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FAQ on furlough

Posted on 2 March 2021

Covid and the workplace - current questions to ponder

Posted in Advice

If an employee who refuses to be vaccinated on grounds of his or her beliefs is then dismissed or disciplined at work, would they be able to bring a claim?
This would depend upon whether or not their belief could fall within the “philosophical belief” arm of the protected characteristic of philosophical or religious belief.  Such cases turn upon whether the belief is said to be “worthy of respect in a democratic society” and would depend upon a range of factors.  The employee could arguably assert that the vaccine has not been fully and properly tested and is afraid of any side effects.  On balance, I think that the case would not fall within the protection of discrimination.

Would an employer be justified in refusing to pay full company sick pay to an employee who became ill and was absent from work with Covid after refusing the vaccine?
Full company sick pay is often at the discretion of the employer and not a contractual entitlement.  Either way, the employer could be justified in these circumstances but the employee may seek to assert their rights against  discrimination depending upon the reason why he or she refused to have the vaccine (see above).

An employee returning from maternity leave does not wish to place her child in a nursery or have him/her looked after by somebody else for fear of infection.  Can they insist that their employer places them on furlough leave?
The answer is firmly no.

Can employees be forced by their employer to have a Covid test?
No.

Is an employer justified in refusing a job to a new employee who refuses to have the vaccine?
Yes, the answer may be different if it is an existing employee who is facing dismissal for refusing to have the vaccine.

If an employee travelling abroad gets “caught out” by self-isolation/quarantine rules, are they entitled to receive full pay?
No,if they are absent from work but they might argue that they are entitled to work from home and therefore receive normal pay.  If the employee was travelling because of work, then they should still be entitled to be paid in full if they are required to quarantine or self-isolate on return and cannot work from home.

Is the employer entitled to maintain a list of employees who have had the vaccine?
This raises questions around the GDPR regulations and it is thought that a list could be justified for health and safety reasons.  It should however be maintained as data and stored in a manner compliant with the regulations.

Could an employee with so-called “long Covid” symptoms be dismissed by reason of capability?
Yes, as this would be subject to the normal rules on dismissal for capability which is a potentially fair reason and arises either due to poor performance or long term / intermittent absence of work due to ill health.

Can an employee be disciplined at work for failing to follow social distancing guidelines outside of work?
In certain circumstances, this may be justified in the same way that an employee’s conduct outside of work can result in disciplinary action if this has an adverse impact upon the employer’s work or reputation.  Such cases would be treated on their own facts.

Is an employee justified in walking off the job if they believe that the workplace is not Covid secure and they are at risk?
Yes, under Section 44 Employment Rights Act if they reasonably believe that they are at risk of harm.  There is protection from dismissal or detriment without needing to have 2 years qualifying service.

We have posed these questions and given short answers but each scenario must be looked at in detail and most problems would hopefully be resolved by consultation between employer and employee.  Each scenario above is something we have encountered either through discussions with other advisers or actual enquiries from clients.  We can provide comprehensive written advice in all of these situations and more and will continue to bring you further updates.

For further advice on these or any other employment matter please contact Paul Grindley by calling 0113 320 5000 or emailing @email.