Employment law update – Covid special – February 2022

Is the fear of COVID-19 a protected belief under discrimination law?

An employee’s fear of catching coronavirus and belief in her need to take steps to protect herself and others was held not to be a protected belief under the Equality Act 2010 by an Employment Tribunal (ET) in X v Y.

Facts

Ms X did not return to work on 31 July 2020 due to her fear of coronavirus. She was concerned that she would catch the virus herself, and possibly infect her husband who was considered vulnerable. Ms X claimed that the workplace posed a serious and imminent danger to her and others.

As a result of her non-attendance, her employer suspended her wages and Ms X subsequently raised a number of claims in an ET.

Decision

The ET considered that Ms X’s fear of catching coronavirus was genuine and that her belief met a number of the requirements for a ‘protected belief’: it was genuinely held, it was worthy of respect in a democratic society and had a level of cogency, seriousness, cohesion and importance. However, the ET also considered that although her fears of harm were weighty and substantial, in this instance Ms X’s fears only stretched to her and her husband, so did not go far enough.

The ET therefore decided that her fear was “a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat” and not a belief. Ms X’s claim was unsuccessful.

Comment

This decision does not set a precedent, but it does give us an indication of how the ET may deal with claims like these going forward.

Coronavirus is a real risk, and it may affect some more severely than others but it is not enough for an employee to refuse to return to work solely on the basis that they believe it is dangerous.

For further information on how to deal with employees refusing to return to the workplace due to coronavirus or other health and safety issues, or for information on how to minimise the risk of coronavirus in the workplace and your obligations, please speak to a member of the employment team.

Major retailers declare their stance on sick pay for unvaccinated staff

Isolation rules were relaxed in December so that vaccinated individuals are no longer required to self-isolate as a result of being in close contact with someone who has tested positive for coronavirus. Unvaccinated individuals, however, must continue to isolate for the full 10 days. Despite this, employers are still feeling the pinch due to the quantity of coronavirus related staff absences.

Many companies suffered from staff shortages throughout 2021 as a result of coronavirus, which has been compounded by rising costs and increased with the rapid spread of the Omicron variant.

Many employers offer enhanced sick pay, and those who do have an obligation to pay not only Statutory Sick Pay (SSP), which is currently £96.35 per week, but additional enhanced pay on top which has become a significant cost to businesses. Therefore, over the past few weeks, a number of large companies such as Ikea and Next have announced that they will be cutting sick pay for unvaccinated staff in response to increased staff absences as a result of the Omicron variant. Many employers are cutting sick pay for unvaccinated employees who come into close contact with someone who has tested positive for coronavirus, and only paying SSP. Other companies like John Lewis have announced that they will continue to pay all staff the same rate of sick pay, regardless of vaccination status.

Why is this divisive?  

The decision to get vaccinated against Coronavirus is a personal one. It can evoke strong emotions and reactions in people on both sides of the argument and by basing policy on vaccination status, there is a risk of creating discontent among a portion of your workforce who may feel they are being treated differently or unfairly. This could also give rise to the risk of discrimination claims.

In these circumstances, employers are likely to argue that cutting enhanced sick pay for unvaccinated workers is justified by the costs saving for the business and is necessary to avoid disruptions to services but this is currently an untested stance at an Employment Tribunal and therefore may not be sufficient justification. Employers should consider the risk to their company before making any decisions.

If you are considering making cuts to enhanced sick pay or if you have any queries about sick pay in general, our employment team are more than happy to advise.

Being dismissed for raising health and safety concerns over lockdown, was ruled automatically unfair

An employee who was dismissed for raising health and safety concerns with his manager during the first lockdown has raised a successful claim of automatic unfair dismissal in Preen v Coolink and Mullins.

Facts

On 23 March 2020 the first national lockdown was imposed in response to the coronavirus pandemic, requiring people to stay at home and only travel to work if absolutely necessary.

Mr Preen contacted his manager that evening to find out how his work would be affected by the lockdown and was told to return to work as normal. Mr Preen told his manager that he did not want to stop working but did not believe they should be carrying out non-essential work against the requirements of the lockdown. Mr Preen said he would be staying at home unless there was any essential work to be done. Mr Preen’s manager replied simply stating ‘no issues’ and Mr Preen was dismissed a few days later by reason of ‘redundancy’ as he had refused to return to work. Mr Preen subsequently brought a claim of unfair dismissal.

Decision

The ET considered that Mr Preen’s message to his manager conveyed his concerns that doing non-essential work during the lockdown would be a risk to himself and to others. It was held that Mr Preen had been dismissed as a direct result of raising health and safety concerns as the ET considered that his manager had been irritated by his message and had interpreted it as a refusal to work.

Mr Preen’s claim was successful and the ET concluded that Mr Preen had been dismissed for an automatically unfair reason, thus requiring no continuous period of service.

Mr Preen was unsuccessful on an additional claim as he had been unable to prove that he did not come to work in response to dangerous circumstances which posed a serious and imminent danger. This is a higher bar to meet and was undermined by the employer’s coronavirus precautions (including masks, sanitiser, and a covid health and safety procedure) and Mr Preen’s own offer to do emergency work.

Comment

Given the rapid spread of the Omicron variant and the scaling back of ‘Plan B’ coronavirus guidance, it may be that coronavirus precautions in the workplace need to be reconsidered. Where employees raise this as a health and safety concern, it should be addressed. You should talk through the employee’s concerns and make clear what precautions are in place, or confirm what will be done to address it.

Even where employees do not have the required 2 years’ continuous service to claim unfair dismissal, dismissing an employee for raising health and safety concerns is one of the many automatically unfair reasons for dismissal which do not require a minimum length of continuous service, thus great care should be taken.

If you would like to discuss any of the above or establish how to deal with a health and safety concern, please contact a member of our employment team who will be happy to help.

Fair dismissal of a care home worker for refusal of COVID-19 vaccination prior to it being mandated 

It was held that a care home worker had disobeyed a lawful management instruction by refusing to be vaccinated against coronavirus and therefore their dismissal as a result was deemed fair by an Employment Tribunal (ET) in Allette (A) v Scarsdale Grange Nursing Home Ltd (S).

Facts

S is a nursing home for dementia suffers. S was due to administer their vaccination scheme in December 2020, however, it was delayed to January due to a coronavirus outbreak. At that time mandatory vaccination of care home workers was not a legal requirement but S decided to make it a condition of continued employment.

A informed S on 12 January 2021 that she did not want to have the vaccination. She did not trust the safety of it, she felt it had been rushed through without proper testing, she had read stories on the internet about a Government conspiracy, and no one could guarantee that it was safe. As a result, S held a disciplinary hearing with A on 28 January 2021.

During the hearing, A stated she had a religious objection to the vaccination based on her Rastafarianism. S had no prior knowledge A was practicing as a Rastafarian. S explained to A that their insurer had confirmed public liability insurance would not be provided for coronavirus-related risks after March 2021 therefore there was a risk of liability if unvaccinated staff were found to have passed coronavirus to a resident or visitor.

After the hearing, S decided that A should be dismissed for refusing to follow a reasonable management instruction as A did not have a reasonable excuse and she posed a great risk to residents, staff and visitors. As a result, A claimed unfair and wrongful dismissal.

Decision

The ET rejected both of A’s claims after considering whether there had been any breach of A’s right to respect for a private life. S had a legitimate aim of protecting the health and safety of all staff, residents and visitors but also preventing risk of breaching their insurance policy. Whilst the Tribunal believed A’s fears in receiving the vaccine were genuine, A had no medical authority or clinical basis. S had satisfied the reasonableness test, thus A’s dismissal fell within the range of reasonable responses.

Comment

The coronavirus pandemic has been challenging for many workplaces due to the limited amount of knowledge available, leaving employers questioning the correct legal and moral steps to take. Following A’s dismissal the coronavirus vaccine became mandatory for all healthcare workers across England and Wales, and it is expected that the mandate will be revoked before the 1 April 2022 deadline for vaccination. Regardless of this, this decision highlights the importance of dealing appropriately with employees who refuse to follow a lawful management instruction – even if it is a controversial one. It is imperative that any sanction is in the band of reasonable responses, and this will be fact dependent.

If you require any further information on the above developments or any other HR or employment law issue, then please contact one of our employment law experts below.