She's at it again. Our Head of Employment Law, Tina Chander, is back on the sofa answering your questions on employment law. This month she is covering COVID19 and social media queries.
Transcript
Welcome everyone to my second Tina Talks, I am so excited to be here and to be in a position that I am available for you to answer your questions that you send me to my email address. I've had a few questions which obviously I'm going to run through today. If anyone has any questions that they would like to send me in readiness for my next Tina Talks, please do send them to tinatalks@wrighthassall.co.uk
Okay, so I'm going to run through the three questions and obviously give you my responses two of them are covered related one of them concerns social media posting.
To make clear, I only have minimal information in front of me, and my responses are not in connection with any particular employer or employee, and so these are very general responses.
Question one
The first question; I am medically exempt from wearing a face mask; however, my employer is asking for a footnote too evidence that I do not have to wear one. My GP said that they would not provide me with a fit note, my employer is saying that I will be subject to disciplinary if I do not wear a face mask and do not provide them with evidence that I am exempt what should I do?
Okay, this is actually very straightforward. First of all, message to employers; an employee does not have to provide you with a fit note or an exemption card if they are not able to wear a face mask. The government website helpfully provides a list which contains a number of examples or reasons as to why some employees will not be able to wear a face mask. On that website, there is also a downloadable exemption card or certificate that an employee can print and give to the employer.
However, there is no legal requirement for an employee to provide an employer with any evidence that they are unable to wear a face mask. Now I do appreciate that employers are you know ensuring that their workplaces are covered secure, and that's a good thing to do, and it's the right thing to do, but there certainly needs to be a balance.
I would suggest to the employee that messaged me this question, that you, first of all, advise the employer that it's not a legal requirement to produce a fit note or any other kind of exemption card. I would also point the employer to the government website. If the employer does commence disciplinarily, my initial view is that that disciplinary process will be unfair. I would suggest that the employee attempt to resolve this informally first, and if that fails, they should progress their concerns via a grievance.
Question two
I worked as a caretaker for a housing association for five years before quitting last month on health and safety grounds due to feeling unsafe at work; my ex-employer did not do enough to ensure my working environment was safe from COVID19; one of the main issues, in particular, was that the masks they supplied to us were not adequate.
My question is, are the company covered by law or do they have any obligations into the health and safety of work Act. I made what I thought was reasonable adjustments but got turned down by the company. I had offered the company a better grade of masks which they did not consider taking okay.
So, we're talking about face masks again, but I think there's a bit more to this question in terms of what employers should do and shouldn't do and to keep the answers simple for the purposes of the of Tina Talks programme.
What employees are required to do is ensure that their business is covered secure and again the government website produces a number of valuable documents for different sectors of business and employers are encouraged to review and pick the appropriate document for their sector and ensure that their business is COVID secure.
What does COVID secure mean? It means employers should carry out a risk assessment but in consultation with employees so lots of employers may well have an idea as to what a risk assessment is but it really is not just a tick box exercise it really does require some thought and consultation with employees.
Considering the law at the moment and it's frequently changing legislation and the impact of COVID, you know we're seeing regular updates by the government we have different alert levels now employers please don't be complacent about your obligations here this is a really serious matter in terms of face masks they are mandatory in various settings and employers should familiarise themselves with their legal obligations in relation to that employers also know and should not fall foul of their health and safety obligations to employees.
Unfortunately, this employee resigned, and this employee is saying they resigned in consequence of their employer failing to make sure that their business or their workplace was COVID safe this could be a serious problem for employers going forward. This employee could raise a health and safety complaint directly with the HSC if necessary but potentially could bring a claim for constructive unfair dismissal because they have resigned because they feel that their implied term of trust and confidence has been irretrievably broken or the company has failed to ensure that their working environment is safe.
What I would say to employees in this current situation, I really would recommend that you raise a grievance first instead of resigning immediately.
Question three
The social media question; I would like to ask if a policy, for example, social media which does not form part of an employment contract and has not been disclosed to employees what power does an employer have when it comes to disciplinary procedures.
Okay, so first of all, staff handbooks or employee handbooks are generally non-contractual documents they are a collection of policies which an employer should have available usually in a staff room or a communal area more commonly these days they can be found on a company intranet.
In terms of disciplining an employee, so an employer has to follow the ACAS code of practice and that's available on the website.
Most employers I would say are familiar with that ACAS code. Most employment contracts will refer briefly to the company's disciplinary and grievance procedures, but the staff handbook will almost certainly contain a disciplinary policy and a grievance policy.
Now that disciplinary policy will generally include examples of misconduct and examples of gross misconduct and it may well be that there are examples contained which would enable an employer to commence a disciplinary process in the absence of a particular social media policy.
Social media disciplinaries are now becoming very popular amongst employers, and it's understandable, if for example, the employee is causing reputational damage to the business, if the employee is subjecting another employee to discrimination or bullying or if the employee has for example disclosed confidential information.
Strictly speaking, the absence of a social media policy would not prevent an employer from progressing a disciplinary hearing.
Okay, so that is my three questions and answers for today, and as I said at the very start, please do keep your UK employment law questions coming to tinatalks@wrighthassall.co.uk
I shall look forward to sitting on this couch and delivering my next lot of answers next month. Stay safe. Take care. Bye.
