Employment Law Review – October 2021

Employment Law Review

Welcome to the third edition of our employment newsletter, where we focus on new developments, case law updates and hot topics in Employment Law.

Our third issue comes at a time where the Furlough Scheme has been withdrawn and put to bed. As we enter a ‘post-Covid world’, we are seeing more Covid related cased being heard in the Tribunals and discussions around compulsory vaccinations.

Contents

  1. End of Furlough – Consider your options
  2. Compulsory Vaccinations and Care Homes
  3. New duty proposed for employers to prevent sexual harassment
  4. Menopause in the workplace
  5. Case law update
  6. Talk to us!

End of Furlough – Consider your options

The furlough scheme ended on 30 September 2021, and the scheme was completely withdrawn on 1 October 2021.

With the winding down of the furlough scheme and relaxation of Covid-19 restrictions, employers should be considering their options for staff returning to the workplace. No doubt employers will be looking forward to re-welcoming employees who have been furloughed and bringing staff back to work, but unfortunately this will not be an option for all employers.   Many employers are considering changing employees’ terms and conditions or making redundancies.

If employers are considering making changes to employment terms, they need to consider whether notice needs to be given to effect the change, and even if formal consultation is required.   Employers also need to be aware of the risk of claims for unfair dismissal or constructive unfair dismissal if the changes are not agreed.

If an employer needs to make redundancies, it is important that a fair process is followed before effecting the dismissal.   If this is not done, the employer will be at risk of claims for unfair dismissal.  If 20 or more redundancies are proposed there are also strict statutory consultation procedures that must be followed and the risk of costly group litigation if this is not done correctly.

If you are considering making redundancies or changing terms and conditions, we recommend that you contact us for advice and guidance on what steps need to be taken and the risks of not following a fair process.

Compulsory vaccinations and Care Homes

On 11 November 2021 new Regulations come into force which will require Care Quality Commission registered care homes to only permit access to workers who are fully vaccinated against Covid-19, unless medically exempt. The Government has said its decision was made after extensive public consultation, and that compulsory vaccination is to promote the protection of care home residents from the risk of death or serious illness that can arise from contracting Covid-19.

The legislation has faced harsh criticism from those working in care homes, unions, and professional bodies alike and the legislation opens questions about the approach care homes will take with staff who have not had the vaccine and are not medically exempt.

There are many reasons why a person may refuse to take the vaccine, such as religious or health based, but employers should be careful in hastily dismissing staff. Employers need to seriously consider their staff’s reasons and will need to demonstrate they have acted reasonably before dismissing employees who refuse to be vaccinated.

UK Government proposes new duty for employers to prevent sexual harassment

In August the Government published its response to its 2019 consultation on measures to combat sexual harassment in the workplace and reinforce existing legal protections. As part of its response, the Government has proposed a new proactive duty on employers to prevent sexual harassment in the workplace, pledged to strengthen existing protections against third-party harassment (such as by clients or suppliers), and considered extending the time limit to bring sexual harassment claims.

The response contains very little detail about how this duty will be implemented, although we do expect the Equality and Human Right Commission to issue a code of practice in the near future.

Proactive Duty

At present, employers are under no proactive duty to prevent sexual harassment in the workplace. If a member of staff reports an incident of sexual harassment an employer can be held liable unless it can show that it took all reasonable steps to prevent the sexual harassment form occurring. Under the new proposed duty, employers will still be required to take reasonable steps, but they could also be held accountable for failing to take preventative steps to stop harassment, even if no incident has occurred.

Protections against third-party harassment

Similar to the above, the Government has not provided any clear indication as to how this will be introduced, although it has confirmed that it will introduce a defence of having taken all reasonable steps to prevent third party harassment. There is no clarification if this will be a proactive duty. It is also unclear as to whether this will extend to all forms of harassment, or if it will only apply to sexual harassment.

Extending time limits to bring a claim

Currently, claims brought under the Equality Act must be made within three months of the act, or most recent act, complained of. The Government is considering extending the time limit to six months in relation to all claims made under the Equality Act, not just sexual harassment.

Menopause in the workplace

Women over the age of 50 are the fastest growing group in the workforce. In 2019 BUPA and the Chartered Institute for Personnel and Development conducted a survey which found that three in five women of menopause age were negatively affected at work.

With such a large portion of the work force experiencing the menopause during their working life, it is an increasingly pressing topic for employers. There is also a rise in number of women being dismissed or treated unfairly for reasons related to the menopause.

The Government has opened an inquiry into menopause-based discrimination experienced in the workplace.

Currently, women who are treated unfairly for reasons related to the menopause have to bring claims under the sex or disability discrimination legislation in the Equality Act.  The menopause is not a disability unless the individual concerned meets the statutory requirements in their particular circumstances, which is rarely the case, and neither type of claim is easy to pursue.  The purpose of the inquiry is to examine whether or not current equality laws need to be strengthened and if the menopause should be added as a protected characteristic under the Equality Act.

The inquiry closed submissions for evidence on 17 September 2021. We will update you when the findings are released.

Case law update

Covid Case Law

In our last update, we discussed the case of Accattatis v Fortuna Group (London) Ltd. Since then the Tribunals have heard a number of Covid-19 related cases

In Gibson v Lothian Leisure, Ham v ESL BBSW Ltd and Monanaro v Lansafe the Tribunal found that Covid-19 was a serious and imminent threat, and that the Claimant’s dismissal was automatically unfair after he was dismissed for raising concerns about the lack of Covid-related safety measure at his workplace.

Gibson and Accattatis relate to the first lockdown so the same might not be said for subsequent lockdowns or the situation following mass vaccination.

In Mhindurwa v Lovingangels Care Ltd the Employment Tribunal held that there was a duty to consider furloughing employees as an alternative to redundancy. Whilst furlough should be considered (or should have been when the scheme was running), that does not mean that is has to be offered. This approach was also upheld in Handley v Tatenhill Aviation Ltd.   This will not apply now that the furlough scheme has ended, but these cases serve as a reminder that employers do need to consider alternatives to redundancy before effecting the dismissals.

Pay for zero-hours workers when suspended

This was considered by the Employment Appeal Tribunal (EAT) in Agbeze v Barnet Enfield and Haringey Mental Health NHS Trust Mr Agbeze was a healthcare assistant who provided his services as a ‘bank’ worker. Under the terms of Mr Agbeze’s contract, he was only paid for the hours he worked. There was no obligation on the NHS Trust to offer him work, nor was there an obligation for him to accept work. In essence, he was employed under a zero-hours contract.

Following an allegation of misconduct, the Trust suspended Mr Agbeze, meaning he was not eligible to be offered any work and he was not paid whilst the case was investigated.

Mr Agbeze asserted that there was an implied term in his contract which meant that he was entitled to be paid average wages during the suspension period.  The EAT upheld the Tribunal’s decision, that there was no obligation for the Trust to offer work, nor for Mr Agbeze to accept work, and that there was no express or implied term that required the Trust to pay Mr Agbeze during his suspension.

You can see other updates on other topics  in our earlier blogs here  disability discrimination and rights of appeal.

Talk to us!

We want to encourage our clients to pick up the phone whenever they need help with employment law matters.  We offer a variety of services to our clients, including helplines, insurance backed products for Employment Tribunal claims and other fixed fee services.   If you would like to discuss how we can help you and your business deal with Employment Law matters, please contact either Paul Stedman, Vicky Beattie, Neal Mellor or Sarah O’Brien on 0161 832 2500.