Establishing a Reasonable Steps Defence in a Claim of Harassment/Discrimination and Other Employment Law Matters

Posted in : 'Any Questions' Webinar Recordings on 4 March 2021
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered:

In this webinar recording, Seamus McGranaghan, O'Reilly Stewart Solicitors, joins Scott Alexander, Legal Island, to discuss, among other employment law matters, what an employer must do to establish a reasonable steps defence in a claim of harassment/discrimination.

The Recording

Podcast

Transcript

Scott: Good morning, everybody. How are you? I'm Scott Alexander. I'm from the Legal-Island. Welcome to the latest of the Employment Law at 11 webinars that we do every month with O'Reilly Stewart Solicitors. This time we're looking at various issues - the extension of furlough and what that means for employers, obviously, in Northern Ireland, the statutory defence that people can put forward, or employers can put forward when it comes to quality issues, and many other things such as enforced vaccinations, travel, and all kinds of things that you've sent in questions for. Now, you can see we're here, we've got Rolanda in the back there dealing with all the tech from the L&D team at Legal-Island, and of course, our superstar, Seamus McGranaghan, Director at Commercial of O'Reilly Stewart Solicitors, and that's me in the middle.

Now, if you've just joined us for the first time, you'll see over on your right-hand side there's a little question box there. So, if you have any questions during the period, then please say hello to us and drop in your questions there. But I will read them out anonymously, so the audience won't see who's asking the questions, I will, but I won't be reading out your name, so if you've got any anonymous questions for Seamus or me, then send them in, please.

Now, before we start, just to let you know, one of the big cases that came up is to do with diversity and inclusion, and we do have an offer this day for anyone who's attending the webinar or anyone that's registered. You'll get 50% off an eLearning course on diversity and inclusion in the workplace. If you're interested in that, just type "yes" into the question box. So, if you have a look at the question box over there, then if you type "yes" and you want to hear more about it. There's no obligation, obviously. But one of the things that came up recently is the amount of training that people do.

Poll Questions

So talking about that, we like to make sure that there's a little bit of interaction on these webinars to start, so we've got a little poll for you. And again, this is all anonymous, and so if you want to have a look at that.

Have your employees undertaken any equality or diversity and inclusion training in the last two years?

So have a look at that. Coming through, and I'm looking at the poll and progress at the moment. Rolanda will show us in a minute. But at the moment we are looking something like two-thirds are saying yes, which is very good. You're relatively safe. We'll come and talk about that case in a minute. But the third who say no, you might be in trouble. So, Seamus, if you're there, I don't know if you want to comment on the poll result there. I'm sure Rolanda will show it in a second when it's coming up there. You can see it there, two-thirds have had training in the last couple of years, one third haven't. Seamus, any comments, sir?

Seamus: Yeah. I mean, I think that that's relatively encouraging that we have two-thirds, 66% say that there has been training that has taken place. Look, when we get to the David case we can talk about it a bit further, but certainly, you know, two thirds, I don't know on the other third whether it is that there's never been any training or if there just hasn't been any training over the last two years. But it is a common problem with employers that they will sometimes put their policies and procedures up onto an intranet or tell the employees where they can find it on the computer system, but never actually engage with them or provide any training. It's maybe touched on at the time they are, you know, whenever they join the organisation and maybe some information provided then, and so when we get to it, I'll just cover off on the importance of providing actual training, and base book training and also, you know, recording the fact that training has been provided. And look, I think legally, it needs to go a further step than that, but at the same time, it's a good starting place at least to have the training in place.

Scott: Okay. Let's have a look at the second poll. We have three here coming up today, just to get a feel for it. So here's the second poll,

Do you have any "non-employees" for example, agency workers, contractors, casual workers doing work for your organisation?

You'll be aware that the Uber case and Aslam was delivered by the Supreme Court the other week there. So we are looking here, Seamus, it's something like 75% of the people listening today have "non-employees" -- agency workers, contractors, casual workers, etc. So it's already 70% there that we've got. Any comments on that, Seamus?

Seamus: Well, that is a large number. I mean, you would hear references to the gig economy, and there's all these concerns in and around these specific types of workers that there would be concerns in relation to their rights and ensure that they are properly dealt with and that, in fact, that they are workers and not employees. So like 71% is a high number there, and so it would raise the flag into a cautious approach. We've also got the IR35 regulations coming into place next month as well, and it's a separate issue but it does have an impact on how employers are treating workers as well. So maybe for next month we'll do a bit more working around it as well, but certainly, look, we now have the Uber case. If I think back to November time when we were waiting on that Uber case coming for my presentation at the annual event, I'm sorry, at the annual review, I was waiting on it. But it did come in just shy of two weeks there, and there's some good, interesting commentary in it also. But you can see, certainly, the pathway for the courts has been to be protective of these sorts of workers.

Scott: Yeah. So 75% or 70% of the audience there. We're starting a new series of webinars, Seamus, you may or may not know about, but we're looking at international comparisons and we're chatting, Rolanda and our self, with a lawyer looking at that. And she was talking about the kind of partial gigification of employment so that you take some elements of work and you bring in gig workers to do that across the bulk of your services, and work might be done by actual employees. So, yeah, next month we'll maybe put a special impact there on gig economy, IR35, self-employed status, and so on.

The next poll, sorry, Rolanda,

Do you have staff on furlough?

There's been an extension, as you'll know in the budget furlough to the autumn, so let's have a look, do you have staff there? And at the moment it's running around 50-50 actually. Slightly less than 50% now saying yes. So, if you maybe want to stop it there and we'll have a wee look. Pretty close. There you go. That's almost the Scottish Referendum vote there. So you're looking round about 50%. So, 50% of the audience here have people who are currently on furlough, and of course, if that support were taken away, Seamus, we'd dial ourselves some difficulties. So any comments on that one, and then we'll get onto the questions?

Seamus: Yeah. Just, I mean, I think that looking at the poll, look, it's fairly even there, and the big concern would be that a lot of employers, you know, whether staff are on furlough or not, it's really if, number one, if the business is able to trade under the current restrictions, and second of all, the impact that the pandemic has had upon the business. I think a lot of employers find that they are maybe operating at lesser levels than they would have been, you know, maybe down to 70, maybe 75% sometimes. It depends on the industry whether the impact has been as bad as that or whether it could be worse. But the big thing obviously for furlough would be, like the purpose of the Coronavirus Job Retention Scheme is retention of jobs, and the risk would have been that if we didn't have the extension out of the scheme, would we have been looking at a large scale mass redundancy process? So I think we have to balance all of that in, but look at those figures, 50-50, I think that then that's reasonable in the sense it's encouraging that we're maybe not as bad as we what we thought we were.

Extension of Furlough Scheme

Scott: Okay, thank you very much. Thanks, Rolanda for that. Okay, let's look at some of the questions that have been sent in this week. We have to finish at 11:45 today, we have other commitments, so let's get through them first. So, first of all, dealing with that last poll first, if you like, Seamus, furlough.

Can you explain what the extension of furlough scheme means and are we able if it's necessary to make people redundant whilst they're on the extension to the furlough scheme?

Seamus: Well, look, the good news that we received this week from the budget, there was a bit of a leak of the extension of the furlough scheme just in advance of the budget on Wednesday, but we know that the scheme has now been extended until the end of September, so they've bumped it until September, and that obviously came through with the Chancellor's budget. Same position as we were in really. Employers can claim up to 80% of the worker's salary for time they haven't worked, up to £2,500 a month. But the change is really in and around that from July onwards, the employer has to make contributions towards the scheme, and for the period of July, the contribution is 10% of the 80% and then moving into August and September, it rises up to 20%.

And I think that some of us were surprised, Scott that the Chancellor had moved the scheme right out to September given the indicative dates and given the position of Boris Johnson that he told us about. Now, and I know that specifically deals with people living in England, but there's this idea that we would all be free from the end of June. And obviously, look, I think that the reality is that there's not going to be a situation whereby everything's going to bounce back to normal straight away. It will probably be a gradual approach, and we've heard from the commentators that there may be issues arising for certain particular industries going forward. And maybe worthwhile just to point out that there is a change in respect of the dates that can be claimed under the furlough scheme.

So for periods ending on or before the 30th of April 2021, employers can claim for employees on the 30th of October 2020 as long as you made the PAYE RTI submission to HRMC between the 20th of March and the 30th of October 2020, and you don't need to previously have claimed for an employee before the 30th of October in order to make a claim under the scheme. And then for periods starting on or after the 1st of May 2021, you can claim for employees who were employed on the 2nd of March 2021 and again, provided that you have lodged a PAYE RTI, or Real-Time Information Submission to the Revenue between the 20th of March 2020 and the 2nd of March 2021. So it's just to bring inline some of the maybe more recent employees that have come on board with organisations. Maybe whenever the lockout period was lifted, and then with the restrictions coming back in again, or maybe where there's some recruitment and there's maybe a need to place some employees back on furlough, so I just wanted to flag up those dates.

And in addition to that, we know that there's a government support for the self-employed, and that's extended out to September also. And just a couple of other things to highlight just from the budget I thought might be helpful, would be that the national living wage increases to £8.91 from the 1st of April 2021. So we always keep an eye on April in every year because that tends to be when the increases come around, whether it's statutory awards or whatever it is. But the National Living Wage up to 8.91 from the 1st of April. And Universal Credits, the uplift from that is going to be extended for a further period of six months, and those that are on working tax credits may be entitled to a one-off payment to £500. Just maybe that for some HR advisors, they'll be approached by staff with queries about that, so just wanted to flag it up. And Acas actually have a pretty good, simplistic explanation setting out the extension to furlough scheme on their website and it helps to look at that also. I think the second question there was about whether you could make people redundant during the extended furlough scheme.

Scott: Seamus, just kind of cross you there, sorry. I'm assuming that that's because last year when employees were required to cover National Insurance and so on there was evidence that people were made redundant then when it wasn't all being covered and there were some changes, and I assume this summer when you're making those 10%, 20% contributions if you're keeping people that don't have work, there may be an indication more likely then than now that people are going to be made redundant.

Seamus: Yeah. And, I mean, that would follow through as basically where we would have been at the same point last year also, that there's a bit of the new increases, and I think listening to the various commentaries during the week, I think that businesses are struggling with the furlough scheme. And I certainly heard during the week, Radio Ulster had a lively debate, and the idea now that there would be an increase of the 10% in July and 20%, it might tip some employers over the edge. But I think that the point of all of this is that the government would hope by the time you're getting through to July, businesses can reopen. They maybe can't reopen to the full extent that they would have previously opened, but with the vaccines in place, that it should be, I would've thought, the lesser of the position that you would have to go into that position with some staff. It certainly shouldn't affect as many as it would have perhaps maybe last summer.

But look, the answer to the question is if the business needs to make redundancies, it's entitled to proceed to make redundancies whether those employees are on the furlough scheme are not. And obviously, look, we need to point out that the notice pay can't be claimed via the job retention scheme, so you can't dip into the scheme for the purposes of notice pay. And in addition to that, if you're making redundancies, obviously, look, you have to follow a fair redundancy procedure. You have to follow your policy and procedure. But in addition to that, redundancy should be based on the full salary, as should notice pay, not on the basis of 80% or anything like that. So, look, bottom line is where redundancies need to be made because of genuine redundancy situations, you can still proceed to do that, but you should ensure that you're following a fair procedure, as you would on any other occasion.

Territorial Jurisdiction

Scott: Okay. Thank you very much, Seamus. Now I've had a question just come in here.

I have a new employee who will be 100% homeworking from England but employed by an NI headquartered or resident company. Will it be NI law or English law which applies to the employment contract, or is it a question of stipulating which laws apply in the employment contract?

So based on a separate jurisdiction for us, not a separate tax jurisdiction. Right, enough, it's still staying over in GB. But what about that? It's not redundancy, quite related to that, but which laws apply with somebody who's actually working, or doing or providing a service in Northern Ireland, but never enters Northern Ireland? Does that make a difference, Seamus?

Seamus: Yeah. I mean, my view would be in relation to that that whether they are homeworking or not, if the worker is actually provided in Northern Ireland and they're doing work in the Northern Irish jurisdiction, that the terms and conditions of the contract should be Northern Irish based. I know that you'd need to set that clearly out within the contract also. But there's a lot of this happening at the minute where there are people, I was reading on LinkedIn actually, yesterday evening, a gentleman was celebrating the fact that his company had allowed him to move to Australia but retained his job and retained his post which was GB based. But his terms and conditions of employment, I would assume remain. There might be tax issues as regard payments and things like that, but there is this flexibility that has taken place. But for me, you often get down to that point whenever you're looking at union and tribunal claims on which jurisdiction should the claims to be brought in. Certainly, if the work is based in Northern Ireland and the employer is based here, then for me, it's the terms and conditions of the Northern Irish legislation.

Furlough Arrangements

Scott: Okay, thank you very much. Now a couple more on furlough and then we'll have to move on.

What are the rules around training staff on furlough? Is it reasonable for the employer to request employees to complete training? And can we complete a performance review while somebody is on furlough?

Seamus: Yeah. I mean, there's no change to the scheme in relation to training. You can ask employees to undertake training and you can do a performance review whilst a employee is on furlough. You can also do your keeping in touch and your welfare meetings, all of those sorts of things can take place. The key aspect of this is that as long as they're undertaking training and the employees isn't providing services to or generating revenue for or on behalf of the organisation or the employer. So they should be encouraged to undertake training and, you know, it's a good opportunity.

Some people have been working from home for a year or have been on furlough now for coming up to the annual anniversary of the start of the scheme in April, and there will be training that will be required and refresher training in respect of maybe how policies and procedures apply, and even from the simple processes that we have in organisations. That there may be different ways of running the business whenever they reopen, and training can be provided, and now is a good time to get that done. Use the furlough scheme. Take the benefit of it to provide that training. And as regards, I think, performance reviews, as I said, welfare meetings, provided that there isn't any sort of revenue being generated from any of that, you can continue to do that. There's no issue arising.

Equality Training

Scott: Okay. Thank you very much, Seamus. Moving on. Now, we mentioned D&I and the need for D&I training. We had a question about the case of Allay, I think it's Allay, against Gehlen, and it says recent case found that D&I training that had been carried out previously was out of date because it was stale. I think it was only about two years, which is why we asked the question right to you.

What is the recommended period for training on equality and diversity matters?

Seamus: Yeah. Well, this is an interesting case. This was an Employment Appeal Tribunal case, so it has some weight in it that it's not the decision of first instance. But the basics of the case were around race discrimination, and the case itself brought in the question whether an employer could rely on the defence that all reasonable steps had been taken where training had been provided to an employee who discriminated against another member of staff. The tribunal at first instance had held that the employer was vicariously liable for racist comments that were made by one employee against another, the employee, the claimant who brought the claim. And the defence of the employer was, you know, what more could we do? We took all reasonable steps here. We provided training to the employees in relation to the diversity and inclusion. And it was a matter that the EAT then made some interesting comments on what the employer had said. That the perpetrator of the offensive comments had previously undergone equality and diversity training along with all other employees.

But interestingly, some of those employees had been managers who were aware the racist comments, and I think there might have been an issue that the managers, although they had also been trained, didn't take the appropriate steps to deal with the racist comments. But the Employment Appeal Tribunal essentially upheld the original tribunal's decision that the employer was vicariously liable for the actions of its employees. And what they said was that that was, even though there had been training that had been delivered, but they said the training had been delivered over a year prior to the harassment and had therefore gone stale. And they said that reasonable steps that was judged would have been to refresh the training. Now, I think, look, there's a number of factors involved in this. I think it depends on your organisation. It depends on the size of your organisation. It depends on how your organisation is made up or what structure is in place. But the key aspect here is that you must have completed some form of D&I training within the organisation.

As regards a specific timeframe, it's not set out within the judgment and there isn't any guidance to say that it has to be every year or it has to be every two years. I think it's important in any organisation that policies and procedures are reviewed and that they're reviewed in a timely fashion, and that there's training provided. In my office, for instance, there's certain matters that we provide annual training on because we deem it that they are sufficiently serious and that our staff need to be made aware and kept up to date in relation to specific matters.

But interestingly, what the tribunal went on to say, they said that it wasn't only just about the training. They say that a business needed to demonstrate that they created a non-discriminative organisational culture, which is lived and breathed by anybody. So it's just not good enough to tick a box and to say here's the policy and procedure, and here's a bit of training that we provided. Really, if you're taken to task by an employee and you end up in an industrial tribunal, I think the tribunal will be looking to see that there's more than just training or a policy and procedure in place. They'll want to see how that is actually brought about, how it's actually lived through the organisation, and what the organisation have done to live out essentially the policies and procedures that are in place.

So, look, is an important decision, and I think, specifically as well, I was reading some other commentary and the commentary was talking about the effects of COVID, and the figures had shown, for example, that women would maybe have been disproportionally affected owing to childcare and home-schooling responsibilities while schools remain closed over lockdown and the impact that that would have on equality for women specifically within the workplace. So it goes beyond best cases in the workplace. But certainly, look, I think that it's a very important aspect of this training given, and I'm thinking back to the poll there, Scott, that there was a third that said that there hadn't been training provided. Was it within the year?

Scott: Within the last two years, Seamus.

Seamus: Within the last two years.

Scott: I think for two years that hadn't done any, so I think they're struggling.

Seamus: I don't know whether or not there never has been training provided or whether it is that they just haven't refreshed the training. But certainly, on the basis of the judgment, I would have thought that you wouldn't want to wait any longer than the two-year period.

Scott: Okay. Thank you very much, Seamus. I suppose, somebody asked what the case was. It's Allay, A-L-L-A-Y against Gehlen, G-E-H-L-E-N, but we'll put the link out to you afterwards. We reported it on the Friday Reviews that we send out, so if you're a subscriber, you can go into the hub and you can read about that case as well.

Allay (UK) Ltd v Gehlen [2021]

One of the factors there, Seamus was that the managers hadn't taken action and the court, or the tribunal said, well, look, there's evidence for you that it wasn't effective. If it had been effective, the supervisors would have stopped that. They would have nipped it in the bud and stopped the harassment then and there. It cannot have been effective if the managers didn't take any action. And I think even if you were to take that case or take, you know, we'll get this transcribed, take elements of this transcription and send it around, that's part of your keeping it live, if you like. Reminding managers, you know, you've got to do these things. You've got to take action. Or, indeed, as we mentioned earlier, putting people through courses like our eLearning thing, which is easy to do.

I mean, the thing about eLearning, I suppose, not to plug ourselves too much, is that you can record. So you mentioned about the requirement to record that training had taken place. eLearning does that automatically. It records who's done it. It records their score. It can record any trends if there's any issues that people miss. So that type of thing is very useful if the employer were to go back and say like not only did we do the training, but we've got all the records that they did the training, and they did it on this date, and since then, we've also followed it up by, you know, having an open forum on equality issues. Or you might look for more. It might not just be training. There may be issues like you set up a D&I network, or whatever it happens to be, to show that you're taking it seriously. I think one of the issues for the employer here is that it was almost just a tick box exercise, really is what they're saying, and if it had been effective, it hadn't been reinforced over the period by going back to them.

Seamus: Yeah. I mean, I think it reminds me of the words "so much for your training," whenever your managers witnessed and were aware of the offensive behaviour and didn't do anything about it. I mean, I think that that would be a difficulty for any tribunal that they would find. But the other point in relation to it is like, I've had many a case where you've been a tribunal and you're defending claims, and the client's big point to you at the time is, "But we have a policy for that." And you think, "Yeah, that's great, but what have you done about the policy?" And it's really whenever the tribunals start to drill down through that or in cross-examination and councillor, or the solicitor on the other side starts to drill down in relation to yes, you have a policy, but explain to me how the policy is an involved procedure throughout your business. And so it's just simply not good enough to have a policy and say it's there. It has to be more than that.

Scott: Yeah. It's a similar principle to, I suppose the analysis that people or the courts put on an employee and employment status. They say, well, it doesn't matter that you've got a contract that says that they're self-employed, let's look at the reality. And in all those policies, yeah, you've got those things, but nobody's looked at it or talked about it or dealt with it or been trained on it for years and therefore it's fallen into disrepute. So, if you're going to have these things, you're better keeping them live, I reckon, or not have them at all.

But anyway, we have another question here that's come in not quite D&I, but might get that way for some people, and it is to do with people working from home. And it says,

Remote Working

In relation to intoxicants in the workplace and people working remotely, how should it be dealt with?

Particularly as the person we have a suspicion of, I think it says, is not face-to-face with the employer. Or sorry, that's wrong. Particularly as the person with the suspicion. So there's a manager who suspects that one of the employees has a drinking problem, but they're not face-to-face. They're not in the workplace. They're dealing with them remotely. So what light can you shed on that, Seamus?

Seamus: Well, I think from my experience over the past number of weeks, I think that there's a reality there that we're all now struggling with this lockdown, and whether that's on a personal basis or whether it was on a workplace basis, I have noticed within instructions that I'm receiving from my clients that there is definitely an unsettlement with staff at the minute, and I've noticed that's there have been an increase in the number of grievances, which is surprising whenever people are working from home and are not sort of in the office to bicker and fight. But there are issues arising among staff that are down to the fact that people are working from home, there's a lack of contact. People are feeling isolated, and it's creating difficulties, and I'm sure that's a shared experience with the listeners.

But when you put that in context of somebody within your staff who may be does have addiction issues or suffers from maybe anxiety or difficulties in and around their mental health already, and you add on these additional matters, you could really . . . I mean, I think it's worthwhile saying that it's important that you're looking after the welfare of staff as best that you can at the minute. But where there's somebody that is on your radar that maybe does have any kind of addiction issues or problems, certainly, I think keeping in touch is important, and I think that maintaining contact and checking in. There may be things that will flag up.

I mean, I know that that standard one where you'd be concerned that somebody is maybe drinking too much or where there's alcohol involved, and it's making the approach and really to see if there is any of the signs there . . . if there's any of the signs, the smell of alcohol, things like that. But usually, where you'll notice it will also be in a whether it be a decrease in their productivity, whether it will be a decline in their standard of work. I think that there's probably an element for all of us on that working from home in that we're not in the office, we're maybe just not as productive or good as we would be if we were in our normal circumstances.

But where there's somebody suffering maybe from an addiction that you're aware of, or even when you're not aware of and you think that it's very unusual for productivity levels to drop so badly for a certain member of staff, it could be a red flag that there's something more going on here. And so I think where there is that suspicion, it's very difficult to deal with it when there's no tangibility when there's no face-to-face meetings. But I think that you should take the steps to investigate to see what the circumstances are. And that may be trying to arrange video calls or telephone calls with the individual.

Another one I think that comes up quite a bit is this aspect of people keeping their camera off during meetings, and we talked about that at our last webinar about whether that was a reasonable request to ask somebody to put their camera on because that can give an indication of the welfare of the person as well whenever you see them on the video link. But where there's a consistency to lateness to meetings, not turning up for meetings, even though they're remote, keeping the camera off, all those sorts of indications, a downturn in their work, and maybe not adhering to their targets or their time frames, all of those are indications there might be a problem here. So, I mean, I think given the extraordinary circumstances that we're in, it's probably not the position in the first instance to jump in with two feet and look for disciplinary action.

I think that given the circumstances of where we're at, it maybe is more looking at the lighter touches initially, checking in, and trying to be understanding. And If it's obvious it's apparent that there are specific issues that are arising, then I think that you may be referring the employee to maybe occupational health or counselling services or making them aware of the types of services that are available for them to use and trying to be as supportive. Where there's chronic problems and difficulties arising, you may need to take an alternative step in relation to it. But look, I think it's back to the point we're all generally struggling and for somebody with a specific problem, this is going to be a very difficult time for them.

Scott: It's hard for employers because you can't go to the house and say, "Here, take a breath test." Or we're going to do a blood test or anything for you. You can't do the random drink and drug testing that you might do in certain workplaces. I should add for any of the listeners that our cameras are not on because we have some poor Wi-Fi when we put the cameras on, and it's a genuine case. Certainly, in my case. Seamus's Wi-Fi might be a bit stronger than mine in in County Armagh but here that I am, but that is a tell-tale sign. We've discussed it before.

I think when you move into those, look, we need to have these one-to-one discussions. If you're having them regularly with subordinates or managers, then they should notice those changes over time and they should insist that those ones are on-screen. There will be some way, whether it's WhatsApp or Teams or whatever, Zoom, that you'll be able to get Wi-Fi strong enough at times to have those meetings if people are working from home. And of course, if there working presumably, it's reasonable to ask them to engage by having cameras on. It's difficult at the moment where nowhere else is open to set up even a socially distanced meeting, but, I mean, that might presumably end up being the question. But your overall advice is don't assume somebody has an alcohol problem. Deal with the lessening of performance really. Is that the case, Seamus, yeah?

Seamus: Yeah, that's it. And look, just briefly, I specifically had a client that was having a really difficult time with a manager in their office, a superb employee, and they were aware that there was some issues at home, and I think there was some maybe matrimonial issues ongoing and may be issues with the children. But the employer was as supportive as they could have been, but they asked to meet. They weren't receiving sick lines. And then they were receiving sick lines, but they appeared to have been doctored and all sorts of issues arising. And ultimately, had to move through a disciplinary process just because they couldn't get engagement. And they'd taken steps even to contact the next of kin line in relation to this employee's mother, and they spoke to the mother and it was apparent that there were issues ongoing, but just the family weren't prepared to talk about.

And having to push in that direction, and with bearing in mind the difficulties that are ongoing and at the minute, but just trying to manage those issues is at the minute, is very difficult. But hopefully within the next couple of weeks, if we come out of maybe the end of March after Easter, there might be some ability to maybe set up external meetings and be able to meet outside even or the likes of meeting for a coffee in a third-party place instead. So, hopefully, we're coming out of that and moving in the right direction.

Scott: Okay, thank you very much. Somebody asked what the award was in the Gehlen case. It was just over £5,000. I looked at the original tribunal to see how they worked that out, very much loss of earnings as opposed to injury to feelings or whatever was involved perhaps in it, but it was just over 5,000 when I looked up the EAT decision.

For another case in here, or another question, Seamus, and might be about the last one we can deal with before we have to go today, but again, it's linked in with a case that came out.

Covid-19 Restrictions

Our policy is that all employees must wear masks while at work. One employee cannot wear a mask and we've created an individual workspace for them as a way to keep them and others safe. However, they refuse to work in this space citing loneliness, and have gone off work on stress. How can we handle this?

Now, I know there was another case that came in of a lorry driver who was dismissed because he refused to wear a mask while he was delivering to a supplier. So maybe can give us a bit of background, then look at this particular thing here where you're trying to make these reasonable accommodations for somebody who cannot wear a mask for medical reasons and they're just refusing to accept it. So maybe deal with both of those, Seamus.

Seamus: Yeah. Look, I think a very interesting case. It's the first case that I've come across, and it's the case of Kubilius and Kent Foods Limited. It's an Employment Tribunal case in East London where it relates to. So it is a case of first instance. It was heard on the 19th of January, so it's a very recent decision that has been issued, and the powers that be at Legal-Island, probably Scott, managed to get their hands on this case. And it's the first case that I've come across where we've actually had a tribunal give some indication and give a judgment in relation to some of the issues arising as a result of COVID, so if you get a chance to look at it, certainly, I think it's available on Legal-Island's website there. It's an interesting case.

The background of this was a lorry driver that worked for Kent Foods Limited, he was delivering products to a customer of Kent Foods Limited, and when he arrived at the customer's business at the premises, and he was inside his cab and his lorry, he wasn't outside of it, but he refused to put his mask on when asked by the staff at the employer's customer. And he refused to put his mask on. He said he was in his own cab and he didn't have to put it on. Now they did put forward an argument that because he was raised up high in his cab and when he was talking down to them, the droplets from his mouth could have come out. But they very much have taken, the customer had taken a strong stance in relation to masks. They asked anyone that was attending the premises to wear masks, and that was going back as far as April and June 2020. And this employee refused to wear the mask, and there was a complaint filed on him from the employer's customer through to the employer.

And ultimately, he was dismissed. He was dismissed for some other substantial reason and he brought a claim in the Employment Tribunal. The long and the short of the claim is that the tribunal found in favour of the employer. And what they said was that it was really the employee's continued insistence that he had done nothing wrong. The employee kept putting up these arguments to say, "I've done nothing wrong." And very interestingly, there wasn't a policy, a written policy, and procedure by the employer in relation to having to wear masks. They had said that they hadn't written down policy because it was a temporary measure that they hoped that they were bringing in. But it was sufficient enough even without there being a written policy for the tribunal judge to decide that the dismissal fell within the bounds of reasonable responses as it was picked.

And specifically, what he said was that there was concerns in and around the employee's continued insistence that he done nothing wrong and his lack of remorse which made the employer's decision to dismiss fair and reasonable response. So I think it's just an indication, certainly, Scott, as I would see it from the tribunal, I know it's only the first case that we've got and I know it's a case of first instance, and all of these cases will depend on the circumstances, but it's an indication that the tribunal are willing to take a firm view with these things.

Scott: Yeah. Could I maybe come in there, Seamus, because I know that you have to leave quickly? So that was the case of what we might call a thran employee who refuses what effectively is a reasonable instruction, which is when you're on their premises, follow their rules, and if you don't do that, we're going to sack you. But what about the case here where somebody's saying, look, I know you're making reasonable adjustments for me, but I can't have a mask in my face or I can't work there because I'm lonely. Is it different had this chap been disabled and couldn't have worn a mask? Might that have been then tough to say well, in that case, we might have to pull you out? Is that more plausible?

Seamus: Yeah. I mean, I think, Scott, I'm okay for a minute or two, so no major panic. But the circumstances are look, you have an employer who does appears to have a medical condition, can't wear a mask, and look, it's about looking at what are the reasonable adjustments that could be made here. Take out of the fact whether there's disability or not, but when they can't wear a mask due to medical reasons. Look for the reasonable adjustment. If there isn't a reasonable adjustment to be made at the facility of the person attending work, then you maybe need to look at putting the employee on furlough or making some sort of decision in that respect. This employee specifically has said due to loneliness that they don't wish to be placed in part of the office where they're alone.

I think that there's a subjective element when you need to know a bit more about maybe if these mental health issues with the employee or what the problem is, but look, that we could all say that we're lonely at work at the minute if we're working from home and we're feeling isolated. Some might enjoy that aspect more than others. Other people really like the attendance of work and the social aspect of it and everything else. But it doesn't seem to me, I mean, I think if I was a judge looking at this, I'd need to know the specific circumstances. But somebody to say that they are lonely, the fact that they've gone off on stress, I think the employer still needs to give careful consideration to it and see if there are alternative reasonable adjustments that could be made. Is there ability to put screens up instead and maybe have the employee move closer in, but have the screen up whereby they can still have that social interaction? But two very different scenarios here. You have one, somebody is refusing to wear the mask, and then you have somebody that can't wear the mask because of medical reasons.

Scott: Okay. Thank you very much. We'll kind of end it there. The cases have been put in the chat by Rolanda that we're discussing so you can have a look at those. We'll see if we can get them in the post-event email as well. You can see coming up next week, now on Wednesday, we have data protection implications. This is Brexit again. So, if you've got trade down south or France or wherever else in the EU, then there are data protection implications selling your services and goods down there. So we'll be dealing with a webinar next Wednesday with David Fagan, who is a commercial lawyer from Dublin next week.

Seamus, thank you so much. I think we're coming up, do we? Yeah, we do have 50% off. We've done a lot about diversity and inclusion framework discussions here. Quite a lot of it has to do with the equality and stuff. So, if you have any questions, I see there's another one just coming in, we won't have time to deal with it I'm afraid, but you know who you are and you can get in touch with Seamus directly if you like. And somebody else asks, how did that case go through so quickly? That's because of the rare system and they have the equipment that they can run remote hearings, I think, would be the answer over there.

So we'll see you next month when we'll be dealing with the Employment Law 11 with Seamus McGranaghan again. Any questions you have, please send them in to Rolanda at Legal-Island, if you can. We'll deal with as many as we can next week. Now, the first Friday of the month might be Easter Friday, I'm thinking, Seamus, so it's probably . . .

Seamus: Yes, it is.

Scott: . . . the week after that. That's okay, so we'll see you whatever day it is. I think it's about the 9th of April for the next webinar with Seamus. So thanks very much, everyone, and we'll see you again soon. Take care.

This article is correct at 04/03/2021
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The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Seamus McGranaghan
O'Reilly Stewart Solicitors

The main content of this article was provided by Seamus McGranaghan. Contact telephone number is 028 9032 1000 or email seamus.mcgranaghan@oreillystewart.com

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