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Covid-related case law

First instance (employment tribunal) decisions are now starting to be reported relating to matters arising out of Covid.  These cases provide us with guidance as to how the employment tribunals are approaching Covid dismissal and related cases.  Two such decisions are set out below.

In the case of Miss A Prosser v Community Gateway Association Limited, the employment tribunal found that (in this case) sending a pregnant woman home to avoid Covid risks did not amount to unlawful sex discrimination.  Community Gateway supports vulnerable tenants in social housing.  Ms Prosser informed her employer that she was pregnant on 13 March 2020.  Community Gateway (acting on government guidance) sent her home as it considered pregnant women to be clinically vulnerable in relation to Covid.  Although she was on a zero hours’ contract, Community Gateway paid her in full while she was at home.  Ms Prosser claimed that being sent home amounted to sex discrimination.  The tribunal dismissed the Claimant’s claim on the basis that sending her home was not ‘unfavourable treatment’ but rather it was treatment which was appropriately informed through the government’s public health guidance.  This was inevitably a difficult case for the employment tribunal to determine as it makes no sense to find an employer liable for sex discrimination if they are acting on government guidance designed to protect pregnant women but, on the other hand, it would be hard to find that denying a worker access to the workplace on the basis of their pregnancy is not unfavourable treatment.

In the case of Mhindurwa v Lovingangels Care, the employment tribunal held that employers have a duty to actively consider placing an employer on furlough leave when making someone redundant and the absence of a reasonable explanation for not placing the employee on furlough leave made the dismissal unfair.  Ms Mhindurwa was a care assistant.  She was employed to provide live-in care for an elderly woman who, in February 2020, moved into a care home.  In May 2020, Ms Mhindurwa asked to be placed on furlough leave and this was refused due to her employer having no work for her.  She was dismissed by reason of redundancy in July 2020.  The employment tribunal judge held that the dismissal was unfair as, in his view, in July 2020 a reasonable employer would have given consideration as to whether an employee should be placed on furlough leave in order to avoid being made redundant.  He determined that although the employer had no work available for Ms Mhindurwa at the time of her dismissal, it had no way of knowing whether that was going to change and didn’t consider whether Ms Mhindurwa should be placed on furlough leave for a time to see whether other work may become available.  Due to the furlough scheme rules in place at the time, it was actually impossible for the employer to place Ms Mhindurwa on furlough leave in July 2020 for the first time but the judge may have taken into account the fact that she could have been placed on furlough leave in May 2020 when it would have been possible to do so.  Any employers considering redundancies prior to 30 September 2021 (when the furlough scheme comes to an end) should have regard to the judge’s findings in this case.

Compulsory vaccination for care home workers and the judicial challenge against it

On 11 November 2021, the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (‘the Regulations’) will come into force.  The legislation states that a care home provider must ensure that nobody enters care homes unless they fall into one of the identified exceptions, the main exceptions being:

  • Care home residents.
  • Friends and relatives of care home residents.
  • To visit a care home resident who is dying.
  • To provide comfort or support to a care home resident in relation to their bereavement following the death of a friend or relative.
  • Emergency help providers.
  • Children under 18.

If someone does not fall within an exception, the care home must not allow them entry unless they provide evidence that:

  • They have completed a course of an approved Covid vaccine; or,
  • They cannot be vaccinated for clinical reasons.

This means that care home workers must be vaccinated against Covid unless they are medically exempt.  Care homes should now take steps to encourage their workers to get vaccinated, to warn them of the consequences if they do not and to arrange alternative staffing to replace those who refuse.

A judicial review challenge to the Regulations is to be launched shortly.  The Regulations are to be challenged on six grounds being:

  1. That they are incompatible with their parent Act.
  2. That they amount to a disproportionate interference with the right to bodily autonomy of front-line and non front-line care workers.
  3. That they amount to disproportionate interference by reason of indirect discrimination on the grounds of race and/or sex for front-line and non front-line care workers.
  4. That the requirement for a vaccination is irrational for a variety of reasons.
  5. That they were made in breach of the duty of sufficient inquiry.
  6. That they were made in breach of the duty to consult.

Neutral dress code policy did not amount to religious discrimination

In the Court of Justice of the European Union (‘CJEU’) cases of IX v WABE and MH Muller v MJ, the court found that it is not direct discrimination for an employer to have a policy prohibiting employees form wearing anything manifesting a religious, philosophical or political belief in the workplace, if that policy requires ‘neutral’ dress from all employees.  These two cases were referred by the German Labour Courts to the CJEU.

In the first case, WABE runs child day care centres and has a policy of prohibiting employees from displaying, in a manner visible to parents, children or third parties, any signs of political, philosophical or religious beliefs.  IX wore an Islamic headscarf to work on a number of occasions and was given warnings and suspended.  In the second case, MJ was employed as a sales assistant and cashier in a store operated by MH in Germany. She refused to comply with MH’s request to remove her Islamic headscarf and was sent home. MH instructed her to attend her workplace without ‘conspicuous, large-sized signs’ of any political, philosophical or religious beliefs.  The CJEU held that it was not direct discrimination for an employer to impose a policy requiring neutral dress where the policy is applied in an unconditional way.  The Claimants did not suffer a difference in treatment that was inextricably based on religion or belief as compared to other workers.  The CJEU also considered that such policies were capable of being justified in the context of indirect discrimination if the policy meets a genuine need of the employer.

It is important to note that, as a result of BREXIT, this judgment does not bind courts and tribunals in the UK. However, UK courts and tribunals may ‘have regard’ to it ‘so far as it is relevant to any matter before the court or tribunal’.

Unfair dismissal case law round-up

Some other substantial reason:

In the Court of Session (‘CS’) case of L v K, the court held that it was not unfair to dismiss a teacher who had been suspected (but not charged) of possessing indecent images of children.  The case concerned a teacher who had been arrested after indecent images of children were found on his home PC.  The charges against both were subsequently dropped.  The school investigated the matter and the teacher was dismissed.  The reason for the dismissal was that, whilst it could not be proved that the teacher had downloaded the images, the fact he may have done gave risk to a safeguarding concern, reputational risk and a breakdown in trust.  The teacher claimed unfair dismissal and the first instance tribunal found that he had been fairly dismissed for ‘some other substantial reason’ (‘SOSR’).  The Employment Appeal Tribunal (‘EAT’) expressed concern that the grounds for dismissal had not been clearly put and referred the matter to the CS in Scotland.  It concluded that in some circumstances it will be reasonable for an employer to dismiss someone who may be innocent if there is a genuine and substantial reason to justify the dismissal and that this was one such case.

Capability:

In the Employment Appeal Tribunal (‘EAT’) case of Fallahi v TWI, the court held that it was not wrong for a tribunal not to ‘go behind’ a final written warning when considering if a capability dismissal was fair.  Mr Fallahi was dismissed in reliance upon a final written warning after failing to meet targets in his project management role.  The employment tribunal held that Mr Fallahi’s dismissal was fair and declined to go behind the final written warning.  The EAT considered previous cases and noted the limited scope for going behind a final written warning when considering fairness.  The tribunal was required to judge the reasonableness of the dismissal in all circumstances, not simply whether the final warning was reasonable or appropriate. In this case the employer had been dealing with the employee’s performance over a long period of time, part of which had led to a final written warning.  The tribunal was entitled to find that the warning was not manifestly inappropriate and so was within the range of reasonable responses.  This case should give employers some reassurance that, in capability cases, the validity of a final written warning is not crucial provided that the dismissal of an employee is reasonably fair overall and that the final warning is not manifestly unfair.

Redundancy:

In the Court of Appeal (‘CA’) case of Gwynedd Council v Barrett & others, the court held that (in this case) the lack of an appeal did make a dismissal unfair.  An employment tribunal held that a teacher was unfair dismissed when the school closed and a new one was opened on the same site, there was no consultation over the closure and no appeal was offered to the teacher.  Following an appeal to the Employment Appeal Tribunal and subsequently the CA, the CA rejected various grounds of appeal put forwards by Gwynedd Council.  It noted that whilst it would be wrong to find a dismissal unfair following a fair process only because of the lack of an appeal procedure, the tribunal must have regard to all the relevant circumstances, including any appeal.  In this case, Gwynedd Council had failed to adopt a fair process and fair dismissal in a number of respects.

Some other substantial reason:

In the Employment Appeal Tribunal (‘EAT’) case of Moore v Phoenix Product Development Limited, the EAT held that it is possible for a dismissal to still be fair if the employer refuses to hear an appeal.  Mr Moore stepped down as CEO of Phoenix and continued with the company as a director and an employee.  He had difficulty in accepting that he was no longer leading the company.  He was dismissed due to an irretrievable breakdown in relationships and was not offered a right of appeal.  Mr Moore claimed unfair dismissal and the employment tribunal rejected his claim.  He had met with the new CEO and agreed to make things work but had continued to send aggressive e-mails containing foul and abusive language.  His attitude at the board meeting at which he was dismissed was confrontational.  The tribunal determined that the appeal would have been pointless.  The EAT upheld the decision stating that an appeal will normally be part of a fair procedure but not invariably so.

Part-time workers not treated less favourably

In the case of Forth Valley Health Board v Campbell, the Employment Appeal Tribunal (‘EAT’) held that it is lawful for part-time workers not to receive paid breaks if the reason is that they are working shorter shifts.

Mr Campbell was a part-time Phlebotomist who worked 16 hours per week on a six-week rota.  It was the employer’s practice that workers received a paid 15 minute break when they worked shifts of six hours or more.  The Claimant received this break when working six hour weekend shifts but not when working four hour shifts during the week.  He argued that this was unlawful as full-time workers received a paid break for all shifts that they worked.  The employment tribunal agreed with him, finding that the employer’s practice was less favourable to part-time employees.

The EAT disagreed with the employment tribunal, stating that the sole reason that Mr Campbell did not always receive paid breaks was not his part-time status but due to the length of the particular shifts that he worked.  Part-time workers always received the paid breaks if they worked longer shifts.

Employer’s knowledge of disability

In the case of Seccombe v Reed, the Employment Appeal Tribunal (‘EAT’) held that it was not perverse for a tribunal to conclude that the Claimant was not disabled and that the employer did not have actual or constructive knowledge of the employee’s disability.

Mr Seccombe was dismissed on performance grounds.  Before his employment had commenced he had suffered two bouts of ill health related to anxiety and depression.  Neither was long-term.  During his employment he suffered a traumatic event which led to a breakdown.  He returned to work following a short absence and his managers assumed that the issue was resolved.  On his health questionnaire he did not disclose any mental health impairment.  His assertions on disability were not supported by medical evidence.  The EAT held that the Claimant was not disabled on the evidence as he had not demonstrated that his mental impairment was long-term (in accordance with the Equality Act 2010 (‘the Act’), Mr Seccombe would need to have shown that his impairment had lasted or was likely to last for at least 12 months in order to meet that particular prong of the definition of a disability under the Act).

To discuss the above or for further Employment or HR Advice please contact either Tom Evans at tom.evans@dtmlegal.com or Elizabeth Judson at elizabeth.judson@dtmlegal.com.

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