Employment Law Update- May 2022

Friday 27th May 2022

Claim relating to COVID-19 concerns dismissed by the EAT

An employee who refused to return to work during the COVID-19 pandemic was found not to have been automatically unfairly dismissed in Rodgers v Leeds Laster Cutting Ltd.

Facts

The Claimant worked in a large warehouse with five other people. On 16 March 2020, a colleague of the Claimant showed symptoms of Covid-19 and was sent home to self-isolate.

Following the first lockdown on 23 March 2020, the warehouse remained open as per government guidance and a risk assessment was carried out. Appropriate measures were then put in place to protect against Covid-19, including social distancing and regular cleaning of workstations.

A few days later, the Claimant had to self-isolate as he developed a cough which he attributed to dust at work. Subsequently, the Claimant sent an email to his manager informing him that he was going to ‘stay off work until the lockdown had eased’ due to worries of bringing Covid home to his children, as one of them suffered from sickle cell anaemia.

No further contact occurred between the Claimant and Respondent until 24 April, when the Claimant discovered he had been dismissed. The Claimant brought a claim to the Employment Tribunal for automatic unfair dismissal on the basis of his reasonable belief the warehouse posed a serious and imminent threat to this family’s health.

Decision

The Employment Tribunal (ET) dismissed his claim, finding the Claimant failed to explain to the organisation why he felt the workplace was unsafe. The Claimant had refused to come into the warehouse and was unable to demonstrate why the measures put in place did not go far enough.

The Tribunal concluded that the Claimant’s decision to stay off work was not ‘directly linked to his working conditions’ but was down to general concerns about the virus.

Comment

The Employment Appeal Tribunal found that the ET was correct to find that the threshold of an employee having a reasonable belief that there was a serious and imminent danger in attending work was not met in the facts of this case. Certain measures had been taken to mitigate COVID-19 risks in the workplace, and the employee could have taken reasonable steps to avoid the dangers relied upon outside of work.

It is important to note that this decision is specific to the facts of the case and any concerns about attendance in the workplace should be dealt with on a case by case basis in order to try and reach a mutual arrangement through good communication between employers and employees.

This decision is a sensible reminder that the necessary reasonable belief of imminent danger required in order for an employee to be able to rely on protections of s.100 Employment Rights Act 1996, is a relatively high bar and should not be relied upon lightly.

Claimant brings successful sexual harassment claim after being called ‘bald’ at work

An employee who complained that he was a victim of sexual harassment was successful in his claim, after comments made about his lack of hair in Finn v The British Bung Manufacturing Company Limited.

Facts

The Claimant was an electrician and had worked for the Respondent for over 20 years. In July 2019, there was an altercation between the Claimant and a colleague, which led to the colleague threatening the Claimant with physical violence and using offensive comments, including calling the Claimant ‘bald’. After providing a formal statement to the Respondent, the Claimant decided not to pursue the allegation. Further incidents occurred in March 2021, when the Claimant had to leave work due to threatening behaviour from colleagues.

The Claimant had written a statement about the incident with his son, a police officer, on official West Yorkshire Police headed paper. The Respondent alleged that the Claimant had misled them, and dismissed the Claimant without notice for misconduct in July 2021.

Decision

The Tribunal ruled that there was a ‘connection’ between the word ‘bald’ and the protected characteristics of ‘sex’. Whilst the Tribunal recognised that baldness exists amongst some women, they concluded that baldness is much more prevalent in men than women. The comments made towards the Claimant were found to be made with a view of hurting him and the conduct was “unwanted and a violation of the claimant’s dignity”. As a result, the Tribunal upheld claims of sexual harassment, unfair dismissal and wrongful dismissal.

Comment

This case emphasises to employers the importance of approaching unwanted and intimidating behaviour in the workplace with caution. Claims of discrimination can be successful, even one-off comments made as part of ‘office banter’ and where the comment is not directly about a protected characteristic.

You should ensure that the standards required are emphasised to employees, this can be done by:

  • Having robust, updated policies on anti-bullying/harassment and equality and diversity. Ensure these are reviewed regularly and brought to the attention of employees along with the relevant consequences for any breach;
  • Effective management of grievances and disciplinaries in line with the relevant policies, ensuring appropriate action is taken; and
  • Provide regular, up-to-date equality and diversity training for employees.

For further advice on any of the above, please speak to a member of the employment team.

What is the latest with the Employment Bill?

In 2019, the Government announced that it was planning to introduce an Employment Bill which would make a number of changes to UK employment law. Due to the pandemic, the Bill was side-lined and it was widely expected that it would be addressed in the Queen’s Speech on 10 May 2022. As it was not mentioned in the Queen’s Speech, it is unclear on whether the Government will accept the various reforms which the Employment Bill was expected to cover.

What changes were expected in the Employment Bill?
  • Making flexible working the default, unless there is a good reason for it not to be. It was also proposed to make this a ‘day one’ right, removing the requirements of having 26 weeks’ service;
  • Extending redundancy protection for pregnant employees, giving them the right to be offered suitable alternative vacancies until six months after the end of maternity leave;
  • Introducing paid neonatal leave for up to 12 weeks and unpaid carers’ leave;
  • Introducing a right for zero-hours workers with 26 weeks’ service to request a contract with more predictable hours, new rights to reasonable notice of working hours and compensation for short-notice shift cancellation;
  • Requiring employers to pass on all tips and service charges to workers in full; and
  • Creating a single enforcement body for employment rights.
Is there any hope for the Employment Bill in the future?

As the proposed reforms mentioned above did not appear in the Queen’s Speech, it is very unclear whether they will be addressed in the near future. There will undoubtedly be an expectation that these issues should be progressed sooner rather than later, as they are considered important workplace issues.

The government seems to have been subject to criticism since the Queen’s Speech, as many workers and unions are unhappy with the speed of change. Could this lead to employers considering some of their own practices now in order to create a positive change in recruitment and retention for the long-term?

For any advice on the above, please contact a member of the employment team.

If you require any further information on the above developments please do not hesitate to get in contact with a member of the Employment Team.