest extent reasonably practicable, which could include the provision of equipment for the employee to use at home.

The equipment required for a hybrid worker may depend on their working pattern. For example, an employee who works from home only on one day a week may not need the same equipment as if they worked at home on four days. However, this will depend on the impact on the specific individual’s health and wellbeing, and on their ability to carry out the work effectively.

Employers must comply with their duty to make reasonable adjustments for disabled employees. If a hybrid worker has special equipment such as an ergonomic chair at the workplace, it is likely that they will need the equivalent equipment at home. Where this is a reasonable adjustment, the employer is required to pay for this equipment.

In addition to considering employee’s health and safety and work efficiency, employers must provide any equipment required to ensure appropriate data security. For example, an employee who handles hard-copy paperwork at home may require a filing cabinet and shredder.

4.What should an employer do if an employee fails to attend a disciplinary hearing?

The Acas code of practice on disciplinary and grievance procedures states that both the employer and the employee ”should make every effort to attend the disciplinary meeting”, and that where an employee is persistently unable or unwilling to attend a disciplinary meeting without good cause, the employer should make a decision based on the evidence available. Therefore, the employer should investigate the employee’s reason for non-attendance, and reschedule the meeting at least once. It may be necessary to reschedule on further occasions, depending on the circumstances.

The employer should inform the employee of the importance of attending and should point out that, if the employee fails to attend the rearranged meeting without good cause, it may take a decision in their absence. It should ask the employee to inform them in advance if they will be unable to attend and should attempt to consult the employee as to their availability when rearranging the meeting.

Factors that the employer should consider when deciding what would be a reasonable course of action in relation to an employee who has repeatedly failed to attend a disciplinary meeting include the employer’s rules and past precedent; the employee’s reason for non-attendance; the employee’s disciplinary and work record, seniority and length of service; the severity of the disciplinary issue; and any medical opinion on the employee’s ability to attend the meeting.

If it is reasonable to do so, for example where there is no good cause for the employee’s repeated non-attendance, the employer can hold the meeting in the employee’s absence, taking into account any written representations from the employee, and any other available evidence, before it makes a disciplinary decision. The employer should always give the employee the right to appeal the disciplinary decision whether the decision has been made whether they were in attendance at the disciplinary hearing or not.

5.Can an employee take annual leave while on long-term sickness absence?

An employee who is on long-term sickness absence may wish to book a period of annual leave in order to receive full pay for that period, for example if they have exhausted all entitlement to sick pay or they are only receiving statutory sick pay.

The law does not prevent employees from taking annual leave while on sickness absence. It would usually be in an employer’s interests to agree to an employee’s request to take annual leave, to avoid them accruing significant amounts of leave while on sickness absence. If it refuses the request, the employer would have to allow the employee to take the accrued annual leave on their return to work (even if this means carrying it over to the next leave year as this is one of the exceptions to Q2 above), or pay the employee the accrued holiday pay on termination of employment.

There is also a risk that the refusal of a request for annual leave when the employee is already absent from work could be a breach of the implied contractual term of “mutual trust and confidence”. The employer would not be able to argue, as it may be able to do if the employee was in work,  that it had to refuse the request in order to maintain staffing levels.