Recent Cases of Interest: Summer 2022

Employee who refused to attend work because of concerns about coronavirus was fairly dismissed

In one of the first cases concerning a covid-related dismissal to be heard by the Employment Appeal Tribunal (EAT), Rodgers v Leeds Laser Cutting, it was ruled that the employer acted fairly in dismissing the employee.

Rodgers started work with Leeds laser Cutting as a laser operator in June 2019. He carried out his work in a large open factory, with usually 5 people in total on the shop floor.

The day after the national lockdown started on 23^rd March 2020, the employer sent out a communication to all its employees stating that the business would remain open and Covid safety measures would be observed.

A risk assessment exercise had already been carried out just prior to the lockdown by an external firm of specialists and they had recommended that measures including social distancing, wiping down surfaces and the staggering break times should be put in place.

On 25^th March, Rodgers developed a cough, which he claimed was due to dust. He worked normally up until the end of his shift on 27^th March, and on 29^th March he sent an email to his boss stating that he would not be returning to work until the lockdown had eased. He said this was because he had a vulnerable child at home along with another young baby, and he did not want to put them at risk of catching Covid. He then submitted an NHS self-isolation note covering him for the period from 28^th March until 3^rd April. His boss replied to the email saying, “ok mate, look after yourselves”.

There was then no further contact between the parties until 24^th April, when Rodgers sent a text to his boss saying that he had been told that he had been “sacked for self-isolating”. He also requested that the effective date his employment had ended, and the reason be put in writing to him, along with his P45.

On 24^th April, Rodgers received his P45 from the Company and although there had been no other communication, the employer subsequently accepted that this act had confirmed the dismissal.

Rodgers then submitted a claim to the Employment Tribunal stating that he had been automatically unfairly dismissed for refusing to return to the workplace due to a serious and imminent danger, namely Covid-19. However, following a hearing on 29^th January 2021, the tribunal dismissed his claim concluding that Rodgers did not believe there was a serious and imminent danger in the workplace, but in the world in general. It also concluded that Leeds Laser Cutting had taken reasonable steps to reduce the risk of infection in the workplace.

Rodgers then appealed this decision questioning whether the tribunal had made an error in concluding that Rodgers’ belief was one of a serious and imminent danger in general rather than in the workplace itself. Following the appeal hearing on 12 April 2022, the EAT dismissed his appeal.

RBA Comment:

In this case the EAT endorsed the tribunal’s view that the employer had taken reasonable steps to try and avoid the transmission of Covid within the workplace and that a belief of danger by an employee would not be enough to create liability on the part of an employer.

Employee found to be victim of harassment because of having to express breast milk in ‘dirty’ toilet

In the case of Mellor v Mirfield Free Grammar School, the claimant was employed as a teacher at the school. In September 2019, Mellor informed the school that she was pregnant. On 16^th March 2020, prior to taking her maternity leave, she wrote to the principle with a flexible working request and asked for access to a room to allow her to express when she returned to work.

Mellor’s child was born on 19^th April 2020, and her flexible working request was granted on 21^st May 2020.

In June 2020, prior to her return to work, Mellor wrote to the school to finalise details for her return and stated that it was important to make the school aware that she would still be breastfeeding when she returns to work and that she may need a room to express in, although she did not plan to feed her child at lunchtimes from September.

In early July 2020, Mellor had a discussion with her line manager about her return to work in September, during which she was told that breastfeeding her baby at school would be impossible as her partner would not be allowed to bring the child onto the school premises due to Covid restrictions.

Mellor informed the tribunal that following her return to work in September 2020, she made numerous requests to her boss to have a room made available to her so that she could express and that she was suffering pain through not being able to do so. The school countered this by saying that there were many empty rooms available throughout the school which Mellor could have used. However, the tribunal dismissed this on the grounds that it was not reasonable to expect Mellor just to wander into an empty room at random, especially during the pandemic.

Following a short period of sickness absence and several other requests from Mellor for a room to be made available for her, no further action was taken by the school. This resulted in her stating that from that point onwards she used the toilets or her car daily, at lunchtime, to express. She went on to say that she wasn’t allowed any time to express, and that she was forced to do it during her lunch break whilst eating her lunch at the same time. She added that she found it disgusting to have to eat her lunch in toilets, which were often dirty.

The tribunal judge summarised the situation by saying that Mellor “genuinely and reasonably had no choice but to use the toilets or her car to express” and that she had made the school aware on numerous occasions, but nowhere was provided. “The alternative was that the claimant would experience an embarrassing leakage in the afternoon,” the judge explained. “It is obvious that this is unacceptable.”

“In our judgement, the conduct did have the effect of creating a degrading or humiliating environment for the claimant,” the judge said. “We are aware of the seriousness of these words, but in our view a woman who has recently given birth should not be subjected to these circumstances solely because she has done so.”

RBA Comment

To avoid the possibility of similar claims, employers need to ensure that suitable facilities are made available at work for new parents. Discussions should take place with breastfeeding employees to determine their needs and suitable arrangements should be put in place to ensure that women who need to express milk can do so in a suitable, clean and private location. 

The Flexible Working Headache for Small Businesses

This week news emerged of Jacob Rees-Mogg demanding civil servants return to the workplace (about 44% had already done so). The FT (17 Feb) and Standard (17 March) reported London occupancy rates at their highest level of return.

JP Morgan, after stating that home working was “an unwelcomed distraction”, has now relaxed its return policy following pushback from staff. 

A Bloomberg report this week headlined “Workers are winning the battle” when it comes to returning.

I believe for small business owners – this is a perfect illustration of when NOT to follow Large Co models and trending news.

Your business will have key essential functions and tasks that need to be done well, consistently, and in a productive and profitable way. ANYTHING that gets in the way of that should be repelled. 

Why? Because if you operate against that first principle, however well-meaning, the outcome may not help your business.

There is no single solution. Not all job roles are the same.

What’s needed:

• Talking with individuals 
• Aligning joint expectations
• Refocusing on PPP (post pandemic priorities)
• Naming where you are – about to reorganise, in a transition stage or fixing a new game plan.

You are busy, there will be many pressures on YOUR TIME and ENERGY. 

BUT

If you haven’t currently nailed this – you could be facing huge friction:

• Your profitability, 
• Strained working relationships and
• Inevitably, a personal headache.

NEXT STEP…. Book in those discussions with your team, (or get your managers to do this for you). Clarity will pay dividends.

Rob Bryan

Managing Covid guidance in the workplace

The government has removed the legally mandatory requirement for people in England with Covid to self-isolate. The legislation was removed with guidance taking its place from 24 February.

Following this announcement rates of infection across the whole of the UK have dramatically risen. For employers, working with guidance is potentially more difficult. Many questions arise in relation to how a business can protect itself, how to manage sickness absence and related pay, what testing should take place and how risks should be managed.

Not all workplaces are the same. Employers are advised to consider their own risk assessments, and this will mean assessing the spread of a contagious disease, the dangers arising and the potential consequence for anyone exposed to the risk, such as employees, customers or contractors. Although the word advised is used, all employers have legal obligations to carry out risk assessment in relation to all of their business activities. Specific separate guidance applies to employers in health care settings.

Guidance (see link to Gov.uk)

Guidance in relation to self-isolation for the first 5 days states that employees should remain away from work. The guidance also advocates testing and managing the risk of returning to the workplace from days 5 to 10.

Sick Pay

On 24 March, entitlement to statutory sick pay will revert to the pre-pandemic rules. This means statutory sick pay is payable on day 4 of absence and will require an employee to actually be sick or incapacitated from work, rather than “affected by Covid”. So SSP will no longer cover for isolation in the home for looking after someone who is isolating.

Testing

Without a regime of free testing, identifying sources of potential infection will rely on self-reported symptoms. For some there are no symptoms. For any business identifying a critical need for preventing workplace contagion, testing will need to continue. From 1 April free tests are expected to be withdrawn.

The combination of removing an incentive to remain away from the workplace and the means of identifying potential spread makes managing this situation harder. For businesses impact assessments highlighting critical delivery of services, general workplace safety or the protection of vulnerable people, management of this issue will be of vital importance.

Where a business can justify testing and the enforcement of isolation, nothing in the government’s announcement changes or interferes with the employer’s ability to manage its workplace and workforce. Mandatory testing for employees may be justified and indeed essential. Some employers are contemplating amendments to their sickness and absence policies to pay sick pay in support of effectively monitoring and managing the business risks.

Special situations

Some employees will have concerns for their personal welfare. This may be an underlying medical condition, a fear of working in close proximity to others, travelling in crowded spaces and perhaps concerns of passing Covid to other vulnerable members of their family or household. The government’s announcement, together with “living with Covid” and returning to normal, will have an adverse impact on some employees. The ongoing advice for employers remains discussing specific arrangements with individuals and identifying, where possible, practical alternatives to office space working or rush-hour travelling.

In summary we suggest:

1. Making an updated and current assessment of COVID infection risk within your workplace activities and those people impacted by your work

2. Communicate the measures you have and are going to put in place along with any options for alternative working arrangements, potentially with a review date

3. Consider how COVID-related sickness absence will be treated together with any company sick pay support and options for alternative working and communicate

*the changes from 24 March do not affect Wales or Scotland, you may have to consider separate approaches across your business in these areas.

Repeal of vaccination as a condition of employment

The Government is proceeding with revoking vaccination as a condition of deployment (VCOD) in all health and social care settings.

The regulations revoking VCOD in all health and social care settings will come into force on 15 March 2022.

The Government is still strongly encouraging social care staff to take the vaccine.

The operational guidance, Covid-19 Vaccination of People Working or Deployed in Care Homes applies to regulated activity in a care home, i.e., the provision of accommodation together with nursing or personal care, and all professionals and tradespeople who enter these settings, now reflects this decision.

The Government’s response stated: “In light of this latest scientific evidence and having considered the views received as part of the consultation, as well as an analysis of equalities impacts the Government will bring forward regulations to revoke vaccination as a condition of deployment.

“The regulations will revoke the requirements that CQC registered persons only permit those who are vaccinated against Covid-19, unless otherwise exempt, to be deployed for the provision of a CQC-regulated activity in health and/or social care, and to enter CQC registered care home premises.”

Work from home guidance ends in England

Yesterday  (Wednesday 19^th January), the Prime Minister announced an immediate end to the advice for people to work from home. England will revert to ‘Plan A’ measures from next Thursday 27^th January which means a relaxation on the rules regarding face masks and Covid passports.

Steps for employers with staff working from home:

• Employers should update their employees on whether a return to the office is now required and how this will be managed.

• Complete a risk assessment to ensure all necessary Covid-secure measures are in place. This could include increased cleaning,  one-way systems, hand sanitizers, screens/barriers, social distancing, mask wearing, ventilation. See our recent blog post for more information on workplace safety measures. If you have been through the process of return to work previously review and assess what worked well and what could be changed.

• Have supportive conversations with any employees who are hesitant about returning to the office.

The latest rules for self isolation and testing

Update 13/01/2021: From Monday 17th January those who have tested positive for Covid-19 will be able to end isolation after 5 full days following 2 negative tests, 24 hours apart.
 
The day symptoms begin or you test positive is day zero. A lateral flow test can be taken on day 5, if it is negative a further test can be taken on day six and if this is also negative and you are not experiencing a high temperature isolation can be ended.
 
Click here for a table explaining the self isolation process 

For business-critical teams, each organisation would do well to consider the requirement for negative testing before a return to the workplace. 

There has also been a change in the requirement for PCR tests. From 11 January in England, people who receive positive lateral flow test results will be required to self-isolate immediately and won’t be required to take a confirmatory PCR test. The positive LFT should be reported via the gov.uk service. This is a temporary measure while cases are high.  

Temporary Changes to GP Sick Notes

Last week (17 December) temporary changes were announced with rules relating to GP Sick Notes that will be in place until 26 January 2022.

If you are currently managing sickness absence this is important.

For absences from 10 December to 26 January 2022 employers should not ask employees for proof of sickness until the absence has lasted for 28 days or more. This change was implemented due to GP resources being wholly devoted to vaccine booster rollout.

Also, Statutory Sick Pay can not be withheld from employees during this period. This may conflict with your own policies relating to reporting sickness absence. This is a significant change from the usual requirement that requires a medical certificate to be provided after 7 days of absence.

These changes are effective now and will take precedent until 26 January.

Whilst employers cannot ask for proof of sickness for non-Covid related absences, it remains possible to ask for proof of a positive test or isolation request for those absences that are Covid related.

For those clients currently managing sickness absence, you may not be able to obtain a first or renewal sick note. You should continue to consult with absent employees and assess the likely timing of their return to work. This does not impact on your ability to pursue occupational health reports and in some cases you may wish to bring this forward.

Update to Covid Measures – December 2021

In September the Government first announced a Plan B, if stricter COVID controls were needed. Following recent data regarding the spread of the Omicron variant, from Friday 10 December the following changes will be implemented: 

From Friday 10 December, masks must be worn in most public venues, including theatres and cinemas, unless someone is medically exempt. This will not apply in premises where people are eating or exercising (such as gyms or nightclubs).

From Monday 13 December, guidance to work from home wherever this is possible will be reintroduced.

By Wednesday 15 December, Covid passes will become mandatory for nightclubs, unseated indoor venues with more than 500 people, unseated outdoor venues with more than 5000 people and any venue with more than 10,000 people.

A COVID pass will require two doses or a negative lateral flow test within 48 hours of an event.

Many employers will have experienced some form of homeworking in the last year or so and be familiar with the challenges this brings. 

At this point in time businesses are not being asked to close and there is no financial support being offered. A projected 1 million Omicron cases by the end of the month will create challenges with even minor illness and a need for testing and isolation.

Covid safety measures this winter

COVID Safety Measures (from the HSE Weekly Digest eBulletin 02.12.21)

With winter weather making workers reluctant to keep windows and doors open, it is even more important to ensure your workplace is adequately ventilated. Good ventilation helps reduce the risk from aerosol transmission and prevent the spread of COVID-19.

Following useful feedback from businesses, HSE has updated its website providing ventilation during the pandemic to make the advice easier to find and understand.

There is advice on using CO2 monitors to identify poor ventilation. This covers the types of monitors to use, how to measure CO2 and deciding if a workspace is suitable for monitors.

There is also a new video on keeping vehicles ventilated, explaining how you can reduce the risk of transmitting the virus when using vehicles.

There is guidance on balancing ventilation with keeping people warm at work and simple steps you can take to make sure your workplace is adequately ventilated without being too cold.

These include:

• partially opening windows and doors as this can still provide adequate ventilation
• opening higher-level windows to create fewer draughts
• if the area is cold, relaxing dress codes so people can wear extra layers and warmer clothing

For full details see HSE web page

What are the rules about self-isolation and pay?

Sick pay for self-isolation

Staff must be paid at least Statutory Sick Pay (SSP) if they cannot work because they’re self-isolating for any of the following reasons:

• they have coronavirus (COVID-19) symptoms or have tested positive
• they are not fully vaccinated and someone in their household has symptoms or has tested positive
• they are told to self-isolate by an NHS test and trace service
• they have been advised by their doctor to stay at home before going into hospital for surgery

To be eligible for SSP, they must be off work for at least 4 days in a row, including any of their usual non-working days.

They’re entitled to be paid at least SSP for every day they’re off work. This is different to the usual rules for SSP where the first 3 days are unpaid waiting days.

Pay for self-isolating or quarantine after travel

Employees are not entitled to Statutory Sick Pay (SSP) if they’re in self-isolation or in quarantine after travel abroad in circumstances where they cannot work from home. But the employer could choose to make up their pay if they wanted to.