Can employers use the NHS Covid Pass to check employees’ coronavirus status?
In England, people can obtain an NHS Covid Pass to show that they have:
- completed a full course of vaccination, in England, at least 14 days ago;
- evidence of a negative PCR or lateral flow test within the last 48 hours; or
- proof of natural immunity shown by a positive PCR test in the last 180 days (once they have finished self-isolating).
NHS guidance on the Pass indicates that it is primarily intended for use by customers attending events and venues and the Terms of Use of the Pass specifically state that it is not intended to be used by employers for the purpose of checking the COVID-19 status of their employees. However, use for this purpose is not prohibited and employers may consider using the Pass as part of their approach to providing a COVID-19 secure workplace.
A separate pass is available for travel abroad from England. In Northern Ireland, Scotland and Wales, people can obtain a record of their vaccination status, but the NHS Covid Pass is not available for domestic use in the same way as in England.
If an employer is considering using the Pass to check employees’ coronavirus status, it must be clear about the reason for doing this. It must comply with its data protection obligations, unless it checks Passes without scanning the barcode or recording any personal data.
Employers using the Pass will need to decide whether to make it mandatory or voluntary, taking into account the organisation’s coronavirus risk assessment and the other measures in place to prevent infection. Employees must be made aware of the consequences of not obtaining a Pass. Adopting a mandatory approach will raise potential employment law issues but will present less of a risk than a policy of mandatory vaccination, as employees have the option of taking a test as an alternative to vaccination. Employers should ensure that employees have access to lateral flow tests.
Where employees have been vaccinated in other parts of the UK, or abroad, employers should be prepared to accept suitable alternative evidence of their vaccination status.
Can employers ask employees if they have had a coronavirus (COVID-19) vaccination?
An employer that intends to ask employees if they have been vaccinated against coronavirus (COVID-19) must be clear about its reasons for doing so. To comply with its data protection obligations, it must ensure that it has a legal basis for processing such information and that it complies with the conditions for processing special category data (relating to employees’ health) under the UK GDPR.
The Information Commissioner’s Office has published guidance for organisations on when collecting vaccination data can be justified. Depending on its reasons for asking about vaccination status, an employer may be able to rely on its legitimate interests and compliance with employment rights and obligations as the basis for processing such data.
It is likely to be easier to justify collecting such information in certain workplaces, for example in a health or care setting where coronavirus presents a specific risk.
Employers should consider carrying out a data protection impact assessment before collecting vaccination data.
If it does collect this personal data, the employer must ensure that it is kept securely and that it is shared only with the specific people who need to access it. It must be kept for no longer than necessary. An employer could consider keeping anonymised records, if its aim is to monitor levels of vaccination across the workforce, rather than recording whether specified individuals have been vaccinated.
The employer must provide employees with information about how and why their vaccination data is being processed. This could be an update to an existing privacy notice or could be provided as a separate document.
Employers should be aware that an attempt to impose a mandatory vaccination policy would risk a number of legal claims and employee relations issues.
Must employees who are exempt from the duty to self-isolate still inform their employer if they are a close contact of someone with coronavirus?
In England, employees have a duty to inform their employer if they are required to self-isolate having been informed by NHS Test and Trace that they have been in close contact with someone who has tested positive for coronavirus (COVID-19). The duty to inform the employer does not apply if the employee is covered by an exemption from the requirement to self-isolate.
Exemptions apply (in England) where the individual:
- has been fully vaccinated for at least 14 days before the contact;
- is below the age of 18 years and six months (under the relevant legislation, the exemption applies only to those under the age of 18, but government guidance states that 18-year-olds will be treated as exempt until six months after their birthday, to give them time to be fully vaccinated);
- has taken part in an approved COVID-19 vaccine trial; or
- is not able to get vaccinated for medical reasons.
The exemptions differ slightly in Northern Ireland, Scotland and Wales.
Even where an employee is exempt from the requirement to self-isolate, there is a chance that they may be infected with coronavirus and able to pass it on. Therefore, as part of their health and safety measures to prevent the spread of coronavirus in the workplace, employers may want employees to inform them if they are a close contact, even where they are covered by an exemption. The employer could decide to advise employees in this situation to obtain a PCR test and to work from home, if possible, while they wait for the result.
When considering implementing a policy on this area, employers should consult with employees. Any policy should avoid the need to record details of the reason for the employee’s exemption from the self-isolation duty.
Employees who have symptoms or who have tested positive must still self-isolate for the full period. The exemptions apply only where the employee is a close contact of someone with coronavirus.
When can an employer demote an employee lawfully?
A demotion could occur in a number of circumstances, for example as a disciplinary sanction, the outcome of a performance management process or part of an organisational restructure. A demotion could involve a change to the employee’s status, responsibilities, job title and/or salary. However, as a demotion is likely to involve a change to the employee’s terms and conditions, the employer must ensure that it is not in breach of the employee’s contract.
To avoid a breach of contract, the employer should obtain the employee’s agreement to the demotion. The employee may be prepared to accept a demotion as an alternative to dismissal. For example, the employee may agree to take a less senior position following a performance improvement procedure, if the alternative is dismissal. Or the employee may accept a demotion as part of a restructure, where the alternative is redundancy.
There may be a clause in the employment contract that allows the employer to demote the employee in certain circumstances, for example as a disciplinary sanction, or a general clause allowing it to change the employee’s terms and conditions. Even where there is such a clause, the employer should ensure that it is acting reasonably. It should consult the employee over the change, making sure they understand the reason behind it, and attempt to obtain their agreement. Where the demotion is an alternative to a dismissal on the grounds of misconduct or underperformance, the employer must have followed the relevant procedure.
If the employer goes ahead with the demotion without the employee’s consent or the contractual right to impose it, the employee could continue to work under protest and bring a breach of contract claim, or they could resign and claim constructive dismissal. An alternative to imposing such a change would be to dismiss and re-engage the employee on new terms.
If an employee is advised to self-isolate to avoid the risk of spreading coronavirus, are they entitled to sick pay?
Employees who are staying at home in accordance with government advice or advice from the NHS test and trace service, are entitled to statutory sick pay (SSP), even if they are not ill.
Current government guidance is that anyone who has a high temperature, a new continuous cough and/or a loss of, or change in, their normal sense of taste or smell should stay at home (i.e. self-isolate) for at least 10 days from the onset of symptoms. If they live with others, everyone in the household should stay at home for 10 days, even if they have no symptoms, unless they are covered by an exemption. Someone without symptoms who has tested positive for coronavirus (COVID-19), must self-isolate for at least 10 days from the date of the test.
People may also be instructed by the NHS test and trace service to self-isolate if they have had close recent contact with someone who has coronavirus. There are exemptions from this requirement, which differ in the different parts of the UK.
People who are required to self-isolate after travelling abroad are not entitled to SSP, unless they are ill.
Does an employer commit an offence if a worker who is required to self-isolate attends work?
Where a worker is instructed to self-isolate because they have tested positive for coronavirus (COVID-19) or because they have been in close contact with someone who has tested positive (where they are not covered by an exemption), their employer must not require or allow them to break their isolation to attend work.
From 28 September 2020, it is an offence in England for an employer knowingly to allow a worker or agency worker to attend the workplace (or any place other than where they are isolating) for any purpose related to their employment, during the isolation period. The offence applies only where the employer is aware of the requirement for the worker to self-isolate. The penalty for such an offence is a fine of between £1,000 and £10,000.
Workers have a duty to inform their employer if they are instructed to self-isolate during a period when they are due to be attending work. They must inform the employer of the start and end dates of the isolation period, as soon as reasonably practicable and, in any event, before they are next due to start work. It is an offence for a worker to fail to give their employer this information.
An agency worker has a duty to inform the agency, the principal (i.e. the hirer) or their employer (if they are employed by a separate party) if they are instructed to self-isolate. That party must then inform the others.
If a worker is due to be working from home (or the location where they are required to self-isolate), the duty to inform the employer of their self-isolation does not apply. Employers can require workers to work remotely, at the location where they are isolating, during the period of self-isolation.
What is a hybrid worker?
A hybrid worker splits their working time between the workplace and a remote location. This could be the worker’s home or another location.
This may be within the context of a hybrid working model that applies to the whole workforce or sections within it. An individual could also be known as a hybrid worker where they have made a flexible working request to work remotely for part of the time.
There is no single model for hybrid working. An employer that implements a hybrid working policy will need to define its approach. For example, it could set out a minimum number of days on which employees must attend the workplace, or it could give employees more flexibility to choose their working pattern, within the needs of the business.
What should the employer do if an employee is reluctant to return to work when the coronavirus restrictions are lifted?
Employers should recognise that many people will naturally be nervous about attending work and increasing their risk of contracting coronavirus (COVID-19). If an employee is reluctant to return to the workplace, the employer should explore their reasons and try to address any specific concerns they have, taking their individual circumstances into account.
The Governments of Northern Ireland, Scotland and Wales continue to advise employers to support employees to work from home wherever possible. In England, the Government is recommending “a gradual return [to workplaces] over summer”. Where it is not possible for employees to work from home, the employer should ask them to attend the workplace only if it has taken all reasonably practicable steps to reduce the risks from coronavirus. Employers should communicate clearly with employees about the measures that have been put in place.
If an employee is reluctant to attend the workplace because they have health concerns that make them vulnerable from coronavirus, the employer should discuss alternatives with them, taking into account the duty to make reasonable adjustments, which is likely to apply in many cases. It may be appropriate to keep these employees on furlough for longer than other employees.
If an employee has concerns about using public transport to get to work, the employer should discuss with them if there are options to allow them to travel at a quieter time, by changing their start time for example. The employer must comply with the duty of mutual trust and confidence, and so should consider if it is fair and reasonable to expect the employee to use public transport. The fact that some employees are prepared to use public transport does not necessarily mean that it is reasonable to expect others to do the same.
If the employer is confident that it is reasonable to instruct the employee to attend work, after putting in place measures to control the risks and exploring the employee’s individual circumstances, the employer must consider its options. One option is to ask the employee to agree to a period of unpaid leave. If they do not agree to this, the employer may decide to withhold their pay in any event. The employer also has the option of taking disciplinary action leading to dismissal, although this option is likely to present more of a risk, in terms of tribunal claims and reputational damage, than withholding the employee’s pay.
Where a new employee is no longer able to start work on the agreed date, can the employer retract the offer of employment?
Whether or not an employer can retract a job offer where the employee cannot start on the agreed date will depend on whether the date was an agreed term and condition of the employee’s employment or simply a proposed start date. If the job offer letter clearly sets out the start date and the employee signed in acceptance of this, if the employee can no longer comply with this, they will usually be in repudiatory breach of the contract of employment, enabling the employer to terminate it. This means that the employer can retract the job offer. However, before doing so, the employer should advise the prospective employee that a failure to start on the agreed date will result in the offer being withdrawn, thus giving them the opportunity to reconsider their position.
Where the start date is being delayed by only a day or so, this may not amount to a repudiatory breach of contract because the breach may not be sufficiently serious. This means that the employer cannot automatically terminate the contract of employment. The employer’s remedy for breach of contract in this case would simply be not to pay the employee for the days not worked. Similarly, where the reason for a failure to start work on the agreed date is due to sickness or incapacity or falls within one of the statutory time off rights (for example the right to reasonable time off to care for dependants) this will not amount to a breach of contract on the employee’s part.
If the date was only a proposed start date and was still under discussion, the prospective employee may be able to assert that no date had in fact been agreed as a term and condition of employment and therefore they have not breached the contract by not being able to start on a particular day.
If an employer failed to follow its procedures for employees on probation would a dismissed probationer have any redress?
Giving an employee the status of “probationer” does not give the employer the right to terminate the employee’s employment without the employee having any legal recourse. Where it is a term of the employee’s contract of employment that the employer will follow a disciplinary or other procedure (such as a redundancy procedure) prior to the employee’s dismissal and this is not followed, the employee could claim breach of contract. If they can show that conducting the procedure would have taken time and therefore extended the period of employment, they will be able to claim as damages lost wages for the time that the disciplinary or other procedure would have taken. In most cases, the compensation awarded tends to be a sum of approximately three to four weeks’ pay.
So, if an employer dismisses an employee on probation for conduct reasons without following a contractually binding disciplinary procedure, the employer is at risk of a breach of contract claim for failing to follow its own procedure.
An employee who is on probation is unlikely to have the required length of service to be able to claim unfair dismissal. However, they would be able to bring a claim if the dismissal is for an automatically unfair reason, such as pregnancy or whistleblowing.