January 2022 – FAQ’s


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.


If an employee’s contractual holiday entitlement is a number of days “plus eight bank holidays” are they entitled to an extra bank holiday that is granted one year?

No. Where a contract stipulates that an employee’s entitlement is limited to the normal eight bank holidays in England and Wales, there is no automatic entitlement to an extra bank holiday that is granted one year.

There is no statutory right for employees to take bank holidays as leave; the right to do so is down to the terms of the contract. Unless the employer decides to modify the terms of the contract to allow an extra day, there is no right for an employee to take the day off.

If the contract states that holiday entitlement is a certain number of days “plus bank holidays”, without specifying the number of bank holidays, employees would be entitled to the extra day.


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. Where vaccination is a legal requirement in a health or social care setting, employers will have a legal basis for requesting and processing data about employees’ status.

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.


What medical evidence can an employer request for coronavirus-related absence, when government advice is not to attend a GP?

Current government guidance is that, to prevent the spread of coronavirus (COVID-19), individuals with symptoms should stay at home and arrange to have a test, but that they should not go to see their GP.

Most sickness absence policies allow for employees to self-certify absences of up to seven days. Where an employee who is absent for more than seven days advises that they have coronavirus symptoms, the employer will need to make an exception to its normal requirement for medical evidence from the employee’s GP. Nevertheless, the employer should take all reasonable steps to verify the sickness absence. This could include requiring the employee to make regular telephone contact, and requiring the employee to explain what medical advice they have sought and followed.

If an employer requires evidence, employees who are staying at home because they have symptoms of coronavirus or have tested positive can get an isolation note from NHS 111 online. Employees can also get an isolation note if they are required to self-isolate because they share a household with someone who has symptoms or has tested positive, or they have been advised to self-isolate by the NHS test and trace service or the NHS COVID-19 app.

For the purposes of determining eligibility for statutory sick pay, employers are able to set their own rules on what evidence they reasonably require of employees’ illness. Legislation does not require that the evidence is in the form of a fit note.

On 17 December 2021, the Government introduced regulations temporarily extending the timeframe for employees to provide medical evidence for the purposes of statutory sick pay, from seven to 28 days. Where the Statutory Sick Pay (Medical Evidence) Regulations 2021 (SI 2021/1453) apply, employers may not require employees to produce medical evidence of incapacity to work within the first 28 days of absence. The increase applies to periods of absence beginning between 10 December 2021 and 26 January 2022 inclusive.


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.

People who are required to self-isolate after travelling abroad are not entitled to SSP, unless they are ill.


What should the employer do if an employee is reluctant to return to work as 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 have continued to advise employers to support employees to work from home if possible. In England, the working from home guidance has been lifted from 19 January 2022.

An employer should ask employees to attend the workplace only once 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.

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.

Where it is possible for the employee to carry out the work from home, the employer should consider whether it is genuinely necessary for them to attend the workplace. Employers should follow the government guidance and support employees to work from home if they can.

The employer must ensure that it is acting reasonably in requiring the employee to return, or it risks a claim of constructive dismissal. It should also be aware of the potential risk of discrimination, e.g. on grounds of disability or sex, depending on the employee’s circumstances.

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. Where employees cannot work from home, 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.

Ultimately, the employer 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.


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.


What should an employer do if an employee refuses to wear a face covering when this is required?

The legal requirements relating to face coverings differ in EnglandNorthern IrelandScotland and Wales as coronavirus restrictions are lifted at different rates across the UK. A face covering is something that safely covers the nose and mouth (they are often referred to as face masks, but they are different to the types of face masks that are required as personal protective equipment (PPE), for example in medical settings).

In addition to the legal requirements around face coverings, employers must comply with their existing health and safety obligations towards employees and customers. Employers must carry out a risk assessment to identify the measures necessary to prevent the transmission of coronavirus (COVID-19) in the workplace. Depending on the circumstances, this risk assessment may conclude that the use of face coverings in the workplace is necessary even where it is not a legal requirement.

Some people have been exempt from the legal requirements to wear a face covering, where they have a reasonable excuse not to wear one.

This includes where someone is prevented from wearing a face covering by a physical or mental illness or disability, or because wearing one would cause them severe distress (although the relevant regulations for Wales do not mention severe distress).

If an employee working in an environment where face coverings are required refuses to wear one, the employer should ask them for the reason. If the employee does not have a legitimate reason for not wearing a face covering, a failure to wear one is likely to be a refusal to follow the employer’s reasonable instruction and therefore grounds for beginning a disciplinary process.

Where an employee has a legitimate reason for not wearing a face covering, the employer should consider if their role could be adjusted so that they can keep at least 2m from others or be separated from others by a screen. The employer’s risk assessment should include consideration of other options, such as the use of a face visor/shield.

Employers must ensure that they do not discriminate against employees with a disability when enforcing rules on wearing face coverings. The employer should discuss with the employee what reasonable adjustments could be made.

Although government guidance has been that people do not need to provide medical evidence of their reason for not wearing a face covering, this will not necessarily always apply in an employment setting. Where it is necessary to consider reasonable adjustments for a disabled employee, or where the employer has reasonable grounds for thinking that the employee is falsely claiming to be exempt, the employer will generally be justified in asking for evidence.


If an individual whose employment comes to an end fails to return company property what action can the employer take?

If an employee fails to return company property at the end of their employment having been asked to do so, the employer should check the contract of employment to see if there is a return of company property clause. In particular, it should check if there is a clause enabling the employer to make deductions from the employee’s final salary payment in the event that company property is not returned.

It will be possible for the employer to make a deduction from the employee’s salary to cover the cost of the missing property only if there is a specific clause in the contract that permits this, or the employee has signed a written agreement giving their consent to the making of the deduction. Even if there is a clause, it must have been drafted in such a way that it represents a genuine pre-estimate of the loss or damage that the employer could suffer as a result of the employee’s failure to return the company property and it must not act as a penalty on the employee. Penalty clauses are unenforceable. In this case, it is likely that the clause would have to restrict the deduction to the second-hand replacement cost of the missing property.

If there is no appropriately drafted clause or agreement, the employer would have to make a claim in the civil courts against the employee for “trespass to goods” in failing to return the company property. If there is a return of property clause but either the employee has already been paid all outstanding wages or the clause does not cover deductions from the employee’s wages, the employer would have to make a claim in the civil courts for breach of contract and/or trespass to goods. The employer can claim damages for actual financial loss only; there are no damages for inconvenience. The starting point here would be for the employer to write a letter before action to the employee demanding that the property be returned within a certain number of days, failing which legal proceedings will be issued without further notice.

One final option would be for the employer to report the matter to the police to see if they are willing to investigate whether the criminal offence of theft has been committed. Unfortunately, in most cases, the police will say that the matter is a civil one because the employer provided the company property to the employee at the outset, meaning that there was no dishonest appropriation of the property. It is nevertheless worth the employer adding into the letter before action that the matter will also be reported to the police. In many cases, this will be a sufficient threat to ensure that the company property is returned.


Where an employee resigns but does not work the required notice period, must the employer pay them for this period?

Whether or not the employer must pay an employee for the notice period if they do not work it depends on the reason for them not working it.

In the absence of any agreement to waive the notice requirement, an employee who refuses to work the notice period required by their contract of employment will, technically, be in breach of contract. In these circumstances, there will be no duty on the employer to pay the employee for any part of the notice period not worked.

If, on the other hand, the reason for the employee’s resignation was a fundamental breach of contract on the part of the employer, the employee would be entitled to leave without notice. Again, the employer would not be obliged to pay for any part of the notice period that had not been worked, although it may be liable for compensation for the breach of contract.

If the employee does not work their full notice on account of agreed absence on holiday, then the employee will be entitled to be paid their normal contractual level of pay during the notice period. Similarly, if the employee was unable to come to work during the notice period because of sickness, they would be entitled to be paid statutory or contractual sick pay in the same way as an employee who had not resigned.

Finally, it is open to the employer and employee to agree mutually to waive the notice period, ie to bring forward the employee’s termination date. In these circumstances, the employer should make sure that the employee signs an agreement to this effect so that there can be no claim at a later date for unpaid wages.










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