Employment Law Update | September 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.

As the furlough scheme comes to a close, and we start to return to ‘normality’, we look this month at some of the recent developments in employment law as well as some of the headline-hitting proposed changes to come and the challenges currently facing employers in the UK:

1. Failure to consider furlough instead of redundancy can amount to an unfair dismissal, says Employment Tribunal
2. Bank holidays – should we have an additional 4 bank holidays, and what would this mean for employers?
3. Four-day week announced in Scotland
4. Compulsory vaccinations for care home workers – key dates
5. Hybrid working – top tips for managing the change
6. Proposed new duty for employers to prevent sexual harassment
7. Does failure to allow an appeal render a dismissal on grounds of redundancy unfair?

In the words often used following ‘trigger’ warnings on television – if you have been affected by any of the issues discussed in this update, please do not hesitate to contact a member of the employment team and we will be only too happy to assist.

Unfair dismissal and furlough

An Employment Tribunal has recently held that a dismissal on grounds of redundancy was rendered unfair, due to the employer’s failure to consider putting the employee on furlough rather than making the employee redundant.

In the case of Mhindurwa and Lovingangels Care Limited, the Claimant was employed to provide live-in care for an elderly lady.  The lady became unwell and was moved into a care home, and the Claimant was subsequently dismissed on grounds of redundancy.  The Tribunal found that the employer’s failure to even consider furloughing the claimant under the Coronavirus Job Protection Scheme rendered the dismissal unfair.

Note that this does not, however, mean that any dismissal on grounds of redundancy during the currency of the scheme will be unfair.  The issue in this case was that the employer has not even considered this as an alternative.  Had they considered it, but determined that this was not appropriate on reasonable grounds, the outcome may well have been different.  It is also worth noting that this case is only a first instance decision of the Employment Tribunal and is not therefore binding on other Tribunals.  However, it does give some insight into some of the matters which are likely to be taken into account by Tribunals when considering such cases, and reminds employers of the need to consider all alternatives before moving to dismissal.

Unions call for additional bank holidays - what could it mean for employers?

Readers may have seen last month calls from the Unions for an additional four bank holidays to be awarded in England and Wales, in order to reward them for ‘getting through these tough times’.  The Unions have pointed to the higher bank holidays in other UK and EU nations, stating that the entitlement in England and Wales is ‘stingy’.

However, what would this mean for employers if these were to be granted?  Would this mean that employees would automatically be entitled to the additional holiday entitlement?

Well, contrary to popular belief, there is no entitlement not to work on bank holidays.  Indeed, the vast majority of those ‘key workers’ the Unions wish to reward for the last 18 months already have to work on the existing bank holidays and, contrary to Union suggestions that it is compulsory, do not receive any enhanced pay for doing so.

Holiday entitlement in the UK is 28 days for full time workers.  This includes any entitlement to bank holidays.  Whilst many employees may have to take bank holidays out of that entitlement, many others are required to work on bank holidays and simply take their 28 days at other times of the year.  Absent a change to the minimum holiday entitlement, regardless of the number of bank holidays declared by the Government, there would not be any automatic entitlement to additional holiday for the majority of UK workers.  Indeed, the only change would be that many workers would find themselves more restricted as to when they could take their holiday entitlement as they may be required to take additional days from that entitlement to cover any additional bank holidays.

In addition, those employees whose contracts state that they are entitled to take ‘all bank holidays in England and Wales’ may simply find that their employers seek to change their contractual terms to be clear that this does not equate to a corresponding increase in holiday entitlement if there is an increase to the number of bank holidays.

It should also be noted that, whilst England and Wales may have a smaller number of bank holidays than most EU nations, workers in the UK are already entitled to more than the minimum EU holiday requirement of 4 weeks – or 20 days.  It is not a legal requirement that any additional entitlement is awarded to cover bank holidays, and workers can be required to take any time off on bank holidays out of that entitlement.

Taking all the above into account, employers should not yet be too concerned about the prospect of additional holiday entitlement – which would cost substantial amounts for already struggling businesses – as a result of the Unions' proposals.

Four-day weeks?

In addition to the suggestion of additional bank holidays, in Scotland the Government is backing trials for a four-day working week, pledging a £10 million fund for those companies taking part in the trial.

It will be interesting to see the outcomes of the trial and if it does, as hoped, improve productivity and well-being for those taking part. However, the think-tank IPPR Scotland has said that the trial does not go far enough, and that it should include more industries involving non-office based jobs, as well as lower-paid sectors, shift and part time workers.   It has raised concerns that without this widening of the trial, it will not be possible to see the real impact of the proposed change.

The question also arises as to how businesses will feel about the change, and whether any increase in productivity will translate to maintained or even increased profitability, which presumably employers will want to see if they are to maintain pay notwithstanding a reduction in hours.  It has been reported that a similar trial in Iceland did see productivity increase by 20%: whether the same will be true in this latest trial remains to be seen.

>Compulsory vaccinations for care home workers

Readers may well have seen our blog last month regarding compulsory vaccinations for care home workers.  Full details can be seen here, but a reminder of the most important dates of which you need to be aware if you operate, or carry out any work in, a care home:

Hybrid working - top tips for managing the change

Many employers are putting formal hybrid working policies in place, allowing their staff at least some flexibility in their working arrangements.  With these policies varying from total flexibility to full-time office working, the key, as always, is communication.  It is always useful to obtain feedback from staff as to the policies which you intend to implement, and to ensure that they are workable and achieve their stated aims.

Those employers who are less flexible in their agreed working patterns may find it more difficult to recruit and retain staff who have got used to more flexible working, particularly if competitors are offering what those staff want.  For that reason, it may also be useful to carry out some market research so that you know what is being offered elsewhere in the marketplace.

As more and more workers are returning to the workplace, we have set out below some of the ‘top tips’ for employers of some of the points to include in their hybrid working policies:

1. Health and safety

There are two main considerations relating to health and safety as staff return to a new way of working:

1. Employers remain responsible for health and safety even where staff are working from home; and
2. Covid-safe considerations still apply in the workplace.

Whilst working from home, employers will still need to ensure that steps are taken to ensure their employee’s health and safety.  From PAT testing of employer-supplied electrical equipment, to ensuring that staff are not placed under undue pressure and are able to cope with the normal stresses and strains of work, employers will need to ensure that their policies are up to date and that managers are aware of their responsibilities.

Whilst Government restrictions may have eased, employers of course still have a duty to take steps to ensure health and safety in the workplace.  Taking account of staff working arrangements and taking reasonable steps to ensure that these remain ‘covid-secure’ is still likely to be sensible for the foreseeable future, in order to avoid not only falling foul of health and safety requirements, but also to avoid employment claims on health and safety grounds.

2. Monitoring

With any form of monitoring, it is important that employees know what you are monitoring, how and the purposes of this monitoring.  This is even more important when employees are working from home, where any monitoring has the potential to be more intrusive.

It is therefore important to consider what you need to monitor carefully and to keep this to a minimum.  You should communicate clearly to employees if you are carrying out any monitoring and ensure that your employee privacy notices and data protection policies are up to date.

3. Security

Security – whether of property or data – should always be carefully considered when putting a hybrid working arrangement into place.  Matters such as how hard copy documents should be disposed of, who should have access to any computer equipment, what data can be removed from the workplace and how it should be stored at home all need to be considered.

As above, data protection policies may need to be updated, and if personal data relating to staff is removed from the workplace – particularly special category data – additional consideration should be given to how this will be managed and whether privacy notices will need to be updated.

4. Performance management

Managing performance remotely is invariably likely to be more difficult than managing it in person.  This should be borne in mind and it may be sensible to include provision in hybrid working and performance management policies to allow managers to require attendance in the workplace if required standards are not being met.  Employers will also need to consider how training needs and supervision can effectively take place when working in remote locations.

Staff may need to be made aware that they may be subject to additional scrutiny in matters such as their whereabouts and work output if managers are no longer physically able to see what they are doing and where they are as might otherwise have been the case if working in the office.  As noted above, communication in this area is key – additional scrutiny may be perceived as ‘checking up’ on them or a lack of trust and confidence in their ability unless carefully managed.

5. Sickness management

Hybrid working can be a double-edged sword when it comes to sickness management: it can both be more difficult to manage abuses of the sickness absence policy due to ‘malingering’, and more difficult to ensure that those who are genuinely too unwell to work take a proper amount of time off to recover.

There is a risk that those who are working from home may consider that they should keep working, rather than resting and recuperating, because they are already ‘at work’ and don’t need to travel into the office.  Working from their ‘sick bed’ could become commonplace – or even expected – and employers should make clear to staff that if they are genuinely unwell, they should still report absence and take time off to recover in the normal way.

Likewise, it may be sensible to include provision within hybrid working policies that the employer can remove the ‘privilege’ of home working if absence levels exceed expected levels, and absence management policies may need to be updated accordingly.

6. Flexible working requests

It is important not to forget that even where an employer has a hybrid working policy in place, this does not preclude employees from making formal flexible working requests.  Many hybrid working policies will state that they do not give rise to any contractual entitlement and that they are discretionary and can be withdrawn or replaced at any time.  Flexible working requests on the other hand will, if agreed, lead to permanent contractual changes and employers would be well advised to have a separate policy dealing with the making of any such request.

These considerations are by no means the only things which will need to be taken into account when drafting hybrid working policies.  The employment team at LCF are always on hand to assist with drafting and reviewing policies, including hybrid and flexible working policies.

Duty to prevent sexual harassment in the workplace

The Government Equalities Office has published its response to the consultation on sexual harassment in the workplace, confirming that “as soon as parliamentary time allows”, the Government will:

1. introduce a duty on employers to prevent sexual harassment;
2. re-introduce protection from third-party harassment; and
3. consider extending the time limit for claims under the Equality Act 2010 from three to six months.

At present, an employer is only liable if sexual harassment in the workplace takes place and the employer cannot show that it has taken preventative steps.  Under the proposed changes, there will be a pro-active duty on employers to take ‘all reasonable steps’ to prevent such harassment occurring.  This is a subtle change, but will be supplemented by a new statutory code of practice from the Equalities and Human Rights Commission, as well as Governmental guidance for employers which will supplement the code.

Any extension of the time limit in which to bring discrimination claims would be welcome news for claimants, particularly those who it is recognised are likely to be going through more pressing life changes when discrimination arises as a result of pregnancy or maternity leave.  However, it will necessarily create more uncertainty for employers who may find claims lodged six months after the events complained of, when memories will necessarily have faded more, staff may have left and claims may be more difficult to defend.  There is also the fact that the extension of time limits is already much more likely to be granted in discrimination claims when compared to other claims, and it remains to be seen whether this would continue to be the case following any extension to these time limits.

We will provide further updates on any changes ‘when parliamentary time allows’.

Does failure to allow an appeal render a dismissal on grounds of redundancy unfair?

Not always, according to the Court of Appeal in the case of Gwynedd Council v Barratt and anor.

In this case, it had been announced that a secondary school was to close, to be replaced with a combined primary and secondary school.  All staff were informed that if they did not secure new roles at the new school, they would be made redundant.  Staff were required to apply for roles at the new school and most were successful in their applications.  Unfortunately, the claimants were unsuccessful and were made redundant.

The two claimants claimed unfair dismissal, citing the fact that they were not granted a right to appeal as one of the reasons for the dismissals being unfair.

The Employment Tribunal found that the dismissals were unfair for a number of reasons, including the lack of right to appeal, finding that it would require ‘truly exceptional circumstances’ for an employee to be denied a right to appeal.  The Employment Appeal Tribunal upheld the Tribunal decision and the Council appealed to the Court of Appeal, relying on an earlier Employment Appeal Tribunal decision in which it was held that ‘it would be wrong to find that a dismissal on grounds of redundancy was unfair because of the failure to provide an employee with an appeal hearing.’

The Court of Appeal dismissed the appeal.  However in doing so, it agreed that it was not appropriate to find that a dismissal on grounds of redundancy was unfair ONLY because the employees were denied the right to appeal.  The lack of right to appeal is one of many factors to be taken into account when deciding whether a dismissal is fair.  In this case, there were a number of other matters which contributed to the finding of unfair dismissal and therefore the decision of the Employment Tribunal would stand.

The important take-away from this case is that the absence of an appeal does not, of itself, render a dismissal on grounds of redundancy unfair.  It remains important to look at the full circumstances of each case when determining fairness of a redundancy dismissal and the lack of an appeal is only one of the matters to be considered.

It is also worth remembering that this case concerned dismissal on grounds of redundancy.  The Acas Code of Practice on disciplinary and grievance procedures expressly does NOT apply to redundancy dismissals.  This case should not therefore be relied upon in relation to dismissals on other grounds.

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