Here’s our round up of the most frequently asked questions from our clients and our advice for you, which we hope you find helpful. If you have a question you’d like answered next month, then just send it to us at firstname.lastname@example.org and we may include it in next month’s Top 5!
1.My employees are refusing to come back to the office – what should I do?
Employees are required to obey their employer’s reasonable instructions, which would normally include attending work where the employer has put in place safe-working measures in line with government guidance.
However, ss.44 and 100 of the Employment Rights Act 1996 protect employees against detriment or dismissal where, in “circumstances of danger” that the employee reasonably believes to be “serious and imminent”, they:
- leave their workplace (or any part of it);
- refuse to return to their workplace (or any part of it);
- take appropriate steps to protect themselves or others from the danger.
Automatic unfair dismissal
A dismissal that meets the requirements of s.100 of the Employment Rights Act 1996 is automatically unfair. Employees do not need the usual minimum two years’ service to be able to bring a claim for automatic unfair dismissal in these circumstances. In addition, the statutory cap on the compensatory award does not apply where the automatic unfair reason for dismissal relates to health and safety.
What to do:
Take advice from an HR professional on this one before proceeding any further. They will want to know if you have met with the employee to understand their concerns, and will want to understand what measures you have put in place to protect the employee. Once they understand the facts fully, they can then advise you on the best course of action.
2.Is it my responsibility as the employer to confirm the employees’ settlement status if they are a non UK worker?
As a result of Brexit, all EU nationals currently working and living in the UK must have secured settled or pre-settled status if they want to remain in the UK, as the deadline to do so was 30 June 2021.
What is settled status?
Securing settled or pre-settled status allows your EU national workers to remain working in the UK and have access to the usual services that any British citizen would have (e.g. free access to the NHS, enrol in education, access public funds to benefits and pensions (where eligible)) and travel in and out of the UK.
So long as your workers do not spend over five years outside the UK (or 2 years if they have pre-settled status) they will not lose their settled status.
Why should employers get involved?
There are concerns that some EU nationals still do not know they need to apply for settled status, with some believing that as they hold a permanent residence card and therefore they need not apply. That is not correct. If EU nationals fail to secure settled status (or pre-settled status) they run the risk of losing their right to remain in the UK.
So, with approximately 2.24 million EU nationals working in the UK, businesses looking to secure their EU national workforce going forward should consider how they can assist with securing settled (or pre-settled status) for their employees and perhaps, their family members.
Make sure you inform your workforce
Although it is the individual’s responsibility to make an application to the EU Settlement Scheme, businesses may prefer to assist as much as possible. The key issue is to ensure that your EU national workers are fully aware of what their rights and responsibilities are to secure the settled status required.
Employers should not interpret the information provided by the UK government and must be careful not to provide immigration advice, but you are free to raise awareness and reiterate what is required when applying to the EU settlement scheme.
As a business you should ensure that you understand what your duties are during the transitional period.
There is no requirement for an employee to inform the employer that they have applied or the outcome of their application. Likewise, employers are not required to check that an employee has applied. There is however nothing preventing employers from raising awareness of the settlement application process and asking to see the employees letter confirming their settlement status.
The current ‘right to work’ checks (e.g. passport and/or national identity card) will continue to apply and we encourage businesses to ensure they maintain such checks on a continuing basis.
EU citizens can evidence their right to work using the online right to work service, if they choose to do so. However, they are under no obligation to demonstrate their right to work in this way.
3.Can we insist on seeing employee’s vaccination records?
The short answer is, not unless you have a good reason to do so!
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, it must ensure that it has a legal basis for processing such information and that it complies with the conditions for processing special category data (relating to employees’ health) under the UK GDPR.
The Information Commissioner’s Office (ICO) has published guidance for organisations on when collecting vaccination data can be justified. 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 do decide to collect this personal data, 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 an 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
4.Do we need to update our contracts of employment if people are now working permanently from home?
Yes, you do, but let’s take a look at a few principles first.
A contract of employment is an agreement between the employee and the employer that outlines the rights and duties of both sides.
At some stage either you as the employer or your employee might want to change the contract of employment. However, neither party can change the employment contract without each others’ agreement. Changes should normally be made after negotiation and agreement and should always be confirmed in writing.
Changes to employment contracts could be made by:
- agreement between employer and employee after a period of negotiation or discussion
- collective agreement – this is a negotiation between the employer and a trade union or staff association
- implication – that is through a long standing custom and practice which has now become a contractual change. For example, if you have always allowed all employees a day off each year for New Year’s Eve, this would be considered a contractual change if it has happened for 3 or more years.
Reasons for changing an employment contract
Employers sometimes need to make changes because of economic circumstances. The business may need to be reorganised, moved to a new location or there may need to be changes because of new laws or regulations. Simple changes can be recorded in what’s known as a “side letter” to confirm what the change is, or in more complex changes; such as changing someone’s place of work from the office to their home, as this impacts a number of clauses within the contract of employment, we would suggest that the contract of employment is re-issued in full.
- rates of pay
- working time – for example, longer/shorter hours or different days
- an employee’s duties and responsibilities
- the location of where you work from
5.My employee needs to work from home to look after their self isolating child but their work can only be done at work, should I pay them?
Employees are entitled to time off work to help someone who depends on them (a ‘dependant’) in an unexpected event or emergency. This could apply to situations to do with COVID-19.
A dependant does not necessarily live with the person, for example they could be an elderly neighbour or relative who relies on your employee for help.
There’s no statutory right to pay for this time off, but some employers might offer pay depending on the contract or any policies they may have in place.
The amount of time off an employee takes to look after someone must be reasonable for the situation. For example, they might take 2 days off to start with, and if more time is needed, they can book paid holiday (‘annual leave’).
If an employee needs to self-isolate because a dependant has COVID-19 symptoms or tests positive for COVID-19, the employee should receive Statutory Sick Pay (SSP) as a minimum for this time off, which can of course be reclaimed as the employer.