In a controversial vote in the Welsh Parliament on Tuesday 5 October 2021, the Labour-led Welsh government voted to introduce compulsory COVID passes for individuals attending large gatherings.
NHS COVID Pass Compulsory from 11 October 2021
Today (11 October 2021) sees the introduction of the NHS COVID Pass in Wales requiring all over 198s to show the Pass if they want to enter nightclubs, indoor non-seated events for more than 500 people, outdoor non-seated events for more than 4,000 and any setting with more than 10,000 people in attendance.
The Welsh Night Time Industries Association noted their disappointment and said that it felt these measures will have a negative impact on businesses and will create considerable market distortion and many human rights groups criticised the move, saying it set a dangerous precedent and imposing mandatory vaccines by stealth.
The Conservatives, Plaid Cymru and the Liberal Democrats all voted against the plan, but it was supported by Labour and passed narrowly by 28 votes to 27 but only because one Conservative MS who intended to vote against it via ZOOM wasn’t able to due to technical reasons and was ultimately unable to cast their vote by telephone.
Unlike the COVID Vaccine Passport scheme introduced in Scotland on 1 October 2021, which requires individuals seeking entry to nightclubs and large-scale events to show proof they have been double vaccinated or are exempt, the Welsh NHS COVID Pass scheme allows people to either share their vaccine status or show they have had a negative lateral flow test within the last 48 hours.
We have previously commented on the implication of mandatory vaccine passports and this controversial move by the Welsh administration will likely create similar issues we have highlighted. It may also embolden Welsh businesses to adopt a similar ‘no jab, no job’ approach, which itself could have wider implications for employers.
Currently there are still no plans to introduce similar schemes in Northern Ireland and England.
More information about how to get the NHS COVID Pass to prove that you are vaccinated against COVID-19 or have tested negative can be found here: https://gov.wales/get-your-nhs-covid-pass
The UK Government announced its plans to make the right to request flexible working a day one right and has published its proposals to reform the existing flexible working legislation.
On 30 June 2014, the UK Government extended the Right to Request Flexible Working for parents and certain other carers to all employees with 26 weeks continuous service.
The Current Position for Flexible Working Requests
In the years since the right to request flexible working was extended, employers who receive a flexible working request under the statutory scheme have been. Obliged to:
Deal with it in a reasonable manner.
Notify the employee of its decision within the 3-month decision period.
Only refuse a request on one or more of the following grounds:
the burden of additional costs;
detrimental effect on ability to meet customer demand;
inability to reorganise work among existing staff;
inability to recruit additional staff;
detrimental impact on quality;
detrimental impact on performance;
insufficiency of work during the periods the employee proposes to work; or
planned structural changes.
(Section 80G(1), ERA 1996.)
The Proposed Changes to Flexible Working
In its 2019 manifesto, the UK Government made a commitment to modernise the way we work and to give the right to request flexible working to all employees from day one.
In its recently published consultation paper “Making Flexible working the Default”, the UK Government sets out in detail its proposals which look at a range of flexible working methods such as job-sharing, flexitime, compressed, annualised and staggered hours, as well as phased retirement – not just working from home.
The proposed changes to the right to request flexible working and the process employers must follow, would also mean that all applicants will know they can ask for flexible working before applying for a job. Equally, employers will need to consider whether they can offer flexible working before advertising.
Notably, the proposals seek to retain an employer’s right to still be able to reject a request in certain circumstances.
Have Your Say
It seems clear that the UK Government want workers to have more say over where and when they work, which they say will make for more productive businesses and modernise the way we work.
Individuals and businesses are encouraged to share their views on the UK Government’s proposals to reform flexible working regulations and can read and respond to the consultation here: Making Flexible Working the Default
Risks and Considerations for Employers
The COVID-19 pandemic and the various restrictions imposed upon us forced most employers to adopt new flexible working arrangements in one way or another, albeit on a temporary basis.
However, as lockdown restrictions have been relaxed and employers have sought to end furlough and have staff return to workplaces, many have been met with resistance from staff.
As lockdown restrictions have been relaxed and employers have sought to end furlough and have staff return to workplaces, many have found that workers who have become accustomed to working from home over the last 18 months and having more time to spend with family and focus on their personal lives are reluctant to return to ‘normal’ and would much prefer to retain a more flexible arrangement.
One of the legacies of the COVID-19 pandemic, in this context, is that there has been a seismic shift in priorities with many people now desiring a better work life balance and flexible working arrangements that will enable them to achieve it. This will almost certainly put employers under increasing pressure to adopt a more accommodating approach to flexible working requests, which are almost certainly going to rise in the coming weeks and months, and especially if the Government’s reforms on flexible working are adopted.
In the meantime, Employers will still need to ensure that any requests for flexible working, either formally within the current statutory framework or informally outside it, are managed appropriately and in accordance with the current legislation and/or any policies that are in place and that the process they follow is well documented.
Any failure to manage flexible working requests fairly and reasonably could give rise to possible claims at the employment tribunal, the most significant risk likely being discrimination claims, particularly in circumstances where an employee’s request to modify their working hours to accommodate childcare responsibilities is refused.
There is currently no legislation that allows employers outside of the regulated care home sector in England to impose mandatory vaccination without an employee’s express consent. We explore the risks of a no jab, no job approach.
We previously looked at the different approaches being adopted by governments across the UK in relation to mandatory vaccines and vaccine passports and the potential implications this might have for employers and individuals. In this article we look at the risks of adopting a no jab, no job approach and explore the various challenges and implications for employers.
The Law on Mandatory Vaccinations
Care Quality Commission (CQC) regulated Care Workers in England will be required to be fully vaccinated from 11 November 2021 subject to limited exceptions:
Workers who should not be vaccinated for clinical reasons (regulation 5(b)(ii)).
Those providing emergency assistance (regulation 5(c)).
Those providing urgent maintenance in the care home (regulation 5(d)).
Members of the emergency services attending the care home in the execution of their duties (regulation 5(e)).
Those under the age of 18 (regulation 5(i)).
Those providing spiritual support for a resident following a bereavement (regulation 5(h)).
However, outside of the regulated care home sector in England, there is currently no legislative power for the UK government, or any of the devolved administrations, to mandate COVID-19 vaccinations across the board.
What Recognised Authorities Say
The official guidance from ACAS is that employers cannot force employees to be vaccinated and should instead support staff in getting the vaccine by encouraging them to do so by, for example, offering paid time off to attend vaccination appointments.
The CIPD’s position is that employers can’t force staff to have the vaccine, but they should encourage them to.
In April 2021, the EHRC warned that blanket mandatory vaccination policies, applied inflexibly, are “likely to be unlawful” due to vaccination not being suitable for everyone as well as the discrimination risks. There may be scope to argue that a vaccination requirement is an unnecessary invasion of an individual’s Article 8 right to privacy, particularly when there are other, less invasive ways to minimise the risk of transmission in the workplace. Employees who reject vaccination because of their religion or belief may also be able to rely on Article 9 (freedom of thought, conscience, and religion).
In its Universal Declaration on Bioethics and Human Rights, UNESCO requires “free and informed” consent to any medical intervention.
Mandatory COVID-19 Vaccine: Key Considerations for Employers
Employers outside of the regulated care home sector in England that are considering imposing a mandatory vaccination requirement, or treating employees or job applicants differently because of their vaccination status, should carefully consider the following:
Vaccination is not suitable for everyone.
Requiring an employee to be vaccinated without their consent as a condition to providing work could amount to a repudiatory breach of contract, entitling them to claim constructive dismissal.
A mandatory vaccination requirement could indirectly discriminate against employees with certain protected characteristics and breach Article 8 and 9 of the ECHR.
Currently, private vaccination is not available. Individuals must wait their turn, in order of priority, to be offered vaccination. Allowing only vaccinated employees to return to the workplace could potentially lead to indirect or direct age discrimination claims by younger employees, although both direct and indirect age discrimination can be justified.
Employers may find it difficult to justify a mandatory vaccination requirement on health and safety grounds. Although vaccination reduces the chance of the vaccinated individual contracting COVID-19, the extent to which vaccination reduces transmission is still under review and it is unknown how long the protection offered by vaccination will last. The current advice is clear that vaccination is not a substitute for workplace COVID-secure measures.
Imposing a mandatory vaccination requirement could result in negative publicity for the employer which could have a detrimental impact on business profitability, employee retention and recruitment.
There is a very small risk that vaccination could have long-term, adverse side effects for some individuals, which may concern a cautious employer. An employee who was compelled to receive the vaccine and who suffers an adverse reaction may attempt to bring personal injury proceedings against the employer.
Consultation with workplace and health and safety representatives, and with trade unions, is likely to be required.
The data protection implications of requiring employees to provide information on their vaccination status, verifying its accuracy and retaining that data.
Employers wishing to impose a mandatory vaccination requirement must:
Undertake a detailed risk assessment to evidence why COVID-19 vaccination is required in addition to compliance with the stringent COVID-secure guidelines already in place.
Consult with workplace representatives or trade unions.
Regularly review the vaccination requirement as the current mass vaccination programme progresses.
Mandatory COVID-19 Vaccinations: Implications for Employers
A mandatory vaccination requirement for employees or job applicants is likely to amount to a provision, criterion, or practice (PCP) that puts individuals with a protected characteristic at a particular disadvantage compared with others who do not share that protected characteristic, contrary to section 19 of the Equality Act 2010 (EqA 2010).
An employer’s actions in requiring vaccination of a particular employee, or in treating them less favourably because they are unvaccinated, could directly discriminate against them contrary to section 13 of the EqA 2020.
It is unclear whether asking a candidate their vaccination status could be a prohibited health question in some circumstances under section 60 of the EqA 2010.
No Jab, No Job, No Defence
Despite there being no legislative power to mandate COVID-19 vaccinations for non-CQC regulated workers in England, an increasing number of employers across the UK operating outside of the regulated care home sector are considering mandating vaccines for employees working at their premises regardless of whether they are required to interact with the public or not and many have already introduced mandatory vaccines, citing their obligations under the Health and Safety Work etc Act 1974, which requires employers to ensure, so far as is reasonably practicable, the health, safety, and welfare of all their employees when at work and all members of the public who may attend their premises.
Employers imposing a ‘no jab, no job’ policy will likely rely on issuing what it believes is a “reasonable and lawful instruction” but we believe it is unlikely that it could successfully argue that it is ‘reasonable and lawful’ to require an employee to be vaccinated, not least because current advice is clear that vaccination is not a substitute for workplace COVID-secure measures and there is currently no legislation to mandate COVID-19 vaccines for frontline workers in the NHS.
Employers not confident that they can rely on a ‘reasonable and lawful instruction’ argument to impose mandatory vaccines might instead seek to amend the employment contract to introduce an express provision of the contract of employment requiring employees to be vaccinated. However, the way in which employers approach the task of changing terms and persuading employees to expressly agree to a change is highly significant. In the context of mandatory COVID vaccines, it is unlikely that an employer could rely on implied consent in circumstances where an employee refuses to sign a new contract, so employers will need to consult with employees and secure agreement to implement the change.
Proceed with Caution, Seek Advice
Imposing mandatory vaccination outside of the regulated care home sector in England without specific legislation and where there are effective and less discriminatory methods such as regular testing, home working, social distancing and providing PPE, to achieve the required business outcome is fraught with challenges and introducing disciplinary measures against employees who do not wish to take the vaccine is a high-risk approach which could give rise to claims of direct or indirect discrimination, breach of contract and unfair dismissal, including constructive dismissal.
Employers considering this approach are encouraged to carefully consider all their options and take appropriate advice.
Remedies for Employees Facing Mandatory Vaccination
Employees working outside of the regulated care home sector in England facing redeployment or losing their jobs because of their employer imposing a mandatory vaccine requirement may have legal remedies available to them, subject to the specific circumstances in their case.
Where an employer seeks to impose mandatory vaccination as a condition of continuing in employment without the express consent of the employee and where there are effective and less discriminatory methods such as regular testing, home working, social distancing and providing PPE, to achieve the required business outcome, this will be in breach of contract and the original terms of the contract will remain in place.
The employee can respond to the breach in the following ways:
Acquiesce (accept) the breach by simply carrying on working under the revised terms of employment which, in this context, would mean agreeing to get the vaccine.
Work under the new terms under protest and bring a claim for breach of contract. This is sometimes known as “standing and suing”. It should be noted that, in cases where the change imposed is substantial, the employer may be deemed to have dismissed the employee, so it is possible that an employee may also bring a claim for unfair dismissal, provided they have two or more years of continuous employment.
If the breach of contract is a fundamental breach going to the root of the contract, resign and bring a claim for constructive dismissal, again, provided they have two or more years of continuous employment.
If possible, refuse to work under the new terms.
Where the change amounts to a termination of the old employment contract and an introduction of a new employment contract, the employee can work under the new contract and claim to have been unfairly dismissed from the old one.
Employees working outside of the regulated care home sector in England facing redeployment or losing their jobs because of their employer imposing a mandatory vaccine requirement should seek advice at the earliest opportunity.
The harassment case of Allay (UK) Ltd v Mr S Gehlen is a stark warning for employers relying solely on internal policies and staff training that is rarely updated or rolled out.
In the harassment case of Allay (UK) Ltd v Mr S Gehlen, the Employment Tribunal (ET)assessed that Allay’s training was ineffective as it had not prepared or equipped the staff to take appropriate action and consequently rejected Allay’s all reasonable steps defence.
What is Harassment?
A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either:
Violating B’s dignity.
Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(Section 26(1), Equality Act 2010 (EqA 2010).)
The relevant protected characteristics include race (section 26(5)).
What is an All-Reasonable Steps Defence?
An employer can defend a harassment claim if it is able to demonstrate that it took all reasonable steps to prevent employees doing the discriminatory (or similar) act in question.
Section 109(4) of the EqA 2010 states:
“In proceedings against A’s employer (B) in respect of anything alleged to have been done by A in the course of A’s employment it is a defence for B to show that B took all reasonable steps to prevent A-
(a) from doing that thing, or
(b) from doing anything of that description.”
The Facts in This Case
Mr Gehlen, (of Indian origin), was employed as a senior data analyst by Allay (UK) Ltd from 3 October 2016 until his dismissal on 15 September 2017 on grounds of poor performance. After his dismissal Mr Gehlen complained to his employer that he had been subjected to racial harassment by a fellow employee, Mr Pearson, during his employment. Allay (UK) Ltd undertook an investigation which determined that Mr Pearson had made racist comments on a regular basis, which he characterised as “racial banter”.
Mr Gehlen subsequently brought claims in the employment tribunal for direct race discrimination and harassment related to race.
The Employment Tribunal (ET) Decision
The Tribunal rejected Allay’s defence and upheld Mr Gehlen’s complaint of racial harassment, noting in particular that Allay’s equality and diversity training had become ‘stale’ and ‘ineffective’ and the fact that Allay’s managers lacked sufficient knowledge and confidence in responding to or reporting the harassment they had witnessed. Allay appealed the decision.
The Employment Appeal Tribunal (EAT) Decision
The Employment Appeal Tribunal (EAT) upheld the decision of the Employment Tribunal and rejected Allay’s ‘all reasonable steps defence’ to the claim of racial harassment. The EAT held that the Tribunal was entitled to conclude that the training Allay had provided to its staff, including Mr Pearson and the managers who failed to report the issue to HR, had become stale and required refreshing.
A Stark Warning for Employers
This case demonstrates the high threshold that needs to be satisfied in order to rely upon an ‘all reasonable steps’ defence and should act as a warning to employers that they can’t simply rely on internal equality and diversity and bullying and harassment policies to avoid costly Employment Tribunal claims.
HR policies and training requirements should be reviewed regularly and training in support of certain HR polices, like equality & diversity and bullying and harassment policies, should be mandatory for all staff and refresher training should be provided at regular intervals and at least annually.
A Cost-Effective Training Solution for Employers
Employees are increasingly aware of their rights and the rules for employers which combined with the ever-growing complexity of legislation makes it increasingly risky and challenging for employers to be compliant. The cost of getting it wrong can be high, regardless of the size of your business, but can be easily avoided
With our extensive range of fully accredited e-Learning courses, including courses on equality, diversity and discrimination as well as anti-harassment, Employment Law Services (ELS) LTD provides employers with a cost-effective training solution to ensure legal compliance and the duty of care to its employees.
With full administrative audit trail and automatic certification, our essential e-Learning courses allow your team to undertake learning at their own pace and enable you to track progress and completion.
There is currently no legislation that allows employers outside of the regulated care home sector in England to impose mandatory vaccination without an employee’s express consent. We explore the risks of a no jab, no job approach.
We previously looked at the different approaches being adopted by governments across the UK in relation to mandatory vaccines and vaccine passports and the potential implications this might have for employers and individuals. In this article we look at the risks of adopting a no jab, no job approach and explore the various challenges and implications for employers.
The Law on Mandatory Vaccinations
Care Quality Commission (CQC) regulated Care Workers in England will be required to be fully vaccinated from 11 November 2021 subject to limited exceptions:
Workers who should not be vaccinated for clinical reasons (regulation 5(b)(ii)).
Those providing emergency assistance (regulation 5(c)).
Those providing urgent maintenance in the care home (regulation 5(d)).
Members of the emergency services attending the care home in the execution of their duties (regulation 5(e)).
Those under the age of 18 (regulation 5(i)).
Those providing spiritual support for a resident following a bereavement (regulation 5(h)).
However, outside of the regulated care home sector in England, there is currently no legislative power for the UK government, or any of the devolved administrations, to mandate COVID-19 vaccinations across the board.
What Recognised Authorities Say
The official guidance from ACAS is that employers cannot force employees to be vaccinated and should instead support staff in getting the vaccine by encouraging them to do so by, for example, offering paid time off to attend vaccination appointments.
The CIPD’s position is that employers can’t force staff to have the vaccine, but they should encourage them to.
In April 2021, the EHRC warned that blanket mandatory vaccination policies, applied inflexibly, are “likely to be unlawful” due to vaccination not being suitable for everyone as well as the discrimination risks. There may be scope to argue that a vaccination requirement is an unnecessary invasion of an individual’s Article 8 right to privacy, particularly when there are other, less invasive ways to minimise the risk of transmission in the workplace. Employees who reject vaccination because of their religion or belief may also be able to rely on Article 9 (freedom of thought, conscience, and religion).
In its Universal Declaration on Bioethics and Human Rights, UNESCO requires “free and informed” consent to any medical intervention.
Mandatory COVID-19 Vaccine: Key Considerations for Employers
Employers outside of the regulated care home sector in England that are considering imposing a mandatory vaccination requirement, or treating employees or job applicants differently because of their vaccination status, should carefully consider the following:
Vaccination is not suitable for everyone.
Requiring an employee to be vaccinated without their consent as a condition to providing work could amount to a repudiatory breach of contract, entitling them to claim constructive dismissal.
A mandatory vaccination requirement could indirectly discriminate against employees with certain protected characteristics and breach Article 8 and 9 of the ECHR.
Currently, private vaccination is not available. Individuals must wait their turn, in order of priority, to be offered vaccination. Allowing only vaccinated employees to return to the workplace could potentially lead to indirect or direct age discrimination claims by younger employees, although both direct and indirect age discrimination can be justified.
Employers may find it difficult to justify a mandatory vaccination requirement on health and safety grounds. Although vaccination reduces the chance of the vaccinated individual contracting COVID-19, the extent to which vaccination reduces transmission is still under review and it is unknown how long the protection offered by vaccination will last. The current advice is clear that vaccination is not a substitute for workplace COVID-secure measures.
Imposing a mandatory vaccination requirement could result in negative publicity for the employer which could have a detrimental impact on business profitability, employee retention and recruitment.
There is a very small risk that vaccination could have long-term, adverse side effects for some individuals, which may concern a cautious employer. An employee who was compelled to receive the vaccine and who suffers an adverse reaction may attempt to bring personal injury proceedings against the employer.
Consultation with workplace and health and safety representatives, and with trade unions, is likely to be required.
The data protection implications of requiring employees to provide information on their vaccination status, verifying its accuracy and retaining that data.
Employers wishing to impose a mandatory vaccination requirement must:
Undertake a detailed risk assessment to evidence why COVID-19 vaccination is required in addition to compliance with the stringent COVID-secure guidelines already in place.
Consult with workplace representatives or trade unions.
Regularly review the vaccination requirement as the current mass vaccination programme progresses.
Mandatory COVID-19 Vaccinations: Implications for Employers
A mandatory vaccination requirement for employees or job applicants is likely to amount to a provision, criterion, or practice (PCP) that puts individuals with a protected characteristic at a particular disadvantage compared with others who do not share that protected characteristic, contrary to section 19 of the Equality Act 2010 (EqA 2010).
An employer’s actions in requiring vaccination of a particular employee, or in treating them less favourably because they are unvaccinated, could directly discriminate against them contrary to section 13 of the EqA 2020.
It is unclear whether asking a candidate their vaccination status could be a prohibited health question in some circumstances under section 60 of the EqA 2010.
No Jab, No Job, No Defence
Despite there being no legislative power to mandate COVID-19 vaccinations for non-CQC regulated workers in England, an increasing number of employers across the UK operating outside of the regulated care home sector are considering mandating vaccines for employees working at their premises regardless of whether they are required to interact with the public or not and many have already introduced mandatory vaccines, citing their obligations under the Health and Safety Work etc Act 1974, which requires employers to ensure, so far as is reasonably practicable, the health, safety, and welfare of all their employees when at work and all members of the public who may attend their premises.
Employers imposing a ‘no jab, no job’ policy will likely rely on issuing what it believes is a “reasonable and lawful instruction” but we believe it is unlikely that it could successfully argue that it is ‘reasonable and lawful’ to require an employee to be vaccinated, not least because current advice is clear that vaccination is not a substitute for workplace COVID-secure measures and there is currently no legislation to mandate COVID-19 vaccines for frontline workers in the NHS.
Employers not confident that they can rely on a ‘reasonable and lawful instruction’ argument to impose mandatory vaccines might instead seek to amend the employment contract to introduce an express provision of the contract of employment requiring employees to be vaccinated. However, the way in which employers approach the task of changing terms and persuading employees to expressly agree to a change is highly significant. In the context of mandatory COVID vaccines, it is unlikely that an employer could rely on implied consent in circumstances where an employee refuses to sign a new contract, so employers will need to consult with employees and secure agreement to implement the change.
Proceed with Caution, Seek Advice
Imposing mandatory vaccination outside of the regulated care home sector in England without specific legislation and where there are effective and less discriminatory methods such as regular testing, home working, social distancing and providing PPE, to achieve the required business outcome is fraught with challenges and introducing disciplinary measures against employees who do not wish to take the vaccine is a high-risk approach which could give rise to claims of direct or indirect discrimination, breach of contract and unfair dismissal, including constructive dismissal.
Employers considering this approach are encouraged to carefully consider all their options and take appropriate advice.
Remedies for Employees Facing Mandatory Vaccination
Employees working outside of the regulated care home sector in England facing redeployment or losing their jobs because of their employer imposing a mandatory vaccine requirement may have legal remedies available to them, subject to the specific circumstances in their case.
Where an employer seeks to impose mandatory vaccination as a condition of continuing in employment without the express consent of the employee and where there are effective and less discriminatory methods such as regular testing, home working, social distancing and providing PPE, to achieve the required business outcome, this will be in breach of contract and the original terms of the contract will remain in place.
The employee can respond to the breach in the following ways:
Acquiesce (accept) the breach by simply carrying on working under the revised terms of employment which, in this context, would mean agreeing to get the vaccine.
Work under the new terms under protest and bring a claim for breach of contract. This is sometimes known as “standing and suing”. It should be noted that, in cases where the change imposed is substantial, the employer may be deemed to have dismissed the employee, so it is possible that an employee may also bring a claim for unfair dismissal, provided they have two or more years of continuous employment.
If the breach of contract is a fundamental breach going to the root of the contract, resign and bring a claim for constructive dismissal, again, provided they have two or more years of continuous employment.
If possible, refuse to work under the new terms.
Where the change amounts to a termination of the old employment contract and an introduction of a new employment contract, the employee can work under the new contract and claim to have been unfairly dismissed from the old one.
Employees working outside of the regulated care home sector in England facing redeployment or losing their jobs because of their employer imposing a mandatory vaccine requirement should seek advice at the earliest opportunity.
Covid-19 has created many challenges but one of the most contentious is the introduction of mandatory vaccines for Care Workers in England and vaccine passports in Scotland.
Scientists have told us that the COVD-19 vaccine is very effective at preventing serious ill health and hospitalisation but that it does not prevent somebody from contracting COVID or transmitting it. Why then has there been a push to introduce compulsory vaccinations and vaccine passports and what is the current position across the UK?
The Current Position on Mandatory Vaccines & Vaccine Passports
In England
On 22 July 2021 the UK Government passed new regulations which will amend the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (SI 2014/2936) to require workers deployed in Care Quality Commission (CQC) regulated care homes in England to be fully vaccinated unless they are exempt from 11 November 2021 and the UK Government intends to consult on whether to extend the requirement to workers in the health and social care sectors.
Apart from the new regulations requiring workers in Care Quality Commission (CQC) regulated care homes in England to be fully vaccinated, there is currently no legislative power for the UK government to mandate COVID-19 vaccination across the board and to do so would require further primary legislation.
On 13 September 2021 Health Secretary Sajid Javid confirmed that plans to introduce vaccine passports for access to nightclubs and large events in England will not go ahead.
In Scotland
On 9 September 2021 and with support from the Scottish Greens, the devolved SNP Administration in Scotland approved plans for vaccine passports for those seeking entry to nightclubs and large-scale events from 1 October 2021.
In Wales and Northern Ireland
At this time, the devolved administrations of Wales and Northern Ireland have not set out their positions in respect mandatory vaccines and/or vaccine passports.
Implications of Making COVID-19 Vaccines Compulsory
In its 2019-20 report on seasonal influenza vaccines, Public Health England’s reported that one in four healthcare workers did not get a flu vaccine and there are early indications that roughly the same proportion of people are wary of having COVID-19 jabs, a view that appears to be reflected in a recent YouGov poll which indicated that out of a total of 5,351 adults surveyed, a majority (44%) oppose compulsory vaccination compared with a minority (33%) that support it.
Despite public opinion and the fact there is currently no legislative power to mandate COVID-19 vaccination across the board in Scotland, Wales, Northern Ireland and in England (for Employers outside the care sector), many Employers across the UK are still considering making COVID-19 vaccines compulsory for those entering the workplace. However, those that choose to impose such a requirement may be exposing themselves to several issues, including:
Mandatory vaccination could be indirectly discriminatory against certain protected characteristics and a breach of Article 8 of the European Convention on Human Rights.
Vaccination is not suitable for everyone.
A vaccination requirement may be difficult to justify on health and safety grounds because the current advice is that vaccination is not a substitute for workplace COVID-secure measures which must still be complied with.
Consultation with workplace and health and safety representatives, and with trade unions, is likely to be required.
Data protection implications inclusive of requiring employees to provide information on their vaccination status, verifying its accuracy, and retaining that data.
Notwithstanding the potential legal challenges Employers might face by making COVID-19 vaccines compulsory for those entering the workplace, Employers could face division among their workers and an exodus that could leave them short staffed and unable to fill vacancies.
Vaccine hesitancy exists for many reasons. Some people can’t have the vaccine for medical reasons and will likely fall under one of the exemptions, but others may be hesitant or refuse on religious or spiritual grounds or due to a fear of vaccinations generally. Employers considering making COVID-19 vaccines compulsory for those entering the workplace should consider ALL the facts very carefully before pressing ahead.
Acas advises that employers should support staff in getting the vaccine without making it a requirement, and encourage them to do so by, for example, offering paid time off to attend vaccination appointments.
Implications of Mandatory Vaccine Passports
Although the devolved Scottish Administration are alone in introducing vaccine passports for those seeking entry to nightclubs and large-scale events, the UK Government and devolved Administrations of Wales and Northern Ireland haven’t ruled this out, so similar issues to those associated with compulsory vaccines may arise not only Scotland but across the UK.
Some might argue that vaccine passports are an iron fist in a velvet glove approach to imposing mandatory vaccines by stealth and others might argue that such a scheme denies people the freedom of choice by limiting what they can do and where they can go without a vaccine passport but whatever way you look at it, the imposition of vaccine passports will potentially give rise to the same issues mandatory vaccines creates. Other issues which vaccine passports may give rise to include:
Will staff working at nightclubs and/or venues hosting large-scale events be required to have a vaccine passport? If they aren’t vaccinated, will they be denied work?
If they are denied work, who will pay them?
If the employer denies them work and/or pay won’t that be a breach of their contract of employment giving rise to claims for breach of contract, unfair dismissal and/or discrimination?
If ticket holders at large-scale events are denied access because they don’t have a vaccine passport, will they simply lose out or will they be entitled to a refund?
Who will pay the refund, the venue or the government? If it’s the venue, will it be entitled to compensation?
Are vaccine passports and requiring individuals to provide information on their vaccination status to stewards at nightclubs and large-scale events indirectly discriminatory against certain protected characteristics and a breach of Article 8 of the European Convention on Human Rights?
Avoiding a Winter of COVID Discontent
Forcing people to do something, either directly or indirectly, will almost always invoke strong feelings and will often also involve competing rights. For example, an individual’s right to choose verses another individual’s right to be safe in the workplace and the community.
However, when it comes to compulsory vaccines for those entering the workplace and mandatory vaccine passports for those wishing to enter nightclubs and/or large-scale events, whose rights should prevail?
Across the UK uptake of the COVID-19 vaccine has been high with 89% of the over 16’s having had the first does and 80% over 16’s having had the second dose. With booster doses becoming available to the over 50s and for those in the 12 to 15 age bracket as early as next week, we will likely see a sharp increase in voluntary vaccinations across the UK in the weeks ahead that will take us to a vaccination level high enough to keep everyone safe but without the need to push compulsory vaccination and vaccine passports further.
In a commission arrangement where an employer has any form of discretion, an employee has the right for that discretion to be exercised rationally and in good faith.
Mr Sharma was employed as a Business Development Manager by Lily Communications Ltd. During his recruitment in 2019, the employer’s commission scheme was discussed. Mr Sharma was told that he would earn 15% commission on all profit. He accepted the role on this basis. From 19 March 2020 to 12 August 2020 (when his employment terminated), Mr Sharma was furloughed as a result of the COVID-19 pandemic. In response to the pandemic, his employer decided that commission for furloughed employees would be deferred and they would not receive any commission payments while on furlough (but might receive payments afterwards).
Following the termination of his employment, Mr Sharma brought claims for breach of contract and unauthorised deduction from wages in respect of unpaid commission payments. The employment tribunal found that Mr Sharma was not contractually entitled to be paid commission. However, when his employer exercised its discretion to do so, it was contractually obliged to act rationally and in good faith. The tribunal also found that there was no requirement for Mr Sharma to meet targets to be paid commission. Consequently, to the extent that his employer had withheld commission for months in which targets had been met, this was not rational. For months in which targets had not been met, withholding of commission was irrational or not in good faith given the lack of requirement to meet targets.
By contrast, the tribunal found that the decision to defer commission payments for furloughed employees was rational and in good faith, with the uncertainty arising from the pandemic perhaps being a “paradigm example” of a situation in which an employer would want to exercise its discretion regarding commission payments differently. There was no suggestion by Mr Sharma that his employer was prevented from exercising its discretion in this way. However, when his employer later chose to exercise its discretion to pay some of his commission on 31 August 2020, it was obliged to act rationally and in good faith. In the absence of any rationale or justification for not paying Mr Sharma his full commission “entitlement” at that time, it had acted irrationally.
As lockdown restrictions continues to ease across the UK, we consider the legal implications for employers on workers returning to offices and the steps they should be taking to mitigate risks.
The Easing of Lockdown Restrictions
As Coronavirus continues to impact the day-to-day operations of businesses across the UK, Prime Minister Boris Johnson has announced that most Covid restrictions will be lifted across England on 19 July.
Restrictions in other parts of the UK have also started to ease and Mainland Scotland and the Scottish Islands not already in Level 0 look set to move Level 0 from 19 July, but the Scottish administration has made clear in its latest updated framework that it will continue to promote home working where possible. It is important to note that Employment Law is reserved to the UK Government, so although the Scottish administration can give its recommendation to businesses it is extremely restricted in its ability to make financial and legal changes to support home working so it is unlikely that any compulsory changes will come into effect that mandate home working as Scotland moves into Level 0.
The details of precisely what restrictions remain in place can be found in the updated guidance published by each of the four nations:
Many employers adversely impacted by the Covid restrictions will undoubtedly be relieved that they can reopen and those who have already reopened albeit on a restricted basis will also be relieved that they can now ramp up their operations, but employers must remember that the legal position and rights of employees being required to return to work remain the unchanged.
Employers will need to manage the transition carefully and not lose sight of the fact that the Covid pandemic may have also adversely affected the lives of many of their workers in a variety of different ways, so a cautious and consultative approach with workers and unions is recommended.
The push to have workers return to their normal place of work could give rise to a variety of issues, including:
Flexible working requests
Grievances
Unfair dismissal claims
Health and safety and whistleblowing claims
Discrimination claims
The Legacy of Covid-19 Restrictions
As a result of the Covid-19 pandemic a ‘new’ normal has emerged and the harsh reality is that after over a year of working from home and other flexible working arrangements being in place many businesses have continued to function, so many workers may be resistant to returning to workplaces and reverting to the “old” way of doing things.
The key to avoiding issues is to plan well in advance and to consult with workers about these plans in order to address any questions or concerns they might have which may need to be addressed and actioned and to ensure unnecessary surprises are avoided.
The legacy of the Covid-19 pandemic and the myriad of challenges this has created for employers and workers alike is likely to be long-lasting and the benefits of having a robust and sustainable plan for the future cannot be understated.
Until 30 June 2021, the UK government will continue contributing 80% of an employee’s wages for furloughed employees, capped at £2,500, but from 1 July this contribution will reduce on a sliding scale until the scheme ends at the end of September.
For July, employers will only be able to claim 70% of wages for furloughed staff, up to a maximum of £2,187.50
For August and September, employers will only be able to claim 60% of wages for furloughed staff, up to a maximum of £1,875
This means that employers who intend to continue to rely on the furlough scheme will need to make up the difference between what they can claim and what they are required to pay furloughed employees (80% of their wages, up to a cap of £2,500 per month for the time they spend on furlough) if they want to remain eligible for the CJRS grant.
With many employers still not able to fully reopen and many still struggling to generate revenue to cover existing operating cost, this additional uplift in costs may cause them to reconsider their position.
The long-awaited exit from lockdown has been delayed, with Prime Minister Boris Johnson warning a spike in cases of the Delta (Indian) variant could lead to a surge in hospitalisations.
COVID-19 Restrictions Continue to Impact UK Businesses
On Monday 14 June 2021, Prime Minister Boris Johnson announced that the full easing of all lockdown restrictions planned for 21 June 2021 in England has been potentially delayed by a period of 4 weeks, subject to a further review in 2 weeks’ time.
The devolved administrations of Scotland, Wales and Northern Ireland had previously announced an easing of restrictions which brought them closely in line with those restrictions set out at step 3 of the roadmap in England but considering the PM’s announcement on Monday it looks increasingly unlikely that any further easing of restrictions will be announced any time soon, or at least before the end of June.
A Disjointed Four Nations Approach to Lockdown Restrictions
Since the devolved administrations of Scotland, Wales and Northern Ireland decided to break lockstep with the UK government in favour of adopting their own approach to lockdown restrictions, many have been left confused and uncertain about what is or isn’t permissible.
In England, where a four-step roadmap out of lockdown is in place, more businesses were able to reopen when England moved to step 3, but the decision to delay the full easing of lockdown restrictions and remain at step 3 will create serious implications for employers who had hoped all COVID-19 restrictions would end on 21 June 2021 as originally planned.
In Scotland, where a five-tier protection system (0-4) is in place and which can be applied separately to each local authority area, more businesses were able to reopen from 5 June 2021 when many areas moved from level 3 to level 2 and from level 2 to level 1, subject to remaining social distancing restrictions, but soft play, nightclubs and adult entertainment venues must remain closed and many businesses in the tourism, hospitality and events sectors remain adversely affected.
In Wales, where a four-level alert system is in place (1-4), some restrictions were eased from 7 June 2021 when Wales moved from level 2 to level 1. Many more businesses were able to reopen, but skating rinks, nightclubs and adult entertainment venues must remain closed.
Covid-19 Restrictions in Wales
In Northern Ireland there has also been a slight easing of restrictions and many businesses have been able to reopen, but the overriding message is that working from home where possible should remain the default position and that employers should take every step possible to facilitate home working.
The Delay on Easing Lockdown Restrictions – Implications for Employers
The Prime Minister’s announcement was in response to a notable rise in the R number across all regions of the UK and continuing concerns over the impact of the Delta (Indian) COVID-19 variant.
For those businesses with employees currently working from home, the default position across all regions of the UK is that employees who can work from home should continue to do so.
There is no change to the guidance in respect of employees who cannot work from home – in these circumstances, employees continue to be permitted to work in their usual workplaces, and the working safely during coronavirus guidance continues to apply.
The delay in any further easing of lockdown restrictions is impacting all businesses, but those in the tourism, hospitality and events sectors appear to be affected most, not least due to continuing restrictions on how many people venues can safely accommodate with social distancing measures in place.
Practical Considerations for Employers
Many employers may also need to reassess their staffing requirements and quickly decide what this means for any recent job offers and current furlough arrangements and the cost implications of extending furlough beyond 1 July 2021 will need to be carefully considered.
Although the furlough scheme was previously extended until 30 September 2021, the level of grant available to employers will be reduced from 80% (up to a max. of £2,500):
From 1 July 2021 the grant available to employers reduces to 70% (up to a max. of £2,187.50).
From 1 August it will reduce again to 60% (up to a max. of £1,875).
Can an employer withdraw offers of employment or delay start dates for new recruits in light of the COVID-19 outbreak?
The first point to consider is whether a contract of employment has been entered into with the new recruits.
If the new recruits have accepted an offer of employment without conditions, and there is therefore a binding contract of employment, then notice would need to be served in order to terminate the contract before they commence employment. If there is a binding contract in force between the parties then any change in the start date will constitute a change in contractual terms. In this case, an employer would only be able to make a change to the start date either with the express consent of the new recruits or if it has an express contractual right to do so.
How should an employer go about making redundancies?
It may not always be possible for an employer to avoid making redundancies, even where alternatives are considered first. There are five principles for employers to follow when considering redundancies as a result of the COVID-19 pandemic:
Do it openly. The sooner people understand the situation, the better for everyone.
Do it thoroughly. People need information and guidance so ensure that you have trained staff representatives in how the redundancy process works.
Do it genuinely. Listen to people’s views before making a decision, be open to alternatives from individuals and unions and always feed back to them.
Do it fairly. Any redundancy procedure should be conducted fairly and without any form of discrimination.
Do it with dignity. Consider ahead how to handle the conversation and whether it will be face-to-face or remote. The way an employer makes redundancies says a lot about the organisation’s values.
On 26 May 2021, Kemi Badenoch MP, the Minister for Equalities, made a statement outlining that the gendered impact of the pandemic has not been clear cut. In summary, the Government confirmed that more men were made redundant during the pandemic than women.
Although women were furloughed at a disproportionate rate than men, she stated that the latest employment figures indicated that more men were made redundant than women. As a response, the government is working to address both men and women with its economic support measures.
Redundancy and the Impact of COVID-19
Despite the various resources intended to support businesses and protect jobs, an increasing number of employers are finding it difficult to retain current staff levels as COVID restrictions continue to impact.
With the CJRS ending in Septmber, many employers are now looking closely at redundancies.
Correctly identifying the circumstances that give rise to redundancies is the first step to ensuring any subsequent redundancy dismissals are fair.
A recent survey from Acas has found that over a third of employers (37%) are likely to make staff redundancies in the next 3 months. The poll found that:
6 out of 10 large businesses said they were likely to make redundancies in the next 3 months
for businesses that are likely to make redundancies, over a quarter (27%) said they plan to do this remotely over video chat or a phone call
1 in 4 (24%) bosses are unaware of the law around consulting staff before making redundancies – this increases to 1 in 3 (33%) where businesses have fewer than 50 workers
Circumstances That Can Give Rise to a Redundancy Situation
There are various circumstances that can give rise to a redundancy situation, including:
Diminished need for employees to do work of a particular kind.
Changes to terms and conditions where more than 20 employees are affected, and dismissal is a possibility.
Reduction in the numbers of employees doing a particular role.
Removal of a role or group of roles.
Closure of a department, site or entire business.
Many Employers often conflate the aforementioned circumstances with other reasons when considering redundancies, but they do so at their peril. For clarity, the following reasons do not give rise to a redundancy situation:
Issues of performance, conduct.
Where an external company could do the work better or more cheaply.
The same work could be done under different terms and conditions e.g. less qualified.
Where the employee is required to do additional work, but it remains “work of the same particular kind” and they refuse to do that.
Transfers of employment.
Before considering redundancies, it’s important that employers review the situation carefully before deciding to progress with redundancies. Key points employers should consider include:
Issues that need to be addressed in a redundancy situation:
Alternative to Redundancies
Employers have a legal obligation to consider how they might avoid compulsory redundancies. Some of the alternatives they should consider include:
Short time working and/or temporary layoffs – the new Job Support Scheme is intended to facilitate this.
Voluntary redundancy.
Temporary reduction in pay or hours.
Permanent reduction in pay or hours.
Redeploying to alternative roles and providing retraining (if reasonable).
Dismissing short service employees (where no risk and T&Cs allow).
Reducing/removing benefits.
Stopping/limiting overtime.
Other considerations include:
Is there a job that would be a suitable alternative within any associated business or alternative sites?
Does ‘Bumping’ apply? This is where an employee not previously at risk is put at risk to ‘save’ other employees.
Are any affected employees pregnant?
Are any affected employees on maternity leave?
Are any senior roles affected?
Employers will need to proceed with caution if any of the above scenarios apply.
If Making Less than 20 Redundancies
Under 2 years’ service:
If under 2 years’ service, and no risk of discrimination, a shorter process can be followed if the contract/handbook allow that.
No entitlement to redundancy pay, just notice pay.
Risk of discrimination or over 2 years’ service:
A minimum of three meetings (at risk, how can we avoid, if no ideas, dismissal).
If pools of candidates, objective criteria will need to be used relating to that particular role.
Scoring needs to be fairly done.
Right of appeal.
If Making 20 or More Redundancies
Where 20 or more employees to be made redundant at one establishment within 90 days:
Need to collectively consult with appropriate representatives.
Representatives are recognised trade union or employee representatives elected through a ballot.
Must provide prescribed information via HR1 to BEIS.
Must consult for at least 30 days before the first dismissal or for 100 days if more than 100 employees.
Right of appeal.
Protective award for a failure to consult = 90 days gross pay.
Where Most Employers Go Wrong With Redundancies
Employee Consultation
To avoid the risk of being deemed not to have consulted properly, employers need to consider the consultation process carefully and ensure:
Consultation is meaningful, with a view to getting agreement, not a means to an end.
It includes those off on long term sick leave, family friendly leave, fixed term (funding).
They involve a recognised union or collective consultation body (if authorised to consult on such matters), where required.
Letters are issued at each stage and 48 hours’ notice between meetings and the right to be accompanied is made clear.
Minutes are taken at each meeting.
The Implications of Getting Redundancies Wrong
Unfair dismissal claims
Not genuine redundancy (the real reason for dismissal).
Advice on Settlement Agreements
Employment Tribunal Representation
Covid-19 Employment Claims
