Read on for our monthly digest for employers on upcoming employment law changes and key employment cases that have recently been decided.
Long COVID & disability discrimination
Burke v Turning Point Scotland
Mr Burke began working as a caretaker for Turning Point Scotland in April 2001.
In November 2020, he contracted coronavirus and took time off work to isolate. He initially described his symptoms as “flu like” but then developed further medical issues, including severe headaches, joint pain, problems concentrating and fatigue and exhaustion.
His period of sickness absence continued, during which Mr Burke had numerous appointments with his GP and received several extended sick notes for post-viral fatigue syndrome.
In April 2021, following a telephone consultation between Mr Burke and occupational health, the resulting OH report stated it was “unlikely” that the disability provision in the Equality Act would apply to Mr Burke. It found Mr Burke was “medically fit to return to work”, and recommended a phased approach to enable his return.
However, in August 2021, nine months after testing positive, he was dismissed by is employer on ill-health grounds.
Mr Burke claimed he was unfairly dismissed and discriminated against on the basis of disability and age, due to his disability being long Covid. He also claimed that his employer had failed to provide a redundancy payment.
The full judgment has yet to be passed by the tribunal in respect of the unfair dismissal claim, however, during a preliminary hearing this month, tribunal Judge Young ruled that in this instance, the claimant’s long Covid did amount to a disability under the Equality Act.
This meant that his illness had met the threshold under the legislation of having a “long-term substantial adverse effect”, meaning it was likely to last for a period of 12 months and that his impairment did have “an adverse effect on day-to-day activities”.
Employer takeaways
The tribunal’s decision in this case will not be binding on other courts and the judgment is expected to be the first of many rulings on the issue of long COVID and unlawful disability discrimination, which could see higher courts reaching a different conclusion when tested and could mean not all cases of long Covid amounting to a disability.
Employers are facing the emerging issues of workers presenting with long COVID, requiring a considered approach to avoid potential claims. Given the risk of compensation in disability discrimination cases, it is advisable for employers, where an employee complains of long COVID, to consider the illness as a qualifying disability under the Equality Act, and to act in compliance with legislative requirements, such as considering reasonable adjustments.
Unfair dismissal ACAS uplift
Rentplus v Coulson
The claimant was made redundant following a reorganisation of the company and change in senior leadership. She brought a claim for unfair dismissal.
At first instance, the tribunal found that the employer’s redundancy process and the grievance procedure that followed were both a ‘sham’. The tribunal found the employer’s failures were so egregious that it awarded the claimant an uplift of 25% in her compensation, which is the maximum allowable for the employer’s failure to follow the required ACAS Code.
The respondent brought an appeal, contesting the amount of uplift awarded by the tribunal.
The EAT dismissed the appeal and held there was no error of law by the tribunal in awarding an uplift of 25%. The EAT highlighted the questions which would often be helpful when considering ACAS uplift:
- Is the claim one which raises a matter to which the ACAS Code applies?
- Has there been a failure to comply with the ACAS Code in relation to that matter?
- Was the failure to comply with the ACAS Code unreasonable?
Employer takeaways
This decision highlights the importance for employers of following the ACAS Code when conducting redundancy and grievance procedures, since failure to meet the required standard can render an uplift of up to 25% of the compensation just and equitable.
Collective bargaining
Ineos Infrastructure Grangemouth Ltd v Jones & Ors; Ineos Chemicals Grangemouth Ltd v Arnott & Ors
The claimants had been successful at first tribunal in their claims in respect of s145B of the Trade Union and Labour Relations (Consolidation) Act 1992 on the basis that:
- the communicaiton sent to the employees was not a ‘unilateral obligation’ as contended by the employer – rather it was of the nature of an offer, and that
- the offers had achieved the prohibited result,
- and that the employer’s sole or main purpose had been to achieve that result.
S145B Trade Union Labour Relations Consolidation Act prohibits employers bypassing trade unions to undermine collective bargaining by negotiating offers directly with workers. Workers can be awarded compensation in such cases of unlawful inducement.
The employer appealed the decision in 2018. The appeal, however, was ‘sisted’ until the Supreme Court had made its ruling in Kostal UK Ltd v Dunkley & Ors [2021], which went on to lay down a causation test.
Once heard by the EAT, the appeal was eventually dismissed.
The EAT found the ET had not erred when questioning whether or not the communication sent to the employees was an ‘offer’.
Furthermore, even though the ET decision predated that in Kostal and, as a result, had not directly applied the causation test as it is now defined, it had addressed the correct question, and as a result, its decision was entirely consistent with that in Kostal and no legal error had been shown.
Finally, the ET was presented with sufficient evidence to support the conclusion that the employers’ sole or primary goal was to achieve the unlawful result, and there was no legal error that could be found in that part of their justification.
Employer takeaways
Employers engaged in collective bargaining cannot consider collective barganining as complete where its final has been offer rejected so as to avoid the provisions of s145B Trade Union Labour Relations Consolidation Act.
Need assistance?
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Last updated: 26 June 2022
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
