Top 5 recent workplace developments – July 2022

This is our selection of recent developments which we think will impact on HR practice.

1. Disability discrimination: Long-Covid

An employment tribunal has ruled that an employee with long-Covid symptoms was disabled under the Equality Act 2010.

Mr Burke was employed as a caretaker for nearly 20 years when, in November 2020, he contracted COVID-19. Initially his symptoms were mild, but he went on to develop severe headaches and fatigue. He also experienced joint pain, a loss of appetite, a reduced ability to concentrate and difficulty sleeping. Mr Burke’s fit notes referred to the effects of long COVID and post-viral fatigue syndrome. However, two Occupational Health reports noted that he was fit to return to work and that he was unlikely to be disabled under the Equality Act.

Although his health began to improve, sleep disruption and fatigue continued to affect Mr Burke’s ability to do normal daily activities. He didn’t return to work and was dismissed in August 2021 because of ill health. He subsequently brought claims for disability discrimination

For this claim to succeed, Mr Burke had to show that his long Covid symptoms had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

As a preliminary issue, the tribunal had to assess whether Mr Burke was disabled. The tribunal found that his long-Covid symptoms amounted to a disability as they had a substantial adverse effect on his ability to carry out normal day-to-day activities. It also found that his condition was long term, noting that his employer's view was that there was no date when a return to work seemed likely.

Practical point

This is a tribunal decision, so it will not be binding on other tribunals.

Long Covid may amount to a disability but all will depend on the precise impact of Covid on the particular individual. Employers should, however, err on the side of caution when managing employees who are suffering from this condition – and consider what reasonable adjustments may be appropriate for those employees. 

Burke v Turning Point Scotland

 

2. COVID-19: Staying away from work

The Employment Appeal Tribunal found that an employee was not automatically unfairly dismissed for leaving work and refusing to return at the start of the first COVID-19 national lockdown.

Employees are protected from dismissal where there are legitimate health and safety concerns. An employee may be entitled to claim automatic unfair dismissal where they have left work, refused to return to work and/or taken appropriate steps to protect themselves and/or others from a situation which they reasonably believed to pose a serious and imminent danger, and one which could not be avoided.

Mr Rodgers worked as a laser operator in a workplace roughly the size of a large warehouse. In March 2020, his employer implemented measures to combat the spread of Covid-19 which included adhering to social distancing, wiping down surfaces, staggering arrival times and putting up reminders on handwashing.  After Mr Rodgers' colleague displayed symptoms and began self-isolating, Mr Rodgers decided not to return to work “until the lockdown eased”. The reason for this was his concern for his children, a 7-month-old baby and another child diagnosed with sickle cell disease.

The EAT found that the tribunal was entitled to find, on the evidence, that Mr Rodgers (who had not raised any specific workplace concerns with his employer) did not have a reasonable belief that there was a serious and imminent danger that prevented him returning to work. It had also been entitled to find that there were steps Mr Rodgers could reasonably have taken to avert any danger.

Practical point

Although employers will welcome this decision, the case confirms that health and safety reasons relating to Covid-19 could be relevant to giving employees protection from dismissal - but every case will need to be considered on its facts and merits.  Where the employer has followed government public health guidance it will be more difficult for the employee to take advantage of the protection offered by the law, particularly if they did not raise any specific workplace concerns at the time.

Rodgers v Leeds Laser Cutting Ltd

 

3. Unfair dismissal: Compensatory awards

The Employment Appeal Tribunal has ruled that when calculating compensatory awards in unfair dismissal claims, any payments the employer has already made to the employee will be deducted from the overall award before the statutory cap is applied.

In a successful unfair dismissal claim, the tribunal makes a compensatory award it considers ‘just and equitable’, subject to a cap at the lower of 52 weeks’ pay or the statutory cap which was £74,200 at the time of this claim (from April 2022 the cap stands at £93,878). The legislation states that the cap applies after taking into account any payment made by the employer to the employee in respect of the subject matter of the claim, and any reduction in the award required by law.

When Ms Dafiaghor-Olomu’s unfair dismissal claim was successful, her employer CIC paid the compensation award of £46,000 that was made at the remedies hearing. However, when the award was increased to £129,000 on appeal, the £46,000 was deducted from the overall award before the statutory cap was applied - so CIC wasn’t given credit for that payment.

The EAT had to decide whether:

• CIC’s payment of £46,000 should be deducted from £129,000 before the statutory cap is applied, meaning £74,200 would be payable, or
• CIC should be given credit for the £46,000 payment after the statutory cap is applied (£74,200 - £46,000), so the balance of £28,000 would be payable.

The EAT found that, given the wording in the legislation, the statutory cap should be applied after the £46,000 is deducted from the total compensation sum – so CIC ended up paying £46,000 plus £74,200, instead of £74,200.

Practical point

In light of this decision, employers will be minded not to make a tribunal award payment until the compensatory order is final. Although payment under a tribunal judgment or order must be made within 14 days, and the employee may bring enforcement proceedings if the payment isn’t made, it’s possible to seek a stay of those proceedings while an appeal is in progress.

Dafiaghor-Olomu v Community Integrated Care

 

4. Collective bargaining

The Employment Appeal Tribunal found that it was an unlawful inducement for an employer to impose a pay increase on employees at a time when pay negotiations with the trade union were at an impasse but hadn’t been exhausted.

Employers are prohibited from inducing their workers who are members of a recognised trade union to bypass collective bargaining in certain circumstances.[1]  A recent decision of the Supreme Court determined that a one-off direct offer to employees concerning pay, bypassing stalled collective bargaining, constituted an unlawful inducement (Kostal UK Ltd v Dunkley [2021]).

In the current case, which is the first reported EAT decision on this issue since the Supreme Court’s decision in Kostal, the EAT upheld claims from two employees that a pay increase, which was unilaterally implemented by their employers when collective bargaining with the trade union reached an impasse, was an unlawful inducement to bypass collective bargaining.

The EAT found that the unilateral pay increase was an offer, which the employees accepted by continuing to work. That offer had the result that the workers’ terms of employment as to pay were not determined by collective bargaining with the union, when it was likely that agreement would have been reached had further collective bargaining taken place. As the employment tribunal had noted, at the point the offer was made, the collective bargaining process had not come to an end and the parties were not that far apart in their negotiating positions. The EAT also concluded that the employer’s sole or main purpose in making the offer had been to achieve the prohibited result, ie to bypass collective bargaining.

Practical point

The decision is a further reminder of the need for employers to tread carefully whilst in the process of negotiating pay awards or other terms and conditions with trade unions. If an employer wishes to make any offers to its employees direct, it should consider carefully whether the collective bargaining process has been completely exhausted and ensure that there is a thorough paper trail to demonstrate that the process has been complied with.

Employers should review their recognition agreements to check there is a clearly defined collective bargaining process which has an easily identifiable end point and is not ambiguous over how and when the process should end.

INEOS Infrastructure Grangemouth Ltd v Jones and others and INEOS Chemicals Grangemouth Limited v Arnott and others

 

5. Changes to industrial action rules

Government announces plans to allow businesses to supply agency workers to plug staffing gaps during industrial action and increase to £1 million the potential liability of trade unions for calling unlawful strike action.

Subject to Parliamentary approval, these changes will apply across England, Scotland and Wales.

The Government has announced plans to remove the restriction that prevents employment businesses (agencies) from supplying an employer with temporary workers to cover the duties normally performed by a worker who is taking part in a strike or other industrial action, or by any other worker who has been assigned to cover the striking worker.

Draft Regulations have been published, but this change requires Parliamentary approval so the timing of when this change will take effect - if it is approved by both Houses of Parliament - is not yet known.

The Government has also announced plans to increase by four-fold the maximum damages that a court can award against a trade union where strike action has been found to be unlawful. This change is due to come into effect from 21 July 2022. The cap that applies to each union depends on the size of the union, but for the largest unions (those with 100,000 members or more), the maximum award will increase from £250,000 to £1 million.

Practical point

If the Regulations come into force, employers across all sectors will no longer be restricted from engaging temporary workers directly when industrial action is taking place. Employers will however still need to comply with their health and safety and other obligations and ensure that any agency workers they use to cover striking employees have the necessary skills and qualifications to ensure they meet those obligations.