March 2020 bulletin
Coronavirus (COVID-19) is grabbing the headlines as it spreads over the globe and more cases are diagnosed in the UK. The impact of the virus on employees and business is worrying for employers. Some guidance has been published recently which employers might find helpful.
The government has published guidance for employers and businesses. The guidance gives more information about the virus, its signs and symptoms and how it is spread. It gives detailed advice about how to prevent the spread of infection through good hygiene. Sneezing into tissues or the crook of the arm – not hands – and regular handwashing are the key points here. It would be good practice to send an email to employees reiterating this advice and asking for their cooperation at work. The guidance also covers what to do if you discover an employee is unwell. Find the guidance here: https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/guidance-for-employers-and-businesses-on-covid-19
ACAS has also published some guidance for employers and employees. It gives more practical advice on steps employers can take to help employees reduce the risk of transmission in the workplace. It also tackles some tricky issues such as how to approach absence and sick pay in a variety of circumstances. Find the guidance here: http://www.acas.org.uk/coronavirus
Public Health England has said that widespread transmission of coronavirus in the UK is now highly likely. Employers should keep up to date on information and advice on the government’s website, www.gov.uk. They publish daily updates at 2pm with the latest advice.
From an employment law perspective, if employees self-isolate (but are not actually sick), if not on medical advice, they are probably not entitled to sickpay. But many employers will want to pay them anyway, to help discourage those who might be infected from coming into the workplace.
The government announced on Wednesday that it will be amending the rules on when SSP is payable, permitting it to be payable from day one of sickness absence. There is no news yet about when this will come into force or if it will apply to all sickness absence or just coronavirus.
The picture continues to evolve.
Written Particulars of Employment
From next month, all workers — not just employees — will have the right to a written statement of terms. They will also be entitled to it from day one of their employment (currently the right arises after eight weeks).
The content of the written statement has been expanded: it must also now include how long the job will last, details of all benefits provided by the employer, and specific days/times of work. If days or hours are variable, details of how those hours may vary should be given.
The proposal is designed to create transparency and clarity in working arrangements. Employers who use casual staff or zero hours contracts will have to consider how and why their work levels vary in order to draft contracts accurately. Overall, clarity of terms is good news for everyone. If terms are clear from the beginning, there is less scope for confusion, disagreement and expensive litigation.
Ishola v Transport for London
An employer must make reasonable adjustments for a disabled employee if a provision, criterion or practice (PCP) – which is applied to all employees – puts a disabled person at a substantial disadvantage compared to non-disabled people. ‘PCP’ isn’t defined in the Equality Act 2010, but the Statutory Code of Practice says it can include policies, rules, practices and arrangements ‘including one off decisions’. The Court of Appeal in Ishola v Transport for London has looked at whether a one off decision can be a ‘PCP’ for which an employer must make reasonable adjustments.
The employee went off sick in May 2015 after his complaint against a colleague wasn’t upheld. He was disabled due to depression and migraines. He refused to engage with occupational health or any efforts to bring him back into work. He made numerous complaints about the people involved in managing his absence. He had already been invited to a meeting where dismissal was an option when he raised his final complaint about another manager involved in his sickness management. Although the issue wasn’t formally investigated before his dismissal, it was largely addressed by replacing the manager concerned. The employee was eventually dismissed for incapacity in June 2016.
The employee brought claims in the employment tribunal, including one for failure to make reasonable adjustments. He said that the employer’s requirement that he return to work without a proper investigation of his grievance (which led to his dismissal) was a PCP. He said it would have been a reasonable adjustment to investigate the grievance properly to allow him to return to a discrimination free environment. The Court of Appeal said that some one-off decisions may be PCPs, if they apply or are likely to apply to other people or situations in practice. Others are just stand-alone decisions. In this case, the decision to dismiss the employee without fully investigating the final grievance was a one-off decision. It was not the employer’s usual practice to dismiss employees without investigating grievances.
This is not a case that condones moving to dismissal before resolving relevant grievances appropriately. In this case, the employee had raised numerous complaints or grievances against different members of staff involved in his case. All bar the last one had been resolved (albeit not to the employee’s satisfaction) before the employee’s dismissal. In these exceptional circumstances, moving to dismiss without fully investigating the final complaint was reasonable. Care must always be taken in dismissals involving disabled employees, and any employee who is a serial complainer.
Unfair dismissal – knowledge of employer
Uddin v London Borough of Ealing
The Supreme Court decided last year that knowledge of a manager other than the dismissing officer can be attributed to the employer when establishing the reason for the dismissal (Royal Mail v Jhuti – where the real reason for dismissal, whistleblowing, was hidden from the dismissing officer). The EAT has now looked at whether the knowledge of another manager can be attributed to the employer in deciding whether they acted reasonably in dismissing an employee.
In Uddin v London Borough of Ealing, the employee was dismissed in relation to an allegation of inappropriate sexual behaviour towards a work placement student in a bar. The employee had reported the matter to the police but subsequently withdrawn her complaint. The investigating officer knew that the complaint had been withdrawn but did not tell the dismissing officer about this. Did that take the decision to dismiss outside the range of reasonable responses open to the employer?
The employment tribunal said the dismissal had been fair because the employee could have been fairly dismissed anyway even without the police complaint. The EAT disagreed. The dismissing officer took the police complaint into account. She said that she would have asked more questions had she known the complaint had been withdrawn. The knowledge of the investigating officer was relevant and hidden from the dismissing officer. This made the dismissal unfair. The EAT pointed out that the question of what would have happened had the dismissing officer known about the withdrawal of the police complaint will be relevant to compensation. If the employee would have been dismissed anyway, compensation can potentially be reduced to zero. The original employment tribunal will decide what level of compensation is due.
It doesn’t really matter to employers which part of the legal test is affected when a dismissing officer isn’t given all the relevant information by an investigating officer. The important point is that it matters, both in relation to the reason for dismissal that a tribunal must establish, and the fairness of a dismissal overall. Employers should ensure that all relevant information is given to dismissing officers. This includes facts which come to light after the investigation has apparently finished, if a disciplinary or appeal hearing remains outstanding.
Jesudason v Alder Hey Children’s NHS Foundation Trust
Workers are protected from being treated badly by their employer because they have made protected disclosures about malpractice. In Jesudason v Alder Hey Children’s NHS Foundation Trust, the Court of Appeal has looked at whether an employer’s attempts to set the record straight can amount to a detriment.
The employee was a consultant surgeon. He made numerous disclosures to various bodies, including the Trust’s HR department and the Care Quality Commission. He also made inappropriate disclosures to Private Eye magazine. He resigned his post and signed a settlement agreement. He then brought a claim for detriments suffered due to whistleblowing, including detriments after his resignation. He said he had suffered detriment due to letters the Trust had sent to third parties defending its position. The letters said that the employee’s allegations were completely without foundation (when reports had identified concerns) and that the employee’s actions were ‘weakening genuine whistleblowing’.
The employment tribunal and EAT agreed that the letters could not amount to a detriment because the Trust was simply defending its position. The Court of Appeal said they had technically got it wrong. An employee could suffer a detriment if negative comments were made about him in a letter seeking to set the record straight. The employer’s motive is irrelevant if the effect is detrimental to the employee. However, the Court agreed with the tribunal and the EAT on causation. The claim still failed because the detrimental treatment (the letters) was not caused by the employee’s protected disclosures. The reason the Trust had made those detrimental comments had been damage limitation, to reduce the effect of the potentially damaging information the employee had made public, not because he had blown the whistle.
This case shows that an employer might be able to justify making negative comments about an employee when seeking to defend its position, especially when matters have been thrown into the public domain by an employee. Whistleblowing cases can be tricky though and should be handled with care and with the benefit of legal advice.
Age discrimination – compulsory retirement
Ewart v University of Oxford
An employer must be able to justify any compulsory retirement age (CRA) by showing it is a proportionate way of achieving a legitimate business aim. An employment tribunal will look at why the CRA is necessary and appropriate, whether there is any alternative to the CRA (fitness or competency tests for example). They will also look at whether the CRA actually achieves the business aim in question. They will also weigh up the effect of the legitimate aims against their discriminatory impact. In Ewart v University of Oxford, an employment tribunal has looked at whether a University’s compulsory retirement age was objectively justified.
The employee was made to retire at 67 due to a compulsory retirement policy. The employer said there were legitimate business aims including intergenerational fairness and career progression for junior staff, facilitating succession planning and promoting equality and diversity (recent recruits were more diverse than the existing cohort, in particular the older employees). The employee brought claims for unfair dismissal and age discrimination.
The employment tribunal agreed that the employer’s aims were legitimate. However, the aims were not proportionate when weighed up against the discriminatory impact of the compulsory retirement policy. The retirement policy only created 2-4 per cent more vacancies than would have otherwise existed, which was trivial in comparison to the discriminatory effect. In relation to facilitating career progression, senior posts were often filled externally and there was no plan in place for junior career progression. In relation to diversity, the evidence showed that the retirement policy contributed little overall to the University’s efforts to diversify.
Employment tribunal decisions aren’t binding on other courts. Indeed, this decision goes against another tribunal which found in another case that the employer’s retirement policy was justified. At the time of writing, it looks like the University intends to appeal this decision. Whatever happens on appeal, this case shows that it isn’t enough to have legitimate business aims. Employers must show that those aims have enough effect on the ground to justify the discriminatory impact on employees. Employers should consider whether compulsory retirement is necessary in their business. Consider other methods to assess whether employees are fit to continue in work such as fitness or competency tests.
The forthcoming changes to the IR35 rules will affect medium and large businesses in the private sector. Thankfully for small businesses, they will remain unaffected by the changes. A company will qualify as medium or large if it ticks at least two of these boxes:
• Annual turnover of more than £10.2 million
• Balance sheet total of more than £5.1 million
• More than 50 employees.
The IR35 tax rules are aimed at making sure that where a contractor who provides their services through an intermediary (often their own limited company) would be considered to be an employee if that intermediary were not used, that contractor is subject to broadly the same tax and National Insurance contributions (NICs) as employees.
In anticipation of the forthcoming changes, you should audit your arrangements with existing contractors and make an assessment of which fall, or could fall, within the scope of the rules about deemed employment. Remember that genuinely self-employed contractors will be unaffected.
The key question is: would this contractor be classed as an employee if you contracted with them directly, as opposed to via the intermediary?
If the contractor is a deemed employee, the ‘fee-payer’ will need to account for NICs and make payroll deductions. The fee-payer is whoever pays the intermediary; it could be you as the client, or it could be another party such as a recruitment agency.
You may remember the Court of Appeal decision in Chief Constable of Leicestershire v Hextall last year. The Court of Appeal decided that it was not discriminatory to pay men on shared parental leave less than women on maternity leave. The special treatment women receive in relation to pregnancy and childbirth is a legal exception to the rules on discrimination.
The Supreme Court has now refused the employee’s request to appeal that decision. This means that the Court of Appeal’s decision is now the final word on the issue, which will bring comfort to employers. Employers can choose to enhance maternity pay without enhancing shared parental pay.