Tag: Employment Law Advices for Employers

Entitlement to Extra Day Off for Queen’s Funeral Bank Holiday Explained

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Employers have just under a week to decide how they intend to manage the additional bank holiday across their organisations, but what are their options?

Extra Bank Holiday for the Queen’s State Funeral 

On Saturday 10 September 2022, King Charles III approved a Royal Proclamation declaring the day of the State Funeral of Queen Elizabeth II will be a bank holiday, the date of which has since been confirmed as Monday 19 September 2022.

The intended purpose of the bank holiday is to allow individuals, businesses and other organisations to pay their respects to Her late Majesty and commemorate Her reign, while marking the final day of the period of national mourning but with this being the second additional bank holiday this year, the first being the additional Jubilee bank holiday, employers have just under a week to decide how they intend to manage the additional bank holiday across their organisations.

What is a Bank / Public Holiday?

Bank holidays in England and Wales, Northern Ireland and Scotland are governed by the Banking and Financial Dealings Act 1971, which sets out certain fixed bank holidays, and allows the King (or in Northern Ireland, the Secretary of State) to vary those dates or proclaim additional bank holidays. For example, New Year’s Day (or the next working day) is not listed as a bank holiday in England and Wales under the 1971 Act (although it is in Scotland), but it has been a bank holiday every year by Royal Proclamation since 1974. Ad hoc bank holidays are also sometimes proclaimed for events such as royal weddings and jubilees. Where Christmas Day falls on a Saturday, an additional bank holiday is usually proclaimed on the following Tuesday. Royal Proclamations are published in the Gazette.

Good Friday and Christmas Day are not listed under the 1971 Act as bank holidays in England and Wales or Northern Ireland because they were already common law public holidays. However, they are listed as bank holidays in Scotland under the 1971 Act.

The term “public holidays” in England and Wales covers both bank holidays and the traditional common law holidays of Good Friday and Christmas Day. In Northern Ireland and Scotland, public holidays also include some additional locally declared holidays.

What Does the Law Say?

There is no specific statutory right to time off (paid or otherwise) on a bank and public holiday, provided employees receive at least 5.6 weeks paid holiday during a leave year.

Whether a worker is entitled to time off (paid or otherwise) on a bank and public holiday is a matter for the contract, or in some cases, simply the employer’s managerial prerogative. In many industries or occupations (such as retail, travel or emergency services), working on public holidays is a commercial or operational necessity.

The first thing employers should do is check the holiday clause in an employee’s contract of employment and any existing holiday policy to determine whether bank and public holidays are expressly stated.

  • If the holiday clause in the contract says that employees are entitled to 20 days or 4 weeks holiday per year plus bank and public holidays, or contains similar wording, employees will have the right to an additional day’s paid leave unless an existing holiday policy expressly states which bank and public holidays are recognised by the employer.  If the contract allows employers to require employees to work on bank and public holidays, they can require the employee to work but the extra day will need to be added to the employee’s annual holiday entitlement.
  • If the holiday clause says that employees are entitled to 20 days or 4 weeks holiday per year plus the usual bank and public holidays, employees will not automatically have the right to an additional day’s paid leave and would need to use their existing holiday entitlement if they want to take the day off, subject to the usual rules for requesting holidays.  Employers should check any existing holiday policy to determine whether ‘the usual bank and public holidays’ are expressly stated, or in the absence of a holiday policy, look at what they did for the additional Jubilee bank holiday earlier this year.
  • If the holiday clause says that employees are entitled to 28 days or 5.6 weeks’ holiday per year inclusive of bank and public holidays, employees will not have the right to an additional day’s paid leave and granting the additional bank holiday will be at the employer’s discretion.  If the employer opts not to grant the additional bank holiday, those employees wanting to take the day off will need to use their existing holiday entitlement, subject to the usual rules for requesting holidays.

Considerations for Employers

After checking existing policies and contracts, determine what your legal obligations are and communicate your position to all employees clearly and promptly, so they know whether they will be required to work or will have the day off and, if they will be off, whether this will be paid in addition to, or as part of, their existing holiday entitlement.

If you have determined that you can require employees to work on the bank holiday, remember that all schools will be closed and that this may create childcare challenges for employees who are required to work but who are unable to make childcare arrangements.

The right to time off for dependants applies to all employees, regardless of gender, age or length of service, whether they work full time or part time or whether on a permanent, temporary or fixed-term basis.  An employee who is refused permission to take time off in accordance with the right or who is subjected to a detriment for taking it (or seeking to take it) may complain to an employment tribunal. If an employee is dismissed because they took or sought to take time off in accordance with the right, they will be able to claim automatic unfair dismissal whether they have the necessary qualifying service for an ordinary unfair dismissal claim.

Remember, a failure to provide paid holiday pursuant to the Terms of a contract of employment would likely amount to a breach of contract and could give rise to a claim at the employment tribunal.

Do You Need Assistance?

The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers on their legal obligations in respect holiday entitlement and pay to ensure compliance.  If you have any queries about your legal obligations you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.

Brexit: Implications & Considerations for UK Employers

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The Brexit transition period ends on 31 December 2020 and with a UK-EU trade deal having been agreed just days ago, we look at the implications and considerations of Brexit for UK employers.

Brexit: Implications & Considerations for UK Employers

The United Kingdom officially left the EU on 31 January 2020 and the transition period, during which time the UK was treated for most purposes as if it were still an EU member state and most EU law continued to apply to the UK, ends on 31 December 2020 with a UK-EU trade deal having been agreed just days before the end of the transition period.

How Will UK Employment Law be Affected by Brexit?

It is the case that significant proportion of the UK’s employment law comes from the EU, including discrimination rights, collective consultation obligations, transfer of undertakings regulations, family leave, working time regulations and duties to agency workers. 

In fact, some EU employment laws merely incorporated protections that were already provided by UK law. For example, UK equal pay, race and disability discrimination laws preceded EU anti-discrimination obligations. Similarly, there was a UK right of return from maternity leave before EU maternity leave rights were implemented. 

EU employment law has been incorporated into UK law in a variety of ways.  Some laws are secondary legislation introduced by a government minister under powers granted by the ECA 1972.  Other laws are primary legislation (for example the Equality Act 2010 (EqA 2010)) and will remain in force until repealed. 

Most EU-derived employment legislation will remain applicable in the UK immediately after the end of the transition period but on a different constitutional basis, for an indefinite period, unless and until altered by the appropriate UK legislative body.

Employers’ Obligation to Prevent Illegal Working in a Post-Brexit UK

It has always been unlawful to employ someone who does not have the right to reside and the appropriate right to work in the UK, or someone who is working in breach of their conditions of stay.  Failure to identify those migrants who require immigration permission to live and work in the UK and to undertake the prescribed and ongoing “right to work” checks can result in severe criminal and civil penalties.

The maximum fine is £20,000 for each illegal worker (this increased from £10,000 on 16 May 2014). On 12 July 2016, the maximum prison sentence increased from two to five years and the scope of the offence extended from “knowingly” employing an illegal migrant to “has reasonable cause to believe” the person is employed illegally.

Right to Work Checks

Employers are required to conduct specified right to work checks on all prospective employees, including British citizens and EU nationals. The checks provide a statutory excuse for the employer if the employment is subsequently found to be unlawful. Employers must conduct the checks in a way that is not discriminatory.  To comply with their obligation to prevent illegal working, an Employer must:

  • Carry out “right to work” checks on all prospective employees before the employment starts.
  • Conduct follow-up checks on employees who have a time-limited permission to live and work in the UK or require a document to evidence their right as in the case of non-EEA family members of EEA or Swiss nationals, or an application pending.
  • Keep records of all the checks carried out.
  • Not employ anyone it knows or has reasonable cause to believe is an illegal worker.
  • Where the employer is also a sponsor under the points-based system, it must also comply with the sponsor management system requirements.

The most common examples of people who do not require permission to work in the UK (though may still require a visa) are:

1) British citizens. However, British Dependent Territories citizens, British nationals (overseas) and British overseas citizens do require permission to work in the UK. Employers must be careful as these passports look like British passports but may not contain the right to live and work in the UK. 

2) Those who have the right of abode in the UK (which gives the right to live and work in the UK permanently, without any immigration restrictions).

3) Those who have indefinite leave to remain in the UK (also known as “settlement” or “permanent residence”).

4) EU, European Economic Area (EEA) and Swiss nationals residing in the UK before 1 January 2021. They can apply for immigration status under the EU Settlement Scheme allowing them to remain in the UK.  Applications under the EU Settlement Scheme must be submitted by 30 June 2020.   Successful applicants will receive a letter by email confirming their settled or pre-settled status. This will not, of itself, prove an individual’s status and those granted settled or pre-settled status will be able to prove their status online (View and prove your immigration status).

5) Non-EEA family members of EEA and Swiss nationals and those with a retained or derivative right of residence who can produce a UK residence document to prove their status in the UK. Applications for settled or pre-settled status, save for in a few cases, need to be submitted by 30 June 2021.

6) Persons granted refugee status or humanitarian protection.

7) Some asylum claimants. Normally asylum claimants are not permitted to work, but some may be issued with an Application Registration Card that confirms certain employment is permitted. 

8) Some overseas students can work part-time during term time and full-time during holidays.

In addition, dependants who are successful in their application to accompany or join a migrant who has been granted permission to come to the UK for longer than six months will usually be given a general permission to work.

Unless listed above, an individual is likely to need specific immigration permission to work in the UK under the Skilled Worker route or one of the other work-related categories.

EU citizens residing in the UK before 1 January 2021 can apply for immigration status allowing them to remain in the UK under the EU Settlement Scheme. Applications must be submitted by 30 June 2021. EU citizens who have lived in the UK for a continuous period of five years or more at the date of their application will qualify for settled status, while those with fewer than five years will qualify to apply for pre-settled status (which should lead eventually to settled status).

Changes to Right to Work Checks for EU Citizens 

It is important to note that from 30 June 2021, the ‘right to work checks’ Employers must undertake will change.  Set out below are the current and future requirements.

Until 30 June 2021

Employers of EU citizens will be able to rely on the EEA passport or ID card to confirm the person’s right to work in the UK until 30 June 2021.

From 1 July 2021, employers will no longer be able to accept an EEA or Swiss passport alone as evidence of a permanent right to work in the UK for new employees. They will need to see proof of immigration status which will be either under the EU Settlement Scheme or the new immigration system.

Holders of settled and pre-settled status

Holders of settled and pre-settled status will not get a paper document to prove their right to work in the UK (except that non-EU nationals will continue to hold BRCs to facilitate their travel to the UK). Instead, their immigration status will be recorded electronically and will be accessible as soon as a decision has been made on their application. The online profile can then be used to prove their right to work in the UK to employers.

The migrant’s online profile can be accessed by entering the number of the identity document used in their application for settled or pre-settled status and their date of birth. A single-use code will then be sent to the migrant’s mobile phone number or email address that they provided in their application which they will need to enter online to access their profile. Migrant’s will not need a username or password to view their profile.

Migrants will be able to go their online profile to:

  • View their status.
  • Update their details if their contact details or identity document changes.

Support for Employers

HMRC guidance on helping businesses and individuals get ready for Brexit can be found here.
If you are an Employer and require advice and support on any employment matters arising post-Brexit and/or how to prepare, 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.

Employment Law Review – What Changed in 2020 & What to Expect in 2021

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As this remarkable year draws to an end, we look back at the various changes to UK employment law during 2020 and look forward to the changes to UK employment law we can expect in 2021.

Employment Law Review – What Changed in 2020 & What to Expect in 2021

Reflecting on the Events of 2020

On 23 March 2020, Prime Minister Boris Johnston announced unprecedented restrictions and a national lockdown across the United Kingdom to combat the rapid spread of COVID-19 (Coronavirus) and so began the most challenging nine months UK Employers have had to face since the outbreak of WW2.

it is impossible to understate just how difficult the last nine months have been due to the scourge that is the COVID-19 virus, but with COVID vaccines now underway throughout the UK, hopefully we have at last reached the beginning of the end of what has undoubtedly been a challenging year for us all.   

Employment Law Changes in 2020

Long before COVID-19 appeared on the horizon, the mechanisms to introduce various changes to UK employment legislation were already underway and amidst the chaos of the COVID crisis, several significant changes to UK employment legislation were introduced.

Starting on 23 January 2021, when the European Union (Withdrawal Agreement) Act 2020 received Royal Assent, several more changes to UK employment laws followed, including:

  • Various emergency measures were implemented as a result of the 2019 coronavirus (COVID-19) pandemic, including new rules on statutory sick pay, a relaxation of holiday carry-over rules, and a government-funded furlough scheme to prevent job losses. 
  • The National Minimum Wage (Amendment) Regulations 2020 increased the national living wage and national minimum wage rates.
  • The Social Security Benefits Up-rating Order 2020 increased statutory sick pay, maternity pay, paternity pay, adoption pay and shared parental pay rates.
  • The Employment Rights (Increase of Limits) Order 2020 (SI 2020/205) (Employment Rights Order) revised compensation limits for certain tribunal awards and other statutory payments.
  • The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 (SI 2018/1378) came into force.
  • The “Swedish derogation” in the Agency Workers Regulations 2010 (which allowed employment businesses to avoid pay parity between agency workers and direct employees if certain conditions are met) was removed by the Agency Workers (Amendment) Regulations 2019 (SI 2019/724) 
  • Temporary work agencies must provide agency work-seekers with a Key Information document, including information on the type of contract, the minimum expected rate of pay, how they will be paid and by whom under the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2019 (SI 2019/725
  • All workers were given the right to a written statement of terms under the Employment Rights (Miscellaneous Amendments) Regulations 2019 (SI 2019/731) 
  • The threshold to request an information and consultation agreement under the ICE Regulations was lowered by the Employment Rights (Miscellaneous Amendments) Regulations 2019 (SI 2019/731) (
  • All termination payments above the £30,000 threshold are now subject to class 1A NICs
  • The Parental Bereavement (Leave and Pay) Act 2018 took effect. 
  • The government issued guidance on the treatment of salaried-hours work for NMW purposes, noting that the effect of the amends to the National Minimum Wage Regulations 2015 (SI 2015/621) is to widen the range of pay arrangements that are compatible with workers being treated as performing salaried-hours work under the NMW rules.
  • Temporary work agencies must provide agency workers whose existing contracts contain a Swedish derogation provision with a written statement advising that, with effect from 6 April 2020, those provisions no longer apply.   

Employment Law Changes in 2021

Looking to the year ahead, it seems very likely that the COVID-19 restrictions will continue to impact us for several more months to come, but notwithstanding the impact this will continue to have, there are also a number of legislative and employment case law developments that Employers should be aware of, mainly:

1 January 2021:  New UK points-based immigration system takes effect. On the 19 February 2020 the Prime Minister and Home Secretary announced that a new global points-based immigration system, applicable to all non-British and Irish nationals will apply from 1 January 2021. This will follow the end of free movement rights for EEA nationals on 31 December 2020.

4 January 2021:  Court of Appeal: Community Based Care Health Ltd v Narayan. On 4 January 2021, the Court of Appeal will consider whether a GP providing services to an NHS provider through a limited company had been correctly characterised as a worker under the Employment Rights Act 1996.

15 January 2021:  Consultation on proposed sentencing guidelines for offenders guilty of modern slavery offences closes. On 15 October 2020, the Sentencing Council launched a consultation on proposed sentencing guidelines for offenders guilty of modern slavery offences including slavery, servitude, compulsory labour and trafficking people for exploitation purposes. 

21 January 2021:  EAT: Webster and another v United States. On 21 January 2021, the EAT is set to consider whether an employment tribunal had jurisdiction to hear claims for discrimination and unfair dismissal brought by two local British civilian personnel who were employed by the US Air Force on UK RAF bases and were covered by the common law doctrine of state immunity.

1 February 2021:  HMRC to start publishing details of employers’ CJRS claims. HMRC will start publishing details of employers’ CJRS claims on GOV.UK from February 2021. The published information, relating to claim periods starting on or after 1 December 2020, will include the employer name, an indication of the value of the claim within a banded range and the company number (for companies and LLPs). 

26 February 2021:  The government’s consultation on measures to extend the ban on exclusivity clauses in employment contracts to cover those earning under the Lower Earnings Limit will close on 26 February 2021.

26 February 2021:  The government’s consultation on measures to reform post-termination non-compete clauses in employment contracts will close on 26 February 2021.

1 April 2021:  Proposed date for revision of the socio-economic duty under the EqA 2010 and final statutory guidance in Wales. On 22 November 2019, the Welsh Government published a consultation on commencing the socio-economic duty under section 1 of the Equality Act 2010 (EqA 2010). The consultation closed on 17 January 2020. The duty will enter into force on 1 April 2020, with interim guidance published at the same time. 

6 April 2021:  Extension of off-payroll working rules to private sector: commencement. As announced in the 2018 Budget, the extension of the rules to the private sector with effect from 6 April 2021 is intended to counter non-compliance with IR35. The measure shifts the compliance burden from the worker’s personal service company to the medium and large “client” organisations that they work for.

30 April 2021:  COVID-19: Coronavirus Job Retention Scheme ends. On 17 December 2020, the Chancellor announced that the Coronavirus Job Retention Scheme (CJRS) will be extended until 30 April 2021.

Summer 2021:  Report of government independent review of the Human Rights Act 1998 expected to be published. On 7 December 2020, the government announced the launch of an independent review of the Human Rights Act 1998 and whether it requires reform. This runs alongside the independent review of judicial review as part of the government’s commitment to examine the constitution and relationship between the government, Parliament and the courts.

9 November 2021:  Supreme Court: Harpur Trust v Brazel. On 9 November 2021, the Supreme Court is due to hear an appeal against the Court of Appeal’s decision that an employment tribunal was wrong to find that “part-year workers” (those working only part of the year) should have their annual leave entitlement capped at 12.07% of annualised hours.

2 & 3 June 2022:  Bank holiday: Queen’s Platinum Jubilee. On 12 November 2020, the government announced the creation of a Platinum Jubilee bank holiday on 2 and 3 June 2022, creating a four-day bank holiday weekend.

Specialists you need.  Experience you can trust.

Although our offices are currently closed for the festive period they will reopen again at 9.00am on Wednesday 6 January 2021.  If you require advice on any of the issues noted above or any other employment matter, you can still book a free consultation with one of team of specialist from 6 January 2021 here – Book a Free Consultation

In the meantime, best wishes for a Happy New Year full of health, hope and happiness!

#StaySafe #HappyNewYear #ELS

Increased Government Contributions Under Job Support Scheme Announced

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On Thursday 22 October 2020 the Chancellor announced a package of further economic measures to support businesses affected by the ongoing COVID-19 pandemic.

Increased Government Contributions Under Job Support Scheme Announced

The package announced by the Chancellor in a statement to the House of Commons includes significant changes to the short-time working Job Support Scheme (JSS), expanded grants for businesses in high-alert areas, and increased grants for the self-employed.

The announcement of increased Government contributions under the JSS comes just two weeks after an extension to the Scheme was announced and will be warmly welcomed by many employers that were facing the prospect of having to make redundancies at the end of October. 

Under the JSS, an employee will now only need to work and be paid for at least 20% of their normal hours, not 33% as originally announced. For the employee’s remaining (unworked) hours, the government will provide up to 61.67% of the employee’s normal wages, up to £1,541.75 a month (up from £697.92 as originally announced). The employer will contribute the other 5% of the unworked hours (not 33% as originally announced). These changes are being made with a view to enabling businesses to retain staff and avoid redundancies. The JSS for businesses legally required to close their premises remains unchanged. 

There has been no change to the eligibility requirement for the JSS, such that all small and medium sized businesses will be eligible. Larger businesses are only eligible if their turnover has fallen during the pandemic. Eligible employers will be able to claim under both the JSS and the Job Retention Bonus (for employees who have previously been furloughed).

The government will also increase the amounts available under the next tranche of the Self Employment Income Support Scheme (SEISS). For those currently eligible for SEISS and who continue to actively trade but face reduced demand, the initial taxable grant will now be worth 40% of average monthly trading profits, up to a total of £3,750, covering the period from November 2020 to January 2021. The level of the second grant covering February to April 2021 will be set at a later date.

In England, business grants of up to £2,100 a month will be made available for businesses in the hospitality, accommodation and leisure sectors which have not been required to close but are impacted by restrictions in high-alert areas. These grants will be available retrospectively for areas which have already been subject to restrictions. The grants will be administered and distributed by local authorities, who will determine which businesses are eligible for funding.  

In Scotland, the First Minister announced that the current temporary restriction will remain in place until 2 November 2020, by which time they will have published details of their 5 tier COVID restrictions alert system.  In the meantime, funding for business grants over this period will be increased proportionately.  The COVID-19 Restrictions Fund will now provide one-off grants of up to £4,310 to businesses required to close by the regulations in Scotland and for businesses that remain open but are directly impacted by the restrictions, the maximum hardship fund grant will increase to £2,155.  In addition, grants of £1,650 will help those businesses that are required to close to meet the 20% employer’s contribution they are required to pay under the UK Government’s CJRS.  

However, these one-off grants in Scotland are for the period until 2 November 2020 and the Scottish administration has yet to clarify and/or confirm whether it intends to mirror the monthly grant scheme introduced in England.

We will be updating our FREE COVID-19 Guidance for Employers and comprehensive FAQs document in the coming days to help employers understand the key elements of the new JSS to assist them in planning what to do when the furlough scheme comes to an end on 31 October 2020.

In the meantime, if you require any advice or support with introducing short time working via the Job Support Scheme, redundancies or any other employment matter, please contact our team of employment law specialists to get clear and purposeful advice.

Book your FREE Consultation Now or call us on 0800 612 4772 to speak to a specialist today.

Coronavirus & an Employer’s Duty of Care | Key Questions for Employers Answered

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All Employers have a duty of care to their employees but the Coronavirus outbreak has created a variety of challenges for Employers and a degree of uncertainty about how far that duty of care extends. This article focuses on Employer’s Duty of Care.

If you are an employer affected by any of the issues being created by the outbreak of Coronavirus and require further assistance and support, call us now on 0800 612 4772 or Contact us via our website. 

Employer’s duty of care

What should an employer do where an employee who is at work starts displaying symptoms?

The government guidance from Public Health England and BEIS and the Acas guidance (see Government and Acas guidance), advise that if the employee has not been to one of the high-risk specified areas in the last 14 days, then normal practice should continue. However, if the employee has travelled to one of the affected countries in the last 14 days, they should be removed to an area which is at least two metres away from other people. If possible, this should be a room or area where they can be isolated behind a closed door, such as a staff office. A window should be opened, if possible, for ventilation.

The guidance advises that the affected employee should call NHS 111 from their mobile, or 999 should be called if it is an emergency (if the employee is seriously ill or injured or their life is at risk) and explain which country they have returned from in the last 14 days and outline their current symptoms.

While the employee waits for advice from NHS 111 or an ambulance to arrive, they should remain at least two metres away from other people. They should avoid touching people, surfaces and objects and be advised to cover their mouth and nose with a disposable tissue when they cough or sneeze and put the tissue in a bag or pocket then throw the tissue in the bin. If they do not have any tissues available, they should cough and sneeze into the crook of their elbow.

If the employee needs to go to the bathroom while waiting for medical assistance, they should use a separate bathroom if available.

Both the government guidance and the Acas guidance are updated frequently and employers would be advised to check the online versions for the latest advice. The Welsh Government and Health Protection Scotland have also issued guidance on this issue.

At what point should an employer close the workplace?

The Acas guidance advises that if someone with COVID-19 comes into a workplace, the workplace does not necessarily have to close.

In England, the local Public Health England health protection team (HPT) will get in contact with the employer to:

  • Discuss the case.
  • Identify people who have been in contact with the affected person.
  • Carry out a risk assessment.
  • Advise on any actions or precautions to take.

A risk assessment of each setting will be undertaken by the HPT with the lead responsible person. Advice on the management of staff and members of the public will be based on this assessment.

The HPT will also be in contact with the case directly to advise on isolation and identifying other contacts and will be in touch with any contacts of the case to provide them with appropriate advice.

Advice on cleaning of communal areas such as offices or toilets will also be given by the HPT.

The process may be slightly different in Scotland and Wales (see Government guidance below for links to the relevant guidance). 

Can employers lawfully conduct temperature checks on employees, workers or visitors?

Consent

An employer cannot require an employee, worker or visitor to their premises to undergo a medical examination without their consent. This would include taking temperatures. To proceed without consent could potentially be a repudiatory breach of contract in respect of employees, entitling them to claim constructive dismissal, and assault in relation to any individual.

However, on a practical level, if the nature of the employer’s business is such that it considers it would need to temporarily close or send employees and workers home during a pandemic unless it undertook such health checks, consent may not be an issue in the majority of cases. On a personal level, employees and workers may be reassured that the employer is taking steps to protect their health in the workplace, as long as testing is carried out on all staff and visitors without exceptions, and appropriate hygiene safeguards are in place.

Data protection

Obtaining health information about an individual is special category personal data and an employer (or data controller) can only process such data on certain grounds under the GDPR.

One of the permitted grounds for processing special category data is for health purposes.  As it says in these sections, the health exemption enables occupational health professionals to process data relating to health where processing is necessary for the purposes of preventative or occupational medicine, for the assessment of the working capacity of the employee, medical diagnosis or management and treatment. This exception will only apply to occupational health professionals who are subject to confidentiality obligations, such as those issued by the General Medical Council regulating the conduct of medical practitioners.

This may mean that provided an employer uses an occupational health professional to conduct the temperature checks and obtains explicit consent, it may be possible to conduct these temperature checks lawfully. However, at present we are not aware of any authority on this point. A generic form of consent in employment contracts relating to health checks is unlikely to be sufficient for data protection purposes.

Health and safety

An employer has health and safety obligations towards its employees.  It may be arguable that carrying out temperature checks may be part of a series of measures which assists employers to protect the health and safety of their employees in a pandemic. However, in relation to the COVID-19 pandemic, taking temperatures is not a measure currently recommended by the government or the World Health Organisation.  An employer should first focus on ensuring that the advice recommended by those sources is followed. The guidance is however being continually updated so it is necessary to regularly check for the latest developments.

Potential discrimination issues

If an employer decides to carry out any form of medical testing on employees, workers or visitors during a pandemic, it should ensure that it is applied consistently to all. Only testing certain groups who are perceived to be at a higher risk of having contracted a virus could potentially lead to discrimination claims.

Government Guidance

The COVID-19 pandemic is continually changing and the government advice for employers is being updated as the situation develops. Employers should keep track of the guidance for employers from the following sources:

For information on the circumstances in which individuals should self-isolate see the following sources:

Valentines Day: 5 potential problems with workplace romances

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When a romance has been formed in the workplace, it can be difficult for the employer to put an end to it. The Human Rights Act 1998 states that everyone has the right to respect for their private and family life subject to a few limited exceptions.

We have looked at 5 potential problems that could arise from workplace romances and how to prevent these problems from occurring in the first place.

Policies on workplace romances

Employers should take a proactive approach towards office romances by having a policy that sets out guidelines for workplace dating – before problems occur. These policies should be clearly communicated to all members of staff.

Most employers will be ok with two colleagues having a relationship as long as this does not affect their work responsibilities. However, it is important to note that relationships between two parties where one has managerial authority over the other is likely to be frowned upon.

Conduct in the workplace

This policy should be used to define what conduct will be viewed as appropriate/inappropriate and what will result in disciplinary action.

A ban could be included within this policy on “intimate behaviour” during working hours. For example, kissing, holding hands etc.

One rule for all

As with all workplace policies, the rules should be applied consistently throughout the workforce, including senior members of staff. Rules set out in the policy should be applied to whatever the couples protected characteristics may be under the Equality Act 2010. For example, rules should not be more enforced to a same sex couple than they are to a heterosexual couple. This would be a clear case of sexual orientation discrimination.

When the relationship turns sour

In the event that two colleagues break up, employers may feel it would be appropriate to have a rule within its policy that requires employees in a personal relationship to inform their line manager if the relationship status changes. For example, if the two parties break up.

This would provide employers and managers with a good opportunity to address potential problems early on and remind employees of the behaviour that will be expected of them.

Workplace dating: romantic gesture or sexual harassment?

Employees with romantic feelings towards a colleague may wonder if asking them out would be viewed as sexual harassment?

As with many employment law questions, the answer is “it depends.”

The Employment Tribunal when deciding a sexual harassment complaint will always look at the context of the case.

For example, an employee asks out a colleague – the colleague declines – the employee accepts this rejection and does not push any further. A sexual harassment allegation in this case would probably not stick.

However, an employee could have a valid claim for sexual harassment if the colleague persisted after the employee made their feelings clear.

How can EmployEasily Legal Services help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

Performance management guidance for employers

Posted on by @deliver_els

Performance management is the process that employers use to maintain and improve the performance of their workforce so that organisational objectives are met.

Most performance management procedures will involve:

  • Employees being set performance targets
  • Performance meetings between managers and employees to discuss performance
  • Evaluating employees against their performance measures
  • Records of performance being taken

Why is performance management important?

Managing employee performance is critical to an organisation’s success. If the performance is not monitored then there are no standards, if there are no standards, employees will feel less inclined to perform to the best of their ability.

Further, it is an essential element of employment when getting things done. It gives employees and management structure that will help an organisation:

  • Motivate employees
  • Monitor employees and ensure that they are making valuable contributions towards the companies’ goals
  • Recognise and acknowledge the good work of employees
  • Detect and improve poor performance

How to get performance management right

  • Identify clear objectives
  • Think about what suits your organisation best
  • Be transparent about the full process
  • Consistently engage and consult with employees
  • Get senior managers on board

How can EmployEasily Legal Services help?

At Employment Law Services (ELS) we can offer training courses and e-learning on performance management for you and your team. We can also support through any individual issues that you may encounter.

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

How Employment Law Services (ELS) Help SMEs to Prevent Problems & Protect Their Business

Posted on by @deliver_els
https://youtu.be/2laGL4dOsLw

A short video about the services Employment Law Services (ELS) LTD provide to SMEs throughout the UK. Thanks for sparing 2 mins to watch it!

If you’d like more information about how we can help you and your business, Contact Us via our website and one of our team will be in touch or alternatively you can call us on 0800 612 4772.

Is failing a drug test a reason for an automatic dismissal?

Posted on by @deliver_els

A recent decision made by the Employment Tribunal has highlighted the importance of not treating a positive drug test result as a reason for automatic dismissal.

In the case of Ball v First Essex Buses Ltd, Mr Ball was employed as a bus driver and had over 20 years’ service with his employers. Part of his employment involved a routine drug test, in which the employee was expected to provide a saliva sample. To the employee’s surprise, the drug test came back and had tested positive for cocaine. Because of this, his employers suspended him and advised him he would be required to attend a fact-finding meeting.

At this meeting the employee argued that he had not taken any drugs apart from medication prescribed by his GP and that he had arranged to have a hair follicle test to prove this. This test then came back negative.

At the disciplinary hearing, Mr Ball was informed that his employer would only consider the saliva test results and not the independent hair follicle test results as they had not been carried out by one of the companies approved testers.

It was concluded that he failed the random drug test and his employment should be terminated with immediate effect. The employee appealed but remained dismissed.

Employment Tribunal considerations

When determining whether a dismissal is fair or unfair, the Employment Tribunal will assess whether the employer acted reasonably or unreasonably. In which they will look at the procedure the employer followed: Did the employer carry out a proper investigation? Was the employee given the opportunity to take a colleague into the meeting and were they given the opportunity to appeal the decision? They will then look to see whether the reason for dismissal fell within the band of reasonable responses.

In Bell v First Essex Buses Ltd, the Employment Tribunal held that: “Given the random nature of the test; the contra-indicators of the claimants good character, age (he was 60 years old), health, etc; the possibility of cross-contamination; the possibility of mislabelling the sample; the two negative hair follicle tests; and the claimants offer to retake any drug tests, the respondents decision to dismiss was therefore outside the band of reasonable responses.”

Important points that were noted included:

  • The employer had not stated in his disciplinary procedure that failing a random drug test would be viewed as gross misconduct;
  • The investigatory officer did not give the employee the chance to dispute the drug test in line with their alcohol and drug procedure;
  • The dismissing and appeal officer refused to take into consideration all other justifications for the employee having failed the drug test.

On these grounds the dismissal was held as procedurally and substantially unfair.

Comment

Employers should be cautious when treating drug test results as black and white. In this situation Mr Bell’s employer failed to recognise the independent evidence presented by the employee. To reduce the risk of a claim, it is important that employers are not closed-minded and look at all the facts of the case before coming to any harsh decisions. In this situation the employee had an exemplary record and it could be argued his employers were too harsh when applying their drug and alcohol policy.

How can EmployEasily Legal Services help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662. 0000

All I want for Christmas is…. A stress-free payroll!

Posted on by @deliver_els

Christmas and New Year can be the most expensive time of the year for most people. If you employ people, the festive period can bring a number of problems that you will need to be aware of before you can wind down for you break.

In this blog we will detail some of the most common employer Christmas payroll issues and how to avoid them.

December Pay Date

The December pay date can be awkward, paying your employees a few weeks earlier means a longer month in January.  

Generally, most employees will get paid the last working day of each month, however, if your organisations pay date falls before Christmas, your employees should be paid as normal. Failure to do so exposes your business to potential claims of breach of contract.

At Employment Law Services (ELS), we are often asked at this time of year: “Do we have to bring our employees pay dates forward in December?”

The short answer to this is, no. Employers are not legally obliged to bring their employees pay dates forward for December unless it says so in the contract of employment.

Christmas Bonuses and Gifts

Many employers choose to hand out Christmas bonuses and gifts to their employees to thank them for another successful year in business. On paper, this may look like a straightforward matter, however, for your payroll team it can be a huge challenge.

Employers should set out the difference between cash gifts and physical gifts and then consider whether the employee can sell this gift on for cash or whether the employee in receipt of the gift is a named director of the company and how much money they earn.

This can be a fairly complex matter and therefore, it is important that your payroll team are clear on both definitions.

Employers should note, that they do not have to pay a bonus to employees at all unless it states otherwise in the contract of employment.

Christmas Working Hours

There are no legal requirements around festive working hours and while a lot of employers choose to close the business for the full 2 weeks, others may choose to have their employees work in between. In this event, employers should ensure they have made the appropriate arrangements with pay roll so that these employees are paid the correct salary and on time.   

How can EmployEasily Legal Services help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662. �

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