Employment Law Update | November 2021

The budget didn’t contain much in the way of employment law news but there have been lots of other developments to tell you about.  As always please don’t hesitate to contact James Austin or Gemma Sherbourne if you have any questions arising from the news items below.

1. Are employers requiring staff to be vaccinated against Covid?
2. How can employees prove they are exempt from being vaccinated?
3. Can you justify a compulsory retirement age?
4. ICO issues new data sharing code of practice
5. Can the menopause amount to a disability??

Are employers requiring staff to be vaccinated against Covid?
A survey commissioned by Indeed Flex has found that 48 per cent of the 400 HR Directors surveyed were planning to require all staff to be vaccinated against Covid-19, excluding those who were medically exempt. Nearly three quarters of those surveyed stated that vaccination status would impact on whether staff returned to the office, although only 33 per cent said that only vaccinated staff would be allowed to return.

Other research by Indeed Flex has indicated that the number of job postings explicitly requiring workers to be vaccinated against Covid more than doubled between August and September.

It’s true that employers have a duty to protect the health, safety and welfare of staff, so a requirement that employees are vaccinated may be reasonable. However, it’s also true that many people may be unable/unwilling to get a vaccination as a result of a disability, religious/philosophical beliefs or race, so introducing such a policy could result in claims of discrimination. Consultation with staff will be key to trying to implement a policy of this kind. Contact us if you want any guidance.

How can employees prove they are exempt from being vaccinated?
The Government has set out a process in, “Guidance: COVID-19 medical exemptions: proving you are unable to get vaccinated (Exemptions guidance)”. While it may be of most use to them the process is not limited to care home workers.

To apply for exemptions people must call the NHS COVID Pass service on 119 and ask for an application form. If they satisfy one of the limited exemptions they will then receive the form by post. The form must be returned to the person’s GP or clinician specified in it, following which it will be clinically reviewed and the result will be provided by post within two to three weeks.

The NHS COVID Pass will look and work the same for those who are medically exempt as it does for the fully vaccinated, but the medically exempt will also receive a letter confirming they are unable to be vaccinated for medical reasons. They are supposed to retain that letter.

Can you justify a compulsory retirement age?
The short answer is “yes”, but it won’t always be possible to do so. Having a compulsory retirement age is potentially direct age discrimination as it is stating that employees will be dismissed when they reach a set age, so treats them less favourably than younger employees. However, the Equality Act states that it may be possible to justify direct age discrimination, if it is a proportionate means of achieving a legitimate aim. Employers are likely to try and argue that the purpose of such a policy is to allow for succession planning and make roles available for younger staff.

In Pitcher v Chancellor, Masters and Scholars of the University of Oxford, the EAT considered two appeals involving claims against Oxford University and St John’s College. In one case the original tribunal had found that the compulsory retirement age was justified. In the other case a different tribunal had decided the compulsory retirement age was not justified.

The EAT decided both decisions were correct. Confused? Well, in the case where the policy was found to be justified statistical evidence had been presented suggesting that it would create vacancies, no such evidence was provided in the other case. Each tribunal was also presented with different evidence on how much the policy would impact detrimentally on employees who reached the set age. On that basis the EAT felt both decisions were correct.

What does this mean if you want to have a retirement policy? There is obviously a risk that the policy would be found to discriminate and result in successful claims. If you do want to have such a policy these cases suggest it would help to have evidence of why they are beneficial and failing that some form of projection on their impact.

ICO issues new data sharing code of practice
The Information Commissioner’s Office has issued a new code of practice on data sharing with effect from 5 October 2021.

The code provides practical guidance on how to share personal data in compliance with the UK GDPR. A failure to comply with the code doesn’t make someone liable to legal proceedings but the code is admissible in evidence in legal proceedings and it is obviously sensible to act in accordance with it.

Can the menopause amount to a disability?
In recent years there have been a number of claims alleging disability and/or sex discrimination relating to treatment suffered as a result of menopausal symptoms. In Rooney v Leicester City Council, the EAT found that a tribunal had been wrong to strike out such a claim and ordered that a different tribunal consider it instead.

This is one of only a couple of cases alleging discrimination due to menopausal symptoms which has reached the EAT. The challenge many women face is proving that their condition amounts to a disability. As a reminder this involves showing that the condition 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. The original tribunal in Rooney had found that the effects suffered were only minor or trivial. Each case will be judged on its own facts and there certainly will be cases where menopausal symptoms will be found to be a disability.

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