Employment Corner - November 2021

COVID-19 and returning to work: What can hotel employers do?

Employers in the hotel sector are facing particular challenges in encouraging staff to return to work. The sector has been one of the most badly affected by COVID, with lockdowns hitting businesses hard. Reopening safely is a priority. Most staff in this sector will need to attend the workplace in person in order to carry out their duties – working from home is simply not possible for the army of housekeeping, catering and other staff that form the backbone of the sector.

One of the key challenges employers in the sector are facing is how to get staff back to work in a way which is safe for them and their customers, whilst also managing sensitive personal data in a legally compliant way. There are pressing employment and data protection issues to be considered when assessing whether it is possible to request information regarding employee vaccine status, to require vaccination for access to workplaces, or even as a condition of employment.

Key questions

With this in mind, we have explored some of the key questions around what employers can and can’t do in our article looking at the position in the UK and our series of cross-border HR Data Essentials guides for COVID-19, including:

• Can we ask employees if they have been vaccinated?
• Can we require employees to be vaccinated as a condition of continuing employment, and what can or should we do if employees refuse?
• Can we require employees to be vaccinated as a condition of physical attendance at the workplace?
• Can we retain the vaccination / test / immunity records of employees?
• If an employee refuses a request or requirement for vaccination, asserting medical reasons, can we require proof of the medical reason?

Case law

We have also seen a steady flow of initial decisions from the UK Employment Tribunals relating to legal issues that have arisen as a result of the pandemic. Whilst the decisions of the first-tier tribunals are not always consistent, and are not binding, they can give us an indication of the direction of travel.

We have looked at some of the key decisions so far:

• Gibson v Lothian Leisure ET/4105009/2020: The Claimant was held by the Employment Tribunal ("ET") to have been automatically unfairly dismissed for raising issues related to health and safety at work during the COVID-19 pandemic
• Accattatis v Fortuna Group (London) Ltd 3307587/2020: The ET held that the dismissal of an employee who had expressed concerns about commuting and working in the office during lockdown and had repeatedly asked to be furloughed was not automatically unfair under section 100(1)(e) of the Employment Rights Act 1996.
• Montanaro v Lansafe Ltd ET/2203148/2020: The ET held that an employee whose workplace was in the UK but who had remained in Italy at the start of the COVID-19 pandemic was automatically unfairly dismissed when his employer dismissed him for unauthorised absence.

Tips and tronc

On 24 September 2021, the UK government published a new statement setting out its plans with regard to the treatment of tips, with the aim of ensuring that all tips go to workers under proposals to overhaul tipping practices.

The government states that it will make it illegal for employers to withhold tips from workers, and asserts that the proposed changes will help around 2 million people working in approximately 190,000 businesses in the hospitality, leisure and services sector. Many of these individuals will be on national minimum wage rates and the addition of tips may have an important impact on their take-home pay. The plans make clear that this includes tips received via card payment.

This is likely to have a significant impact on employers, particularly those who currently choose to keep tips, both in terms of their policies and financial arrangements. Employment claims may arise where the new requirements are not observed, and employers should also anticipate adverse media attention where they fail to comply (with potential knock-on effects for reputation and income).

The publication indicates that new grounds of claim will be created to protect workers where employers fail to comply with their obligations, along with new rights for workers to make a request for information relating to an employer’s tipping record to assist them in pursuing such claims.

The publication does not provide full details of the proposed changes, so employers should watch this space.

Diversity, equality and inclusivity: Ethnic pay gap reporting

Along with broader diversity, equality and inclusivity topics, ethnicity pay gap reporting remains high on the agenda.

A new report by the Runnymede Trust commissioned by the Equality and Human Rights Commission (“EHRC”) has recommended that public sector bodies in England be obliged to report on their ethnicity pay gap every two years. The report states that racism is systemic in England and that the situation of BAME communities has worsened over the last five years, with BAME workers more likely to be in insecure and low-paid work. The report recommends that the UK government should use its powers under Section 153 of the Equality Act 2010 to impose a specific duty on all local and national authorities in England to gather and publish data on their workforce by ethnicity, pay and grade and any measures taken to reduce gaps, as a way to address any discrepancies between experience and qualifications on the one hand, and salary and seniority on the other.

International mobility: Launch of the Workforce of the Future series

Employment, recruitment and resourcing staff in the hotel, hospitality & leisure sector have been affected, directly and indirectly, by developments over the last two years, often in unique and specific ways. It is clear that some of the changes prompted by the COVID-19 pandemic are here to stay and that a series of longer-term trends are transforming how and where we work, and how we communicate and share information. These complex changes will continue to unearth a range of risks – legal, financial, and reputational - never before contemplated or encountered in the modern workplace.

Our new series, the Workforce of the Future, examines some of the hidden risks associated with new and emerging ways of working, which the hotel, hospitality & leisure sector will need to consider carefully given the implications for this field of work. In this series, we bring together a variety of different voices, including legal experts, HR professionals and other contributors to provide their insights on these issues and challenges. We will discuss questions we are talking to our clients about, including:

• Can we allow our employees to work from anywhere in the world?
• What’s the best employment model in order to maintain a flexible workforce, while being compliant and treating our staff well?
• Can we use automated screening of CVs and social media profiles when recruiting new hires?
• How can we show employees that we care, without being criticised for being too political?
• How can we keep our confidential data secure when employee turnover is high and our employees are working remotely?

The first webinar of the series, available here, focuses on issues around alternative employment structures, such as employers of record, working from anywhere, and global mobility issues.