Covid-19: The Most Recent Tribunal Cases
There is no doubt that there is a rise in tribunal cases, recent cases include the refusal of returning to the office in fear of catching the virus. It is important as an employer to understand what employees are entitled to and understanding that there is still a fear surrounding Covid-19
Two of the most recent tribunal cases, Moore v Ecoscape UK Ltd and Lewis v The Benriach Distillery Company Limited discuss the claims and outline the decision that the employment tribunal (ET) came to.
Moore v Ecoscape UK Ltd
Ecoscape required Moore to return to working from the office. Moore sought to rely on section one hundred of the Employment Rights Act 1996, to which a dismissal is automatically unfair where an employee believes that they are in ‘serious and imminent danger’ if they leave or refuse to attend the workplace while the danger persists.
Ecoscape conducted various Covid risk assessments and adjusted the office and sanitisation procedures. They also provided Moore with a separate working space with her own equipment to address the concerns that she had. She was still reluctant to return and asked if she could work from home. Based on the nature of her work, the employer refused this request as she deals with deliveries and customers. She raised a grievance and a grievance appeal, but both were unsuccessful. She resigned and brought a claim for constructive unfair dismissal.
The ET found that the claimant’s Covid concerns related to a general fear about leaving the home and not about the employer’s workplace. She failed to involve herself with the discussions with Ecoscape about the measures they implemented and refused to visit the workplace to review those measures.
The ET concluded that Ecoscape had taken appropriate steps to accommodate the concerns of the claimant and that they failed to explore any compromises proposed by Ecoscape. In a result the claimant’s claim failed.
Lewis v The Benriach Distillery Company Limited
Mr Lewis was a forklift driver for a whisky distillery. He served 23 years of good service and was dismissed without notice for attending work when his son informed him of having symptoms of Covid-19 and had booked a Covid test. Lewis did not believe his son’s symptoms (a cough and loss of smell) were genuine. He thought his son was faking his symptoms so he could get off work.
At the time the Scottish government’s guidance required anyone who lived with someone displaying symptoms to isolate. His sons test came back positive the next day and Lewis was dismissed for gross misconduct.
An ET found that Lewis’ dismissal was unfair. There was nothing in the government’s guidance that would require someone to self-isolate if Lewis genuinely believed that his son was not in fact displaying Covid symptoms.
While assessing the case, the employer should have taken into consideration:
his 23 years of good service
his record of compliance with Covid guidance; and
that there was no advantage to him in attending work or disadvantage in not attending work – he would be paid in either case.
The ET found that there was some contributory fault from Lewis so reduced his financial awards by 25%.
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The Omicron Variant & The Workplace
Remote Working: What are the risks? How to Manage them.
It is evident that remote working, whether it be fully remote or part of a hybrid working model, is a preferred choice for many employees. For employers, remote working comes with multiple risks that must be managed carefully.
What are these risks?
Employee Isolation- When working from home, it is easy to sit at the desk for the entire day and not take a break. This can lead to potential burnout. In the office it is easy to take a five-minute break for a cup of tea or just a stretch. Furthermore, employees may feel that they are less capable of having access to the appropriate support from colleagues or management. It is important the employees are aware that the same support is available to them whether they are working in the office or at home.
Data protection breaches- There is no doubt that protecting employees, contacts and customers personal data and confidentiality when they are all working from a central location is a lot easier to manage. Employees who work remotely and live in shared accommodation or use public Wi-Fi networks for work can risk data being seen and obtained by third parties.
Overlooking health and safety responsibilities- It is important that employers do not forget that they are obliged to protect the health and safety of their employees at work, whether they work remotely or at the office.
How to Manage the Risks
Promote collaboration - Try have regular Zoom/Team meetings to stay connected with colleagues. Here, employees can share their ideas with one another and an easy way to stay in contact with each other.
Raise awareness of employees’ data protection obligations - Employers should amend their data protection policy to suit the different employee circumstances. E.g., how to deal with storing documents safely, how they should be destroyed, and who has access to them. Furthermore, employers should provide training sessions on data compliance to ensure that they are made aware of their responsibilities whether they are working from home or the office.
Carry out health and safety assessments- Employers should update their health and safety policies so that they risk assess every employee’s remote working place. They should consider how safe the employee’s work set up is and how they can help them.
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Case Law: Discriminatory Dismissal
In the recent case of Stott v Ralli Ltd the Employment Appeal Tribunal ruled that the dismissal of an employee was not an act of discrimination arising from disability. In this case the Claimant was employed as a paralegal by Ralli Ltd for approximately three months. Ms Stott was dismissed by her employer due to poor performance and was paid lieu in notice. Following the dismissal meeting, the Claimant raised a grievance against Ralli Ltd and stated that Ralli had been informed of her mental health issues in several communications. At the grievance meeting, she stated that her disabilities were mental health issues, anxiety, depression and a heart condition which she claimed had affected her performance.
Ralli rejected her grievance, stating that they had not been informed about her disabilities. Her appeal against the rejection was also unsuccessful. The Claimant then went on to bring a claim in the Employment Tribunal for discrimination arising from disability in relation to her dismissal. Ralli accepted that the Claimant had a mental impairment amounting to a disability at the time of her dismissal but argued that it had not been known about at the time and that it had only been raised after her dismissal.
The Employment Tribunal dismissed Ms Stott's claim, finding that the Claimant had been dismissed for poor performance and that the Claimant had not disclosed her impairment to Ralli prior to her dismissal. Had the Claimant pleaded her claim more widely to include post-dismissal discrimination, relating to the grievance process and subsequent treatment (when the employer had knowledge of her disability) the outcome may have been different.
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Employer Update: Statutory Sick Pay Rebate Scheme
Following on from our previous blog post where we discussed 'The Omicron Variant & The Workplace', it is evident that many employers and employees are still being hugely affected by COVID-19 and as such the topic of the Sick Pay Rebate Scheme has re-appeared. It has been announced that the Sick Pay Rebate Scheme will be reintroduced across the UK with effect from the 14th of January 2022.
The Scheme allows employers with fewer than 250 employees to recover up to two weeks' Statutory Sick Pay for each employee who is unable to work due to Covid-19 in relation to days of absence after the 20th of December 2021 (even if the period of absence began on or prior to this date). The Scheme also extends to employees who are absent due to a requirement to self-isolate. Employers must submit any relevant claims by no later than 24 March 2022. Employers can make more than one claim per employee, but they cannot claim for more than 2 weeks in total.
The online service employers will use to claim back Statutory Sick Pay (SSP) is now available.
Employers are reminded that they must keep the following records for 3 years after the date they receive payment for their claim:
- the dates the employee was off sick
- which of those dates were qualifying days
- the reason they said they were off work – if they had symptoms, someone they lived with had symptoms or they were shielding
- the employee’s National Insurance number
Employers can choose how they keep records of their employees’ sickness absence but it is important these records are kept as the HMRC may need to see these records if a dispute was to arise in relation to over payment of SSP.
Employers will also need to print or save their state aid declaration (from their claim summary) and keep this until the 31st of December 2024.
Other Important Points for Employers to Note:
- It remains a criminal offence for an employer to knowingly allow a worker to attend the workplace when they are required to be self-isolating and as such it is critical that employers understand these new rules and review their policies and procedures accordingly.
- Employers are still under a duty of care to provide a safe system of work for their employees and this includes employees who are clinically vulnerable to Covid-19.
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The Omicron Variant & The Workplace
Given the recent number of omicron cases in the United Kingdom, the Government has imposed new measures to help combat this new variant but what does this mean for the employer and the workplace?
- Employers should continue to review and, if necessary, update their COVID-19 risk assessment in light of the new variant. For example, consider whether in-person meetings should be reduced or even scrapped for the time being to limit the risk of spread and to protect the most vulnerable members of staff.
- They should continue to encourage their staff to get vaccinated and extend this encouragement to boosters also.
- Any existing vaccination policy should be updated to take into account vaccine boosters.
- Consider making the wearing of face masks compulsory in communal areas if this is not already the case.
- Employers should consider relaxing any requirements for staff to attend the workplace. This would be conducted as part of updating the workplace risk assessment. Although the Government is not explicitly advising people to work from home, they are placing the burden on employers to consider whether this is the appropriate approach.
- Employers should consider putting contingency plans in place to deal with the possibility of increased absences as a result of staff being required to self-isolate, either because they have tested positive for coronavirus or they have been instructed to isolate because they have been identified as a close contact of someone who has tested positive to the Omicron variant. They must also consider
how any unexpected absences will be dealt with as a result of staff having to self-isolate upon return from any holiday abroad during the festive period. This should be communicated to staff as soon as possible to avoid/manage any possible complaints.
And lastly the big question for employers is can Christmas parties go ahead?
Although the Prime Minister, Boris Johnson, has said that the Government does not want Christmas parties to be cancelled because of the Omicron variant, there have been reports of pubs, restaurants and hotels across the UK receiving cancellations of bookings for Christmas parties and events amid fears about the variant.
It is important to realise that staff may be nervous about attending such events and therefore it is advisable for employers to communicate with heir employees as to how they feel about such an event and react accordingly. If Christmas parties are to go ahead, employers should consider additional safety measures, such as sight of a negative lateral flow test result before entry.
The key message to employers is to watch developments closely, follow government guidance and to be ready to react quickly in order to adapt to any further measures introduced by the Government in response to the Omicron variant.
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Proposed Family Leave Changes for 2022
The upcoming new year brings with it many changes/ updates to legislation. The Department for Work and Pensions (DWP) has published its proposed Pension and Benefit Rates for the year 2022/2023. The rates show increases to statutory benefits such as sick pay, maternity pay, paternity pay, shared parental pay and adoption pay which will be confirmed by secondary legislation.
From the 11th of April 2022, the following rates are expected to apply:
- The weekly rate of statutory sick pay (SSP) will increase to £99.35
- The weekly rate of statutory maternity pay (SMP) and maternity allowance will increase to £156.66
- The weekly rate of statutory paternity pay (SPP) will increase to £156.66
- The weekly rate of statutory shared parental pay (ShPP) will increase to £156.66
- The weekly rate of statutory adoption pay (SAP) will increase to £156.66
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The Budget 2021: NLW & NMW
The Chancellor of the Exchequer announced new National Living Wage (NLW) and National Minimum Wage (NMW) details in line with those recommended by The Low Pay Commission (LPC) and these new rates will take effect from 1st April 2022.
The National Living Wage is for those aged 23 and over and the National Minimum Wage is for those of at least school leaving age.
The National Living Wage, the statutory minimum for workers aged 23 and over, will increase by 6.6% to £9.50 per hour.
An employee's age and if they are an apprentice will determine the rate they will receive. These rates can be viewed below:
Don't Be Afraid to Talk About Menopause in the Workplace
As it currently stands, under the Equality Act 2010, menopause discrimination is largely covered under three protected characteristics: age, sex and disability discrimination. If an employee is treated unfairly due to menopause, this may amount to discrimination because, for example, of their sex and/or disability, and/or their age.
Menopause Awareness Month has shone some light on the impact that the menopause can have in the workplace. And shockingly according to a recent survey, fewer than 50% of companies provide any support for perimenopausal or menopausal staff. The menopause affects us all at work. Even if we do not experience menopausal symptoms ourselves, we will inevitably have colleagues who do.
While the menopause usually occurs between the ages of 45 and 55, the NHS estimates that around one in 100 affected people will experience a premature menopause before the age of 40. Menopause can be also triggered by medical or surgical interventions, such as some cancer treatments or a hysterectomy, and can therefore affect employees of all ages.
It is estimated that three out of four people going through the perimenopause or menopause experience symptoms that can last several years. There are over 30 recognised symptoms of the perimenopause and menopause, with a number of these relating to mental health issues such as depression, anxiety, panic attacks, mood swings and problems with memory and confidence. It is unsurprising, therefore, that menopause can have a significant impact on an individual’s performance at work.
The ongoing stigma and lack of education around menopause can lead to bullying and harassment in the workplace. Many employees report that they do not talk about their menopause at work because they feel embarrassed, are concerned they will not be supported, will be treated less favourably or viewed as less capable than before. This can create or exacerbate workplace issues and evidence suggests that a number of those experiencing the menopause or perimenopause leave the workplace altogether.
What is clear is that discrimination and harassment at work can worsen menopausal symptoms of stress and anxiety. Similarly, negative or discriminatory attitudes can make it less likely that individuals from these groups will be open about their status, any difficulties they are experiencing, or seek help.
Given that every person’s experience of the menopause is different, there is no exhaustive list of reasonable adjustments that could be made to the workplace environment, and employers will always need to consult with the individual employee and seek occupational health or other medical evidence where appropriate.
Adjustments could include the following:
- increased ventilation
- better access to toilet/washing facilities
- adjusting working time rules/break times
relaxing uniform policies
adjusting inflexible policies which can penalise those experiencing symptoms (eg absence management or performance-related targets).
So how can employers go about improving the workplace for employees who are undergoing the menopause, particularly when many employees are not willing to disclose details of the condition and the symptoms they are experiencing?
Firstly, employers should consider implementing a workplace policy that covers issues such as flexible working, sickness and performance management, and identifying sources of support.
Training is also important to educate, increase awareness and empower managers to feel confident in talking to and supporting employees who are experiencing symptoms of menopause. Management should consider buddying and mentoring schemes and/or established points of contact - perhaps utilising staff who have been through the menopause - to provide encouragement and support.
All of these steps should encourage employees to feel more comfortable about being open about their symptoms, and to continue to reach their potential by discussing what adjustments they may need.
Bright Contracts has a Menopause Policy available in the 'Terms & Conditions' section of the company handbook. To view a sample of the policy you can download a trial version of the software here.
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Don't Get Caught Out: Discrimination Case Law
We are all aware of how it is against the law to treat someone less favourably due to their gender, race, religion, age etc, but this does not mean that discrimination does not still occur in the workplace. In a recent case, the Employment Tribunal (ET) ruled in favour of an employee who was discriminated against when she was dismissed while on maternity leave for refusing to accept a lesser role with a £20,000 pay cut.
The claimant claimed that when she informed her colleagues of her pregnancy, she was asked how the pregnancy would affect her long-term career goals and the all-male executive team subjected her to "offensive and humiliating" comments, announcing they should "put a wager" on how much weight she would gain during her pregnancy.
During her maternity leave the company went through a restructure which included the dismissal of several executives. The new chief executive excluded the claimant in the restructuring and the claimant discovered from HR that she was no longer on the company email distribution lists or on the new organisational chart and was at risk of redundancy. In response, the company sought to offer her a revised job description for the director of marketing role which was a lower-level role than marketing director and also involved a £20,000 pay reduction. The claimant refused the role and was subsequently made redundant by the company.
The ET upheld her claims of unfair dismissal and maternity discrimination as there was a stark difference in the treatment the claimant received compared to her male colleagues, with the only explanation being due to the fact that she was on maternity leave. The tribunal found that not only was the job description offered to the claimant copied from other websites but also that no such role existed and the retained executives did not have their salaries reduced in order to stay with the company.
Although, a claim of harassment on grounds of pregnancy and maternity cannot be brought under the Equality Act, the ET concluded that the claimant was subjected to a “humiliating and degrading environment” when her colleagues placed a bet on how much weight she would gain during her pregnancy and that this amounted to direct discrimination and the ET awarded her £25,000 plus £5,000 in interest for injury to feelings.
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Let's Talk About Family Leave
With the covid-19 lockdowns having made the adoption process more difficult and limiting the capability of social services to identify vulnerable cases, this has resulted in the number of adoptions in England alone having fallen by one-third over the past few years. This blog post rounds up the key employment law rights and entitlements that apply to adoptive parents:
Adoption, Paternity & Shared Parental Leave
When adopting, the couple must designate one parent as the (primary) adopter for the purposes of leave and pay entitlements. The adopter has an entitlement of to up to 52 weeks' statutory adoption leave which like maternity leave is a day-one right meaning there is no longer any qualifying period of service to avail of this leave. The other adopter is entitled to take statutory paternity leave and both adopters may be eligible to opt in to the shared parental leave scheme if they meet the qualifying conditions. The (primary) adopter must inform their employer of their intention to avail of their adoption leave in order to opt in to the shared parental leave scheme. If someone is adopting without a second parent, they are entitled to statutory adoption leave. During adoption leave, an employee is entitled to all terms and conditions of employment except terms that are related to pay.
Adoption leave can begin on the date a child is placed with the adopter or within 14 days before the date on which the child is expected to be placed. In the case of adopting more than one child as part of the same adoption arrangement, the employee cannot claim multiple adoption pay entitlements.
Adoption leave and pay is available only to parents who adopt through an adoption agency. Employees who adopt a child on a "private" basis are not eligible for adoption leave or pay, or are step-parents who adopt their step-children.
Surrogacy
Adoption leave and pay rights have also been extended to parents who enter into qualifying surrogacy arrangements. To qualify, parents must be eligible for a parental order in respect of the child. Parental order means that, along with meeting other conditions, one of the parents must have provided the genetic material that was used to create the embryo.
Dependants & Parental Leave
Dependant leave is available for an employee who needs to take time off work in an emergency or unexpected situation, in order to help a dependant, which, includes an adoptive child. An adoptive parent who has served at their company for over one year may also take parental leave to look after their child up to their 18th birthday. This entitlement is to a maximum of 18 weeks unpaid leave per child. The employee may take up to four weeks per year and it must be in blocks of one week at a time.
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