Employment Law Update. No Jab No Job! Too hot to work 🔥
Email: tim@tcsbusinessservices.com
Web: www.tcsbusinessservices.com
Proof of COVID Vaccination
In the care home sector, staff will have to demonstrate that they have had a complete course of their Covid 19 vaccination (unless exemptions apply) as of 11 November 2021 (this does not cover booster doses).
As the penalty for allowing an unvaccinated person into the home is significant, the ‘registered person’ or person acting on behalf of them (care home owner/manager) needs to satisfy themselves of the identity of the person entering the home and their proof of vaccination.
This begs the question; ‘What proof is required to show that someone has been vaccinated?’
There are currently three ways to ascertain proof of vaccination status (England only).
Via the NHS app
Via the NHS website, or
The NHS Covid Pass letter
Note: The little blue NHS appointment card cannot be used as proof of vaccination status.
For those vaccinated outside the UK who don’t have any of the above, the government is working on a solution which will be up and running (hopefully) before 11 November 2021.
There are several exceptions, namely:
the person is a resident of the home,
it is reasonably necessary for a person to provide emergency assistance in the care home,
it is reasonably necessary for a person to provide urgent maintenance assistance to the care home,
a person is a member of the emergency services in execution of their duties,
a friend or relative of the resident visiting the resident,
a person is visiting a resident who is dying,
it is reasonably necessary for a person to provide comfort or support to a resident in relation to a resident’s bereavement following the death of a relative or friend; or
the person is under the age of 18.
So, in a nutshell, if you are a gardener and do not enter the home you are exempt. However, if you are a funeral director attending a recently deceased person then you will need to show proof of vaccination. A person delivering post is exempt if they do not enter the premises but if they must carry a heavy package indoors then they need show proof of vaccination.
Temperatures in a place of work
It's hot! With the temperature on the rise again, I’m often asked what is the maximum working temperature a worker should endure. Believe it or not there are no maximum or minimum workplace working temperatures in the UK.
Government guidance is taken from the Health and Safety Executive approved Code of Practice. It states that the minimum working temperature should be no less than 16 degrees celsius. If the work involves rigorous physical effort, the temperature should be at least 13 degrees celsius. These temperatures are not absolute legal requirements; the employer has a duty to determine what a reasonable level of comfort will be in the particular circumstances.
As for a maximum working temperature, that depends……
The code of practice states: 'A meaningful figure cannot be given at the upper end of the scale due to the high temperatures found in, for example, glass works or foundries. In such environments it is still possible to work safely provided appropriate controls are present. Factors other than air temperature, ie radiant temperature, humidity and air velocity, become more significant and the interaction between them become more complex with rising temperatures.'
At the end of the day it boils down to (excuse the pun), what is reasonable in the circumstances. An office environment at 30 degrees with no air con or suitable ventilation is clearly unacceptable, just as is working in the supermarket freezers with no PPE. It is incumbent on an employer to assess the health and safety risks for their workers. Failure to do so, or failure to address concerns raised by staff in this respect, could leave an employer open to a claim for constructive dismissal on health and safety grounds.
TIP We are seeing more and more weather extremes due to climate change. Take action now to assess the risk in your workplace and implement controls to alleviate health and safety risks in a timely manner. Always act on complaints/grievances. If a number of staff are complaining about their working temperature, there is clearly an issue which needs to be addressed.
In the News
A 'kick in the teeth’. British mothers and pregnant women fear return to workplace Full story
Hotel housekeeper, 69, who was paid £1.41 an hour, refused holiday for three years and forced to sleep in a CELLAR is awarded £55K in compensation after her boss sexually harassed and treated her 'like a servant' Full story
NHS gender identity clinic whistleblower wins damages Full story
Underperforming £110,000-a-year executive who regularly 'went missing' and turned up late WINS unfair dismissal claim after he was sacked for trying to claim £60k on expenses Full story
A selection of TikTok Q&As and emails
Q 'Just a quick query, after seeing some of your fab Tiktok videos.
I'm expected to attend a mandatory refresher training course, the day after working a night shift in a Care Home. I'll be working from 8pm-7.30am the day before, then expected to attend training from 10-4.
I've only received notification of this via text msg from a work colleague and have no childcare in place, in addition to it being 2.5hrs after a night shift. Can I politely request that they rota me for training on a day which doesn't follow a night shift and if they decline this request and I do not attend, could I receive a penalty (written warning etc)?'
A You have effectively been given a break of 2.5 hours between shifts. I would argue that this is unreasonable by any stretch of the imagination. Whilst the Working Time Regulations in respect of length of night work, daily rest, weekly rest and rest breaks are not applicable to your particular job, your employer still has responsibility for your health and safety. Furthermore, are you contractually bound to attend training during the daytime? Check what your contract states, but in any event it is unreasonable to expect you to attend the training immediately following a night shift.
Could you receive a written warning for non attendance? Yes; but your employer would have to follow the correct process by calling you to a meeting, allowing you to be accompanied and given the right of appeal if necessary. If you are still unhappy with the resultant warning, you may consider your employer has breached the mutual term of trust and confidence between you both and subsequently resign. This would leave the door open to you for a constructive dismissal claim.
Q 'Hi Tim, I am a trainee and on a trainee programme in work. I work with the UKs biggest construction company who are sponsoring my degree. As such i had to sign a training agreement. The agreement is that if i obtain my degree and leave straight away in year 1(post degree) then I pay back the full sponsorship agreement 3k per year x 4. If I leave within the 2nd year post degree I pay half back. Is there any way for me to get out this if I wanted to leave but couldn’t afford to pay back due to my salary being so low?'
A This is fairly common with companies wishing to protect their investment in you - the employee or trainee. It is commonly known as a Recoupment of Training Costs Agreement and works on a sliding scale based on the time you remain with the company following the completion of the training course. The last thing your employer wants to do is spend a large sum on providing you with a degree qualification to enable you to do your job and then see you head off to a competitor organisation as soon as you are fully qualified.
To be effective the agreement must be in writing and signed by you. It appears it was so you will undoubtedly be bound by it. If you leave and can't afford to pay it back, your only option is to have a conversation with your employer to see if they will accept payment in instalments.
Q 'Ive recently taken over as manager of a small kids club and one of the employees who was due to return last week from a long off on furlough said she had fallen and dislocated her knee.
My question is because of the nature of our work looking after children can I ask an her for evidence of the injury if the employee is saying they can only do light duties?'
A Ouch - sounds painful!
Firstly, it's up to you whether you have a position for her undertaking light duties. If you don't then she should remain off work on statutory sick pay or contractual sick pay if you have it. Generally a fit note will state what limitations there are for an employee returning to work and that should be sufficient.
If she is returning to work on light duties it may be fairly obvious to you that she has a knee injury without the need for any additional evidence. If this persists you have the option of asking her to attend an occupational health assessment in order to ascertain when she will be fully fit.
Q 'Just a quick query, I am in my probation period and have not yet signed a contract, I was given one and not asked to sign but neither party have signed.
Is this standard for a probation period and will sign after? In your personal opinion or if I don’t sign, does that mean anything written in the contract is void, or is me accepting the job and responding with relevant documents enough to confirm we have a signed contract without actually signing?.
A Ideally both parties should sign the contract when it is issued. The Statement of Terms and Conditions of Employment (contract) are a day one right and it looks as though you have been provided with yours in line with your employer's legal obligations.
An unsigned contract does not necessarily mean that the terms contained within it are invalid or void as you state. In your case you have been provided with the contract and, I presume, have worked to the terms within, albeit only during your probationary period. Nonetheless, I would suggest you have accepted the terms by remaining at work without querying any of them.
There are occasions an unsigned contract may work to your advantage such as when an employer seeks to make a deduction from your pay. If the deduction is not agreed in writing it will be an authorised deduction (subject to statutory exceptions) and cannot be made.
See the question above in respect of training costs. Without explicit authorisation in writing an employer would struggle to enforce a Recoupment of Training Costs clause/agreement without prior written consent.
Q 'Hi Tim, I am currently signed off work by my GP, I have received text message from manager saying I need to attend an occupational health meeting. This is scheduled whilst I am still signed off, do I need to attend this meeting? Any advice would be appreciated.'
A It sounds as though your employer is attempting to assess when you are likely to return to work and what, if any, adjustments they may need to make to enable your return.
A GP is not an employer's best friend. I mean that figuratively speaking. GPs undoubtedly write accurate fit notes but if you present at the surgery with back ache you will leave with a fit note for 4 weeks rest and recuperation. I mean this as no criticism of GPs who do an extremely difficult job, but employers need someone to assess your health from a work perspective.
I'm assuming that you have been provided with the correct information regarding your rights in respect of this process. You can refuse to attend the meeting, but that may work against you. A refusal would leave your employer having to make a decision on your future employment based on the limited information they have at their disposal. If you subsequently claimed against them for unfair dismissal or discrimination they would rely on your refusal as justification, or part justification, for reaching the decision they did. In my opinion, it's better to go the the occupational health meeting.
Q 'Here's an awkward one. Got made redundant not voluntary. NHS gave me a month gross for every year worked. Trouble is it would have been 11 years meaning 11months but they paid off my last few months to bring me under the 11. So they paid me 10. My argument is that I wasn't allowed to see out my 11 years because they paid me off early by giving me the 12 months I would have had to work in cash. Did it purely to avoid paying an extra year.'
A It sounds as though they are not allowing you to work your notice period to prevent you attaining eleven complete years' service. Many contracts are worded so as to state that the employer may terminate your employment and pay you in lieu of any notice period.
You need to check your contract and also check if there is an NHS Redundancy Policy. I suspect there is and this scenario is probably covered in there. This is something they deal with on a very regular basis.
Q 'I’ve just seen your profile on TikTok and think it’s great what you are doing. Keep it up !
I also have a question of my own. If my “normal” working ours are 40 but in my contract it says I can be asked to work up to 48 hours, but as I am salaried this would bring my hourly rate to below national living wage. Is this legal?
Many thanks.'
A It's not legal if you actually work those 48 hours. If you divide your salary by the number of hours you work over a reference period and your pay drops below the National Minimum Wage you are suffering an unlawful deduction from pay. You must be paid the NMW rate applicable to your age.
The pay reference period is the period of time you are actually paid for, e.g. weekly or monthly. The reference period cannot be in excess of 31 days.
Q ' My boss has said we won’t be allowed to work if we are not double jabbed. I work in a car dealership. Can they do that?
A Yes, but it may leave them open to a tribunal claim. The only occasion at present where an employer can insist that you are vaccinated if you want to remain at work is in the case of care homes, which I discuss above.
This is becoming a hot topic of conversation and has yet not been tested in the courts. We need to make a distinction between those who have two years or more continuous service and those with less. An employer can dismiss an employee with less than two years' service with little prospect of facing a tribunal claim unless of course they have a protected characteristic such as sex, race, age genre etc. Those with more service will be better protected from unfair dismissal claims.
So, if you have over two years' service, in a car dealership setting, I believe it would be extremely difficult to insist on vaccination to allow you to continue to work. Your employer would have to undertake a health and safety risk assessment and establish that vaccination is the most reasonable way of mitigating the risk of catching Covid 19 and then, that your refusal to be vaccinated is a health and safety breach. It's a long shot and it may be argued that in your sector there are other ways to mitigate the risk.
This is an evolving subject and hopefully we will receive guidance soon, but in the meantime employers should tread very carefully.
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