Latest Working From Home Guidance For UK Employers

In response to the COVID-19 Omicron variant and identification of several cases of the variant across the UK, the UK Government and devolved Administrations have revised their guidance and have advised people to be cautious and do everything they can to minimise the risk of spreading infection.

COVID-19 Emergency Toolkit

Following the latest announcements on the government’s response to COVID-19 in the UK, we have updated our Coronavirus (COVID-19) Support page with the latest information and links to the government guidance.

Click here to get the latest working from home guidance for UK Employers

The situation with the OMICRON variant remains uncertain, so keep following us for updates.

Another Milestone for ELS

This week marks our anniversary of completing 13 fantastic years in business and we would like to mark the occasion by thanking all those who have helped contribute to our success!

To our all our clients, you are the reason why we are celebrating this special day in our company. Without you we would not be where we are today! We truly value your support and trust a look forward to continuing to support you in the coming year and beyond.

To our amazing team, we always appreciate your dedication and hard work.  The journey has not been easy, especially over these last 18 months but the company has reached this far all because of you. Congratulations on being part of this success.

Happy Anniversary to Us!!

Scottish First Minister Imposes New Legal Obligations on Scottish Employers

Speaking in the Scottish Parliament this afternoon, 14 December 2021, the First Minister confirmed various steps being taken by the devolved Scottish Administration to mitigate the risk posed by the Omicron variant of COVID-19, including new legal obligations for Scottish employers.

The accelerated roll out of the COVID-19 Booster Vaccine was the primary message and guidance on rapid flow testing before visiting family and friends, the need to self-isolate regardless of vaccine status and reducing household contacts and external socialising, but in addition to this advisory guidance the FM also confirmed new legal obligations will be imposed on all Scottish Employers.

New Legal Obligations for Scottish Employers

Whereas the guidance notified to the public perviously had been strictly advisory, today’s announcement confirmed that two new legal obligations were being imposed on Scottish Employers, namely:

  • Employers will now have a legal obligation to introduce home working, wherever possible to reduce mixing in workplaces.
  • Employers will now have a legal obligation to implement protective measures that are reasonable and practicable to protect their workers from the risks posed by the transmission of the OMICRON variant of COVID-19.

Today’s announcement failed to confirm when these new legal obligations will come into force and we will provide further details once the Scottish Administration clarifies its position.

Considerations for Employers Choosing to Keep Workplaces Open

Employers choosing to remain open must consider carefully their obligations and should continue to follow any sector specific guidance and where there is no sector specific guidance, they should ensure that as a minimum they take the following steps:

  • Continue to assess the risks to yourself, your employees, your suppliers and your customers.  If you employ 5 or more employees, this must be recorded in writing and if you employ 50 or more employees, you must publish your risk assessment.
  • Ensure you have in place all required infection and control measures, which could include.
  • Cleaning more often. Increasing how often surfaces are cleaned, especially those that are being touched a lot. Asking staff to use hand sanitiser and wash their hands frequently.
  • Asking customers/visitors to the workplace to wear face coverings.
  • Making sure everyone is social distancing. Make it easy for everyone to do so by putting up signs or introducing a one-way system that staff/visitors can follow.
  • Increasing ventilation by keeping doors and windows open where possible and running ventilation systems at all times.
  • Turning people with coronavirus symptoms away. If a staff member (or someone in their household) or a customer/visitor to the office has a persistent cough, a high temperature or has lost their sense of taste or smell, they should be self-isolating.

Employers should be prepared to be flexible given the likelihood that the OMICRON variant will remain a risk for the foreseeable future and a resurgence in infections may result in further lockdown restrictions.  It is important also to remember that staff may have legitimate reasons for not wanting to remain at work, such as:

  • being or living with a “clinically extremely vulnerable’ or ‘clinically vulnerable’ person.
  • having childcare issues if children are sent home from school or nurseries or being unable to rely on normal childcare arrangements.
  • feeling extremely anxious about the risk posed by COVID-19 and fearful about remaining in the office.
  • expressing concerns relating to health & safety and what they perceive to be the employer’s failure to follow government guidance and/or implement appropriate measures and controls.

Employers will need to carefully consider feedback from staff, be prepared to be flexible and act reasonably when responding to staff feedback so as to avoid the risk of possible claims at the Employment Tribunal.

Support for Employers

The COVID-19 lockdown restrictions continue to present numerous and complex challenges for Employers.

If you are an Employer and require advice and support on any employment matters, COVID related or otherwise, call us now on 0800 612 4772 or Contact us via our website and we will set out clear guidance to assist you to comply with your legal obligations.

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Christmas Chaos for UK Employers Again This Year

The recent emergence of the ‘OMICRON’ variant of COVID-19 and conflicting and ambiguous messages from politicians has done nothing but create confusion and frustration and is causing Christmas chaos for UK employers again this year!

Don’t Let This Christmas End in Tiers

This latest increase in restrictions and advice has come after the emergence of a new COVID variant from South Africa, the OMICRON variant, even though many reports from South Africa have suggested that this latest variant, whilst more transmissible, is far less virulent than the DELTA variant and they look likely to remain in place throughout the festive period and into the New Year, so what does this all mean for UK employers?

New Restrictions and Advice

A massive push of the booster vaccine is currently underway, and everyone is being strongly encouraged to ensure they are fully vaccinated to reduce the risk of contracting and transmitting COVID and the likelihood of becoming seriously ill and requiring hospitalisation.

Various compulsory restrictions have also been reintroduced in England, including compulsory wearing of face masks in various public places and vaccine passports, both of which were already compulsory in other parts of the UK, and the UK Government and devolved administrations have also advised that staff should work from home wherever possible, and that staff Christmas parties should either be scaled back, postponed, or cancelled all together, which will potentially have a significant and adverse impact on thousands of businesses, particularly those in the hospitality sector.

Advice is NOT Law

It is important to note that the latest advice on homeworking is guidance, it is not law.  This means it will not be an offence to continue to work from the office even if that work could have been carried out from home.  Employers can therefore decide whether to follow the work from home advice, or not, but in doing so they should carefully consider their underlying health and safety obligations to provide a safe working environment for all staff.  In light of the emergence of the OMICRON It would be prudent to revisit COVID-19 Risk Assessments to determine whether any changes to existing controls and measures might be required.

Party or No Party?

Battling the pandemic over the last 18+ months may have you feeling worn out and not particularly festive, but before you decide to write off Christmas and/or the annual staff Christmas Party this year, try to remember that Christmas is as much a feeling as it is a holiday.  Christmas represents the birth of a new beginning and hope. We celebrate it by giving the light of love to those that need it most and we remember the importance of being good to one another, brightening each other’s lives and spreading joy, happiness and peace.

If you decide to go ahead and gather for your annual Christmas party, you should include your Christmas Party plans into your COVID Risk Assessment to ensure that you continue to have the necessary controls and measures in place to have a safe and enjoyable event.

If, however, you decide not to go gather physically to celebrate, why not have a Virtual Christmas Party instead?

Some of the benefits of organising a virtual Christmas Party for your staff include:

  • Bringing your team together, no matter where they are
  • Maintaining good workplace well-being
  • Boosting employee engagement
  • Combating loneliness at work and/or at home
  • Improving team morale

Sure, planning any sort of a Christmas Party this year will be a challenge, but with a little bit of effort and creativity there’s no reason why it can’t be done and in making the effort you will be helping yourself and your team to let go of all the stress of the last 18+ months and to step into a brighter and happier place.

There is a plethora of ideas for celebrating Christmas with your team, in person or virtually, whether it’s escape rooms, cocktail masterclasses, a games night or a pub quiz, and Employers can easily and cost-effectively bring their teams together this Christmas to celebrate, have fun and create memories that everyone will look back on in years to come whatever they decide.

Avoid an HR Hangover

If you take the leap and do decide to hold a Christmas Party, even a virtual one, it will still be a ‘work’ event, so here are Employment Law Services (ELS)’ “’Top Tips” to help Employers avoid an HR hangover:

  • Ensure all employees are aware of the company’s standard disciplinary and grievance procedures.
  • If staff are expected to work the day after the Christmas party, make sure this has been clearly communicated to them beforehand.
  • At the party, ensure all employees are catered for regardless of their age, sex, sexual orientation, religion or disability.

Don’t Let This Christmas End in Tiers

Yes, the COVID-19 pandemic has been a nightmare and 2021 has been another hellish year for us all, but for the sake of your own mental health and that of your team, don’t let COVID be the grinch that stole Christmas!

Merry Christmas and Happy New Year!

COVID Passes Become Compulsory in Wales

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.

Find out more about The Risks of a No Jab, No Job Approach

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

Consultation on Flexible Working Announced

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.

All Reasonable Steps Defence in Discrimination Claims – A Stark Warning for Employers

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.

Employment Law - What Do You Know About It?

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.

Check Out Our e-Learning Courses

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The Risks of a No Jab, No Job Approach

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.

Mandatory Vaccines & Vaccine Passports: A Winter of COVID Discontent?

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.

COVID Vaccine

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.

Employee entitled to full commission that had been deferred during furlough (ET)

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.

Case: Sharma v Lily Communications Ltd ET/1900437/21 (25 March 2021) (Employment Judge Davies).