Can an employer require an employee to attend work if they test positive for coronavirus but are asymptomatic?
The legal requirement for people who test positive for coronavirus (COVID-19) to self-isolate is removed in England from 24 February 2022. However, employers must still comply with their legal obligations to protect the health and safety of their employees and others.
The requirement to self-isolate after testing positive remains in place in Northern Ireland, Scotland and Wales. Employers must not require employees to attend the workplace in these circumstances.
Following the removal of the self-isolation duty in England, the government guidance COVID-19: people with COVID-19 and their contacts confirms that public health advice for people who test positive is to stay at home and avoid contact with other people. The guidance states that they should not attend work. It is left to the individual to choose whether to take lateral flow tests after five days. The guidance states that individuals can safely return to their normal routine with negative results on consecutive days if they do not have a temperature.
To comply with their health and safety duties towards employees, employers should encourage employees who test positive to follow the Government’s recommendation of staying at home. In particular, employers should keep in mind their duties towards employees who are clinically vulnerable from coronavirus, where working alongside colleagues who have tested positive would put them at a particular risk.
Employers should allow employees who have tested positive but who are asymptomatic to work from home if possible. Where employees cannot work from home, employers should consider providing sick pay even when this is not a contractual obligation or statutory entitlement, to avoid the spread of coronavirus infection if positive employees attend the workplace.
Until 24 March 2022, statutory sick pay (SSP) continues to be available for employees who have tested positive but who are not ill. The Government has said that entitlement to SSP will revert to the pre-pandemic rules from 24 March 2022 (ie it will depend on incapacity for work).
When does overtime have to be included in holiday pay?
Holiday pay must be calculated on the basis of the employee’s normal pay. Where an employee normally works overtime, this should be included in the calculation of their holiday pay.
Overtime that the employer is contractually obliged to offer and that employees are required to work must always be included in holiday pay. In Bear Scotland Ltd and others v Fulton and others; Hertel (UK) Ltd v Woods and others; Amec Group Ltd v Law and others [2015] IRLR 15 EAT, the Employment Appeal Tribunal (EAT) held that regular overtime that is not guaranteed, but that employees are required to work when it is offered, must also be included.
There is no definition setting out how regularly overtime must be worked for it to be included, but the general principle is that pay that is “normally received” should be included in holiday pay. If an employee has worked a settled pattern of overtime over a period of time, payment for that overtime is pay that they normally receive and must therefore be included in holiday pay. Where there is no settled pattern of overtime, the employer should calculate average pay over a reference period leading up to the period of annual leave, although the courts have not addressed what a suitable reference period would be.
The Court of Appeal addressed the question of whether or not overtime that is voluntary must be included in the calculation of holiday pay in East of England Ambulance Service NHS Trust v Flowers and others [2019] IRLR 798 CA. It held that voluntary overtime must be included if it is part of a pattern of work that is sufficiently regular and settled for payments made in respect of it to amount to normal remuneration. This will be for tribunals to decide on the facts of each case.
The right to be paid for non-guaranteed overtime in holiday pay derives from case law of the European Court of Justice, and so applies only to holiday pay for the four weeks’ minimum annual leave under EU law, not to the additional 1.6 weeks provided for by the Working Time Regulations 1998 (SI 1998/1833). Employers should decide their policy on how to treat the additional 1.6 weeks’ statutory minimum leave and any additional contractual entitlement, but may decide to include pay for overtime in all holiday pay to avoid complicating the administration of payments.
What is an employee’s holiday entitlement if an extra bank holiday is granted one year?
If an extra bank holiday is announced to mark a particular occasion, for example a royal wedding or the Queen’s jubilee, whether or not employees are entitled to an additional day’s holiday will depend on the wording of the employment contract. Employees do not have an automatic right to paid time off on a bank holiday.
If the employment contract states that the employee’s annual leave entitlement is a certain number of days plus bank holidays, they will be entitled to the additional day off. However, if the contract states that the entitlement is to a certain number of days, and is silent on the issue of bank holidays, the employee will not be entitled to an additional day’s leave. Neither will the employee be entitled to an extra day if entitlement is expressed as a certain number of days “plus eight bank holidays”, or if the contract specifies which bank holidays are included.
Even where employees do not have a contractual entitlement to paid time off on the additional bank holiday, employers should consider providing this as a gesture of goodwill, where possible, or providing time off in lieu if employees are required to work on that day. Employers that ignore the additional bank holiday should be prepared for a negative reaction from their employees.
Must an employer disclose notes and witness statements produced during a grievance or disciplinary procedure if an employee requests them?
Employees have the right under the UK General Data Protection Regulation (retained from EU Regulation 2016/679 EU) to request access to information about them that is held on file, whether manually or on computer. For example, an employee who has raised a grievance and is not satisfied with the outcome may request copies of the written evidence on which the decision was made, including statements obtained from witnesses; or an employee about whom a grievance has been made may request evidence relating to the complaint. The employer can refuse to disclose the document in question if its disclosure would also reveal information about a third party who can be identified from the information, unless the third party has consented to the disclosure or it is reasonable in all the circumstances to comply with the request without their consent.
The employer should not automatically refuse to disclose a document if a third party, for example a colleague who has given a witness statement, does not consent to it being released. The employer should consider taking steps to anonymise the document before disclosing it. This might involve:
- blanking out the witness’s name and any other information from which they could be identified;
- editing the statement to conceal the identity of the witness; or
- where there are several witness statements from different employees, preparing a summary of the information contained in the statements.
Ultimately, the employer should take a reasoned decision about whether or not it would be reasonable in the circumstances to disclose a witness statement or other document. This will involve balancing the witness’s right to privacy against the employee’s right to know what information is held about them, and its source.
Where a disciplinary investigation results in the decision to proceed to a disciplinary hearing, the employer should provide the employee with copies of any witness statements and other written evidence that will be referred to in the hearing. The employee has the right to know the case against them and to be able to challenge it, so evidence should be anonymised or withheld only where there is a strong reason for doing so.
The Acas code of practice on disciplinary and grievance procedures, which is taken into account in relevant tribunal proceedings, states that it would normally be appropriate to provide the employee with copies of any written evidence with the notification of the disciplinary hearing. The non-statutory guide that accompanies the code states that the employer should give copies of any meeting records to the employee, but states that protecting a witness is an example of a circumstance in which withholding information may be appropriate.
How should an employer calculate a term-time worker’s paid holiday?
There is no specific legislation setting out how to calculate holiday pay for term-time workers. Employers must ensure that the paid holiday of term-time workers is not less favourable than that of full-time workers (as this would be unlawful under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551)). Employers must also ensure that term-time workers receive at least the statutory minimum entitlement of 5.6 weeks’ paid annual leave a year. The employer can designate periods during the school holidays to be the term-time worker’s annual leave and pay holiday pay in instalments over the year.
Where a term-time worker has regular hours during term time and their salary is paid in equal instalments over the year, to ensure that they are receiving the minimum statutory paid holiday, the employer can add 5.6 weeks on to the number of weeks the employee is contracted to work during the year, before averaging their pay out into equal instalments. For example, for an employee who is contracted to work 39 weeks a year, the pay that is averaged over the year must be based on at least 44.6 weeks of work.
For term-time workers without regular hours, the employer can still pay holiday pay in instalments over the year (for example, monthly or at the end of each term) ensuring that it amounts to at least 5.6 weeks’ pay. In Harpur Trust v Brazel [2019] IRLR 1012 CA, the Court of Appeal held that the holiday entitlement of term-time workers should not be pro rated to that of full-year workers. The calculation of a week’s pay for term-time workers with irregular hours should be based on the average hours worked during the 52 weeks before the calculation date, not counting weeks in which no pay was due (s.224 of the Employment Rights Act 1996).
Term-time workers are entitled to 5.6 weeks’ paid holiday, even if this works out more favourably than comparable full-time workers when calculated as a proportion of the actual number of days worked during the year.
In Harpur Trust, the employer had based its holiday pay calculation on 12.07% of the employee’s hours each term, following Acas guidance relating to casual workers. This was found to result in the employee receiving less than 5.6 weeks’ holiday per year.
Employers should be aware that Harpur Trust has been appealed to the Supreme Court. The appeal was heard on 9 November 2021 and the decision of the Court is awaited.
During maternity leave an employee is not entitled to the benefit of terms and conditions relating to remuneration, but what counts as “remuneration”?
Under reg.9 of the Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312) “only sums payable to an employee by way of wages or salary are to be treated as remuneration”. Remuneration includes the monetary payments under an employee’s contract that are replaced by maternity pay during maternity leave. It also includes contractual sick pay (Department for Work and Pensions v Sutcliffe EAT/0319/07). However, it does not include benefits such as the accrual of annual leave, life or health insurance cover or personal use of a mobile phone or company car.
It is difficult to establish whether or not some benefits constitute remuneration. For example, it could be argued that a car allowance is a benefit that does not comprise wages or salary for work done, and therefore that it is not remuneration. However, it could also be argued that, because a car allowance is a cash benefit and regarded as an uplift on salary attracting national insurance contributions, it is wages or salary and is therefore not payable during maternity leave.
Bonuses are another area of contention. Whether a bonus is contractual or discretionary and the reason for its payment impacts on whether or not it amounts to remuneration. For example, a contractual bonus that makes up part of an employee’s pay, such as a performance-related bonus payment, is likely to be classed as “remuneration” and therefore not be payable during maternity leave (although it would amount to sex discrimination not to pay the proportion of the bonus that relates to the period when the employee was at work). Arguably, a bonus that is not part of normal salary, such as a discretionary Christmas bonus, could come outside the definition of remuneration and be payable.
What are the possible outcomes of a grievance?
Having investigated an employee’s grievance and held a meeting with the employee to discuss it, the employer should consider whether or not to uphold the grievance and what, if any, action to take.
The employer could decide to uphold the grievance in full, uphold parts of the grievance and reject others, or reject it in full. If the employer upholds the grievance wholly or in part, it should identify action that it will take to resolve the issue.
In the course of the grievance hearing, the employer should obtain the employee’s views on what action they would like to be taken and the employer should take this into consideration when making its decision. If the employer decides that the employee does have a legitimate grievance but there is nothing practicable that can be done to resolve it, it should explain its reasoning to the employee so that they can see that the employer has given serious consideration to the matter.
If the grievance uncovers failings in the employer’s procedures, policies or practices, the employer should ensure that it rectifies the issue as soon as possible. If the grievance involved allegations against a particular individual, for example the employee’s line manager, the appropriate outcome may be to commence disciplinary proceedings against that individual.
The employer should ensure that it follows its own grievance policy and any other relevant policies when making the decision. It should consider how similar grievances have been dealt with in the past and aim to handle all grievances consistently, unless there is good reason for not doing so.
Should an employer deal with an employee’s poor performance through its disciplinary or capability procedure?
Whether an employer should deal with an employee’s poor performance through its disciplinary or capability procedure will depend on the nature of the poor performance. The employer will need to carry out an investigation, which will include meeting with the employee concerned, to establish whether the employee’s poor performance is conduct or capability related. If it is conduct related (i.e. the employee has some control over their actions), it is appropriate for the employer to follow its disciplinary procedure. However, if the employee’s poor performance is capability related (i.e. they do not have control over their failure to meet the employer’s standards of performance), it will be appropriate for the employer to follow a capability procedure for performance management.
It is not always obvious whether an employee’s poor performance is due to capability or conduct. In some cases it will be a combination of the two. The employer may need to adopt the procedure that appears to it to be the most appropriate, and change course if the evidence that emerges suggests that this is necessary. Irrespective of which procedure the employer follows, it should comply with the Acas code of practice on disciplinary and grievance procedures.
In what circumstances might it be appropriate to extend an employee’s probationary period?
An extension of the probationary period may be appropriate where the employee’s performance is unsatisfactory but shows some signs of continuing improvement. In this case, extending the probationary period will allow the employer an opportunity to decide whether or not the employee will be able to meet the required standard, for example with further training or practice.
Where the employee has been absent from the workplace for a significant proportion of the probationary period, for example on sickness absence, an extension of the probationary period may be necessary to allow the employer to evaluate their performance over a reasonable period of time.
An employee will not obtain the right to claim unfair dismissal until the completion of two years’ service. The employer should take this into account when deciding the length of any extension, although it is unlikely that it would be appropriate for a probationary period to last more than two years in any event.
Does an employer have to pay holiday pay to its casual workers?
Yes. Every worker (whether an employee or otherwise) is entitled to 5.6 weeks’ paid annual holiday, and (as is more likely, given the short-term nature of casual workers’ engagements) accrued holiday pay on termination, calculated from day one of their contract.
If you would like any advice on supporting employees going through the menopause, or have any questions around this topic, please contact one of the Westcountry HR team today!