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Employment Law Update | June 2021
Welcome to our latest newsletter. A chance to catch up with the latest news in the world of HR and employment law. As always please don’t hesitate to contact James Austin or Gemma Sherbourne with any queries.
For those of you fortunate enough to have avoided any news programmes over the last week: the Government intends to consult on whether flexible working should become the default position, unless there are good reasons not to allow it.
We suspect some of you may feel strongly either way so will keep you updated as and when more information becomes available.
In Gibson v Lothian Leisure, Mr Gibson was asked to return to work from furlough as the restaurant he worked in was due to reopen. Mr Gibson was concerned that if he caught Covid-19 he might pass it on to his father who was clinically vulnerable so he raised concerns about a lack of PPE and other precautions. He was told to “shut up and get on with it” and was subsequently sacked by text message.
Mr Gibson had not been employed long enough to claim “ordinary” unfair dismissal. However, the Employment Rights Act allows employees to bring claims of automatically unfair dismissal regardless of service in certain circumstances including where they have been dismissed for taking steps to protect themselves from danger. Mr Gibson claimed that was the reason for his dismissal. The tribunal agreed and awarded him over £20,000 in compensation.
It’s worth noting that this is only a tribunal decision so isn’t binding. It’s also worth noting that the employer did not defend the claim, but it does give an idea of how tribunals are likely to deal with such cases going forwarded.
Was it unfair to dismiss an employee who asked to work from home or be placed on furlough?
In Accattatis v Fortuna Group (London) Ltd, Mr Accattatis had repeatedly asked to either work from home or be placed on furlough, stating that he felt uncomfortable using public transport and working in the office. The employer explained that his job couldn’t be done from home and that the business was busy, so furlough was not appropriate. He was, however, told he could take holiday or unpaid leave. He declined and continued to ask to be furloughed until he was dismissed.
Mr Accattatis didn’t have enough service to claim “ordinary” unfair dismissal so brought a tribunal claim for automatically unfair dismissal alleging he had been dismissed for taking steps to protect himself from danger. The tribunal rejected the claim finding that his demands to work from home or be furloughed were not appropriate steps to protect him from danger.
Ironically, you may think, Fortuna Group sell and distribute PPE.
As this is only a tribunal decision again it is not binding, but it may offer some comfort to those of you who dismissed employees in similar circumstances.
ACAS recently published a report into the practice of firing then rehiring staff. It suggested that the practice has been used more during the pandemic without drawing conclusions as to whether that was due to the pandemic or opportunistic employers. It also contained differing views on whether the practice should be outlawed.
Paul Scully MP has confirmed that the government does not currently propose to devise "heavy-handed legislation" to ban the practice of firing and rehiring. He also confirmed that the government has instructed ACAS to prepare clearer guidance on when fire and rehire should be used and good practice for employers.
ACAS recently published a report which stated that:
• Approximately 485,000 employees resign each year due to conflict at work and it costs c.£2.6 billion to recruit replacements. It costs a further £12.2 billion in low output as the new recruits get up to speed.
• Presenteeism (where employees attend work despite being ill) has a negative impact on productivity and an annual cost between £590 million and £2.3 billion.
• Sickness absence resulting from workplace conflict costs employers £2.2 billion each year.
• The total cost of management time spent dealing with potential/actual employment litigation is c.£282 million each year.
Contact us if you want to discuss ways to try and minimise conflict at work.
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