In March 2020 the whisperings of a virus spreading around the globe began to churn; maybe in disbelief, we thought that the virus would not affect us in this country. As the days rolled on, the whispers soon became breaking news headlines, and the number of people with the virus in the UK was rapidly increasing. And then on 23rd March 2020, the then Prime Minister gave the instruction to ‘stay at home’. Having (hopefully) come through the worst of it, we have an opportunity to look back and reflect – what lessons can we learn from this experience? In this blog, we will review three judgements by the Employment Tribunals and identify any lessons from these.
X v Y ET 13December 2021 2413947/2020
The claimant decided not to return to her workplace as she was worried about catching COVID-19 and passing it on to her partner, who was at high risk of serious illness. Her employer said if she did not return to work, she would no longer be paid. The employee claimed this was discriminatory. A preliminary hearing was held to determine whether a ‘fear of catching COVID-19 and a need to protect myself and others’ was a protected philosophical belief under the Equality Act 2010.
The Tribunal’s judged that the claimant’s belief in a fear of catching Covid-19 does not amount to a philosophical belief for the purposes of section 10(2) Equality Act 2010.
Lessons:
- In this case, both the claimant and the respondent referred the Employment Judge to Granger plc v. Nicholson case, where a philosophical belief was set out. A belief needs to be, amongst other things:
- “(i) to be genuinely held.
- (iv) to attain a certain level of cogency, seriousness, cohesion, and importance.
While only an Employment Judge can make a proper determination of a ‘belief,’ it is worth employers reviewing whether a strongly held belief by an employee meets the standard as laid out above. And when in doubt, seek advice.
- Employers should be reasonable in their approach to staff. Should staff have a genuine fear, give serious consideration making reasonable adjustments to mitigate or remove the fear. Can the employee work from home, or can preventative measures be put into place?
Trapps v United Lincolnshire Hospitals NHS Trust
An employee at a hospital claimed she was constructively unfairly dismissed because of workload problems related to COVID-19. She was twice led to believe she would have workload support but then resigned when, ultimately, help was not provided. The employer argued her workload was manageable; failure to appreciate and manage an excessive workload was a breach of the implied term of mutual trust and confidence and, therefore, a repudiatory breach of contract.
The Tribunal found that the claimant was constructively dismissed by the respondent, the claimant was awarded:
- Basic award – £8,895.00; and
- Compensatory award – £12,135.13*.
Lessons:
- Managers should constantly review the workloads of staff; one-to-ones or annual appraisals are ideal times.
- Do not insist that workloads are manageable, but instead take a consultative approach to staff.
- Ensure that proper support measures are in place, for instance, recruitment of new staff or the streamlining of processes.
Quelch v Courtiers Support Services Ltd
The employee was dismissed for gross misconduct after refusing to return to work. The company confirmed that he had successfully worked from home during the first lockdown but was asked to return even though government guidance was to work from home if people could. The analyst had anxiety and refused to return due to concerns about his clinically vulnerable partner. The employee was concerned that COVID-19 safety measures were not being properly implemented, evidenced by pictures of an office party.
The Tribunal found it unreasonable to insist on a return to the office when the government guidance was still to work from home if possible, and this employee had worked successfully from home. The employer had also moved straight to a disciplinary hearing, in breach of ACAS guidance, without investigating the reasonableness of the claimant’s refusal of its instruction.
The Tribunal judged that the claimant was unfairly dismissed by his employer, and his employer failed to comply with ACAS requirements. The employee was awarded £14,746.25.
Lessons:
- Where Government guidance is in place, employers should aim not to insist on their own policies.
- Employers should follow the guidance set out by the ACAS.
- Where policies are created, they should be followed.
- Managers should take staff’s mental health seriously. When in doubt, risk assessments should be conducted to gain insight.
View HR would be happy to have an initial conversation on how we can support your organisation in managing employee relations concerns. Get in touch with us today.
