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FAQ's will be updated regularly.

We strive to keep this section up to date as much as possible. If you have a question that is not covered then please feel free to contact us today


  • Tribunals

    Can secretly recorded evidence be used in a tribunal?

    Whether an employer or an employee can use evidence obtained by a secret recording device in employment tribunal proceedings is a complex question governed by many areas of law including the Regulation of Investigatory Powers Act 2000, The Employment Tribunals (Constitution & Rules of Procedure) Regulations 2004 and Article 8 of the European Convention on Human Rights.

    Good practice would be to always obtain the consent of both parties to the recording and to sign an agreed transcript.
    It is possible for a covert recording to be used as evidence in an employment tribunal hearing, provided it is relevant to the issues, but you should think carefully about the associated risks to privacy, reputation, and wider employee relations.

    Must an employer answer an employees question’s in a discrimination and/or equal pay claim?

    An employer should try to answer an employee’s questions.
    Employers need to understand how to respond to employees’ questions relating to an actual or prospective claim.

    Although the former statutory questionnaire procedure was replaced in April 2014 with Acas ’informal’ guidance, the employment tribunal can still draw adverse inferences from an employer’s refusal to respond or evasive answers.

    The Acas guidance has a six step question process to help employees establish the facts about conduct which they believe to be discriminatory and a template designed to help employees frame questions.

    Step 1 – the questioner sets out his or her name and address and that of the person or organisation and others whom he/she thinks may have discriminated against them.

    Step 2 – the questioner must identify which protected characteristics may have been the subject of the unfairness he/she has experienced.

    Step 3 – the questioner describes the treatment to which the complaint relates and the circumstances leading up to that treatment, including the date, time, place and number of instances of the treatment.

    Step 4 – the questioner needs to specify the type of discrimination that might have occurred.

    Step 5 – the questioner sets out why the treatment might be unlawful.

    Step 6 – the questioner can ask other appropriate questions about treatment, including statistical information to show how people with this protected characteristic are treated by the employer.

    There is a three step process for the responder (usually the employer) to consider:

    Step 1 – the responder considers if it agrees, agrees in part or disagrees with the description of the treatment the questioner alleges he/she received. The responder should investigate and then set out its version of the events.

    Step 2 – the responder can then explain if it consider the treatment was justified. The Acas guidance sets out some situations which may be objective justification. (Employers should be careful when setting out potential justification as only indirect discrimination and age discrimination claims can use the justification arguments).

    Step 3 – the responder then needs to consider and answer each question. If a responder thinks some questions are irrelevant or unclear, it can check the purpose of the question.

    If the responder decides not to answer a question, it should explain why.

    Procedural points

    A timeframe is not given within which employers must respond. However, they should not delay unreasonably in answering. In practice the old eight-week time limit is likely to be a helpful indication of an appropriate period.
    Acas emphasise that questions about potential discrimination at work should be dealt with seriously and promptly by the employer.

    The employer should consider carefully the most appropriate way to respond given the possible implications of any response.

    The employer is not under a legal obligation to answer questions. However, an employer who refuses to provide appropriate replies may find that the tribunal takes this failure into account when deciding a case. Tribunals can still draw adverse inferences from an employer’s refusal to respond or provision of evasive answers.

    As employers are not legally required to provide a response unless the tribunal orders them to, some employers may decide to wait to see if the employee pays the non-refundable tribunal fee to commence the claim before responding to the questions. Under the normal tribunal rules of procedure, employees and employers can both raise further and better particulars and ask additional questions and to seek specific disclosure of electronic and paper documents.
    The Acas guidance is not yet a Code of practice. If it becomes a Code rather than guidance, then employers failing to follow it will risk adverse inferences from the employment tribunal. It is likely that larger employers who have greater administrative resources to respond to informal questions will not be looked upon unfavourably if they refuse to respond.
    Employees will always need to ask some questions, especially in indirect discrimination cases as they need to show that the employer’s provision, criterion, or practice (PCP) has a disproportionately adverse impact on them because of their protected characteristic. Statistical information will be needed to establish this, for example, a breakdown of an employer’s distribution of employees of a certain age, or race.

    Can an employer sue both an employer and employee together ?
    Yes. This often happens in discrimination claims where the employee can bring the claim against both the employer and another employee who committed the act of discrimination. In addition to naming the employer in any application to employment tribunal, it is common to name the individual perpetrator and join them as parties to proceedings.
    An employment tribunal can order that the employer and the employee who committed the act(s) of discrimination are both liable for compensation, so the employee who committed the discriminatory act can be held personally liable. The whole amount of compensation awarded can be recovered from either the employer or the employee who committed the discriminatory act. This is what is meant by ‘joint and several liability.’

    Vicarious liability

    This legal term covers a number of situations where one person is held responsible for the actions of another person. Employers are often liable for the acts of their employees, provided it can be shown that the acts occurred in the course of employment.

    Employers can only avoid vicarious liability for the acts of their employees if they have taken all reasonable steps to prevent such acts from occurring. Maintaining an anti-discrimination and equal opportunities policy will reduce the risk of being held vicariously liable for any discriminatory acts committed by its employees.

  • Whistleblowing

    Q: What is an employer’s position if the whistleblower commits an illegal act leading to the disclosure?

    The employee may not be protected and the employer may be able to discipline or dismiss them in the usual way.

    In Bolton School v Evans (2006) the Court of Appeal held that the protection from detriment which employees enjoy under the whistleblowing legislation covers only the disclosure itself, not the conduct of the employee leading to that disclosure.

    A teacher hacked the school’s computer system to demonstrate deficiencies in the security of its IT system and to prove breaches of the Data Protection Act. The whole system had to be shut down, resulting in a £1,000 loss. The teacher was asked to attend a disciplinary hearing and received a written warning. He resigned and claimed constructive unfair dismissal on the basis that he had suffered a detriment as a result of making a protected disclosure.

    The court held that the teacher’s hacking of the school’s IT system was not part of a protected disclosure but also stated that the circumstances surrounding his actions could well do so.


    Q: Can an employer dismiss an employee for causing problems after whistleblowing, and not because of the actual disclosure itself?

    If an employer dismisses the employee for generally causing problems after they have blown the whistle, (and not because of the actual whistleblowing), the employee may be able to establish a normal claim for unfair dismissal.  Of course, any dismissal always has to be handled fairly following the employer’s own dismissal procedures and the ACAS Code of practice on disciplinary and grievance procedures.

    It can be difficult to isolate the actual reason for dismissing the employee, especially if the dismissal is closely connected to other earlier whistleblowing events.

    In Panayiotou v Chief Constable Kernaghan (2013) a police officer made protected disclosures relating to his colleagues’ attitudes towards certain racial groups and the victims of rape, abuse and domestic violence. His disclosures were investigated and he was found to be largely correct. However, he was not satisfied with the outcome of the investigation and continued to take the action he believed appropriate to right the wrongs within the force himself.

    He continued to raise numerous complaints and a great deal of management time was devoted to responding to his correspondence and investigating these complaints. He also took extensive periods of sick leave, during which, the employer paid sick pay but suspected that he was working in the family business. He was placed under surveillance and arrested at his home for allegedly receiving sick pay by deception.

    He was dismissed on the basis that his outside business interests were ‘incompatible’ with his role as a police officer and in breach of the Police Regulations 2003 and he claimed unfair dismissal and detrimental treatment because he was a whistleblower.

    The Employment Appeal Tribunal found that although the protected disclosures were the ‘genesis’ of the claimant’s treatment, his actions after the disclosures, including his campaigning and persistent sick leave led to his dismissal. This conduct could be distinguished from the protected disclosures.

    In a similar case of Kurt-Elli v Rolls-Royce (2014) an engineer blew the whistle on allegations of potentially serious problems with the company’s engines used in aeroplanes. An internal investigation failed to find evidence to support these allegations. However, the engineer refused to accept this and accused senior colleagues of conspiring in a cover up to conceal potential faults with its jet engines. He was dismissed, not because he blew the whistle, but because of his behaviour and conspiracy theories and refusing to accept that other problems were not being deliberately covered up.

    A dismissal stemming from events closely connected to a protected disclosure can therefore be distinguished from the actual disclosure itself to avoid liability for the employer in whistleblowing claims. However, employees must as always be treated fairly with proper procedures in relation to any investigation, disciplinary process and any subsequent dismissal.

  • Temporary and Agency Workers

    Q: Can agency workers bring a discrimination claim against the end-user?

    Agency workers can, and do, bring discrimination claims against the organisation where they are working temporarily. Anti-discrimination legislation widely defines the concept of employee so agency workers can be ‘employees’ of the agency for purposes of this legislation. However, under most discrimination legislation there must be ’employment’ which means employment under a contract of service or a contract personally to carry out any work.

    The organisation where they are working temporarily (the end user) is made specifically liable to compensate the worker for any unlawful discrimination under the Equality Act 2010.

    For most discrimination purposes a temporary worker supplied by an employment agency to an end user may pursue a discrimination claim against both the end user and the agency. However, claims in such circumstances will not always succeed.


    Q: Can an employer avoid employment rights by using temporary agency workers who supply services through their own limited companies?

    Some employers and employees may seek to avoid employment rights or tax obligations by using temporary agency workers who then supply services through their own limited companies. This may concern general employment rights dependent on employee status or rights arising under the Agency Workers Regulations 2010.

    Employee status

    Many temporary agency workers have their own limited company and supply their services through that company either through an agency or directly to the end user. The use of such a company does not prevent employee status arising.

    For example, the Court of Appeal made it clear in 2006 in the case Cable and Wireless plc v Muscat that the implied contract principle applied to an individual providing their services via their own service company. Such a worker can be the employee of the end-user under an implied contract even though the arrangement is set up through an independent employment agency and even though the contract expressly states that the individual is self-employed. In this case the employee had started out as an employee of the end user; the arrangements subsequently made for contracting out his services via an employment business did not obscure the continuance of that employment relationship.

    A temporary agency worker placed by an agency may put their earnings through a limited company for tax reasons. HMRC scrutinise these arrangements carefully. However, the Agency Workers Regulations may still apply to that worker.

    Under the regulations, the definition of an agency worker does exclude those who are in business on their own account. However, some workers with limited companies will be in business on their own account and some will not. The regulations do not apply if the hirer is genuinely a client or customer of a profession or business undertaking (that is, there is a genuine business-to-business relationship).

    The key issue is the true relationship between the temporary agency worker, the agency, and the hirer. For example, an accountant with their own limited company who is placed by an agency with a hirer for more than 12 weeks to help with various VAT matters while the hirer’s in-house accountant is on sabbatical will probably be protected by the regulations.

    By contrast, a lawyer in business providing services to the same company would usually not be working under its supervision or direction but will be in a client or customer relationship.

  • Stress and Mental Health at Work

    Q: How proactive should employers be in taking steps to avoid stress-related claims?

    Employers who do not manage stress and mental health issues risk low morale, high absence levels and high employee turnover. It is in an organisation’s interests to manage stress at work proactively, especially in an uncertain economic environment where employees feel under increased pressure.

    The benefits to employers of tackling mental health issues and stress include improved staff commitment and performance, increased productivity, and more effective recruitment and retention. A further benefit is avoiding expensive and time-consuming litigation.

    Line managers should help employers identify, prevent and manage mental health issues and stress. They should notice changes in staff behaviour that may indicate stress-related problems and recognise that they may also be themselves the cause of employees’ stress (for more information on assessing how effective line mangers are in this area, see ‘What action can an employer take to avoid stress-related claims?’).

    All employers have a legal duty to take the initiative if an employee raises a mental health issue, rather than passively reacting.

    As soon as an employer knows an employee is in danger of suffering psychiatric injury from occupational stress, it is under a duty of care to take action to alleviate the stress. They could be liable to pay damages for any failure to do so.


    Q: What steps should an employer take to manage stress in employees working remotely?

    Many employees enjoy working from home, but increased stress levels are inevitable amongst some homeworkers, especially those unexpectedly having to work from home, for example, during the pandemic. As well as feeling lonely, all homeworkers can have increased anxiety, a lack of perspective and fear of redundancy. These concerns can arise during any form of homeworking but during the pandemic there may be an accompanying fear of contracting the virus. For all staff working remotely, potential warning signs of mental health issues will be harder to identify.

    Employers overriding duty to ensure the health, safety and welfare at work for all employees is difficult when the employees can only be observed remotely. Overall, employers should be able to demonstrate proactive steps to monitor welfare for those working remotely during the pandemic. Organisations should be ready to respond to changes in legislation and guidance at short notice and should revisit and review risk assessments to demonstrate compliance with changing government advice.

    To minimise the risk of stress claims for remote workers the following things are key:

    • Supporting managers and ensuring they have time to prioritise maintaining contact with employees during remote supervision.
    • Training managers in regular contact and early recognition of mental health issues so they can identify and address concerns, for example, looking at unexplained changes in attendance and performance.
    • Ensuring there is support for managing remote workers’ working hours, including proper lunch and rest breaks especially in busy periods.
    • Training on a wide range of issues from mental health awareness, mindfulness, time management, wellbeing, and even eating away from your work area or getting outside for fresh air and exercise.
    • Possibly having allocated people who staff can reach out to during lockdown in addition to line managers.
    • Training for managers in giving employees special attention where there are any signs of difficulty, including those dealing with loss and grief, or with parenting or other caring responsibilities.
    • Live-streamed weekly wellbeing sessions which could involve exercise, mindfulness, meditation etc.
    • Some form of non-work based social engagement, perhaps on the intranet or messenger tool. This could include carefully managed spaces where people can talk without focusing on the virus, for example, periodic lunchtime or Friday afternoon catch-ups, virtual socialising, quizzes and so on.
  • Redundancy

    Q: Can a part-time employee be made redundant if employer wants a full-time employee?

    In this situation, there is no reduction in the need for employees to carry out work of a particular kind: on the contrary, there is an increase in demand for work of that type. Accordingly, this does not appear to fall within the statutory definition of redundancy.

    Employers should discuss the change with the current employee to see if they can change their hours. It may also be necessary to consider whether the work can be done by two part-time workers on a job share basis. If the reason for the part-time working is childcare related, any dismissal could give rise to a claim of indirect sex discrimination, in which case the employer would need to demonstrate objective justification for the requirement that this post is done on a full-time basis.


    Q: To avoid redundancies, can an employer dismiss employees who do not agree to new terms?

    If there is a reduction in the number of employees required to perform work, due to a reduced demand for products, this is a redundancy situation.

    As part of the consultation process, measures to avoid or mitigate the numbers of redundancies should be discussed. This could include considering proposed contractual variations, such as reduced hours.

    If employees are not willing to agree to the variation, then to dismiss them (under the ‘some other substantial reason’ unfair dismissal category) and offer re-engagement on the new terms may result in an unfair dismissal claim and a claim for failure to pay statutory redundancy pay.

    If there is a provision in the contract entitling the employer to provide short time working, where there is a reduction in work of the kind that the employee is employed to do, then this provision may be invoked as a temporary alternative, though not a long-term solution.


    Q: Can a redundant employee resign without losing statutory redundancy pay?

    An employee may resign during the redundancy notice period by giving their employer written notice (counter notice) that they intend their employment to end on a date earlier than the date on which the employer’s notice expires.

    To retain the right to a redundancy payment, a counter notice must be submitted within the period ending on the date the employer’s notice is due to expire, that is equal in length to:

    • the statutory period of notice under section 86 of the Employment Rights Act 1996, or
    • the contractual notice period, whichever is the longer.

    Employees will lose their entitlement to a redundancy payment if their counter notice expires before the end of the above period.

  • Parental Rights and Family-Friendly Provisions

    Q: Does time off to care for a dependant have to be an unexpected emergency?

    Although the time off for dependant’s provisions are designed to deal with unusual disruptions, such as illness or a break down in care arrangements, the need for time off does not have to be a sudden and unexpected emergency. The key issue is whether the time off is necessary.

    For example, in Royal Bank of Scotland Plc v Harrison (2009), EAT the employee’s childminder unexpectedly told her she could not cover a workday. The employee was given two weeks’ notice of this. The employee could not make other arrangements and asked her employer for the day off and was refused. The employee took the day off anyway and was disciplined. The Employment Appeal Tribunal confirmed that she was entitled to the time off to deal with the unexpected disruption to care for dependants. The employee was still protected even though she had two weeks’ notice; there did not have to be a ‘sudden and unexpected emergency’. The requirement was for the disruption to be unforeseen rather than unexpected. However, the longer the employee has to try to make other arrangements the less likely it is that they will qualify for this type of leave.

    Who is a dependant?

    For the purposes of this legislation, a dependant is quite narrowly defined as a spouse, parent or child of the employee, or someone who lives in the household as part of the family, rather than being a lodger or a tenant.

    The definition is extended to any person who reasonably relies on the employee for assistance to make care arrangements where that person has fallen ill or been injured or assaulted.


    Q: What information is an employer entitled to from an employee who needs time off to care for a dependant?

    The employee should, as soon as reasonably practicable, inform their employer of the reason for the absence and for how long it is expected to continue.

    It may, in some circumstances, be reasonable for the employee to inform the employer on their return to work where it was not practicable to make contact earlier.

    The employee only has to communicate enough to put an understanding in the employer’s mind that something has happened to cause the breakdown of the usual (in this case, childcare) arrangements and to make it necessary, urgently, for the employee to be absent from work.

  • Employment Status

    Q: Does labelling a worker as an “independent contractor” avoid employment rights?

    The labels or intentions of the parties to a contract is only one factor to consider when determining employment status, even if both parties are in complete agreement. Employment status depends on the reality of the relationship, not what the parties say they want it to be. If the aim is to avoid an employment relationship, then the overall relationship must be structured so that the elements of a true independent contractor situation are present.

    Some examples would include arranging the relationship so the worker can:

    • decide where and when they work
    • work for other companies
    • engage other workers to help them
    • use their own equipment
    • profit (for example, if they finish the task early).

    Courts will evaluate all the factors when determining whether employee status exists although the intentions of the parties can be a relevant factor. In McGregor v Edinburgh Leisure (2007), the EAT held that if there is genuine uncertainty about the precise status of the contract, how it is described by the parties involved can be considered. In Autoclenz Ltd v Belcher (2010), the contracts of more than 20 car valets said they were self-employed sub-contractors. However, the written agreement did not really reflect the day-to-day working practices or the true agreement between the parties. The court decided this was an employment relationship, a decision upheld by the Supreme Court.

    As the first point of reference, the written contract is still important, but if the description the parties give to the relationship does not reflect the working relationship in practice, employee status may be inferred.


    Q: How can someone work out whether someone is an employee?

    Because there is no detailed definition of who is an ‘employee’ in the legislation, this question is decided by courts and tribunals, and some guidelines for determining employment status have been laid down in various cases over the years.

    The first item to consider is control, in other words, who controls what is done, and where, how and when it is done? Does the worker have the right to delegate, send a substitute or hire staff to help?

    The higher the degree of control, the more likely it is that an employment relationship exists.

    The next key factor to look for is what is known as ‘mutuality of obligation’ – the obligation on the employer to provide work and the worker to do it – indicated by the number of times the worker works and whether they work mainly for one person or for different people. If they receive sick pay, and are guaranteed work, there is likely to be mutuality present, indicating an employment relationship.


    Q: How can employers work out whether someone is a worker?

    Although there is no straightforward definition of an employee in employment law, there are several definitions of worker. The precise definition varies between rights. Under the Employment Rights Act 1996, the main definition used is that workers are individuals who have entered into work, or worked, under:

    • a contract of employment or any other contract, whether express or implied and (if it is express) whether verbal or in writing, whereby
    • the individual undertakes to do or personally perform any work or services for another party to the contract
    • and that party’s status is not that of a client or customer of any business carried on by the individual.


    One important factor to consider is the power of substitution. The courts and tribunals will often examine the relationship to see if a genuine right of substitution exists. If it does, then it is unlikely there will be employee or worker status. The power to substitute must be genuine

    In Community Dental Centres Ltd v Sultan-Darmon (2010), the EAT held that a dentist’s right of substitution meant that he could not be a worker because he was not obliged to ‘perform personally any work or services’ within the meaning of section 230(3) of the Employment Rights Act 1996. Where a genuine right of substitution exists, there cannot be ‘worker’ or ‘employee’ status.

  • Annual Leave and Holiday Pay

    Q: How much holiday pay should zero hours or irregular hours workers receive?

    Most workers on zero hours contracts are entitled to holiday pay based on the number of hours they work. Where hours of work are variable it may be difficult to work out this entitlement. Recent case law has changed the way zero hours workers’ holiday is calculated.

    Former method

    Historically, to calculate a zero hour worker’s holiday entitlement, employers multiplied the number of hours worked by 12.07%. This percentage was based on taking the 5.6 weeks holiday, dividing it by 46.4 weeks (which is the number of weeks in a year minus 5.6 weeks). The statutory holiday entitlement of 5.6 weeks is therefore equal to 12.07% of normal total hours worked in a year. This method is no longer the best approach.

    Current method

    Following the case of Harpur Trust v Brazel and UNISON, 2019, workers with irregular hours or zero hours contracts patterns are entitled to a minimum of 28 days’ annual leave which should be paid at the rate of a normal week’s pay or, if pay is irregular, then the average payment for the preceding 52 weeks (note that the former 12-week reference period increased to 52 weeks with effect from 6 April 2020).

    Zero hours contract and similar workers are therefore entitled to holiday pay at their usual hourly rate multiplied by 5.6. Any weeks in which no remuneration was payable are excluded from the 52-week average.


    Q: Does an employer have to pay an employee who is on parental leave for bank holidays that accrue during the leave?

    The issue of maternity or paternity leave and bank holidays can be a perplexing one, and it has given rise to differences of opinion between employees and employers.

    The basic position (contrary to popular belief) is that employees have no automatic right to take paid leave in lieu of bank holidays that fall during their maternity or paternity leave. Some employers can, and do, require employees to work on bank holidays. There is no blanket rule that applies: instead the position depends on how bank holidays are treated in the employment contracts.

    The usual solution is that, if the employee on maternity or paternity leave would have had a contractual right to bank holidays as paid annual leave, the employee should be given time off in lieu of bank holidays. Employers must take into account both what the contract says and the statutory minimum amount of annual leave.

    If employers intend to argue that the bank holidays are not contractual benefits, they should be aware that the cumulative effect of some EU and UK case law may give the employee an argument that accrued annual leave includes bank holidays as well.


    Q: Do employers have to give employees bank holidays off if they coincide with a religious festival?

    Some bank holidays, for example Christmas and Easter, were originally fixed to coincide with dates in the Christian calendar. Problems can arise if an employee with religious beliefs wishes to have time off on a bank holiday to worship, and it’s usual in their workplace to work on bank holidays.

    The position with bank holidays is essentially the same as with any other request for holiday for religious purposes, or in connection with Sunday working. The starting point is that the Equality Act 2010 provides protection for all workers who may suffer discrimination or harassment because of their religious or philosophical beliefs. But the Equality Act does not give employees an automatic right to bank holidays or other time off around any period with religious significance.

    The employer needs to examine the terms of the employment contract. If an employee had agreed to work on bank holidays in their contract, the employee cannot then simply refuse to work for religious reasons.

    If an employee asks if they can use some of their holiday entitlement to have the bank holiday off for religious reasons, it is potentially indirect discrimination to refuse. However, whether a refusal can be justified will depend upon the facts, the size of the organisation, other employees available and so forth. A refusal could amount to indirect religious discrimination if the employer dismisses the request out of hand and the employee can show they have suffered a particular disadvantage when compared with other employees. The employer would then need to justify the indirect discrimination by establishing that the decision to refuse the time off was a proportionate means of achieving a legitimate aim.

  • Absence Procedures

    Q: Can an absent employee be disciplined for refusing permission to contact their doctor?

    The employee should have the reasons why the employer needs medical evidence explained to them (for example, to make reasonable adjustments if they have a disability). As long as this has been done, the employer is entitled to make a decision based on the facts available.

    If the evidence suggests that the absence level is unacceptable, and the employee has not disclosed information regarding any underlying medical condition despite being asked about it, then disciplinary action may be appropriate – provided it complies with the organisation’s own procedures and the provisions of the ACAS Code of practice on disciplinary and grievance procedures.

    A word of caution: ignorance is no defence under the disability discrimination provisions of the Equality Act 2010. For example, if an employee is always off sick with epilepsy but will not permit access to medical evidence, an employer cannot say it did not know that the employee had a medical condition covered by the legislation – it should have been obvious from the condition.

    Nevertheless, the Equality Act states that knowledge of the type and effects of disability will need to be established for an employer to be liable for acts of discrimination arising from disability (such as not providing enough rest breaks to suit the disability) and for being required to make reasonable adjustments.


    Q: Can an employee be dismissed because of long – term absence?

    If the time eventually comes when all procedures have been exhausted, all avenues explored and the job can no longer be kept open, the employee should be fully consulted and informed of possible dismissal. In reaching a decision to dismiss, the organisation’s capability or dismissal procedures must be followed, and employers must at least comply with its own procedures and the ACAS Code of practice on disciplinary and grievance procedures.

    If an employer chooses not to follow such procedures, it must budget to include compensation to the employee should they bring a claim.

    Dismissal by reason of capability (including medical incapability) is one of the potentially fair reasons for dismissal in accordance with the Employment Rights Act 1996. However, any dismissal for this reason must be handled as well. If, however, the absences are unauthorised and there is no medical condition, it is more likely that conduct will be the reason for dismissal. Alternatively, the fair reason for dismissal could be ‘some other substantial reason’.

    In all cases it is necessary to follow a fair procedure. An employer failing to identify the correct reason for dismissal may contribute to a tribunal finding of unfair dismissal.

    Having identified the reason for dismissal, a tribunal will then consider if the employer followed the appropriate procedures. It is important that the employer acts fairly in treating the illness as the reason for dismissal. The action taken must always be within the band of reasonable responses.

    Factors a tribunal may consider relevant are:

    • The nature and length of any illness or disability.
    • Past service and record.
    • Any demonstrable improvement in the attendance record.
    • The effect of continued absence on colleagues and the effect of the absence on the employer’s services. Tribunals must consider the size and administrative resources of the business when assessing whether the actions were reasonable.
    • Whether there are any offers of alternative employment. This perhaps has more relevance in relation to employees on long-term sickness absence but will also be relevant in the context of an employee who may have a disability.


    Q: Can an employer rely on a term in an employment contract as a defence to an unfair dismissal claim?

    Not necessarily. As well as contractual terms, employers should also be mindful of the implied duty of trust and confidence. A tribunal will consider the process the employer followed and determine whether it was fair.

    It is prudent for an employer to seek medical advice to assess whether the employee’s condition amounts to a disability in accordance with the disability discrimination provisions of the Equality Act 2010. The definition of what constitutes a disability can be split into three parts:

    • The employee must be suffering from a physical or mental impairment.
    • The impairment must have a substantial (more than minor or trivial) adverse effect on the ability to carry out normal day-to-day activities.
    • The effect must be long-term (have already lasted for at least 12 months or be likely to last that long).

    If a medical report identifies a disability, reasonable adjustments must be considered. This legal duty is quite broad and may cover physical adjustments to premises, or the provision of equipment. It can also mean adjustments to the role itself by removing certain duties and reallocating them, changes in hours or place of work, or the provision of further training and supervision. It could also include transferring to any other vacant post (subject to suitability). Note that if the employer can show that it has made considerable attempts to make an adjustment but finds that no options are viable or possible, it will have complied with s20 of the Equality Act to address that duty. Identifying a reasonable adjustment may be particularly problematic where there has been a lengthy sickness absence or frequent absences with a long- term mental health condition. Case law indicates that it is advisable to consult with the employee as to the nature of an adjustment being considered but the final decision is the employers.

  • Remote Working

    Q: Can employers reduce employee’s pay because they are working from home on a full time or hybrid basis?

    As the pandemic restrictions are lifted many employers have staff working from home on a full time or hybrid basis. Staff may work from home, some distance from their former office location. For example, staff may live and work outside London, whereas previously they worked in London and received a London weighting or increment. Employers may wish to remove increments or reduce an employee’s pay because of the increased home working.

    The legal starting point is always that changes to an employment contract require employee’s consent. If employers make pay reductions (or any other contractual changes) unilaterally, then this will be a breach of contract. Those who refuse to agree changes with at least two years service may have constructive unfair dismissal claims. There may also be wrongful dismissal claims which do not require a qualifying period.

    Consent and risk

    If employees do not consent to a pay reduction, the usual strategies for employers regarding changes to contractual terms apply. These include imposing the pay cut anyway, attempting to rely on a contractual flexibility clause, or dismissal and re-engagement. These options all entail risk. In addition to the claims referred to above, there may be claims for failure to consult, because dismissal and re-engagement of 20 or more employees requires collective consultation with elected employee representatives. In all cases absence of a fair process and consultation will increase the risk of claims.

    If employers want to revise pay, the lowest risk option is to commence a process of seeking agreement to the new terms and conditions. Alternatives include for example, imposing a new pay structure for new starters perhaps phasing out things such as a London weighting.

    Some employees will have childcare reasons for being more home based. Pay reductions may then lead to potential discrimination or equal pay claims. Pay reductions for home workers could have the effect of widening the gender pay gap. There could be other discrimination issues too, if one group such as white people, or non-disabled or younger people continue to receive a weighted location allowance, but others do not.

    Pay structures

    Many employers have yet to come to a permanent decision about hybrid or remote working and how any employee relocations, will affect pay structures. Some employers have shifted to permanent remote working, but many seem to be trialling workplace attendance for two to three days per week. If roles evolve into long term flexible location, then regional pay differentials may reduce in the longer term. On the other hand, if staff are asked to attend the office regularly, their costs are unlikely to be significantly lower than they were before the pandemic.

    Employers need to consider future pay policy as part of their consideration of working practices. The effect of increased remote working on pay structures nationally is unknown.

    Employees will resist reductions in their pay if they are continuing to do the same work. Changes to pay based on hybrid or home working will also damage talent retention and morale, especially if some workplace-based colleagues continue to be remunerated in the same way.

    Employers should consider all factors. Reduced transport and ancillary costs of attending the workplace, such as clothing, coffees and lunches may improve employees’ financial position. On the other hand, utility bills will increase when working from home, and staff may feel that their pay should reflect this.

    Q: Should employers alter employee’s pay to take into account reduced commuting costs or increased electricity and heating bills?

    Many employers have staff working from home on a full time basis in the medium or long term because of the pandemic. Employees may be in a better financial position with reduced transport and ancillary costs of attending the workplace, such as coffees and lunches. At the same time though, employees may find that their utility bills increase as a result of working from home. Employers may wish to change an employee’s pay because of these changes and the legal starting point is always that changes to an employment contract cannot be made unilaterally. Most alterations of terms and conditions require employee’s consent and altering pay without this will be a breach of contract leading to claims including unfair dismissal.


    A beneficial change such as a pay increase to cover increased utility bills, or more likely allowing specific expenses claims, is a change most employees will agree to (and by accepting and taking the payment the contractual change is deemed accepted by the employee’s conduct, so the change becomes incorporated into the ongoing agreement without the need for express agreement). Deciding to reimburse staff for utility expenses is entirely at the employer’s discretion. Due to the economic pressures on many employers they can decline any requests to reimburse employees for these home expenses. If employers do reimburse heating and lighting etc for staff working regularly from home, then they can pay a tax-free set sum to help with these expenses (see below).

    By contrast, a pay cut due to reduced transport costs is a significant negative change to an employee’s terms and employees may refuse consent. In the current situation employees may feel that they have little alternative but to agree as it may be difficult for them to find employment elsewhere. Express written agreement to changes is always the safest option. There will need to be consultation with employees, explaining the rationale behind the reduction.

    Absence of consent

    If employees don’t consent to a pay cut, the usual options regarding unilateral changes apply to contractual terms:

    • Reliance on a contractual flexibility clause: some contracts have flexibility clauses purporting to give the employer the right to vary terms unilaterally. These clauses are often seen as being invalid and are unlikely to cover a pay cut.
    • Imposing the pay cut anyway: Employers can make the change unilaterally, informing employees of the reduction and wait to see what happens. If employees continue to work without objecting, the employer can argue that the pay reduction has been impliedly accepted. This approach is high risk as employees can bring claims for breach of contract saying they did not accept the change despite continuing to work. Alternatively, there may be constructive unfair dismissal claims.
    • Dismissal and re-engagement: The most extreme option is to terminate employee’s contracts (with proper notice, to avoid wrongful dismissal claims) and then re-engage them on the reduced terms. This is a risky approach and may lead to unfair dismissal claims. The employees can choose to accept or reject employment on the reduced pay. Those who refuse and have at least two years service may have unfair dismissal claims. If the employer is proposing to dismiss and re-engage 20 or more employees there needs to be collective consultation with elected employee representatives, and in all cases a fair process and consultation.
  • Furlough

    Q: What are the key terms of the furlough scheme between November 2020 and September 2021?

    The key terms of the extended furlough scheme are that employers (including those who have not used the furlough scheme before) can furlough staff and claim 80% of their salaries, up to a cap of £2,500 from the government.

    Employers must still pay employer NICs, pension contributions and an element of holiday pay (see our FAQs on furlough and holiday).

    Furlough was originally introduced at the beginning of lockdown in March 2020 and has been extended four times from the original May 2020 end date. (The extensions were to June 2020, then October 2020, followed by a last-minute extension to March 2021 and then April 2021).

    The scheme has now been extended for the fifth time until the end of September 2021. Until the end of June 2021 the government contribution was 80%. From 1 August until the scheme ends at the end of September, the government contribution has been reduced to 60%. Employers now contribute 20% for hours not worked plus NICs and pension contributions.

    Until September the furloughed employees will still continue to receive up to 80% of their pay for hours not worked. Flexible furlough will continue to apply so employees can receive their normal pay for any hours that they work and receive the grant for the remaining unworked hours.


    Employees whose Real Time Information (RTI) submission notifying payment for them was made to HMRC on or before the extension was announced, are eligible for grants under the furlough scheme extension.

    Periods on or before 30 April 2021

    Employers can claim for employees if:

    •  they were employed on 30 October 2020; and
    • A PAYE Real Time Information (RTI) submission was made to HMRC for that employee between 20 March 2020 and 30 October 2020.

    Periods on or after 1 May 2021

    Employers can claim for employees if:

    • they were employed on 2 March 2021; and
    • A PAYE Real Time Information (RTI) submission was made to HMRC for that employee between 20 March 2020 and 2 March 2021.

    Employers can claim for employees who have not previously been furloughed. This will include employees who worked continuously between March and October 2020 for the claims before 30 April 2021. Similarly, employees who worked before 2 March 2021 can be included in the furlough claims from 1 May 2021.

    Employers can claim for employees on any type of employment contract, including full-time, part-time, agency, flexible or zero-hour contracts. Foreign nationals can be furloughed. Employees on all categories of visa can be furloughed and grants under the scheme do not count as access to public funds for the purposes of visa conditions.


    Employers seeking to extend furlough until the end of September 2021 will need to obtain agreement.

    Q: What key dates should employers be aware of during the rest of the furlough scheme?

    The following dates are relevant during the rest of the furlough scheme until it ends in September 2021:

    • 1 July 2021: From this date the government contribution reduced to 70% towards the furlough grant and employers had to pay 10% for hours not worked.
    • 1 August 2021: From this date until the end of September the government will pay 60% towards the furlough grant and employers will have to pay 20% for hours not worked.
    • 30 September 2021: The furlough scheme closes at the end of September 2021.

    Q: If employees are on furlough leave can they participate in disciplinary and grievance processes?

    Furloughed employees can participate in disciplinary and grievance processes. However, in some cases the furlough grant may be jeopardised depending on whether the furloughed employee is the manager conducting the hearing, the witness, or the employee the proceedings are about.

    ACAS guidance on handling disciplinary and grievance proceedings during the pandemic suggests that employees can chair and take notes at hearings, as well as giving witness statements or acting as witnesses. The potential problem for some employers operating their disciplinary and grievance processes is that during full furlough or furloughed hours employees must not generate revenue or provide services to the employer. The position is as follows:


    Line managers and HR managers who are on furlough leave cannot supervise a disciplinary and grievance process during their furloughed hours. This would amount to working or providing a service to the employer. Only those employees who are not on furlough at the time should run the process. Partially furloughed employees can run disciplinary and grievance processes during their working hours if the employer makes no claim for that working time under the furlough scheme.

    Employees who are the subject of the proceedings:

    Employees who are being disciplined or who have raised a grievance can participate in their own hearing even if they are also furloughed at any point in time. Participating in one’s own grievance or disciplinary process is not providing services to the employer.


    Potential problems arise if evidence is needed from furloughed employees. Staff who are witnesses in proceedings involving a colleague could be providing services to the employer in breach of the furlough restrictions. ACAS guidance suggests employees can be witnesses in internal grievance or disciplinary proceedings without coming off furlough. However, to avoid any risk of challenges that employee witnesses are breaching furlough by providing services, employers may prefer to place the proceedings on hold until any furlough period has ended or take the witness off furlough.

    Employee’s companion:

    Employees are entitled to have a union representative or colleague ‘present’ at a grievance of disciplinary hearing, even if this is an electronic presence in a remote hearing. It is arguable that a union representative is providing services to the employee, or the union, and not to the employer. So, the union representative performing those duties may not amount to them carrying out ‘work’ for the employer. For other companions who are colleagues they may arguably be providing services to the employer by participating in the process. For any hearings taking place on or after 1 July 2020, employees are allowed to work part-time, so the grant payments for furloughed time should not be in jeopardy as long as the employer makes no claim for that working time under the scheme.

    It would be logical that employees who provide witness statements and evidence for use in disciplinary proceedings should be allowed to do so without jeopardising the furlough payment at any stage in the scheme’s period of operation. However, employees who are being disciplined may have bad feelings towards the employer and could trigger an HMRC investigation by saying that the employer’s witnesses were working and breaching the terms of their furlough. To avoid any risk that employers who use furloughed staff as witnesses were breaching the furlough restrictions employers may prefer to place the disciplinary proceedings on hold or until any furlough period has ended or simply take the witness and other participating staff off furlough. Alternatively, they may decide to run the risk and then if HMRC do investigate, try to argue retrospectively that the witnesses were merely giving evidence and not providing services. Employers should be cautious about disciplinary and grievance processes. If there is any possibility of breaching the furlough scheme, any furloughed employees required as witnesses should be taken off furlough as a precaution.

    Q: Can previously furloughed employees who have returned to work be placed on furlough whilst they are on holiday?

    Working employees should not be placed on furlough simply because they are on holiday for that time. Employees who have returned to work and then book holiday should receive holiday pay, paid by the employer at the employee’s normal rate of pay.

    Where employees receive a variable rate of pay, holiday pay should be calculated on the basis of the average pay received by the employee over the last 52 working weeks.

    If a furloughed employee takes holiday, then the employer must pay their usual full holiday pay in accordance with the Working Time Regulations. Employers can then claim the portion of the furlough grant towards that pay, but the employer has to top it up to the usual full holiday pay amount. The top-up cannot be claimed back through the furlough scheme.

    If an employee is flexibly furloughed, then employers must pay usual holiday pay for the days or hours that are worked. For example, an employee works 20 hours a week and is furloughed for 28 hours per week. Any hours taken as holiday during the furlough claim period should be counted as furloughed hours rather than working hours. So in a holiday week, 48 hours in that week would count as furlough hours. Employers will top up to full holiday pay for the hours or days on furlough.

    Furloughed employees also continue to accrue holiday under their employment contract.

    Grey areas may arise concerning the furlough grant if an employee has a holiday period tacked on to the end of a furlough period. Such arrangements may be genuinely part of furlough, and others may not. The guidance makes it very clear that employees should not be placed on furlough simply because they are taking holiday. If an employer breaches the terms of the Coronavirus Job Retention Scheme, HMRC is expected to give companies 30-days to confess before a formal investigation begins. If employers make furlough claims just for holiday for employees who had in reality returned to work, this claim for more than they are entitled to may be regarded as fraudulent and could result in a criminal and civil action.

    Q: Do employers have to pay full holiday pay if holiday is taken during a furlough period?

    Yes, employers have to pay full holiday pay if holiday is taken during a furlough period.

    Based on extensive previous case law, holiday pay must be based on normal remuneration. This applies for at least the four weeks EU minimum leave and includes overtime, allowances, compulsory commission and bonuses, meaning employees do not get less pay when they are not working. However, discretionary bonuses and discretionary commission payments (including tips and tronc payments) and non-cash payments should currently be excluded, although the guidance on this may change.

    Normal remuneration is assessed over an average of 52 weeks from April 2020 (formerly 12 weeks) so annual leave during furlough must be based on normal remuneration. Although it is more expensive to have an employee on holiday rather than furlough, the advantage for the employer is that the employee’s remaining holiday entitlement between now and the end of the holiday year is reduced.

    Employers who require furloughed employees to take holiday can claim the 80% grant money from HMRC for employees on holiday leave but have to top the holiday pay to the full salary amount. This is in contrast to the furlough period where they can choose to top up pay (or not). The need to top up applies for at least the four weeks EU minimum leave. For the remaining 1.6 weeks there is a potential legal argument that an employer could get the employee to consent to just being paid the 80% but employers should probably pay the full amount for the entire holiday period too.

    Holiday periods may give rise to complexities if employees are partially furloughed combined with part-time working. The interrelationship between furlough and holiday is untested and legal advice may need to be taken if a problem arises.

    Q: Can I place an employee on furlough instead of Statutory Sick Pay?

    Employees on who are on sick leave or self-isolating should normally get Statutory Sick Pay (SSP). There has been ongoing government guidance on this.

    Furloughing an individual employee already on sick leave

    If an employee is on sick leave or self-isolating, the employee should be on SSP. The government guidance states that illness or self-isolation should not be a trigger in deciding whether to furlough an employee. Employers can place employees on furlough leave after their sick pay period if appropriate. The furlough scheme is not intended as an alternative for sickness absence, the illness may be short term and furlough periods are at least 3 weeks.

    Furloughing employees including those already sick

    If employers are in the process of furloughing employees anyway for business reasons and some employees are off sick, the employer can furlough the sick employees with other staff. In these cases, the employee will receive furlough pay instead of SSP because the furlough will end their sick pay entitlement.

    Furloughed employees who become ill

    If an employee is already on furlough leave when they become ill the guidance confirms that it is the employer’s choice whether to keep them on furlough, at their furloughed rate of pay, or end the period of furlough and move the employee onto SSP.
    If, when deciding between SSP and furlough, the employer chooses to move the employee onto SSP the employer must cease the claim for the furlough salary for that period.

    Employees who are self-isolating

    Employers can claim from the furlough scheme for staff who are self-isolating. As explained above if the employees develop symptoms the employer can choose between SSP and furlough. (Obviously SSP pays employees only £96.35 per week when staff are sick for over four days, whereas furlough pays 80% of an employee’s normal wages up to £2,500 per month).
    The government guidance on employer’s ability to furlough self-isolating staff has been criticised for overly emphasising that the scheme is not intended for short-term absences from work due to sickness or self-isolation. However, employers remain eligible for furlough grants for self-isolating staff.

    Coronavirus sick pay rebate scheme

    Employers may qualify for a rebate for up to two weeks of Statutory Sick Pay. Employers can claim a grant under both the furlough scheme and the sick pay rebate scheme for the same employee, but not for the same period of time.

    Long-term sickness

    Although employees who are receiving Statutory Sick Pay cannot claim furlough pay, employees who are on long-term sick leave can be furloughed. HMRC guidance on the scheme confirms that the scheme is not intended as an alternative for short-term sickness absences, but employers can furlough employees who are on sick including those off on long-term sick leave if there is a business reason.

    Q: What if we want to bring employees back from furlough early (because other people get sick)? Do we lose the ability to claim three weeks of 80% and need to increase their pay for those weeks?

    After 1 July 2020 employers can bring employees back to work who have previously been furloughed, while still being able to claim the grant for any normal hours not worked.

    Staff can be furloughed and return to work and then be furloughed again for as long as the scheme is operational. If an individual is only furloughed for one or two weeks before then and is then summoned back to working (either working from home or in the workplace) then the employer cannot claim under the scheme for the contribution to pay for that period.

  • Disciplinary

    Q: Can a defective disciplinary process be rectified on appeal?

    Employees must be treated fairly throughout any appeal process, which must follow both any internal disciplinary policy and the ACAS code of practice on disciplinary and grievance procedures.

    Organisations should not rely on an appeal to correct earlier failings in the disciplinary process, although a fair appeal may help employers avoid findings of unfair dismissal.

    Every point of appeal must be addressed and comprehensively responded to in the appeal and in the appeal outcome letter.

    For example, in Khan v Stripestar Ltd (2015), Khan was dismissed following a six-minute disciplinary hearing. He appealed, and the appeal manager investigated thoroughly and interviewed witnesses but confirmed the dismissal. Khan’s unfair dismissal claim failed. The Employment Appeal Tribunal (EAT) said a disciplinary process can be fair overall where the appeal process is thorough and reasonable.

    A successful appeal automatically revives employment and employers should not communicate an employee’s departure too early in case the decision to dismiss is overturned on appeal. If an employer fails to comprehensively deal with some of the allegations in disciplinary proceedings, this failure may be a breach of contract (see Patel v Folkestone Nursing Home Ltd, 2018).

    Generally, the employer should not increase the sanction from the previous hearing unless this is expressly provided for in the discipline and grievance policy. An example would be increasing the sanction from a warning to a dismissal (see McMillan v Airedale NHS Foundation Trust, 2014).

    Q: Does the ACAS code apply to ill health dismissals?

    The ACAS code on disciplinary and grievance procedures does not usually apply to ill health dismissals, but only to situations where an employee’s alleged act or omissions involves misconduct or poor performance requiring correction or punishment (see Holmes v Qinetiq Ltd, 2016).

    An employer should have alternative procedures for dealing with ill health, unless the ill health leads to a failure to comply with a sickness absence procedure, in which case disciplinary procedures may be necessary.

    The ACAS code also does not apply to redundancy dismissals or the non-renewal of fixed term contracts on their expiry.

    If employers are in doubt whether the ACAS code applies, then it is probably safer and good practice to follow it anyway, because employment tribunals can adjust any award made by up to 25% if there has been a failure to comply with the code when it is applicable.

    Q: Must a disciplinary procedure be completed before issuing a warning or suspension?

    Whether a disciplinary procedure has to be followed in full before issuing warnings to an employee or suspending them on full pay will depend upon what the employer has included in its policy.

    Most disciplinary procedures will allow an employer to give verbal, written and final written warnings, which will have a defined lifespan.

    Before issuing oral or written warnings or suspending an employee on full pay, employers must comply with both the organisation’s own procedure and the ACAS code of practice.

    The ACAS code envisages that before giving a formal warning, employees will have been informed of the allegations in writing and have had the opportunity to state their case at a disciplinary meeting, with the right to appeal against any disciplinary penalty.

    Employees and workers have a statutory right to be accompanied where a disciplinary meeting could result in a formal warning or some other disciplinary action.

    Q: Can an employer take off-duty misconduct into account?

    Conduct that occurs outside of the workplace can justify a dismissal. However, the conduct must be of relevance to the job in question.

    Issues employers need to consider when contemplating dismissal in such circumstances are:

    • Is there an express term in the contract or the disciplinary policy governing misconduct outside the workplace?
    • What is the previous disciplinary record and length of service of the employee?
    • Does the nature of the misconduct have a bearing on the role performed by the employee (for example, a care assistant in a residential home facing prosecution for assault)?
    • Will there be an effect on the reputation of the company given the nature of the business (press coverage may be relevant)?
    • Does the incident involve or affect other employees?

    In one case, an employer fairly dismissed an employee for a fight at the end of a Christmas party (Gimson v Display By Design Ltd, 2012). Employees can be disciplined and dismissed for misconduct outside the workplace, provided that the incident is sufficiently closely connected to work to have had an impact on the work environment.

    Criminal charges

    An employer must conduct its own full and thorough investigation, which may include suspension, in relation to an employee facing criminal charges. It is not necessary to wait until the outcome of the criminal proceedings is known before taking action. It is extremely important that an employer carries out its own investigation. Before dismissing, employers should consider the factors listed above. Other relevant issues will include the seniority of the employee, any effect the conviction has on their ability to do their job and the nature of the employer’s business.

    For example, in Post Office v Liddiard (2001), a tribunal found the employer had unfairly dismissed a worker imprisoned for violence at a football match which received significant media coverage. The Court of Appeal decided the tribunal had not considered whether the employer had acted within the range of reasonable responses by treating the employee’s bringing the organisation into disrepute as a sufficient reason for the dismissal.

    Q: Can the employer or employee record disciplinary or grievance meetings?

    With advances in technology, including smartphones, recording disciplinary and grievance meetings happens more frequently. The legal position varies depending upon whether the recording is open or secret.

    Open recordings

    An employer and employee may agree that a sound recording is to take place, or the employer’s own disciplinary and grievance procedure may contain the right to record hearings. For example, it may be appropriate for an employer to agree to a recording where the employee is disabled and requests such a recording as a reasonable adjustment to the usual procedure.

    If employers decide to record the proceedings (with the employee’s consent) then typed transcripts are often provided to all parties. The Acas guide on discipline and grievance confirms that copies of meeting records should be given to the employee,.
    Alternatively, an impartial employee may attend and take notes on a confidential basis. A full copy of those notes should then be provided to the employee after the hearing and an agreed record produced and signed by both parties. The employee and their companion are also free to take notes during the hearing.

    If the employer does not want recordings of meetings, this should be made clear in the disciplinary and grievance procedures. At the start of meetings, it is common to request that mobile phones, or any other portable devices, are switched off and that employees should remove all their belongings from the hearing room during an adjournment.

    Secret recordings

    Covert recordings of meetings with an employer used to be inadmissible as evidence in any later tribunal proceedings. If an employer covertly records a meeting with an employee, the evidence gathered in this way is still unlikely to be permitted.
    If the employee makes a recording the general rule established by case law now is that:

    • the recording of a meeting where the employee was present may be admissible at a tribunal if the tribunal believes it is relevant
    • any secret recording of private discussions of an employer’s disciplinary panel when the employee is no longer in the room will not be admissible.  The leading case on this is Amwell View School v Dogherty (2006). The EAT held that the employee’s secret recording of her disciplinary hearing could be used in evidence in the tribunal. However, the secret recording from the device left in the room during the ‘private’ deliberations of the panel were not admissible as evidence. However, cases have also gone the other way. In Punjab National Bank v Gosain (2014), a secret recording of the employer’s private adjournment discussions was admitted as evidence.

    Q: Is an employee dismissed for gross misconduct likely to succeed in an unfair dismissal claim?

    If an employer dismisses an employee for an act of gross misconduct and the employee subsequently proves their innocence, the employee will not automatically succeed in an unfair dismissal claim. This is because an organisation only needs reasonable grounds for its belief that there was gross misconduct, based upon a reasonable investigation. If the employer reasonably believed the conduct occurred and followed the ACAS code of practice on disciplinary and grievance procedures then the dismissal will be fair, even if the employee subsequently proves they did not do whatever the employer thought they did.

    Reasonable belief
    An employer will be able to defend a non-automatic unfair dismissal claim if it can show it genuinely believed that the employee was guilty of misconduct. The employer should have reasonable grounds for its belief based on a reasonable investigation.

    This key test was established in British Home Stores Ltd v Burchell (1978) and is valuable guidance to employers when considering the reason for a misconduct dismissal. Once the reason has been established, a tribunal must then turn its attention to considering whether the employer acted reasonably in treating this as sufficient reason to dismiss in all the circumstances of the case. A tribunal cannot substitute its own view – in other words, what it would have done had it been the employer; it must only consider the issue of whether the employer acted reasonably.

    Whether a dismissal is fair or unfair depends on the facts as they are known to the person making the dismissal decision. Even if other employees and the employee’s line manager know some key facts about which the decision maker is genuinely ignorant, the dismissal may still be fair (Orr v Milton Keynes Council, 2011). The fairness of a dismissal depends on whether it was reasonable based on the facts known to the decision maker and not the information known to others in the organisation. Obviously, if there was an error in the disciplinary procedure which meant these facts did not come to light, then the dismissal may still be unfair.

    Thorough investigation
    In a case of suspected misconduct, an employer does not have to investigate every line of defence put forward by an employee. In Shrestha v Genesis Housing Association Ltd (2015), a housing support worker had to travel by car to see clients at their homes. His expenses claims seemed excessive when compared with AA-suggested mileage rates. The employee was dismissed for gross misconduct on the basis that he had falsified his mileage claims.

    The key issue was whether the employer should have analysed every single journey made by the employee and the purported reasons for the additional mileage. The EAT and Court of Appeal ruled that the employment tribunal was required to apply the test in Burchell, which requires an employer to carry out as much investigation into the matter as is reasonable in the circumstances. Here the employer did not have to examine each line of defence put forward by the employee, as it was simply not plausible that there was a legitimate explanation for each and every journey. An investigation should be looked at in its entirety when assessing the question of reasonableness.

  • Self Isolation

    Q: What happens if an employee needs to self-isolate?

    In accordance with government advice, if an employee has symptoms, however mild, or is in a household where someone has symptoms, they should self-isolate, as should everyone in their household. People should also self-isolate if told to do so by NHS Test and Protect. These people should not leave their house or go to work and employers should advise them to follow the Government’s self-isolation advice and ask for a test.

    If the test is positive the person should self-isolate and notify NHS Test and Protect who then telephone contacts who may have caught the virus who can then also self-isolate and avoid passing it on to others.

    If the test is negative, then people must self-isolate although self-isolation is no longer required from 16 August for fully vaccinated people (see below). Before 16 August all people notified (even if fully vaccinated) must continue to self-isolate for the 10 full days. Even those with a negative test could still become infectious later.

    Testing and tracing

    Currently, people in England, Scotland and Northern Ireland and Wales who test positive will be instructed by the NHS Test and Protect service or local public health teams to self-isolate for 10 days (as will members of their household). They will be asked for the contact details of anyone they’ve been in close proximity to and about places they have visited in the 28 hours prior to their symptoms becoming apparent. Anyone considered at risk of catching the virus will then be contacted and told to self-isolate for 10 days whether they have symptoms or not. The rest of their household does not have to self-isolate unless someone in the house becomes ill.

    Since 7 August in Wales, 9 August in Scotland and from 16 August in England, people who have been fully vaccinated for more than two weeks no longer have to self-isolate if a close contact tests positive. Instead they will be advised to take a PCR test as soon as possible (see below). There are also exemptions for workers in certain sectors in England for before 16 August (see below).

    Sick pay

    Employees who have coronavirus, or who cannot work because they are self-isolating, can claim Statutory Sick Pay (SSP) from day one. This includes individuals who do not have symptoms, and those in the same household as others who display symptoms and are following government public health advice to self-isolate. The scheme has been temporarily extended to cover those instructed to self-isolate by NHS Test and Protect.

    Practical points

    It is good practice for employers to treat self-isolation as sick leave and follow their usual sick pay policy (or agree for the time to be taken as holiday if the employee requests this). Employers could also advise employees to work from home if possible and continue to pay as normal. Treating the employee as being on paid sick leave or as working from home is advisable and justified. It makes sense, otherwise concerns about lost pay could lead to potentially infected people coming into work.
    We recommend employers that offer contractual sick pay should provide this if a member of staff is asked to self-isolate even if they have no symptoms.

    Q: What happens if an employee is ‘pinged’ by the Test and Protect app?

    The rules about isolating remain in place in England even though most restrictions ended on 19 July. After some contradictory information, the government have said it is crucial people isolate when they are told to do so, either by NHS Test and Trace or by the NHS app, and employers must support their employees to self-isolate (subject to exception for critical staff as explained below).

    Changes from August 2021

    The guidance has changed again, as anyone who is fully vaccinated is exempt from self-isolation from 7 August in Wales, 9 August in Scotland and 16 August in England (as outlined below). Even if people test negative, before the changes take effect in August the NHS still advise people to keep self-isolating for the rest of the 10 days as they could still get symptoms after being tested. Anyone they live with can stop self-isolating if they do not have symptoms.

  • Returning to the Workplace

    Q: What are the rules or guidance now that restrictions have eased from July and August 2021 onwards?

    From 19 July 2021 in England all remaining limits on social contact and social distancing are removed. Rather than rules, from 19 July the approach in England to COVID-19 precautions is largely based on individual choice. Overall, the guidance has a new emphasis, moving away from making the workplace ‘COVID-secure’, towards reducing and minimising risk.

    From 19 July 2021 all businesses in England can reopen, and councils lose their powers to enforce COVID rules meaning that:

    • Face masks are no longer legally required (although some shops and transport operators will still require masks as the government still expects and recommends them in crowded and enclosed spaces)
    • The 2 metre (or 1 metre plus) social distancing rule ends (except in some places for example hospitals and passport control when entering)
    • All legal restrictions on numbers meeting indoors and outdoors are removed
    • The guidance requiring people to work from home where possible is removed, although employers are required to plan a safe return to the workplace. The government advises that working from home continue to allow a gradual return over the summer at the employer’s discretion
    • Nightclubs can reopen
    • Bars and restaurants are no longer table service only and can choose to follow check-in requirements or table service rules but these are not mandatory
    • There is no limit on the number of visitors to care homes
    • Theatres, sports events and concerts no longer have capacity limits
    • COVID-status certification is not a condition of entry for visitors to any internal venue unless the venue chooses to adopt that system
    • All restrictions are removed for weddings, funerals and other life events
    • Guidance recommending against travel to amber list countries is removed
    • Under-18s and fully vaccinated adults do not have to self-isolate after visiting green or amber list countries, although those returning from some places (for example France) must still quarantine for 10 days.

    The main change is the shift from legal restrictions to allow the public to make informed decisions about how to manage the virus. This includes employers, although employers will have to remain mindful of their duties around health and safety. The sets of guidance for workplaces are more cautious than first thought. The guidance contains priority actions to protect staff and customers, as well as detailed sections on risk, who should attend work, ventilation and reducing contact for workers, reducing risk for customers, visitors and contractors. There are sections in the guidance on cleaning the workplace, personal protective equipment (PPE) and face coverings, workforce management and tests and vaccinations.

    For more guidance on working safely in England click here

    Regional variations

    The government has identified areas of England where the Delta variant is spreading quickly. In any of these areas employers and individuals should read local COVID-19 information and advice. This could mean continued face coverings in busy places, meeting friends and family outside, continuing social distancing by remaining 2m apart from people outside your household, as well as hand hygiene and cleanliness measures.

    Remaining precautions

    Obviously, there are ongoing requirements to self-isolate for those who test positive or who have been contacted by NHS test and Protect. Employers should ensure that those staff do not attend the workplace. The following rules still apply:

    • The need to self-isolate if someone tests positive for coronavirus
    • The need to self-isolate for those in close contact with someone who tests positive until 16 August. After that date under-18s and those who have received a second COVID vaccination at least 10 days before the contact no longer need to isolate
    • From 16 August most COVID restrictions in schools will end
    • People are encouraged to continue to meet others outside where possible
    • Border restrictions remain in place, depending on the status of the departure country to help manage the risks of new variants arriving
    • Although face coverings are longer legally required, the new guidance will suggest that people might choose or offer to wear one in enclosed and crowded places (such as crowded shops, hospitality venues or on crowded public transport) or where you come into contact with people you don’t usually meet

    England, Scotland, Wales and Northern Ireland

    Employers should continue to carefully monitor the relevant websites for England, Scotland, Wales and NI for the latest advice. The rules set out above apply to the whole of England, but different dates and rules apply in the devolved parts of the UK.


    The government lifted most remaining restrictions from 9 August moving beyond Level 0 but this does not mean there are no precautions at all. Ongoing restrictions include:

    • People must carry on working from home in Scotland from 9 August onwards
    • Masks remain compulsory in certain public settings including public transport and in shops
    • Face masks will also be worn during lessons by secondary pupils and schools will have access to CO2 monitors to ensure appropriate ventilation. Both pupils and school staff must take lateral flow tests before they return, followed by regular testing in the future
    • Schools retain a one-metre social distancing rule for the time-being, which will be kept under review by the Scottish Government
    • Customers in pubs or restaurants must still provide contact details and wear face coverings when not seated

    Foreign travel is permitted for many countries which are classified as green, amber and red on a similar basis to the English system and a review of the categories takes place every four weeks. Hotel quarantine is still required for people returning from ‘red list’ countries. Self-isolation for those from amber list countries ended on July 19, provided that travellers have received both doses of a vaccine through the UK’s vaccination programme and a PCR test is conducted on the second day after arrival.

    For those who have not been travelling, guidance is expected on allowing fully vaccinated people canto avoid self-isolation after close contact with positive cases. if they receive a negative PCR test result. In addition, limits on the size of gatherings are lifted therefore large-scale events can take place.

    Young people under 17 can end self-isolation if they test negative, while those under five years old are encouraged but not required to take a test.

    The government announced that an app is being developed to allow for certification for those travelling abroad and COVID status certification for access to certain higher risk venues in future.

    For more guidance on working safely in Scotland click here


    In Wales there is also an easing of restrictions with a move to Alert Level 0 from 7 August which means most of Wales’ remaining COVID restrictions have been lifted as set out below, although some restrictions remain in place:

    • Face coverings will continue to be required in most indoor public places including shops and in healthcare settings but will no longer be required in hospitality settings such as restaurants and cafes.
    • Unlimited people can meet indoors or outdoors including in private homes, public places, or at events.
    • All businesses can open to the public and workplaces must carry out a risk assessment and continue to take reasonable measures to minimise the risk of exposure to coronavirus.
    • Workplaces have more flexibility about which reasonable measures to take to minimise the risk of the virus depending on their risk assessment and their specific circumstances.
    • All premises can therefore open, including nightclubs and other entertainment venues subject to risk assessments.
    • Self-isolation and testing in Wales. People must continue to isolate for 10 days if they have Covid-19 symptoms or a positive test result.
    • Adults who are fully vaccinated and children and young people under the age of 18, no longer need to isolate if they are identified as close contacts of someone with coronavirus.
    • Everyone identified as a contact of a positive case must have a PCR test on day two and day eight, whether they are fully vaccinated or not.
    • People fully vaccinated in the UK and under-18s travelling with them do not have to quarantine after visiting an amber list country.
    • Staff working with the vulnerable, particularly health and social care staff, must have a risk assessment and daily lateral flow tests.

    For more guidance on working safely in Wales click here

    Northern Ireland

    In Northern Ireland the lockdown eased further from 26 July onwards, with the following restrictions remaining:

    • Social distancing is reduced to 1m indoors and removed for outdoor activities (although a 2m distance is still recommended)
    • 10 people from three households can meet inside a private home
      15 people from any number of households able to meet in a private garden.

    The Northern Ireland executive will review the remaining coronavirus restrictions on August 12 including whether face coverings should be mandatory in schools when they return. Employers should continue to carefully monitor the England, Scotland, Wales and Northern Ireland websites for the latest advice.

    For more guidance on working safely in Northern Ireland click here

    Employer’s preparations

    As the working from home guidance is removed employers can determine whether staff continue working from home or return to the workplace. Although there is a shift towards individual choice for both people and businesses, there is extensive guidance for employers on risk management measures to put in place.

    Many employers have already considered their plans for continued home working or bringing staff back to the workplace. Many employers who can are opting for a hybrid working, with staff being encouraged to work from home for two or three days a week, for example.

  • Vaccination and Testing

    Q: Is vaccination being made compulsory for all those working in the health or care sectors?

    From 11 November 2021 COVID-19 vaccination is compulsory for those working in care homes in England. The legislation applies to all Care Quality Commission-regulated service providers of nursing and personal care, in care homes. Operational guidance is now available on the government website. A further review will decide if mandatory vaccination will be extended to other parts of the adult and social care sectors, including extending the policy to all hospital staff.

    For those working in care homes:

    • Workers who can prove they are clinically exempt will not have to have the vaccination. To claim an exemption, the worker must have clinical reasons they cannot be vaccinated. Religious and philosophical beliefs do appear to lead to a specific exemption
    • Care workers have 16 weeks from the introduction of the legislation on 22 July to decide to take up the offer of vaccination. This means that 16 September is the last date for care workers to get their first vaccine, so they are fully vaccinated by 11 November 2021
    • The rules mean anyone seeking to work in care homes will need to be double vaccinated. This includes agency workers, volunteers, temporary healthcare workers and tradespeople. As well as care staff, the Regulations ban a large variety of unvaccinated tradespeople who might need to visit a care home
    • Visitors coming to see care home residents, the residents themselves, emergency help providers (for example ambulance, emergency plumbers) and children under 18 are excluded from the new requirements
    • The current legal approach concerning staff who refuse vaccination would normally involve consideration of alternative roles or potential procedures towards dismissal

    In early July 2021 NHS England guidance confirmed that the consultation on further mandatory vaccination for all patient facing health and care service workers (including hospital staff) will take place shortly.

    At present some NHS frontline healthcare workers are required to have the Hepatitis B vaccine. This is not a legal requirement but is applied by the NHS through workplace health and safety and occupational health policies. A number of other vaccines are already recommended for NHS staff including flu, tetanus, diphtheria, polio, MMR and varicella for susceptible healthcare workers and BCG for staff who may have close contact with infectious patients. This introduction of a legal requirement for vaccination is a new legal development in the UK.

  • Long Covid

    Q: What is long COVID, and is an employee with it suffering from a disability?

    Long COVID is a shorthand term for the long-term adverse effects of coronavirus. Many employees will feel better in a few days or weeks after coronavirus and the majority should make a full recovery within twelve weeks. However, for a significant minority of people, long-term symptoms of coronavirus can last for an extended period after an initial COVID-19 infection.

    Symptoms are extensive, ranging from exhaustion, breathing difficulties and breathlessness, continued fever, anxiety and stress, to muscle weakness, and the inability to walk. Others have heart or neurological problems. Lung abnormalities seem to last many months after infection and there seem to be post-viral fatigue symptoms similar to ME or chronic fatigue syndrome. There is increasing medical evidence that a small but significant minority of people who contract COVID-19 can still be seriously affected months after initially falling ill. As the virus is so new, medical knowledge about the effects of long COVID are still the subject of extensive research.

    Long COVID symptoms can affect people of all ages, regardless of underlying health conditions although women under 50 are 50% more likely to suffer from long COVID than men in the same age group.

    Risk factors linked to long COVID include age, weight, asthma and ethnicity. There will be some employees who are unable to return to full-time work for long periods and employers must handle long COVID in an even-handed manner to avoid allegations of indirect race, sex or age discrimination.

    Equality Act and long COVID

    Sufferers of long COVID may be classed as having a disability although this is untested in the courts. Long COVID is likely to exacerbate a pre-existing condition (for example asthma) so some sufferers are likely to meet the Equality Act 2010 definition of disability, and other protections in the Equality Act may be triggered as well.

    To be protected from disability discrimination under the Equality Act 2010 a person must have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

    An employee with long COVID who has breathing difficulties and muscle weakness will have a physical impairment which may put them in this category. The effect will be substantial in some employees and not in others, depending on the severity of their symptoms.

    The adverse effect of the impairment must be long-term which means:

    • it has lasted at least 12 months
    • it is likely to last at least 12 months, or
    • it is likely to last for the rest of the life of the person affected.

    Employers must look at the specific facts of each case, but some long COVID cases will meet the definition for protection as a disability. Employers can potentially face direct disability discrimination or discrimination arising from a disability claim if they treat long COVID employees less favourably because of their condition. They should therefore consider making reasonable adjustments, for example home working, adjusting working hours or a phased return. Employers should assume that employees may be protected by the Equality Act disability definition. Even if long COVID is not proven to be sufficiently long term, at least some employees with it are likely to have conditions which are increased by or triggered by the virus.

    Q: What do employers need to know about the likelihood of claims from staff suffering from long COVID?

    There are many aspects employer’s should consider for staff who have caught coronavirus at work which has led to long COVID. At an early stage employers should check any employers’ liability, permanent health (PHI) or income protection insurance to assess the likelihood of long COVID claims being covered.

    An employer’s first priority must be to take steps to protect all staff from contracting COVID-19 at work. These measures will include having undertaken risk assessments and consideration of all aspects including testing, vaccination status, home working if possible, social distancing, ventilation, hand hygiene and shielding. Employers should also be able to show they have followed updated government and HSE guidance on how to mitigate virus spread and revisit measures regularly as new statistics, variants and guidance emerges.

    Whatever steps are taken, some employers will face claims from employees with long COVID who attempt to prove that exposure occurred at work. It will, however, be difficult for employees to bring these claims as COVID-19 spreads rapidly and it will be difficult to prove an employer’s failure to take steps led to them catching the virus at work.

    Although it will be difficult for employee’s to prove infection occurred in the workplace employers should follow the new ‘working safely’ guidance which places a high degree of responsibility on employers to honour their pre-existing legal duties to take care of employee’s health and safety.

    In July 2021 there was additional advice for employers in areas of England where the Delta variant is spreading fastest which overall suggests that employers should consider if many of the previous precautions should continue, including social distancing, screens, ventilation, cleaning and other measures. Certainly employers who take steps to reduce workplace risk by following the updated sector based guidelines will reduce the risk of liability for spreading COVID-19.

    In some cases, especially the health and care sector, there is an increased risk of infection and these employees may find it easier to show that they developed long COVID following a workplace infection.

    Under the health and safety legislation and the law of negligence, employers have a duty to provide a safe working environment. Employers may be able to show they did not breach this duty if they can prove ongoing risk assessments and control measures were appropriately and properly enforced. One aspect of the legal tests will be if employers materially increased the risk of harm to their staff.

    Other claims may be linked to disability legislation under the Equality Act 2010.

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