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Below we have our latest update on Employment Law issues.

Sick pay cuts for unvaccinated staff

January has seen numerous businesses take the decision to cut sick pay for unvaccinated staff who are forced to self-isolate.  The media has reported that such decisions have been taken by Wessex Water, Ikea and Next.

The employers referred to above pay workers a period of enhanced contractual sick pay when they are absent from work due to sickness.  They have taken the decision to cut sick pay to Statutory Sick Pay only for unvaccinated staff who are forced to self-isolate.  Employers have reported that they are taking this decision due to the large number of employees who are absent from the workplace due to the rapid spread of the Omicron variant.  Self-isolation guidance for vaccinated people has been relaxed twice in recent weeks such that they are now able to isolate for only five days as long as they test negative on days five and six.  They do not have to isolate if they are a ‘close contact’ of a person who has tested positive for COVID-19.  In contrast, unvaccinated people need to self-isolate for ten days if they either test positive for COVID-19 or are a ‘close contact’ of someone who has.*

In most cases it is reported that these employers will still pay enhanced contractual sick pay to unvaccinated staff who are absent due to having tested positive for COVID-19 and those who have not been vaccinated due to mitigating circumstances (such as pregnancy or on medical grounds).

It is advisable for employers to tread carefully before taking the decision to cut sick pay under these circumstances.  Employers should consider what has been contractually agreed in relation to contractual sick pay and also whether there is any custom and practice of making such payments under these circumstances.  The likelihood however is that there will be no contractual obligation to pay contractual sick pay to an employee who is self-isolating if they are not sick.  It is also important for employers to apply the decision not to pay full contractual sick pay on a case-by-case basis, taking into account mitigating circumstances relating to a worker’s decision not to be vaccinated, in order to reduce the risks of discriminating against a worker under the Equality Act 2010.

*information correct as at 14 January 2022.

Dismissal for raising numerous grievances so far

In the Employment Appeal Tribunal (‘EAT’) case of Hope v British Medical Association, the EAT held that a dismissal for gross misconduct relating to the raising of vexatious grievances which the Claimant refused to either pursue or withdraw, was fair.

The Claimant brought numerous grievances against senior managers which were unable to be resolved at an informal stage due to the Claimant wishing to discuss the grievances with his line manager.  His line manager had no authority to resolve his concerns.  The Claimant would not progress his grievances formally or withdraw them.  The Respondent dismissed the Claimant for gross misconduct, citing that his conduct was vexatious and his failure to fully follow through on his grievances amounted to an abuse of process.  The Claimant claimed unfair dismissal and the Employment Tribunal held that the dismissal was fair.  The Claimant appealed on the basis that the Employment Tribunal had failed to consider whether his conduct was capable of amounting to gross misconduct in contractual terms.  The EAT dismissed the Claimant’s appeal.  It held that the question to be determined was whether the employer acted reasonably in all the circumstances in treating the conduct as a sufficient reason to dismiss.

No agreement to extend decision period for resolving flexible working requests

In the Employment Appeal Tribunal (‘EAT’) case of Walsh v Network Rail Infrastructure Limited, the EAT held that an employee who agrees to attend an appeal hearing outside the three-month permitted period for resolving flexible working requests, has not also agreed to extend that period.

In February 2019, the Claimant submitted a flexible working request which was rejected.  There was a delay in scheduling the appeal hearing and it was held in July 2019, outside of the three-month permitted period for dealing with such requests.  Before the appeal hearing, the Claimant submitted an Employment Tribunal claim alleging breaches of the flexible working legislation, including that the process had not been concluded within the three-month period.  The tribunal held that there had been an implicit agreement to extend the period.  The Claimant appealed to the EAT which overturned the decision.  The EAT held that any agreement to extend the period must be explicit and clear.

Director/shareholder not a worker (in this case)

In the Employment Appeal Tribunal (‘EAT’) case of Rainford v Dorset Aquatics Limited, the EAT held that the tribunal was entitled to find that a director/shareholder of a small family business was not a worker/employee for the purposes of section 230 of the Employment Rights Act 1996.

The Claimant and his brother were directors and shareholders in a small family company.  The Claimant worked as site manager and also took responsibility for marketing and social media.  He determined his own hours of work and was not under the control of the company.  He brought a claim for unfair dismissal.  There was no written contract of employment, he was paid a salary through PAYE (although this was done for tax reasons as advised by the Respondent’s accountant) and the Claimant’s brother submitted that he would have had no problem with the Claimant sending someone else along to carry out his site manager role on his behalf.  The Employment Tribunal found that the Claimant was not an employee or worker but was instead self-employed.  The Employment Tribunal took into account the factors referred to above and also the fact that there was a clear difference in status between the two brothers.  The Claimant appealed to the EAT which held that the tribunal had taken into account the relevant factors and it was open for the Employment Tribunal to find that the Claimant was not an employee or worker due to that.

Employer not vicariously liable for the actions of an employee engaging in horseplay

In the Court of Appeal (‘CA’) case of Chell v Tarmac Cement and Lime Limited, the CA held that the employer was not vicariously liable for the actions of an employee who engaged in horseplay with a colleague.

The Claimant was employed by Roltec Engineering Limited as a Site Fitter and he worked at a site that was operated by Tarmac Cement and Lime Limited (‘the Company’).  A fitter employed by the Company used a hammer to hit a target which he had placed on a bench close to the Claimant’s ear.  The Claimant suffered hearing loss and tinnitus.  The Claimant argued that the Company was vicariously liable for the actions of its employee.  The CA dismissed the claim.  It accepted that, in principle, there could be a reasonably foreseeable risk of injury under these circumstances (as required for the Company to be liable for negligence for breaching its duty to prevent a foreseeable risk of injury) but that this was not made out in this case, the key point being whether the wrongful act is related to conduct authorised by the employer.

Recent developments in menopause discrimination

There has been a dramatic increase in claims referring to the menopause as the cause of discriminatory treatment (including dismissal) in recent years.  In October 2021, the Employment Appeal Tribunal (‘EAT’) provided its first reported case in this area.

Menopause usually occurs in menopausal people (women and some transgender individuals) in their 40s and 50s but can occur earlier.  It impacts a growing population of the workforce.  Symptoms vary and can have a significant impact on a person’s day-to-day activities, to the extent that it can amount to a disability under the Equality Act 2010.

In the EAT case of Rooney v Leicester City Council, the EAT found that the Employment Tribunal had erred in striking out the Claimant’s claims for disability and sex discrimination, harassment and victimisation.  The Claimant had experienced menopausal symptoms for two years.  She alleged that when she raised the concerns with her manager, he was dismissive.  The council referred her to occupational health but refused her request to be reviewed by a female doctor.  Following a disciplinary warning for work-related stress absence, her appeal was heard with four men present.  The Claimant provided considerable evidence to the Employment Tribunal of the adverse impact that the menopausal symptoms were having on her.  The EAT concluded that, amongst other things, the Employment Tribunal had determined that the Claimant’s menopausal symptoms were minor or trivial without explanation and that its finding that the Claimant was not relying on physical symptoms was inconsistent with her description of some of those symptoms that included sweating, palpitations, fatigue, urinary problems and headaches.

It is advisable for employers to develop and implement a Menopause Policy in order to raise awareness and discourage discrimination in this area.  Any complaints in relation to menopause-related discriminatory comments and/or requests for adjustments to support menopausal employees should be taken seriously in order to reduce the risk of successful discrimination claims.

For advice and guidance on Employment Law please contact Tom Evans  at tom.evans@dtmlegal.com or Elizabeth Judson at elizabeth.judson@dtmlegal.com

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