September 2021 Employment law update

Covid-19 continues to raise challenges for employers

The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 were made on 22 July 2021 and come into force on 11 November 2021. They add amendments to the Health and Social Care Act 2008 Regulations 2014. An amendment to the 2014 Regulations will make it unlawful from 11 November 2021 for someone who has not been fully vaccinated against Covid-19 from entering a care home. The Regulations have some exemptions from this requirement, for example, clinical reasons prevent a person from being vaccinated with any authorised vaccine.

The Covid-19 situation continues to bring up new challenges for employers and questions on how to approach the sensitive area of vaccination and work. Employers need to be mindful that what they can, or should, do with regard to vaccination status brings up many areas of law in the employment context. This includes implied and express employment contractual terms, Equality Act 2010 protected characteristics and discrimination, consistent treatment amongst employees, data protection as well as complying with any new statutory restrictions imposed by law. Employers may wish to consider adopting a vaccine policy.

Long Covid and Disability Discrimination

Do employers need to make reasonable adjustments for an employee who suffers long Covid symptoms?

Having employees who are suffering from long Covid is affecting more and more employers. The medical evidence and commentary on “long Covid” is that some people who contract COVID-19 do not become free from the effects of the virus for many months after initially falling ill. The common symptoms have been reported as including breathlessness, chronic fatigue, anxiety, stress and effects on the ability to concentrate. As a very new illness, at present, there is no case law on whether or not long Covid would meet the Equality Act 2010 definition of disability.

The key elements of the definition of disability in the Equality Act 2010 is that the condition is a physical or mental impairment that has a substantial and long-term effect on the individual’s ability to carry out normal day-to-day activities. Long-term means the condition has lasted at least 12 months, but it will also be considered to be long-term if the condition is expected to last more than 12 months. The latter would be more relevant where an employee has not suffered the symptoms for a year.

In determining whether an employee suffering from the symptoms of long Covid is going to be disabled under the Equality Act, the key question going to be around the duration of the illness and whether the symptoms have a substantial effect on the individual’s ability to carry out day to day activities. So the answer on whether an employer needs to make reasonable adjustments is invariability is going to be: it depends on the specific facts.

However, employers should nevertheless treat any employee with such symptoms reasonably and fairly. Employees with at least two years’ service have the right not to be unfairly dismissed and adopting a fair procedure for sickness absence will assist in maintaining good employee relations as well as assist in defending claims.

Health and safety and employment law

The Employment Rights Act 1996 has various provisions protecting employees with respect to health and safety matters in the workplace. For example, the protected disclosure or whistleblowing provisions protects employees from detrimental treatment for making a disclosure about “the health and or safety of any individual has been, is being or is likely to be endangered”. S.100 of the Employment Rights Act contains provisions for health and safety cases. It deems a dismissal automatically unfair if the reason for the dismissal was, for example, the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left or refused to return to his place of work, or in circumstances of danger which the employee reasonably believed to be serious and imminent, he took or proposed to take appropriate steps to protect himself or other persons from the danger.

In a recent employment tribunal case (Rodgers v Leeds Laser Cutting Ltd, judgment given March 2021), an employee brought a claim for automatic unfair dismissal on the grounds he was dismissed for self-isolating due to the Covid situation. Whilst that claim did not succeed, the judge commented that conditions pertaining to Covid-19 could potentially amount to circumstances of serious and imminent danger in principle.

What does this mean for employers? Our view is that employers should follow their health and safety policies and review these from time to time to take into account new developments, and seek advice when needed. As there is no qualifying period for claims for automatically unfair dismissal under section 100, employers should be cautious in deciding whether to dismiss employees (including those with less than 2 years’ continuous employment) for Covid-related reasons.

Furlough scheme is coming to an end

The Coronavirus Job Retention Scheme is now coming to an end. Since 1 July 2021, the Government will pay 70% (previously 80%) of wages up to a maximum of £2,187.50 for the hours the employee is on furlough. This Government contribution from 1 August 2021 is 60% of wages up to a maximum cap of £1,875. The scheme will be discontinued after 30 September 2021. There will be various options available to employers who are affected, other than redundancy, including agreeing contract variations with employees.

Employment disputes remain on the up

Statistics released by Acas show a substantial jump in early conciliation notifications during 2020.

Early conciliation is a statutory pre-requirement employees must go through before proceeding with an employment tribunal claim. The principle behind this requirement is that parties should try to mediate and settle their differences rather than proceeding with employment tribunal litigation, which can be a lengthy, time-consuming and an expensive process for both sides.

Early conciliation can be begun by employers as well as employees.

Where a dispute between employer and employee are settled with the assistance of Acas, the agreement is recorded in a legally binding agreement known as a “COT3” agreement.

The Acas statistics report that more than 60% of early conciliation notifications did not lead to the matter proceeding to an employment tribunal claim submission, demonstrating that mediation can have high success rates.

As well as the Acas early conciliation route, employment disputes can also be settled through settlement agreements. These agreements do not involve Acas, but employees are required to obtain independent legal advice on the terms and effect of the settlement agreement for the agreement to be properly executed as a legally binding agreement. The use of settlement agreements is likely to be preferable where time is important.

Knight-Webb Solicitors are specialists in employment law. We pride ourselves in providing a first-rate, cost-effective and personal service to clients. We can advise you on employment law matters including furlough arrangements, redundancies and settlement agreements.

Contact Sunita Knight-Webb on 020 7207 6195 or at sunita@knightwebb.com