Following on from the success of our Streetlaw session on Testing, Jabs and Jobs – Covid-19 and the Workplace, we were delighted to have so much discussion and engagement from our attendees. Our team has therefore put together a blog to answer some of your key questions which arose during the webinar.
“Can my employer monitor my productivity and activities when I am working from home?”
By: Molly Walker
What is employee monitoring?
Covid-19 triggered a dramatic shift toward remote working as lockdown restrictions forced many from the office, with some employers now continuing ‘working from home’ (WFH) arrangements. However, businesses are concerned about maintaining employee productivity and employee surveillance has arisen as a solution.
Employee monitoring is not an entirely new phenomenon. Familiar forms of monitoring include regulating internet usage by blocking certain websites, tracking searches through cookie systems, or monitoring email content by flagging up specified words. Some employers monitor telephone activity or record samples of telephone conversations to assess employee performance and ensure quality control.
As WFH becomes the new norm for some, there has been a rise in demand from UK employers for more invasive technologies. For example, ‘Hubstaff’ is a technology which manages productivity and ‘Controlio’ is a form of video recording through a webcam. This, understandably, creates concerns for employee privacy and there are questions as to the extent to which such intrusive methods are lawful.
Legal framework for the protection of employees
At present, there is no specific data privacy law for employee surveillance in the UK, however, there are legal frameworks in place which provide a level of legal protection.
Article 8 of the European Convention of Human Rights (ECHR) protects the right to private family life and the Human Rights Act 1998 makes this part of English law. However, this is a qualified right and privacy can be infringed if it is “in accordance with the law and is necessary in a democratic society”.
What does this mean in practice? Essentially that an employer may legally infringe on an employee’s privacy if there is a legitimate objective and the method they use is necessary. Accordingly, excessive forms of surveillance will usually be unlawful, but may be permitted if there are exceptional circumstances or a benefit to the public interest.
Surveillance technologies involve the processing of personal data and therefore an employee may be afforded protection under the Data Protection Act 2018 (DPA) and General Data Protection Regulation (GDPR). The Employment Practices Code provides guidance and imposes an obligation to inform employees if they are processing their personal data, which means if surveillance technology is being used, employees should be made aware of it.
Furthermore, under the GDPR, consent forms part of the lawful basis for processing data. Simply informing employees of a monitoring system is unlikely to be enough; employees need to expressly consent, and this must be freely given. The Information Commissioner’s Office has raised a concern as to whether such consent can ever be regarded as freely given by an employee due to the imbalance of power in a relationship of employment. In view of this UK employers will need to carefully consider whether the surveillance they are considering is proportionate.
What about emails?
Interception of electronic communication is protected by the Investigatory Powers Act 2018 (IPA), which makes it an offence to intercept a public or private telecommunication in the UK without lawful authority. However, it will not be an offence if the interceptor has control over the system or if the employer obtains the consent of the employee. What this means is generally employers will have the right to monitor company emails.
What to expect: steps for the reasonable employer
There are steps which a UK employer should consider in order to ensure that a monitoring system is lawful.
Part 3 of the Employment Practices Code provides guidance which suggests that the employer should undertake an impact assessment, known as a ‘DPIA’, to ensure the monitoring processes are proportionate and necessary. The employer should consider whether there are less intrusive forms of monitoring available and the impact of monitoring on employees to assess whether it is justified. This guidance is not legally binding but should be followed unless the employer has good reason not to do so.
An employer should have an electronic communication policy to set out standards; cross-refer to other relevant polices, and set out the consequences for failing to comply with the policy. The policy should then be easily accessible by the employees from the start of employment.
Risks for employers
Surveillance can have a detrimental effect on relationships of trust and confidence in the workplace. If employees feel at risk or personally victimised by an employee monitoring system, it may be possible for the employee to make a claim for constructive dismissal or unfair dismissal under the Employment Rights Act 1996. For example, in the legal case of Kilday v MJM international, an employee was successful in the employment tribunal with a constructive dismissal claim after the discovery of a recording device on his monitor. Each case is unique however and we would recommend seeking legal advice in such a situation.
Conclusion
While it is likely that employee monitoring will be used as the workforce transitions toward WFH more and to remote platforms, employers should carefully consider whether surveillance is the best way to tackle employee productivity. Surveillance does not have to be essential, but it must be employed in a proportionate way. A company will be required to obtain consent and UK employees can feel some reassurance that covert surveillance is highly unlikely to be lawful, without exceptional circumstances.
“I work for a business based in England and would like to work remotely from my home base, which is overseas. What do I need to consider to do this?”
By: William Powell
For many considering a move abroad to work remotely, whether personal or business-related, it can be a complex process. The types of considerations will naturally vary from one employee to the next, including the duration of the stay abroad, nationality, place of work, type and seniority of work and location of any offices of the business abroad. However, there are broad considerations that all employees should note when choosing to work abroad, for which we have provided an overview below.
Agreement with your employer
Perhaps an obvious one, but the first point is to ensure your employer is aware of and in agreement with the proposal to work abroad. Even if you have an arrangement which allows you to work from home within the UK, you could end up in breach of your employment contract if you relocate abroad without first agreeing your working arrangements. An open discussion with work should be the first step and you may need to enter into new contractual arrangements, especially if your relocation is permanent.
Taxation
For taxation, the key question to consider is how long you are planning to work abroad. If your stay is temporary, your UK employer should continue to deduct income tax through the PAYE system. However, if you are planning to stay for more than 183 days in a country within the same 12-month period, you may become subject to that country’s tax residency. If your stay will be at least one full UK tax year, your employer may apply for a No Tax PAYE code from HRMC to pay you without PAYE deductions. The employer would still continue to deduct your national insurance contributions (NICs).
Income tax
For work physically done overseas, your employment income is generally subject to the host country’s income tax. However, if there is a double tax treaty (DTT) between the UK and your country of choice, you may be exempt from that country’s income tax if you are not tax resident in the host country and do not spend, even if only for personal reasons, a total of 183 days in that country in the same 12-month period. Given that this varies from country to country, you should double-check to see the UK’s DTT, if any, with your country of choice. If you do become subject to tax in your country but are still UK tax resident, you should be able to get credit for at least part of any tax paid to the host country with the right tax declaration. However, this can be a complex process and you should seek advice from your employer and/or a tax advisor.
If you are in a role where you conclude contracts in the employer’s name, you should consider whether your employer’s profits may be subject to the host country’s corporate tax, meaning that the income tax exemption under a DTT would not apply.
Social security
Depending on your working status and place of work, you may be subject to social security obligations in your country of choice. If you work in two or more countries or are temporarily seconded to work in the EU, and provided you do not exceed a 2-year stay, no additional social security will need to be paid. However, if your stay is in Ireland, Norway, Switzerland, Iceland and Liechtenstein, different rules may apply. Outside the European Economic Area and Switzerland, if there is a reciprocal agreement between the UK and host country, you could also avoid paying additional social security for up to five years. Where no such reciprocal agreement exists, your employer must still deduct your UK NICs and pay employer NICs for the first 52 weeks. If you are liable to pay social security, you may need to consider transitioning into the host country’s system.
Immigration
It may be tempting to categorise your work abroad as a business visit, if it is limited to certain activities like meetings, training and site visits. However, given that your host country may prohibit any form of productive work without the relevant approval, you should check the extent of permission required to conduct your work without criminal liability. Some countries are easier than others. Whilst places, like Barbados, offer a one-year visa for those earning at least $50,000, other places may restrict work to one province or even an office in the country. If you are planning to work in the EEA or Switzerland and only have a British passport, you need to bear in mind that you are no longer automatically entitled to work there and will need to apply for the appropriate permission to work. You should also consider your UK visa status if you are a non-British/Irish national and whether leaving for overseas will negatively impact your future ability to obtain settled status or naturalisation in the UK.
Intellectual property and confidentiality
Your employer should continue to own any intellectual property that you produce abroad. However, to avoid potential disputes over ownership, you should still check that your employment contract either expressly covers this or is governed by English legislation and the jurisdiction of the English and Welsh courts. You should ensure that any data transfers comply with the required standards, as well as properly storing and protecting confidential information with secured and fully password-protected work equipment.
Regulations
Depending on the type, sector and seniority of your role, you should check that you can work effectively and legally in your chosen country. This will be particularly important for those in financial and legal services where supervision of work may prove a regulatory issue. You should obtain the relevant professional indemnity insurance for any work conducted abroad.
You should also check if you or your employer are subject to different health and safety requirements or employment protections abroad. You may be able to benefit from local protections, such as rights on termination and annual paid leave, meaning your employer might want to move you to a local employment contract.
Day-to-day considerations
It is necessary to account for day-to-day issues that may impact on the benefits that you currently enjoy in the UK. Any temporary or permanent relocation may change your status and entitlements as an employee. You may not have the same access to pensions, life assurance and protection of income. You need to consider how to pay medical bills, if private healthcare is no longer accessible; the paperwork for using a company car abroad and how to hold and withdraw your salary. If your salary is still paid in the UK, such salary will be subject to exchange rates and a withdrawal charge that is normally 3 percent. You should therefore consider setting up a bank account abroad or opening an account with Monzo or Starling that do not charge for withdrawals and transactions outside the UK.
Conclusion
Remote working from abroad is a perfectly possible, but not necessarily easy, process. It is highly recommended that you secure approval before you leave abroad as it will have legal implications for both you and your employer. If your employer is supportive and comfortable, they will be able to assist you or even use services like a Professional Employer Organisation (PEO) to enable you to make a smoother transition abroad.
“Can you explain the difference between an employee and a worker? Do they have different rights?”
By: Salma Abbes
Under English employment law, there are different legal arrangements under which work can be performed. In this article, we will look at three categories and explain the differences between them. The first is an employee; the second is a worker and the third is an independent contractor.
The legal definition of employee and worker can be found in the Employment Rights Act 1996 (ERA), but for the purposes of this blog, which have explained in plain terms what being an employee or a worker actually means.
It is worth noting at the outset that all employees are also workers, but those classed as employees have extra rights and protections under employment law.
Employee
An employee is an individual who works under an employment contract (also known as a contract of service). An employment contract can be express or implied, written or oral. An employee has the legal right to receive a written statement of the basic terms and conditions of their employment, but the fact that someone has never been given a written contract will not preclude them being an employee.
Worker
A worker is an individual who provides work or services personally but is not engaged as an employee. There are many different types of workers and sometimes a person’s status as a worker is not entirely clear, even to them. Essentially there are two broad criteria for worker status:
A worker must perform the work themselves. If there is a substitution clause in a contract, it means that someone else can do the work for you. If there is a genuine right to send a someone else to do your work, you are probably not an employee or worker. However, you should watch out for a ‘sham’ substitution clause that has been artificially added to your contract to prevent you being classed as a worker.
This is really looking at the distinction between someone who is a worker, providing services on behalf of a business, or a genuine self-employed contractor, providing a service to a client. This is determined by different factors in both the contract and the reality of the arrangements, for example, does the individual have to work specified hours as directed, do they have to turn up (even if they don’t want to), do they work exclusively for that business, are they closely managed or directed by someone else? All these factors suggest that an individual would be a worker.
Different categories of workers
There are different categories of workers and the terminology is not always clear. Here we explain some of the most common categories:
Casual worker – an individual who works on demand without any guaranteed hours. This can also be known as a worker on a ‘zero-hours contract’. Such an individual might be a worker or an employee, depending on their contractual arrangements.
Agency worker – an individual who is sent through an agency and the company is not their legal employer. These workers receive their wages from the agency although they work under the direction of the client company. They may be employees of the agency in some circumstances.
Platform worker – an individual who uses a ‘platform’ to offer their service. This does not necessarily mean the platform employs them, only that it has the power to put workers in touch with customers. This is known as the gig economy and examples include Uber, Deliveroo and couriers like DPD or Hermes. Platform workers have many of the typical features of an independent contractor, but they may be classed as workers where they personally perform a service under the platform. After a long debate over the years as to Uber driver’s employment status, the Supreme Court ruled in the landmark case of Uber BV v Aslam in February 2021 that they are workers, not self-employed. This decision will certainly have huge implications for the gig economy.
Independent Contractor
Commonly known as being ‘self-employed’, an independent contractor will run a business for themselves (personally, or through their own company). They might provide a service to a client, but the relationship will be very different to that of a worker. A self-employed person will have much more autonomy of how, when and where they work, or even who provides that service. A self-employed person will not benefit from most of the rights and protections which an employee and even a worker enjoy under employment law, as essentially they work for themselves.
Legal rights of an employee and worker
The individual’s legal rights are the main distinguishing factor between an employee or worker. Whilst employees are entitled to a full range of employment rights and protections, workers only have some of these rights. A worker’s employment rights typically include the following:
In addition to the above, an employee will have the following employment rights (some only after 2 years’ service):
Contract v reality
Ideally, whether an individual is an employee, a worker or an independent contractor should be clear from their contractual arrangements. However, sometimes the contract will not accurately reflect the reality of the situation, for example a contract might state a person is self-employed, whereas in reality all the parties behave like that person is a worker. In this situation it is the reality which determines the true relationship, and it is possible for someone to challenge the status set out in their contract. A person may want to try and recategorise themselves as a worker because of the number of employment rights they would benefit from, which an independent contractor does not have.
In a well-known case, Pimlico Plumbers v Smith, individuals challenged contracts which stated they were self-employed, claiming they were in fact treated as workers. The court considered many factors, such as uniforms provided by the company, the logo on the van and the fact that people were working 40-hour weeks. The court concluded that they were workers and were entitled to all the rights which went along with this, such as statutory holiday or sick pay entitlement.
The message is that if you are unsure whether you are an employee, worker or independent contractor, perhaps because you do not have a written contract, or you don’t think the contract you have properly reflects your day to day working life, it may be worth querying this or even seeking some free legal advice, from a legal clinic or employment law helpline, on your employment status.
“Can being an “anti-vaxxer” really be considered a philosophical belief?”
By: David Hayter
On the surface, the notion of debating whether being an “anti-vaxxer”, an individual who is vehemently and principally opposed to vaccinations, could be classified as a philosophical belief, might appear a strange task for an employment law blog to undertake. However, in response to the Covid-19 pandemic, employers the world over have been contemplating the introduction of “no jab, no job” policies which would make vaccination mandatory for new recruits and, potentially, existing employees too. The result would be a situation where an individual’s philosophical beliefs and personal choices concerning their own healthcare may threaten their livelihood.
Employees with more than two years of service would have the potential protection of an unfair dismissal proceeding were they to refuse a vaccine, but what of new recruits, employees with less than two years’ service, workers, the self-employed, and all those caught in between?
Perhaps the best defence for an “anti-vaxxer” faced with a “no jab, no job” situation would be to raise the issue of discrimination under the Equality Act 2010 as religion or philosophical belief is one of nine “protected characteristics” covered under section 4. Philosophical beliefs need not be religious in nature (indeed, the absence of belief is in itself a protected belief) as the Employment Appeal Tribunal (EAT) explained in General Municipal and Boilermakers Union v Henderson, “All qualifying beliefs are equally protected. Philosophical beliefs may be just as fundamental or integral to a person’s individuality and daily life as religious beliefs.”
Part 5 of the Equality Act 2010 protects a great swathe of individuals either in employment or occupational and vocational training from discrimination, harassment and victimisation based on their religion or belief. Crucially for “anti-vaxxers”, the Equality Act 2010 sets out that it is unlawful for an employer to either:
Naturally, this begs the question: how is a valid philosophical belief, protected by discrimination law, quantified, defined, and determined?
In the case of Grainger v Nicholson, the EAT provided the following guidance on the definition of a philosophical belief:
It must be stressed that these nine points merely amount to guidance and a genuine belief must be evidenced and may be subject to cross-examination. Governments of various stripes have made their opinions known on the validity of various beliefs from veganism and gender roles to Marxism and climate change, but the ultimate duty of interpreting the Equality Act lies with the courts.
Complications and comparisons: vegans, mediums and poppy wearers
When the “anti-vaxxer” issue was raised at BPP’s Testing, Jabs and Jobs workshop, one line of argument pursued in audience discussion was that an anti-vaccination belief is anti-scientific, anti-evidence, and, by extension, illogical. Therefore, it could not possibly be protected by law. This is certainly a commonly held viewpoint among those sceptical of the anti-vaccination ethos, but when examining the above guidance, it is clear that a philosophical belief need not be evidence based.
For example, in Greater Manchester Police Authority v Power the EAT upheld that a belief in the ability of mediums to communicate with the dead was capable of amounting to either a philosophical or religious belief and, furthermore, that the use of mediums was not only worthy of respect in a democratic society, but had sufficient cogency, cohesion and importance to amount to a philosophical belief. The above illustration is not designed to launch a series of apples and oranges comparisons between various viewpoints, be they spiritual or political, but to demonstrate that beliefs whose underpinnings may be impossible to evidence or “anti-scientific” are nevertheless capable of being recognised by the courts as philosophical beliefs. In fact, to help contextualise the issue it is worth considering some of the beliefs that have and have not been protected by the Equality Act:
Examples of protected philosophical beliefs include:
Examples of beliefs that did not meet the tribunal’s criteria include a belief:
The biggest concern for “anti-vaxxers” is not that scientific evidence might discredit the factual validity of their beliefs, but instead that the anti-vaccination movement is too diverse and incoherent in nature to have attained “a certain level of cogency, seriousness, cohesion and importance”. Simply put, there is no one coherent and identifiable thread binding “anti-vaxxers” together as a philosophical belief. For example, some “anti-vaxxers” are only against taking the Covid-19 vaccination, others boycott all vaccinations, others oppose the MMR vaccine due to an erroneous belief that it causes autism, while some believe that the Covid vaccine is part of an international conspiracy orchestrated by Bill Gates. The issue is further complicated when the political element is considered. For many “anti-vaxxers”, the viewpoint is linked to a broader set of political opinions, while for others it is a sincere personal belief detached from any defined ideological viewpoint or movement.
Truth be told, we will simply have to wait and see what happens when the rubber meets the road and the anti-vaccination argument is put before an employment tribunal. The legal issue is more nuanced and less clear cut than the scientific debate as there are undeniably compelling arguments to be made on both sides of the “anti-vaxxer” issue surrounding each one of the nine points listed above.
Perhaps, it is fitting to conclude by stressing the extremely fine lines that are drawn by employment tribunals when determining whether a viewpoint amounts to a philosophical belief. Consider the contrasting cases of vegetarianism and ethical veganism; two longstanding viewpoints which the tribunal recognised, in both cases, to be genuinely held. However, while ethical veganism was recognised as a philosophical belief, it could not be demonstrated that vegetarianism had attained the requisite level of cogency, seriousness, cohesion and importance. Mirroring the concerns surrounding the anti-vaccination stance, the intellectual and doctrinal rationales underpinning vegetarianism proved too diverse and inconsistent to be recognised as a cohesive philosophical belief.
“Could requiring people to have a vaccination be a breach of their civil liberties or human rights?”
By: Rachel Pask
It is necessary to outline the law on vaccinations generally before considering employers specifically, as the general approach to vaccinations will determine the role of vaccinations in a workplace.
The government is able to make regulations to prevent, protect against, control or provide a public health response to the incidence or spread of infection or contamination in England and Wales under section 45C, Public Health (Control of Disease) Act 1984 (PHA 1984). However, as of now, vaccinations are not compulsory in the UK. The government has neither legislated for them to be mandatory for any particular groups nor do they have any legislative power to enforce compulsory vaccinations. Any attempt to do so would require further primary legislation.
As there is no legal requirement for people to be vaccinated, an employer cannot force employees to be vaccinated without their consent (in fact, this could amount to assault and battery, which is a criminal offence). The Advisory, Conciliation and Arbitration Service (ACAS) advises employers to encourage staff to get vaccinated. This includes making it easier and more appealing to get the vaccine, such as offering employees paid time off for vaccination appointments.
That being said, employers may have some loopholes that enable them to treat individuals differently based on vaccination status, both in terms of existing employees and new employees. Employers may restrict the duties of unvaccinated employees or prevent them from entering the workplace. A number of employers have also stated that, when recruiting new employees, they will give preference to vaccinated individuals or those willing to be vaccinated. A question remains over the legality of such policies or decisions, and whether they could fall foul of current laws protecting employees from discrimination or a breach of their human rights.
Human Rights and Discrimination
If an employer is looking at implementing a vaccination requirement, it is advisable they consider the possible claims they may face. In April 2021, the Equality and Human Rights Commission (EHRC) warned that blanket mandatory vaccination policies, applied inflexibly, are “likely to be unlawful”. Mandatory vaccinations could give rise to discrimination claims the Equality Act 2010 (EA). These considerations highlight the likelihood of human rights and civil liberties issues, as outlined below.
Indirect Discrimination
A mandatory vaccination requirement for employees or job applicants is likely to amount to a provision, criterion or practice that puts individuals with a protected characteristic at a particular disadvantage contrary to the EA, for example:
An employer may be able to justify a vaccination policy that is potentially indirectly discriminatory against a particular protected characteristic if it can show that its policy can be objectively justified as a proportionate means of achieving a legitimate aim. The burden is on the employer to show justification that it was pursuing an identified legitimate aim, and the measures taken to achieve that aim were appropriate and proportionate. It remains to be seen how the courts might view such an argument in the case of mandatory vaccination policies.
Direct Discrimination
An employer’s actions, in either requiring the vaccination of a particular employee or in treating them less favourably because they are unvaccinated, could potentially directly discriminate against them contrary to section 13 of the EA. An obvious example of where this could be an issue would be during the recruitment process. It is currently unclear whether asking someone’s vaccination status before offering employment would count as a ‘prohibited health question’ i.e. a question about the health of the applicant asked before an offer of work is made. Job offers can be made conditional on certain health checks, but employers must not discriminate against job applicants in response to the results of such enquiries or checks.
Human Rights
As the UK remains a signatory of the European Convention of Human Rights (ECHR) and the Human Rights Act 1998 incorporated this into English law. The rights this legislation protects must continue to be respected and protected in the UK. Additionally, under section 6(1) of the HRA 1998, it is unlawful for public authorities, including public sector employers, to act in a way which is incompatible with the ECHR.
There may be an argument that a vaccination unnecessarily undermines the Article 8 right to privacy, given that there are less invasive methods of preventing transmission in the workplace. Another likely rights claim is that the Article 9 right (freedom of thought, conscience and religion) should enable you to reject the vaccine.
If we turn to Vavřička v Czech Republic, a case with very similar facts, the European Court of Human Rights (ECtHR) held that the Czech Republic’s mandatory pre-school vaccination requirements for children did not breach Articles 8 and 9 of the ECHR. Although the case does not concern Covid vaccinations specifically, it is relevant to the issue of employer mandated vaccinations.
Conclusions
In conclusion, the questions of human rights, discrimination and vaccinations is a much-debated topic at this time, with the roll out of the Covid-19 vaccination programme still ongoing. As things stand, here in the UK, vaccinations are not mandatory and it is a matter of personal choice whether to opt into the programme. That said, choosing not to be vaccinated could have implications for your freedom to partake in all activities, for example to travel abroad or to be considered in some job application processes. It remains to be seen how this will develop, but it is certainly the case that Covid vaccinations are critical in the international effort to control the pandemic and this brings the debate about vaccinations and personal choice with regard to them to the centre stage.
