What possible employment claims should employers be aware of as we return to the ‘new normal’ following the Coronavirus pandemic?
Over the past 12 months or so, employers and their staff have faced the extraordinary circumstances of the Covid-19 pandemic, furlough, redundancies, and shielding. With the lockdown easing and vaccinations being rolled out, more staff will be returning to the workplace. However, employers will have ongoing challenges that could lead to claims in the “new normal”.
This article offers some practical advice to help employers navigate potential employment claims as a result of the Coronavirus pandemic.
Carrying out fair redundancy dismissals
With the end of the government’s furlough scheme in sight on 30 September, crunch time may be coming for some organisations to review their headcount and carry out redundancies.
Care must be taken to avoid potential employment claims related to Coronavirus, including for unfair dismissal. This may include following the requirements for collective consultation if 20 or more employees are to be dismissed within a period of 90 days or less. This is along with the general requirements for fair redundancy dismissals that apply to smaller and large-scale redundancies.
Our article and video on restructuring and redundancy provides useful guidance. You may also want to read our guide to handling redundancy in an ethical way.
Health and safety – refusing to attend the workplace
Employers may find that individuals are reluctant to return back work for general health and safety concerns or because they have specific medical issues concerning themselves or a family member.
A recent employment tribunal case, Rodgers v Leeds Laser Cutting Ltd ET1803829, provided some helpful guidance confirming steps for employers to take that can mitigate against the risk of a claim from an employee based on not returning to work on health and safety grounds.
Employers should be following government guidance, carrying out risk assessments, and considering ways in which social distancing, hand-washing and mask wearing can be managed where appropriate and in line with current guidance and risk management. You can read our article on the tribunal case here.
Flexible working requests
There will be an increase in employees making flexible working requests, wanting to continue to work with increased flexibility, from home or “hybrid working” i.e. working from home part of the time.
It may be a challenge for employers to argue against this, working from home having been achieved successfully for so many. But, it may be undesirable to employers for individuals to remain out of the workplace long-term and as extensively as experienced over the past year.
When dealing with a flexible working request, employers must be reasonable, and make decisions based on objectively justifiable, business-related reasons.
Employers should avoid knee-jerk, subjective, and emotional responses, regardless of the surrounding circumstances. Officially, there are eight grounds on which an employer can reject a request. The employer only needs to establish one of these reasons, which include a detrimental impact on the performance of the employee or their team or the business as a whole, detrimental effect on ability to meet customer demand, and burden of additional cost.
A disgruntled employee can bring a claim under the flexible working regime on the basis of procedural failings. If successful, an employment tribunal can order an employer to reconsider the request and/or award up to eight weeks’ pay (subject to the statutory cap on a week’s pay). So, perhaps not a significant amount of compensation for some employers.
If a decision is made with due consideration and genuinely based one of the statutory business reasons, there may be little an employee can do to challenge this.
However, do bear in mind that even if a request has technically been considered in line with the statutory procedure, an employer could still potentially face claims under the discrimination legislation or for constructive dismissal.
See our article on flexible working requests for advice.
No jab, no job
As vaccinations are rolled out, there will be some individuals who do not wish to take this up for various reasons, including medical reasons, religion, and personal concerns of safety. Employers may be concerned for their staff to be vaccinated, including for the safety of colleagues, customers, and avoiding business disruption.
There are risks if an employer dismisses an employee for a refusal to be vaccinated. A dismissal could be found to be unfair or discriminatory on the following grounds:
- An employer cannot compel an employee to have the vaccine, so arguing it would therefore be fair to dismiss someone for refusing to do so could be difficult;
- There may be scope to argue that a vaccination requirement is an unnecessary invasion of an individual’s privacy, particularly when there may be other (less invasive) ways to minimise the risk of transmission in the workplace;
- Some people will have genuine concerns about possible side effects and the testing programme undertaken before approving the vaccines; and
- Individuals may have medical reasons for not taking up the vaccine.
An employer should only consider going down a disciplinary/dismissal route after a careful and considered discussion with the employee about their refusal and only if satisfied that all reasonable alternatives have been exhausted.
This will include consulting with staff about their concerns, taking steps to ensure the work environment is Covid secure and may include consensual Covid-19 testing.
Our article on the Coronavirus Vaccine provides advice to employers on handling these issues.
Disability discrimination – “long Covid”
The volume of disability discrimination claims is set to rise with employer management of the consequences of the pandemic for individuals. A particular issue may be how to deal with the effects of “long Covid”.
Information from the Department of Health and Social Care confirms symptoms vary widely, “with clusters of symptoms that are often overlapping and/or fluctuating. A systematic review has highlighted 55 different long-term effects but common symptoms of long COVID include breathlessness, headaches, cough, fatigue and cognitive impairment or ‘brain fog’. There is also emerging evidence that some people experience organ damage.”
Under the Equality Act 2010, staff will have protection against being treated less well or dismissed if they have a qualifying “disability”. On the basis of disability, they have the right to have reasonable adjustments made to their working conditions to accommodate them at work.
Workers are covered by the Equality Act if they have a physical or mental impairment which has a substantial and long-term impact on their ability to carry out normal day to day activities. Employers will need to consider if their staff have a qualifying “disability”, which can be a challenging point to identify and address in the workplace. They should handle individuals with “long-Covid” carefully, including consulting with them, and may require medical and legal advice before taking decisions affecting their staff’s employment.
For advice on employment claims related to Coronavirus, please get in touch with our Employment team who would be happy to assist.