Spring 2021 Employment Law update - Part 1: Focus on COVID-19 related developments and case law

13 minute read
14 May 2021

In this series of insights, Gowling WLG's Employment, Labour & Equalities team bring you a quick round-up of the need-to-know employment law developments from January to April 2021.

In Part 1, we begin with a review of the latest COVID-19 developments:

  1. CJRS latest
  2. Returning to the workplace
  3. Compulsory national vaccination policies and human rights
  4. Right to work checks
  5. Automatically unfair health and safety dismissals
  6. From the tribunals: dismissals relating to (1) mask wearing and (2) health and safety fears

In Part 2, we look at the latest developments concerning equality, in Part 3 'workers' and pay, and in our final Part 4, the two Ts: TUPE and tribunals.

1. CJRS latest

As of March 2021, a cumulative total of 11.5 million jobs have been supported at various times under the Coronavirus Job Retention Scheme (CJRS), with 4.2 million employees on furlough at 31 March 2021.

On 3 March 2021, the Chancellor announced a further extension of the CJRS until 30 September 2021. The rules of the CJRS summer extension will remain largely unchanged. This means both full-time furloughing as well as flexible furloughing continue to be permitted. However, the scheme will be subject to a return of last summer's tapering provisions, with employers required to contribute 10% in July and 20% in August and September towards the hours their staff do not work, as well as employer National Insurance (ER NICS) and pension contributions.

This extension of the scheme will give employers further time to plan in the hope and expectation that the impact of the vaccine programme and subsequent easing of lockdown will allow employers to operate more normally. An alternative approach would have been for the Government to target support to specific industry sectors hardest hit by the pandemic, but clearly this wider support will give more breathing space not just to those industry sectors but all employers and their staff continuing to face the challenges posed by the pandemic. See COVID-19: Back to the future: CJRS Extension Q&A for more on the CJRS.

2. Returning to the workplace

The UK vaccination programme offers the promise of the return to workplaces for millions of workers either working from home or on furlough. The Government's Roadmap for ending restrictions from 21 June 2021 is fast approaching. For many employers, return to the workplace will be a return to a new normal rather than to the pre-pandemic norm. While many employees are embracing some aspects of homeworking, others are eager to return to the workplace albeit with appropriate safety measures. See our blog post 'In defence of the workplace' for more.

As the UK vaccination programme proceeds full steam ahead, employers face difficult decisions such as 'Can I make my staff have the vaccine?' For those in the care sector, the issue may be decided by new legislation. On 14 April, the Department of Health and Social Care published a consultation seeking views on a proposal to make COVID-19 vaccination a condition of deployment in older adult care homes (subject to an exception for those with an evidenced legitimate medical exemption) for not only those providing direct care but also doing other roles, such as cleaners and kitchen staff. For more on the consultation, which closes on 21 May 2021, see UK Government consults on making the COVID-19 vaccine mandatory for staff in older adult care homes.

3. Compulsory national vaccination policies and human rights

On 8 April, a timely judgment of the European Court of Human Rights (ECtHR) in Vavřička and others v Czech Republic has held that the imposition of penalties for non-compliance with a compulsory national mandatory pre-school vaccination requirement for children did not breach Article 8 (private and family life) nor of Article 9 (thought, conscience and religion).

The ECtHR considered that "it cannot be regarded as disproportionate for a State to require those for whom vaccination represents a remote risk to health to accept this universally practised protective measure, as a matter of legal duty and in the name of social solidarity, for the sake of the small number of vulnerable children who are unable to benefit from vaccination. In the view of the Court, it was validly and legitimately open to the Czech legislature to make this choice, which is fully consistent with the rationale of protecting the health of the population".

Protecting the health of the public can be a legitimate aim and justified. In the context of COVID-19, this case suggests that human rights concerns over compulsory vaccination and status certification may not bar such policies. However, it should be noted that this particular case concerned childhood vaccination against long-standing diseases with well-known vaccines. The exact nature of the vaccination policy and penalties was also relevant.

4. Right to work checks

Since 30 March 2020, an adjusted process has allowed right to work checks to be carried out over video calls and for job applicants and existing workers to send scanned documents or a photo of their documents to employers via email or a mobile app, rather than sending the originals.

After initially announcing that the COVID-19 adjusted right to work check process will only remain in place until 16 May 2021, the Home Office has now extended the adjusted scheme until 20 June 2021. From 21 June 2021, employers must once again check individuals' original documents, rather than scans or photographs of the originals, or use the Home Office's online right to work check tool. Checks must be performed in the physical presence of the individual or via a live video link, while the original documents are in the possession of the employer (individuals are, understandably, often nervous about sending original documents of this nature to enable checks via video link) or the documents accessed via the Home Offices' right to work tool.

Although employers will need to undertake fully compliant right to work checks from 21 June 2021, they will not have to carry out retrospective checks where the adjusted process has been used. This is a change to the anticipated positon - when the temporary measures were originally implemented, employers had been told that they would need to carry out follow-up checks on any employees who had a COVID-19 adjusted check within eight weeks of the temporary measures ending.

5. Automatically unfair health and safety dismissals

Under section 100(1)(a) Employment Rights Act 1996, a dismissal will be automatically unfair where the reason or principal reason for the dismissal is that the employee carried out health and safety activities having been designated by the employer to do so.

The recent case of Sinclair v Trackwork Ltd illustrates the scope of the protection under s100(1)(a). In this case, Mr Sinclair was employed as a Track Maintenance Supervisor. He was tasked by the employer with implementing a new safety procedure. The employer did not inform its other employees about Mr Sinclair's mandate to do this. The new procedures were unpopular, leading to other employees complaining about Mr Sinclair's 'overcautious and somewhat zealous' approach to health and safety. He was subsequently dismissed for the 'upset and friction' that his activities had caused.

The EAT confirms that s100(1)(a) affords broad protection to an employee carrying out health and safety activities at the employer's behest. The manner in which such activities are undertaken will not readily provide grounds for removing that protection. The mischief that the legislation seeks to guard against includes the fact that carrying out such activities will often be resisted, or regarded as unwelcome, by colleagues. It would wholly undermine that protection if an employer could rely upon the upset caused by legitimate health and safety activity as being a reason for dismissal. Only if the employee's conduct was wholly unreasonable, malicious or irrelevant to the task in hand, could protection potentially be lost.

While this case does not concern coronavirus-related health and safety measures, the principle would equally apply in such a case.

6. From the tribunals

It has been over a year since the first lockdown began. While the tribunals and courts have been slowed by the restrictions put in place, the wheels of justice continue to turn and we are beginning to see a body of coronavirus-related case law emerging.

Please note that employment tribunal decisions are non-binding on other employment tribunals but these decisions may be persuasive. As ever, each case will depend on its own particular facts.

Dismissal for refusing to wear face mask was fair

In Kubilius v Kent Foods Ltd, an employment tribunal held that a food distribution company had fairly dismissed one of its drivers who refused to wear a face mask at all times as required by a client when the employee was on the client's site.

In this case, the employer's employee handbook required courteous treatment of clients and that employees take all reasonable steps to safeguard their own health and safety and that of others as a result of their actions at work. In addition, the driver's handbook expressly required customer instruction regarding PPE to be followed.

This decision, concerning an incident during the first lockdown, highlights how important it is for employers to have clear rules on health and safety and the behaviour expected of employees in their relationships with clients, customers and suppliers.

If an employee working in an environment where face masks are required refuses to wear one, the employer should ask them for the reason. If the employee does not have a legitimate reason for not wearing a face mask, a failure to wear one is likely to be a refusal to follow the employer's reasonable instruction and therefore grounds for beginning a disciplinary process. Where an employee has a legitimate reason for not wearing a face covering, employers should consider if their role could be adjusted.

Health and safety fears must be directly linked to working conditions

Section 100 of the Employment Rights Act 1996 provides employees with protection from dismissal for exercising their rights to leave the workplace and take steps to protect themselves where they reasonably believe there is serious and imminent danger.

In Rodgers v Leeds Laser Cutting Ltd, an employment tribunal has held that to succeed in a claim under s100 due to fears about COVID-19, the employee will need to show that the reason for refusing to return to the workplace was a belief that a serious and imminent danger was posed due to something directly linked to their working conditions (or possibly in travelling to and from the workplace in some cases), not simply circumstances of serious and imminent danger in society at large.

Whilst conditions pertaining to COVID-19 could potentially amount to circumstances of serious and imminent danger in principle, an employee cannot rely on s100 to refuse to work in any circumstances simply by virtue of the pandemic.

In this case, the employer had put in place good social distancing and ventilation precautions and the evidence was that the employee would not have returned no matter what precautions were put in place as he had a family member who was vulnerable. The tribunal dismissed the claim, finding that the employee did not believe there to be a serious and imminent danger in the workplace, but rather a serious and imminent danger in the world at large and that his employer had taken reasonable measures to reduce the risk of infection in the workplace.

If you have any questions relating to this insight, or employment law in general, contact Anna Fletcher or Connie Cliff.

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