I hope you had a fantastic Christmas and I wish you all a happy new year .
The Christmas break hasn’t slowed down the number of enquiries I get about workplace issues. I’m receiving many Covid related questions, so I think I’ll write a newsletter dedicated specifically to common Covid questions in the near future.
Besides Covid, we have the usual mix including, holidays, contracts, TUPE, health and safety and more in this week’s edition.
This is a free edition of the Tuesday Q&As. The remainder this month will be available to subscribers only. The special introductory subscription offer of £3.99 will expire at the end of January.
Covid 19
Q I work offshore in oil and gas industry they are pushing need for vaccination can they do that it's not in my contract about any vaccines! some companies are saying if you are unvaccinated you have to isolate for 5 days unpaid in a hotel before going offshore is that something that is legal ? And is it legal for them to ask for proof of vaccine and store that information? Any advice is greatly appreciated.
A This is an interesting question in two parts. And the answers are . . . . Probably for the first part and yes to the second!
The company have a duty to protect the health and safety of their employees. Given the accepted spread of coronavirus within confined spaces companies should do all they can to mitigate the risk to all staff. That doesn’t just mean being vaccinated. Social distancing, screening, adequate ventilation, sanitising and of course regular testing are all weapons in the armoury in the battle against the spread of Covid.
Given that care homes workers and those in the NHS require vaccination (NHS in April) to be permitted to attend work, it certainly places employers in a stronger position if they insist on vaccination. In your industry where a large number of individuals live and work in close proximity it is necessary to take all reasonable measures to mitigate the risk of spread. I can understand why companies are requiring unvaccinated staff to isolate and show a negative test result prior to moving offshore to work.
Very few contracts issued prior to March 2020 had any clauses in respect of vaccinations, be it Covid or any other disease (except the NHS). The question is now whether it is reasonable to make it a condition of employment that staff are vaccinated. If an employer can justify the need to be vaccinated as part of a robust health and safety risk assessment, it will have little difficulty (in my opinion) enforcing the requirement. I must stress though this is not a broad brush approach. The needs of the employer to provide a safe place of work must be balanced against the rights of any person refusing to take the vaccine or confirm whether or not they have been vaccinated.
Can you be asked for proof of vaccination? Yes - in some sectors employers have a mandatory duty to check. For those that don’t, they will need to show the reason why checks are necessary. The reason for ascertaining or recording your Covid status must be clear, necessary, and transparent. If your employer cannot specify a legitimate interest in collecting this information and are checking it on a ‘just in case’ basis, or if they can achieve that goal without collecting the data, they are unlikely to be able to justify collecting it in the first place.
The Information Commissioner has an excellent page devoted to GDPR issues associated with storing data, particularly in relation to Covid.
Holiday pay
Q Hi there, I work for a company and when we have annual leave we lose money as the company don’t pay us shift pay what makes are wages up as it’s 18 % so if we have a week or two off the next month we are our of pocket. But if they on days they don’t lose any money at all. This don’t sound right to me and not fair is there any rule about this at all?
A Your holiday pay should be the same as you are normally paid at work, which includes regular bonuses, overtime and shift pay, so it sounds as though your company are making an unlawful deduction from your pay. I suggest you raise a formal grievance, in writing, and if your holiday pay is not adjusted you can make a tribunal claim to recover the shortfall.
You must make the claim not more than three months since the last deduction and previous deductions can be included, providing there is not a break of three months or more between them. You can claim back for a maximum of two years.
Working time
Q Hi Business Doctor. If I have to pick up and take home a work colleague, should I have to do this in my own time unpaid. I’m employed by a company and have always argued that I should be able to do this in my day’s working hours. Please could you help advise me on this before we start again in the new year.
A If it’s an instruction from your company I suggest you should be paid because it’s ‘working time’. Whether you do it in your normal working hours or before your normal start time is between you and the company. You should ask the company to set down in writing what you are required to do and how you will be remunerated for doing it. If it is unpaid then I see no reason why you should continue.
Contract and holiday entitlement
Q I just wondered if you could help me? I have been working for a company for almost 2 years and they made me start at ridiculous hours mostly at 4am I am currently under 18 and I’ve been working over 40 hours a week for £4.62 an hour, i also have had no paid holidays. Since I started working there full time I have not had a contract written up although I’ve been told one was being put in place, i was unaware of the paid holidays and have just been told we do get them. What should I do?
Thank you in advanced
A You are entitled to a minimum of 28 days paid holidays per year. See my response above in respect of claiming holiday pay. You should also have a written statement of terms and conditions of employment (contract). I suggest you ask your employer to provide you with a contract. If you do not receive one you can go to an employment tribunal and ask that they determine the terms and conditions for you.
Should you be dismissed for raising the contract issue you can claim automatically unfair dismissal for asserting a statutory right.
Health and Safety
Q Various members of staff are complaining of headaches relating to the fumes from gas forklifts in our warehouse with very limited ventilation any information would be useful thank you
A This is a health and safety issue and should be addressed as a matter of urgency. I suggest you write a joint grievance to your manager requesting adequate ventilation as your health and safety is being put at risk. The company should have conducted a workplace risk assessment and identified the hazard emanating from the forklift fumes and put in measures to mitigate. Ask to see a copy.
If you are fobbed off, the company could be exposing itself to a health and safety claim. Section 44(1A) of the Employment Rights Act provides you with a statutory right not to suffer a detriment if you believe you are in serious and eminent danger and refuse to work or you leave the workplace. If you are subsequently dismissed as a consequence of refusing to work in the prevailing conditions it will be automatically unfair dismissal.1
TUPE
Q I've started working in September 2004. In June 2018 I TUPE over a new company but I didn't change my contract. When we started the furlough in march 2020 I noticed that I was having money deducted as the new contract while colleagues that TUPE with me on same contract didn't have any deductions. I query with HR the reason I was treated differently from colleagues with same contract but they never come up with a straight answer. In my contract Ive an allowance of 20 days + 8 in lieu days + 1 extra day per each year up to the first 5 years in holidays entitlement as per 8 hrs a day totalling to 33 days at year in holiday. Last year they told me I have an allowance of 225 hrs per year taking 8 hrs per day, so again I question what contract they have for me and send them the section of my holiday entitlement. Again no answer. Now I got covid and need to self isolate so I asked to make sure I would be treated as my original contract stated (full pay on sickness) and not as a new contract where they only get statuary pay. They now said that they don't have a contract in file for me from the TUPE only a cover letter! How do you think I should deal with the whole situation?
A I really hope you have a copy of your contract from the previous company before the transfer. When you are transferred virtually all your rights in your existing contract is transferred over too. So, your holiday entitlement remains the same as does your right to contractual sick pay over and above statutory sick pay.
My advice would be to provide a copy of your contract to your new company and ask that they adhere to your contractual terms. If you don’t have a copy, it is not the end of the matter. You are aware of the terms you were previously working to. Write them down and provide them to the new company. If there is a dispute in the future as to what they are, it will be your word against theirs. Remember, your evidence in this regard is first hand - they can’t say what holiday you received or what sick pay you were entitled to unless they can bring forward documentary evidence to the contrary. Did anybody else transfer over with you? Perhaps they could provide a copy of their contract to back up what you are saying.
I suggest you make a subject access request to your employer and ask that they provide all information in respect of the transfer which referred to you and/or contained your personal information.
Ultimately, you can make a claim to an employment tribunal for breach of contract if you do not receive the benefit of your contractual terms.
Confidentiality
Q Hi just before Christmas I had a faint line on a covid test in the morning so I didn't go into work and went for a pcr to be certain, The owner of my work is friends with my ex partners dad. My boss told my ex partners dad I had tested positive before I'd even got around to discussing it with my ex partner. I'm wondering if this is a breach in my privacy.
A Obviously you have to notify your employer if you have tested positive and need to isolate. You should explain to your employer that information provided to him/her under these circumstances is sensitive personal information and should not be disclosed to third parties under any circumstances.
Breaches of confidence, such as this, could potentially destroy the relationship of trust and confidence between you and your employer, leading to a claim for constructive unfair dismissal.
Vaccination
Q Over the past couple of years, I’ve experienced anxiety ,which as a male you don’t talk about how you feel etc .. but since being informed that I will need to be vaccinated to continue working in 4 weeks time I feel a whole lot worse in myself worrying and anxious. I contracted covid back in June or July LFT AND then PCR provide the evidence , so my own immune system beat it, now I have to have a vaccination which I feel I don’t need to have
A Many NHS staff will be unwilling to get vaccinated, but unless you can provide a medical exemption you will not be able to work after April. Check how to get a medical exemption online here. You do not have to explain to anybody why you are exempt - you receive a Covid pass just like everybody else.
Capability
Q 2 days ago I fell over on a wet floor and injured my ribs. My ambulance managers will not let me work until I'm pain free although I am still capable of doing my desk job. Is there anything written down in a legislation (if that's what you call it) or law you can point me in the direction of to prepare for when they ask? Many thanks.
A That depends on whether you want to return to work. If you are on full pay they can prevent you - basically suspend you, but if you only receive SSP and want to return to work and you confirm you are fit you should be allowed to return. It is not for an employer to assess your fitness - it is for your GP.
If you only want to return to do your desk job that will be up to your employer, which is entitled to refuse because you cannot work to the terms of your contract.