Employment Law Review – July 2021

Welcome to our employment law update bringing you up to speed with July’s key developments.

As the final restrictions were lifted on 19 July 2021, we outline the key COVID-19 changes and what they mean for your organisation. We also bring you up to speed on what’s happening in the world of employment law away from COVID-19.

• COVID-19 developments

• Ban on wearing headscarf at work was justified

• Constructive dismissal can amount to harassment

• New duty to prevent sexual harassment at work

• ACAS guidance on hybrid working

• Menopause at work

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COVID-19 developments

• COVID-19 vaccines – Regulations mandating COVID-19 vaccines for those entering care homes became law on 22 July 2021. The Regulations require CQC registered care homes providing accommodation together with nursing or personal care, to ensure that no one over the age of 18 enters the premises without evidence that they have received a complete course of an authorised COVID-19 vaccine. The implementation date of 11 November 2021 leaves little time for care homes to prepare and with limited exemptions to this mandatory vaccine requirement, we recommend that care homes start conversations with staff now about needing COVID-19 vaccines. Care workers and unions should be consulted with and if staff are reluctant to have the COVID-19 vaccine then organisations may need to consider redeployment. We recommend that legal advice is sought before terminating the employment of unvaccinated employees. Care homes will also need to introduce a vaccination policy which details any clinical exemptions and evidential requirements. You can see our update here together with the steps care homes should take to prepare for this change. A ‘no jab, no job’ policy in other workplace settings carries significant legal risk; organisations considering this approach should take legal advice before implementing such a policy.

• Employers supporting COVID-19 vaccine roll out – The Government has issued guidance to employers about supporting the vaccination programme together with a COVID-19 vaccination toolkit with materials for employers to use. The toolkit includes scripts, assets for email signatures, internet banners, social media posts, briefing sheets and vaccine fact sheets. Employers are encouraged to promote vaccination by encouraging senior employees to share their vaccination experiences and ensuring policies and procedures do not disincentivise employees from getting the vaccine.

• Self-isolation exemptions – As large numbers of the workforce were ’pinged’ by the NHS app, the Government set out a close contact self-isolation exemption to support employers engaged in critical sectors; where close contact self-isolation would result in a ‘serious disruption’ to critical services, employees who are double vaccinated can leave self-isolation to complete that critical work. Permission to leave self-isolation is dependent on daily testing. Organisations need to make an application to the relevant Government department for this exemption to apply. You can see the key considerations for employers when it comes to self-isolation here.

• Making workplaces safe – The Government has updated its working safely during Coronavirus guidance to reflect the move to Step 4. The guidance echoes the Government’s ‘stay cautious’ message and sets out how employers can reduce the risk of Coronavirus spreading in a range of workplace environments. The guidance confirms that social distancing will no longer be required in workplaces and requires businesses to take six priority actions to protect staff and customers from Coronavirus. You can see our update on keeping workplaces safe here.

You can keep up to date with all the latest Coronavirus developments on our Coronavirus Exchange, including our comprehensive FAQs for Employers and our series of bite sized videos providing guidance for organisations as we move away from legal restrictions. 

Ban on wearing headscarf at work was justified

The European Court of Justice (ECJ) recently decided that a policy prohibiting workers from wearing any visible sign of political, philosophical or religious belief in the workplace did not amount to discrimination. The German courts referred two cases to the ECJ. One involved a worker in a children’s day care setting who wore a headscarf to work on a number of occasions, in breach of her employer’s policy. She was eventually suspended from work. The other case involved a sales assistant who was sent home after she refused to remove her headscarf at work. The ECJ concluded that the policy prohibiting workers from wearing any visible sign of political, philosophical or religious belief at work did not constitute direct discrimination because it applied to all workers without exception. The policy also did not amount to indirect discrimination; it extended to all visible forms of political, philosophical or religious belief and was justified by the employer who had demonstrated a ‘genuine need’ for the policy over and above the need for a neutral dress code. The legitimate rights and wishes of the services users could be taken into account when considering whether there was a ‘genuine need’. Here the ECJ highlighted the rights of parents to have their children supervised by people who do not display or manifest their political, philosophical or religious belief in the workplace. Employers should be aware that although this particular case concluded that a ban on wearing headscarves was justified, it is unlikely that the vast majority of workplace settings will be able to establish a similar justification. The Guidance on dress codes issued by the Equality and Human Rights Commission states that there may often be more proportionate ways of ensuring organisations meet certain business needs or health and safety requirements, rather than insisting the worker removes a symbol or dress entirely. Following this ECJ decision many employees have taken to social media using the hashtag #handsoffmyhijab to express their upset and dissatisfaction about the restriction on their ability to express their beliefs. Employers may wish to take this opportunity to stand as allies to members of the Muslim community and reiterate their commitment to an inclusive workplace; this will empower employees to be their authentic selves and will enable them to give their best at work without fear of discrimination or harassment. 

Constructive dismissal can amount to harassment

A constructive dismissal occurs where an employee resigns after they have been treated in a manner which was so poor that it amounts to a breach of the employment contract, entitling them to resign and treat themselves as dismissed. The Employment Appeal Tribunal has recently concluded that a constructive dismissal can be an act of harassment.  Ms Driscoll resigned after four months of working as an executive assistant with VPG Ltd. She claimed that comments made by the CEO amounted to harassment on the grounds of sex, race or disability. She alleged that the harassment she endured during her employment culminated in her constructive dismissal. The Employment Tribunal struck out her claim on the basis of previous case law which stated that a constructive dismissal could not amount to an act of harassment. The EAT concluded that a constructive dismissal (caused by an employee resignation) was capable of being an act of harassment under the Equality Act. Why is this an important decision? It means that employees without two years’ service (required to claim unfair dismissal) can still bring a claim based on their treatment, if the harassment has caused them to resign. It means that if the constructive dismissal amounts to harassment, the employee can be awarded uncapped compensation for losses flowing from the dismissal. It also means that where the constructive dismissal is an act of harassment, the time to bring a tribunal claim will run from the date of resignation rather than from an earlier act of harassment. 

New duty to prevent sexual harassment at work

The Government has finally published its response to the consultation on sexual harassment in the workplace, which closed in 2019. The response confirms that the Government will introduce a new duty requiring employers to prevent sexual harassment at work; this is aimed at encouraging employers to taking positive and proactive steps to make the workplace safer for all. The proposal is to introduce new legislation which will establish clear standards and expectations for both individuals and employers. The Equality and Human Rights Commission will produce a statutory code of practice and there will also be guidance from the Government Equalities Office for employers on how to tackle sexual harassment at work. The new duty will retain the ‘all reasonable steps’ defence currently available to employers in discrimination claims. The Government is also considering reintroducing protection from third party harassment and extending the time for individuals to bring harassment and discrimination complaints under the Equality Act in the Employment Tribunal from 3 to 6 months. This is after feedback that the impact of trauma arising after experiencing sexual harassment meant that the existing 3 month time limit was a potential barrier to justice, particularly in instances of pregnancy and maternity discrimination. Although there are no imminent changes, we do know that these are on the horizon. Employers should consider reviewing current policies, procedures and staff training to identify any gaps or lack of clarity around the standards and expectations around sexual harassment and dignity at work. The ACAS guidance on sexual harassment will provide employers with a useful reference point on the steps they can take to prevent sexual harassment at work. 

ACAS guidance on hybrid working

In July, ACAS published new guidance on hybrid working. The guidance highlights the importance of consulting with staff and preparing for hybrid working, as well as the importance of effective management of a hybrid workforce. The guidance recommends introducing a hybrid working policy and treating staff fairly, being mindful of potential discrimination risks. Many organisations are adopting hybrid working, especially since the Government has recommended a gradual return to office working. The Freeths Employment team have been working closely with clients to ensure that their organisations are ready to implement effective hybrid working. We have been delivering interactive workshops on managing a hybrid workforce which focus on the legal and practical issues, employee wellbeing, performance management and employee monitoring. The workshops are tailored to support people managers with proactively managing a hybrid workforce. You can find out more about our workshops here. 

Menopause at work

The Women and Equalities Committee has recently launched a call for evidence to understand the challenges and extent of discrimination faced by women experiencing menopause during their working careers. The call for evidence hopes to explore how Government policy and workplace practices can better support those experiencing menopause, including whether further legislation is needed to help employers implement such support. Submissions are welcome from both individuals and organisations. If you would like to contribute to, or explore the questions addressed in the call for evidence, please contact us. The call for evidence is open until Friday 17 September 2021.