Employment Law Review – July 2022

Welcome to our latest update, which is split into two sections: case updates and points of interest.

CASE UPDATE

No finding of unfair dismissal where an employee refused to return to work due to Covid-19 – Rodgers v Leeds Laser Cutting

More certainty for employers where an employee brings a claim under S100 Employment Rights Act 1998 concerning circumstances of danger.

Our review wouldn’t be complete without a reference to COVID!

Mr Rodgers claimed that he was unfairly dismissed following his refusal to return to his workplace because of his perceived risk of Covid-19 to his vulnerable children. He brought a claim under s100(1)(d) and (e) of the Employment Rights Act.

These provisions provide protection against employees where they reasonably believe there is a serious and imminent danger. S100(1)(d) relates to an employee exercising their right to leave or refuse to return to the workplace in such circumstances and s100(1)(e) relates to an employee taking steps to protect themselves (or others) from the danger.

The Tribunal rejected Mr Rodgers’ claim on the basis that he did not have a reasonable fear that there was a serious and imminent danger, and that his fear was about the virus in general and not about the conditions in his former workplace. Mr Rodgers appealed.

Upon assessment of the legislation, the Employment Appeal Tribunal (“EAT”) held that s100(1)(e) (taking appropriate steps to protect himself) did not apply to his refusal to return to the workplace. When assessing his claim under (d), the EAT broke it down into its elements, being: (1) there were circumstances of danger; (2) which the employee believed were serious and imminent;  (3) which the belief was reasonable; (4) the employee could not be reasonably have been expected to avert the danger; (5) the employee left or refused to return to his place of work; and (6) was dismissed because of it.

The EAT agreed that he refused to return because of a fear about Covid-19; he even vowed to stay at home until the lockdown was over. However, he also accepted that measures taken by Leeds Laser Cutting meant that the workplace was safer than the general community (although not safer than his house).

The EAT rejected the appeal, holding that whilst the legislation could apply to circumstances outside of the workplace, Mr Rodgers decision to not return, regardless of what the situation at work was, could not be the fault of the employer.

This will be a welcome decision for employers as it provides clarity as to when the s100 ERA protection applies.

Dealing with gender critical beliefs at work – Forstater v CGD Europe and Mackereth v DWP

Employers need to take great care in dealing with cases where an employee expresses gender critical beliefs.

There have been a couple of important cases in this area.

In Mackereth v DWP, Dr Mackereth’s beliefs included that a person cannot change their sex / gender at will and these beliefs were held to be protected, as was his belief in transgenderism. He claimed he was treated detrimentally on account of his protected beliefs.

The EAT upheld the Tribunal’s decision that the DWP did not discriminate against him when he refused to refer to transgender clients by their preferred pronoun. His claim failed as he was not being put under any pressure to renounce his beliefs and he was simply being asked to clarify his position. The DWP was entitled to ask him to use the preferred pronouns of clients and it could justify this as being a proportionate means of achieving a legitimate aim.

In the case of Forstater v CGD Europe, the Claimant asserted she has been discriminated against as she had not been offered employment and her contract as a Fellow had not been renewed due to her gender critical beliefs. Her beliefs include that biological sex is real, immutable, binary and important. This belief set is in opposition to gender identity theory.

The Tribunal decided that she was subject to unlawful discrimination on the basis of her gender critical beliefs and the judgment therefore establishes that gender critical beliefs can be protected in the workplace.

The above cases demonstrate that employers need to take great care if they are going to take a side, or be perceived as doing so, or they limit expression of protected characteristics. This is a complicated area, and it would be advisable to seek advice if you find yourself dealing with a situation like this.

Without Prejudice rule reaffirmed by EAT – Swiss Re Corporate Solutions Ltd v Sommer –

EAT upholds the rule that without prejudice correspondence should not be admissible in evidence.

In this matter, the Respondent sought an order than an earlier settlement offer from their solicitor to the Claimant should not be admitted as evidence on the basis that it was written “without prejudice”. The letter contained a number of allegations against Mrs Sommer, stated it would be difficult for her to find work in her field and ended the letter with a settlement offer of £37,000. In the initial hearing, the Employment Tribunal held that the letter was admissible as evidence on the basis that it constituted “unambiguous impropriety”.

The EAT disagreed and held that the letter was inadmissible, despite the allegations, which the EAT described as “sailing close to the wind”, and that it did not amount to unambiguous impropriety. The threats in the letter were not sufficient to allow the disregard of the general rule about without prejudice communications.

This is good news for employers; however, it serves as a warning to tread carefully when seeking to negotiate settlement agreements with employees and, if in doubt as to the contents of a letter, to seek advice.

“Fire and rehire”: Court of Appeal overturns decision in Tesco v Usdaw

In our last update we reported the above case where the High Court granted an injunction to prevent Tesco from firing and rehiring employees in order to avoid a permanent contractual entitlement to enhanced pay. This decision was based on unusual facts and injunctions of this nature are rarely seen.

The case was appealed, and the Court of Appeal overturned the previous decision to grant an injunction. It reaffirmed that Tesco could terminate the contracts in the normal way and offer reengagement on new terms.

Employers can be reassured by the decision. However, it should be noted that injunctions are not impossible in such situation (although they will be rare). The other significant risk is for claims for unfair dismissal and it would be advisable to consult with us if you are considering termination and reengagement.

Calling a colleague bald amounted to sex related harassment – Finn v The British Bung Manufacturing Company Ltd and another

Insulting comments inherently related to sex can amount to sex related harassment, even if it only occurs once.

In this case the tribunal found that referring to a male colleague as bald in an obscenity laden exchange was harassment based on the protected characteristic of sex.

Harassment is prohibited under the Equality Act 2010. It makes it unlawful to:

• engage in unwanted conduct related to a relevant protected characteristic (including sex); and
• which has the purpose or effect of violating another person’s dignity or which creates an intimidating, hostile, degrading, humiliating or offensive environment for them.

The Claimant in this matter was an electrician who worked for British Bung. During an argument with his supervisor, he was called bald, old and other things. The Claimant raised a complaint of harassment. Whilst the tribunal accepted that strong language was common in such a workplace, the tribunal had to determine if the insults constituted harassment.

When assessing if the conduct is unwanted, it must be viewed subjectively from the employee’s viewpoint. Harassment does not need to be sustained; a one-time incident could amount to harassment. The tribunal concluded that the conduct was unwanted, as the supervisor crossed a line when making “remarks personal to the Claimant about his appearance”.

The tribunal also found that the supervisor intended to threaten the claimant and concluded that the purpose of his conduct was to create an intimidating, hostile, degrading, humiliating or offensive environment for the employee.

The Tribunal then had to determine whether or not there was a connection between the use of the word ‘bald’ and the claimant being male. The Tribunal concluded that it was “much more likely that a person on the receiving end of a remark such as that made by the supervisor would be male“.

On this basis, the claimant was successful.

The relationship between voluntary redundancy and unfair dismissal – White v HC-One Oval Ltd

Employees taking voluntary redundancy may still be able to claim unfair dismissal, particularly where the reason for the redundancy and the process is unfair.

HC-One Oval Ltd announced to staff that it was reducing the number of employees undertaking reception and administrative work. An employee, Ms White, a part time receptionist was initially provisionally selected for redundancy. She ultimately requested voluntary redundancy which was accepted by the company. She was one of two part-time receptionists that were made redundant.

After the redundancy, Ms White complained that the process was not genuine as HC-One had recruited a fulltime receptionist before the two part-time receptionists were dismissed. HC-One argued that she had been fairly dismissed for redundancy at her own request and her claim should be struck out.

The tribunal struck out the claim. The EAT found that the tribunal should have considered whether the reason for redundancy and the process were fair. The tribunal will hear the case again, to be considered by a different judge.

Employers should therefore be aware that a request for voluntary redundancy does not prevent employees from bringing a successful unfair dismissal claim.

Scottish Tribunal rules long-Covid is a disability

A Scottish Employment Tribunal rules that long-covid can be classed as a disability – but not every case will qualify.

A Scottish Employment Tribunal has held that an employee suffering from symptoms of long-covid was disabled for the purposes of the Equality Act 2010.

The Equality Act 2010 defines a disability as a physical or mental impairment that has a substantial and long-term negative effect on their ability to carry out day to day activities.

Mr Burke was a caretaker who had worked for a charity for around 20 years. In November 2020, he contracted covid. Although he suffered with it mildly whilst presenting as positive, he later suffered from symptoms of extreme fatigue, sleep disruption, loss of appetite, joint pain, anxiety and headaches, with the symptoms continuing many months after the initial contraction. The symptoms affected his ability to carry out daily activities such as chores, self-care and shopping.

Mr Burke was absent from work for a number of months and provided various fit notes to his employer. In August 2021 he was dismissed by his employer on the grounds of ill-health as a result of his continuing absence.

Upon hearing all of the evidence, the Tribunal found that the claimant’s long-covid amounted to a disability and was therefore able to bring a case of disability discrimination against his former employer.

This does not mean that long-covid will automatically amount to a disability – this will turn on the facts of each case. However, employer should be mindful that it could amount to a disability.

Dismissals in the event of long-term ill health – Department for Work and Pensions v Boyers

An employer’s failure to give an employee a reasonable trial in a role at a different location before dismissing her resulted in a successful claim for disability discrimination.

In this matter, Mrs Boyers was disabled under the Equality Act 2010, as she suffered with migraines, depression work related stress and panic attacks. Her conditions arose from what she perceived as workplace bullying and harassment, and a lack of support from management. This combination led to her being absent from work for the best part of a year.

Mrs Boyers was not willing to return to the original place of work but was open to transferring to a different location. This was trialled for approximately 6 weeks, initially on a phased return basis. However, Mrs Boyers’ managers had decided that the trial had been unsuccessful and ordered her to return to work at her original location. Mrs Boyers was again signed off sick and later dismissed.

The Employment Tribunal found that her dismissal was unfavourable treatment due because of something arising out of her disability (her absence) and her employer could not justify it. Therefore her disability discrimination claim succeeded.

Mrs Boyers’ employer unsuccessfully appealed to the EAT. The EAT agreed that the employer may have had legitimate aims for dismissing Mrs Boyes, such as protecting public funds, however the dismissal was a not proportionate to achieving those aims and therefore could not be justified.

The EAT considered the process that led to the dismissal when considering the issue of proportionality. In its assessment, the EAT had identified several factors which meant the work trial was not reasonable including the employer did not provide weekly feedback as promised, the trial was abruptly ended and there were problems with IT equipment and training. The employer was unable to demonstrate whether a proper evaluation had taken place of the trial and therefore could not show that the dismissal was a proportionate means of achieving a legitimate aim. If the work trial had been properly conducted and assessed, Mrs Boyes may have remained in employment.

POINTS OF INTEREST

Changes to Fit Notes

Digital fit notes were introduced from 6 April 2022 and the list of professionals who can issue fit notes expanded on 1 July 2022.

In the recent months, there have been a number of changes to fit notes to modernise the process for issuing and certifying fit notes which employers should be aware of.

From 6 April 2022, digital fit notes came into effect. This means that fit notes no longer require a ‘wet ink’ signature by the person issuing it. A fit note can now be issued and received digitally.

As of 1 July 2022, the list of professions that can issue fit notes expanded. A present, only doctors can issue fit notes, however from 1 July the following persons will be able to issue fit notes:

• Nurses
• Occupational therapists
• Pharmacists
• Physiotherapists

Employers should review and update their sickness absence reporting procedures and ensure that staff are aware of their obligations when taking time off work due to sickness.

A Period of Change?

Additional workplace protection in the form of menstrual leave could be considered by the Government.

In our past updates, we have looked at the discussions about menopause in the workplace. Now, the discussion has turned towards periods.

Lawmakers in Spain recently made headlines as a result of approving a draft bill permitting paid time off work for workers who suffer from period paid – up to three days a month with a doctor’s note. A number of UK based charities are now calling upon the government to introduce a similar menstrual leave.

Currently, workers use sick leave if they require time off, but there have been calls to strengthen protections surrounding periods.  Time will tell whether the government introduces any legislative changes.

Queen’s Speech 2022

Queen’s Speech 2022 fails to include any substantive updates about the long-awaited Employment Bill.

The Queen’s Speech 2022 did not contain any updates about the Employment Bill, which was first announced in December 2019. By way of reminder, the Employment Bill proposes to:

• make flexible working the default
• extending redundancy protection for pregnant employees and for up to 6 months after return from maternity leave
• right to 12 weeks’ paid neonatal leave for parents whose babies spend time in neonatal care units
• working carers’ right to 5 days’ unpaid leave each year
• right for workers with variable hours to request a more predictable contract after 26 weeks’ service
• a single labour market enforcement agency

There is still no certainty as to when these changes will come into effect. When we have more information, we will update our readers.

Fire and Rehire – A New Statutory Code

Fire and rehire to remain legal, but greater scrutiny and sanctions to be placed upon employers who breach their statutory duties.

Fire and rehire is a heavily criticised tactic where workers are dismissed and then immediately reengaged, usually on less favourable terms. There have been numerous calls upon the government to change the law to afford better protections to workers.

The government has announced plans to introduce a new statutory code of practice for employers seeking to use this tactic.  It is proposed that the code will include practical steps employers should follow in this situation. It will also provide a mechanism for tribunals to increase compensation payable to employees where employers unreasonably fail to observe the code and their statutory duties to dismiss fairly and to consult and inform employee representatives.

It is not clear when the code will be introduced, and the government recently said it will be “when parliamentary time allows”, which sounds all too familiar!

If you have any queries in relation to any of these issues or require any employment advice, please do not hesitate to contact a member of our team.

Vicky Beattie – [email protected]

Sarah O’Brien – [email protected]

Paul Stedman – [email protected]