2020-09-09
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'Tina Talks' Employment Law UK - Q&A

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Posted by Tina Chander on 09 September 2020

Tina Chander - Head of Employment Law
Tina Chander Partner - Head of Employment Law

Welcome to 'Tina Talks' this is my first video update. I'm going to be doing a video update every single month, and my video update will be entirely based on  answering questions that you have put to me.

There are a couple of ways you can do that you can comment on Wright Hassall's LinkedIn page, or you can comment on my LinkedIn page. Alternatively, you can email me direct at tinatalks@wrighthassall.co.uk

Let's get on with today's questions. I've got a good few to go through today, thank you for those that have posted and emailed me direct.

Transcript

I'm going to just read out the question first and then give you my thoughts on a response. Please bear in mind that I only have snippet questions and so I can't talk about any individuals or companies, but I can give you my very general thoughts and next steps. 

Question one

The first question I m going to read out is as follows; my employer has paid for an HR course for me I am now leaving the employer and need to know if I have to give back the course fees? The company policy is not clear, and I have not signed a document to confirm that I will have to give back to the employer any fees that they've paid on my behalf within a particular period of time. 

Okay, so in this respect what we are looking at is whether the employer has a legal duty to deduct wages or claim back course fees from an employee salary.

In a nutshell, an employer cannot deduct course fees unless the employee has entered into a contractual course clause or a separate agreement which makes absolutely clear that if an employee leaves employment within a particular period of time. The employer has paid fees which an employee has benefited from they simply can't deduct it. However, most contracts of employment do contain a courses clause or an unlawful deduction of wages clause. In the first instance it is worth looking at your contract in detail secondly have a think about whether you signed anything in addition to the contract if you haven't then put simply there is no lawful right for them to deduct your money.

Question two

Okay, question two I was made redundant earlier this year, and I have recently been told that I should have been offered another position even if it was a reduction in stature or money what exactly are my options. I also trained up an apprentice for a year before being made redundant who is now doing the work that I would have been doing, is this something that just happens in businesses?

This is an interesting question and one that probably comes up a lot in my role. So, the first thing I really should address is time limits, and I've noticed from the question that you were made and redundant earlier this year. I'm conscious that even if you had a complaint, you potentially are out of time to now bring a claim. Generally speaking, if you want to pursue a claim against your employer for unfair dismissal because you don't consider or believe that the redundancy process was fair, you would need to contact ACAS and start early conciliation in the first instance.

Generally speaking, claims should be issued within three months less one day of your dismissal by contacting ACAS you do have the ability to extend time but its unlikely if this occurred six months ago that you would have the ability to bring a claim now.

That said in answer to your question even if you can't bring a claim now, what you should know is that in any redundancy situation, if you are at risk of redundancy, you're entitled to know from your employer what vacancies exist across the organisation so whether that job vacancy that might be available is within your abilities or not makes absolutely no difference the fair process.

It sounds that someone, as you said, is doing your role at the moment, that's not an uncommon situation also potentially your employer has decided to restructure a role and if they did decide to restructure your role because elements of it could be done amongst the workforce or someone junior could undertake that role you should have been informed at the time why your role was at risk of redundancy and in particular if it was because the company planned to restructure it. If three months have elapsed since you've been terminated and now someone is doing the job that you previously were undertaking, unfortunately, because of the time limits you would not be able to assert that your dismissal was unfair.

Question three

Okay, next question a friend of mine has been told by his doctor that he is vulnerable to a severe form of COVID and must have an occupational health assessment before returning to work, the company are refusing to carry out the assessment what can he do?

Okay so when I looked at this question, I was surprised that a company would be willing to put themselves in a situation where they are placing their staff at risk. First and foremost employers have an obligation to all their staff to ensure that their staff work in a safe environment, so they have health and safety obligations.

For COVID there's been a raft of government guidance over the last few months one of the most important government guidance that has been available to all employers on the government website is get COVID secure guidelines so what does that mean a business should be looking at the guidelines which apply to their business model and what they and their industry and they should be following those guidelines to ensure that if they do require their staff to return to work that they have created an environment which is safe and is COVID secure at the moment, it sounds like that this particular employee is signed off from work by their employer.

What I would suggest that this employee does in the first instance is raises a grievance and by raising a grievance that employee will be making it clear that whilst they are currently absent from work that they do intend to return to work, but one of the recommendations from their GP is that the company carries out an occupational health risk assessment. 

Lots of small organisations don't naturally have that facility where they will refer employees to an occupational health risk assessment. What's important to remember here is that the employee in question is not asking for an occupational his risk assessment um for themselves they're asking for confirmation that the business is safe is COVID secure for that employee to return to work so whether the whether an employer takes the view that they're not going to offer an occupational health risk assessment they're not going to refer you to an outside provider okay that does not mean that that employer has no obligations.

In respect of ensuring that the business or the company premises is COVID secure, I think the first thing that this employee should do is definitely set out in writing their concerns, and once you have raised the grievance the employer will have to investigate that, the nature of the grievance should be the company's refusal to carry out an occupational health risk assessment but also the employee should be setting out his or her concerns and as to why they feel it is necessary that they have some assurance that they are safe to return to work.

It is important to remember that normal employment laws do not fall apart because of COVID so if this employee feels strongly that their employer is failing to make reasonable adjustments it's discriminating against them because they have a disability which places them in this vulnerable category then there are other employment tribunal claims open to that employee. It's unwise for an employer to deviate from its obligations.

Question four

Should employers be carrying out health checks on employees returning to work and if so, do employers need employees to consent to conduct health checks? Taking temperature checks is not the norm.

Most employers would never have ever contemplated asking employees to have their temperature checked as they walk in and out of a building, so we're in a little bit of a new area here. As we know temperature has been widely publicised as being a symptom of COVID, so in that respect, it is perfectly acceptable for an employer to consider temperature checks to be something integral to ensure that they are that they are meeting their obligations to their staff and they are doing what they can to ensure the workplace is COVID secure. However, taking temperature checks is also a special category of data, so it's really important that employers seek employees consent and not just assume that it is perfectly acceptable to take an employees temperature without having given them the opportunity to confirm or put forward their concerns as to why they don't want that temperature their temperature checked.

So, I wouldn't recommend employers just outright take temperature checks; they should be transparent, they should explain why they want to take temperature checks or what other measures they have put in place to ensure the business is COVID secure but again, please don't assume employers that you can just do what you want.

Question five

What do we do if an employee refuses to return to work following furlough?

I have actually dealt with this question numerous times over the last few months, and I have to be honest, I was very surprised that this was becoming an issue. So furlough leave, let's start from the beginning, an employee is designated a furlough worker an employee does not have a right to be on furlough leave an employer has to ask or designate an employee a furlough worker and an employee has to consent because technically it is a variation to an employee's normal terms and conditions of employment.

Now when asking employees to return off furlough leave your letter asking an employee to consent should give some sort of indication as to how it will be reviewed, monitored or when the employer expects an employee to return. If an employee refuses to return to work and the employer has followed the correct process in giving the employee reasonable notice or has not asked for an employee to return prior to a given date as to when they would return, then you are looking into disciplinaries. I would not recommend immediately that an employer embarks upon a disciplinary process simply because we are in a new area of COVID guidelines and we've got to consider what's best practice, and there will be situations where no doubt an employer has exhausted its options with the employee, and the employee's refusal amounts to a failure to follow a reasonable management request or unauthorised absence, but in the first instance the employer should engage with the employee ask the employee why they are refusing to return to work. There may well be some room for manoeuvre so there might be valid reasons or concerns that the employee needs to talk through and have addressed and the employee will return to work, or you might be able to agree on some sort of hybrid working pattern. I think in most cases there will be an explanation from the employee which an employer can work with, but if an employer is genuinely in a situation where they the business is COVID secure as far as possible, they have compromised or listened to what the employee has said they have tried to appease those concerns as best as possible and the employee point bank refuses to return to work, then you can explore a disciplinary process, but as I said I would not dive into that immediately.

That's my five questions which I've answered today. I hope to have a lot more questions, please keep them coming, and as I said you can email tinatalks@wrighthassall.co.uk comment on Wright Hassall's LinkedIn page or mine.

I look forward to my next video update next month.

About the author

Tina Chander

Partner - Head of Employment Law

Tina is head of our employment law team. She deals with contentious and non-contentious employment law issues.

Tina Chander

Tina is head of our employment law team. She deals with contentious and non-contentious employment law issues.

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