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Employment Law Update | July 2021

LCF Law Employment Law E-Brief | Harrogate Leeds Bradford

Welcome to our first employment law newsletter since the rules have been relaxed. Over the last few weeks we’ve faced lots of questions from employers about how to deal with returning to the workplace following “Freedom Day".  We’ve provided some details below, but please don’t hesitate to contact James Austin or Gemma Sherbourne if you need any help.

What should the workplace look like from 19 July?

Whilst most restrictions are supposed to be removed from 19 July employers continue to have a duty to take care of the health, safety and welfare of their employees. They also need to continue to comply with their duties in respect of avoiding discrimination. The Government has also updated its working safely guidance to cover the period from 19 July. This is additional guidance to take into account when trying to comply with existing duties.

There are six different guides including one for offices, factories and labs, another for shops, and separate guidance for restaurants, pubs, bars etc. Amongst other things the guidance suggests:

  • health and safety assessments
  • adequate ventilation
  • regular cleaning
  • turning away those with COVID-19 symptoms
  • enabling people to check in to premises
  • communicating and providing training on the current safety measures in place
  • avoiding hot desking (or providing sufficient cleaning if hot desking is used).

Whilst the rules on social distancing were supposed to be removed from 19 July, the guidance promotes reduced contact suggesting employers consider:

  • fixed teams so employees work with the same people and limit the number of people that can be impacted by someone becoming ill
  • avoiding face to face working or using screens or barriers where people are in close proximity (or back-to-back and side-to-side working)
  • continuing use of face masks in enclosed or crowded spaces.

Employers are also advised to give extra consideration to workers who are at higher risk, and those facing mental and physical health difficulties. Whilst guidance in respect of clinically vulnerable people doesn’t provide a right to work from home, it does remind employers of their duty to look after employees’ health safety and welfare and suggests regular testing could be one means of protecting vulnerable staff. Obviously, there may be various problems in trying to force staff to carry out testing at workplaces though.

What are the testing and self-isolation requirements?

The Government has also published “Guidance: Coronavirus: how to stay safe and help prevent the spread from 19 July”. The guidance states the Government is keeping in place:

  • targeted asymptomatic testing in high risk workplaces
  • isolating when positive or when contacted by NHS Test and Trace
  • cautious guidance for individuals, businesses and the vulnerable whilst prevalence is high including:
    • whilst Government is no longer instructing people to work from home if they can, Government would expect and recommend a gradual return over the summer
    • Government expects and recommends that people wear face coverings in crowded areas such as public transport
    • being outside or letting fresh air in
    • minimising the number, proximity and duration of social contacts
    • encouraging and supporting businesses and large events to use the NHS COVID Pass in high risk settings.

Is long Covid a disability?

The Trades Union Congress has recently called for long Covid to be recognised as a disability. For employment law purposes someone is disabled if they have a condition which has a substantial adverse effect on their ability to carry out normal day to day activities and has had or is likely to have that effect for 12 months or more (or is recurring). As such, as things stand, if someone suffers from long Covid they may well be a disabled person. This would afford them protection from discrimination and also mean that their employers would be required to consider making reasonable adjustments to help them carry out their work.

The TUC has also called for Covid-19 to be classified as an occupational disease so that employees are entitled to compensation.

The calls follow on from a TUC Survey of 3,000 people who had/have Covid. 29 per cent stated they experienced long Covid symptoms which lasted over a year and 95 per cent claimed to have been left with ongoing symptoms. Over half stated they had experienced discrimination or disadvantage due to the condition and five per cent said they had lost their jobs due to long Covid.

Is it sex discrimination to dismiss a woman who refuses to work weekends?

In Dobson v North Cumbria Integrated Care NHS Foundation Trust, Mrs Dobson was a nurse who had an agreement that she could work 15 hours per week spread over Wednesdays and Thursdays. After several years the Trust carried out a review and informed Mrs Dobson that she might have to work at weekends. Mrs Dobson rejected the proposed change to her hours and raised a grievance which was rejected. The Trust then terminated her employment and offered her a new contract which would allow them to require her to work at weekends (on providing notice). Mrs Dobson rejected the new contract and went on to claims of unfair dismissal and indirect sex discrimination.

Mrs Dobson lost at the tribunal. She appealed. The Employment Appeal Tribunal found there could be discrimination. It reiterated that women are less likely to be able to work certain working patterns than men because of childcare responsibilities. This means that while such patterns may apply to both sexes they may put women at a disadvantage and therefore result in indirect sex discrimination, unless the employer can show they are a proportionate means of achieving a legitimate aim. The case was sent back to the tribunal to reconsider.

Whilst this isn’t news to most HR people it is a timely reminder that refusing flexible working requests from women with childcare responsibilities may result in claims of indirect sex discrimination.

Can a tribunal award career-long loss?

In Secretary of State for Justice v Plaistow, Mr Plaistow was a prison guard who form the point he was transferred to a new prison in 2014 was subjected to harassment related to his sexual orientation or perceived sexual orientation, including physical and verbal abuse and enquiries about his sexuality. He asked to be transferred to a different prison but was not and his grievances were not dealt with, instead resulting in him being victimised and an allegation of gross misconduct being made against him. His employment terminated when he was 38 years old.

After a 27 day hearing the employment tribunal found that Mr Plaistow had suffered discrimination and harassment. Medical evidence agreed by both sides stated he had suffered post-traumatic stress, depression and symptoms of paranoia. Mr Plaistow provided medical evidence which suggested his conditions would be life-long. The Prison Service’s medical evidence stated there was insufficient evidence to conclude it would be permanent. The tribunal favoured Mr Plaistow’s expert’s evidence and awarded him career-long losses in the region of £2 million. The tribunal also awarded a 20 per cent uplift to the compensation in respect of a failure to follow the ACAS Code when dismissing Mr Plaistow (the tribunal felt the prison service had just “gone through the motions”) and in failing to deal with his grievances.

The prison service appealed against both the size of the award and the 20 per cent uplift. The Employment Appeal Tribunal declined to interfere with the award stating that it was calculated appropriately given the expert evidence but asked the tribunal to reconsider the 20 per cent uplift.

Again this isn’t anything new, but it’s an important reminder of why it’s so important to tackle discrimination and harassment in the workplace, and how expensive it can be if you don’t. We provide training for staff which can help you defend this type of claim.

“Contact us if you would like more information on 07729 118 961.

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