Employment Law Review - June 2021

Welcome to our Employment Law update.

With the majority of restrictions set to ease on 19 July 2021, we outline the key COVID-19 developments and what they mean for your organisation. We also highlight some recent Employment Tribunal decisions on the subject of COVID-19 related absence dismissals.The month of June marked Pride month which saw many organisations celebrating the LGBTQ+ community and take steps towards a more inclusive workplace culture. We also saw the Employment Appeal Tribunal deliver a significant decision protecting individuals with gender critical beliefs from discrimination, reminding employers of the tensions which can arise between conflicting beliefs at work. We share some top tips for employers in managing this conflict and supporting trans-employees at work. Lastly, as the EU Settlement Scheme closed on 30 June 2021, we bring you up to speed with the latest on right to work.

• COVID-19 developments
• COVID-19 absence dismissals
• Sending a pregnant worker home during COVID-19 was not discrimination
• Gender-critical views are protected from discrimination
• Supporting trans-individuals at work
• Right to work

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COVID-19 developments

This month’s key developments are below:

• Return to the office – The Government has announced plans to remove the current ‘work from home if you can’ guidance and all legal limits on indoor and outdoor meetings with effect from 19 July 2021. Employers should be aware that mandating a wholesale return to the office carries a number of legal risks. Although there is no legal right for employees to work from home, employers should take time to understand personal circumstances and any concerns employees may have about returning to the office. Employers will also need to review their approach to flexible working requests. The business reasons for refusing a flexible working request will have changed during the course of the pandemic. So employers need to consider how flexible working requests will be handled following a re-opening of offices. Policies should be reviewed and updated too.
• Face coverings and distancing – Social distancing rules will be lifted and wearing face masks will become a matter of personal choice from 19 July 2021. This has been met with significant concern by trade unions warning that workers will be placed at significant risk if face masks are dropped. Some organisations have confirmed that they will continue to require staff and customers to wear face masks. Regardless of the changes to the Government guidance, employers still have a legal duty under the Health and Safety at Work Act to ensure that there is a safe working environment. In the face of a ‘significant and rising’ epidemic, organisations must take steps to ensure that employees are returning to a safe workplace. Risk assessments will need to be reviewed and updated.
• COVID-19 vaccines – The Government published its response to mandating COVID-19 vaccines in care settings on 16 June 2021. The outcome is that COVID-19 vaccines will become mandatory in care settings. The Government outlines that this policy aims to protect people who are most at risk from COVID-19 and its complications, by driving vaccination uptake in high-risk settings and ensuring high staff vaccination levels. The Equality and Human Rights Commission stated in its response to the consultation that mandating vaccines in the care sector would be ‘reasonable’ and that the Government is right to prioritise protection of the right to life for older residents. The Government is also due to launch a further consultation on whether or not to make COVID-19 and flu vaccination a condition of deployment in health and other care settings (e.g. NHS and domiciliary care). Any mandatory vaccine policy will require careful implementation by employers; job adverts, contracts of employment, employee handbooks, policies and privacy statements will all require updating. There may also be employee consultation requirements in order to successfully implement this policy. You can see our update here.
• Coronavirus Job Retention Scheme (Furlough Scheme) – Despite hopes from businesses that the Government would delay plans to require employer contributions to the Furlough Scheme, from 1 July 2021 employers are required take on more of the costs relating to furloughing workers. This may put pressure on businesses to consider restructuring or rationalisation as the Government’s financial support draws to a close later in the year. You can see the key dates including the relevant consultation periods here.

COVID-19 related absence dismissals

 A key question for employers is how to manage employees who refuse to attend work due to COVID-19 related health and safety concerns. Employers need to be aware of the protections afforded to employees in these circumstances. The Employment Rights Act (s100) protects those who, when faced with a ‘serious and imminent’ danger at work, are dismissed for taking appropriate steps to protect themselves or others from the danger. If individuals are dismissed under these circumstances they will be automatically unfairly dismissed. We explore two contrasting Employment Tribunal (ET) decisions concerning the dismissal of employees for expressing concerns about COVID-19.Accattatis v Fortuna Group

 - Mr Accattatis was employed by Fortuna Group, a company that sold and distributed PPE. Staff were considered to be 'key workers' during the first wave of the pandemic and the business remained open throughout the first lockdown. On 30 March 2020 Mr Accattatis developed COVID-19 symptoms and self-isolated. Shortly before he was due to return to work, he asked either to be furloughed or to be allowed to work from home. Mr Accattatis expressed concerns about commuting and being in the workplace. Mr Accattatis’ role involved being physically present in the warehouse, so Fortuna Group rejected his requests and subsequently dismissed him due to a failure to ‘comply fully with company policies and guidelines.' Mr Accattatis bought a claim for automatic unfair dismissal under s100 ERA that his workplace posed a serious and imminent danger to him.The ET accepted that Mr Accattatis reasonably believed that he was in serious and imminent danger, however did not accept that he was unfairly dismissed. The ET took into consideration the government guidance at the time that the pandemic presented a threat to public health, as well as the multiple emails Mr Accattatis had sent to his employer expressing his concerns about his commute to work. However, Mr Accattatis had not taken appropriate steps to protect himself or others from the danger; his demands for furlough or working from home were not appropriate steps to protect him from the danger and the option of paid or unpaid leave was not taken for economic reasons.Gibson v Lothian Leisure - Mr Gibson was employed by Lothian Leisure as a restaurant chef. In March 2020, Mr Gibson was furloughed when the restaurant was forced to close. When the restaurant reopened, Mr Gibson raised concerns about returning to work without PPE and other Covid-secure workplace measures. Mr Gibson was concerned about catching COVID-19 and passing it to his father who was clinically vulnerable. Mr Gibson was apparently told to “shut up and get on with it” by his employer. On 30 May 2020, Mr Gibson was dismissed by text message. The ET concluded that Mr Gibson had been automatically unfairly dismissed; he had taken appropriate steps to protect his father in what he reasonably believed were circumstances of serious and imminent danger.Whilst these are only first instance ET decisions and therefore not strictly binding on other Tribunals, these cases provide some guidance to employers on how tribunals may approach cases relating to health and safety in the workplace. Clearly to obtain the protection of s100 individuals must express very specific concerns about their workplace or commute and must take appropriate steps to protect themselves from the danger. These are important considerations for employers as the remaining restrictions ease and employers encourage employees back into offices. 

Sending a pregnant worker home during COVID-19 was not discrimination

 An Employment Tribunal (ET) recently decided that a pregnant woman working under a zero hours contract was not discriminated against after she was sent home during the pandemic for health and safety reasons and not permitted to return for several months.

Ms Prosser worked for Community Gateway Associates on a zero hours contract. Prior to the pandemic she worked an average of four shifts a month. She informed her line manager that she was pregnant in March 2020 and was subsequently sent home to protect her from contracting COVID-19 at work, with a link to the Government's advice which classified pregnant workers as clinically vulnerable. Ms Prosser was wasn't allowed to return to work until August when the Association was able to make the workplace Covid secure (e.g. using screens). She brought a claim against her employers arguing that sending her home in March and not allowing her to return to work until August her amounted to direct pregnancy/maternity discrimination. The ET did not consider this to be discrimination.This is a useful decision for employers; it provides some comfort that employers will be able to take steps to act in the interest of their employees’ safety without this necessarily being construed as discrimination. However, it’s is important to remember that each employee’s circumstances will be different. Any decisions should be based on a comprehensive risk assessment, including the risks at different stages of a pregnancy. In this case the Tribunal was complimentary of the employer’s actions, saying that “the respondent appeared to do all it could to keep her and her baby safe through the COVID-19 outbreak and paid her generously beyond the terms of her contract.” Gender-critical views are protected from discrimination

The Employment Appeal Tribunal (EAT) has handed down a significant judgment protecting individuals who hold gender critical beliefs from discrimination.

Maya Forstater worked as a consultant for CGD Europe. She did not have her consultancy contract renewed after she expressed a series of gender critical beliefs on social media and brought a claim of discrimination on grounds of her philosophical belief. The Employment Tribunal (ET) decided that Maya Forstater had an 'absolutist' approach to sex and she would misgender trans-individuals (i.e. refer to a trans-person by the sex she considered appropriate even if it caused offence). The ET considered that the way she expressed her gender critical beliefs meant that they were not “worthy of respect in a democratic society” because they conflicted with the fundamental rights of others (i.e. trans-individuals) and did not therefore come within the definition of “philosophical belief” such as to be protected under the Equality Act. Maya Forstater appealed this decision.The EAT upheld her appeal, deciding that people who hold and express gender critical beliefs are protected from discrimination under the Equality Act (under the protected characteristic of religion and philosophical belief). It went on to conclude that the only philosophical beliefs that are excluded from protection are those that would amount to the gravest form of hate speech, incite violence or are akin to Nazism or totalitarianism. This suggests that beliefs will be capable of protection even if they are expressed in a way that may offend or interfere with the rights of others, or create a hostile and degrading environment. The EAT made it very clear in its judgment that it was not expressing a view on either side of the transgender debate and that its decision didn’t mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity; they will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else.

 The EAT emphasised that employers will be required to provide a safe environment for trans people and made it clear that employers continue to be liable for acts of harassment and discrimination against trans persons committed in the course of employment.  

Supporting trans-individuals at work

Views on trans-issues and gender non-conformity are divided, especially when religious beliefs are involved. All employees should be reminded that whatever their personal beliefs they should treat others with dignity respect. Here are our top tips for employers to provide a safe environment for trans-employees:

1. Educate your workforce – Regular and up to date Diversity & Inclusion training should be provided to all employees and especially to managers; ensure employees understand what is meant by diversity, inclusion, discrimination, harassment and anti-bullying by giving examples.
2. Talk about banter - Employees need to be clear about when banter oversteps the line into bullying or harassment.
3. Foster a culture of empowerment - Promote an inclusive culture where bullying and harassment are not tolerated. Ensure that individuals have confidential ways of reporting inappropriate behaviour and are reassured that there will be no adverse consequences for calling out this type of behaviour.
4. Conclude grievances - Ensure that any grievance raising allegations of discrimination, bullying or harassment are concluded, even if the employee who raised the grievance leaves the organisation midway through the process.

Earlier this year the Freeths employment team delivered a webinar on how employers can better support trans-individuals at work. To access a copy of the recording and the FAQs please contact us. 

Right to Work

The EU Settlement Scheme (EUSS) is now closed to new applications. On 18 June 2021 the Home Office released new guidance for employers on carrying out right to work checks. The guidance offers a course of action for organisations with employees who failed to apply to the EUSS by 30 June 2021. In light of the delay to the final easing of COVID-19 restrictions, the new guidance also confirms that the temporary adjustments to Right to Work checks made to cater for Covid-19 remote working arrangements and social distancing, will now be extended to 31 August 2021 (inclusive).

 From 1 September 2021, employers must either check their prospective employees’ original documents or check the prospective employees’ right to work status online.

For more information on how these changes will impact your business, please contact our Business Immigration team.