10 minute read
Employment Law Update
EMPLOYMENT TRIBUNALS
DISMISSAL
DISCIPLINE & GRIEVANCE
DISABILITY
DATA PROTECTION
BULLYING & HARASSMENT
By Lorna Gemmell, HR & EL Training Manager, Law At Work
This time last year we had managed to host several sessions in our usual programme of Employment Law updates before lockdown struck and we were prevented from completing sessions in many of our usual locations. It is hard to believe that a year down the line we are still restricted to webinar format. All of our clients have been impacted in one way or another as a result of the pandemic and we have been continually amazed by the resilience displayed by managers, HR and staff during such challenging times. We are pleased to play a part in guiding our clients through the wide range of new and difficult employee relations issues that have arisen, not least the continuously changing furlough scheme!
Now that we are emerging from lockdown, our clients are focussing on important issues such as addressing employee reservations about a return to work and the introduction of vaccination and testing policies. Like many employers, you may be considering a possible long-term move to hybrid working
Unfair dismissal Case Summaries
Kubilus v Kent Food Ltd The Claimant, a delivery driver, was required in terms of his employer’s handbook to treat clients courteously and to take reasonable steps to safeguard his own health and safety and that of others as a result of his actions at work. The drivers’ handbook also stated that customer instructions regarding PPE must be followed. One of the main clients at the depot where the Claimant worked was Tate. Tate required visitors to wear face masks at its site. Despite being asked by two Tate employees the Claimant refused to wear a facemask while in the cab of his vehicle, arguing that his cab was his own private area and wearing a face mask in that environment was not a legal requirement. Tate
reported the incident to the employer and disciplinary proceedings were initiated to consider the allegation that, in refusing to comply with the customer’s instruction, the Claimant had breached the terms of the handbooks and caused problems with its relationship with its customer. The conclusion of the disciplinary process was summary dismissal. The Tribunal found that the dismissal was fair. The Tribunal said that, although some employers may have chosen to impose a warning, the employer was entitled to treat the Claimant’s behaviour as a sufficient reason for dismissal. The Claimant’s insistence that he hadn’t done anything wrong was also relevant as it provided the employer with no comfort that he would not behave in the same way in the future.
K v L You may recall that we discussed the Employment Tribunal decision in the case involving a schoolteacher who was dismissed following concerns that he had downloaded indecent images of children, at our September update. The Employment Appeal Tribunal has now ruled that the Claimant was unfairly dismissed. The Claimant had been employed by the Respondent for 20 years and had an unblemished disciplinary record. Following a search of his home, which he shared with his son, the Claimant’s computers were seized by the police. It was discovered that indecent images of children had been downloaded. Although the Claimant was charged for the offence, the Procurator Fiscal decided not to prosecute as there was insufficient evidence to show that he was responsible for downloading the images. The school suspended the Claimant and contacted the Crown to seek evidence to help them decide whether it was appropriate for them to continue to employ him to work with children. The evidence from the Crown was too heavily redacted to assist the school in their investigation. Regardless, they proceeded with the disciplinary process and dismissed the Claimant on the grounds of misconduct. In giving their reasons for dismissal, the school stated that as the computer was in the teacher’s possession, they couldn’t exclude the possibility that he was responsible for the images. The school said that that presented an unacceptable risk in the context of him continuing to work with children. The school also suggested that there was a high risk of reputational damage if they failed to act. The Claimant raised a claim for unfair dismissal arguing that the school did not mention the risk of reputational damage as being grounds for dismissal prior to the disciplinary hearing. He also argued that the school did not have evidence to decide whether he was guilty of downloading the images or not and that it was not open to them to dismiss him based on just a possibility that he had. His unfair dismissal claim was rejected by the Tribunal and he appealed to the EAT. The EAT allowed his appeal and held that the dismissal was unfair. It was held that the employer had given no notice that reputational damage was a potential ground of dismissal when the Claimant was invited to the disciplinary hearing. Further, the school was not entitled to dismiss on the basis that misconduct was a possibility and was required to be satisfied that there was substantial evidence in support of the misconduct, which was lacking in this case. This case serves as an important reminder to employers to be clear and consistent about the specific grounds of a disciplinary action and why they believe that those grounds may warrant dismissal. Reputational damage is quite separate to misconduct and would fall under “some other substantial reason” as the potentially fair reason for dismissal. Employers should also be satisfied that they have a genuine belief that the alleged misconduct happened and that that belief was based on reasonable grounds. Employers should not dismiss an employee based on a mere possibility.
NO JAB, NO JAB, NO JOB! NO JOB!
Are vaccinations a passport back to the office?
By Andy Moore
Some employers have already introduced “No Jab, No Job” policies. But is such a move discriminatory for those who do not want or cannot have the vaccine? And what position should HR take? Andy Moore takes a closer look.
Some brand them a breach of anti-discrimination laws. Others consider them a right of passage or a passport back to the office. But whatever your viewpoint, the so-called “No Jab, No Job” employment contracts have caused quite a stir in the press amongst HR, employees and unions.
In stark terms, the proposed mandate boils down to refusing job applicants or dismissing existing employees if they do not (or cannot) have the COVID vaccine. The UK Government is considering making the COVID vaccine compulsory for employees across all UK care homes. Care home operator, Care UK, has already introduced a jab-compulsory recruitment policy, while Barchester Healthcare announced in January that it would not hire staff who refused a vaccination, requiring all staff to do so by 23 April. So what stance should HR take? Elaine McIIroy, a partner at Brodies Solicitors in Glasgow, says: “Most employers are unlikely to mandate such requirements – yet many are encouraging staff to have the vaccine. If employers can attract a high-level uptake then this could be the best way to go about it. Some of the reasons I’ve heard from those not wanting the jab might be from pregnant women, those trying to conceive or those with health issues or certain beliefs.” She adds that HR and employers should roll COVID risks into their health and safety risk assessments. These must be continually updated and based on the inherent risks to both the workforce, those they encounter and how effective the vaccine is. Elaine believes that while the vaccine will play a big part in mitigating COVID risks, it is not the panacea to reducing risk among employees. Clearly, specific sectors face higher risks such as healthcare and industries where staff have close contact with vulnerable and many people; and those in large and mobile workforces. She envisages there may be future situations when employees may not want to work with those who are not vaccinated or those who have regular interactions with clients and other third parties. Managing risk for HR is about fostering early, open and thorough Employee Relations, especially as employers start to think about opening workplaces to staff again on a part-time basis. “For those who do not wish to have the jab and/or wish to work from home full time, HR should look at options such as redeploying staff in different teams or roles,” Elaine explains. “Employers can examine alternatives such as homeworking. The underlying question HR must ask is why vaccines must be compulsory in the first place?” Again, HR can assist employers in taking all reasonable steps to protect staff – for example through regular COVID tests, allied with or without people having the jab. After all, not all vaccine types are 100% effective, so there remains marginal risk.
Testing could offer an added layer of protection for staff who may want some reassurance that they do not have the virus, both for their peer’s sake but also for family and friends. “The legal risk of compulsory vaccines is different between new and existing employees. For existing staff with two years’ service there is an added legal risk if employers want to dismiss staff if they refuse to have the jab,” Elaine adds. “New employees may not have the same protection from unfair dismissal – yet they do have protection under anti-discrimination laws.” Employers would have to justify that the requirement to have the vaccine was reasonable and it took all reasonable steps to look at alternative options such as redeployment or working from home instead of dismissal. Anti-discrimination laws such as those that protect gender, age, race and disability may also apply to employees who may wish to challenge compulsory jabs. But what are the legal considerations for employers if they fail to ensure their staff are sufficiently protected against COVID? “There could be legal claims if people contract the virus at work if employers fail to introduce adequate health and safety measures,” Brodies’ Elaine McIIroy continues. “There could be a chance that some insurers require evidence that staff and those they come into contact with have adequate protection against COVID.” Out of a Randstad survey of over 27,000 workers, the majority believed their work environments needed to be much safer than they are now, and an increase in vaccination roll-out is seen by many as essential. 72% of workers said they will not feel safe in the workplace until others around them are vaccinated, and 63% prefer to work from home until the vaccine is widely distributed. Victoria Short, CEO of Randstad UK said: “It’s encouraging to hear that so many are rooting to physically get back to the workplace. It does not come as a surprise that the majority will not feel comfortable in a communal environment until they have been vaccinated.” No Jab, No Job • Undertake broader health and safety risk assessments
• The vaccine will play a big part in mitigating COVID risks, but is not the only solution
• Conduct early, open and thorough
Employee Relations
• Consider options to redeploy staff in different teams and roles
• Not all jab types are 100% effective; testing could offer an added layer of protection
Elaine McIIroy
