On 6 January 2022 changes to the mandatory vaccination requirement that currently applies to care home workers in England under the Health and Social Care Act 2008 were implemented.
The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2022 (SI 2022/15) were made on 6 January 2022 and implement changes to the mandatory vaccination requirement that currently applies to care home workers in England under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (2014/2936) (the 2014 Regulations).
The following changes were made on 7 January 2022 under regulation 3:
Individuals who have not previously been employed or engaged in the care home can be deployed if they have received a single dose at least 21 days before starting work. They must then obtain a second dose within 10 weeks of the first.
There is now an exemption for those taking part in clinical trials.
On 1 April 2022, further amendments under regulation 4 will extend the mandatory vaccination requirement to those working in “any other regulated activity” outside a care home. Regulated activities are listed in Schedule 1 of the 2014 Regulations, and include nursing and personal care, and most forms of health care including medical treatment, surgery, diagnostic services, ambulance services, midwifery and dentistry among other things. The vaccination requirement will not apply where the person is under 18, is clinically exempt, has no face-to-face contact with service users, or where the regulated activity is part of a “shared lives agreement”. Similar exemptions will apply in relation to clinical trials and new employees who have only received one dose of vaccine.
Regulation 4 also makes provision for individuals who have received a course of certain COVID-19 vaccines not authorised for use in the UK.
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.
After losing it’s lengthy Supreme Court battle just less than one month ago, Uber have announced it will give its 70,000 UK drivers a guaranteed minimum wage, holiday pay and pensions.
Last month we confirmed Uber’s lengthy legal battle to overturn the 2016 Employment Tribunal (ET) decision had finally came to an end when the Supreme Court unanimously ruled against them and concluded drivers should be classed as workers, not independent third-party contractors – https://employmentlawservices.com/uber-loses-landmark-supreme-court-battle-over-workers-rights/
In the weeks following the Supreme Court’s ruling, Uber have carefully considered their position and announced yesterday that it will give its 70,000 UK drivers guaranteed minimum wage, holiday pay and pensions. The taxi company confirmed that all drivers can expect to earn at least the National Living Wage for over-25s, irrespective of age, after accepting a trip request and after expenses, that they will be entitled to paid holiday based on 12.07% of their earnings, which will be paid on a fortnightly basis, that they will also be enrolled into a pension plan automatically, with contributions from Uber, that they will continue to receive free insurance in case of sickness or injury as well as parental payments, which have been in place for all drivers since 2018 and retain the freedom to choose if, when and where they drive.
It will be interesting to see if Uber will extend this decision to its food delivery business, Uber Eats, which remains unaffected by this decision.
The Supreme Court ruling in this case was always going to have far-reaching implications for millions of people working in the gig economy and the companies that employee them, but only time will tell whether other employers operating in the gig economy will follow Uber’s lead.
Uber has lost its battle in the Supreme Court over drivers’ rights – a decision that could have far-reaching implications for millions of people working in the gig economy.
Back in November 2017 we reported that the Employment Appeal Tribunal (EAT) rejected taxi firm Uber’s attempt to overturn the 2016 Employment Tribunal (ET) ruling that two drivers who were employed as gig-economy contractors by Uber should have been classed as ‘workers’ under the Employment Rights Act 1996, not as self-employed. At the time, Uber made it clear that they intended to appeal and after failing to overturn the EAT’s decision at the Court of Appeal, the case was heard by the Supreme Court on 21 and 22 July 2020.
Supreme Court Judgement in the Uber Case
On 19 February 2021, Uber’s lengthy legal battle to overturn the 2016 Employment Tribunal (ET) decision finally came to an end when the Supreme Court issued its Judgement. The UK’s highest court unanimously ruled against Uber and concluded drivers should be classed as workers, not independent third-party contractors, which means they are entitled to basic employment protections, including minimum wage and holiday pay.
In the 42-page Judgement, the court rejected Uber’s argument that it merely acted akin to a booking agent for drivers, noting that the company would have no means of performing its contractual obligations to passengers (nor complying with its regulatory obligations as a licensed private hire vehicle operator) — “without either employees or subcontractors to perform driving services for it”.
Implications the Supreme Court Judgement Will Have for Other Employers
The Supreme Court’s judgement is likely to cause massive implications as other companies with large self-employed workforces may now face very similar action, particularly companies like Deliveroo and UberEats who engage drivers to deliver food. It is expected that organisations who have adopted a similar model to Uber will now discover that they owe a substantial amount more to their workers, such as paid annual leave, national minimum wage and sick pay.
Understanding Employment Status
An increase of atypical contracts has effectively blurred the lines between self-employed and employed status and so employers should be very careful when entering into any sort of working relationships. A basic explanation of each status/category is as follows:
Employee: Under section 230(1) of the Employment Rights Act 1996 (ERA 1996) an employee is defined as “an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment”. Under section 230(2) of ERA 1996, a contract of employment means “a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing”.
Worker: A worker is defined under section 230(3) of ERA 1996 as an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment; or any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.
Self-Employed: A person is self-employed if they run their business for themselves and take responsibility for its success or failure and they aren’t paid through PAYE.
Significance of Making the Correct Distinction
The distinction between the three categories is significant for a number of different reasons, including the following:
1) Employers and employees have obligations that are implied into the contract between them (for example, the mutual duty of trust and confidence). Some core legal protections only apply to employees, most particularly the rights on termination of employment granted under ERA 1996 (the right not to be unfairly dismissed and the right to receive a statutory redundancy payment). As mentioned above (see Worker status), workers enjoy limited protection under employment law.
2) Only employees are covered by the Acas Code of Practice on Disciplinary and Grievance Procedures
3) Only employees will be automatically transferred to any purchaser of their employer’s business under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246).
4) The tax and social security treatment of a person providing services depends on their status.
5) An employer is vicariously liable for acts done by an employee in the course of their employment. This vicarious liability is unlikely to extend to independent contractors or self-employed individuals.
6) An employer is required to take out employer’s liability insurance to cover the risk of employees injuring themselves at work. Self-employed individuals or independent contractors may not, in every case, be covered by this insurance and may want to consider entering into appropriate insurance for their own benefit.
7) Employers owe employees statutory duties relating to health and safety. Independent contractors may not be covered under these duties although they will be covered under the employer’s common law duty of care in respect of occupier’s liability.
Employees, workers and self-employed workers enjoy a variety of different legal entitlements, and since many of these rights form the basis of the employment status, the consequences of getting an individual’s employment status wrong should not be underestimated.
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.
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
With Christmas only 4 weeks away, the employment issues surrounding this holiday often create a HR headache for employers. This blog is intended to arm employers with the correct knowledge and guidance to help make the festive season as stress free as possible.
1.Overtime
If an employee has normal working hours, overtime usually means any time you work beyond these hours. Normal working hours will be set out within the employment contract. It is important to note, that despite how busy you are with the working year coming to an end, you can not force employees to work overtime unless the employment contract states otherwise.
The Working Time Regulations sets out that employees do not have to work more than 48 hours per week on average. If an employee wishes to work beyond the 48-hour limit, they must put this in writing. This is otherwise known as the opt-out agreement.
2. Managing client gifts
No matter how well intended a client’s gift may be, the potential exists for impropriety. And, whilst it may be flattering to be in receipt of the gift, employers and employees should remain cautious before accepting a client’s token of appreciation. Accepting gifts of high value, could be viewed as something that has potential to influence the professional relationship.
In addition, if a high-valued gift is viewed as giving someone a financial advantage to prompt that person to carry out their duties or activities improperly, accepting the gift may result in an offence under the Bribery Act 2010.
Therefore, all employees should be reminded of the rules and policies on accepting client gifts. For example, all gifts received should be entered into a register and no gifts of a certain value should be accepted without prior consent from a line manager.
3. Winter sickness bugs
With the cold and flu spreading more easily in the winter months, employees are more likely to catch illnesses and pass them on. Given the high costs that are associated with short-term sickness, employers should ensure that they have in place an easily implemented sickness absence policy, including who should be the point of contract during the absence, what evidence will be required, sickness pay details and return to work interviews.
4. Adverse weather conditions
As an employer, it pays to be fully prepared for whatever weather the winter throws at you – whether its wind, rain, storms, snow or ice.
So, what issues should you keep in mind?
• You are not legally obliged to pay employees if they do not come into work because of the weather
• You should have a policy that outlines this
• Try to be flexible where possible – can you both come to a short-term arrangement in which the employee can work from home until the weather improves?
5. Dress code and Christmas jumpers
Some employers choose to relax their dress code at Christmas. Allowing employees to dress down and wear Christmas jumpers can help bring some festive cheer into the workplace. However, employers should be cautious about the wording when notifying employees about this, ensure they know Christmas jumpers and casual dress is optional and not compulsory. In addition, employers should be sensitive to employees who do not celebrate Christmas or do not wish to dress any differently at this time of year.
How can Employment Law Services (ELS) 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.
Providing your employees with payslips is generally a routine process that does not require a lot of thought behind it.
Under UK law, a payslip should be issued to all employees each time they are paid. Employers do not need to issue payslips to non-employees, this includes contractors, freelancers and workers. There are further exceptions made for the police service, merchant sea men and master or crew members working in share fishing.
At present, the law states that an employee’s payslip should be issued on or before pay day and should set out the following:
• Earnings before and after any deductions
• The amount of deductions that may change each time the employee is paid, for example, tax and national insurance
As of April 2019, employers will need to state how many hours all employees and workers are being paid for on the slip. This is because workers who have not been receiving a payslip up until now have been seen to struggle when attempting to calculate what deductions are being taken from their pay. And, if the pay calculated does not support what it states on the payslip, they are able to dispute this more easily in front of an Employment Tribunal.
How can Employment Law Services (ELS) 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.
The National Living Wage, which is the statutory minimum wage for those aged 25 and over, has to rise to £8.21ph from April 2019 – which means an additional £690 annually for low paid workers.
The Low Pay Commission (LPC), which recommended the increase, have anticipated that the increase will see almost 2.4 million workers throughout the UK better off.
In addition, the Government have accepted all of the LPC’s recommendations for the following NMW rates:
• 21- to 24-year-olds will increase by 4.3% from £7.38 to £7.70 per hour;
• 18- to 20-year-olds will increase by 4.2% from £5.90 to £6.15 per hour;
• 16- to 17-year-olds will increase by 3.6% from £4.20 to £4.35 per hour;
• Apprentice rates will increase by 5.4% from £3.70 to £3.90 per hour; and
• The accommodation offset will increase by 7.9% from £7.00 to £7.55.
“The increase in the national living wage (NLW) to £8.21 in April 2019 will ensure a pay rise for the lowest-paid workers that exceeds both inflation and average earnings.
“Over the past year, the labour market has continued to perform well and the economy, while subdued, has met the criteria of ‘sustained growth’ set out in our remit for the NLW. We therefore recommended an increase in line with a path to 60 per cent of median earnings by 2020.” Said Sanderson, who is the chair of the LPC.
He added further: “We recommended real-terms increases to the national minimum wage (NMW) rates for younger workers and apprentices, as the labour market conditions for these groups remain strong. These rates will continue to rise faster than both inflation and average earnings.
“We opted for smaller increases than we recommended last year because of slightly weaker labour market conditions for young people, combined with insufficient evidence to fully understand the impact of the largest increases in a decade implemented in April of this year. However, next year’s will still be some of the highest increases on record.”
How can Employment Law Services (ELS) 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.
How healthy is your business? To find out, answer these simple questions below.
1. Do all your employees have a written contract of employment? Y/N
2. Are these contracts of employment issued within the first 8 weeks of their employment commencing? Y/N
3. Do you have job descriptions for all roles within the organisation? Y/N
4. Do you check that all employees have the right to work in the UK? Y/N
5. Do you have a staff handbook? Y/N
6. Do you have written disciplinary and grievance procedures? Y/N
7. Do your policies and procedures comply with employment legislation? Y/N
8. Do you have a probationary period for new hires? Y/N
9. Do you know the 5 reasons for a fair dismissal? Y/N
10. Do you have a clear procedure for dealing with absence? Y/N
Answers
If you answered yes to under 5 questions, you are at high risk and should take immediate action.
If you answered yes to under 10 questions, you are at moderate risk, there is room for improvement in this instance.
If you answered yes to 10 and more questions, well done! You are at low risk – your HR essentials seem to be in place.
How can Employment Law Services (ELS) 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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