As we hit the unhappy two year anniversary of Covid-19 and Employment Law, can there really still be comment from Employment Lawyers? Yes there can! In the last few weeks, as we have prepared for this Employment Express edition, the Covid-19 workplace landscape has continued to shift and it is clear that the government are keen to end all Covid-19 restrictions in the coming weeks. Here are some of the more recent developments, which come with the health warning that things may have moved on further since going to print!
Working from Home
With most employers and employees having settled once again into working from home at the end of 2021, on 19 January 2022, the government announced that employees could return to work! Many employers have opted for a hybrid return whilst the Omnicron variant continues to retreat, and they must ensure that their employees feel supported and listened to with any further requests for flexible working. Employers should also be mindful of the position of those employees with children, particularly those too young to be vaccinated, who test positive for Covid-19 and require looking after, to ensure that these employees are accommodated if reasonably possible.
No Jab, No Job in the NHS
There has been much review on the proposed government regulation mandating Covid-19 vaccinations for all NHS workers who have direct fact-to-face contact with people whilst providing care, unless they are exempt. There are reportedly some 100,000 workers in the NHS who have not been vaccinated including doctors, nurses, carers, dentists, midwives and domiciliary care workers. At the time of us going to print it is unclear whether the government will press ahead with this decision and it seems increasingly unlikely they will. More generally employers have continued to “encourage but not require” vaccinations from all staff.
Cuts to Company Sick Pay
In January, Swedish retain giant Ikea announced that it will cut sick pay for unvaccinated staff who need to self-isolate because of Covid-19 exposure and, in some cases, for workers who test positive. Many other large employers have publicly followed suit. The employer acknowledges that it is an emotive topic, but as circumstances have changed so it has had to change its policies. Although the requirements for self-isolation have reduced to five days, Ikea are amongst a number of employers not prepared to pay any enhanced sick pay to un-jabbed staff. Those employees may now have to rely on Statutory Sick Pay, currently capped at £96.35 per week.
Tribunal Cases
Tribunals are only recently hearing cases which were brought at the start of the pandemic, such is the length of time from claim to final hearing. The decisions are varied and seem, as always, very much to focus on the facts and circumstances. In Gibson v Lothain Leisure an employee who had raised concerned about no PPE being provided, was told to shut up and get on with it and was then sacked, was held to have been automatically unfairly dismissed. In the case of Preen v Coolink Ltd an employee was found to have been unfairly dismissed for wanting to stay at home unless work was urgent. The Tribunal decided that his objection to do routine work was a principal reason for the dismissal, and it was reasonable for Mr Preen to have formed the impression that staying at home was the right course of action. The case of Montanaro v Lansafe Ltd also found in favour of an employee who claimed unfair dismissal for having been dismissed for being unable to return to the UK for work whilst being locked down in Italy in March 2020 . We have included a more detailed case report on vaccine refusal in this edition of the Employment Express in the case of Allette v Scarsdale Grange Nursing Home Limited.
Sue Gray’s recommendations
Without making any political comment on the Sue Gray report into the investigation into alleged gatherings on Government premises during Covid-19 restrictions, paragraph 23iv. of the report stated “the excessive consumption of alcohol is not appropriate in a professional workplace at any time” and went on to say “Steps must be taken to ensure that every Government Department has a clear and robust policy in place covering the consumption of alcohol in the workplace.” Employers need to ensure that employees understand what is expected of them concerning their conduct, which includes employee social gatherings, in or out of the office. Given the length of time away from the office for many and the potential excitement of a new social calendar of after-work drinks and events, employers should remind staff of how they should be behaving. Managers, of course, must lead by example.
Mental Health and Grievances
As employees head back to work on a more regular basis (until the next variant?), HR advisers will have to be alert to the fact that their staff may be somewhat less robust mentally to cope with the pace of work and daily human interactions in an office environment. Employee’s mental health needs to be supported, and not doing so may give rise to allegations of disability discrimination and/or breaches of health and safety. It is also likely that the last two years of not working face-to-face may increase the number of workplace grievances, with staff less well-equipped to deal with day-to-day workplace disagreements. HR advisers must always ensure that employees who raise an informal grievance are offered the opportunity to partake in a full grievance hearing.
