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More UK job adverts require candidates to have the Covid-19 vaccine

Recent figures show the number of UK job adverts requiring jobseekers to have received the covid-19 vaccine has increased by 189% over the past 3 months. However, proportionally the number of job adverts with this requirement remains low, as only 19% of job adverts in October 2021 required candidates to have had the vaccine.

Job adverts in the health and social care sector were included in the research. Job adverts from sectors that will not make the vaccine mandatory were also included in the research, such as the charity sector (being 0.55% of job adverts) and the domestic help and cleaning sector (being 0.26% of job adverts).

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Flexible working claims brought to tribunals doubled in 2020/2021

Research conducted by GQ|Littler found the number of claims brought to employment tribunals relating to flexible working doubled in the past year, with an increase from 127 in 2019/20 to 193 in 2020/21. It is reported that a likely reason for the increase in claims is that since covid-19 restrictions have eased, some workers have been hesitant about returning to the office, and some workers have wanted to build more flexibility into their role.

Employers can only refuse a flexible working request if one or more of the eight prescribed statutory reasons apply. GQ|Littler suggested the most common reasons given by employers are that granting the flexible working request would have a detrimental impact on performance, or on the ability to meet customer demand.

Due to the increase in flexible working claims, in December 2021 the Chartered Institute of Personnel and Development (CIPD) published new practical guidance for employers on hybrid working. The guidance suggests that when deciding on a hybrid working policy, employers should firstly define what hybrid working means within the context of their organisation, and they should consider strategic goals and the input from workers. The CIPD state that hybrid working can enable employers to promote the wellbeing of their employees. However, the guidance reminds employers that the rules and practices surrounding hybrid working continues to change and organisations may need to continue developing their approach to effectively implement flexible working within their workplace.

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Employers must provide suitable PPE to employees and workers from 6 April 2022

On 6 April 2022, the Personal Protective Equipment at Work (Amendment) Regulations 2022 will come into force. The amended regulations will require employers to provide suitable personal protective equipment (PPE) to all workers and not just employees, where there is a health and safety risk. Currently, employers cannot charge employees for PPE, but the regulations will extend this prohibition to also cover workers. The employer’s duty to workers will apply during periods that a worker is working under their worker’s contract.

The amended PPE regulations follow the decision in a recent case, where it was held that the UK had excluded workers from health and safety protection by failing to properly implement the EU Health and Safety Framework Directive and the Council Directive on the minimum health and safety requirements for workers to use PPE at the workplace.

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Tribunal claims based on health and safety concerns have tripled

The number of employment tribunal claims based on health and safety concerns has tripled in the past year. According to figures obtained via a freedom of information request by Nockolds Solicitors, in the 12 months leading up to 31 March 2021, 637 claims were brought to the employment tribunals citing health and safety concerns. The number of claims increased by 156% compared with the previous year, when 248 such claims were brought.

Nockolds Solicitors have warned that employers may be faced with increased health and safety related claims from employees who have been dismissed for refusing to work for reasons related to the coronavirus pandemic. Nockolds Solicitors have also warned that employers may be faced with an increase in claims from employees who have resigned but may bring a claim for constructive dismissal based on the unsafe working environments at their organisation, if covid-19 protocols were not efficiently put in place by the employer.

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Care worker fairly dismissed for unreasonably refusing the Covid-19 vaccine

In January 2021, a small nursing home decided that due to the situation and the conditions of the pandemic at the time, they would require all their staff to be vaccinated against covid-19 if they were providing close personal care to vulnerable residents. However, one care assistant refused to be vaccinated due to concerns around whether the vaccine was safe. The nursing home considered this was not a reasonable refusal in light of the situation at the time, namely the recent outbreak and deaths at the nursing home, and there was a lot of publicity and advice available relating to the safety of the vaccine. The care assistant was summarily dismissed for unreasonably refusing to receive the covid-19 vaccine, so brought claims for unfair dismissal and wrongful dismissal.

The employment tribunal decided the dismissal was fair in the circumstances, and refusing to comply with the management instruction to be vaccinated amounted to gross misconduct. Therefore, there was no case of unfair dismissal or wrongful dismissal.

The tribunal also decided that whilst the requirement to make the vaccine compulsory unless there was a reasonable excuse interfered with the worker’s right to privacy, the interference was justified. This was because the employer’s policy aimed to protect the health and safety of their residents, staff and visitors.

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Fines in Wales for not working from home

From 20 December 2021, the Welsh Government has made it a legal requirement that people in Wales can be fined £60 if they do not work from home when it is reasonably practicable to work from home. The fine will be reduced to £30 if it is paid within 14 days.

The Welsh Government has stated they expect employers to take all reasonable measures in facilitating home-working practices and supporting employees in the process, to reduce the risk of exposure to Covid-19. If employers fail to allow their staff to work remotely, they could be faced with enforcement measures, such as closure notices and premises improvement. Employers who fail to comply with the notice could incur a £1,000 fixed penalty notice for the first notice, which could rise to up to £10,000.

The legal requirement also applies to individuals who live in Wales but work in England. However, the Welsh Government has stated an exception can be made if it is not reasonably practicable for these individuals to work from home, and if the employer in England has legitimate reasons for requiring people to work at the workplace in England rather than working from home.

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Period to self-certify temporarily extended to 28 days

Ordinarily, employees who are entitled to receive statutory sick pay can self-certify their sickness absence for the first 7 days. During this time, the employees do not need to provide their employer with a fit note. For sickness absences in excess of 7 days, employees must provide their employers with a fit note from their GP.

However, due to temporary changes made to current Regulations, employees can now self-certify their sickness absence for the first 28 days. The 28-day period includes non-working days, such as bank holidays and weekends. During this time, employees will not be required to provide their employer with a fit note. For sickness absences in excess of 28 days, GPs will need to provide employees with a fit note. The change has been introduced to increase GPs’ capacity to focus on delivery of the NHS’ coronavirus booster programme.

This temporary change took effect from 17 December 2021, and also applies to spells of incapacity for work which commenced prior to the Regulations coming into force but which have not lasted more than 7 days on that date. The changes will continue to apply up to and including sickness absences which begin on or before 26 January 2022. For sickness absences beginning on or after 27 January 2022, self-certification will revert back to the 7-day period.

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Tribunal claims for dismissals at the beginning of the Covid-19 pandemic

Two recent claims brought to the employment tribunal are based on dismissals that took place at the beginning of the Covid-19 pandemic.

In the first case, when the pandemic started, an employer sent home a pregnant zero hours worker who was viewed to be clinically vulnerable. Before allowing the pregnant worker to return to work, the employer advised it would be unsafe for the worker to undertake night shifts working alone, and the employer conducted a risk assessment and ensured adequate social distancing procedures were in place. For the duration of the pregnant worker’s absence from the workplace, the employer paid her a generous amount above what she was entitled to her under contract. The tribunal found the employer followed public health advice and Covid guidance, and dismissed the pregnant worker’s claims for discrimination and victimisation.

However, in the second case which events took place again at the start of the pandemic, an employee expressed health and safety concerns when they did not want to deliver equipment to their unvaccinated manager who was self-isolating with Covid-19 symptoms. As an alternative, the employee offered to deliver the equipment to a different location to be securely stored. The tribunal found the employee’s dismissal was automatically unfair because it was principally based on the employee raising legitimate health and safety concerns.

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Morrisons will stop paying sick pay to staff who refuse to be COVID-19 vaccinated

On October 1, the government announced that all adults had now been offered the opportunity to be double vaccinated against Covid-19. As a result, Morrisons announced that from this date, they would stop paying full sick pay to any members of their staff who have refused to receive the Covid-19 vaccine. Morrisons hope the change will prompt staff to be vaccinated.

Staff who have not yet had the chance to be double vaccinated by 1 October 2021 or those who have experienced Covid-19 symptoms will not be affected by Morrisons’ new policy.

However, concerns have been raised by Unite that the new policy could result in discrimination claims being brought against Morrisons, due to the associated human rights, moral and ethical issues.

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Care home workers to self-certify their medical exemption from a Covid vaccine

In September 2021, the Department of Health and Social Care (DHSC) proposed it will introduce a temporary system which will enable care home workers or volunteers who are exempt from  receiving the Covid-19 vaccinations to self-certify that they qualify for the medical exemption. Currently, the self-certification system also applies to care home workers and volunteers who have received their Covid-19 vaccine in a foreign country, but this exemption may expire if further guidance requires vaccines to have been authorised in the UK only.

The self-certification system will expire 12 weeks after the NHS COVID Pass system is launched, and the relevant workers and volunteers will then need to apply for a formal medical exemption.

This is an important development, particularly as care home workers and visitors will need to be fully vaccinated from 11 November 2021, unless they are exempt under the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021. 

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Covid-19 survey reveals that 70% of employers will require a fully vaccinated workplace

The following results were obtained from Indeed Flex’s recent survey of 400 HR directors:

  • 70% of employers stated they would introduce a mandatory Covid-19 vaccination policy for their staff;
  • 33% of employers stated their staff’s return to the office would be conditional upon them being Covid-19 vaccinated;
  • Only 15% of employers stated their staff members could return to the workplace regardless of their vaccination status;
  • Some employers have stated that their organisation has introduced policies, including paying less sick pay to staff members who must self-isolate but who have refused to have the Covid-19 vaccine.
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Automatic unfair dismissal for raising COVID concerns

Mr Gibson, the claimant, worked as a chef in a restaurant that was temporarily closed following the first COVID-19 lockdown When Mr Gibson was asked to return to work before the restaurant re-opened, He raised concerns regarding COVID-secure workplace precautions and the lack of PPE as he feared passing COVID-19 onto his clinically vulnerable father. The reply Mr Gibson received from his employer was to “shut up and get on with it”. Mr Gibson was then summarily dismissed by text message without prior discussion and without being paid any notice pay or accrued holiday pay.

Mr Gibson claimed unfair dismissal in the employment tribunal, and he won his case. The employment tribunal held that Mr Gibson’s dismissal amounted to unfair dismissal as he was trying to protect his father from what he reasonably believed was a serious and imminent danger. Additionally, since the employer’s text message used terminology implying a potential redundancy situation, the employment tribunal also held that he was unfairly selected for redundancy.

Mr Gibson was awarded payment in lieu of notice and accrued untaken holiday, underpaid furlough pay and unpaid pension contributions. 

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Guidance for Employers – Covid Vaccination Policy

Click here to read our information on Covid Vaccinations for Employers.

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COVID: Dealing with employees who holiday abroad

Who is required to quarantine?

From 17 May 2021, red, amber and green list rules apply when entering the Country from overseas, imposing three levels of quarantine obligations depending upon the country the employee has visited.

 What pay is an employee who is quarantined on return from overseas entitled to?

If an employee who has to quarantine can work from home during their self-isolation, they should continue to be paid as normal.

 If they cannot work from home, the position in respect of pay is not clear. Arguably such an employee is not able to work and so the implied right to be paid, which may be relevant if there was no legal requirement to self-isolate, would not apply.

 However, it may be arguable that, where an employee is subject to a restriction of this sort, their ability to work is not affected. If the employee is ready and willing, and the inability to work is the result of a third-party decision or external constraint, any deduction may be unlawful depending on the circumstances.

 An employee may argue that the government restrictions mean their inability to work is involuntary and an external, unavoidable, impediment.

However, if the overseas trip were booked in the knowledge that there would be a period of self-isolation at the end of it, it may be very difficult to succeed in arguing that the inability to work is caused by an extrinsic factor over which they had no control.  Different considerations may be needed depending on what colour country the employee has visited and whether the colour of that country changed while they were in holiday, such as the change in travel advice recently with Portugal.

 Are employees entitled to Statutory Sick Pay?

It is unclear whether employees are entitled to SSP. There are two possible ways in which SSP could be triggered:

  • The requirement to self-isolate is mandatory and underpinned by the criminal law. This means that it is possible that entitlement to SSP would be triggered under the deemed incapacity provisions in the Regulations. However, those provisions require that the reason for the restriction is that it is known or reasonably suspected that the individual is infected or contaminated by, or has been in contact with a case of, a relevant infection or contamination. It may be a stretch to argue that the mere fact of travelling (particularly from a country with a low rate of infection) would amount to a reasonable suspicion that they have come into contact with someone infected with COVID-19.
  • It remains possible that further regulations will be issued to amend the schedule to the SSP regulations to include self-isolation on this basis. However, where an employee has been on holiday, they have arguably voluntarily accepted the risk and the requirement to self-isolate, and the government may not be keen to fund periods of self-isolation which arise out of an individual’s voluntary decision to travel overseas.

 Are employees entitled to be paid annual leave?

Employees in this situation may wish to use their annual leave during the period of self-isolation so that they are paid in full rather than SSP or nil pay. However, if the employee does not wish to take annual leave then it is unlikely that the employer could force them to take their statutory annual leave because they will effectively be confined to their house and the rest and relaxation purpose of annual leave may not be met.

 What if employees don’t have enough annual leave left?

If Employees do not have sufficient annual leave remaining then they would be entitled to authorisied unpaid leave.

 For further information regarding any employment law related topic please contact Hannah Belton, Director and Head of Employment Law on [email protected]

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The importance of preparing a Power of Attorney

“Kate Garraway’s heart-breaking story of her husband Derek’s year-long battle with Covid has been made even more complicated by the lack of legal protection she and Derek had in place. Kate was unable to access funds to manage her husband’s care or refinance her mortgage. She didn’t even have the legal right to see his medical notes, owing to data protection.

Research by SFE, shows that 65% of us think our next-of-kin will make medical and care decisions for us if we are no longer able to. In reality, this isn’t the case unless a Health & Welfare Lasting Power of Attorney is in place. Whilst there’s been a rise in the number of enquiries made about Lasting Power of Attorneys (LPAs) during the pandemic, only 22% of people in the UK actually have one.

To avoid this difficult kind of legal situation it’s important to use a specialist lawyer who is experienced in this area of the law, and is trained to support people making these crucial, complex and difficult decisions. According to Which? 22,000 LPAs are rejected every year so it’s essential that you get your legal documents right.”

Janelle Carter-Jones, Associate Solicitor at Morgan LaRoche Solicitors and accredited member of SFE (Solicitors for the Elderly), the membership organisation for specialist solicitors who support older and vulnerable people.

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COVID-19 employment implications of vaccination

Click here to read our comprehensive Q&A on Covid vaccinations.

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Can I force my employees to have the vaccine?

The debate on whether to make the new COVID-19 vaccination mandatory for the public at large, not just employees, is a global one and different countries will reach different decisions. The UK Government has not to date made it mandatory for anyone and so there is no statutory basis on which an employer could potentially rely to compel an employee to get the vaccine.

The employment relationship is also governed by contract law which could be used as leverage. However, it is unlikely many employers will have a clause to cover this scenario. To introduce one would require either employee consent or a strong business case, but the whole purpose of exploring mandatory vaccination is to deal with those who won’t consent or who will argue that the disadvantages or detriment to them outweigh the business case.

In any event, whether you have a sufficiently drafted contractual clause or not, most commentators would agree that mandatory vaccination could risk a plethora of tribunal claims under the laws of unfair dismissal, discrimination, human rights and health and safety. Top of the list are considerations around diversity, pregnancy and how religion and belief might impact on a person’s choice. There would of course also be criminal liabilities for assault if an employer was considered to have physically enforced (or overseen such) vaccinations, though it is hard to imagine many employers in that scenario.

To avoid falling foul of the law, employers should avoid blanket policies and where possible, make decisions based on the facts of each case. It should also be remembered that vaccinations will not be the only means of controlling risk and in some situations, social distancing and hygiene measures may suffice.

If after careful risk assessment and ruling out all other measures, an employer requires an employee carrying out their daily tasks to be vaccinated, such as a carer, how should they treat an employee who chooses not to be vaccinated? Could they fairly dismiss such an employee? Employers should consider the circumstances and beliefs of that particular employee before making any decisions in that regard and always follow a fair procedure. Until case law is developed in this area or the government legislates, this will be a tricky situation and employers will need to tread carefully.

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Coronavirus Travel Advice

Click here to read our latest blog and find out what pay is an employee who is quarantined on return from overseas entitled to?

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Covid-19 – Job Support Scheme

The JSS was originally announced on 24 September 2020 as a scheme to support viable jobs in businesses facing reduced demand over the winter months due to COVID-19 (JSS Open). The government’s objective at that time was to encourage short-time working rather than redundancies. Subsequently, on 9 October 2020, the government extended the scheme to provide support to businesses whose premises have been legally required to close under local lockdown measures and tier three in England (JSS Closed).  The scheme will now begin in December 2020.  Click here to read our guidance

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Furlough – November 2020 – What we know so far…

  • The Coronavirus Job Retention Scheme (CJRS), remains available to businesses as of 1 November and will be open until December.

  • The Government will pay 80% of wages up to a cap of £2,500.

  • Flexible furloughing is allowed as well as full-time furloughing.

  • The Job Support Scheme, which was scheduled to come into effect on 1 November, has been postponed until the CJRS ends.

  • Neither the employer nor the employee needs to have previously used the CJRS.

  • The scheme is available in respect of employees who were on the employer’s PAYE payroll by 23:59 on 30 October 2020.

  • Employers need to report and claim for a minimum period of seven consecutive calendar days.

  • Employers will pay employer NICs and pension contributions and should continue to pay the employee for hours worked in the normal way.

  • The Government states that there will be no gap in eligibility for support between the previously announced end-date of CJRS and this extension.

For more information please contact the Employment Team on [email protected]