Employment Law Archives - MLP Law

Wider range of health professionals able to grant fit notes

Gareth Matthews, Head of Employment at MLP, outlines and considers new legislation aimed at increasing the number of health care professionals able to issue fit notes.

What is a Fit Note?

A fit note is a doctor’s statement providing a statement on an employee’s fitness for work, after an employee has been absent for a certain period of time (usually 7 days). In recent years, there has been a move away from describing such documents as sick notes or sick lines – shifting the emphasis away from describing the employee’s ill health and, instead, adopting a more positive approach, focusing on what can be done to ensure the employee is ‘fit’ for work.

New Legislation for Fit Notes

The Department for Work and Pensions (DWP) has announced new legislation that will allow a wider range of healthcare professionals, like occupational therapists, physiotherapists, and pharmacists, to certify and issue ‘fit notes’. The legislation will come into force from July 2022 and applies to general practice and hospital settings across England, Scotland, and Wales.

According to the DWP, the legislation will ease pressures on doctors, whilst also simplifying the process of issuing and receiving a fit note which provides evidence to an employer regarding absence and may provide relevant advice on how to support employees to remain in or return to work.  The DWP has stated that this will allow patients to see the most relevant healthcare professional and have improved conversations about work and health.

Comment

It is clear that this move has been undertaken with the primary focus of easing the burden on the NHS. From an employer’s perspective, however, it may also assist with the benefit and management of sickness management procedures, as it will make it more difficult for employees to delay in providing fit notes (for instance, by arguing that they have not been able to obtain a GP appointment). This will augment an employer’s sickness absence procedures, allowing the employer to react quickly to absence, either by introducing supportive measures to allow the employee to return or to commence a formal capability process.

If you would like advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.

Employee Ownership Trust – Is it an option for you and your business?

With the news that Carlton Bingo becomes the latest well known company to become employee owned, is it an option to consider for you and your business?

Employee Ownership Trusts (EOTs) are an established mechanism aimed to promote employee ownership by giving business owners the opportunity to sell their shares to an employee owned trust free from capital gains tax.

In summary, a company seeking to transition a controlling (more than 50 percent) ownership to an EOT can consider three methods:

Indirect employee ownership – the employees do not own shares in their employer company directly, they are beneficiaries of the trust which owns the controlling shareholding. This method of ownership is suited to businesses with higher staff turnover and a larger number of employees who desire tax-efficient profit-share.

Direct employee ownership – the employees directly own shares, typically in conjunction with a statutory tax advantaged share plan over shares in the ultimate parent company.

Hybrid Model – This is a combination of trust ownership and employee direct share ownership. Typically, retiring vendors sell their share interests to the EOT when it is first established and then over time some of this interest is transferred to employees. The hybrid model suits businesses where the emerging new managers desire a real ownership stake in the business but there is a desire by original founders to preserve independent control of the business.

Why set up an EOT?

  • Allows an exit where there is no obvious third party purchaser.
  • Can provide a quick and streamlined exit route for shareholders.
  • Allows a tax free disposal by UK individual shareholders.
  • Owner can retain some involvement (up to 49%).
  • Share capital still available to incentivise management and key employees.
  • Aligns the goals of stakeholders and employees.
  • Improved employee retention and morale.
  • Encourages innovation at all levels.
  • Improved business performance by driving growth of stakeholder values.
  • Employee ownership encourages employee engagement

Tax benefits:

  • Owner: Disposals into the trust can be made free from capital gains tax and inheritance tax.
  • Employee: The EOT can pay annual bonuses of up to £3,600 to employees free of income tax.
  • Company: A corporation tax deduction for the value of the bonuses will be available to the company.

For a copy of our guide, please email leanner@mlplaw.co.uk. If you wish to speak to our experts at MLP Law for more information and professional guidance please contact our employment and business teams on corporate@mlplaw.co.uk

The Changing Landscape of the Workplace

Welcome to our series of blogs, addressing post-lockdown issues from a legal perspective.  This week sees the latest blog, from our MLP employment team, looking at the changing landscape of the workplace.

Our blogs over the coming weeks will address a full range of topics across all our services – including our corporate, employment, commercial property, private client and family departments –  as we explore various post-lockdown challenges and opportunities.

Over the last year, working life has changed radically.  Employers and employees have been forced to implement more flexible working patterns and adapt many aspects of the working day (or night), in response to the coronavirus pandemic and lockdowns. 

One such key change has been the increasing emphasis on working from home.  Indeed, the coronavirus pandemic and resulting lockdown culture has seen large numbers of the UK’s working population, particularly office workers, work from home.  In April 2020, 46.6% of working people did some work at home; of those, 86.0% did so as a result of the coronavirus pandemic.

Furthermore, experts say that increased homeworking during the pandemic may have reduced the negative stigma sometimes associated with men requesting less conventional, flexible working arrangements – with some employers  reporting a 66% increase in flexible working requests from men (* poll conducted by Working Families in September 2020).

The data also suggests a longer-term shift in working practices, with more employees likely to be working flexibly or remotely for at least part of their working week, even after the pandemic has ended.  So, with all that in mind, we address some of the issues that employers should consider in relation to flexible working.

Flexible Working Request

Who can make a flexible working request?

Employees with six months’ service have a statutory right, once in a year, to make a flexible working request.

What can they request?

Employees can apply to:

  • change how many hours they work, and/or
  • when that work is done, and/or
  • where that work is done – as between their home and their employer’s place of business

How should an employer respond?

An employer should consider the request in a reasonable manner and respond, in writing, within 3 months of the request being made (or a longer period, if agreed with the employee).  The employer may only refuse an application if one or more specified grounds apply:

  • the burden of additional costs
  • detrimental effect on ability to meet customer demand
  • inability to re-organise work among existing staff
  • inability to recruit additional staff
  • detrimental impact on quality
  • detrimental impact on performance
  • insufficiency of work during the periods the employee proposes to work
  • planned structural changes

Homeworking

Responding to a request to work from home

In many flexible working requests, the employee’s request is to work either all, or part, of their working week from home.  Pre-pandemic, it has been relatively easy for some employers to reject homeworking requests on one of the above grounds.  Now, however, the coronavirus pandemic has provided an extensive, and often successful, experiment in homeworking, it is likely to be more difficult for the employer to reject a request without evidence, that, for example:

• during homeworking:

◦ the needs of a customer or client have not been met, eg a complaint

◦ the quality of the employee’s work has been impaired, or

◦ productivity or performance has been reduced, or

• once the workplace has re-opened properly, the employer will not be able to re-organise tasks fairly between workplace-based staff and home-based staff (eg because workplace-based staff would have to take on the burden of mundane physical tasks).

Benefits and challenges of working from home

Yet, working from home does present an opportunity for employers.  Businesses could capitalise on some of the advantages that it offers, particularly in respect of staff morale (reducing presenteeism), improving work/life balance and productivity (no commute and fewer distractions) and reducing some of the costs associated with having many individuals in the workplace at the same time (for instance, the emergency milk run for endless cups of tea and coffee!).   It is clear that each individual’s homeworking experience will be varied, depending on many factors such as the nature of their role or their level of seniority and experience, but employers who have either already had, or invested in, effective IT systems and software and support will likely have found some benefits to the arrangement.

Whilst there are some challenging aspects of homeworking, such as employees feeling disconnected from work colleagues or having difficulty ‘switching off’ and maintaining the line between home and work, it is likely that more consideration will have to be given by employers to such requests, or at least to a hybrid arrangement, with the hope that both parties can ultimately benefit.

Policies

As ever, when significant changes are being made to normal working practices, clearly defined boundaries and expectations in relation to both the employer and employee are best outlined in a policy.  This can then be contained within a Staff Handbook or issued when such requests have been granted.

If you have any questions or concerns about the above, please get in touch with the MLP Law Employment team at employment@mlplaw.co.uk or 0161 926 9969. Please also keep an eye out on our Twitter feed @HRHeroUK and for our regular blogs on all things Employment Law and HR.

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Updated shielding guidance

From 1 April 2021, employees categorised as “extremely clinically vulnerable” are no longer advised to shield, in an update to shielding guidance published by Public Health England.

This puts extremely clinically vulnerable on the same footing as all other employees and there is no change to the general recommendation that all employees should wpork from home wherever possible. However, extremely clinically vulnerable employees who cannot work from home are now able to attend their place of work.

Again, like all employees, extremely clinically vulnerable should still continue to comply with general lockdown laws and adopt the basic protective measures we are now all familiar with, such as maintaining social distancing, frequently washing hands and wearing a mask.

If you have any questions or concerns about your obligations to employees as your workplace opens up following lockdown, please get in touch with the MLP Law Employment team at employment@mlplaw.co.uk or 0161 926 9969. Please also keep an eye out on our Twitter feed @HRHeroUK and for our regular blogs on all things Employment Law and HR.

Is a “no jab, no job” policy really enforceable?

We all understand that an employer cannot compel an employee to be vaccinated.  Any physical attempt to do so is likely to constitute a civil wrong (the tort of trespass to the person), and also the criminal offence of battery or assault.

But we all also understand that an employer can use other forms of compulsion, such as the threat of disciplinary action or even dismissal, to pressure an employee to take up the offer of a vaccine.  The question , therefore, is what are the legal limits of an employer’s ability to require an employee to take up the vaccine.

The ACAS guidance on getting the coronavirus vaccine for work states that, in most circumstances, it is best to support staff to get the vaccine, without making it a requirement.  We would suggest that this is the approach that an employment tribunal would expect a reasonable employer to take in the vast majority of cases.

It may also be useful to consider some concerns that employees may have – such as having to take time off to attend a vaccine appointment or feeling unwell after having the vaccine – and attempt to address and alleviate those concerns.  Would you consider paid time off to allow employees to have the vaccine during working hours or paying full pay rather than SSP if an employee has to take time off as result of vaccine side-effects?

Potential Claims

An employer who introduces a ‘no jab, no job’ policy but cannot show that it is necessary is likely to be at risk of claims, e.g.:

  • for indirect discrimination:
  1. from younger employees who cannot get a vaccine because they do not fall within a priority group for vaccination;
  2. from those who refuse the vaccine because of a religious or philosophical belief (which could in theory include those who are ideologically opposed to vaccines in general, so-called ‘anti-vaxxers’, if it means the definition applied by employment law regarding what constitutes a philosophical belief); or
  3. From those who cannot have the vaccine because of a disability or some other medical reason i.e. pregnancy.
  • for constructive unfair dismissal, on the basis that the requirement breaches the implied term of trust and confidence

Moreover, in some workplaces, other measures (which are expected to remain in the short to medium term – such as handwashing, social distancing and masks) may be sufficient to provide a Covid secure working environment, making mandatory vaccination harder to justify.

Disciplinary Action

Can refusing the vaccine be a conduct issue?

It is likely that it will only be possible for the employer to treat an employee’s refusal of the vaccine as a conduct issue if:

  • the requirement to be vaccinated is contractual right, or a reasonable management instruction;
  • vaccination is necessary, and
  • the employee’s refusal is unreasonable.

This means that there will be some employers who can require an employee or worker to have the vaccine as an occupational health requirement – each situation will have to be considered on its own facts – but it is likely that asking staff to take the vaccine (when it is offered to them) is more likely to be regarded as a lawful and reasonable instruction where:

  • as part of their duties, an employee needs to travel to countries for which vaccination is necessary and these duties cannot be carried out from home;
  • the employee in question works with the clinically extremely vulnerable;
  • vaccination is more likely to protect work colleagues or others such as patients, customers or visitors (more likely to be the case in a setting such as health or social care where other work colleagues are also being offered vaccination); and/or
  • the workplace cannot be made ‘Covid secure’.

Conversely, asking staff to be vaccinated in a low-risk setting, or one in which staff have been able to work from home effectively, is unlikely to be regarded as a lawful and reasonable instruction.

Dismissal

In order to demonstrate that dismissal is fair and within the range of reasonable responses open to an employer, it would first need to show that, by refusing to be vaccinated, the employee had refused a reasonable management instruction.  That act of misconduct would not necessarily be sufficiently grave to justify dismissal.  As with any disciplinary sanction, the employer will need to ensure that it had acted reasonably, which may depend on a number of factors, including:

  • the employee’s reasons for refusing the vaccine and, in particular, whether those reasons are related to protected characteristics under Equality Act 2010;
  • the type of work the employee does;
  • whether the employee’s duties require them to be in the workplace, or whether they can work from home;
  • whether the employee’s refusal to have the vaccine poses a risk:
  1. to the employee personally; and/or
  2. to colleagues, and (depending on the nature of the workplace) to patients, customers, clients or other visitors to the workplace.
  • alternatives to dismissal, such as a change of duties or homeworking (either on a permanent basis, or until the coronavirus risk has abated); and/or
  • mitigating factors, e.g. the reasons for the employee’s refusal.

In a nutshell, an employer’s primary focus should be on educating and persuading employees to obtain the vaccine before any more draconian action is considered and, even then, it may not be possible to force the issue.  Ultimately, an employer must undertake an objective risk assessment, taking into account an employee’s role and the nature of the workplace, before taking action.

Finally, remember to be sensitive, keep any discussions confidential and record any relevant data that has been collected in accordance with GDPR requirements. In case you missed, you can find our recent two-part blog series on the interaction between COVID-19 and GDPR by clicking here and here.

If you have any questions or concerns about the best approach to take when it comes to the COVID-19 vaccine and your workforce, please get in touch with the MLP Law Employment team at employment@mlplaw.co.uk or 0161 926 9969. Please also keep an eye out on our Twitter feed @HRHeroUK and for our regular blogs on all things Employment Law and HR.

Refusing to work – how might employers’ health and safety obligations affect post-lockdown plans?

Prime Minster Boris Johnson’s much publicised “roadmap” out of the current lockdown in England has employers up and down and the country crossing their fingers that the Spring months could finally see a return to some sort of normality.

However, amidst the optimism and hope for a better summer and beyond, our old friend the Employment Rights Act 1996 contains two previously rarely heard of health and safety obligations which all employers must bear in mind to avoid running into unfamiliar difficulties in the post-lockdown era.

What are these obligations?

Under s44 of the Employment Rights Act 1996, where employees refuse to work, or take appropriate steps to protect themselves, in circumstances where they reasonably believe that they, or others, are in serious and imminent danger, they are granted specific protection from being subjected to a detriment for having done so. Protection under s44 is shortly expected to be extended to workers, as we explore in our blog here.

Similarly, under s100 of the Employment Rights Act 1996, employees are also protected from dismissal where they have refused to work or have taken appropriate steps to protect themselves (or others)  in the circumstances outlined above. Any such dismissal will be automatically unfair and a claim may be brought even where the employee lacks the two years’ continuous service usually required to pursue an ordinary unfair dismissal claim. There is also no cap on the compensation which can be awarded in claims for dismissal under s100, unlike ordinary unfair dismissal claims.

These specific sections of the Employment Rights Act 1996 were perhaps originally envisaged to cover employees working in more stereotypically dangerous working environments. However, the impact of the coronavirus pandemic means that these obligations are likely to become much more relevant for employers whose workplaces previously meant they to pay minimal attention to serious health and safety risks.

In what circumstances can an employee refuse to work?

The answer to this question will depend on the specific circumstances which apply to the employee and their working environment. However, in the context of the coronavirus pandemic, we can envisage a number of factors which may inform whether or not an employee is entitled to refuse to work or take other appropriate steps to protect themselves.

The first thing to say is that the employee’s belief in the danger posed to them must be reasonable. On the one hand, we could see this as removing unreasonable concerns from the equation entirely. However, on the other, this introduces a subjective element which may be difficult to predict.

Beyond this, if asked to decide upon this issue, an Employment Tribunal is likely to consider a number of factors when deciding whether it was reasonable for the employee to perceive themselves as being in danger from transmitting coronavirus, including:

  • the COVID-19 transmission rates at the relevant time;
  • the specific features of the employee’s environment and duties;
  • the specific characteristics of the employee (or other person) who was allegedly exposed to the risk, such as whether they were in any of the vulnerable groups;
  • the steps taken by the employer to ensure a “COVID secure” working environment, to mitigate the risk of transmission; or
  • whether the danger genuinely “serious and imminent” as opposed to hypothetical.

What would constitute a “detriment”?

There is no specific definition of what constitutes a “detriment” in these circumstances but it is clear that it would include anything which places the employee at a disadvantage. Certainly, disciplinary action against the employee would constitute a detriment. Other things, such as being overlooked for a promotion or pay rise, or being moved to a different role or departments may also constitute detriments if the reason for them was the employee exerting their rights.

A particular difficulty for employers will arise when legitimate, but disadvantageous, decisions are taken in respect of an employee who has previously (perhaps recently) exerted their rights under s44. In such circumstances, it is not difficult to imagine that the employee may perceive, or allege, that the unfavourable decision has been taken because they exerted their rights. In this scenario, the onus will be on the employer to demonstrate the legitimate reason for the decision. Similarly, in dismissal cases, the onus will be on the employer to demonstrate that the dismissal was in fact for another, potentially fair, reason.

How should an employer respond when an employee exerts their rights under s44?

There are many things an employer can do to protect itself even before an employee exerts their rights under s44. By conducting appropriate risk assessments and putting in place measures to ensure a “COVID secure” working environment, an employer should be able to prevent the risk of ”serious and imminent” danger to its employees. Certainly, where an employer is unable to do so this may in itself suggest that workplace is not yet safe to reopen.

In the event that an employee does exert their right to either refuse to work or take appropriate steps to prevent danger under s44, the employer should be mindful of the risks of exposing the employee to a detriment and should not take any detrimental steps (or fail to take steps) where the reason for such steps (or failure) is the employee exercising their rights.

Where unrelated, but potentially disadvantageous, decisions need to be taken in respect of an employee who has exerted their rights under s44, it is critical that the employer is clear about the reason for the decision and that these are confirmed in writing at the time.

If you have any questions or concerns about your obligations to employees as your workplace opens up following lockdown, please get in touch with the MLP Law Employment team at employment@mlplaw.co.uk or 0161 926 9969. Please also keep an eye out on our Twitter feed @HRHeroUK and for our regular blogs on all things Employment Law and HR.

Right to refuse to work in unsafe working environment to be extended to workers as well as employees

The Government has outlined new Regulations which extend the provisions of section 44 of the Employment Rights Act 1996 to workers. As we explore in our blog here, currently employees can claim in an Employment Tribunal if they subjected to a detriment because they refused to work, or took other appropriate steps to protect themselves or others, in circumstances where they reasonably believed they were in serious, imminent danger.

This right is found in section 44 of the Employment Rights Act 1996, which is now being used more frequently by employees who are anxious about travelling to, or being in, work during the coronavirus pandemic.

This change now extends the protection to ‘workers’, rather than just ‘employees’, after a recent case resulted in a judgment outlining that confining such protection to employees was a breach of the EU Health & Safety Framework Directive.

Once approved by Parliament, it will apply to any such detriments taking place on or after 31 May 2021.

If you have any questions or concerns about your obligations to employees as your workplace opens up following lockdown, please get in touch with the MLP Law Employment team at employment@mlplaw.co.uk or 0161 926 9969. Please also keep an eye out on our Twitter feed @HRHeroUK and for our regular blogs on all things Employment Law and HR.

Managing stress in the Workplace

“There cannot be a stressful crisis next week – my schedule is already full.”  Henry Kissinger

In the hope that a return to more normal working practices is on the horizon, many employers are taking stock; wanting to create a stronger, more resilient working environment for staff as lockdown eases.  Given that April is Stress Awareness month, one way to achieve this is to try to combat stress at work.

What is stress?

Stress is defined as ‘the adverse reaction people have to excessive pressures or other types of demand placed on them’ (The Health and Safety Executive).  Stress is not in itself an illness, but can lead to conditions such as anxiety and depression.  Stress, anxiety and depression can also increase the risk of conditions like heart disease, back pain, gastrointestinal illnesses or skin conditions. 

The benefits of tackling stress in the workplace

Over recent years, there has been an increased focus on the benefits that supporting mental wellbeing amongst staff can bring and this issue has only garnered more attention during the Pandemic.  In general terms, reducing work-related stress is thought to help make staff healthier and happier, which can result in a positive impact on performance and productivity.  Similarly – not only can effective stress-management reduce absence levels, improve morale and reduce workplace disputes, thereby improving the day to day experience of being at work – it can also have longer-term benefits, making the business more attractive to high quality recruits and encouraging improved commitment and creativity amongst existing employees.

Legal risks to employers

Moreover, mishandling a work-related stress or mental health issue could give rise to legal claims, such as:

  • constructive unfair dismissal, as it may constitute a breach of the implied term of trust and confidence
  • breach of the statutory duty to protect an employee’s health and safety
  • personal injury, as a result negligence or breach of the common law duty to take reasonable care eg to ensure that the duties allocated to the individual do not damage their health
  • unfair dismissal, if there is no fair reason to dismiss and/or the employer fails to follow a fair procedure when dismissing an employee suffering from stress
  • discrimination regarding prohibited conduct under the Equality Act 2010 (EqA 2010), if the employee has a disability

Identifying an individual who may be experiencing stress

Acas has produced guidance for employers highlighting signs that an individual may be stressed, these include:

  • changes in the person’s usual behaviour, mood or how they interact with colleagues
  • changes in the standard of their work or focus on tasks
  • appearing tired, anxious or withdrawn and reduced interest in tasks they previously enjoyed
  • changes in appetite and/or increase in smoking and drinking alcohol
  • an increase in sickness absences and/or turning up late to work

Combating stress in the workplace

There are two key ways in which an employer can seek to reduce the risk and, consequently, capitalise on the benefits of a well-managed workforce from a stress point of view.  The first is to seek to prevent work-related stress.  Employers are encouraged to action this in a variety of ways, most importantly by:

  • conducting risk-assessments, looking at factors such as workload and targets
  • having thorough appraisal and monitoring systems to ensure staff have early feedback on performance and a forum for discussing concerns (with virtual one-to-ones becoming more vital as employees are set to work from home in increasing numbers)
  • ensuring adequate training and support – in relation to both the technical aspects of an employee’s role and in relation to the issue of stress itself
  • having reasonable expectations regarding the individual’s role and responsibilities

Secondly, where employees have been identified as suffering from work-related stress, useful measures that can be adopted include:  

  • offering access to counselling services
  • rigorous absence management procedures, allowing the problem to be identified and explored
  • expert support, both in respect of the employee’s role and also managing stress, communication etc
  • consideration of reasonable adjustments.

Clearly, the cause of an individual’s stress is not always identifiable or easily compartmentalised, often it is the cumulative pressure on an individual  – both professional and personal – that can result in them suffering from stress or stress-related illnesses.  Nonetheless, any employer that can demonstrate that it has taken effective steps to reduce stress in the workplace, can ease the burden on those employees with difficulties in their private lives and therefore encourage a healthier, happier workforce.

If you have any questions or concerns about combating stress in the workplace please get in touch with the MLP Law Employment team at employment@mlplaw.co.uk or 0161 926 9969. Please also keep an eye out on our Twitter feed @HRHeroUK and for our regular blogs on all things Employment Law and HR.

Recruitment in the New Normal

Welcome to our series of blogs, addressing post-lockdown issues from a legal perspective. This week we hear from our Employment law experts discussing recruitment in the new normal.

Given the cautious air of optimism for many businesses as lockdown continues to ease, thoughts are turning to growth and change, with a focus on recruitment.  Not only do some organisations want to take this opportunity to expand, others simply want to reinstate the status quo, having seen staff levels plummet over recent months as employees have left to work elsewhere during lockdown (to avoid being furloughed or long-term uncertainty) or have been made redundant.

Furthermore, with increasing numbers of employers and employees embracing remote working, the pool of potential candidates has widened, with candidates happy to look for jobs beyond the boundaries of their normal commute.  Therefore, for certain roles, candidates are becoming increasingly ‘location-agnostic’, giving greater choice to employers who are recruiting.

Whilst most employers have efficient recruitment processes in place, many are concerned about whether such procedures are still fit for purpose, for recruitment in the ‘new normal’, psot-lockdown landscape.  With that in mind, the employment law team at MLP have set out some guidance, to help employers avoid pitfalls in their hiring process over the coming months.

Recruiting after making staff redundant during lockdown

Employers can recruit to fill vacancies that have arisen as the result of making previous staff redundant. Provided that your business can point to commercial factors for the change in approach (such as improved conditions in the market or new business from clients) then previous redundancies are not a bar to hiring new staff.  Clearly, the shorter the period between making redundancies and recruiting to fill those same or similar posts, the more difficult it will be to justify the original redundancies, leaving your business open to claims of unfair dismissal.  A claim for unfair dismissal can only be brought 3 months (less a day) from the date of termination.

Be clear about your expectations when advertising

It’s sensible to clearly set out as much detail as possible about the role, early in the recruitment process – if remote working is a possibility, make it clear in the job advert.  This avoids awkward (and potentially discriminatory) conversations later in the process, on issues like working patterns and homeworking.  A blanket refusal to consider remote or homeworking may disproportionately affect female candidates, who are more likely to have childcare responsibilities, potentially making such a decision indirectly discriminatory.  It can therefore be useful to consider flexible working at the outset.

Be creative about incentives

For many, daily working life changed dramatically during lockdown and this has triggered an appetite for different ways of working going forward.  If remote or homeworking is something that may apply to the new role there are various innovative ways to financially reward employees and encourage them to become part of your business.  You could, for instance, consider stipends for employees who want to work in co-office spaces, instead of entirely from home, or offer contributions towards home office furniture or IT equipment.  This can encourage loyalty from the outset, as the new employee feels that you have invested in them.  If, however, the role requires the more traditional patterns of working, you can emphasise the benefits of a collegiate atmosphere and support within the workplace.  The key is to ensure that, whatever creative ways you choose to financially reward employees, the terms are reflected in the contract of employment, to avoid any dispute at a later stage.

Asking a candidate if they have had the Covid-19 vaccine

In general terms, questions about any aspect of a candidate’s health during an interview should be avoided until after the individual has been offered the job.  If, therefore, you consider that a vaccine is necessary for the relevant role, it can be a condition of any subsequent job offer.  If, however, you can’t demonstrate that asking staff to be vaccinated is a reasonable management instruction, you cannot insist that either existing or new staff provide you with this information.

Job offers conditional on having the vaccine

Making any offer of a position conditional on having the vaccine is also likely to fall foul of discrimination laws in the majority of situations.  Instead, support and encouragement by the employer – in the same way as for existing staff – is preferable.  There are circumstances, however, where an employer may be able to justify this approach, particularly if the role will involve working with the clinically vulnerable.  The Government is currently considering making the vaccination compulsory for care home staff but until a clear decision is reached, employers wanting to require employees to have the vaccine as a condition of employment should exercise caution.

Data privacy in recruitment

Employers should also be mindful of data privacy and security concerns if virtually interviewing and inducting candidates, but they must also consider their own risks.  For instance, how can a candidate prove they are who they say they are?  Organisations must verify a candidate’s identity to make sure they’re always dealing with the same person — not just during the recruitment process, but also when that individual attends training sessions and starts their first day of work.

Offering new starts less generous terms than those enjoyed by existing staff in the same role

Employers can offer whatever package they feel is sufficiently competitive, to attract high calibre candidates.  The key is ensuring that you comply with equal pay legislation requirements.

Hiring someone from outside of the UK

The way employers hire someone from outside the UK changed on 1 January 2021, when the Brexit transition period ended.  There is now a points-based immigration system. This means that:

  • You’ll need a sponsor licence to hire most employees and workers from outside the UK.
  • Anyone you recruit from outside the UK will need to meet certain requirements.
  • You should plan ahead if you want to offer a job to someone from outside the UK as it may take longer than it used to.

You can also remind and encourage existing employees who are EU, EEA or Swiss citizens, to apply to the EU Settlement Scheme by 30 June 2021. Once they have applied, and are in receipt of settled or pre-settled status, they will have the right to continue to live and work in the UK.

If you have any questions about the above please contact the MLP Law Employment team at employment@mlplaw.co.uk or 0161 926 9969. Please also keep an eye out on our Twitter feed @HRHeroUK and for our regular blogs on all things Employment Law and HR.