Law guide: Employment

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Coronavirus (COVID-19)

Coronavirus (COVID-19)

In this section you'll find information and updates related to coronavirus that are relevant to the law on employment.

The UK's response to coronavirus is changing regularly and often very quickly. While we'll continue to make every effort to keep this page up to date, there may be short periods where what you read here is not the latest information available. Where possible we've tried to provide links to official sources, so you can check the current situation.

Statutory sick pay (SSP) during coronavirus

England, Wales and Scotland

Temporary changes to statutory sick pay (SSP) ended on 24 March 2022. The normal (pre-pandemic) rules now apply. This means that the only coronavirus-related situation where SSP is payable is if someone is off sick with coronavirus - i.e. it's no longer available to people who are well, but off work due to self-isolation requirements after 24 March. Also, SSP is no longer available from the first day of absence. Instead, the standard position applies - i.e. SSP is payable from the 4th day.

Northern Ireland

The temporary SSP measures will remain in place until 24 September 2022. SSP will continue to be available from the first day of a coronavirus-related absence, including to those who are self-isolating in line with public health guidance.

Health and safety

See our Coronavirus (COVID-19) Health & Safety section to find out about new and existing responsibilities for protecting your staff during the pandemic.

Vaccinations and the workplace

As more and more people are being vaccinated, the following information sets out your responsibilities as an employer.

Can I require all staff to be vaccinated?

Before a person receives any medical treatment, their consent is needed. This is a legal principle developed over time by case law and includes administering vaccines. This makes it difficult for you to automatically insist on it.

There's no law that says individuals must have the vaccine. You should take legal advice if you are contemplating requiring all your staff to be vaccinated. There may be better grounds for requiring some of them to be vaccinated (see below).

Can I require certain staff to be vaccinated?

The Health and Safety at Work Act 1974 requires you to take all reasonably practicable steps to ensure the health, safety and welfare at work of all your staff (a similar duty exists under case law). There is also a legal duty (under case law) to obey the lawful and reasonable orders of an employer. The combination of these 2 requirements may justify requiring some staff to be vaccinated.

Reasonableness is a question of degree. Relevant considerations are likely to include:

  • The nature of the role
  • The circumstances of each worker (e.g. if they're extremely vulnerable)
  • The risks to other staff or people they encounter, such as who they are in regular contact with
  • The workplace's size/layout.

On this basis, it may be reasonable, for example, to require certain staff to be vaccinated, such as those working in healthcare or education sectors who have close contact with people who are vulnerable to being infected and face potentially life-threatening consequences.

But it's less likely to be reasonable for staff who have limited contact with others and for whom other protective measures can be put in place. For them, a key question is likely to be whether vaccination provides greater protection than other measures.

Unfortunately, there are no easy answers here – you'll need to get legal advice if you think requiring vaccination may be justified as it'll depend on your business's individual circumstances, including the relevant considerations discussed above.

Can I put vaccination requirements into staff contracts?

Changing an employee's contract to add a compulsory vaccination requirement is potentially problematic. You'll need their agreement – if you make the change without it, you'll be in breach of contract and the original terms of the contract will remain in place. The employee then has options:

  • They can ignore the breach by continuing to work without complaint under the new terms.
  • They can work under the new terms under protest and claim for breach of contract. If the change imposed is substantial, you might be deemed to have dismissed the employee, meaning they could also claim for unfair dismissal.
  • If the breach of contract is fundamental, they can resign and claim for constructive dismissal. (Note only those with employee status can do this.)

It may be easier to only insert the vaccination requirement into contracts for new staff. However, unless you're recruiting significant numbers of people, this is unlikely to result in any greater protection for your overall workforce. It potentially also opens you up to discrimination claims (more on this below).

In short, it's currently risky – don't try and make vaccinations a part of staff contracts without getting legal advice first.

What do I do if I still want to make vaccination a requirement?

Whether you intend to require any staff to be vaccinated by implementing a policy or inserting a contractual clause, you must first:

  • Undertake a detailed risk assessment to evidence why COVID-19 vaccination is required in addition to compliance with the COVID-secure guidelines already in place.
  • Consult with workplace representatives or trade unions where applicable.

You must also recognise that vaccination may not be suitable for all (some will be advised against having it on medical grounds) and make allowances for that.

Indirect discrimination

A mandatory vaccination requirement for employees is likely to amount to a provision, criterion or practice that puts individuals with a protected characteristic at a particular disadvantage compared with others who do not have that protected characteristic. In other words, it's likely to be discrimination under the Equality Act 2010.

A vaccination requirement could put employees with one of the following protected characteristics at a particular disadvantage:

  • Disability

Some of the vaccines in production are not suitable for certain individuals with suppressed immune systems. Some individuals might be advised not to have the vaccine due to a medical condition or may have severe trypanophobia (fear of needles). Both could mean they have a disability and be protected under the Equality Act 2010 if they refuse the vaccine.

Note, though, that those with a history of anaphylaxis (severe and potentially life-threatening allergic reactions) to food, drugs, or insect stings, have been advised that they can still receive any COVID-19 vaccine unless they're known to be allergic to a previous dose of the same make of vaccine or any of its components.

  • Pregnancy or maternity

Current government advice is that pregnant women should be offered a vaccine, but that ideally they should not be offered the AstraZeneca vaccine. This could potentially lead to delays in getting vaccinated. Indirect discrimination does not apply to the protected characteristic of pregnancy and maternity; however, a woman who is disadvantaged by her employer's vaccination policy due to pregnancy or maternity could bring an indirect sex discrimination claim.

  • Race

Research by SAGE published in December 2020 showed marked differences between different ethnic groups in willingness to receive the COVID-19 vaccine.

  • Religion or belief

It's possible that the protected characteristic of religious or philosophical belief could protect certain religious or moral objections to the vaccine.

Note that:

  • The COVID-19 vaccines currently being used in the UK don't use pork gelatine and are endorsed by the British Islamic Medical Association, Hindu Council UK, and the Board of Deputies of British Jews (that doesn't, though, stop religious objections on other grounds).
  • Laws and regulatory agencies worldwide currently require that new drugs and treatments are tested on animals before clinical trials on humans. Shark liver oil is also being considered or used in some vaccines. While veganism is a protected belief, the Vegan Society accepts that vaccination 'will play a fundamental role in tackling the pandemic and saving lives' and encourages vegans to look after their health and that of others. But it doesn't represent all vegans.
  • Other employees may reject the vaccine because embryonic tissue was used to test or develop the vaccine.
  • Anti-vaccination beliefs based on a wide variety of conspiracy theories may not be protected as a philosophical belief. That's because there isn't an adequately coherent belief system behind them and such beliefs may not be worthy of respect in a democratic society. That doesn't stop such beliefs being protected if the basis for them exists less at the fringes.

Avoiding indirect discrimination

You would need to ensure that any mandatory vaccination requirement is justifiable as a proportionate means of achieving a legitimate aim, or is phrased in terms that allow for exceptions.

The burden is on you to show justification. You must show that:

  • You were pursuing an identified legitimate aim. Protecting the health and safety of your staff, service users and third parties will very likely be an uncontroversial legitimate aim.
  • The measures taken to achieve that aim were appropriate. You must show that your actions actually contribute to the pursuit of the legitimate aim. For evidence that it is appropriate, you will need to show that vaccinations prevent transmission of the virus. While there is currently insufficient evidence to support the position that vaccination totally prevents transmission in the workplace, there is evidence that it reduces the risk of transmission. In any event, it would be difficult to criticise an employer for trying to reduce transmission in its workplace by encouraging vaccination, even if it was subsequently shown that this had little or no impact.
  • The measures taken to achieve that aim were proportionate. To establish this, you must demonstrate that the measures taken were 'reasonably necessary' to meet the legitimate aim. Your actions will not be considered reasonably necessary if you could have used less discriminatory means of achieving the legitimate aim.

On this basis, proportionality may be a more difficult hurdle for employers at the current time. Compliance with the COVID-secure guidelines and introducing regular testing could be a more effective and less discriminatory means of achieving a health and safety legitimate aim.

Direct discrimination

An employer's actions in requiring vaccination of a particular employee, or in treating them less favourably because they are unvaccinated, could directly discriminate against them and breach section 13 of the Equality Act 2010.

Unlike indirect discrimination, direct discrimination cannot be justified unless it is on the ground of age.

Can I take action against staff who refuse to be vaccinated?

In theory, assuming you've legitimately introduced a compulsory vaccination policy or a contractual vaccination requirement, yes. But there will be risks.

Physically enforcing vaccination will be a form of assault and therefore, a criminal offence. Also, compelling staff to get a vaccine who then suffer an adverse reaction, could result in a personal injury claim against you.

Instead, an option is to start disciplinary proceedings based on the failure to comply with a reasonable management request arising from a policy or contractual requirement. You must start with a proper investigation into the employee's circumstances. There are many reasons why they might reasonably refuse a vaccine: e.g. medical advice, religious or philosophical belief, pregnancy, disability, wanting to keep control over their medical choices or wanting to wait for more evidence of safety.

The critical point is that you must always allow for exceptions. Listen to any concerns and objections and take them seriously. Even if you've put in place a policy or contractual requirement, you won't be entitled to act on it if your employee's refusal is reasonable.

Note that:

  • Pressuring employees to be vaccinated through threats of disciplinary action, carries real and potentially significant legal and financial risks. A dismissal resulting from the implementation of such a policy may give grounds for claiming unfair dismissal. It could also negatively affect your business reputation and staff morale.
  • Any policy or contractual requirement about vaccination that adversely affects people from a protected group (race, age, sex, disability and religion/belief being the most likely) will potentially be indirectly discriminatory.

Even if you don't require staff to be vaccinated, you should ensure that your workplace policies do not indirectly discriminate against unvaccinated staff.

Before implementing a policy that treats vaccinated and unvaccinated staff differently, you should take legal advice. Keep in mind that you still risk discrimination claims being made against you, as some of those who are aren't vaccinated may have a disability that prevents it.

A better, less risky approach is to encourage staff to be vaccinated. Educate them on the benefits of vaccination by providing impartial, factual information to help them make an informed decision.

Can I prevent unvaccinated staff from entering the workplace?

You should carefully consider whether it is appropriate to prevent unvaccinated staff from entering your workplace before making a decision. Current government advice is clear that the vaccination status of a workforce has no impact on the COVID-secure guidelines you should follow. Further, the extent to which vaccination reduces the risk of transmission is still unclear.

But this must be balanced against your health and safety obligations to your staff and those entering the workplace. There can be serious consequences for non-compliance.

For most employers it will boil down to whether there are any extremely vulnerable staff working within 1 metre of unvaccinated colleagues on a daily or other regular basis. Even then, alternative measures should be considered, such as re-arranging working time pattens to avoid prolonged contact or re-assigning individuals to a different location in the workplace.

Where unvaccinated staff are retained under a zero-hours contract, you could simply not offer future work to them. However, you should consider whether there are any potential discrimination risks.

For staff on fixed hours, you could consider all the alternatives to vaccination, such as:

  • allowing them to continue to work from home, if possible;
  • temporarily changing their role or responsibilities to minimise risk in the workplace as far as possible;
  • regular testing; and
  • regular health and safety reviews to ensure that you are up to date with, and properly implementing, the COVID-secure guidelines for your particular industry.

However, you must ensure that staff working remotely do not suffer any detriment, and consider that vaccinated workers might consider it a detriment to be required to come back to work. To facilitate workforce relations, a hybrid working arrangement for all staff may be preferable.

What are staff entitled to be paid if they refuse to be vaccinated?

This issue should only arise where you have lawful grounds to prevent unvaccinated staff from entering the workplace.

You must pay staff who can undertake their role remotely as normal.

If they are unable to carry out their role remotely, the issue of pay is problematic. They will argue that they are willing and able to work and should therefore be paid in full. However, your position will be that they cannot work for health and safety reasons.

Statutory sick pay is not available where a worker is fit and able to work.

Assuming that there are no medical or other legal grounds for not being vaccinated, your options include:

  • Laying-off employees – if their contracts allow it.
  • Suspending them for disciplinary reasons – but they will be entitled to be paid in full until the outcome of the disciplinary procedure.
  • Asking them to use their annual holiday allowance or taking unpaid leave.

Note that where an employee is unable to be vaccinated for medical reasons, or refuses vaccination on, for example, religion or belief grounds, it is possible that their inability to work is due to an 'unavoidable impediment' or external constraint and you must continue to pay them.

Are there data protection implications?

If you collect any information about whether staff have (or haven't) been vaccinated, you must handle it as special category data in accordance with the Data Protection Act. See the Information Commissioner's Office guidance on vaccinations for more.

Bringing staff back to the workplace and handling refusals

It's possible you may have staff who are reluctant or unwilling to return to the workplace.

Primary objectives

To avoid any disputes, genuinely consider all objections. Put everything in writing. If necessary, make further enquiries to confirm or establish facts.

The key principle guiding your decisions should be the safety of your staff, particularly those with medical conditions that mean, or may mean, they're at greater risk to/from infection. You're ultimately liable for their wellbeing.

Using a grievance procedure

Any objection should be treated as a grievance. Acas say their code of practice, which you can follow alongside your own grievance procedure, still applies. However, consider whether you can do so fairly in the current situation. In particular:

  • Consider the health of everyone involved in the procedure.
  • Although you are no longer required to observe social distancing rules, is it appropriate to use video technology given the grievance concerns returning to the workplace? Do all those involved have access to it? Does anyone have a disability or other issue that makes using it difficult, and if so, can you make reasonable adjustments?
  • Will any necessary information (e.g. medical evidence) be required? Is it obtainable?

Go through the options with all those involved. If you decide to proceed, put your reasons why in writing.

Employers in Scotland are expected to follow the principles of the Fair Work Convention's Framework, for all decisions.

Legal protection

Employees and workers are protected by law if:

  • they believe being at work or doing certain tasks puts them in serious and imminent danger; and
  • their belief is judged to be reasonable at the time that they take appropriate resulting action.

The resulting action they could take in these circumstances includes:

  • leaving (or proposing to leave) the workplace or (while the danger persists) refusing to return to it (or any dangerous part of it) if they could not be reasonably expected to avoid the danger; or
  • taking (or proposing to take) appropriate steps to protect themselves (or others, such as members of their household) from the danger. This can include informing their employer of their concerns by appropriate means and not returning to work.

The protection applies even where the employee or worker's reasonable belief is mistaken, the serious and imminent danger is lawful, or the danger is caused by customers or other staff not following the rules. It doesn't matter if you disagree – their belief (from their perspective) just needs to be reasonable.

If an employee is dismissed due to this, they can make an unfair dismissal claim, no matter how long they've worked for you (workers do not have a legal right to do this).

Employees and workers are also protected in these circumstances from being subjected to a detriment (such as being suspended, having their pay deducted or, in the case of a worker, having their contract terminated).

Employment Tribunals have considered several cases on this issue in the context of the COVID-19 pandemic. These concern events in the early stages of the pandemic, when less was known about the virus and vaccines hadn't been developed and approved.

They show the importance for employers of being able to demonstrate that they have implemented appropriate COVID-related health and safety measures.

The cases also confirm that the valid exercise of the right to stay away from work is not just a question of your staff expressing vague anxieties about their working environment:

  • They'll normally be expected to explain clearly why they believe their workplace is dangerous and give you the opportunity to explain the steps you have in place to protect them and give you time to consider what else you can do to protect them or deal with their concerns.
  • They must also be willing to take individual precautions to protect themselves and follow all reasonable management instructions put in place to protect them.
  • They must be able to show that the risk is serious and imminent despite anything they and you can do to reduce it.

At-risk staff

Extremely vulnerable staff

Even though the shielding programme has ended, requiring such staff to return to the workplace may still expose you to a health and safety liability risk, as they may need more than the usual safety measures to protect them, particularly if their condition means they have a weaker immune system.

Those who have had vaccinations can better protect themselves. However, before deciding if they can return to the workplace, you should always:

  • undertake an individual risk assessment;
  • consider their individual needs; and
  • support them in taking any extra precautions advised by their clinicians.

You may need to take extra steps to protect any staff who have a genuine reason (medical or otherwise) that prevents vaccination.

If the risks cannot be averted or minimised, it may be reasonable for them to claim that there's an ongoing serious and imminent danger if they return to the workplace. You should first consider limiting their work activities or duties, otherwise consider asking them to remain at home.

See the Government guidance for each country for more:

Vulnerable staff or those with other potentially dangerous health conditions

These generally include any staff who are regarded by the NHS as people at higher risk. They're not 'extremely clinically vulnerable', but they may be at greater risk of being infected and/or suffering an adverse outcome if they get infected. This will also usually include those who:

  • are 70 or older (particularly if they are male)
  • are obese or have a high body mass index (40 or above)
  • are pregnant
  • have a disability
  • have diabetes, heart, kidney or liver disease or a lung condition
  • have a condition affecting the brain or nerves
  • have a condition that means they have a high risk of getting infections
  • are taking medicine that can affect the immune system

Again, those who have had vaccinations can better protect themselves, but before deciding if they should return to the workplace you should:

  • undertake an individual risk assessment;
  • consider their individual needs;
  • support them in taking any extra precautions advised by their clinicians.

You may need to take extra steps to protect any staff who have a genuine reason (medical or otherwise) that prevents vaccination.

If the risks cannot be removed or minimised, it may be reasonable for them to claim that there's an ongoing serious and imminent danger if they return to the workplace.

Members of the BAME community

Medical evidence confirms that Black, Asian, and Minority Ethnic people have a far higher risk of death from COVID-19.

To avoid potential liability under race discrimination laws, ensure that any decisions you make about returning to the workplace are fair and consistent, unless you have a good business reason for different treatment. Taking extra precautions for BAME staff compared to (non-vulnerable) white staff could be viewed as indirect discrimination – however, it is likely to be justified on the basis of the current medical research.

Again, if they have had vaccinations, that might alter your approach. But be aware that some people may also have a medical condition that puts them at greater risk. Carry out an individual risk assessment and get advice from their clinician. Extra steps may be needed to protect staff who have a genuine reason (medical or otherwise) that prevents vaccination.

If the risks cannot be removed or minimised, it may be reasonable for them to claim that there's an ongoing serious and imminent danger if they return to the workplace.

See our sections on race discrimination in England, Wales and Scotland, and Northern Ireland.

Options for at-risk staff

If you're allowing or requiring such staff to return to the workplace, remember you are liable for their health and safety.

You must perform a risk-assessment. The level of risk ought to be acceptable to both you and them.

Take steps to remove or (at least) minimise it the level of risk. Options to reduce it include agreeing to:

  • Give them the safest available on-site roles
  • Adjust their working times (e.g. to avoid rush hour)
  • Remove or limit any higher-risk work activities or duties.

If this isn't possible, or if the risk remains unacceptably high for other reasons, make some temporary arrangements to give you time to agree or implement additional safety measures.

First consider if they can remain working from home. Note that some staff may want or need to come back to the workplace, but to avoid risking liability, ask them to remain there temporarily. If possible, agree a timeframe.

If they cannot work from home, try and agree to make temporary changes to their workplace activities or duties that will include minimising their contact with other staff. If necessary, keep them at a safe distance from clients or customers and other visitors to the workplace. This will vary depending on the industry sector and country they work in, but they generally should be staying 2 metres away from others at most, if not all, times. If needed, offer them some protective equipment such as a high-quality face covering.

If you are unable to agree, consider laying them off for a limited time if they're an employee and their contract gives you a right to do so, or agree for them to temporarily do alternative work from home.

Use the time you have to find solution and make and agree longer-term options.

If they have a disability, comply with your legal responsibilities by obtaining a medical report to find out the risks associated with their medical condition. Ask for any specific advice from their doctor, such as:

  • which of their duties will increase the risk of them contracting the virus at work;
  • which of their duties should they not be performing; and
  • whether they should return to work at all.

If their doctor has advised them that they should not return to work, they will be entitled to receive statutory sick pay, subject to giving you a fit note. See below under 'Disabilities' for more.

You can also make enquiries to find out what other businesses in your sector are doing, so you have more information.

Note that if they want to return but you want them to stay at home, they'll be entitled to full pay if they can work from home.

Disabilities

Staff who are extremely vulnerable or have other potentially dangerous health conditions, could have a disability that's recognised under Equality Law. If they do, you're legally obliged to make reasonable adjustments. This can include letting them stay at home.

If they can work from home, this should not be an issue. If they can't, whether or not that means doing so on full pay is unclear, unless there's a serious and imminent danger to them returning to the workplace, in which case they must remain on full pay.

It's possible that requiring them to return could amount to indirect discrimination – this can be justified, but may be difficult to establish depending on the particular situation. See our sections on Disability discrimination in England, Wales and Scotland and Northern Ireland.

If the condition isn't recognised as a disability under equality law, you don't have to make any adjustments like letting them stay at home. But to be certain (and in line with your health and safety obligations), consider getting a medical report from their GP. If the report is inconclusive, follow it up with more questions. If medical evidence suggests they're at greater risk, check this against your workplace risk assessment. If you both agree on a return, take the same precautions stated above.

Financial support is available for staff living in England, Scotland or Wales who have a disability or health condition and are returning to their workplace. There's a different system in Northern Ireland

Staff living with someone who's at higher risk

This may mean living with someone who's clinically extremely vulnerable, someone who has another potentially dangerous health condition, or someone who is otherwise more susceptible to contracting the virus (e.g. the elderly).

Although shielding has ended and many are now vaccinated, staff may still harbour concerns about their safety, particularly if they cannot be vaccinated for a medical reason or if they act as their carer, making close contact unavoidable.

If they have a reasonable cause for concern, you could choose to explore the same options described above for at-risk staff.

Again, remember that the person with whom they live may have a disability that's recognised under Equality law – take care here, as you can't treat staff less favourably than others based on the disability of someone they're associated with. See our sections on Disability discrimination in England, Wales and Scotland and Northern Ireland.

Staff suffering from anxiety

Some staff are likely to be anxious about returning amid COVID-19. Depending on the severity, anxiety can be a recognised disability.

If so, you're legally obliged to make reasonable adjustments. This can include letting them stay at home.

If they can work from home, this should not be an issue. If they can't, whether or not that means doing so on full pay is unclear, unless there's a serious and imminent danger to them returning to the workplace, in which case they must remain on full pay, or they can work from home.

Sick leave should be used if they're experiencing stress/anxiety at levels that mean they can't work, so long as they give you a fit note from their doctor.

It's possible that requiring them to return could amount to indirect discrimination – this can be justified, but may be difficult to establish depending on the particular situation. See our sections on Disability discrimination in England, Wales and Scotland and Northern Ireland.

Financial support is available for staff living in England, Scotland or Wales who have a disability or health condition and are returning to their workplace. There's a different system in Northern Ireland

If the condition isn't recognised as a disability under equality law, you don't have to make any adjustments like letting them stay at home. But to be certain (and in line with your health and safety obligations), consider getting a medical report from their GP. If the report is inconclusive, follow it up with more questions.

If medical evidence suggests they're at greater risk, check this against your workplace risk assessment. If you both agree on a return, consider the same precautions as those described above for at-risk staff.

Even if their condition isn't classed as a disability, consider delaying their return – they could be a disruptive influence and are unlikely to be productive in the workplace.

Staff without childcare

Staff with children may find themselves having to unexpectedly care for their child due to coronavirus (e.g. if their child's school sends them home).

If this happens, you can (if possible) let them work flexibly.

There are other options available only to employees:

  • Unpaid parental leave: they can take leave of up to 4 weeks for each child per year in blocks of at least one week. They must give you at least 21 days' notice. This entitlement applies after a year of working for you. You can be flexible about how much leave they take or notice they give you: put any changes you agree in writing.
  • Unpaid dependent care (or emergency) leave: they can take a reasonable amount (usually 1 or 2 days) of time off to take necessary action to look after their child. It's available no matter how long they've worked for you.

If none of the above is suitable, you can suggest they take unpaid leave or use their holiday allowance. Alternatively, you can lay-off employees for limited time if their contract gives you a right to do so.

Note that you could be liable for sex discrimination if the majority of childcare duties are performed by the child's mother. Ensure that decisions are fair and consistent, unless you have a good business reason for different treatment.

See our sections on sex discrimination in England, Wales and Scotland, and Northern Ireland.

Other reasons

If staff object for some other reason and you don't feel it's justified, write to them and tell them the reasons why you disagree.

If their objection was raised using your grievance procedure, inform them of their right to appeal your decision. Otherwise tell them they can raise a formal grievance using your grievance procedure (if they qualify).

Agreeing changes

If you agree changes to working conditions that affect the usual terms of their contracts, even for a temporary period, confirm it in writing.

Staff who don't agree to any changes and still won't agree to returning

If nothing you do convinces staff to return, you could:

  • ask or require them to use their annual leave;
  • if they're an employee, use short-time working or lay off, if the terms of their contract say you can do this; or otherwise
  • see if they agree to be put on unpaid leave.

If you can't agree, you may have to issue a management instruction for them to return to the workplace. If they continue to refuse, consider starting disciplinary action against them (unless they're self-employed), warning them that continuous refusals may result in their dismissal.

If all other options fail, redundancy may be the only alternative.

Dealing with annual leave during COVID-19

Carrying over holiday

Staff are entitled to at least 5.6 weeks of annual leave per year. Ordinarily, only 1.6 weeks of that can be carried over (if you allow it).

However, if coronavirus has meant that it's not been reasonably practicable to take some, or all, of the remaining 4 weeks, temporary rules – the Working Time (Coronavirus) (Amendment) Regulations) – now allow it to be carried over into the next 2 holiday years.

What 'reasonably practicable' means isn't completely clear. However, government guidance lists factors you'll be expected to take into account. These include (among others):

  • When your holiday year ends
  • If business demand has risen due to the pandemic and they've had to continue working to cope with it
  • Their role, e.g. they're a key worker
  • Whether enough staff have been available to provide cover

Elsewhere in the guidance, it says you should "consider whether any restrictions the worker is under such as the need to socially distance or self-isolate would prevent the worker from resting, or enjoying leisure time, which is the fundamental purpose of holiday" (as defined in law).

It's safer to take a flexible approach – it'll likely also result in more rested and motivated staff.

You should:

  • Give them the chance to take any holiday that can't be carried forward, before the end of your holiday year
  • Take reasonable steps to ensure they can take as much holiday as possible in the correct holiday year
  • Let them use carried-forward holiday first.

You can require staff to take holiday, as long as you give them proper notice (double the length of leave you want them to take). As mentioned above, this might not satisfy the fundamental purpose of holiday (resting or enjoying leisure time).

Note that this issue is untested in law, and there's scope for a lot of legal argument. Another possible way to reduce the risk is to ask them for their written views or acceptance when giving them notice to take holiday. If they agree or say nothing, this may help you later.

Homeworking

See our section on homeworking for the general issues you need to think about while staff are working at home.

Amendments to right-to-work checks

Temporarily, right-to-work checks can be made:

  • Via video call; or
  • By job applicants and existing workers sending scans or photos of documents via email or a mobile app, rather than sending originals.

You must still make the check and can use the Employer Checking Service where possible. The government has also updated its right to work guides.

These temporary measures will end on 30 September 2022 (extended from 5 April 2022). After that, you will need to see the originals of documents (i.e. in person), unless you can use the Employer Checking Service.

Note that there's no need to redo any checks that you made using the temporary measures (provided you did so properly).

Data protection and coronavirus

The Information Commissioner's Office has published advice on how to tackle data protection issues regarding COVID-19 - in particular you need to take great care if you've been collecting and storing information about staff vaccinations, test results or other health data.

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