In this October newsletter, we bring you up to date with some of the latest ET (Employment Tribunal) & EAT (Employment Appeals Tribunal) cases that are currently making headlines. In addition, we report on the Statutory Sick Pay Rebate Scheme and the deadline for claims to be made.
SSP Rebate Scheme
The government scheme enabling small businesses to recoup statutory sick pay costs due to coronavirus will end at the end of the month, and any outstanding claims must be made by 31 December 2021.
Legislation ending the coronavirus statutory sick pay rebate scheme (SSPRS) was laid before parliament on 9 September.
Before the COVID-19 pandemic employers were obliged to pay statutory sick pay (SSP) to eligible employees unable to work because of sickness. It is paid at a flat rate of £96.35 (at the current rate) for up to 28 weeks. The full cost of SSP is met by the employer.
To support employers during the pandemic the government legislated to allow certain small and medium-size employers to reclaim some, or all, of their SSP costs from HMRC via the SSPRS.
Under the new regulations, employers will not be able to reclaim SSP from 30 September 2021 and any claims relating to periods prior to that date must have been filed by 31 December 2021.
It would appear that the suspension of the requirement to wait for three days before SSP is paid has not yet been repealed. The three-day rule was suspended temporarily during the peak of the COVID-19 crisis to encourage people to stay at home as soon as they felt ill.
This effect is that SMEs must continue to pay SSP from the first day an employee is unable to work, making SSP more expensive than it was before the pandemic. The Tax Faculty awaits clarification on this point.
In Follows v Nationwide Building Society, an employment tribunal (ET) upheld a claim of indirect associative discrimination on the grounds of disability, although Mrs Follows was not disabled. We have set out this case in detail as it is and will be relevant for all employers.
Mrs Follows was employed by Nationwide Building Society as a Senior Lending Manager (SLM). She was employed on a homeworker contract, in which her principal place of work was her home, but she attended the office two to three days a week. The primary reason for working from home was because Mrs Follows was the carer for her disabled mother, a fact which Nationwide’s management knew and accepted.
In October 2017, Nationwide began a redundancy process to reduce the number of SLMs and included as part of that process a requirement that all SLMs were office-based going forward. Nationwide argued that this enabled better staff supervision with junior colleagues. Mrs Follows was subsequently made redundant.
Mrs Follows brought various claims, including for direct and indirect associative discrimination on the grounds of disability.
Direct discrimination can occur where the reason for the less favourable treatment is the protected characteristic of someone with whom the employee associates.
In the case of Chez Razpredelenie Bulgaria AD, the European Court of Justice (ECJ) held that the concept of associative discrimination could be extended to indirect discrimination. Essentially, the ECJ ruled that a person need not possess a protected characteristic to bring a claim for indirect discrimination. It is sufficient for a person to show that they suffer a particular disadvantage, alongside a disadvantaged group.
The ET Decision
The claim of direct associative discrimination on the grounds of disability failed as Nationwide could point to a comparator who was also made redundant. Mrs Follows’ colleague, Mr Gregory, who was not disabled nor a carer, and was employed on a homeworker contract, was also dismissed.
The ET upheld the claim of indirect disability discrimination by association.
The ET considered that by the nature of their role, employees caring for disabled people are less likely to be able to satisfy a requirement to be office-based than non-carers. As such, the requirement to no longer work at home put Mrs Follows at a substantial disadvantage.
Coronavirus guidance employers
Further, although Nationwide were fully aware of Mrs Follows’ mother’s disability, they had not discussed alternatives, had not provided evidence on which the decision was based, and had ignored Mrs Follows’ view that the role could continue as per her existing arrangements. So, the ET held that Nationwide had not taken such steps as were reasonable to avoid the disadvantage.
Nationwide argued that it was a legitimate aim for it to require SLMs to provide on-site managerial supervision and support to more junior staff. The ET held that the need for on-site supervision itself contained a discriminatory element and, as such, could not amount to a legitimate aim. Further, the ET stated that even if the aim had been legitimate, making Mrs Follows redundant was not a proportionate means of achieving that aim. This was because there were other non-discriminatory means of achieving that aim, including allowing hybrid working as Mrs Follows had already been doing.
Considerations for Employers
It is important to note that this judgment from the ET is not binding and the redundancy process in this case took place before the pandemic. This decision provides a warning to employers to be careful about requiring employees to return to their pre-pandemic place of work for purposes of supervision alone, and to the need to seek an understanding of an employee’s reasons as to why they may be reluctant to return to the place of work.
Forstater v CGD Europe & Others
The case of Forstater v CGD Europe & Others relates to an employee whose contract was not renewed following complaints that she had made allegedly transphobic comments. The employee complained that she had been discriminated against based on grounds of belief under the Equality Act 2010; namely the beliefs that sex is unable to be changed and is not to be conflated with gender or gender identity.
The original employment tribunal case considered the requirement of any belief protected under the Equality Act be “worthy of respect in a democratic society, not be incompatible with human dignity, nor conflict with the fundamental rights of others”, and as such found the employee’s beliefs not to be protected. However, the subsequent employment appeal tribunal disagreed, finding that offensive views may still be subject to protection, and the employee was found to have been discriminated against.
In giving its judgement, the employment appeals tribunal highlighted that they were not seeking to take sides in any debate regarding gender identities or undermine the protections for people with the protected characteristic of gender reassignment under the Equality Act.
This case demonstrates that it is not always easy to determine if a belief is protected under the Equality Act, and that views that many may regard as unpalatable may still be protected. There is the potential that this question will arise again in relation to beliefs people may hold leading to their refusal of Covid vaccination.
Somerville v Nursing and Midwifery Council
In the case of Somerville v Nursing and Midwifery Council (NMC), the NMC sought to argue that because Somerville did not have a minimum degree of obligation (i.e., did not have to accept a minimum amount of work, and could withdraw from work accepted), that they did not qualify as a worker, and therefore were not eligible for statutory holiday. However, the employment appeals tribunal found that there was an overarching agreement for the provision of the claimant’s services, and that they did qualify as a worker (and, therefore, for the rights of a worker). This case has implications for employers seeking to determine the status of potential workers and their entitlements.
Covid-related cases are now trickling their way through the employment tribunals, and the two cases below demonstrate how the tribunals came to two different decisions based on the reasonableness of the employers’ actions whilst dealing with these concerns. In both cases, the tribunals agreed that each employee had believed that Covid was such a threat.
Accattatis v Fortuna Group & Gibson v Lothian Leisure
In the case of Accattatis v Fortuna Group, Mr Accattatis was concerned about commuting to work, and so the employer explored a range of options including holiday and unpaid leave for times when working from home or furlough was not appropriate. Mr Accattatis refused these options, and it was therefore found that he was not unfairly dismissed.
However, in the case of Gibson v Lothian Leisure, when the employee raised concerns about PPE and Covid-secure measures, the employer behaved with a “shut up and get on with it” attitude. Just as important, the Respondents in this case did not attend the ET hearing or in fact lodge a response to the claim, so was not even in court to defend some of the allegations made against them or justify their conduct– which obviously did not go down well with the Judge hearing the case. In addition, the Respondents dismissed Mr Gibson by text and again wasn’t there to give any evidence/justification as to why!
These cases have been heard by employment tribunals only at this time, and therefore may be subject to appeal. However, as employers continue to reckon with the impacts of Covid-19, it is useful to understand how tribunals are viewing the decisions employers have made during those exceptional times. It is notable that in both these cases, even though the employees were found to have valid concerns, this did not in itself lead to a judgement of unfair dismissal – rather, the facts of the case were considered to determine the reasonableness of the actions.
Rodgers v Leeds Laser Cutting Ltd
An interesting COVID-19 related dismissal for refusal to return to work case.
An employee dismissed for leaving work and refusing to return because of COVID-19-related concerns was not unfairly dismissed.
Under s.44 and 100 of the Employment Rights Act 1996, employees are protected from being subjected to a detriment or being dismissed for exercising their right to leave their workplace. To gain such protection, employees must have a ‘reasonable belief’ that their workplace poses a serious or imminent threat to them or to others. This is a Day 1 right, and employees don’t need two years’ service to bring such a claim.
Following the start of the first national lockdown, Leeds Laser Cutting (LLC) carried out a risk assessment and put in place various safety measures to enable it to continue operating, including staggered start/finish times, providing masks and strict social distancing measures. Two days later, Mr Rodgers told his manager that he’d be staying away from work ‘until the lockdown has eased’ because of his concerns about infecting his vulnerable children. There was no contact between LLC and Mr Rodgers until his dismissal a month later. He claimed that his dismissal was automatically unfair because:
- he was unfairly dismissed because, in circumstances of danger which he reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left or refused to return while the danger persisted, and
- he was unfairly dismissed, in the above circumstances of danger because he took appropriate steps to protect himself or other persons from the danger
His claim was dismissed.
The tribunal accepted that Mr Rodgers had significant concerns about COVID-19 generally. However, this was not enough to bring him within the scope of the statutory protection:
The communication with his manager had not mentioned any workplace dangers and he could not show that there was in fact any such danger. LLC had implemented the recommended government safety guidance.
Despite his concerns about COVID-19, Mr Rodgers had breached self-isolation guidelines to drive a friend to hospital.
Mr Rodgers had not taken any steps to avert the alleged danger or raised concerns with his manager before leaving work.
While COVID-19 could potentially amount to circumstances of serious and imminent danger, to accept Mr Rodgers’ argument that, despite the safety measures in place, his belief (of a serious and imminent danger which he could not avert) was reasonable would be to accept that the very existence of the virus creates circumstances of serious and imminent danger. This would lead to any employee being able to rely on s. 44 and 100 to leave the workplace, simply by virtue of the pandemic – and this is not what the legislation is aimed at.
This decision is not binding on other tribunals and turned very much on its particular facts. However, it’s a reminder to employers that, while there were no circumstances of serious and imminent danger in this case, a failure to put in place adequate COVID-19 may expose them to the risk of claims in the future. However, the mere existence of the virus is not enough and those employers who have implemented safety measures are unlikely to face successful claims of this kind. Here Mr Rodgers didn’t really help himself in that his evidence was ‘vague’ and ‘contradictory’ and he’d not raised any concerns with his employer before absenting himself from work.
Abbeyfield (Maidenhead) Society v Hart
In this case regarding privilege and unfair dismissal, an email between an employer and its HR consultant was protected by litigation privilege despite indicating a pre-determined decision to dismiss.
There are two types of legal professional privilege: legal advice privilege and litigation privilege. Legal advice privilege is broader than litigation privilege and allows clients to discuss their legal position with their lawyers in the knowledge that their communications will remain confidential, even when there is no litigation in prospect. Litigation privilege is more limited in scope and is designed to allow parties to investigate potential disputes without the worry that those investigations could be disclosed to the other side. It can exist outside of the typical client/lawyer relationship and covers any document or communication which has been produced for the purpose of obtaining information or advice in connection with existing or contemplated litigation. However, a client cannot assert legal professional privilege in relation to documents which were brought into existence for a criminal or fraudulent purpose – known as the ‘iniquity exception’.
Mr Hart had worked for AMS, a charity, for over 6 years before being dismissed without notice for gross misconduct. He lodged various tribunal claims. Having been asked by the tribunal to do so, AMS disclosed all the materials relating to Mr Hart’s misconduct but claimed that various communications with its HR consultant on how to deal with Mr Hart’s case were inadmissible. The tribunal agreed that the documents were in principle covered by litigation privilege. However, it held that one document was admissible in evidence under the ‘iniquity exception’. This was an email from a senior officer of AMS who also heard Mr Hart’s internal appeal: ‘Mr Hart’s rudeness and gross insubordination has caused major problems to both Donna and Shirley and this cannot be allowed to continue any longer. He will not therefore be returning to Nicholas House under any circumstances.’ The tribunal held that it would be iniquitous to allow AMS to claim that there was a fair appeal when the appeal officer had made up his mind, well before dismissal, that Mr Hart would be dismissed. AMS appealed.
The appeal was allowed.
The EAT held that this email did not engage the iniquity principle, whether read by itself or in the context of the surrounding email exchange. AMS did not seek advice on how to act unlawfully, and the HR consultant did not give such advice. They were advising on how to take forward a disciplinary process and on the risk of that process leading to litigation. The indication by the appeal officer that he did not wish Mr Hart to return to work was the sort of frank instruction that a party may feel able to give in a privileged communication. So was the consultant’s response, that she had to ‘ensure that if my clients wish to proceed against my advice that they do so by making an informed decision’.
There are cases said the EAT when such instructions may leave advisers professionally embarrassed, and the advisers must decide whether it is ethical for them to continue to act for their client. Such a situation could arise if an employer told its advisers that it intended to embark on an appeal process which was a sham. But that is not what the contentious email here said. And even an indication of that kind is not the same as a request for advice on how to act illegally and would not necessarily cause privilege to fall away.
It is important to note that the protection offered in respect of litigation privilege is only engaged in respect of documents produced for the purpose of obtaining information or advice in connection with existing or contemplated litigation. This means that much of the correspondence between an HR adviser and their client on a daily basis will be disclosable in any claim or subject access request – unlike any correspondence between a lawyer and their client.
It is also important that when a client accidentally discloses privileged documents as part of a subject access request that they make it clear that privilege has not been waived and that the disclosure has been made accidentally and that the opponent should disregard it.
The HR team are available to discuss any of the cases referred to above, and to provide comprehensive guidance and advice to all employee relation matters.