The WHO may have recently announced that the Covid-19 virus no longer represents a global health emergency, but the UK Employment Tribunal system isstill hearing cases which have arisen directly from the pandemic. Two key judgments were decided this week; somewhat unsurprisingly the judges’ findings reflect government policy at the time!
Furlough and Redundancy
Under the Coronavirus Job Retention Scheme (CJRS) the government offered businesses the opportunity to claim grants of up to 80% of an employee’s wages, capped at £2,500 a month. This was to protect jobs and business during the unprecedented time in which supply and demand in the economy was dwindling. InLoveingangels Care Ltd v Mhindurwa [hyperlink] the EAT upheld the Tribunal’s judgment of unfair dismissal against Loveingangels Care Ltd on the basis that thecare company should have considered furlough under the CJRS as an alternative to Ms Mhindurwa’sredundancy; to see how workload panned out, and if an opportunity arose for her to be placed with another client. In cases of redundancy, an employer is always expected to look for reasonable alternatives to redundancy, and during the Covid-19 lockdowns the government made it easy for employers to choose furlough as that alternative.
Health and Safety Detriments and Disability Discrimination
In Miles v Driver & Vehicle Standards Agency Mr Miles, a driving examiner with DVSA, was diagnosed with chronic kidney disease in November 2018. In March 2020, the majority of driving tests ceased, with staff instructed to remain at home. In July 2020, tests recommenced and the DVSA requested all examiners(except those who were medically considered to be ‘critically extremely vulnerable’) to return to work. Miles refused; he was concerned that there was a serious risk to his health and safety because of his condition and felt that no reasonable adjustments had been made to accommodate his concerns. Due to his refusal to return to work, the DVSA placed him on special unpaid leave, leading Miles to resign and to claim unfair constructive dismissal, disability discrimination, health and safety detriment and automatically unfair dismissal.
The EAT agreed with the Employment Tribunal whichfound that Miles could not bring a , health and safety claim, as it found that he could not hold a reasonable belief in a serious an imminent danger to himself (this being the requirement to satisfy those provisions) whenthe DVSA had put measures in place to mitigate risk. Further there was a H&S committee and representative at his office with whom Miles could have raised his concerns and did not. However, Miles’ disability discrimination claims have been remitted to the Tribunal, because Miles was not able to go back to work due to his health (which should be rightly characterised as a substantial adverse effect in terms of disability), and not because of an ‘unreasonable belief’ in an imminent danger to himself.
The case law shows that both employers and employees need to take stock of government policies in place at the relevant time, which over recent years we have seen to be almost ever-changing! Although the pandemic may have passed, to look at the context of these Covid-19 tribunal findings is important as to provide precedent for ‘unprecedented’ times. It has been found that the law in place is robust enough to deal with a variety of claims, even in unfamiliar contexts and unprecedented times. It is therefore crucial to watch out for changes/upcoming reforms in government policy andunderstand how this may affect the employment sphere, and to take adequate account of this in decision making processes and recording the reasons for the same.
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