Thank you to those who joined us on 10 February for our 1st HR Informed session of 2022; it was great to see so many new and familiar faces. During the session we discussed the fact that we are now seeing more and more tribunal judgments considering Covid specific disciplinary issues which have arisen during the pandemic.
As part of which we’ve seen novel arguments being advanced; seeking to interpret the law in light of the unique circumstances created by the pandemic. These are first instance tribunal decisions and as such they are not binding on other tribunals; however what stands out from the judgments is the need to assess each case based on the facts and circumstances known by the employer at the time of the dismissal.
During the session we discussed the following interesting cases:
- Selina Taylor v Borough Care Ltd 2021. The Claimant (a care home manager), was dismissed for attending a colleague’s birthday party during lockdown. The Tribunal concluded that the dismissal for gross misconduct was fair in all the circumstances. The Claimant had breached the lockdown restrictions, she should have been setting an example to her team and she should have tried to stop the party and reported it to the management team. Furthermore, her actions put vulnerable elderly people at risk and the footage of the party posted on social media risked damaging her employer’s reputation.
- Vaccinations remain a hot topic at the moment and the case of Allette v Scarsdale Grange Nursing Home Ltd 2021 involved the employer (a care home) imposing a mandatory vaccination as a condition of continued employment. This condition was imposed in December 2020 (before it became a legal requirement for care home workers to be vaccinated in November 2021). The employee was dismissed for refusing the vaccination due to her unsubstantiated safety concerns. The Tribunal concluded that the employer’s policy did not breach the Claimant’s Article 8 right (the right to respect for private life) and that dismissal in the circumstances of this case for failing to follow a management instruction was fair and reasonable. Notably, the Tribunal made it clear that this case did not set a general indication that dismissal for refusing to be vaccinated would be fair in all cases. It must be remembered that the Tribunal was assessing the reasonableness of the employer’s decision at the height of the pandemic when the picture was bleak with 100,000 cases of covid recorded each day and 1,500 deaths. The same result may not be achieved if a dismissal took place today, at a time when deaths have thankfully reduced greatly, and the Omicron strain appears to be somewhat milder. This was a factor which is said to be behind the Government U-turn on the need for front-line staff to be fully vaccinated by 1 April 2022.
- X v Y 2020 is another interesting case where the Claimant sought to argue that her fear of catching covid-19 and a need to protect herself and others amounted a protected belief under the Equality Act (EqA). The Tribunal did not uphold her claim and concluded that whilst this was a widely held opinion, it was a fear of physical harm and views about how to reduce the risk of contracting the virus, and as such it did not satisfy the legal test to amount to a protected belief. If, as an employer, you are faced with an employee who is refusing to act because of a belief, it is important to consider whether that belief is likely to be protected under the EqA as a philosophical belief, before taking action against them. If in doubt, feel free to give us a call.
- A novel argument was pursued by the Claimant in the case of Rodgers v Leeds Laser Cutting Limited 2020 because he did not have 2 years qualifying service to pursue an ordinary unfair dismissal. The Claimant had a young baby of 7 months and a child with sickle cell which placed him at high risk of becoming very unwell if he contracted the virus. The Claimant was dismissed after he informed his manager in March 2020 that he would not be attending work until the lockdown had eased. The Claimant pursued a claim for automatic unfair dismissal relying on section 100 of the Employment Rights Act, which provides employees with protection from dismissal for exercising their right to leave the workplace where they have a ‘reasonable belief’ that being in the workplace puts them in ‘serious and imminent’ danger. The Claimant’s evidence was contradictory and confusing which undoubtedly didn’t help his case. However, the Tribunal concluded that the Claimant did not believe that there were circumstances of serious and imminent danger within the workplace, but rather all around and as such his claim failed. It is understood that this case is being appealed to the Employment Appeal Tribunal.
The above cases remind employers of the importance of following a fair dismissal procedure, keeping contemporaneous records and complying with the ACAS Code of Practice. The case of Slade and another v Briggs highlighting that a failure to follow the ACAS Code can result in a maximum uplift of 25% in compensation.
Our ‘HR on the Ground’ session was very informative with delegates discussing how they proposed to deal with the Government’s proposal of easing of covid restrictions at the end of the month. We had an engaged discussion on how to manage the spread of the virus in the workplace and minimise disruption to the business, with many opting to continue with workplace testing and asking staff to self-isolate if they test positive (with pay) as a preventative measure. With the changes ahead it is a good time for employers to review and update their covid risk assessments.
This is only intended to be a summary and not specific legal advice. If you are concerned with any issues raised in this article or would like further information or advice, please do contact a member of our team.
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We very much hope you’ll be able to join us in person for our next HR Informed session on 10 March 2022. We also hope to see at our next virtual session on 14 April 2022.
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