In the news this month:

Changes to the Furlough Scheme, Right to Work Checks, Covid Concerns and Dismissal, Long Covid and Reasonable Adjustments, ASD and the Definition of Disability, Post-Resignation Grievances, Sleep-In Workers and Minimum Wage, and Worker Status.

Final Months of the Furlough Scheme (CJRS):

A new Treasury Direction has been published to cover the extension period of the scheme from 1 May to 30 September 2021, when the scheme will end.  Updated guidance was also published on 8 April.

The key rules of the scheme during this period are largely unchanged noting however that in July 2021 in relation to furlough hours employers will be required to contribute 10% of pay (up to the cap of £312.50), while claiming 70% (up to the cap of £2,187.50) from the government.  In August and September, employers will be required to pay 20% of pay (subject to the cap of £625), with a claim of 60% of pay from the government (subject to the cap of £1,875).  This is in addition to employer’s NI and pension contributions on the full amount paid to the employee.

Remember that the scheme does not cover notice pay whether for notice worked or paid in lieu and regardless of the reason for the employment ending.

When the scheme closes, the options available are to:

Right to Work Checks to “revert to normal”

Having recently announced that the temporary COVID-19 adjusted right to work check measures will end on 16 May 2021, the Home Office on 12 May changed this date to 20 June 2021.  Therefore from 21 June 2021, employers must revert to face to face and physical document checks of right to work documentation as set out in legislation and guidance.  This date is aligned with step 4 of the government roadmap out of lockdown.   The guidance is clear that employers do not need to carry out retrospective checks on those who had a COVID-19 adjusted check between 30 March 2020 and 20 June 2021 (inclusive) and will maintain a defence against a civil penalty if the check undertaken during that period was done as set out in the COVID-19 adjusted checks guidance.

Dismissal for Covid concerns was fair

The Employment Tribunals (ET) are now seeing cases with a Covid connection coming through the list.  In an interesting judgment in the case of D Rodgers v Leeds Laser Cutting Limited, the ET found that an employee (with less than 2 years’ service) had not been automatically unfairly dismissed for refusing to come to work relating to concerns about Covid in the workplace, and about infecting his young family including a child with a medical complication.

It was found that although Mr Rodgers did indeed hold significant concerns about the pandemic and the possible impact of getting the infection on his unwell child, and newborn baby, Mr Rodgers did not in fact believe there were circumstances of imminent danger in the workplace, but rather that the dangers were “all around”.  Further, even if Mr Rodgers genuinely believed there was imminent danger in the workplace, this belief was not objectively reasonable given the measures the employer had put in place to make the workplace Covid-secure.  He could also have averted any danger in the workplace by following government guidance in the workplace.

It was significant to the finding of no (objectively reasonable belief in) imminent danger in the workplace that the employer taken all steps to ensure the workplace was Covid-secure, including appointing an external expert to undertake a risk assessment and putting in place all the measures recommended by this assessment including staggered lunchbreaks and start and finish times.

Is Long Covid a Disability?

A further development in relation to Covid in the workplace is in relation to the increase in queries around whether Long Covid may amount to a disability.  This is possible if the condition fulfils the definition of a disability under the Equality Act 2010 (see below), which is made more difficult by the lack of any real knowledge at this stage of how long this condition may last.  ACAS has included specific guidance on Long Covid and managing absences and adjustments here.  This guidance includes the statement that “It’s a good idea for the employer to focus on the reasonable adjustments they can make rather than trying to work out if an employee’s condition is a disability.”

Considering when ASD is a disability

The definition of disability for the purposes of the Equality Act 2010 was considered in detail in the appeal against a finding by the ET, in the case of Mr A Elliott v Dorset County Council, that an employee with a diagnosis of Autistic Spectrum Disorder (ASD) was not disabled. A person has a disability for the purposes of the Equality Act if they have a mental or physical impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

The Employment Appeal Tribunal (EAT) examined the relevant law in a 29 page judgment, the key findings of which were:

  • Unless an impairment is minor or trivial, it will be considered substantial.
  • The fact that a person can carry out day to day activities does not mean that their ability to carry them out has not been impaired. In determining whether someone is disabled, tribunals should focus on the things that the person either cannot do or can only do with difficulty, and not on the things that the person can do.
  • The correct approach is to consider how the person carries out the activity compared with how that person would carry it out if not suffering from the disability.
  • The fact that an individual has coping mechanisms which mitigate the impact of the disability does not necessarily mean that they are not disabled.

It is worth noting that there are quite a number of cases involving ASD and consideration of employees with this condition being disabled under the Equality Act or not.  In each case, the full definition must be considered.  This case was sent back to the ET to decide if Mr Elliott’s condition of ASD meets the definition of a disability.

Lodging a grievance post-resignation in constructive dismissal cases

The EAT included in its decision in the case of Gordon v J & D Pierce (Contracts) Limited discussion (called ‘obiter’ as not necessary to their decision in the case) around the thorny point of whether an employee who has resigned but then participates in the grievance procedure can be said to have lost their right to claim constructive unfair dismissal because they are therefore continuing to engage under their contract of employment.  The view of the EAT here was this is not the case, and indeed it would be unsatisfactory if an employee was unable to accept a breach of the contract by the employer because they wished to seek a resolution by means of a grievance procedure.

Case law is needed in this unclear area but in the meantime it is in most cases best for the employee to submit a grievance before bringing a claim, and for an employer to follow its grievances received from ex-employees, on the basis that compensation may be affected.  In most cases it is also advisable for an employee to bring their grievance before resigning in any event if the intention is to bring a claim for constructive unfair dismissal.

Sleep-In workers

The Supreme Court decision in the case brought against the Royal Mencap Society in relation to whether sleep-in workers should be paid national minimum wage (NMW) for the hours of their shift when they are permitted to sleep.  The final decision, following contradictory decisions at lower courts along the way, is that for the purposes of the NMW only (and therefore not for the purposes of the Working Time Regulations), is that a worker must be awake for the purposes of working in order to be entitled to the NMW.  Note that this is different to situations where a worker is expected to be awake for most of the night but might be permitted to nap between duties, and who is likely to still be entitled to NMW for the entire shift.

Worker Status

A newsletter would not be complete without mention of the Uber case, in which the Supreme Court found Uber drivers to be workers, and therefore entitled to the rights due to workers, including most significantly national minimum wage and paid holidays. This follows a long, and ongoing, line of cases where the finding has been of worker status for individuals which the business had identified as self-employed.

Element Law Podcasts

Two podcasts have recently been added to our Website, with Kate Lawson discussing Changes to IR35, and Mental Health and Homeworking.

IR35 Podcast
Podcast on Mental Health and WFH

Contact Kate

If you have any questions about the articles in this update, please contact Kate Lawson on 01892 516 216 or katelawson@elementlaw.co.uk