Be Aware - February 2022
The year started with an announcement from the UK Government, that Covid precautions in England would change from Monday 17 January 2022.
From Monday 17 January people with COVID-19 in England could end their self-isolation after 5 full days, as long as they ae not displaying any symptoms and test negative on 2 consecutive days after days 5 (i.e., day 5 and day 6).
If a member of staff remained symptomatic, or does not test negative on 2 separate occasions then the default self-isolation period continues to be 10 days,
Day 0 of the isolation period is when a person first shows symptoms or, if asymptomatic, the day you took your test.
The reduction in the self-isolation period in England (as well as the option to end early in Scotland, Wales and Northern Ireland) will assist those businesses who are struggling due to staff availability.
However, with a reduction in the period of self-isolation there is an increased risk of staff returning whilst still infectious. We therefore strongly advise that each member undertake a risk assessment prior to any staff returning and consider whether to instigate additional protections such as mask wearing and social distancing within the workplace for a period after staff return.
The year started with reports in the press that some larger employers such as Ikea, Next, Wessex Water, Ocado and Morrisons have introduced policies so that they do not have to pay company sick pay to unvaccinated employees who are self-isolating as a result of Covid-19 and paying SSP instead. The commercial rationale for this is due to the fact that high levels of sickness absence around Covid-19 (particularly amongst unvaccinated employees) and the Omicron variant in particular are causing a significant increase in costs for business generally.
If an employer has reserved the right in the contract of employment to pay company sick pay on a discretionary basis, then if it wishes it can introduce a policy of not paying company sick pay (paying SSP instead) to unvaccinated employees when they are required to self-isolate due to Covid-19 (regardless of whether the employee is self-isolating as a close contact of someone who has tested positive for Covid-19 or the employee has tested positive for Covid-19). Unvaccinated employees will likely suffer a financial detriment from this change. It is therefore important that employers with consult employees if they present any mitigating circumstances around why they have not been vaccinated to avoid the risk of potential discrimination claims around protected characteristics e.g., religion, disability, pregnancy etc. There is some doubt around whether anti-vaxxers would be protected under the Equality Act 2010 as a philosophical belief although this has yet to be properly tested in an Employment Tribunal.
Collecting data from employees regarding vaccination status will engage data protection and as the company is collecting a special category of data it will need to give careful thought to the reasons why it is collecting and storing this data:-
An employer could argue for example that the company needs to collect data on individual vaccination status for the purposes of ensuring health and safety of employees and maintaining records in relation to sick pay to ensure employees are paid correctly in compliance with employment law. The company will also need to be satisfied that the reason for recording vaccination status is clear and necessary.
The Information Commissioners Office has set out some useful guidance around the interaction of vaccination status and data protection which employers may find of some assistance:-
It is understandable that employers may have a need to reduce the cost of sickness absence in the current economic climate such that applying a discretionary company sick policy to unvaccinated employees may be a reasonable approach provided that employers take a flexible pragmatic approach to employees who present mitigating circumstances around reasons for remaining unvaccinated.
“I have a member of staff who is unvaccinated and now other members of staff are complaining and refusing to work with them. What can I do?”
How should I approach this?
1. Investigate any concerns that are raised with the employees. Are there specific behaviours that are causing concern such as social distancing or mask wear etc… It may be that instituting a handwashing policy or social distancing will not only deal with the issues but result in a safer workplace for everyone.
2. Discuss the issue with the non-vaccinated employee to understand why an employee remains unvaccinated. There are generally 3 reasons why someone may remain unvaccinated
a. they cannot be vaccinated due to medical reasons- if this is the case then as an employer you will have a duty to make reasonable adjustments, including social distancing, mask wearing etc…
b. they are hesitant to be vaccinated- if this is the case then as an employer you may want to consider providing further information regarding vaccines to all staff. These can generally be found with your local NHS services, and we include a few links at the end of this article, and
c. they are refusing vaccination on religious or philosophical grounds - genuinely held religious or philosophical beliefs are protected by the Equalities Act 2010, and discrimination based on these will get you in trouble. That said, the caselaw here is complicated and it is far from certain that anti-vax will be protected. If this is an issue, we strongly advise contacting the RMI advice line to advice and assistance.
3. Put a clear Covid-19 vaccination and/or workplace safety policy in place and monitor it.
Under the Health and Safety at Work Act 1974, employers have a duty to ensure the health and safety of their employees so far as is reasonably practicable. It should also be remembered that Covid is a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (known as RIDDOR). Both of these will give employers justification for encouraging vaccination as well as implementing controls within the workplace.
What is often overlooked is that the Health and Safety at Work Act 1974 also puts duties on employees to exercise reasonable care and skill in the relationship with colleagues and the employer including
- A duty to take steps to adequately protect the health and safety of themselves and colleagues at work
- A duty not to disrupt or interfere with anything put in place to aid in health and safety at work
Just like employers, employees who fail to comply with their obligations can also be disciplined and subject to fines and convictions if they are found in breach of the act (although this is less likely to be enforced).
Unfortunately, outside of the healthcare sector the government has not made the vaccination compulsory. As such, there are a number of reasons why an employee may legitimately refuse a vaccine, for example, due to medical or religious reasons.
Requiring employees to be vaccinated will put the employer in a difficult position, both legally and in terms of employee relations. There are arguments that can be used to enable employers to require employees to be vaccinated and to discipline and dismiss them if they refuse. However, these have not been fully tested in the tribunals and courts and as such carry a significant risk of unfair dismissal and discrimination. We do not advise this course of action at this time as becoming a test case can be time consuming and expensive.
Whilst a powerful tool, the vaccine is only one aspect of controlling the virus. Whether you have an issue or not we continue to advise members to regularly carry out a Covid specific risk assessments of their business. Even with a vaccinated workforce measures such as ventilation, handwashing, social distancing and the use of PPE continue to be relevant within the workplace, homeworking should be considered where practical.
Consideration should be given to whether a testing procedure can be introduced in order to monitor employees. This could include temperature testing and the use of lateral flow tests etc…
Where there continues to be a problem, consideration could be given to whether temporary adjustments can be made to the employees roles to reduce the risks to other staff and customers. This can include staggering start times to avoid contact with employees, changes to the workplace and to working practices to limit the risk of infections and ultimately reduced working hours. However, care will need to be taken as unless the employee has been advised by a doctor to isolate for medical reasons it is likely that they will remain entitled to full pay even if you send them home.
For now, employers should act cautiously in the mandating of a Covid-19 vaccination for the workforce. In the majority of cases, they may have to make the best of regular testing (not without its own difficulties), protective measures such as screening and sanitising stations, temperature checks and effective compliance with face coverings and social distancing rules. We would not advise going any further than this without significant and detailed legal advice.
“We have an employee who has been sick a lot recently. He has now been absent since the beginning of December and is covered by a doctor’s certificate, but it is very vague, and his absence is having a detrimental impact on his department because it is short staffed and struggling to cope. What can we do?”
In light of the length of time the employee has been absent, he will be considered to be on long-term absence. There is no strict definition but any absence lasting four weeks or more is usually known as long term. It appears that the employee has been with the company for a couple of years and therefore he will have qualifying service to raise claims for unfair dismissal. If the company are ultimately contemplating dismissal, then to avoid the risk of a claim they need to be able to establish both a fair reason to dismiss and to show that dismissal was within the band of reasonable responses (i.e., it was fair to dismiss). In light of the length of absence and previous absence, it is a good possibility that the individual may be considered disabled within the meaning contained in the Equality Act 2010. This means, therefore, that as the employer you have an automatic duty to consider making reasonable adjustments and therefore the procedure/advice given below is good guidance to avoid risks of either disability discrimination and/or unfair dismissal. Note that there is no qualifying service requirement for an employee to bring a disability discrimination claim.
1. Firstly, investigate the nature, extent and likely duration of the employee’s illness. This would be by obtaining relevant medical evidence such as a medical report from the employee’s GP and/or consultant or alternatively a private occupational health (“OH”) provider. However, before an application for a medical report can be made, you must first notify the employee and obtain their consent in writing. If the absence is stress related, you could also consider referring the employee to any stress policy or counselling services on offer, if available. In the event the employee refuses to agree to give consent for the report, the company would be entitled to act on the facts currently available. In such a situation you would advise the employee in writing that a decision would be taken at a capability hearing on the basis of the information available and that it could result in dismissal. Prior to this course of action, however, the company should seek to exercise all avenues to try to obtain the employee’s consent and find out why the employee is refusing to provide the same.
2. On receipt of a signed consent form by the employee you would then write to their GP/Consultant requesting the report and asking specific questions that the company need to know in order to assess their likely return to work, whether any adjustments were needed etc. A copy of the signed consent form will need to be sent with the letter requesting the medical report so that the GP/Consultant can see the employee has given consent. The employee has rights under the Access to Medical Reports Act 1988 and therefore details of those rights should be sent with the initial request for consent. This includes the right to refuse to give consent, the right to see the report before it is sent to the company etc.
3. Once you have the medical evidence, the next stage is to carry out meaningful consultation with the employee by holding a meeting to discuss the report. If the employee is unable to attend the workplace, you could offer to attend the employee’s home or meet in a neutral location. Subject to the reason for absence, (particularly if related to a mental impairment such as stress/depression) you could permit the employee to be accompanied by a friend or family member. Part of the consultation should include discussing whether any reasonable adjustments can be made to their current duties or workplace to help facilitate their return to work. If, however, reasonable adjustments are not possible, you should also consider whether there are any alternative positions available although the company are not obliged to specifically create a position for the employee. Other points for consideration will include the following:-
i) How long has the employment lasted, i.e., length of service;
ii) How long was the employment expected to continue, do you envisage the employee remaining until their retirement;
iii) What is the nature of the employee’s job;
iv) What is the nature, effect, and anticipated length of the illness;
v) What are the requirements of the business for the work to be done and could a replacement be engaged to do that particular job in the interim;
vi) Is it envisaged the employee may return to work and if so, when;
vii) Could the employee be offered an alternative position more suitable to their state of health; and
viii) Consider the importance of the employee and/or the post occupied to the business, the impact their continued absence is having on the business and the difficulty in cost of continuing to deal with their absence before contemplating dismissal.
4. After consulting with the employee on the medical evidence and possible reasonable adjustments and/or alternative work, if it is decided that the employee’s job can no longer be held open, they should be informed of the likelihood of a dismissal. However, they would not be dismissed at this stage because a further meeting should be held to discuss this possibility. A formal invitation should be sent to the employee inviting them to attend a meeting and they should be given the opportunity to be accompanied by either a work colleague or trade union official. Again, the company could exercise its discretion and permit a family member/friend to attend.
5. Hold the meeting and have a further discussion about the situation and confirm the decision to dismiss. Once dismissal has been decided upon, ensure the employee receives their contractual/statutory entitlements including the correct pay entitlement, notice and any accrued yet untaken holiday pay. The decision should be confirmed in writing and in the dismissal letter, clearly identify the reason for dismissal, effective date of termination and offer the employee the right of appeal.
6. If the employee appeals, then an impartial Manager/Director should conduct the appeal. This should be someone who has not previously been involved in the discussions. A written invitation to an appeal hearing should be sent offering the right to be accompanied. It should give reasonable notice of when the appeal hearing is to take place. At the appeal hearing further discussion should be had to enable the Appeal Officer to decide whether they agreed with the decision to dismiss. Following the appeal hearing, the decision should be confirmed in writing.
Clearly, whether a dismissal should be contemplated will depend on the content of the medical report and therefore if the report is not sufficiently detailed for the company to make a decision, the company is entitled to go back to the GP/Consultant and request further details.
It is important to have a written record of all meetings so have someone present to take minutes of the same so that you have everything documented and your paper trail in place. If you were to receive any Tribunal claim you will need to be able to demonstrate that you followed a fair procedure and the paper trail would be evidence of the same, together with any letter/emails
It is often the case that a company director will also work in or provide services to the company. In the event of a dispute or change in circumstances, it is important to consider the director’s status, in order to establish what rights, if any, they possess and what steps should be followed.
Whether a director is just an office holder, or whether they are also an employee/worker/ self-employed, will have a significant effect on the ability to discipline and remove a director and what processes should be followed.
This is exactly what was considered in the case of Rainford v Dorset Aquatics Ltd.
R and his brother, B, were both shareholders and directors of DA Ltd. R held a 40% share of the company with B holding the balance of 60%. R worked within the company in various capacities, including by taking responsibility for marketing and social media and as site manager at a longstanding landscaping project. R decided on his own hours of work and was not under the control of B or anyone else at the company. There was little contractual documentation covering R’s working arrangements and no written contract governing his employment status. Both R and B were each paid an equal ‘salary’, from which PAYE and NI deductions were made. They also received dividends based on their shareholdings.
In June 2018, a dispute arose, and R brought employment tribunal claims for unfair dismissal, notice pay, unlawful deductions and holiday pay. His employment status fell to be decided as a preliminary issue.
In the first instance, the employment judge found that R was neither an employee nor a worker of DA Ltd. The Judge took into account, among other things:
- that there was a clear difference in status between the brothers on the one hand and DA Ltd.’s employees on the other;
- that there was an expectation that both directors would both generate and execute enough work to sustain the company and its profits so as to pay their employees and each of their incomes;
- both directors were free to do other work outside the company and, in fact, R sometimes worked with his partner in her hair salon; and
- based on B’s evidence at the hearing, R was able to substitute someone else to do the site manager work, although in practice this never arose
As he lost the case R appealed, arguing that, once the Judge had found that he provided services to the company in return for a salary, and that the arrangement was not a sham, then the Judge had no alternative but to find that his relationship with the company was either that of an employee, a worker or a self-employed contractor working for a client or customer.
The Employment Appeal Tribunal (EAT) dismissed the appeal. Although R worked for the company and received money, including some described as ‘salary’, it did not follow that the work and payments were necessarily referable to one of the three types of contract referred to in S.230(3). Following Dudgale v DDE Law Ltd, it is possible for working shareholder/directors who receive payments from a company to organize their relationship without individual contracts of employment. Whilst employment law does indeed identify three types of people, namely employees, workers and the self-employed, the EAT held that not every individual who does work for another person and receives money must necessarily come within one of the three categories.
It is often difficult to establish the true relationship between a company and its directors. While it would certainly be an error of law to suggest that a person cannot be both an employee and a director and/or shareholder, this will be a question of fact based on the evidence. The main test remains one of control and a requirement to perform duties personally.
Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us on 01788 225 908 at any stage for advice and assistance as appropriate.