Probation & Covid-19
Recruiting has never been an easy task to undertake but recruiting in a pandemic has been even more of a challenge for businesses. A once thriving industry with an abundance of applicants may now find it hard to find the talent or the funds to hire an applicant may suddenly not be available.
Running a business is a challenge for every company but with the pandemic financial difficulty has been a common issue across the world and across many industries. Businesses initially had the funds to hire new employees, then the company takes an unforeseen hit and is no longer in the financial position to keep these new hires, so what can they do if this happens?
When considering terminating a contract of employment during the employees probationary period as a cost-saving measure, the company should first explore alternative options, for example, the availability of government assistance. Since the pandemic hit the UK Government has been trying to help businesses retain their employees through government assistance. It may be in the employer’s best interest to retain their employees during the pandemic in order to avoid having to repeat the recruitment process when the economic situation improves, especially if the employee is performing well in their role.
When new employees are hired every employee has a probationary period to allow both the employee and the employer see if they are a ‘good fit’. If an employer decides to proceed with terminating the contract of an employee on probation for economic reasons during the pandemic they must ensure the reasons for the dismissal are explained to the employee and correctly documented. Assuming the employee has less than two years’ service with the company they will be unable to claim unfair dismissal unless the dismissal was for an automatically unfair reason, for example, they could claim they were really dismissed for making a complaint about health and safety in the workplace. The employer will also need to be able to demonstrate that the dismissal was not discriminatory as dismissed employees do not need to have two years’ service to bring a discrimination claim.
The employer must give the employee their contractual notice or the statutory minimum which is set out in the Employment Rights Act 1996, section 86 (1), whichever is greater, or make payment in lieu of notice. If an employer makes payment in lieu of notice when it is not provided for under the contract of employment this will be a breach of contract and therefore they are unable to enforce any post-employment restrictive covenants. If there is a contractual dismissal procedure the employer must follow this in order to avoid a claim for breach of contract.
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Vaccinations & The Workplace
With vaccinations rolling out we expect to see the vast majority of healthy adults receiving the vaccine over late summer and early autumn. Thus, providing some optimism for employers who can start planning to return their employees to the workplace. This raises questions such as; can employer’s ensure employees’ health and safety when they return to the workplace? Can employers mandate that all their employees be vaccinated before returning?
Under The Health and Safety at Work etc Act 1974, it is the employer's responsibility to provide a safe working environment for their employees, therefore it is not unreasonable for an employer to want to have their workforce vaccinated. In the past year safety protocols have been introduced making it essential for employers to ensure these protocols are fully implemented if they intend on having their employees return to the workplace, subject to the restriction levels in force.
While it has been highly recommended by the governing bodies that everyone receives the Covid-19 vaccine, it is not mandatory in the United Kingdom. This leaves employers in a challenging situation; while they are seeking to ensure they have a safe workplace for their employees, they cannot force their employees to get vaccinated and it is very unlikely that the UK Government will introduce any laws stating employees are obliged to take the vaccine. Therefore, what are the main considerations for employers?
1.Assess the Risk
Under The Health and Safety at Work Act, an employer must carry out a risk assessment of the workplace and any potential risks that have been identified must be addressed. As scientists are still not clear on whether the vaccine prevents the spread of Covid-19 it is vitally important that employers insist that all employees follow the safety protocols in place whether they have been vaccinated or not.
Employees also have responsibilities under The Health and Safety at Work Act to work together with their employer to protect themselves and their colleagues from potential risks; this could reasonably include the risk of Covid-19 infection. Employees must adhere to all guidelines and protocols implemented by their employers.
Communication is crucial; while employers cannot force their employees to get vaccinated, they can emphasise the importance of the vaccine to their employees and that it would help to return business to normal. Employers should also provide as much information from appropriate sources to educate and inform their employees. An employer may also highlight legitimate circumstances where vaccination is not recommended.
2. Avoid Potential Discrimination
Under the Equality Act 2010, employees are protected from discrimination on the nine grounds including religion, age and disability. An employee may decide not to get the vaccine for a number of reasons that would fall under these specific grounds, such as a medical condition or their religious beliefs. Therefore, it is important to note that any mandate by an employer that employees need to take the vaccine could constitute discrimination under this Act.
3.Managing Employees who Refuse Vaccination
There is little an employer can do if their employee refuses to get the vaccine however, understanding their concerns is important and finding solutions that meet the business needs without infringing on their rights is crucial in managing their integration into the workplace. Extending remote working may be a solution however this may not be viable for all sectors of your company. Employers need to think carefully about any action they take and consider the potential legal consequences associated with these actions.
4.Data Protection Concerns
As part of assessing the risks, employers will certainly want to know who has or has not been vaccinated before bringing employees back to the workplace. In order to process this personal data, there must be a legal basis to do so, the grounds for which are set out in the General Data Protection Regulations. Employees are not legally obliged to provide personal medical information.
While employees are not obliged to provide personal medical information, employers may seek vaccination information on the foundation that they are meeting their legal obligations under The Health and Safety at Work etc Act 1974. It will be up to the employee if they wish to volunteer this information to their employer. If they choose to volunteer this information, then employers should not disclose this information to other employees. As this type of medical information falls under the sensitive category of Special Category Personal Data, then under GDPR and data protection laws there are additional protections afforded to the processing of this information. If an employee volunteers the fact that they have not nor intend to avail of the vaccine, it should be emphasized that there may be legitimate medical reasons why someone may not receive the vaccine.
In conclusion, given the fact the vast majority of the working population will not be returning to the workplace until later this year, it is hoped that the vast majority will have availed of the vaccine. However, communication and planning are essential in ensuring a smooth transition when the return to the workplace occurs. Employers must ensure health and safety policies and procedures are updated, risk assessments are carried out and adhering to safety protocols, all of which are essential in getting people back into the workplace. Remember to be mindful and respectful of an individual’s right to not avail of the vaccine and plan accordingly by offering alternative working arrangements where appropriate and avoid any situation which may constitute discrimination thus leading to legal issues.
Bright Contracts has recently updated its software to include a COVID-19 vaccine policy applicable to any business/ industry.
You can avail of a free trial of the software or purchase a Bright Contracts licence to adapt these policies to your business today or book a demo of the software.
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- How To Manage Annual Leave Requests After Furlough
How To Manage Annual Leave Requests After Furlough
With the coronavirus pandemic, some employees will be on furlough meaning they are not working. However, it is important for employers to note that employees who are on furlough still accrue annual leave. This is because the contract of employment continues during this period.
Employees are permitted to take annual leave while on furlough, without their furlough period coming to an end. If they choose to do so, the organisation will need to top up their pay to 100% of their normal wages if they are receiving reduced pay while on furlough.
Dealing with Excess Annual Leave
As the UK draws closer to the end of lockdown and employees return to the workplace from furlough, managers may be in a situation where a number of employees will ask to take annual leave at the same time, particularly when they have leave to take before the end of the leave year. Where possible managers should allow the leave however, they need to ensure business continuity therefore they will need to balance the employee’s request about the timing of leave against the needs of the business.
Line managers may wish to require employees to take annual leave during furlough, for example to avoid a build-up of leave that employees will need to take when they are back at work. If an employer requires an employee to take annual leave while on furlough, the employer should consider whether any restrictions the employee is under, such as the need to socially distance or self-isolate, would prevent the employee from fully utilising their annual leave for the purpose of resting, leisure time etc. Managers should be aware of the company’s approach to annual leave for the period of furlough before making any decisions.
Standard employment law provisions state that employers can require employees to take annual leave as long as they give twice as many days’ notice as the period of leave the employee is required to take. For example, if the employer requires the employee to take two week's annual leave at a certain time, the employer must therefore give the employee at least four weeks' advance notice (or what is outlined in the contract of employment).
Bank Holidays & Furlough
Where a bank holiday falls within an employee’s period of furlough and the employee would have usually worked the bank holiday, their furlough will be unaffected by the bank holiday. However, if the employee would usually have had the bank holiday as annual leave, the employer should either pay the employee in full for a bank holiday or allow them to take a day's annual leave at a later date.
If a worker on furlough takes annual leave, an employer must calculate and pay the correct holiday pay in accordance with current legislation. It is not permitted for an employer to buy out an employee's statutory annual leave entitlement, i.e. give the employee a cash substitute (except on termination of employment). This prohibition on buy-out applies to the entire period of statutory annual leave, i.e. 5.6 weeks. Where an employer grants annual leave in excess of the statutory minimum, the employer is free to make its own rules and arrangements regarding buy-out in respect of the portion of annual leave that exceeds the 5.6 weeks.
To prevent workers losing their holiday and to enable key workers to keep working, the normal rules on carrying over annual leave have been modified. The Government has amended reg.13 of the Working Time Regulations 1998 to allow workers to carry over up to four weeks' annual leave into the next two holiday years, where it has not been feasible for them to take it as a result of the effects of coronavirus. These amendments to the Working Time Regulations 1998 apply to all employees.
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