Employment Law Review - March 2020

Welcome to our March Employment Law Update.In this bulletin we at look the details of the new 2021 immigration system; ACAS guidance on managing threats from the Coronavirus in the work place, including suspending staff; plans for non-union members to accompany employees to disciplinary and grievance hearings and the need to show long term effects in  disability discrimination cases.

• ACAS guidance on Coronavirus
• Suspension and Coronavirus
• Government announces details of the 2021 immigration system
• Non-union representatives to attend disciplinary and grievance hearings
• Long term effect - disability discrimination
• Increase to statutory caps

If you haven't done so already, don't forget to sign up for our forthcoming series of national training seminars, which will look at managing the health of your employees.

ACAS guidance on Coronavirus

Media coverage of the Coronavirus (COVID-19) has been impossible to avoid in recent weeks. This new illness presents symptoms similar to other common illnesses such as cold and flu. It is estimated that up to a fifth of the workforce will be affected by COVID-19, affecting their ability to work. In light of the health threat posed COVID-19, ACAS has issued guidance to assist employers and employees in understanding their sick pay obligations and rights. ACAS have advised the following:

If someone is sick with COVID-19

• The workplace's usual sick leave and pay entitlements apply

If someone is not sick with COVID-19 but cannot work

• If someone is not sick, but they cannot work because they are in self-isolation or quarantine, they do not have a statutory right to sick pay.*
• If someone is not sick but their employer tells them not to come to work, they should get their usual pay. For example, if someone has returned from an affected area and their employer asks them not to come in. (See suspension below)

*However, the operation the Statutory Sick Pay (General) Regulations 1982, combined with the declaration contained in The Health Protection (Coronavirus) Regulations 2020 that the “incidence or transmission of novel Coronavirus constitutes a serious and imminent threat to public health” indicates that someone who self isolates because they are given a written notice to do so, (typically issued by a GP or by 111) will be deemed incapable of work, and therefore, will be entitled to SSP. The Government has also announced that SSP will be payable from day 1 not day 4 for those self-isolating from Coronavirus.

Furthermore, while someone who is not sick and has not been issued with a written notice to self-isolate, is not entitled to statutory sick pay, ACAS advise that it is good practice for the employer to treat it as sick leave. Alternatively the employer may agree for the time to be taken as holiday, to avoid the risk that the employee will come to work in order to get paid, and will spread the virus if they have it.

Comment

Many employers are taking the necessary steps to ensure they are well prepared to deal with COVID-19's potential effect on the workplace - communicating ways to avoid spreading the virus to their workforce, and what to do in the event that someone has COVID-19. It is unknown the extent to which the virus will spread, but as long as employers are prepared and are aware of their obligations, they can limit the effect on their workforce. One way of doing this is to ensure that provisions surrounding pay are made transparent. Recent news reports that a few workplaces have shut due to the fear that COVID-19 has contaminated the workplace. However, this may not need to be the case with all workplaces. ACAS advises that if someone with COVID-19 comes to work, the employer should contact their local Public Health England (PHE) health protection team who will be able to advise on any actions or precautions to take.Full guidance from ACAS can be found here.

Suspension and Coronavirus

It is easy to envision a situation where, during this developing pandemic of Coronavirus, an employee is suspected of having the Virus (because, say, they have recently returned from an affected country), so the employer wishes to keep them away from the workplace through suspension. However, the employee insists on coming into work because if they do not, they will either only be paid Statutory Sick Pay (SSP), or, if they have not been issued with a written notice (requiring them to self-isolate), they believe they will not receive any pay at all.

So, can an employer suspend the employee in this scenario?

The starting point is that refusing to allow an employee to work could give rise to a breach of contract claim. However, there are health and safety considerations at play. In the event of a pandemic, employers have a duty to protect the health and safety of employees. If there is an identified risk and reasonable belief that an employee may have been exposed to the Virus then it is reasonable, based on the employer's duty to protect the health and safety of other employees, for the employer to keep that employee away from the workplace until the risk has passed.

As the suspended employee would not be unfit for work due to incapacity, at the point of suspension, they would not be entitled to SSP. However, as they are being suspended on health and safety grounds, because of a possible risk of infection, it is likely that they have the right to continue to receive full pay. This ties in with the principle that if an employer refuses work to an employee who is ready and willing to work in accordance with their contract, the employer still has an obligation to pay wages (unless there is a contractual right not to do so).

Provided the employer continues to pay an employee their usual pay, it is unlikely to be a breach of contract to require an employee to stay at home on the grounds of health and safety, provided there are reasonable and non-discriminatory grounds requiring this, and the matter is dealt with appropriately and proportionately. However, this should be considered on a case by case basis and, it is open to the employer to regard the risk of allowing the employee to remain at work as outweighing any legal risk which could exist in suspending them.

Government announces details of the 2021 immigration system

Fundamental changes to our immigration system for skilled workers have been announced, the most significant being the inclusion of European nationals in future. For the first time businesses who have relied on a European workforce will need to understand the requirements of the immigration rules to recruit any overseas nationals - including Europeans. Employers who are not currently approved by the Home Office to be a sponsor should consider doing so now if they think they will need to sponsor skilled migrants, including those from the EU, from early 2021.Read more about the new regime in our article.

Non-union representatives to attend disciplinary and grievance hearings

Employees who are asked to attend a disciplinary or grievance meeting have the right to be accompanied by a colleague, a trade union representative or an official employed by a trade union. There is no statutory right to be accompanied by anyone else, although the employer may allow, or have a policy which allows, a wider range of people to accompany an employee to such a meeting. However, it has been reported that the government is devising plans to allow non-union representatives to accompany employees to disciplinary and grievance hearings. In this scenario, external lawyers or representatives of bodies other than unions, as well as potentially family members, would be able to help an employee represent themselves. The proposals were originally devised by Edapt, an organisation that provides teachers and school staff with legal support in individual employment disputes, who argue that legislation currently fails to give non-union members equal employment rights.

Comment

It is thought that the government is attempting to reduce workers' reliance on unions for workplace protection, and the government claims that it hopes to broaden access to representation for non-unionised workers.With the reduction of trade union members in recent years, this is likely to be a change welcomed by employees who do not belong to a trade union, and do not wish for a fellow employee to have knowledge of their workplace dispute, as it will provide them with the opportunity for representation. However, this change may not be desirable for many employers as, if those from outside the workplace are involved at an early stage, it may have the effect of escalating matters at a stage where the dispute would usually be managed and controlled by those in the workforce.

Long term effect - disability discrimination

The recent case of Tesco Stores Ltd v Tennant the Employment Appeal Tribunal (EAT) has held that, to bring a successful disability discrimination claim, an employee must demonstrate that impairment had a 'long term effect' at the time of the discriminatory acts.

Legal refresherUnder the Equality Act 2010 a person is disabled if:

1. They have a physical or mental impairment; and
2. The impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

'Long term' means, if the impairment has lasted for at least 12 months, is likely to last at least 12 months or is likely to last for the rest of the life of the person affected.

Facts

In this case, the claimant was off sick for extended periods as a result of depression from September 2016. She brought a claim for disability discrimination a year later, alleging discriminatory acts which took place between September 2016 and September 2017.

The tribunal had to consider whether the claimant was disabled under the Equality Act and, if so, whether she was disabled at the time of the alleged discriminatory acts.

The claimant argued that her disability had lasted more than 12 months. However, no evidence was presented about how long her disability was likely to last. The Tribunal concluded that the claimant was disabled under the Act, and Tesco appealed, claiming that the claimant was not disabled at the time of the alleged discriminatory acts.

Employment Appeal Tribunal decision

In agreeing with Tesco, the EAT held that the definition of disability had to be satisfied at the time the alleged discriminatory acts took place and not when the claim was submitted. The claimant's impairment and its effects were not 'long term' as they had not lasted for at least 12 months prior to September 2017 and without evidence of the claimant's prognosis, there was no basis to hold that her impairment was likely to last 12 months.

Comment

This case is a helpful reminder of the importance 'the long-term' effect plays in a disability discrimination claim in that it must be evidenced that the claimant was disabled at the time the alleged acts had occurred. Usually, in these cases, there is evidence of prognosis or how long the impairment is likely to last, however, where this evidence is absent, it should not (in most cases) be accepted that the impairment is long term.

Increase to statutory caps

The cap on a weeks' pay, for the basic award (relevant to claims of unfair dismissal) and statutory redundancy purposes will increase from £525 to £538 for all dismissals on or after 6 April 2020. At the same time, the maximum compensatory award for unfair dismissal claims will increase from £86,444 to £88,519.

Employment law update: managing the health of your employees in 2020 and beyond

With disability discrimination claims growing eight times faster than any other employment tribunal claim, and stress related absences rising year on year, we invite you to our seminar programme to guide you through the process of dealing with your staff health issues pro-actively.