Read on for our monthly digest for employers on upcoming employment law changes and key employment cases that have recently been decided.
COVID health & safety unfair dismissal
Rodgers v Leeds Laser Cutting Ltd
In what may be one of the first of many tribunal decisions relating to COVID health & safety dismissals, an employee was held not to have been automatically unfairly dismissed as a result of his refusal to come into work during the first national lockdown.
While employees must ordinarily have two years’ continuous service to bring a claim for unfair dismissal, automatically unfair dismissal claims can offer ‘day one’ protection in certain circumstances. This includes the right not to be unfairly dismissed on health & safety grounds, as prescribed under section 44 of the Employment Rights Act 1996.
Under s44, if an employee (and from 31 May 2021 those with ‘worker’ status) is subjected to a detriment – such as dismissal – because they reasonably believed that being at work would place them (or someone else, such as a household member) in serious, imminent danger, this could give rise to a successful automatic unfair dismissal claim.
Facts of the case
The claimant, Mr Rodgers, had worked for his employer since 2019 in a warehouse “the size of half a football pitch”, typically with five other people present.
Prior to the UK’s first lockdown, one of his colleagues displayed symptoms of COVID and was sent home to isolate.
The warehouse remained open after the national lockdown was announced on 23 March 2020 as it did not feature on the Government’s list of workplaces that needed to close.
Mr Rodgers’ employer put measures in place to help prevent transmission and stop the spread of the virus, such social distancing, regular cleaning of workstations, staggering start and finish times and the voluntary use of facemasks, which were provided.
Two days later, the claimant self-isolated due to a cough which, as he was unable to get a test at the time, he attributed to the dust in the warehouse. He later texted his manager, informing him that he was going to stay off work “until the lockdown had eased” as he did not want to risk bringing COVID home to his children, one of whom had sickle cell anaemia. His manager replied “okay mate, look after yourself”.
No further communication took place between the claimant and the organisation until 24 April 2020, when he learned he had been dismissed for unclear reasons.
Mr Rodgers then brought a claim to the tribunal for automatic unfair dismissal on the grounds of his “reasonable belief” the warehouse posed a serious and imminent threat to his family’s health. He could not bring a claim for unfair dismissal as he did not have the requisite 2 years’ service.
The tribunal dismissed Mr Rodgers’ claim.
The tribunal considered whether the claimant did have a “reasonable belief” as outlined in the legislation. They did accept he had significant concerns about the ongoing pandemic, and how this could impact his children. However, the claimant had failed to specify to the organisation why he felt the workplace was unsafe. He had refused to come into the warehouse despite agreeing that he would have been able to socially distance and had also failed to demonstrate why the other measures taken to keep staff safe, such as the additional cleaning, did not go far enough, providing what the tribunal considered to be “vague” and “contradictory” evidence.
The tribunal did, however, take issue with how the claimant was dismissed and noted that had he been able to bring a claim for unfair dismissal, it is likely to have succeeded.
Takeaways for employers
In many ways the decision will be a relief to employers fearful of tribunal claims emanating from what was a difficult and unprecedented period. However, it was ‘only’ a first instance decision and the claimant was not able to claim unfair dismissal as he did not have two years’ continuous service.
The key takeaway is that it was the employee’s failure to demonstrate his health & safety concerns to his employer that ultimately led to the decision, not the fact that the claimant refused to come into work due to safety concerns.
Had he raised valid concerns which where then were ignored by the organisation, the decision may well have been different. As such, employers are advised to take seriously any concerns raised by their workforce in relation to workplace conditions, and, if necessary, consider any relevant further changes in response.
Elliot v Dorset County Council
In Elliot v Dorset County Council, the claimant (Mr Elliot) was an employee who had been subject to disciplinary proceedings relating to allegations from his new line manager that he had been logging more hours than he had actually worked. Mr Elliot stated he had an agreement with his former manager that he would log the hours of 9-5 as worked, irrespective of the actual hours worked as he often worked later into the night at home.
During the course of the disciplinary procedure, Mr Elliot was diagnosed with an autism spectrum disorder and Asperger’s syndrome. He then brought a claim against his employer for disability discrimination.
Employees are protected under the provisions of the Equality Act 2010 by virtue of a disability only where they suffer a physical or mental impairment with a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
The tribunal judge found against Mr Elliot, determining the claimant’s impairment did not meet the definition of a disability under the Equality Act as it did not have a substantial, adverse effect on his ability to carry out day-to-day activities.
Mr Elliot appealed.
The EAT held the tribunal at first instance had failed to consider whether the claimant’s impairment had a substantial adverse impact on his ability to carry out normal day-to-day activities, in accordance with the Equality Act 2010 definition.
The statutory definition of ‘substantial’ is further defined in the Equality Act as “more than minor or trivial”. The EAT held this qualification takes precedence over any other guidance such as the Equality Act 2010 Code of Practice.
This EAT decision provides helpful indication for employers that the
Employers should be aware of the Equality Act 2010 definition of a disability, and the meaning of the statutory definition of ‘substantial’ as being’more than minor or trivial’ sets a relatively low bar. Employers should ensure they are providing the relevant support and any reasonable adjustments to those who may be considered disabled to mitigate the risk of discrimination claims.
Parental leave & sex discrimination
Price v Powys County Council
In Price v Powys County Council, the Employment Appeal Tribunal found it was not direct sex discrimination for the employer to provide enhanced adoption pay to a woman on statutory adoption leave (SAL) but no enhanced shared parental pay to a man on shared parental leave (SPL).
Mr Price brought a claim for unlawful discrimination against his employer, Powys County Council, on the grounds that they paid employees on statutory maternity leave (SML) and SAL more than employees on SPL.
At first instance, the tribunal held there were material differences between Mr Price and his chosen comparators (a woman on SML and a woman on SAL), and that the correct comparator in this case would be a female employee on SPL. Since a female employee on SPL would have received the same pay as Mr Price under the council’s policy, there was no direct sex discrimination.
Mr Price appealed to the EAT for the tribunal’s rejection of the second comparator – a woman on SAL.
The EAT upheld the first tribunal’s decision that a woman on SAL was not an appropriate comparator in this case. The reasoning was that:
- Material differences existed between SPL and SAL, including that SAL can commence prior to the child’s placement, whereas SPL cannot, which the ET identified at first instance.
- SAL and SPL serve different purposes. While SPL is primarily intended to facilitate childcare, SAL entails a wider purpose of forming of a parental bond and creating a safe environment for the child.
The decision confirms that employers may provide statutory entitlements in respect of paternity leave while offering enhanced, contractual entitlements for adoption leave without such a policy constituting sex discrimination.
Employment tribunal presidents release tribunal roadmap for 2021-2022
A new roadmap has been published by the Presidents of the employment tribunals setting out how claims and hearings are to be conducted in the coming years.
The Presidents acknowledge that a return to pre-pandemic ways of working is not an option for employment tribunals. A combination of remote, hybrid and in-person hearings will continue. While the face to face environment is acknowledged as being preferred, video hearings will be used to help bring down the backlog of tribunal claims for at least the next two years.
A new virtual region is being introduced in April 2021 to provide greater flexibility for judges, members and staff to meet and hear cases virtually generated from regions across England and Wales. The new region will operate alongside the existing ten regions.
With more than half of outstanding tribunal cases in London and the South East, the virtual region’s resources will initially be used to help process the backlog.
16 new Legal Officers have started work in tribunals across the UK. Their role is to help with ‘case progression’ and be given delegated powers by the Presidents to help deal with certain aspects of procedure which will help to address the outstanding case load.
A new case management system is also in development. It is being designed to increase the efficiency of the case management process.
New default formats for hearings
The following default positions are set to apply for different types of hearings for 2021-22. Note that tribunal judges retain flexibility and discretion to decide which format is appropriate for each case. Parties may also make a written request to change the format of the hearing.
|Preliminary hearings listed in private for case management purposes||Telephone or video|
|Preliminary hearings in public to determine a preliminary issue (e.g. time limits, employment status) & Preliminary hearings to consider an application to strike out or for a deposit order||Video|
|Applications for interim relief||Video|
|Judicial mediations||Telephone or video|
|Final hearings of short track claims (e.g. unpaid wages, notice, holiday pay, redundancy pay etc)||Video|
|Final hearings of standard track claims (unfair dismissal)||These hearings will vary across the country. Some areas will see more of a return to in-person hearings whereas very busy areas such as London and South East will default to video.|
|Final hearings of open track claims (discrimination and whistleblowing)||These hearings will also vary but in most parts of Britain, they will default to in-person. In busier areas there will be a greater reliance on video or hybrid formats.|
|Other hearings listed specifically to deal with applications for reconsideration or costs/expenses||Video|
If you have a question about employment case law and the impact of tribunal and court decisions on your business, DavidsonMorris’ experienced employment lawyers can help. Working closely with our specialist human resource colleagues, we offer a holistic advisory and support service for employers encompassing both the legal and people risks of workforce management. Speak to our experts today for advice.
Last updated: 28 April 2021