On 6th February this year Her Majesty the Queen became the first British Monarch to celebrate a Platinum Jubilee, marking 70 years of service to the people of the United Kingdom, the Realms and the Commonwealth.

To celebrate this unprecedented anniversary, it has been announced that there will be an extra bank holiday which will fall on Friday 3 June 2022 and, as the late May bank holiday has been shifted to Thursday 2 June 2022, this will form a special four-day weekend for many – but not for all!

Whether an employee is legally entitled to this extra bank holiday depends on the wording of their employment contract and their usual work patterns.

• If an employee’s contract says they are entitled to, for example 20 days plus bank holidays, they will be entitled to the additional platinum jubilee bank holiday.
• If an employee’s contract states that they are entitled to, for example 28 days of annual leave inclusive of bank holidays, it will be the employer’s choice whether to allow the extra bank holiday, as it is not explicitly included under the contract.
• If the employment contract refers to “usual” bank holidays, for example “you are entitled to 20 days holiday plus the usual bank holidays in England and Wales”, given the extra bank holiday is not a “usual” bank holiday, the employee would not automatically be entitled to it, but the employer may decide to give it as an extra benefit.
• If entitlement is expressed as a certain number of days “plus eight bank holidays”, or if the contract specifies which bank holidays are included, the employee will not be entitled to an extra day.

Employers will also need to consider part-time workers. The position is the same as above, their entitlement to the bank holiday depends on the wording of their contract. If they are entitled to the additional bank holiday given the wording of their contract, but they do not work on a Friday their holiday entitlement should be adjusted on a pro-rata basis to avoid claims for less favourable treatment of part-time workers.

Employers should closely examine the wording of the employment contract to work out if employees are legally entitled to the extra bank holiday and seek specialist advice if unsure about the position.       

Taking into account employee morale, even if not legally entitled to it, depriving employees of the extra bank holiday could result in them being disgruntled. Employers offering this additional day even in circumstances where they are not legally required to do so, may want to make it clear in messaging to their employees that this is an extra benefit they are receiving. Providing such an additional benefit may help boost employee morale. 

Employment law is often subject to changes and therefore it is vital that employment contracts are reviewed periodically to remain up to date and legally compliant.

For further advice and assistance please contact our Employment Law Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021, have been approved by both Houses of Parliament. These regulations make it mandatory for a person working or providing professional services in a care home to have had the Covid-19 vaccine.

Photo by RF._.studio from Pexels

The Regulations mean that a Care Home must ensure that any non-resident over the age of 18 does not enter the residential accommodation unless that person has provided evidence that they have been vaccinated with the complete course of an authorised vaccine against coronavirus, or the person has provided evidence that for clinical reasons they cannot be vaccinated. Unvaccinated people will still be able to enter a Care Home to visit a resident service user as a friend or relative.

The Regulations apply to England only. They now need to be made and will come in to force within 16 weeks of that date, so this should give all adults enough time to have the vaccine in accordance with the Government’s vaccination timetable.

You will perhaps have read many articles discussing the right for employers to demand for its employees to have the jab; ‘no jab, no job’, if you will. There is no straightforward answer to this question, as it will depend on the job the employee carries out, their personal circumstances (i.e. if there are any medical reasons for not having the vaccine), and the employer’s reasons for demanding the employee takes the vaccine. There is more justification for demanding that employees working with vulnerable adults have the vaccine, but the exemption for employees with medical reasons demonstrates that the Government acknowledges that there cannot be a ‘one size fits all’ approach.

It is possible that this legislation could be opposed through the Courts by anti-vaxxers, arguing that this breaches their rights to hold a ‘manifestly held belief’ that they disagree with the vaccine; Section 10(2) Equality Act 2010 confirms that a “philosophical belief” is also a protected characteristic, capable of protecting the holder from any less favourable treatment as a result. However, it is likely that these new Regulations would be seen as being the proportionate means of achieving the legitimate aim of trying to avoid care home patients from catching Covid (and therefore a reasonable policy to adopt), although it remains an interesting argument.

If you have a question about any of the issues in this article, or any other employment law issue, please contact Ben Stanton by email at ben.stanton@franklins-sols.co.uk or call our Employment Team on 01908 660966 / 01604 828282.

Employees are protected from being unfairly treated or dismissed as a result of them raising reasonable issues regarding the safety of the workplace. The aim behind this protection is to encourage employees to be able to raise any relevant health and safety concerns, without fear of being dismissed just for raising these concerns. This might happen in circumstances where an employer considers that an employee is being ‘difficult’, or raising too many issues. This protection has been particularly relevant during the current Pandemic, as employers have an obligation to take reasonable steps to make sure the working environment is ‘COVID secure’ and safe in line with the Government’s guidance. Many employees who refused to attend their workplaces and were dismissed because of that refusal, have subsequently brought claims against their employer under this legislation.

From 31^st May 2021, the Government intends to amend Section 44 of the Employment Rights Act 1996 to extend protection from Health and Safety detriment to workers.  A worker is someone who provides services to a person or business, but the person or business does not have to offer them work and they do not have to accept it – they only work when they want to.

Currently workers do not have the same rights as employees to receive protection from complaining about unsafe working environments, but The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 will grant workers the same rights.

If you are affected by any of the issues in this article, or if you would like advice on any other employment issue, please contact Ben Stanton on 01908 660966 / 01604 828282 or email ben.stanton@franklins-sols.co.uk.

Former Great Britain cyclist Jess Varnish has spent years in a legal battle over her claim that she should be considered as an employee of British Cycling. Miss Varnish lost her initial case in January 2019, with the employment tribunal finding that the relationship was not that of employee or worker. Miss Varnish appealed to the Employment Appeal Tribunal which agreed with the original decision, finding that the relationship was more like, “students receiving grants”.

Why was it important that Miss Varnish should be considered as an employee?

All employees benefit from all of the protection afforded to “workers” as well as additional rights to the following:

• Statutory Sick Pay;
• Statutory Redundancy Pay;
• Statutory maternity, paternity, adoption and shared parental leave and pay;
• Protection against unfair dismissal;
• The right to request flexible working; and
• Protection under the Transfer of Undertaking (Protection of Employment) Regulations 2006.

If she had been deemed an employee, it would have paved the way for Miss Varnish to sue both British Cycling and UK Sport for wrongful dismissal and sexual discrimination after she was dropped from Team GB in the build-up to the Rio 2016 Olympics. As she is not an employee, she can no longer pursue this claim.

How do I know if I am an employee?

An employee is an individual who has entered into or works under a contract of employment. A contract of employment is a contract of service, whether in writing or implied over a period of time.

The 1968 case of Ready Mixed Concrete (South East) Ltd v Minister of Pensions and NI set out some basic requirements for an individual to be an employee:

• The employee must be paid;
• The employee must have agreed to carry out the work personally (i.e. they cannot hire someone else to do it for them);
• The employer must exercise at least some control over the individual; and.
• The employee must be obliged to carry out work for the employer, and the employer must be obliged to provide that work.

What are the differences between employees and workers?

The main difference is that there is no obligation on the worker to perform any work for the company and no obligation on the company to provide any work to the individual. Workers are entitled to fewer statutory rights than employees, but do have some key legal rights, such as protection from discrimination and against unlawful deduction from wages.

If you have any questions in relation to this story, your employment status or any other employment-related issue, contact our Employment Law Team on 01908 660966/ 01604 828282, or email employment@franklins-sols.co.uk.