Employment Law Update | October 2021

As we say farewell to the furlough scheme we take a look at the other major developments over the last month, which include a couple of cases about dismissals related to lockdown. 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. Was it discriminatory to send a pregnant employee home at the start of the pandemic?
2. Was it fair to dismiss an employee who was unwilling to deliver equipment to a colleague with COVID-19 symptoms?
3. Can you still reclaim SSP?
4. Will the right to request flexible working change?
5. Can you change your terms and conditions of employment because of the pandemic?

Was it discriminatory to send a pregnant employee home at the start of the pandemic?
This question was considered in the employment tribunal case of Prosser v Community Gateway Association Ltd. Ms Prosser was a zero hours worker who usually worked four shifts a month, and chose which shifts she worked. At the start of the pandemic she was sent home by her employer because they considered her to be clinically vulnerable. This meant that she was unable to fulfil shifts that she was due to work in March and April 2020.

Ms Prosser asked to return to work but the employer would not agree whilst it was unable to arrange social distancing in its office. Ms Prosser subsequently raised a grievance complaining that she had suffered pregnancy discrimination due to a lack of pay and a failure to allow her to return. Once the employer had managed to arrange for desks to be suitably distanced it informed Ms Prosser that she could return. Her grievance was rejected.

Ms Prosser went on to bring claims of sex/maternity discrimination alleging that she was paid late for the shifts she had not been allowed to work and that she should have been allowed to return earlier. The tribunal found that Ms Prosser was paid late but that this was a mistake which was not due to her pregnancy so was not discrimination. It also found that her employer had carried out risk assessments and had sought to socially distance the office but had been unable to do so prior to asking her to return.

It is clear from the judgment that the employer was helped by the fact that its motive for not allowing her to work was to protect the employee, it had evidence to show why payment was made late, it was attempting to follow the then government advice, and that it had tried to make the office covid safe but had to wait to put some measures in place. This is only a tribunal decision though so it doesn’t set a precedent.

Was it fair to dismiss an employee who was unwilling to deliver equipment to a colleague with COVID-19 symptoms?
In Ham v Esl Bbsw Ltd, Mr Ham refused to deliver equipment to his self-isolating manager’s home because the manager had COVID-19 symptoms. As it was the start of the pandemic he had not been vaccinated. Mr Ham had offered to deliver the equipment elsewhere and explained he was concerned for his and his family’s safety, but he was dismissed.

An employment tribunal found that the principal reason for Mr Ham’s dismissal was that he had raised health and safety concerns, and that according to the Employment Rights Act the dismissal was therefore automatically unfair.

Again this is only an employment tribunal decision so is not binding but it seems likely that a similar result would be reached by a higher court.

Can you still reclaim SSP?
As the pandemic began the Government introduced a scheme reintroducing the ability for employers to reclaim SSP if it was paid for sickness absence due to Covid-19. The scheme only applied to employers of less than 250 employees.

The scheme ended on 30 September 2021 but you have until 31 December 2021 to make claims for any eligible SSP costs incurred prior to 30 September 2021.

Will the right to request flexible working change?
No doubt you will have heard that the Government is consulting on whether to reform the right to request flexible working. The main points to note are:

• Despite the headlines the proposals don’t seek to introduce an automatic right to work flexibly
• They are considering changing the eight reasons available to refuse a request to work flexibly
• Employers could be required to suggest alternative arrangements
• Employees might be allowed to make more than one application a year.

The consultation is open until 1 December 2021.

Can you change your terms and conditions of employment because of the pandemic?
Making significant changes to terms and conditions of employment is a tricky area. Other than agreeing a change with the employee(s) there are essentially two ways of doing it:

• The first is to simply impose the change on the employee(s) from an arbitrary date. The employee(s) then have a choice of whether to accept the change, work under protest (reserving the right to bring a claim later), or resign and claim that the change is a fundamental breach of contract which brings the contract to an end.
• The second is to issue notice on the existing contract of employment and provide the employee(s) with a new contract(s) which (if they accept) will take effect at the end of the notice period. If the employee(s) don’t accept the new contract they will have been dismissed and will be able to claim unfair dismissal.

In either scenario, provided the change is a significant one, whether the dismissal is considered fair will depend on the employer being able to prove that it acted fairly and had a good business reason for making the change.

If an employer is looking to change the terms and conditions of more than thirty employees in one place of work they may also have to follow the same process as they would if they were going through a collective consultation for redundancy. Failure to do so can result in each employee receiving up to 90 days’ pay as compensation.

Despite these challenges a recent CIPD survey found that 22% of employers have made changes to employees’ contracts since the pandemic started. As you might expect, changes have included altering workplaces, hours of work and pay. No doubt some of these changes will result in unfair dismissal and possibly discrimination claims making their way through the system soon.

If you’re thinking of changing employees’ terms and conditions please do take advice to reduce the prospect of successful unfair dismissal claims.

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