Be Aware - March 2021
With no firm end in sight to the coronavirus pandemic, it continues to significantly impact employers and the workforce. Although the vaccine is not yet available to be purchased privately, employers may want employees to take the vaccine as soon as they become eligible, under the voluntary NHS programme. A high vaccination rate would minimise the number of employees having to self-isolate and minimise the risk of employees becoming infected by workplace transmission.
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. To this end, requiring employees to be vaccinated against the coronavirus may seem like a reasonable request, particularly if it is difficult to employ other safety measures such as social distancing. However, the government has not made the vaccination compulsory, and there are a number of reasons why an employee may refuse a vaccine, whether, for example, due to medical or religious reasons. This may put the employer in a difficult position, both legally and in terms of employee relations.
An employee’s refusal to comply with a reasonable management instruction may be grounds for disciplinary action including dismissal. An employer will have to carefully consider the individual circumstances of the employee and whether the refusal is justified. The nature of the workplace will also have to be appropriately risk-assessed and considered by the employer: it may not be reasonable to require an office worker to be vaccinated should remote working be possible; however, it may be reasonable to require vaccination of a healthcare worker, whose patients are particularly vulnerable.
At the present time it would seem likely that disciplinary action would be a risky option for the employer, but the risk will depend on the facts of the case and the disciplinary action taken.
One particular aspect is the Equality Act 2010. Employees should not receive any less favourable treatment, or be put to a detriment arising from not being vaccinated due to protected characteristics such as age, religion, philosophical belief (e.g. so-called ‘antivaxers’ could seek to argue that an objection to vaccination could be considered a ‘philosophical belief’), pregnancy etc… If, for example, a person had a medical condition that could affect their decision to take the vaccine, any less favourable treatment towards them could result in claims of discrimination on the grounds of disability. This, of course, is only one particular example, and there are other areas of vulnerability for the employer. It is therefore important that you take advice before proceeding.
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.
Case Study: Return from Furlough
“I have had some staff on Furlough for some time. I would like to start bringing some of my staff back from furlough but one or two of them are objecting. What can I do?”
The concept of Furlough is not one that existed in the UK prior to the Prime Minister’s announcement on 20 March 2020. As such there is very little case law or experience to draw on when dealing with staff, particularly those who object. Your options will depend on what you are asking your staff to do and why they are objecting.
Provided you are complying with social distancing requirements and are one of the essential businesses allowed to trade, the short answer is yes.
Once agreed between an employer and their employees Furlough should be seen as a form of lay-off. Employees can therefore be required to return to work at the employer’s discretion provided reasonable notice is given.
Not all employees can be required to return to work. Indeed there are a number of valid reasons that may result in an inability to return, e.g. an employee may have childcare difficulties if their school remains closed.
Furthermore, as an employer you have a duty under the Health & Safety at Work Act to protect the health, safety and welfare of your employees and other people who might be affected by your business. As such an employee may, in extreme circumstances, refuse to attend work where it is unsafe for them to do so, e.g. if you have failed to put any or any reasonable social distancing measures in place.
There is currently no fixed or process that must be followed.
1. Where possible keep in touch with your employees regularly during furlough in order to maintain contact and to gauge their position. This should provide some informal insight into staff attitudes.
2. Where you wish to recall employees, discuss this with them and notify them in writing. Provide as much notice as possible and at least 24 hours’ notice. To assist members we have produced a template letter that can be used and this is available on request.
3. Where employees are reluctant to return then inform the employees that they should make any request to remain on furlough in writing. Indicate that they clearly must explain the reason why they wish to remain on furlough, including any evidence, and confirm that this will be taken into consideration.
4. There is no requirement under the current furlough scheme to bring all employees back at the same time. Where the employee is raising a valid concern confirm in writing that they can remain on furlough.
5. Where there is no valid concern, confirm the outcome of the application to remain on furlough. Consider whether you can offer flexible working on a temporary basis to deal with any issues such as childcare etc.…
6. Where an employee remains reluctant to return, consider whether the employee could be allowed to nominate any period as holiday or whether to offer unpaid leave.
7. Where an employee continues to refuse the reasonable request to return to work, you remain able to discipline the employee concerned. Given the current situation we would advise that an employee is only disciplined as a last resort and only after a full disciplinary process.
We would advise that you take advice before progressing to any disciplinary process, not least because with certain categories of employees such as the extremely vulnerable (who should not be returning at present), those with disabilities, or pregnant women, there are additional legal risks to consider and the potential for automatically unfair dismissal and discrimination claims in the Employment Tribunal.
How employers should proceed remains uncertain. As an employer we continue to advise flexibility in how staff are managed. That said, providing you comply with the agreements between you and your employees, it is your decision how and when to re-open.
Vehicle Test Drives
Recent articles in the motoring press have been discussing the legalities of providing test drives within tier 4 lockdown. Are test drives legal, and if so how best they can be arranged.
Are test drives legal?
Whilst we agree that a test drive is part of a sales process, the question is whether one can be offered in a tier 4 lockdown. Section 16 of Schedule 3A of The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 states,
16. (1) A person responsible for carrying on a business in the Tier 4 area of offering goods for sale or for hire in a shop, or providing library services, other than a business listed in paragraph 17 must:
(a) cease to carry on that business or provide that service except—
(i) by making deliveries or otherwise providing services in response to orders received—
(aa) through a website, or otherwise by on-line communication,
(bb) by telephone, including orders by text message, or
(cc) by post;
The Regulations make it clear that goods can only be made available to customers in response to an order received through a website etc and it is correct that there is no requirement for full payment under the Regulations. However, while a deposit is a stage in the contractual process, when it comes to vehicle sales a deposit is rarely evidence of a binding legal contract for the supply of a vehicle. If the customer intends only to arrange for a test drive, then legally a binding order has expressly not been received and the business would be at risk of prosecution. Indeed, we currently have examples of dealers being threatened with prosecution.
If a business is making a vehicle available to a customer in a tier 4 area, we would strongly advise that all major aspects are agreed and that there is no need for any further negotiations or paperwork before arranging a test drive. While a deposit is an indication of intent, we would advise members to consider carefully instead whether they are ready to register the vehicle in the customer’s name, as until that stage, you are unlikely to have a binding contract.
It may well be that customers are reluctant to arrange a binding contract until they have had sight of a vehicle. Importantly, it should be remembered that provided a business complies with its obligations in a distance contract, a customer can legally change their mind for any reason up to 14 days after delivery of a vehicle. This includes any period before delivery. Cancellation during this cooling off period is a legal right, and will not negate the original contract for the purposes of the Regulations. Indeed, where a contract is cancelled before delivery it may be that there is no detrimental effect on the vehicle’s value at all.
Where individual enforcement agencies interpret the legislation to allow a test drive upon receipt of a deposit, this will reduce the likelihood of prosecution. However, this will only affect the authorities concerned and they can change their minds. Other enforcement agencies have concluded that test drives are prohibited, not least because they are deemed to be inessential journeys.
There are also practical considerations, as any test drive would be unaccompanied and a business would need to ensure that vehicles were taxed and insured for use on the road.
Until the Government amends the Regulations, or areas are removed from tier 4, we therefore continue to advise that test drives breach the spirit of the Regulations and may well breach the letter, depending on how far down the order process a customer has progressed.
In what can be seen as yet further disruption to the ‘gig economy,’ the Supreme Court has decided that the claimants in the Uber case (Uber & Ors v Aslam & Ors [2021 UKSC]) are ‘workers,’ not self-employed contractors. The ruling has far-reaching implications for businesses across the country and underscores the importance of correctly establishing a person’s employment status.
Under UK law, a person can generally be classed as an employee, a self-employed contractor, or a worker. Employees have the most employment rights, while self-employed contractors (or ‘freelancers’) have very little. Workers are a type of middle way category who enjoy some employment rights. These include the right to receive the national minimum wage, paid holiday, statutory rest breaks, protection from discrimination under the Equality Act 2010 and protection for whistle-blowers under the Public Interest Disclosure Act 1998.
Uber argued that it was simply acting as a booking agent for the drivers who in turn were working for themselves. The Supreme Court affirmed the decision of the lower courts that this position was not consistent with the reality of the working relationship. The fact that Uber calculated the fare and did not permit drivers to charge more; that Uber could penalise drivers if they rejected too many trip requests; and that Uber restricted communication between driver and passenger – were among the factors which betrayed less of a business relationship than one of subordination.
This has significant implications for any business that utilises significant numbers of self-employed contractors or freelancers. Those who do will need to review the working relationship to ensure that it is truly one of self-employment. Where self-employed contractors or freelancers are deemed in fact to be workers then this will have significant financial implications with regards to National Minimum Wages as well as paid holiday entitlement.
As confirmed in the Uber case, the more control one party has over the other the more likely that the weaker party will be a Worker. There is no hard and fast checklist and every case will be fact-sensitive, but practical considerations may be:
- Does the individual control the hours they work, or are they set by the business?
- Can they send a substitute to work, or are they required to attend in person?
- Can they negotiate the terms of the contract, or are they supplied with set terms?
It will also need to be remembered that even though both sides may agree that the individual will work as a self-employed person, the Supreme Court in Uber once again confirmed that employment status is determined by the reality of the relationship, not what it may purport to be.
The ruling will be significant for Uber as it opens the way for potentially thousands of national minimum wage and unpaid holiday claims. It also has wider implications for those working right across the UK’s gig economy and further claims from other industries are to be expected.
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, call us on the IGA Direct Member Helpline or 0845 305 4230 at any stage for advice and assistance as appropriate.