News & Updates
Navigate Data Protection Duties Whilst Following Contact Tracing Rules July 2021
With the imminent lifting of “lockdown” restrictions and the ending of the Coronavirus Job Retention Scheme (“Furlough”) we have compiled this list of FAQs in which we address topical areas of concern for employers and employees alike.
1. Should we insist that all working from home applications are made as formal flexible working requests?
It really matters not whether a working from home application is made formally or informally. In either case it will constitute an application for flexible working and must be dealt with by the employer in a reasonable manner. In terms of the flexible working rules employers can only refuse an application for one or more of eight reasons namely:-
• The burden of additional costs;
• Detrimental effect on ability to meet customer demand;
• Inability to reorganise work among existing staff;
• Inability to recruit additional staff;
• Detrimental impact on quality;
• Detrimental impact on performance;
• Insufficient work during the periods the employee proposes to work; or
• Planned structural changes.
Bear in mind that refusal to allow home working could constitute a provision criterion or practice for indirect discrimination purposes.
Employers are going to have to be able to demonstrate that working from home is not an option for one or more of the eight reasons. This could prove tricky where employees have been working from home during “lockdown”. Conversely, it does not automatically follow that just because working from home was acceptable during the “lockdown” it should become a permanent feature. It will be for the employer to show why such an arrangement cannot continue. We must bear in mind that working from home was imposed upon us, whether or not it suited either the employer or the employee and, by and large, the consequences for the employer’s business. Employers should therefore give careful thought as to why working from home is no longer an option.
There are advantages and disadvantages of insisting on a formal flexible working application. On the one hand once the application is rejected the employee cannot make another formal application for a year. On the other hand where the employee is able to show that the employer did not deal with the application in a reasonable manner the employee has recourse to the Employment Tribunal and can be awarded up to eight weeks’ pay.
2. Should employers simply maintain the status quo?
Now is the time for employers to decide whether or not working from home is the best option. If it is, it should be formalised with a variation to the contract of employment.
If the employer does nothing and simply continues on with arrangements put in place during the “lockdown” with the passage of time it will become more difficult to alter the working from home arrangement, that is unless there is some material change in circumstances. The employees will argue that by leaving existing arrangements in place, they have become incorporated into the contract of employment by custom and practice. There may be all sorts of reasons why working from home is no longer an option, not least of all the need to kick start the employer’s business with the reopening of the economy.
Bear in mind you have the option of a trial period which is often a good way of introducing a change to the working arrangements.
3. Does working from home set a precedent for others?
Where working from home for one employee is successful do you have to grant a flexible working request from another employee doing broadly the same work?
The success of the arrangement for one employee will make it difficult but not impossible to refuse an application by another. It might be that operations can function with one employee working from home provided the remaining employees in the team are in the office but this should be substantiated by subjective evidence. Likewise, it may be that employers know from experience gained during the lockdown that one employee is far more productive than another while working from home and that could justify you refusing the application by the less productive employee.
Employers will have to rely upon anticipated detrimental impact on quality or performance. One option might be to allow applications on a trial basis.
4. What if I have two flexible working requests and am only in a position to grant one?
Where there is no good reason for granting one application rather than the other, the safest course of action is to grant the one which was made first. This is objective and non-discriminatory.
A word of caution however. Be careful that the later application might be construed as an application by a disabled person for reasonable adjustments. Because of the legal obligation on employers to make reasonable adjustments for disabled employees, the employer would have to grant the later application. Note however this is only the case where the earlier application is undecided. If it had been granted by the time the second one was received, there is no obligation upon the employer to rescind that decision and to grant the later application.
5. Do employees have to justify working from home?
The answer is no. Employees are not obliged to give particular reasons for making the request (although invariably they will do so). There is nothing in the eight principal grounds for rejection which say anything about the employee’s personal circumstances. They all relate to the impact on the employer’s business and not to the employee.
Asking questions about why the employee is applying for flexible working could unwittingly cause an employer to discriminate and it is probably better therefore not to ask.
6. At the end of a trial period should the employer disclose reasons for failure?
It is essential that the employer tells the employee why the trial has been a failure. If you do not do so this will be interpreted as indicating that the employer had no intention of granting the application and could mean that the employer fails to satisfy the test of reasonableness in terms of the rules. Transparency is the key. Our recommendation is that at the outset of the trial period employers set key performance indicators to be met.
7. What are my obligations where an employee cannot come to work for childcare reasons?
Whilst the pandemic has substantially increased problems associated with childcare, it has not imposed any additional obligations upon employers and in particular there is no obligation upon an employer to provide work suitable to be done at home. The employee’s personal circumstances are not determinative. It is the impact on the employer’s business that is relevant.
As always however there is a “but”. Employers have to act reasonably and have to give proper consideration as to how to address the situation before taking any form of disciplinary action for non-attendance.
Consideration should be given to taking leave, paid or unpaid and to changes in roles and responsibilities.
Childcare responsibilities add an extra level of complication. It is one thing working from home but quite another doing so and looking after young children. As with many situations, the answer is probably to agree a trial period with key performance indicators to be met.
As always, employers should be wary of discriminating. An employer’s decision that a particular role cannot be done from home will constitute a provision criterion or practice for indirect discrimination purposes so in addition to being able to show that the employer acted reasonably, it will also have to demonstrate that the PCP was objectively justifiable.
8. Can employers insist on COVID-19 testing?
Government guidance encourages rapid flow testing. Whilst not 100% accurate, testing is entirely consistent with the obligations upon employers to adequately protect the health and safety of their workers. It is open to employers to introduce measures to compel employees to submit to a reasonable level of testing and enforce that through the disciplinary process, subject always to the usual rules of procedural fairness.
9. What if employees refuse to come to work because of the risk to their health?
Until recently Government guidance has been only come to work if you cannot work from home. This has undoubtedly provided employees with greater scope to insist that they work from home than was the case before the pandemic or under the flexible working rules. That position has shifted with the lifting of “lockdown” restrictions. In essence employees have to make a flexible working request which is assessed by reference to the eight reasons which the employer can rely upon to refuse the application. Again we emphasise that the employee’s circumstances are not relevant in the consideration of a flexible working request but employers are however reminded that by insisting that employees work from their place of work rather than from home, they are imposing a provision criterion or practice which could be indirectly discriminatory and has to be justified.
10. Can I insist that my workforce are vaccinated?
Unless you are in the health and care sector, the answer to this is no unless you have compelling reasons for doing so. Vaccination would have to be the most reasonably practicable way of mitigating a risk of COVID-19 in the workplace and this is likely to prove problematic.
There could be any number of reasons why an employee would refuse to get vaccinated. They may have a vulnerability which could constitute the protected characteristic of a disability. It may be because of their religion or beliefs or because they are pregnant, all of which are protected characteristics.
Employees do not require the usual two years’ continuous service to bring discrimination claims and employers are reminded that there is no limit on the compensation which can be awarded for such claims.
11. Should I incentivise my employees to get vaccinated?
The answer to this question is no as this is not an option referred to as necessary, or even desirable, in Government or ACAS guidance on the vaccination process. There are a number of reasons for this principally:
• Denying the incentive to those who are medically unable to get vaccinated might amount to disability discrimination and the more meaningful the incentive, the stronger that argument.
• People should not need to be incentivised to do something that is so obviously sensible for both their own health and for those of their co-workers and the general public. That said, employers should encourage their staff to be vaccinated. At the very least this might mean giving them paid time off to attend a vaccination clinic and not including vaccine related absence in sickness monitoring or intervention processes.
• There are good arguments under UK health and safety legislation that the employee is under a direct obligation in law to have the vaccination if the employer requests him or her to do so as part of their own antivirus precautions (medical exceptions excluded).
Please remember that we at WJM are here to help during this difficult time, please don't hesitate to get in touch if there is anything you think we can help with.
For any advice in relation to any particular aspects of the above, please contact a member of the Wright, Johnston & Mackenzie Employment team: Martin Stephen (firstname.lastname@example.org), Liam Entwistle (email@example.com), Andrew Wilson (firstname.lastname@example.org) and John Grant (email@example.com).
The information contained in this newsletter is for general guidance only and represents our understanding of relevant law and practice as at July 2021. Wright, Johnston & Mackenzie LLP cannot be held responsible for any action taken or not taken in reliance upon the contents. Specific advice should be taken on any individual matter. Transmissions to or from our email system and calls to or from our offices may be monitored and/or recorded for regulatory purposes. Authorised and regulated by the Financial Conduct Authority. Registered office: 302 St Vincent Street, Glasgow, G2 5RZ. A limited liability partnership registered in Scotland, number SO 300336.