Employment Law Update. Costs, furlough, vaccinations and more Q&As!
Email: tim@tcsbusinessservices.com
Web: www.tcsbusinessservices.com
Compulsory Vaccinations for Care Home Staff from 11 November
The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 make COVID-19 vaccinations a condition of employment for workers engaged in care homes.
Care homes must ensure that a person does not enter a care home unless they are able to provide evidence that have been vaccinated. There are exceptions for those that cannot be vaccinated for clinical reasons, but for those who are anti-vaxxers or those who refuse the vaccine on philosophical or religious beliefs will not be exempt.
The government will be issuing full guidance shortly. As soon as it it released I'll publish the link.
Costs in Employment Tribunals
Costs are a rarity rather than the norm in employment tribunals. This is because it is a forum which is available to everybody wether they have representation or not and potential claimants should not be put off from making a claim for fear of a costs order. It was designed as a 'People's Court'.
That being said, costs may be awarded against a Claimant or Respondent in certain circumstances such as when a party or their representative has acted vexatiously, abusively, disruptively, or otherwise unreasonably in the bringing or conducting of the proceedings (or a part of them), or when the claim had no reasonable prospect of success.
I have just successfully defended a claim on behalf of an employer client whereby the employee brought claims of disability and age discrimination because they were dismissed. As the Claimant had less than two years' service he could not bring a claim of unfair dismissal so he attempted to get a claim in via the 'back door' and argued discrimination as such claims do not require qualifying service.
The tribunal unanimously dismissed the claims, particularly when the Claimant accepted under cross examination that the dismissal was for a reason unconnected with his age or disability.
I shall now be applying for a Costs Order against him. I had warned him at the outset that his claim had no reasonable prospect of success, but despite saying he had taken legal advice on a number of occasions, he chose to continue and put my client to great expense defending a spurious claim.
This situation appears to be occurring more frequently, as employees who do not have the requisite two years' service for an unfair dismissal claim seek to to have their case heard via another route. In my opinion, this is a clear abuse of process in addition to the claim being misconceived.
Furlough Scheme
From Sunday 1 August the Coronavirus Job Retention Scheme will change again. The government contribution to the furlough scheme will drop from 70% to 60%. Employers will have to pay the additional 20% in addition to national insurance and employer pension contributions. The Scheme will end on 30 September.
Labour have pledged full employment rights from day one of employment
It has been reported that the Labour Party will provide full employment rights from day one of employment, doing away with qualifying periods for the likes of statutory maternity, adoption, paternity and shared parental leave requests.
Flexible working requests will also be a day one right rather than having to wait 26 weeks, but most notable would be the right to claim unfair dismissal. The qualifying period has yo-yoed between one and two years since the 70s. It is currently two years but would be reduced to a day one right. I suspect this will not be popular with many employers!
They have also pledged to address those in bogus self-employment, gig economy workers and workers who are not classed as employees, bringing them under the umbrella of full employment rights.
A selection of TikTok Q&As and emails
Q 'What should you do if your Managing director (and business owner’s dad) is openly racist and sexist to other members of the team, and regularly insults your weight and size? There are elements of sexual harassment towards the younger more attractive ladies also…'
A Such behaviour has no place in modern society and it is right that you should be concerned. It is always difficult to address these issues, particularly in a small company, and in your case they should obviously be handled with a degree of sensitivity given the perpetrator is the MD and father of the owner.
Firstly, you should always try to address issues internally with your employer. Perhaps a quiet 'off the record' chat with the business owner may be sufficient, but if that is not possible then you have recourse to the company grievance procedure.
If your company doesn't have one, use the ACAS model procedure which you can source online. How do the rest of the workforce feel? Are they as concerned as you? If so you could write a joint grievance which would undoubtedly carry more weight. Employment Law does offer protection to those who raise grievances, particularly in relation to sex and race and any other protected characteristic.
Q 'Hi,I got my 1st covid jab last Friday and have been not well since,Problem is my boss is on the fone constantly either by text or have to speak to him and it’s getting me down more and more, Is there anything I can do to stop this happening'.
A Many people have suffered with the after effects of the jab - me included! Your employer is entitled to ascertain when you are likely to return to work and you should produce a fit note if you are absent for more than seven days. From an employer's perspective they need to know whether it is necessary to provide cover for your absence, hence the reason they keep calling you. I agree that calling you more than once a day is excessive, but I don't think it is unreasonable to check every day when you are likely to return.
My advice would be for you to make the contact either just before close of business the previous day or in plenty of time before your normal start time to let them know whether you will be in or not. I'm sure they will appreciate that and of course, it will maintain good relations between you.
Q 'I have been with a new company now for three months and I have now passed my probation period. I am thinking this job is not for me but I think I have a 3 month notice period as per discussion when I first joined. However I have not signed a contract or even been issued one, am I still bound by the three month notice period?'
A If you haven't signed a contract it would be hard for your company to insist that you agreed to a three month notice period. Sometimes many of the terms and conditions of employment are contained in your offer letter so please check that if you received one.
In the absence of any written term to the contrary, you are simply obliged to provide one weeks' notice to terminate your employment. However, it may be worth discussing this with your employer as they may want you to work a little longer in order for them to source your replacement. You could then negotiate a favourable reference by agreeing to a notice extension. It's worth considering.
Q 'Hi can u help my company have just done a new contract and they want to be able to put me on short time as and when it suits them.( if the work drops off). I always been on 40hours aweek. Do I have to accept the new contract and if I don't have to whats my next step.'
A This is a fairly common scenario, particularly as a consequence of furlough. Many companies are unsure if they will be able to offer work at the level they had previously and are inserting short time working or lay off clauses into contracts. In fact some Furlough Agreements have this very provision which alters the main terms and conditions of employment accordingly.
Without seeing the contract you are being offered I suspect they are seeking to insert a 'lay off clause'. This doesn't simply give them the right to reduce your hours as and when they feel like it, rather they would be able to ask you to remain at home for a period and claim a 'guarantee payment'. Sadly, this isn't very much - £30 per day for a maximum of 5 days in a three month period. See the Gov.Uk website for further details.
However, if the lay off continues for more than 4 weeks in a row (longer in some circumstances) you can request a redundancy payment.
If you refuse to accept the new contract your employer should negotiate with you. If agreement still can't be reached they will have to fire and re-hire you on the new contract. This is risky from an employers perspective as it can leave them open to an unfair dismissal claim whereupon a tribunal will rule on the reasonableness of the proposed change.
Q 'Hi there I've been watching a lot of your tik tok videos and wanted to ask you a question regarding furlough pay and how it works and what it is based on, I started working for my current employer January 2020 but was then furloughed by them at the end of March 2020 for 7 weeks, they originally told me that I'd get full contract hours pay (contract hours are 40, but I work actually 50) but then payed me 80% of my contract hours, does this sound right to you? I've noticed that other employers have payed 80% of the average weekly pay over the last 12 weeks, hope to hear from you soon'
A Yes, your employer should have paid you at 80% of the average hours you worked over the tax year 2019/20. I am assuming that you were paid for the hours you worked - i.e 50 hours per week. The government has issued guidance and worked examples (many!), so it is worth checking these out here.
Q 'Hi, my fiancée started a new job doing admin in February, then found out she is pregnant in March (Not ideal). On 6 months probation, had an update meeting on Thursday only to be told everything she has done is wrong, does not know what she is doing etc. Asked what she is doing wrong for them to reply “everything”. Since the meeting continued to send her work to do… (even though everything is apparently wrong). They said they might extend her probation and they aren’t sure how this would effect maternity pay being in probation period. Never once has she previously been told anything is wrong with her work. This has caused her to be very upset and not want to go back. They meeting was with HR (owners sister), and finance manager (who she is meant to be working under). Strongly believe they using this as an excuse to get rid of her due to being pregnant. Any advice?'
A This does sound rather suspect! the probationary period does not affect her eligibility to maternity leave/pay.
My advice would be for her to request in writing the issues the company are having with her work. Ask the company to fully detail every one so that she can address them if needs be. If she can go back to work she should. Ask her to keep a written record of all conversations and meetings with her employer. It may be that her employers are genuinely unhappy with her performance and this will give them the opportunity to fully set out their concerns.
Often people will resign and make a claim of constructive dismissal and sex discrimination in these situations, but constructive dismissal cases are, in my opinion, harder to establish than those whereby an employer has dismissed for an unlawful reason. She will shortly be able to take her maternity leave so it is worth hanging on until that time.
Q 'Hi Tim,
Can an employer take on temp staff while they have staff on furlough. Also can they employ new staff during this time.'
A My opinion is that an employer can do both. I'm yet to find legislation or guidance which precludes hiring new staff whilst some are furloughed. I would suggest that any employer contemplating such a move be considerate and show sensitivity to the staff who are furloughed.
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