Coronavirus Vaccinations - a Condition of Returning to the Workplace?

Posted in : 'Any Questions' Webinar Recordings on 3 December 2020
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Coronavirus/COVID-19; Coronavirus vaccination

In this webinar recording Head of Learning and Development at Legal Island, Scott Alexander, and Director at O'Reilly Stewart Solicitors, Seamus McGranaghan, discuss amongst other items the very topical issue of Coronavirus vaccinations and whether you can compel employees to have the vaccine as a condition of returning to the workplace.

The Recording

The Podcast Version

The Transcript

Scott: Good morning, everybody. This is Scott Alexander. I'm from Legal-Island. Welcome to the monthly update that we have with Seamus McGranaghan from O'Reilly Stewart Solicitors. In the background is Rolanda Markey from the L&D team at Legal-Island, and we're here to answer all of your questions. Largely today we're going to be looking at, funny enough, coronavirus-related stuff: vaccines and Christmas and all kinds of things.

But before we get onto that, we have a little offer for you on eLearning. Obviously, at this time of year, particularly concerned about wellbeing as well as discussions about vaccines and so on. But you can see there, there's an offer on our eLearning toolkit: Mental Health & Wellbeing, Coping with Fatigue, Managing Stress, and Building Resilience. And if you're interested in that, you can get in touch with Debbie at Legal-Island. And we'll send you on a little link after anyway. So if you are interested in those, we'll be in touch.

Now, today's agenda. We are going to be looking at a few things. But just before we get onto that, forthcoming webinars. I forgot about that. Yes, next week we have Dr John McMullen, the King of TUPE, the man who's written the textbook on TUPE in Europe and the UK. He's with us looking at his top five cases. That's next Wednesday at 11:00.
Watch recording: The TUPE King's Top 5 Cases of 2020

We will be back with Seamus next year on the 8th of January. The first Friday is the 1st. We won't be here, so we'll be here on the 2nd to start the year off.
Watch recording: Employment Law Discussion of Employment Status, IR35, Absence Issues and Brexit

And if you were at the Annual Review of Employment Law, you'll know that Mark McAllister kicked off the day and finished the second day, and he will be back giving us a rundown and a look at the case law again that he's been dealing with, his top case laws, on the 29th of January.

The agenda today. We're looking at vaccination, not to vaccinate, driving home for Christmas, and remote working issues.

Poll Questions and Discussion

But before we do that, just to make sure that you're all clued in, let's do a little poll. We have a question here for you. This is all anonymous. Don't worry about it.

Have you organised an alternative to the traditional Christmas party this year?

32% of listeners have organised an alternative to the traditional Christmas party in their organisation

Legal-Island was organising, believe it or not, a drive-in film. We were going to see a drive-in movie. It was going to be a Christmas movie next Friday, and we cancelled it because we thought it wouldn't look very good with a couple of dozen cars sitting outside the police training centre in Antrim when there are all these restrictions. And we didn't know quite sure what the restrictions would be even if we were all sitting separately in cars, so we cancelled ours. But we did have an alternative.

Let's have a look here. Still, a third of you are doing, yes. So it would be nice if you want to drop us a little line and tell us what those are. You just drop that in the chatbox, tell us what you've got planned. Maybe one or two of us could pick that up.

And the second question that we have here today is,

Do you think that the rules regarding Christmas, which allow three households, possibly more if you're in a bubble, to meet are appropriate?

53% of attendees think the rules regarding Christmas which allow up to 3 households  to meet are appropriate

And we'll have a look here. It's caused a bit of confusion, obviously. I'm sure there have been quite a few discussions out there with you. And we're looking at more or less two-thirds to . . . oh, no, it's coming up. "No" is picking up. "No" is picking up on the "yes" vote. We'll maybe stop it around there. And it's 53% there saying yes, it is appropriate, and 47% say no. So that's about half and half. I suppose that indicates the kind of splits that we have in society at the moment about whether there should be lockdowns, not lockdowns, all that kind of stuff that we've been doing.

So let's get onto the agenda and deal with our first question. Hello, Seamus, by the way. I forgot to say hello. Seamus, are you there?

Seamus: Yes, I am. Morning.

Scott: That's good. It would have been very bad if you hadn't been there, but that's what happens sometimes with technology. So we do have Seamus McGranaghan, if you're just joining us, from O'Reilly Stewart.

Vaccinations for Covid-19 – Issues Arising

The first question here, Seamus, that we've got in has to do with the vaccine. The vaccines, I think they start next week in Northern Ireland and elsewhere.

Can employers insist . . . when it is widely available, obviously. We're only just starting next week. But when it's widely available, can they insist that employees are vaccinated against COVID-19?

Seamus: Well, this is a good question. You can imagine that there are a number of employers out there, and certainly probably a number of employees as well, if you think of those sort of close contact places of work, like the factories and the meat plants and places like that, where it has been very difficult and where we've maybe come across sort of a spike in numbers in relation to the transmission of the virus. So you could absolutely understand why that sort of question would come around.

And I suppose where we're exactly at, at the minute, is that we know that we had the good news this week about the MHRS, which is the Medicines and Healthcare products Regulatory Agency in the UK, approved the vaccine for COVID-19. And we're aware also that behind the scenes there's been quite a bit of work that's already been done in relation to the rollout of the vaccine. And BBC NI did report that the first date for kick-off of the vaccine would be the 9th of December, so next week is what then we're potentially looking at here in Northern Ireland.

Now, we know that that's going to be sort of front-line workers or healthcare workers or hospital workers. And looking at the possibility of care homes and things like that maybe in early January. But certainly, the plan is to deal with the elderly and the most vulnerable in the first instance.

But the question as to whether employers can legally oblige or enforce their employees to take or get the vaccine, it's a difficult matter. In general, my view is that it's not possible for the employer to require or to oblige any employee to obtain the vaccine.

And I did note that even with the NHS staff, I did see the BBC NI had an interesting story that they had approached their staff with a survey and asked them would they take the vaccine or not. So certainly, from that point of view, the government are not making it mandatory in order for anyone to have to take the vaccine.

And similarly, here at a local level, maybe even those employees that are at most risk, at high risk in terms of in hospitals and places like that, there's no mandatory obligation to take the vaccine.

So I think from a legal point of view, it is difficult for an employer to enforce or to say that employees have to take the vaccine. And you do need to . . .

Scott: Sorry, Seamus. Obviously, you can't stick the needle in their arm or any of that kind of stuff. That would just be assault. But in a practical sense, I suppose there could be some kind of pressure put on people. But it almost reflects the poll question we had there, which was that just about half of people think a bubble of three is appropriate, and the others don't, for Christmas. And we don't know why they think it is or isn't. It could be because they think it's not enough, or they think because there shouldn't be any mixing at Christmas. But that reflects what's happening in society, I suppose.

There will be employers who will be saying, "I have lost a ton of business because people can't mix, people can't come into the shop, people can't socially distance, they're not going to work", and all those kinds of things. And they're saying, "I want you vaccinated because I want people being able to get back to normality". And you'll have others that will be saying, "Look, it's a human rights issue".

And we don't know what way the tribunals are going to go, if an employer were to turn around and say, "Well, look, if you're not vaccinated, we aren't going to pay you. You're not coming into work". Because presumably, there will be discussions around that at some stage. Not early on, obviously. But at some stage, some employers will be saying, "We want you back into work, but we don't want you back unless you're vaccinated".

Seamus: Yeah, absolutely. I mean, the big issue that I can see is that there's a civil liberties issue here and a human rights issue for people. And I'm sure we've all experienced this, that we've talked to people where they have said, "I'll be first in the queue to get a vaccine. I'm happy to take it". And there are others that will say, "I'm not", or others that will say, "I'm cautious. I'm going to let a lot of people take it first of all and see how it goes". So you do come across sort of a full coverage of where people stand in relation to it.

Big issue for me is that the government are saying that it's not mandatory. There's a respect there for people's civil liberties and for their human rights. And these issues, these sort of legal and ethical dilemmas as well that arrive, and very much the head and the heart issues, exactly like the poll there that we looked at. What your head tells you is sensible and then what you want to do in terms of your loved ones and everything else like that.

I think that the better approach is really to . . . and I know that the government are intending to look at some media information . . . is to educate and try to encourage employees to take the vaccine, as we've been told that the vaccine is safe. Then the point would be communication about educating and trying to encourage as best as you can and explaining to employees the benefits of getting the vaccine.

I think enforcement by an employer could bring about a number of legal issues. I think that there's a risk of potential discrimination claims on the basis of saying that it's against my religion, maybe, to take vaccines, or that I have a certain disability.

I mean, we did see during the week . . . and not that pregnancy is in any way a disability, but that was sort of . . . the advice is that pregnant women shouldn't take the vaccine. And then if you're an employer trying to enforce someone to take it, you could imagine the difficulties that that creates.

And then ultimately, as well, the bottom line is this is fresh. It's very new and we're putting our hands in the trust of the regulators that it's safe. But if you enforce them to get mandatory and say that an employees have to take a vaccine, and then it turns out in a number of months or in a year that studies find that it does cause damage, potentially the employer has a lot of liability there in relation to that and you could be looking at some sort of class action by employees if there are issues that arise.

So although it's great news and it's fantastic, and I think we're also keen to get back to our normal way of living, but there are these legitimate issues around it. So I think we do need to take a cautious approach.

I did read as well that employers were saying, "Well, it could be offered as a perk in work". And we've seen a lot of this recently where employers have offered to pay for the flu jab for employees, for instance. And for employers, that's about business continuity and making sure that the staff are protected in terms of their health.

But again, it's not possible to enforce that or to force an employee to get the injection. So I wouldn't foresee at all that . . .

Scott: Okay. Certainly. At Legal Island, we offer flu jabs to staff, and I know a lot of other employers do, but it's not compulsory. I suppose the difference is that with the flu, you tend to know you've got the flu and you stay in bed, whereas with COVID, you often don't know you've got it and you go around giving it to people unknowingly.

So we don't think it's going to be enforceable. There may be some differences depending on the sector that you're in, such as care work. You could see that. It may be driven by commerce. It may be that airlines turn around and say, "Look, unless you've got some kind of certificate", assuming you get a certificate, "that you've got the virus, then we're letting you on the flight", or, "You're not coming into this pub", or, "You're not coming into this nightclub", if they ever open again, "unless you've got a certificate saying that you've got the antivirus jab".

So we'll see what happens. But certainly, as it stands at the moment, your advice would be you can't enforce. You may encourage. You certainly should open up debate and have those discussions about legitimate queries about whether it's safe or not safe, whether it's good for some people or not good for others.

But I could see a further thing coming forward in the New Year where . . . You've seen all this thing on the internet where people get very opinionated and they go backwards and forwards and say, "Oh, you're destroying my life because you're not getting vaccinated", or, "You're threatening my life because you're forcing me to be vaccinated".

You could see those rolling out into the workplace where people are saying, "You're holding me back", and employees falling out or grievances arising because the supervisor who's maybe anti-vax says one thing, or the supervisor who's pro-vaccination says another thing. You could see those things arising in the workplace as we go through because it's going to affect everybody.

UK has bought millions of vaccines presumably because it wants 60-odd million to get vaccinated. You know what I mean? And you could see all those things arising in the future.

You still there, Seamus?

Seamus: Yes. Apologies. Every so often the line is breaking up, but I can hear you fine. I suppose it's similar to the aspect of masks and the protests that we've seen in relation to the restrictions and things like that. Not everybody is going to agree all the time, and that has to be respected in the workplace also.

Christmas Parties During the Covid-19 Pandemic

Scott: Yeah. Well, look, we're going to move onto the next question, which is Christmas parties and such like. We just got a little bit of feedback from people. "It's all a matter of opinion. People want choice. Not to be forced or educated that the vaccine is safe", says one. Another says, "I answered no to the Christmas poll because I believe it would just result in further lockdowns in the New Year. There have another celebration such as Diwali where they have had to forego their family get-togethers altogether", which are all fair points. So you can see the situation is coming here.

We're going to move onto Christmas parties. We'll be moving back to home-working and I can see there's a question there about bonus and discretionary bonus, which we shall come back to later on.

But we want to move onto the next question, Seamus, which is as the Christmas party season is a bit more toned down this year,

Can we actively discourage employees from having any informal get-togethers when the pubs, or the restaurants, if you like, reopen after the 11th?

Now, that ties in with the poll question about having informal get-togethers or alternatives to Christmas party. This one is for employees who would have met up at some stage at this time of year and get together. Is there anything that employers can do when it comes to groups of employees saying, "Sod it. We're going to get together. The restaurants are open next week"?

Seamus: Well, I think it's similar to the situation that we've been dealing with throughout whenever there was a relaxation of restrictions back in July and August. There's no doubt the message is clear that the more people that you mix with, the more people that you come in contact with, the higher the risk is involved of getting the virus. And so you can completely understand the anxiety that the Christmas period would bring about for employers, particularly where employers are saying, "If we risk self-isolation . . ."

I've got a family member of mine that runs a business and has had 14 employees out, and a relatively small business, all self-isolating. And they were able to push their way through it. But at the same time, they weren't far off the point of having to consider closing their business. So you can understand where employers are coming from.

At the same time, it has to be balanced off by the fact that employees are entitled to their private life, and it's not normally appropriate for an employer to dictate what the employee will do outside of the workplace.

And we do know that there are the obligations not to bring the business or the company or the employer into disrepute and things like that.

I think in one of our last podcasts, we talked about the worker who is employed in the care home who then witnessed mixing or taking part in activities that would maybe be in breach of regulations and the impact that could have upon their employment. But the reality is it's very difficult for the employer to prevent employees from undertaking those behaviours that we might frown upon, really unless there's some sort of breach of a disciplinary code or procedure. And I suppose it's looking at our disciplinary codes and procedures, looking at our contracts, and seeing what they say.

Outside of that, we're all aware and we've all heard of the actions of some that could really place others at risk. And at times, we've heard at risk of life. Certainly, we've seen some of the accountability of all of that on social media and in relation to the media itself. We've seen these sort of high-profiled people that have had to come out and apologise because they've breached regulations and things like that.

Here, we're not really talking about anybody breaching any regulations. We're aware that restaurants are going to be open. Wet bars are not permitted to be open come next Friday, but restaurants are going to be open and that may encourage people to say, "Look, the office isn't doing a Christmas party this year, but there are five of us in our team. We'll go out on Friday evening and we'll grab a bite to eat and we'll have a couple of drinks". And it's the risk then for the employer to say, "Well, what does that mean? Does it mean that whenever you come back, that your department could be at risk of one or more of you catching the virus?"

I think, again, it's about actual discouragement. I don't have any difficulty with that. I think the employer is entitled to raise their concerns with the employees and, again, have those conversations. But you need to be very careful as the employer that you're not overstepping the line and coming to the point where the employee is feeling threatened or harassed, or that the employer is taking it too far.

And I'm thinking there, really, about the likes of employees then that would feel that the behaviour of the employer could result in a breakdown in their relationship and should be… dismissal claims.

That said, there may be some circumstances where disciplinary action may be possible and where there is knowledge of bringing the business into disrepute as a result of actions and things like that. But those general sorts of ideas of "Let's get together outside work" or "Let's go to each other's houses" because that might be permitted, although it's not, but the idea of mixing, I can understand that it does cause employers concern.

I think as well the other thing is that it's important that employers do make employees aware of the possible ramifications of their actions, and it could result in the business or the workplace having to close. We're thinking about periods of self-isolation for the business that could cause real financial difficulties for the business itself. And the risk to your other colleagues and, again, your risk to your colleagues and their families that they live with, and the risk also to any clients or customers or residents in a care home that they would come into contact as well.

But it is a difficult one to enforce and I think that the best the employer can do is, again, inform and advise and give as much sort of positive feedback as they can without coming across to the point where they are harassing employees or creating difficulties in the relationship.

Scott: Thanks, Seamus. Folks, by the way, if you've just joined us there, you're listening to Seamus McGranaghan from O'Reilly Stewart talking about various restrictions that you might have over Christmas and how that impacts on employment.

I suppose it comes down to communication as well. There are a couple of questions in here that you've kind of covered, such as, "In relation to employees outside the workplace, can we send a reminder of guidelines to encourage them to limit their contact?" You said yes, but I suppose it comes down to what's the relationship and what's the impact. Because if people have to self-isolate because they've met somebody who tests COVID, and they've got the app, or they've been contacted by somebody, it's that self-isolation that can cause an awful lot of problems for employers.

There's another question in here.

"Is it the responsibility on the employer to establish what is suitable behaviour and what is not over Christmas, such as an email that could be sent about Christmas parties? Would that be advised?"

And we've got another comment in here. "For COVID symptoms, employees can download an isolation note from the NHS website in place of a GP. A fitness note. In theory, an employee can download consecutive isolation notes in this way. It is open to employers to require a GP's fitness note after expiration of the first isolation note". Or is it? Seamus?

Seamus: Well, whenever there is a period of self-isolation, often that's not accompanied by any kind of medical evidence and you really are going on trust that you have with the employee. Often, the employee will have received maybe a telephone call from Track and Trace or maybe they've got something on the app that they can send through to you.

Alternatively, they may have just taken a . . . we've had a number of people in our office who have said, "Look, I'm just making a sensible decision here. I was in contact with someone who has now tested positive and I'm going to remain at home and I'm going to work from home".

So there are various ways and means. I think that where there is concern, and we have touched on this previously, and there's genuine concern that an employee might be being dishonest or might not be giving the full facts, the employer is entitled to investigate that and ask for evidence.

It's difficult for someone that is self-isolating to get a note from their GP, because if they're self-isolating, they shouldn't be attending their GP practice unless there's some sort of emergency medical care required. And that's certainly the guidance that I've read. So it could be difficult to obtain a GP note in relation to it.

But certainly, for the Track and Trace, I've had employers that I've spoken to that the employee is able to send on the email, for instance, that they've received from Track and Trace to tell them they have to self-isolate.

And equally, on the other side of that, Scott, as well, I've come across a number of circumstances where the employee has wanted to come back to work or has attempted to come back to work, but the employer is aware that they have been told by Track and Trace that they have to self-isolate.

It's also about taking the steps and telling the employee that they can't come to work, and if they insist or if they show up, they will be sent home, and that there could be potential disciplinary proceedings arising as a result of that.

Scott: Okay. Thanks very much, Seamus. Your sound seems to be getting a bit muffle-y at times, so maybe just watch where you've got your mic there, if you don't mind, and speak up a little bit, Seamus. It's fading in and out just a little bit today.

We've had another comment in here just about that and then we'll move onto the next area. Those informal gatherings could breach the regulations. I suppose it's not just the restaurants are open, but you've got to limit the numbers, and that's what our listener is getting at. And does that make a difference to the approach of employers, that groups of employees get together and they shouldn't? They all say they live in the same household. People tell lots of lies to restaurant owners at the moment, I think, from listening to my daughters over in London, anyway.

Seamus: Yeah. That's similar to what I've heard.

Scott: We've got another question here. So maybe keep in mind that you're almost splitting hairs when it comes to breaching regulations as opposed to just doing something that's daft or not sensible or maybe not wise.

At the end of the day, if the employer ends up taking action against those people, it's going to end up at some stage in tribunal. When that's going to be, we've no idea. Obviously, they're not listing too many cases at the moment in Northern Ireland.

Travel and Self-isolation During Covid-19 Pandemic

We've had a related question here.

"If an employee travels abroad for Christmas, can you ask of proof of the date they returned so that you can ensure they have self-isolated for 14 days since return?"

Seamus: Yes. That's an important question because there will be a lot of travel that will happen over Christmas. The basic position is that if they're traveling within a travel corridor that's approved by the government, and you can go on to the government's website to see which countries are not approved, then there mightn't be any requirement to self-isolate.

But certainly, where there is travel to a country that isn't on the green list, as they call it, or that's approved by the government in relation to the travel corridor, I think you are entitled to ask for evidence in relation to when they have returned. Again, that's just a prudent step that that employers should take to ensure that employees are abiding by the period of self-isolation.

I know that there are the various steps that are taken, I think, when entering and leaving a country and coming back into a country again. There are various forms that they have to fill out. But I think that verification of travel can be requested. I think it's a reasonable request.

And in the circumstances that we're living in at the present, if there's an issue in and around that, it may be that the employer simply says, "Well, look, until or unless you can provide me with that, we're not going to be in a position to permit you to return to work". And that may be for a short period of time. Obviously, we know the general position is 14 days for travel whenever you return. I think it's a prudent step also for employers to take.

Scott: Yeah, it makes it difficult. Whether that's a disciplinary issue, probably not. But then does it mean that you're not going to pay somebody? That might depend on whether they can work from home.

I've seen some commentary online about new employers perhaps saying to people, going back to the previous one, "If you don't have a vaccine, then we're not going to employ you", which is different from existing employees.

Covid-19 and Remote Working

And we've had a question which kind of related to that here. "Are we going to see COVID clauses entered into employment law books or contracts going forward to deal with the issues that we're currently dealing with when it comes to future pandemics?" So just leave that one hanging. You can come back to that, whether you think there are going to be issues that are going to be in there about the responsibilities under health and safety, obviously, for the individual.

But it's bringing in here that people are working remotely and tying in with those people who have to self-isolate, which is fine if you can remotely. Not so fine if you can't get into work because of that situation.

Would you advise that we agree to any request for remote working to be on a temporary basis rather than permanent, as we don't know what might happen in 2021? So I suppose this goes back to the flexible working request, and unless it's made temporary, it becomes permanent. I think the questioner here is saying,

"Should we just say, 'Look, we're not going to agree to any permanent change because we simply don't know what's happening at the moment'?"

Seamus: Well, I suspect that that probably is the best approach at present. It's a good question, but I think that ultimately that's a decision for the business. I think if the business operates on the basis where it requires bums on seats, then it may not be prudent to grant a permanent working-from-home request until matters settle down and the business is clear about its own steps going forward.

On the other hand of that, my thoughts are that it may be there's no reason why the business couldn't facilitate a permanent request if it is a matter that's a routine matter that individuals work from home on certain days. So I think it's about an assessment of whether or not COVID-19 is having that impact upon the business.

I think probably the prudent approach would be to look at it cautiously and perhaps say, "Look, we can facilitate this at present, but we're going to have to review it".

There are lots of people that are working on a sort of roller basis at the minute where maybe they're doing one day a week in the office. Certainly, a lot of the sort of professional services that I deal with and that have spoken to have this roller whereby they maybe have staff two days a week in the office, three days at home. And they work on a flexibility of what's required in terms of in and around Halloween, whenever schools are closed again, and things like that.

But I think look at the matter just on the basis of where we're at. It's back to that point about "Will we require points in the contract or clauses in the contract to deal with COVID and the risk of further pandemics?" I think that we need to see what the lessons are coming out of this approach. I think we need to see . . .

I mean, it was interesting. Last night, I was watching TV and the vaccine, at this point, they don't know how long the vaccine actually . . . the immunity lasts for, whether it's going to be for a number of months or for a number of years, whether you're going to have to get an injection every year. So I think we're a bit early and a bit close to be setting our position in stone on permanent decisions. I think we need to wait to see what develops. And hopefully, the science can help us over the next lot of months.

Scott: Yeah. And those requests for flexible working, Seamus, under the order, there are certain things that employees have to do. So me going to you and saying, "Look, I want to work from home for a bit", or, "I want to work from home from now on", or, "I want to work from home two days a week", that isn't a formal request under the legislation as such because you've got to put forward a business case and all kinds of . . .

Seamus: That's right.

Scott: As it stands at the moment, most employers, going back to March, they're putting facilities very quickly "Get back to work". I think going forward, and we've discussed this in the past, if it becomes a more permanent situation, and my home because my workplace, then employers have responsibility under Health and Safety legislation apart from anything else. And so, in order to make that permanent, you really have to factor in all those issues there.

And it might just be prudent at the moment to say, "Look, it's too febrile. We just have to think about what's going on at the moment and keep things temporary. We've no problem you working from home. We've no problem with varying hours and such like. But let's just keep it fluid at the moment and see how it works". And that seems to be a sensible approach for most employers.

Seamus: Yeah. I agree. And even from the point of view of . . . I don't think employers have got to the point yet where they can properly assess what they're going to do in the future. I think that we are jumping from a position of back in March saying, "Oh, we'll be back to work by July". Then it was September. Then it was January. And now, realistically, we're all sort of saying that it'll probably be into the autumn before things settle again, autumn of 2021. So we could have a full year of difficulties.

Now, I'm not saying that's going to happen in every single business. It just depends on what business you're in, and it depends as well on how quickly the rollout of a vaccine goes and whether the vaccine is successful also.

There are so many factors. There's complete fluidity at the minute in relation to the whole scenario. I think that that caution is prudent at this time.

Scott: Yeah. A related question has just come in here from a listener, which I suppose is getting to custom and practice and the longer this goes on.

Could employees establish a permanent change in their contract due to the extent of remote working and the change of their usual contract, as for most it has been in place for a number of months?

I think that might be stretching a little bit given that the home-working situation at the moment is only a reaction to lockdowns and COVID being in the environment, I would imagine. But what it does tie in is it will be very difficult ... and we've discussed this in the past . . . very difficult for employers to refuse at least an element of home-working going forward.

Where they've been living with it and accepting it . . . it will soon be a year. Come this spring, it'll soon be a year that we've been putting up with people being able to work from home, at least in service industries, or some of them. It's going to be very difficult to not justify it.

But what about that point about it becoming . . . if you let it slide for another year and another year because you're not quite sure what's happening? Does that become a custom and practice, Seamus?

Seamus: Well, I suspect at the minute, no, it wouldn't be custom and practice. My view would be that . . . I would agree 100% that it's reaction to the pandemic that is on-going. I think will be very difficult for someone to say, "Well, I worked from home for a period of six months and therefore my contract has now been amended". I think that we're all working on the principle that the situation is fluid and this is just a reaction and a necessity at the minute.

I also agree 100% that it could be very difficult for employers to argue. Because I think that the majority of us have found that working from home, works. It's not perfect and it's not brilliant, but it's workable. And it helps people in terms of flexibility and work-life balance and everything else as well.

Ultimately, though, businesses are going to have to look and say, "What is the need here?" And I think that businesses, primarily, are there to make money, to make profit, and the business is entitled to run as efficiently as it can do and in the way that it wishes to, to be as profitable as possible.

So I do think that there's a decision there for employers to make. But I think, ultimately, it's about getting the balance right.

I would have concerns, I think, if a client approached me at this point and said, "Look, I've now been working at home for six months. Is that not a permanent change to my contract of employment because there's custom and practice?" My view would be no, at this point in time, we're all in the same boat. It's entirely reactionary to the pandemic.

Your argument would be better if once the pandemic settles and you've been working at home for six months. Then that's a better argument.

Scott: Okay. Thank you very much. If you're just joining us, you're listening to Seamus McGranaghan from O'Reilly Stewart. He's answering questions about employment law, as ever, on the, normally, first Friday of every month. It will be the second Friday in January coming up.

We've had another question here and it's about working from home, but working from home abroad. In fact, there are a couple. There's one that says,

"If employees have been working on continuously for 52 weeks or more, can they claim their home as a permanent place of work?"

I think we've just established that as no, at the moment.

But what are the implications of letting employees work from home abroad, i.e., they have gone abroad to visit family and wish to stay and work from home because they don't go into the office? There are various tax rules and regulations there where somebody is working outside the UK. Isn't there, Seamus?

Seamus: Yes. Look, this is a really interesting scenario, and it is one that I've come across a couple of times where you have somebody that has moved to Northern Ireland, in the cases that I've been dealing with, and during the process of the pandemic, returned back to their original home country and have continued to work there on the basis that they feel safer.

There was another scenario where one employee travelled back during the summer and they found it very difficult to get back to Northern Ireland and was wanting to sort of maintain their position that they stay at their original home until the pandemic settles. But it does raise a number of issues, I suppose.

Look, the first issue for me would really be it's a contractual issue. Often, you'll see within any contract of employment that it will state and specify a place of work. And if the employee is now working from home, but abroad, if they're doing that without consent . . . and I haven't come across it personally, but I'm sure there are cases there, Scott, where employees have had the opportunity maybe where they are home-workers and have returned back home and are continuing to work at home unbeknown to the employer. So, if they've done that without consent, I think that there's potential breach of contract issue there.

And there is a risk that working from home abroad could bring a sufficiently . . . if it's sufficiently widespread, it could become a contractual right that reverting back to it then could prove very difficult.

I suppose that's getting back to where we were at with the current pandemic and somebody doing it. But if it was for a longer stretch, somebody could then say, "Well, look, I can be at home in the Netherlands, for instance, and do my job as normal".

Other important aspects are the tax and Social Security aspect of it. If you're working from home, but abroad, what is the position on tax and Social Security contributions in the country in which they're actually living and working, even though their contract may say that they're a UK or an NI employee?

And it may be that the employer is going to have to get to a point where they're obliged to make deductions and account for the tax and Social Security contributions of the country that they're actually working and living in.

Other sort of things that come to my mind are where does the ramifications lie where . . . if you're coming back to the contractual point, if their employment contract is governed by Northern Irish law, but they're working abroad somewhere else, what happens to all those contractual points? Things like their holidays, the custom and practice in relation to holidays that we would have a Northern Ireland maybe to where they're living and what the holidays are there.

Essentially, the question is

"Does the employment law and practices of the country that they're now working from take precedent over their contractual points as regards things like holiday, redundancy, employment protections, things like that?"

On a broader level, I suppose . . .

Scott: I was going to say, Seamus, they're certainly very different. There was a very good article once with all these different employment rights across Europe. A doc years ago and a labour relations agency event that they held, and they were looking at various employment rights. In Holland, you can get up to two years' sick pay, full pay when you're off sick. So that would be an interesting one if you've got somebody who's posted abroad, you're obliged to meet their minimum statutory obligations when it comes to statutory national minimum wages and holidays and all that kind of stuff there.

But it highlights the fact that modern, if you like . . . not modern, but employment contracts and employment law doesn't really reflect or keep up to date with the way that people work nowadays. There is absolutely no reason logically, logistically, why somebody can't do a job in America or India, and yet the work is for use in Northern Ireland or anywhere else.

You have contractors. You send stuff out to India to get worked, or you send it to America, or you send it anywhere. It doesn't really matter. But it does matter if it's an employee. But it hasn't kept up.

And we do have a final question on the gig economy, which I hope we'll get to. But if you want to finish up on your point you were making there with people working abroad . . .

Seamus: Well, just the other thing would be as well . . . time zones. The practicalities of working from home, but abroad. If you're doing a job where a colleague wants to contact you during sort of their normal working hours, but in actual fact that's whenever you're in bed sleeping because it's night-time wherever you are, those sorts of things.

But other things would be insurance. Talking about employer's liability. Does that cover you for anybody that's working overseas? Health and safety issues. How do you monitor that? How do you deal with it? It's not that you can just drop around and do an inspection. And those sorts of practicalities of it all.

But I think, ultimately, you could get requests for employees to remain at home during the pandemic because of safety issues or because they can't travel. And it's about dealing with those, I think, uniformly so that they're not creating any issues in terms of discrimination points or anything like that.

Scott: Okay. And somebody there has just asked about if there are GDPR issues. There certainly will be after the 31st of December anyway.

Seamus: Absolutely.

Scott: …Contractual clauses when you're sending information backwards and forward.

Employment Status

We are just about out of time, but we're going to take one last question and then we'll finish up. And the last question is this, Seamus.

Cases against Uber seem to be going the drivers' way, but is there a weakness in the argument because taxi drivers have traditionally been self-employed?

They've always followed that model. Even though there are people back at base directing them where to go and many now are prepaid and customer names and addresses are stored. Ordinary taxi drivers, never mind the Uber types. It's not just Uber who have drivers that are deemed to be employees or workers.

So this is the case that's gone to the Supreme Court. We're waiting for it to be heard. Could be not even next year. It could be later.

But this is about the gig economy. It kind of ties in with those who are working abroad. Uber have argued that they're not even workers, never mind employees. And the drivers are saying, "Well, hold on a second. You tell us what to do, where to go. You serve us stuff. We're not just people who are using an app". And the question here is it's traditional in this industry that taxi drivers are self-employed. So could that be something that comes through?

Seamus: It's going to depend entirely upon the nature and the model that is being used when it comes to the taxi driver or the worker or the employee. I did cover this question . . . well, not so much a question, but I certainly covered the topic at the Annual Review. And if anybody has the notes from that, they can go back. I see that Legal-Island do have the ability to purchase notes from the Annual Review.

But in relation to the work case, it has been heard at the Supreme Court. We are waiting on the decision. It was heard in July. We're waiting on the decision. Hopefully, we'll be getting that very soon. I had actually hoped whenever Scott and I had looked at this originally that we would have the decision through by the time of the Annual Review, but we didn't.

The important point is that Uber's position when it comes to that case is they say that the two individuals that have brought case, Mr Aslam and Mr Farrar, they say that they are not employees. They are simply self-employed independent contractors and that therefore they have no employment obligations whatsoever.

And if I can remember this right, the contract between Uber and the driver states that nothing shall create an employment relationship between the parties essentially. And that's their argument in relation to it.

I suspect that anybody that's working for a local taxi organisation here in Northern Ireland, there probably isn't a written contract in place. There's maybe a loose sort of agreement in terms of hiring or purchasing of cars from the company.

But for the day-to-day taxi man that's there, they could very much view themselves as being self-employed. They determine their own hours. They determine whenever they're going to work. They can say whenever they don't want to work. They can take the shifts whenever they're available. And they can determine who they pick up and who they don't.

So even though they're radioed through and said, "Look, can you go to this address?" ultimately, if they don't want to go there, they don't have to. Also, if they get there and they don't like maybe the presentation that they're faced with at times, they don't have to take that party on either.

So it is a different scenario whereby . . . I think with Uber you're sent the notification, you accept that, and you undertake that you're going to go and get the job and take the fare essentially.

So there could be a lot of different arguments there, but there's no doubt . . . I suppose my main point in relation to this is that there's no doubt that the case law has moved in a way to look much more favourably in relation to defining that the person is either a worker or an employee. And there certainly is a move away in the case law from this idea of somebody being a self-employed contractor.

It will not work in every single circumstance and there will be genuine circumstances when the person is self-employed. But the law is certainly tightening up and we're hoping we'll get clear guidance from the Supreme Court whenever we get the Uber decision.

Scott: Okay. Thank you very much, Seamus. Thank you to everybody for listening. I see the comments are still coming in there. That's fantastic. We'll take some of those and add them in for next month.

We will be back on the 8th of January. But before then, we've got the 9th of December coming up with Dr John McMullen from Spencer West. He is the visiting professor of law at Leeds University, and he is the TUPE champion and the guru on all things transfer of undertaking related. We'll see him on the 9th.

So go to the Legal-Island website, and if you look in Events, then you'll see all the webinars there. You just click and you can register for one next week.

Thank you very much, everybody. It's probably the last time we'll chat to you, apart from next Wednesday. So, if we don't see you again, Happy Christmas when it comes and a Happy New Year. And let's hope everything gets much nicer and 2021 is a lot easier on all of us than 2020.

Thanks very much, Seamus. Thanks, Rolanda. Bye, everybody.

Seamus: Thank you. Bye.

   

This article is correct at 03/12/2020
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Seamus McGranaghan
O'Reilly Stewart Solicitors

The main content of this article was provided by Seamus McGranaghan. Contact telephone number is 028 9032 1000 or email seamus.mcgranaghan@oreillystewart.com

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