Employment Law Review - May 2021

 

Welcome to our May Employment Law update.

25 May 2021 marked the first anniversary of George Floyd’s tragic death. A moment for all organisations to pause and reflect. Following the events of last year, organisations and individuals are rightly becoming more engaged in conversations around inclusion.This month, we highlight some useful CIPD guidance on anti-racism, allyship and workplace inclusivity. We also discuss a recent discrimination case which saw a disabled employee being awarded in excess of £2.5million in compensation and highlight an important case on changing terms and conditions of employment during the ongoing pandemic. As always, we bring you up to speed with the latest Coronavirus developments and highlight some important immigration and employment law changes on the horizon.

• Advancing anti-racism in the workplace

• Disability discrimination: employee with cancer awarded £2.5million

• COVID-19 ‘Fire and re-hire’ dismissal was unfair

• Coronavirus developments

• EU Settlement Scheme deadline 30 June 2021

• Health and safety protection extended to ‘workers’

• Employment changes on the horizon

• On demand videos

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Advancing anti-racism in the workplace 

In the month which marks the first anniversary of the tragic death of George Floyd many organisations are reflecting on the BLM movement and their inclusion strategies. The CIPD has recently released two guides on advancing anti-racism in the workplace. Guide 1: Engaging with leaders on anti-racism strategy which provides people managers with advice on how to engage senior leaders on inclusion. Guide 2: Anti-racism guide for line managers which provides advice for line managers on how they can play their part in tackling racism in their organisation. Senior leaders, people managers and line managers all have a vital role to play in creating inclusive workplaces.In April, Freeths were delighted to be joined by Inclusive Employers to discuss why inclusivity is so important in any organisation and especially in an agile working world. In case you missed it and would like a recording of the webinar to view in your own time, please contact us for a copy. 

Disability discrimination: employee with cancer awarded £2.5million

Unlike unfair dismissal claims, discrimination awards are not subject to a cap. An Employment Tribunal (ET) has the power to award large amounts of compensation for discrimination, which can include compensation for loss of earnings, career losses, injury to feelings, personal injury and aggravated damages.In Barrow v Kellog Brown and Root, an ET has awarded over £2.5 million in compensation following a finding of unfair dismissal and disability discrimination against the employer. This is the second largest disability discrimination award ever made by an ET. Mr Barrow had worked at Kellog Brown and Root (KBR) for 36 years before his dismissal in May 2018. In 2017, he began treatment for a skin condition which later, sadly transpired to be a symptom of post-viral lymphoma, a cancer. One of the treatments was a steroid which began to affect Mr Barrow’s mental health, causing him to suffer episodes of mania and to be emotionally volatile. Mr Barrow was dismissed allegedly due to a ‘breakdown in trust and confidence’. Mr Barrow was successful in his claims for unfair dismissal, disability discrimination, harassment, victimisation and failure to make reasonable adjustments. Mr Barrow was awarded ‘career-long losses’ as his cancer and age meant he was unlikely to work again. Aggravated damages of £7,500 were also awarded due to the employers conduct and an award of £25,000 for pain, suffering and loss of amenity. 

COVID-19 ‘Fire and re-hire’ dismissal was unfair 

An Employment Tribunal (ET) has decided that an employee who was dismissed for refusing to accept a variation to her employment contract reducing her pay and working hours during the pandemic was unfairly dismissed. This is a useful reminder to employers that even if there are sound business reasons necessitating changes to employment contracts, a fair process must always be followed. This is likely to be the first of many cases on this issue, so employers should be mindful that a different outcome could be reached on different facts.

Employers may need to vary employment contracts for a variety of reasons. Changes to employment contracts are either made via a variation clause in the contract, by agreement, or by following a dismissal and re-engagement process. This involves dismissing the employee under their original contract, and then offering them the same role under the new contract terms. In these circumstances, employers rely on ‘some other substantial reason’ as the potentially fair reason for dismissal and a fair process must be followed.Mrs Khatun was a solicitor at Winn Solicitors. She was issued with a variation to her employment contract on 24 March 2020 requiring her to go onto furlough leave or have her hours and pay reduced on five days' notice. Mrs Khatun refused to agree to the variation and was dismissed on 26 March 2020. She brought a claim for unfair dismissal. The ET agreed that employer’s reasons for implementing the variation were ‘sound, good business reasons’. However, the dismissal was unfair because the employer had failed to engage in any meaningful consultation or any process before dismissing Mrs Khatun. Winn Solicitors dismissed Mrs Khatun within 48 hours of sending her the variation and she had not been offered the right to appeal.

Given the commercial uncertainty caused by the pandemic, many employers have sought to agree contract variations for example, a reduction in hours or pay (including a variation to be placed on furlough at 80% of usual wages). This case demonstrates that while an ET will be sympathetic to the commercial reasons for requiring contractual changes, any dismissal and re-engagement procedure to implement changes should always involve meaningful consultation, a fair process and the right of appeal. With one in 10 workers forced to reapply for their jobs on worse terms during the pandemic, ‘fire and re-hire’ tactics have come under close scrutiny with calls for it to be made illegal. Recently, the Scottish Court of Session issued a temporary injunction prohibiting Tesco from terminating employees’ contracts and rehiring them on lower pay. Employers should always try and seek agreement to any variation via meaningful consultation; forcing a change to an employment contract by dismissing someone and rehiring them on different terms should be a last resort.  

Coronavirus developments  

This month’s key developments are below:

• ACAS Guidance on Long COVID – ACAS has recently published guidance in response to the growing impact of Long COVID in the workplace. This comes as the Office for National Statistics estimates that over one million people have reported experiencing symptoms of Long COVID. The ACAS guidance states that the usual rules for sickness absence and sick pay apply when someone is off work because of Long COVID and that it is a good idea for employers to focus on the reasonable adjustments they can make to support an employee with Long COVID, rather than trying to work out if an employee’s condition is a disability. The ACAS guidance also points out that Long COVID has been found to more severely affect older people, ethnic minorities and women so employers need to take care to avoid discriminating on the basis of age, race or sex. If you missed our webinar on managing Long COVID in the workplace you can request a copy of the recording and our Long COVID Q&A here.

• COVID-19 vaccines – The Government consultation on mandating vaccines in the adult social care setting closed on 26 May 2021. We were delighted to have input from a number of our clients on some of the practical challenges of implementing a mandatory vaccine policy. You can see the response submitted by Freeths here.

• Temporary adjustments to Right to Work checks extended – The Government has recently confirmed that the temporary adjustments to Right to Work checks made on 30 March 2020, catering for COVID-19 remote working arrangements which were due to end on 16 May 2021, will now be extended to 20 June 2021 to align with the easing of lockdown restrictions. From 21 June 2021, employers must either check their prospective employees’ original documents or check the prospective employees’ right to work status online. Employers will not be required to carry out a follow up or repeat check where a right to work check was carried out between 30 March 2020 and 20 June 2021 (inclusive), in the prescribed manner under the temporary adjustments.

 

EU Settlement Scheme deadline 30 June 2021

The deadline for the EU Settlement Scheme (EUSS) is looming. The Home Office has increased its communications with a campaign about the EUSS to encourage all those who are eligible to apply. EU, EEA and Swiss nationals now have only four weeks to apply for settled or pre-settled status if they haven’t already; the closing date is 30 June 2021. EU nationals who miss the 30 June deadline for applying to the EUSS, will lose their right to live and work in the UK. If an EU national has missed the deadline they will only be able to secure status under the EUSS if they have reasonable grounds for not having applied before the deadline. If your organisation employs EU nationals this could cause staffing issues from 1 July. In light of the upcoming deadline, employers should:

• Continue to encourage their EU employees to apply to the EUSS as a matter of urgency, and in any case ahead of the deadline.

• Invite staff to voluntarily provide information confirming settled or pre-settled status, or evidence of an application to the EUSS. Employers cannot insist staff apply or insist they provide evidence of having done so.

• Identify the portion of its workforce whose right to continue living and working in the UK is contingent on a successful EUSS application. This will enable your organisation to make staffing contingency plans if required.

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

Health and safety protection extended to ‘workers’

New health and safety protection for workers came into effect on 31 May 2021. This new legislation will protect workers who when faced with a ‘serious and imminent’ danger at work are subject to a detriment (for example, reduced pay) for leaving work, proposing to leave, refusing to attend or taking appropriate steps to protect themselves or others in the workplace. Previously, UK law only offered this protection to ‘employees’. Organisations will need to be aware of this extended protection for workers, especially if its employees and workers are afforded differing levels of health and safety protection. 

Employment changes on the horizon

On 14 May 2021, the Government published its response to the Women and Equalities Select Committee report: Unequal impact – Coronavirus and the gendered economic impact. The response provides some detail about the Government’s continued plans for employment law reform which will take into account the impact of the pandemic, including that on women. Although there is no confirmation of likely timescales, key areas on the Government agenda are:

• Flexible working – There will be a new consultation on making flexible working the default position, unless employers have good reasons not to.

• Pregnancy and maternity discrimination – Redundancy protection will be extended to pregnant women, mothers on maternity leave and for 6 months after a mother has returned to work. This will also apply to those taking adoption leave and shared parental leave. These changes will be brought forward when Parliamentary time allows.

• Statutory sick pay (SSP) – The Health Is Everyone’s Business consultation (July 2019) set out a number of proposals to reduce ill-health related job loss, including reforming SSP and considering the role that employers can and should play in supporting employees who are disabled or have long-term health conditions to stay in and thrive at work. The Government’s response to this consultation will be published in due course.

• Parental leave and pay – The Government consulted on proposals to require large employers to publish their parental leave and pay policies in July 2019. The consultation received over 3,500 responses and the response will be published in due course.

• Ethnicity pay gap reporting – The Government consulted on options for employer-level ethnicity pay reporting in 2018/19. The Government has since met with businesses to understand the barriers to reporting and explore what information could be published to allow for meaningful action to be taken. A methodology testing exercise has also been conducted to understand the complexities outlined in the consultation. This highlighted the genuine difficulties in designing a methodology that will produce accurate figures that facilitate analysis, interpretation and meaningful action. The Government will continue to analyse this data and respond to the consultation in due course.

 

On demand videos

Immigration and the associated discrimination risks – Last week, our employment and immigration specialists provided an update on Right to Work checks and the EU Settlement Scheme (in view of the upcoming deadline) and some valuable insight about how to manage discrimination risks during the recruitment process. In case you missed it and would like to watch it back in your own time, please contact us for a copy of the recording.

Releasing lockdown – As we continue to support our clients with easing out of lockdown, we’ve put together a series of bite-size videos setting out our top tips on some of the most common queries that we are advising on. You can access them by clicking the links below.

• Heading back to the office: our top tips for planning to return to the office
• Can I make workplace COVID testing mandatory?
• Supporting employees with feelings of loneliness