Employment Law Update | May 2021
Welcome to another edition of our employment law update.
We hope that employers and employees alike are enjoying their new found freedoms following the relaxation of Covid-19 restrictions, and that workplaces will soon be bustling with the sound of productivity and colleagues sharing their lockdown experiences at the water cooler (whilst wearing facemasks and socially distancing, of course).
In this employment law update we will unpack some of the recent employment law updates you should be aware of:
- Can an employee be fairly dismissed for refusing to wear a facemask?
- Was it automatically unfair to dismiss an employee who refused to return until after lockdown?
- Who can be a ‘comparator’ in equal pay claims?
- Does the contract determine if someone is self-employed?
- Long Covid advice for employers and workers.
Our specialist employment lawyers James Austin and Gemma Sherbourne can advise if you have any questions or queries on the issues raised in this update.
In Kubilius v Kent Foods Ltd an employment tribunal has held that an employee can be fairly dismissed in circumstances where the employee refused to wear a facemask when attending a client’s site. The employee was a lorry driver for Kent Foods Ltd. The majority of his work involved delivering goods to one particular client’s premises, namely, Tate & Lyle’s Thames Refinery site.
Whilst on T&L’s site, the employee was repeatedly asked to wear a facemask but refused to do so. This resulted in T&L banning him from its site meaning he couldn’t attend the site to deliver goods in the future. Kent Foods asked T&L to allow the employee back on site, but they refused, and they were unable to redeploy him elsewhere. Following a comprehensive investigation the employee was summarily dismissed.
In reaching its decision to dismiss the subsequent unfair dismissal claim, the Tribunal gave particular weight to the following factors:
- The Employee Handbook states that a good relationship with clients and suppliers is essential to the respondent’s business.
- The Driver’s Handbook imposes an obligation on drivers to comply with PPE instructions at a client site.
- The employee could no longer fulfil his contractual role due to the T&L site ban.
- The employee’s lack of remorse after the site ban.
The tribunal therefore found the decision to dismiss fell within the range of reasonable responses, so the dismissal was fair.
Whilst employers may welcome this decision, as it is only at tribunal level it isn’t binding on other tribunals. Employers should still exercise caution when dealing with similar cases, particularly in the case of employees who fail to wear PPE intermittently, or where there is no damage to the business or the employees’ ability to perform their contractual obligations. Instead, employers should consider all the circumstances of each individual case and take advice prior to any dismissal.
Sections 100(1)(d) and (e) of the Employment Rights Act 1996 (ERA 1996) provide employees with protection from dismissal for exercising their right to leave the workplace and take steps to protect themselves where they reasonably believe there is serious and imminent danger. In order to claim unfair dismissal employees usually need two years’ service, however, dismissal for exercising this right is considered automatically unfair so no minimum period of service is required.
In Rodgers v Leeds Laser Cutting Ltd, Mr Rodgers was dismissed a month after messaging his employer to inform it that he would not return to work until the “lockdown had eased” because he was worried about infecting his children (a baby and a child with sickle-cell anaemia) with Covid-19.
The tribunal found the dismissal was not automatically unfair because:
- A day after leaving work he had driven a friend to hospital in breach of the self-isolation guidance.
- He could not show there had been a danger. At the time of his dismissal Government guidance was hand washing and social distancing both of which had been implemented by the employer.
- He hadn’t taken any steps to avert danger or raise concerns with his manager before leaving.
The tribunal also rejected Mr Rodgers’ claim that Covid-19 in itself created a serious and imminent danger, stating that accepting such an argument could allow any employee to refuse to work and then rely on sections 100(1)(d) and (e).
Once again this is only a tribunal decision so is not binding, but it does show that employers will be better protected from health and safety claims if they are complying with the current Government guidance as doing so puts the onus on employees to show the workplace is dangerous.
The Supreme Court delivered a landmark Judgment on 26 March 2021 in Asda Stores Ltd v Brierley and others, holding that the roles of shop floor workers and warehouse staff at Asda can be compared for the purposes of assessing equal pay. The implications of the decision are not confined to the retail sector.
Domestic and European legislation guarantees women the right to be paid the same (and enjoy the same contractual terms) as male colleagues who are performing ‘equal work’. As part of the ‘equal work’ test, a claimant must first compare her contractual terms with those of a comparable man known as a ‘comparator’, and a comparator must, amongst other things, work ‘in the same employment’ as the claimant.
The term ‘in the same employment’ has been the subject of considerable debate and is a complex area. However in basic terms, the comparator must be (or have been) employed by the same employer (or by an associated employer) at either the same establishment or at different establishments where “common terms” of employment apply. It is the latter part which was tested here.
In reaching its decision, the Court concluded that (1) the claimant’s and the comparator’s employment contracts must be broadly similar at their respective establishments; and (2) if there are no employees in the comparator’s group at the establishment at which the Claimant works (as was indeed the case in instances where depots were separated from Asda stores), courts must consider whether the comparators would have been employed on broadly similar terms to their existing ones if they were employed at the same establishment as the claimants. The Supreme Court agreed with the Court of Appeal’s decision that Asda applied common terms and conditions to shop floor and warehouse workers notwithstanding where they work. Therefore even if the warehouse workers had been employed at the same location as the shop floor workers, their terms would not have been equal. Asda’s appeal was dismissed.
The Judgment is just the first hurdle in the employees’ equal pay claim against their employer. The next stage of the claim is assessing whether the jobs are of equal value, which may involve years of litigation.
In light of this decision, employers may wish to review terms of different groups of workers to ensure that they are not at risk of falling foul of the equal pay legislation.
In Addison Lee Ltd v Lange and others, the Court of Appeal refused Addison Lee – a private car hire and courier service – permission to appeal against an Employment Appeal Tribunal’s decision that:
- their minicab drivers are ‘workers’; and
- time in which drivers are logged onto the Addison Lee computer system, and not taking a break, does constitute working time.
The Court dismissed Addison Lee’s argument that the first instance Tribunal should have given more weight to the precise terms of the minicab drivers’ employment contracts (which were unequivocal that the drivers were engaged as independent contractors) when arriving at its decision.
The Court held that tribunals should disregard any contractual provisions that do not reflect the reality of the relationship between employer and worker. It was therefore within the Tribunal’s remit to determine on the facts of the case that the drivers were workers.
The decision is a further demonstration that courts and tribunals will look beyond the terms of the contract when assessing whether an individual is an employee, worker or an independent contractor. It’s a good reminder that if you describe people working for you as self-employed you should try and make sure both the contracts and the reality reflect that.
Acas has published advice for employers and workers in response to the growing impact of long Covid in the workplace.
‘Long Covid’ is a term which is used to describe symptoms that are experienced by an individual for weeks, if not months, after the two-week period where Covid symptoms are severe.
Symptoms include, but are by no means limited to, tiredness, shortness of breath, memory loss/lapse in concentration, dizziness, depression and anxiety. A full list of symptoms to monitor is provided in Acas’ advice.
Acas suggests that employers and workers should discuss the impact of long Covid as early as possible and work together to find ways to help and support affected employees. Employers are advised to establish and maintain effective systems for identifying workers suffering from long Covid at an early stage.
Employers should be aware that the effects of long Covid can be intermittent. A worker might seem well, but then the next day their symptoms can dramatically worsen, and that worker may need to be off work again.
The usual rules for sickness absence and sick pay apply when someone is off work because of long Covid and employers should be aware that such illness may constitute a disability for employment law purposes, so handling an absence incorrectly could lead to claims of disability discrimination. Contact us if you want practical advice on how to deal with any such absence.
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