Employment Law Update – October 2021

Monday 25th October 2021

Be careful what you say in emails, it could be costly!

It is a widespread misconception that private conversations on email or other messaging apps on work devices will remain private.

It is common practice for disgruntled or former employees to send data subject access requests (DSARs) to their employers to try and gain information to use as leverage in a dispute, often with the aim of achieving a sum of money in settlement. Employees do not need to provide reasons for making a DSAR.

Upon receiving a DSAR, employers are required to disclose all documentation and information that they hold in relation to that employee, including emails and messages which the individual was not a party to, but was the topic of discussion. There are only limited exceptions. An employer cannot withhold documents simply because they are damaging or embarrassing.

In addition to the risks posed by DSARs, if an employee were to bring an Employment Tribunal claim, the employer will be required to disclose all documents in their possession relevant to the claim. It is possible that documents legitimately excluded from a DSAR would be caught by this requirement.

Employers should be careful what they put in writing and think about whether it is necessary to do so. For example, an email or WhatsApp message on a work mobile to a colleague expressing an opinion about an employee would potentially be disclosable, irrespective of confidentiality. The question to ask yourself is: would I be happy for a Judge to read this out in a hearing?

Employers should ensure that all staff are trained on this issue, as their email correspondence  could end up in front of the individual or an Employment Tribunal, which could be damaging no matter how junior or senior the writer. If an issue must be discussed, picking up the telephone may be the best way forward.

For full advice on your obligations following a DSAR and the best practice for avoiding damaging disclosures, please get in touch.

Are Zero-hours workers  entitled to remuneration during a period of suspension?

During a period of suspension, a zero-hours worker may not be entitled to be paid, as was held in the case of Mr A Agbeze v Barnet Enfield and Haringey Mental Health NHS Trust.

Facts and Decision

In this case, Mr Agbeze issued a claim against Barnet Enfield and Haringey Mental Health NHS Trust for an unlawful deduction from wages following a period of suspension where he had not been paid. Agbeze was under a zero-hours contract with the Trust and argued that there was an implied term in the contract which required him to be paid an average wage during any period of suspension, if the Trust would otherwise have had work available for him during this time.

The Employment Tribunal dismissed his case and Agbeze appealed to the Employment Appeal Tribunal.

The Employment Appeal Tribunal dismissed the appeal, referring to the fact that there was no obligation on either the Respondent or the Claimant to provide/perform work under the agreement. A key provision of the agreement was that the Claimant would receive remuneration in accordance with the duties carried out, whilst providing services to the Respondent.

The fact that there was no express term that any periods of suspension would be unpaid was not deemed to be significant by the Tribunal. Other provisions within the agreement made it clear there was no underlying right for the Claimant to be paid unless carrying out work for the Respondent which, as he was suspended, he was not.

Despite this, we would always advise including an express provision within a zero-hours contract, or associated disciplinary policy, making it clear that any periods of suspension would be unpaid.

The same principle should not, however, be applied to non-zero-hours workers. As other employees have a contractual right to be provided with work, not paying them for periods of suspension is likely to be considered an unlawful deduction from wages because, for example, it is applied before any misconduct has been established by a fair disciplinary procedure.

How employers could avoid potential discriminatory issues arising from Long Covid

A large proportion of individuals who have been infected with Covid-19 go on to develop Long Covid, which is defined as a debilitating condition that produces symptoms such as fatigue, muscle aches, chest pains and breathing difficulties. An individual can suffer from Long Covid for a considerable period of time, with some recovering after 12 weeks and others having symptoms months later.

Under the Equality Act 2010, to be regarded as a disability the impairment must be ‘long-term’ –   last, or expect to last, for at least 12 months. Due to how new Long Covid is, there are only a few cases lasting more than 12 months.

However, we can expect to see more instances of this. Furthermore, whilst working from home, employees may have kept such conditions to themselves; now that we are beginning to return to the office, reports may begin to rise. Employees with conditions such as asthma may be more susceptible to greater negative effects of Long Covid.

If an employee establishes that they have a disability, they are entitled to protection from discrimination and their employer has a duty to make reasonable adjustments for them.

Whilst, at the moment at least, it is arguable as to whether Long Covid amounts to a disability, employers should minimise the risk of claims by assessing whether employees reporting symptoms of Long Covid require reasonable adjustments and whether policies can be amended or put in place to prevent them from being placed at a disadvantage.

If an employer was to dismiss an individual for having poor attendance as a result of Long Covid, there is a risk this could constitute discrimination arising from a disability and an employer would need to be able to show it was a proportionate means of achieving a legitimate aim.

Not only is it important to consider Long Covid in the context of disability discrimination (which may or may not be established), but in the context of different groups of employees.

For example, Long Covid has been shown to disproportionately affect women and those from BAME communities. Where an employer’s practices place individuals with Long Covid at a disadvantage, they open themselves up to claims of indirect sex and race discrimination – without the employee having to get over the hurdle of establishing a disability. Any disadvantageous practices must be a proportionate means of achieving a legitimate aim.

Employers should take into account the uncertainty around Long Covid and how individuals may be able to work on one day, but not the next. Any policies or procedures should be made clear to employees and specific members of staff should be allocated to deal with them. Employers may also consider training managers on how to handle Long Covid and those employees which may be falsely claiming to be suffering from it.

If you would like to know more on any of these developments, then please contact one of our employment law experts below.