In this webinar recording, Christine Quinn from Legal Island's Learning and Development Team and Seamus McGranaghan, Partner at O'Reilly Stewart Solicitors discuss the implications of the EU Whistleblowing Directive in the UK.

Although the UK has already implemented comprehensive protection for whistleblowers there are a few matters within the Directive not included in UK domestic legislation. Christine and Seamus discuss what amendments or enhancements may be made to domestic legislation to bring it closer into line with the Directive.

Topics covered in this webinar included:

• What are the implications of the EU Whistleblowing Directive in the UK?
• Should people who choose to remain working remotely have their pay cut?
• The 'pingdemic': Covid, close contacts and data protection

Transcript

Christine: Hi there. Good morning, everybody. Welcome to "Employment Law at 11", in association with O'Reilly Stewart Solicitors. Today, we're going to be looking at the EU Whistleblowing Directive, Pay Cuts for Remote Workers, and the "Ping-demic". You'll notice we're testing something today where we're going to be on camera so you can see our lovely smiling faces throughout. We'll just see how that goes for a bit of a change.

So, Seamus is one of the Directors over at O'Reilly Stewart Solicitors. He is an employment specialist, and he's also, most importantly, one of our keynote speakers at the Annual Review of Employment Law. That's taking place on 10 and 11 November. Seamus's session will be on long-term absence and the law. Find out more about Seamus's session and other sessions on the email which will follow up this webinar. Keep an eye out for that.

Just a reminder, the early bird offer on the Annual Review ends in a couple of weeks, 17 September, Friday. If you book now, you get £60 per person off. Have a look at that. That's also going to be included in the follow-up email, or on our website, legal-island.com/events.

Poll Results 

We've got a little bit of work for you guys to do just before we kick off today. We're going to run a few polls. Katie is doing the techy stuff for us. If she could bring up the first poll, that would be great. Katie?

"Will you maintain remote working in your organisation in some capacity after the COVID restrictions end?" If you could vote yes or no there. Wow, we've got a lot of voters here. I think we'll pause it there. Let's have a look to see what the result is. A resounding yes, 92% there. Seamus, are you surprised by that? I was pretty confident it would be high, but I'm surprised at just how high that is.

Seamus: Yeah, I agree, Christine. I didn't think it would be as high as 92%. But it goes to show you, I think, that that is the reality of the fact that remote working has worked for a lot of employers, and it's something that is hard to argue against when it's worked well for so long.

I do think that there will be this idea of a hybrid workplace, and I think that you're looking at maybe a 3/2 split along those lines, maybe three days from home and two days in the office, or maybe even four days at home and one day in the office. It just depends on the nature of the work that you're doing.

But I think also, as we do move back to normality, if I can put it that way, you might see some of the benefits of being in the office, that that might start to raise its head again for employers. It's just that aspect . . .

Christine: Oh, we seem to . . .

Seamus:. . . workplace and of teamwork, those sorts of things. It may be that in the short term, certainly, it could be as high as 92%, but we might see that fall away maybe within the next year or so, maybe down more to around 75% or so.

Christine: That's great. Let's have a wee look at our next poll question. "Is your organisation thinking of cutting the pay of those who decide to remain working remotely?" This is an interesting one. If you can click yes or no. Let's have a look at those results there, Katie.

That, I was not expecting. From the articles I've read, I suppose maybe more London-based articles, there was said two-thirds of medium and large firms were at least considering this. So I'm a bit shocked. What about you, Seamus?

Seamus: I've had a couple of clients that have contacted me about looking at changes to roles and whether the role that is being conducted at home is the same role, whether it warrants the same remuneration.

Certainly, there are interesting articles out there. I think when we get to talking about this in a bit more detail, we can maybe unfold it a bit more. But I've had a few questions about it. I suspect that a cautious employer would be worried about looking at changing terms and conditions of employees. But we may find further down the line that things may start to change. There may be restructures. There may be a reorganisation within businesses where . . . not necessarily a redundancy step, but maybe a look in relation to re-evaluating roles and remuneration.

Christine: Brilliant. Let's have a look at our third and final question, then. "Do you ask for proof when a worker says they were a close contact of COVID?" If everyone could press yes or no there. I think the votes are in there. Let's have a look at these results. A bit more of a balance there, with "no" being 57%. Do you get a lot of calls on this, Seamus? "Should we be asking for proof? What should we be asking for?" and that type of thing?

Seamus: I haven't had a massive amount of calls where employers have contacted me to say, "We're suspicious. What can we do?" But I have had some now certainly. I would get those calls generally in relation to maybe even sick leave periods and things like that as well.

I think, as time goes on, it will be that this aspect of COVID may very much start to look like any kind of regular period of sick leave. Certainly, whenever you read some of the articles and media out there, even the approach of government and advices in relation to how you should deal with someone that is absent from work as a result of COVID, I think that there is that sort of layering of trying to push things back to normality. Whether that works or not, and whether that is the realistic side of it, I think we'll have to wait to see.

But certainly, there are concerns among employers. There are the typical employees that employers are always suspicious about. Certainly, over the summer there, whenever people were asked to work certain shifts or whenever they put in holiday requests, they'd outright refuse. A number of businesses specifically in and around hospitality did see a difficult period of recruitment, not having enough staff, and are concerned about holidays. Suddenly, there were issues that were arising in relation to "Somebody that I was with, a close contact, a partner, a child has now tested positive and I have to self-isolate".

Those issues have arisen, but I think on a practical basis, there will be those employees that we're all very clear about and that we would be fairly happy with, that we would be saying, "They're not being untruthful here. They're not creating specific difficulties". I think that's probably why we're up at the "no" of 57%, because most employers know and trust their staff.

Christine: Yeah, that's the key there, isn't it? Brilliant. Thanks very much, everyone, for getting involved there, and, Seamus, for those insights.

The EU Whistleblowing Directive in the UK

Let's make a start, then. Let's move to our first question. "What are the implications of the EU Whistleblowing Directive in the UK?"

A wee bit of background. 16 December 2019, the EU passed the Whistleblower Protection Directive. That started a two-year deadline clock, which member states have to transpose the directives into their national legislation.

But why are we telling you this? Brexit has happened. We're out. We're not in the EU. We don't care anymore. Unfortunately not, because we have signed up to the rather snappily titled EU-UK Trade and Cooperation Agreement. That does tie us in to certain EU standards. And if we want to trade with the EU, we've got to comply with some of these standards.

Whistleblowing in the UK is fairly well covered. The EU have commented previously about how robust our legislation is. Here in Northern Island, we've got the Public Interest Disclosure Order. That was 1998. GB is the Public Interest Disclosure Act 1999. It is very comprehensive, but there are a few things that aren't covered by this new directive.

I suppose first things first, Seamus. Are the laws on whistleblowers in Northern Ireland the same as in the rest of GB?

Seamus: As you have said, they have the Act in the England, and then we have the equivalent Order here in Northern Ireland. So broadly speaking, the legislation is very similar. Both the Act and the Order made amendments through to the Employment Northern Ireland Order of 1996 in Northern Ireland, and obviously the Act in England.

The basics of what the legislation does is it seeks to provide protection for individuals who make a qualifying disclosure, and that's known as a whistleblowing action, provided that they do that in good faith to their employer or to a third party against . . . So it protects those that take those actions against any kind of detrimental action, including dismissal, for making the disclosure.

Whenever the legislation was brought in initially back in 1998, we did see a lot of employers move to introduce internal whistleblowing policies and controls. They encouraged the use of whistleblowing, so essentially encouraging employees to blow the whistle. You'll see a lot of the larger multinational firms and a lot of the financial institutions will all have very clear guidance, and they'll be encouraging employees to raise any issues that they have.

It certainly, Christine, follows very much in this movement that we have at the minute of this open and transparent workplace. We talked in the last webinar similarly about issues arising in relation to this #MeToo movement and the Black Lives Matter movement. It's pushing its way along for this workplace to be an area where employees feel safe, where they feel safe in raising concerns that they have, and a legitimate expectation that the employer will not brush those concerns under the carpet, but they will deal with them.

Interestingly, just from my own perspective, the whistleblowing cases are not something that come across my desk every day of the week. Certainly, I come across them from time to time. I have dealt with whistleblowing cases relating to employees' concerns in and around the actions of the employer, where they've raised matters internally and then they've maybe taken it on out to a regulator.

So, I've done some nursing home cases where disclosures have been made to our GIA and then the employee has felt that there have been deliberate actions, retaliations, by the employer upon them because of the fact that they have raised these concerns.

I've done some cases relating to financial institutions. That's always the big one to watch out for. And the FCA obviously have their own guidance, which goes above and beyond what's contained within the Order of the Act when it comes to PID, the expectations that they expect the financial institutions to take. And that's because there's obviously a larger risk of there being irregularities and people doing things they shouldn't be doing in those sorts of arenas, if we leave it like that. So I do come across it from time to time.

Employment Judge Murray in the tribunal has a specific interest in PID claims, and certainly she case manages . . . From my understanding and my knowledge, she case manages all of the cases that relate to the Public Interest Disclosure matters. It is a niche area. It is a complex area. And it's one that is certainly developing through this directive.

Christine: How does this new directive differ? What types of changes would the EU be looking for?

Seamus: The directive definitely moves the procedure for whistleblowing further and brings it right up to date. The issue that arises within the EU when it comes to whistleblowing is that some of the states are very good at it. Some of the states have policies and procedures and the protections are very strong for employees or workers that bring about whistleblowing . . . where they blow the whistle, I should say. Other states are very poor at it. What the EU is trying to do with this directive is to harmonise the legislative position across all of the member states. Just as a result of that inconsistent approach, they're looking to have a consistent process.

You're absolutely right. Everyone will be saying, "As a result of Brexit, we're not part of the EU any longer". But the reality is that the UK does an awful lot of business with its EU member state counterparts. The UK-EU Trade and Cooperation Agreement does require the UK to keep up-to-date in respect of EU levels of employment protection. That was part of the framework that was put together in respect of the withdrawal.

In Northern Ireland, we're probably in a very specific position because we will have our local businesses that will trade and have employees and offices based in the Republic of Ireland. It would then cause a difficulty for employers here in Northern Ireland to have whistleblowing policies, public interest disclosure policies and procedures that would have one set of rules for their Northern Irish employees and then another set for their ROI employees.

Christine: Yeah, separate.

Seamus: Yeah, exactly. I suspect there will have to be some sort of conformity. We were having a quick chat just before the webinar started, just in relation to that the UK is holding their firm line in relation to EU regulations and requirements and there being that sudden change at the end. We know that we're coming up . . . I think 17 December is the transposing date. There's no doubt there has been a delay for all member states as a result of COVID. Parliamentary business has been different. But the likes of Germany, I know they have their draft bill in place.

But not to digress. I suppose just want to get back to the situation. There's no doubt that the directive increases the obligation on employers when it comes to dealing with whistleblowers. I think the first point is it widens the scope of individuals who are afforded protection. Whenever the directive is brought into place, it includes self-employed contractors, volunteers, and non-executive directors. So it does go further in that sense.

Really, what it tries to do is prohibit any form of retaliation and introduces anti-retaliation measures. That includes fines and steps that can be taken against employers. Another one of those I'll get to later on. But the situation is not one that requires everybody to change their position by the end of the year if legislation is brought in. It will be a graduated approach. Anybody with more than 250 employees has to adhere straight away. If you've between 50 and 249 employees, it's extended out until implementation to December 2023.

But the main key areas and some of the interesting aspects of it are that it introduces standards for how regulators maintain confidentiality, how they provide feedback on follow-up and discussions, and particularly in relation to how they go about investigating those whistleblowing circumstances that are in place.

Christine: I think that that is a really key thing to bear in mind. I think where a lot of employers fall down and where whistleblowing cases are almost created is from the employers' reaction at the start. Someone blows the whistle, everybody panics. You get legal advice, you get more legal advice, you have meetings, you discuss. I think employers immediately recognise it's serious, but they panic and almost don't do anything.

I've done a few whistleblowing cases in my time, and in my experience, whistleblowers are often a very particular type of person. They're also very aware. It's common knowledge whistleblowers are treated poorly and bad things do happen to them in the workplace. There's almost that expectation. Then a delay by the employer builds that expectation. That then becomes part of the whistle blow itself, and the case is almost created and more serious then. So I think having a procedure to follow is a real step forward.

Like your flexible working requests, right? We've got this email. What do we do with it? What time scale do we have to work for? I think that will be really positive, and would hopefully reduce the number of cases that end up in tribunals.

Seamus: Yeah, definitely. From experience as well, and I'm sure you've come across it as well, there is an element that happens when somebody raises a concern or complaint about internal matters to their employer, or if they step outside and go to a third party, like a regulator or the police or anything like that. There's an element of shock that takes place with the hierarchy in the company. The defences do come up. I see that. The defences and the armour come up. The armour comes out and the company set about almost fighting any allegations that are made.

What this directive is, and the purpose of the PID legislation as well, is for that not to happen. It's about creating that environment for employees to feel that they can safely raise concerns that are taking place.

The idea is that there would be a strict timeframe put in place from whenever you lodge your complaint, that it is dealt with, that there's feedback provided. The feedback is to be provided within a period of three months. It'll be similar to if you look at the guidance in relation to outcomes for disciplinary meetings and things like that, and for grievances. It will depend on the nature and the specific circumstances of a complaint and how long it'll take to investigate it.

But specifically, the directive talks about the appointment of a whistleblowing champion in the office place. It talks about making sure that there are internal, but impartial and separate, processes and individuals that will investigate and give consideration to any complaints that are made.

And then it's about the feedback given to the employee. The employee, or the worker, has to feel that their complaint has been taken seriously, that there has been a proper and full investigation, and what the workings and ramifications of that are as well. So it's sort of joining everything up to make sure that there is a clear process.

It does also protect whistleblowers from potential liability. It talks about specifically in relation to breaches of confidence, defamation, data protection matters that arise. As I said, it does introduce penalties for employers that hinder or attempt to hinder reporting or a failure or lack to investigate.

Really interesting point, as well, is that it does provide specifically for employees that feel that they have no alternative if there has been detriment happening, that they are given legal support and are provided with legal aid in respect to any of their claims.

Probably one of the most interesting aspects for me is that the directive specifically talks about a role, and this would normally be an HR role, where an investigation takes place to make sure there hasn't been any detriment arising as a result of somebody raising a complaint or blowing the whistle.

The concerns would be in and around those specific matters relating to "Has there been a failure to promote, a failure to provide pay rises? Have you been overlooked for job roles?" There is a sort of audit that is conducted for those people that have blown the whistle to ensure that there hasn't been a detriment to them.

That's really important and interesting, I think, from what would arise from the directive, in that it's not just about dealing with it, having it dealt with, and closing the door on it. There has to be this further consideration given to it after the event also. Really interesting stuff.

Now, whether or not we'll see all of that introduced and whether or not it'll come our way is another matter. I think we have to wait to see. But that's what we're looking at.

Christine: From my point of view, the legal aid is a really good point. I spent some time at the Law Centre. We did get a lot of calls from whistleblowers. Their hands are tied effectively by the legal system. You know yourself that whistleblowing cases, as lawyers, take over your life. There is more paperwork than you've ever seen in your life. The files are huge. You can't get in your office door. They are huge, unwieldy cases and they require a lot of time and a lot of legal expertise. So to be just left flapping on your own is absolutely crazy.

When you consider that a lot of whistleblowers come from the public sector, healthcare, finances, it's all really important stuff for everybody. So I think, from my point of view, the legal aid aspect is a good one.

I'm just very mindful of the time here, Seamus. I'm going to very quickly move on to our next question, if that's all right.

Seamus: Sure.

Christine: And I should say if any listeners have any questions, do drop us a line. You can send a private message and it'll pop up here and I can put it to Seamus, if you've got any burning questions.

Pay Cuts for Remote Workers

Just looking at the next question, "Should workers who choose to remain working remotely have their pay cut?" We've got the Silicon Valley giants leading the charge here. Google, Twitter, Facebook, they're all tentatively saying they might cut the pay for people who decide to remain working at home.

As I mentioned earlier, the newspaper "City A.M." reported last month, just in August, that two-thirds of medium to large firms were considering cutting pay for remote workers. I would say this is controversial, to say the least. I cannot say that in any job interviews I've ever had anyone has ever asked me, "How are you getting here? Let's accommodate for that in your pay".

When I worked across in England, if I was working in Zone 1 in London, I got a London weighting. But to me, that was very much a different kettle of fish from my wages. And if I had moved to a different office within that organisation, the London weighting would have been removed. But that's very different to me than your actual wages being impacted.

Speaking for myself, I think working from home incurs expenses as well. My electricity bill is through the roof. We've got two of us working from home at the minute. Your heating bills go up in the winter, all of that.

So, it's unusual, but we've all been doing this for an excessive 18 months now, Seamus. Normally, I'd say if you've set up a practice whereby somebody is doing something for 18 months to two years, you may well have varied their contract. Do you think that's the case for working from home?

Seamus: It's something that we've touched on previously, but we have been working through the pandemic. I think that we are certainly at a crossroads at the minute in relation to where things are going to go to. I think September was always the planned date that we heard about a lot of employers wanting to have employees back into the office.

I think ultimately my view would be that, to date, you could, as an employer, certainly justify the reasons as to why it has been a temporary contractual variation, not a permanent one. But I think that we are at a crossroads now where potentially you will have employees coming forward and saying, "Look, what is my position? Am I going to be working from home in the future? Will it be a hybrid situation, or am I back into the office?"

I can, to an extent, Christine, understand where employers are coming from. They maybe feel that they're not getting the same value from their employees if they've been working from home. But yet, from an employee perspective, it isn't all roses at home either. It's difficult to manage that aspect working from home. There are definitely two sides to the coin.

My view would be, at the minute, that we probably are at a point where we need to see some sort of certainty going forward in respect to the future. If we get a surge in numbers, we might be back to where we were nine months ago. Who knows? There is certainly a fluid situation that is arising at the minute, but we have to be getting to a point at this point . . .

As you said, 18 months down the line, a lot of people are feeling very settled in the fact that they're working from home. They feel that they can do the job better at home. They feel they can concentrate better. They can dedicate more to their role because they don't have the travel. They can get up in the morning and don't have that lengthy travel period. They can dedicate more time to their work.

But up to date, I think we've been working through a pandemic. I think a temporary variation is probably where we've been at. But it can be different for other industries. It could be very much that this is something that has already become a full contractual variation.

I think from an employer point of view and from an HR perspective, you need to be getting things into writing. Whether that's amendment of contracts, whether it is letters issued to the staff to update their terms and conditions, I think that's definitely where we're coming to.

Christine: It's decision time, really. Are you going to be hybrid, or what's going to happen? My real concern for it is, is it going to create a two-tier system within organisations? We can obviously see people whom at-home working is going to be more attractive for. Women with children are going to want that. I have to say that I find it easier to pick my children up. Just nipping from home rather than from the office. And then you've also got disabled employees. They will be able to do a job that maybe potentially wasn't open to them before. You cut out the hassles of commuting when you've got maybe issues with your mobility. That's my concern.

Also, we were chatting about the gender pay gap. If women are the people working from home and businesses decide to cut the pay, is that going to make that worse? Will there be questions of "Is this work of equal value?" coming up?

I think the big pitfall, for me, for employers is just make sure you've got a really good reason if you're going to be cutting wages, and not just because you're working from home. You don't want to start alienating groups.

Seamus: Absolutely. To be clear about it, and not to tell anybody anything that they already know, but I do think that a unilateral decision by an employer to cut salary is a high-risk strategy. I think that you are likely that an employee is probably not going to agree to a pay cut on the basis that they are going to be thinking, "Well, I'm doing the exact same work that I am doing, except that I'm doing it from home. Where is the under-value here? Where's the entitlement to reduced salary or wages?"

I think employers are going to have a difficult time in relation to getting agreement in respect of any reduction in salary. If they unilaterally do that, they're looking potentially at claims of constructive unfair dismissal and discrimination claims.

I think that's a really important point in relation to the discrimination element, particularly in and around gender. If women are going to be more willing or wanting to work from home than men, there are all those issues arising in relation to, "Is there a detriment that will arise for women that are working from home? Will they be overlooked in respect of promotions because they're not in the office, they're not visible? Will they miss out on opportunities? Are you valued a better employee because you can enter the office rather than working from home?"

It's shaken this idea and belief that if you work from home, you've got your feet up for the day. I know that there are lots of tests and measures that can be done, if you have a timing system, if you have a project that you're working for, you're seeing it through to completion. There's evidence there that the work is being done.

But I think we've definitely moved a long tway. The pandemic has no doubt assisted and helped in that. But there are issues for, I think, employers that are simply looking to say, "Listen, employees working from home, I'm not getting the same value, I'm not getting the same work, I'm looking to cut salary". So lots of issues that arise.

The few other ones that came to me as well would be that if the employer does make a decision . . . I think where the risk is, Christine, as well is . . . almost the other side of it is for employees that want to work from home, they might be so keen to work from home that they will say to their employer, "I'll take a pay cut", or, "I'll negotiate with you in respect of my terms and conditions". That's going to leave those individuals vulnerable and it's going to set precedents as well.

There's that side as well, where people would be so keen to accommodate because they want to work from home that they might agree to changes of their terms and conditions. All that might be ultimately indirectly discriminatory.

I think there are those issues. But also, anybody that has their pay cut and thinks that they're doing the same job is going to be demoralised. Where's the motivation? Specifically, if you're saying, "There's an employee that is able to go into the office every day and they're being treated so much better, and I'm being treated in a detrimental way . . ." As you say, it's creating different rules for different people and this two-tier approach, and I do think there are issues around discrimination.

And also, potentially, can employers use it as a tool? "We're not giving you flexible working, but we'll give you working from home and we'll bargain with you then in relation to the terms and conditions relating to your employment".

So definitely difficulty. The main ones would be it's the loss of opportunity. It's the visibility. When it comes to training, it's promotion access, even to the work and to the clients. You might feel that you're not getting the ability to get the "good work", if I put it that way, just in my own terms. You're losing out on the good work. Then will that result in these claims for breach of contract, constructive dismissal? Unlawful deduction of wages claims is another one that's a potential. Then the whole aspect of discrimination.

It would be interesting, actually, to get the views of somebody maybe from the Equality Commission in relation to how they see it. At the minute, it works well and there's a value to it, but when things settle down and you get back into a normal way of working, are those individuals going to be at a disadvantage and a detriment?

Christine: I suppose what we're saying here is there's not really a safe way to reduce a worker's wages. That's the bottom line, really, isn't it? For employees, a lot of good has come from the pandemic and the ability to work remotely. But from an employer's point of view, a lot of work has come from the pandemic, to say the least. There's been a lot of stuff that we didn't really see coming. None of us has ever been locked up before. We didn't know what it would be like, and now all these things are spinning out from it. HR teams are just scratching their heads and extremely busy, aren't they?

Seamus: Yeah, absolutely. There's the whole issue that everybody is a bit burnt out and a bit . . . We're coming off the back of the summer going, "Where did it go?" It is difficult.

But look, it's about making sure that the balance is right for the business. The business has to be there to give the jobs, so there are reasonable arguments. But at the same time, the bigger concern for me would be where it is all going on a discriminative element. I think that that's going to be the hot topic.

Christine: Have you anything else to add on that one, Seamus, or should we move on to our last question?

Seamus: No. Happy to move on, Christine, and we'll deal with the last . . .

Christine: Yeah, no problem. This next question actually came in from a listener to a previous "Employment Law at 11". If you do have any questions you want Seamus or me to discuss, please don't be shy. Drop us a line.

The Ping-demic

We're talking about the "ping-demic": COVID, close contact, and data protection. The media coined the term "ping-demic". It describes basically an outbreak of people being absent from work because they have to isolate because of close contact. They've had close contact with someone with COVID.

I mean, from my perspective, I've had a couple of pings in one week, basically, off the back of my kids being at summer schemes and at nursery. I think this is something that's going to be pretty big for employers. Not necessarily workers being sick, but having to go out to pick up from nurseries and schools. The schools have gone back this week. Who knows what's really going to happen now that the kids are all mixing again?

First things first, Seamus. What proof can an employer ask for if a worker says they've been pinged?

Seamus: I think the employer is entitled to reasonable proof. Again, going back to the poll, I think we had 57% said that they don't look for proof. I think that does come down to the fact that employers know their staff. There's an element of trust that has built up. But all employers have those employees that they're always suspicious of. I think in those circumstances, it is reasonable.

I think you do need to take a consistent approach so that there isn't any sort of differential treatment happening. But at the same time, I think employers are entitled to reasonable proof of the requirement for the employee to self-isolate.

The regulations have changed. We're aware that from 16 August, if you're fully vaccinated, and fully vaccinated does mean that you're two weeks out from your second vaccination, that you don't need to self-isolate any longer. You can still attend work. But if you have symptoms or you have a positive test, obviously you still have to self-isolate.

We did deal with the aspect of people that said that they had symptoms and needed to stay at home, and employers were asking for sight and proof of the email or text message that you received to say that you had a positive test. I think employers are entitled to reasonable proof.

You need to be careful about not making distinctions between people. Better to have a consistent approach across the board. But I think it's fair for employers to say, "Look, if you have to self-isolate, can you provide us with evidence of that?"

One of the things I picked up on was that government have been very clear that if somebody is self-isolating, they're entitled to statutory sick pay, in the same way that an employer would be entitled to proof of sickness in terms of justifying the statutory sick pay. I know that you can obviously provide your self-cert for the first seven days. But I think the employer is entitled to that information and I don't think that that's unreasonable.

Christine: When it starts to get more complicated, I suppose, is when it's one step removed from your employee, so somebody that they know or in their household has been asked to isolate. I would draw parallels to pregnancy. When somebody is requesting paternity leave, they provide a copy of their partner's MAT B1 form, and that's the proof that their employer gets. I suppose it's confidential medical information being requested by somebody who's not your direct employer. That's when it starts to get a bit more of a grey area, Seamus.

Seamus: Absolutely.

Christine: What do employers actually do about that?

Seamus: The example of "I have spent an evening with my brother, and my brother has tested positive" and I'm notified of that, and I say that I have to self-isolate in relation to it, would then I have to provide evidence of my brother's notification that he's tested positive, or something along those lines? That can be difficult to obtain.

My view would be that, again, where you're suspicious, you're entitled to ask for evidence. That doesn't necessarily have to be evidential documentation. It could be that you're contacting the employee and having a discussion with them on the phone, that you've put a checklist together in relation to those matters, and that you're checking to make sure that the employee is meeting your criteria where they have to self-isolate. That should obviously be formed through the guidance that we get government and BHA and the like. But there should still be that checks and balances aspect in relation to making sure that the employee does need to self-isolate.

And also, those questions are important from the other side of it as well. If you have a number of vulnerable employees, maybe CV employees, you have to risk assess. Do you want those individuals coming into work where they're going to pose a risk and potentially, for the sake of one employee coming into work, put 12 employees out where you get to a point where you have to close your business? I think you have to balance it on both sides.

But look, it certainly is more of a complex area whenever you're not dealing specifically with the employee's circumstances, where they're impacted by a third party. Whether you're entitled to evidence and documentation from the third party, I think that's a bit of a stretch. I think you have to set up your own procedure internally and make sure that you are satisfied that the circumstances are appropriate.

Christine: Again, just that consistent approach, so not just somebody that you think is a bit of a wrong'un. It's got to be consistent across all of your employees.

We've just got a question here from a listener, Seamus. If an employee chooses not to get both vaccines, and they then have to self-isolate due to a close contact, can a company withhold enhanced company sick pay as it was the employee's choice that contributed to them being off work, basically?

Seamus: I did come across that just in some materials that I was reading. I think it was CIPD. Their recommendation was that employers do not withhold company sick pay where it's in the contract that if they're sick, they get contractual sick pay above and beyond statutory sick pay, and that they pay employees as they would normally. You'd need to be very careful in relation to an employee's decision not to take the vaccine. That could be for specific medical reasons or religious beliefs or something along those lines. Then you could end up with a potential discrimination case.

So as much as it is frustrating, I think where there is that encouragement for people to get their vaccine, if we leave that to the government to do that rather than say, "Look, if you don't get your vaccine and you're sick, you're only going to get your SSP". I think that creates some difficulties.

Christine: It's starting to get into the whole "no jab, no job" debate and different tiers for people who are doing what you approve of and what you don't approve of, etc. It's taking away people's freedom of choice.

Let me see any further questions. Is there anything else you want to add to that, Seamus? I'm just very aware of the time ticking on here.

Seamus: No. The only other aspect is there are some questions in and around the retention of information and how long employers should store that information. There's good guidance there on the ICO website for anybody that wants to have a look at it.

Ultimately, I think as long as there's the justification to ask the question and to retain the information . . . From a track-and-trace perspective and also even from the fact if you were to put some of those employees onto furlough, you'd need to keep the information to confirm if you get a tax inspection that they were sick and that this was the reason for their absence. I think as long as it's justified, you can retain the information. But don't retain it for any longer than you need it.

Christine: Yes, the old "how long is a piece of string" argument. Brilliant. Thanks very much for that, Seamus.

Seamus: No worries.

Christine: We've dealt with all the listeners' questions that have come in there, so I think that brings us to the end, really.

A few things just to bring to your attention. Obviously, you can drop myself or Seamus a line. There are our details there. If you do have any questions that you want us to deal with in the coming months, please drop them across to us and we'll take a look at them and see what we can do.

If you were interested in our discussion there about the Whistleblowing Directive, we've got a special offer for all the webinar attendees today: 50% off the Legal-Island eLearning Course on "Whistleblowing Awareness in the Workplace". It's specifically designed for Northern Irish law and it's designed to complement your own organisation's internal policies. Please do check that out. There will be more details in the follow-up email that you'll receive after this webinar.

Of course, another reminder just about the Annual Review on 10 and 11 November. The early bird ends in two weeks' time, Friday 17 September. So grab one of those early bird tickets while you can.

All that remains to say is thank you very much to Seamus for the insights today. Thank you very much to Katie for all her technical know-how and keeping it stress-free for myself and Seamus. And thank you all for listening. I'll hopefully see you again on 1 October for our next "Employment Law at 11". Thanks very much. Bye now.