Employment Law at 11 - February 2022

Posted in : 'Any Questions' Webinar Recordings on 4 February 2022
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered:

Covid-19 – it’s still the elephant in the room and the (horrendous) gift that keeps on giving to HR professionals! Big names are cutting sick pay for the unvaccinated and recent Covid Tribunal decisions are finally published – what does this mean for your organisation?

In this live webinar recording, Seamus McGranaghan from the employment team at O'Reilly Stewart solicitors and Christine Quinn from Legal Island discuss:

  • Morrisons, Ikea, Next, Ocado and other big names have all cut sick pay for unvaccinated workers who are forced to isolate after being exposed to Covid. Is this lawful? Can all employers do the same thing?
  • We’re finally seeing some interesting case law clarifying issues that have arisen because of the pandemic. They include whistleblowing, dismissals and whether a fear of Covid is a philosophical belief and therefore protected by the GB Equality Act. What do these decisions mean for you?

Relevant Resources:

Allette v Scarsdale Grange Nursing Home

X v Y

Best v Embark on Raw Ltd

Transcript

Christine: Good morning, everyone. Welcome to our February edition of "Employment Law at 11". You're all very welcome.

So today, we are going to be talking about COVID again. Who would have thought two years ago that we'd still be talking about it? But we're here we are. It's the gift that keeps on giving.

Just to introduce myself, my name is Christine Quinn. I'm one of the Learning & Development Officers here at Legal-Island. I'm a qualified employment solicitor coming up to 10 years' experience, so I love talking about employment law.

It's always great talking to Seamus, an O'Reilly Stewart employment law specialist. It's great to see you again, Seamus. You're very welcome.

Seamus: Thanks, Christine. Good morning.

Christine: Morning. So first things first. I think that our eLearning and our events team just want me to take you through a few things that they're up to at the minute.

So the eLearning team have been working on the HR Toolkit. It aims to provide comprehensive training to assist HR professionals in Northern Ireland. So the topics included in the toolkit are recruitment in the modern workplace, managing performance, tackling sensitive workplace conversations, and dealing with difficult people.

So if you'd like more information on that and to get a free demo, look out for the email that follows this webinar.

Also, our events team have a great event coming up, "Remote and Hybrid Line Management". It is on 2 and 3 March. And if you book before 5:00 p.m. next Friday, you get a £40 discount. So don't miss out on that. It looks to be a great event and lots of people have signed up already. So get involved with that.

Poll Results

Today, we are going to ask you to get involved, as usual. We've got some poll questions for you to have a look at. So we've got Rolanda in the background this week.

First poll question here: Have you asked your staff to confirm whether they have had the vaccines? If you could click yes or no there. Give you a better time to do that. Okay, looks to me like everybody has voted there, if we could get the results up there. So a resounding no. Eighty per cent are saying no. Seamus, are you surprised by that?

Seamus: I am, yes. I expected that the figure for yes would have been much higher, that inquiries have been made with staff in relation to whether or not staff have been vaccinated or not, particularly in and around rules for self-isolation and those discussions with staff. So I am surprised.

I mean, I do balance that off with previous conversations that we have had, Christine, about your right to privacy and GDPR and those sorts of things. But certainly, my experience has been that employers have been asking those questions. And it's not necessarily a legal requirement for an employee to answer the question or to give the information, but I would be more aware of employers having that sort of information readily available than not. So I am a little surprised at that, I have to say.

Christine: Yeah, maybe we'll see an increase in people asking directly now that the rules around self-isolation have changed, which we'll talk about later.

Seamus: And maybe if there is going to be a return to the office, those questions would be relevant.

Christine: Yeah, maybe that will focus the mind a bit more.

The second poll question has just popped up there. Does your company's sick pay policy currently make a difference between vaccinated and unvaccinated staff? So we've a yes, no, or no company sick pay scheme, only SSP. So if you could click that. And let's have a look at those results when you're ready there, Rolanda. So another resounding no. Eight-four per cent aren't making a difference, but then the second biggest there is, "We've got SSP only". What are your thoughts on that, Seamus?

Seamus: Well, I'm not surprised at the position, that there isn't any difference being made, 84%. I'm surprised, though, that there's only the 12% in relation to being SSP only. I suppose if it's SSP only, it does limit the ability for the employer to make those changes because, as we'll maybe talk about, the position is in and around . . . Where the penalty can come in is more so on the common sick pay scheme than it is on SSP because there's a legal entitlement to it.

But I'm not overly surprised. I do think that it is really a motive issue for employees and employers. But what I'm conscious of is really just the sort of vast increase in the number of absences that we have at work now because of the fact that we have the Omicron and our numbers are so high at the minute. We haven't really witnessed that comedown yet in relation to the number of positive cases. I know that it is difficult at the minute to know where those numbers are at, because not everybody has to get a PCR at the minute.

But yeah, I am a little surprised by that now. That's not what I was expecting.

Christine: Well, maybe those numbers will change after you deliver your pearls of wisdom later with that topic.

The last poll question. So if you answered no to the previous question, considering the big company announcements we're going to be talking about, are you thinking about a man's in your sick pay policy? If you could give that a click yes, no, or, again, we just pay SSP. Okay, voting seems to have slowed there, so let's have a look at the results. We've 71% are saying no, they're not going to. So there is a small percentage there difference, that maybe they are considering it. What are your thoughts there, Seamus?

Seamus: Well, I suppose that does give me a bit of comfort, actually. But yeah, I do think that that's probably more in line with what I would expect to see. But 13% is still a fair amount of people that maybe either have or are considering making that change to their sick pay scheme. So certainly worthwhile to have that discussion this morning.

Christine: Yeah. Brilliant. Thanks very much, everybody, for getting involved there. So let's move on and start getting into the webinar proper. The agenda for today. We're going to kick off talking about that sick pay for unvaccinated workers. Is it lawful, what the big companies have been up to, and should we all be doing it.

And then we'll move on to . . . we've finally got some case law coming through. I'm a solicitor, I love a bit of case law, and I love to see things being clarified at long last on COVID. So we're going to be talking about some of those big cases and what they mean for you. We've got whistleblowing, we've got dismissals, and whether a fear of COVID is a philosophical belief we'll be chatting about.

As usual, please do drop your comments or questions into the chat box and I will put them to Seamus at the appropriate moment. 

Sick Pay for Unvaccinated Workers

So first things first, the cut in sick pay for unvaccinated staff. It seemed for a couple of weeks there every day there was another big name announcing that they weren't going to be paying their full company sick pay if you're unvaccinated and forced to isolate as a close contact. We've got Morrison's. We've got IKEA, Next, Ocado. So, Seamus, should we all be doing this, and is it legal?

Seamus: It's certainly interesting. I suppose before we get into the legalities of it, I thought it was worthwhile maybe looking at what exactly is happening in and around sick pay, because it's a big headline that you get, and I've had some queries from clients come through to me saying, "Does this mean I don't have to pay any sick pay any longer, that I can withdraw it entirely?"

The headlines that you read in the media would almost lead you to believe that. But the background with sick pay is that it's something that employers have struggled with all through the pandemic.

If you think back to the early stages of the pandemic and the shielding phases that we had, people being absent from work as a result of it. Then we had furlough coming in and we had a lot of assistance for furlough when it came to SSP and being able to clod back and those sort of long-term absences, being able to place those people that had been off work on long-term absence on the furlough scheme as well. So there was quite a bit of assistance for employers there through the furlough scheme.

Really what we're seeing about what's happening now is furlough has come to an end and the reality is that I don't know any workplace that isn't affected with absences at the minute as a result of COVID.

And even for the employers that are able to run their business entirely with the working-from-home aspect, it still is having an impact because parents and mummies and daddies are not able to be working at home during the day if the children are off with COVID and around in the house.

Christine: Yeah, being there.

Seamus: We are seeing a lot of flexibility. I even notice on my emails now that I see at the bottom of the email, it will say, "The employer has adopted a flexible working approach. Don't be surprised if you receive emails from me out of normal office hours".

I notice that you do pick up emails coming through at 9 or 10 at night and stuff like that as well. And you can hazard a guess that there are out-of-offices coming through and things like that as well.

Certainly, the ground has changed and it has moved through the pandemic. We don't have furlough any longer. We have these absences that are now taking place. And there has been an exponential rise in absence as a result of Omicron and the situation that has happened.

So where we're seeing the absences as a result are that you've somebody that has caught COVID, somebody that has to self-isolate due to the fact that they have COVID, and the third aspect of that, which is the more interesting one and what we're really dealing with in this query, is employees having to self-isolate due to their status as a close contact.

And there are different guidelines that apply for different scenarios, whether you're vaccinated or whether you're unvaccinated. But the reality is that the volume of absences and the costs then that are associated with those absences really have forced the hand of employers to consider how they can look at cost savings aspect through their sick pay schemes.

You'll know, and we've talked about this in previous webinars, you need to look at the contract. You need to understand what the contract says. Is it just statutory sick pay? Most employees will have an entitlement to statutory sick pay.

There are some exceptions that we discussed previously. But does the contract provide for an enhanced sick pay scheme? Is there a company sick pay scheme?

In addition, and scarily, if employers say, "Oh, our sick pay scheme is discretionary, and we apply one rule for one and one rule for another", that's where we're really going to get into difficulties, particularly around these sorts of decisions that are being made.

Helpful as well, I think, just to consider and look at is what exactly are the self-isolation rules? What are those rules in Northern Ireland at the minute? So what we're aware of is you have to self-isolate if you have symptoms of coronavirus. That's the starting point. You have to self-isolate if you've got symptoms.

You then take a lateral flow test or you take a PCR. The recommendation and the guidance says you take a PCR test. And I think we're getting back into the mode of the minute where there is an availability to get PCR testing and for those results to come through in a reasonable timeframe.

If you've tested positive for coronavirus, you have to isolate for 10 days. Now, there is an early release in relation to that. I think it's either from the day that you test positive or from when your symptoms started at Day 6, provided you have maybe two negative lateral flow tests, that you can start to not self-isolate.

Importantly, again, if you're a close contact of somebody that has tested positive for COVID-19, and you're not vaccinated, you must self-isolate. And that shouldn't be missed. I think there's a bit of a misconception at the minute that everybody . . . you don't need to self-isolate until you test positive. But for any unvaccinated member of staff that is a close contact, they must self-isolate, and they must self-isolate for those 10 days.

So just to be clear about that, if you're not vaccinated, if you're aged over 18, and you're either not vaccinated or you've only have one dose of the vaccine, or if it's less than 14 days from your second dose, you should self-isolate immediately for 10 days. That's what the guidelines and what the legal position is. And that's from your last contact with the person that is tested positive.

If you're fully vaccinated and you've had a close contact, you take a lateral flow. If you're negative, you stop isolating. And what you're supposed to do then is . . . the guideline says that you take a daily lateral flow test until the 10th day after the last date of contact with a positive person.

Now, that could mean if you have a child in the house, the 10 days really start to run from when the child starts to test negative, because that's your last contact with a positive case.

Christine: Yeah. I'm keeping the lateral flow in business at the minute, Seamus. I've had to do many of them.

Seamus: Yeah. I know that we're all under pressure in the workplace and I suppose that's the interesting point going back to that poll, Christine, there of employers being aware of whether their staff are vaccinated or unvaccinated. I think that that is a question that inevitably has to be asked.

If an employee comes and says, "My partner, my child, my parent/sibling that I was with has tested positive. What should I do?" the starting point is, "Well, are you vaccinated or unvaccinated?" because that tells us how we move forward and what we need to do.

Christine: Yeah. I think . . . Sorry to interrupt, Seamus. I was just going to say that I think the big companies, the way it's being pitched in the newspapers, is that they're almost doing a public service by encouraging people to get the vaccine. But I think when it does come down to it, how I read it is why should we be paying you for a choice that you've made almost? Which I can see the logic of it, but it is starting to get into dangerous territory, isn't it, of dictating?

Seamus: Absolutely. And the concern is that you're looking at penalising those that are unjabbed.

Just to give a flavour of some of the changes in policy that have been made, what we're aware of is that where the employer is going is looking at unvaccinated employees that have to self-isolate for those 10 days and saying, "You're not going to get company sick pay for that. You're going to just get statutory sick pay".

Now, we can see from our poll as well that the majority of employers only paying SSP in any event, but you think of our public service and the benefits that those employees enjoy in relation to an enhanced sick pay scheme and things like that.

So there are organisations that do you have six months' full pay, six months' half pay. There is a price in relation to all of that, that aspect. So what we have is we have the likes of Next and IKEA, and their position has been . . . The attack is on those are not vaccinated, and, "You're not going to get full company sick pay anymore. You will simply get statutory sick pay".

I think from my point of view, and from my mind, that does feel like a penalty. It does feel like there's unfavourable treatment.

Christine: Yeah.

Seamus: We'll talk about what the justification has to be and what that has to look like. But Wessex Water in England, their position is that if an employee without at least one vaccination who does not have a valid medical reason, and that's a whole other issue as well, or does not have a confirmed vaccination appointment will only get SSP if they have to self-isolate due to a close contact that is positive.

The position at IKEA is that unvaccinated co-workers without mitigating circumstances who've been identified as close contacts of a positive case will only be paid SSP. They won't get the benefit of their company sick pay scheme.

And it does feel like it's a penalty for someone that is unvaccinated, and there are lots of pros and cons and there's lots of thought about that, I think, is what the feedback seems to be. But that's not new. We've had the penalty system in before. We think of the "no jab, no job" circumstances at Citibank when they were intending to bring employees back to the office in September. They said, "You can only come back to the office if you have proof of your vaccination". This aspect of "no return to the office unless you've got a jab".

Then this other new thing that we're seeing is these almost surcharges on healthcare plans, and employers saying, "If you choose not to be vaccinated, unless you've got certain mitigating circumstances, whether that's down to medical reasons or there is a philosophical belief or there's a religious belief in place, we are going to treat this as the same way as if it's an elective surgery, or a dangerous sport that you're doing. We're not going to cover you in relation to our healthcare in that sense. Or alternatively, you're going to have to pay more money for those benefits".

Christine: Yeah. Sorry, Seamus. I'm just going to jump in here, because we've got a really interesting point raised by somebody just in relation to the jabs. 

What you're saying is the general flu jab has been available for years. A lot of companies sort of offer it to staff. And people who don't get the flu jab and end up with the flu, they'll get penalised. So why is COVID special?

And I suppose my question would also be surely this is simple contractual employment law. This is a unilateral variation of your employment contract. You're not allowed to do it.

Seamus: And it's interesting, because you've the likes of John Lewis that have come out and said, "We are not going to differentiate between anybody that is vaccinated or unvaccinated. We see that as being unfair". So there's definitely an argument with these things.

I think that there are two big legal issues for me when it comes to concerns in and around whether it's legal for an employer to do this or not. When we get to the case law element, we can maybe look at what the positions of the tribunals have been to date in relation to vaccination and wider issues to do with COVID.

One is that aspect, as you rightly say. Is it a unilateral change in the contract of employment? Has the employer consulted with the employee and obtained consent in relation to the change in their contract? Is there a risk that the employee will resign and claim constructive dismissal on the basis that the employer has unilaterally taken a step to amend the contract of employment?

A lot of the stuff that I read on, Christine . . . I don't know about you, but I couldn't see where the employer was consulting with those employees.

Christine: Yeah.

Seamus: Now, I know that there's a position that . . . It seems to me that in most businesses, it won't be across the board, but in most workplaces, the majority of people have been vaccinated. We know the statistics in terms of vaccination, and you're dealing with probably the lesser numbers in your office place that this might impact upon. So maybe we're just not seeing that aspect or maybe there's sort of one-to-one consultations being done.

But bottom line is if you're going to amend a contract of employment, look at the Labour Relations Agency's Code of Practice. You can't unilaterally do it. You have to consult with the employee and get their consent in relation to it.

Now, there can be justification reasons for making a unilateral change, and ultimately, that's a matter for a tribunal to decide upon. But that will be one concern.

The other aspect is, and I mentioned it earlier on, is it's a penalty on those that are not vaccinated. Are they being treated less favourably? And particularly when you think around those specific issues of protected characteristics, sometimes it's due to pregnancy. It's a religious belief. If they have a disability, they can't get the vaccine. Is it a philosophical belief? Or is it something to do with their race? They're all protected under our legislation in Northern Ireland. Obviously, in England, it's the Equality Act. We have our separate pieces of legislation here.

Ultimately, I think it comes down to a position that the employer is going to have to objectively justify those cases where they intend to pay less sick pay to an unvaccinated employee.

And my advice would be you're going to have to probably manage this on a case-by-case basis and you're probably going to have to have . . . At the same time as doing it on a case-by-case basis, you're going to have to have a continuous . . . there's going to have to be continuity in your position in the same way that we would advise on other matters there.

But in my mind, when it comes down to it, I think about are the actions of the employer taking steps in respect of the sick pay scheme a proportionate means of achieving a legitimate aim? What is that legitimate aim? Is it to get people back to work, or is it saving costs? And if it's cost savings, I think it's hard to justify it as a proportionate means.

And there are pros and cons to all of this, too. I think in some of the cases that are coming through, we can see what the tribunal are weighing up. Yes, that might encourage people to get the vaccine, but it also might lead to somebody saying, "I'm not going to disclose to my employer that my partner is positive, because I can't afford to live on £96 a week on SSP". There are ups and downs.

I think ultimately, for me, you need to look at your policy and procedure. You need to have an understanding what the policy and procedure says. You need to think about if you're going to make amendments to that, how you go about doing that. Is it justified to make those amendments? Are you going to consult with your employees, or are you going to make a unilateral change? If you're going to do that, I think there's risk. And then I think you really need to consider carefully what the position is in and around the discrimination element, the less favourable treatment, and the risks that employee could very well take a claim against the employer.

Christine: Yeah, we've got someone making a really good point that I think feeds into what you were just saying there. If you do bring in a policy similar to IKEA's of not paying unvaccinated, maybe you'll just get people saying, "Oh, I've got a stomach bug. I've got a headache", and actually they're a close contact. So it's going to kind of encourage dishonesty, I suppose.

And then we've got a question here, Seamus.

Would you completely discourage discretionary sick pay policies? And are there same or more legal issues around having an SSP policy with the ability to pay discretion if required? Do you think discretion just automatically builds up a problem?

Seamus: Yeah, experience-wise, its yes. But if you end up on a tribunal, discretion is not . . . it just opens the door to the potential of somebody saying, "Why am I being treated differently to somebody else? What are the differences? Is it because you don't like me? Is it because of my race? Is it because of my gender?"

It opens that door. I'm uncomfortable with it. There are ways around it. I mean, certainly, you could you could set a definitive list. But that discretionary element causes difficulties.

I think if you're going to say to somebody, "Listen, I'm not going to pay you company sick pay if this is your third time off in the year", you might possibly need to look at that from a contractual point of view in a policy and procedure. But then what happens if that employee has a disability? Is it reasonable? Are you looking at reasonable adjustments? It's cleaner to have a policy and procedure and just stick to the policy and procedure that is in place without the airy-fairy world of discretion.

Christine: Yeah, discretion is a grey area where employment tribunal claims lurk, really, isn't it? Yeah, it's a tough one. I mean, we've got obviously a lot of questions coming in on that. There are a couple more complex ones that maybe I'll have a chat with Seamus about after the webinar, and we'll get in touch with you to give some answers because they're a bit more complicated than I think we can go into here and now.

But just wrapping up this wee section,

 Seamus, can you give me your three top tips for your company sick pay and how do you apply it?

Seamus: Well, I think one is you need to go back and look at what your policy is in relation to sick pay. What exactly does it say? Be familiar with it.

I think second of all is assessing how you would go about changing that policy and procedure, and possibly looking at having to consult with staff and doing things properly.

I know we're in a pandemic. I know that we're getting hit on a weekly basis with different guidance and different ways of doing things. But my experience has been that that doesn't change the legal position when it comes to a tribunal claim. So you still need to stick to your policies and procedures as to what they say and what the legal requirements are.

Specifically, if you're ending up at dismissal, that you are adhering to the statute of dismissal and disciplinary procedure. And if you really are coming down to make those really difficult decisions, don't be rushed. Check to see whether you're going to be able to objectively justify making changes and making differences in relation to those vaccinated and unvaccinated staff.

Christine: Brilliant. Thanks very much for that, Seamus.

So moving on to my favourite section: case law. I love talking about case law, and within case law, philosophical beliefs I always think can create a great debate. And we do have a couple of cases about whether or not COVID is a philosophical belief and therefore protected.

Now, the cases that are coming through are English cases, so that's under the GB Equality Act. But we do also have philosophical belief protection here, so I think we can apply the rules here.

So do you want to want to take us through some of those cases, Seamus? 

Allette v Scarsdale Grange Nursing Home

Seamus: Yeah. Look, we are starting to see cases trickle through. We'll probably not see every single case that comes through, but the ones that are reported or that are of interest, they're certainly being reported in media and things like that.

There is a good case. I'll start with a case of Allette v Scarsdale Grange Nursing Home. I'm just going to refer to it as "the home" going forward.

But this is essentially an employee works as a care assistant in a nursing home. We have covered on our previous webinars circumstances around specifically care workers and carers and issues around vaccination and everything else.

So the position was that the home had made a decision that they were going to implement compulsory vaccinations in the home. They specifically dealt with dementia patients, and a number of the patients that they had in the home couldn't be vaccinated because of medical reasons. So they felt that it was all the more important that the staff were vaccinated.

So they decided to make it a condition of their employment, and it was the basic position of, "If you wish to continue to work here, you must have the vaccination".

Now, the claimant was only told about the position . . . I think it was on 12 January 2021. It was the day before her vaccine was due to be administered. And she went to the director in the home and explained her circumstances. She didn't want to have the vaccine. She said that she didn't trust the vaccine's safety, that it had been rushed through without proper testing, that she'd had read stories on the internet about a government conspiracy, and no one could guarantee that the vaccine was safe.

Now, we are in January 2021 at this point, and that's important that we remember that.

The employer disciplined the employee, and at the disciplinary meeting, she indicated for the first time that she actually had a religious objection to the vaccine. This was the first time that the employer was made aware, at the disciplinary hearing. The circumstances essentially were they weren't aware of what religion she was or anything like that. This was all new to them.

Really important point, and seems to have been for the tribunal as well, was that during that meeting, the director of the home advised the employee that their insurance position having clarified . . . Their insurer had told them that as and from, I think, around the March time that they wouldn't indemnify the home in relation to risks assessed with unvaccinated staff, whether that was passing the virus on to residents or visitors to the home.

Now, ultimately the decision was made by the employer on this occasion. They said the claimant didn't have a reasonable excuse for refusing the vaccine and that if she remained unvaccinated, she'd pose a health risk to the residents, to staff, to her co-workers, and to visitors. And they made the decision that they couldn't make an exception for one employee, that that would be unfair to everybody else. And the employee was dismissed from her employment.

There was an appeal. It wasn't upheld, and she brought a claim for unfair and wrongful dismissal. Interestingly, then, the tribunal rejected both of those claims, and they said that the dismissal wasn't wrongful and it was, in fact, fair in the circumstances.

Now, a couple of things that were brought out as a result of the case. What they said was they looked at whether the dismissal impeached or had an issue arising in relation to respect for life under Article 8 of the convention.

But what the tribunal did . . . and this is interesting from just what we talked about. The tribunal said that the home had a primary legitimate aim of protecting its staff, its residents, and its visitors, and had a secondary aim of not risking breaching its insurance policy also.

So you can see that the tribunal are . . . that is a consideration for them whenever they are dealing with these cases.

They said that the mandatory vaccination policy corresponded for the pressing need in relation to reducing the risk to residents at the home. So there was a clear justification for it.

They also said that they felt that they claimant's . . . that she was in genuine fear. They didn't dispute that. They weren't saying that this was something that she had contrived. They were saying that there was a genuine fear and that she was sceptical of the vaccination. But they also said that she had no medical authority or clinical basis for not receiving the vaccine. And I think that's interesting from the tribunal's point of view.

Again, this is a decision of first instance. It is an English decision, but we can take out the lessons from it.

What they did say was that they balanced the arguments against that the home was a small employer with a legal and moral obligation to protect its vulnerable residents. And it accepted the home's legal submission that its decision to impose vaccination had to be seen in light of the more limited state of knowledge about vaccines and the progress of the pandemic at that time.

And I think that's important, because what we can garner from that is . . . again, the tribunal will base the evidence available at the time of the decision. It will not say, "Well, this is what we know about the situation now". They look at it from the point of view, "What was in the mind and what was available to the employer at that time?"

They said that the end position of the vaccine, to say that it was mandatory, was proportionate in relation to the aims that they were trying to achieve.

And also what they went on to say was that it was reasonable for the home to conclude that the employee was merely sceptical of the official advice that had been provided. So the home had been provided with advice.

They also during the meeting referred the employee to resources for her to research and to look up in relation to the vaccine.

Now, the claimant at the hearing did bring an argument to say that they haven't done anything to educate her or support her in her views. But the employer had referred her to PHE, the Public Health England advice, and they also said that the other advice was widely available on the internet.

What they said was that the employer did not genuinely believe that the claimant's refusal to have the vaccine was connected with religious belief, and that the fact that she raised it so belatedly, that she only raised it at the actual hearing was a concern for them in their mind.

So essentially, the finding was that the dismissal was within the range of reasonable responses.

Again, it is a case of first instance, but it is an interesting one. And you can see the sort of view that the tribunal have taken here, which is the approach that the employer is taking steps that they view as reasonable and proportionate.

Christine: Yeah. I mean, I think it's really interesting, Seamus, that you say that the tribunal putting themselves in the shoes of the people making the decisions at the time. So they're having to cast their mind back a year. I would wonder whether that outcome in that case would still be the same if it was January 2022.

In the case, they said that she was failing to follow a reasonable management request. Is that now a reasonable management request?

And we've got someone here making a point. We now know that unvaccinated staff can pass on the virus, but also vaccinated people can pass on the virus. So is it really a legitimate aim? But I suppose what they knew then . . . we weren't aware that the vaccine lost its power, so to speak, and we weren't aware that vaccinated people could pass it on at that time.

Seamus: No.

Christine: So I don't think the tribunal is trying to remember all the intricacies of this pandemic as it played out

Seamus: Yeah. And the other interesting aspect is we have now come across . . . I mean, the government in England have rolled back in relation to their position that anybody that worked for the NHS that didn't get vaccinated was going to lose their job. Last week, we did see them roll back from that.

Now, there hasn't been a decision made in Northern Ireland in relation to that at all, but you can see that there is this . . . And whether that's an issue in and around, "We can't afford to lose any more staff, because we're so under pressure with the staff that we have", or whether it's on the position of, "We see the light and we're maybe coming out of the pandemic", you can see things starting to roll back there. And it's interesting to see what a tribunal would do at that point. 

The case of X v Y

The other case is that . . . there's a case X v Y. It's a 2021 case. Again, it's on philosophical beliefs. That case was simply around that the person was very fearful of having the vaccine and the tribunal held in that case of X v Y. They said, "We don't doubt that. We believe the claimant had had a genuine concern". But what they also said was that it wasn't a belief that was protected under the Equality Act in England. They said this was because it was a reaction to the threat of physical harm, and the need to take steps to avoid or reduce the threat.

So it's not that the tribunal are coming back in every instance and saying, "We don't believe you and that's the reason why", as in what they did in Allette. The circumstances were they were saying, "We get it. There was a genuine fear, but it just didn't qualify as a protection under the Act".

Worthwhile to mention there is another case there, which is the case of Best v Embark on Raw Ltd. Again, this is a decision of first instance that has just come out very recently, but it is an interesting case.

Ultimately, the background is the claimant worked in a pet shop in England. She was vulnerable and had a very heightened fear of COVID-19. So this was going back to the April, May, June 2020. She raised concerns with her employer about steps that weren't being followed, that they had implemented steps in relation to wearing facemasks and social distancing.

But she complained to her employers that the staff weren't following those guidelines and it was putting her at risk. The employer did issue a memo to the staff to say, "We would remind you to do this".

But on foot of that, a member of staff came back and said, "Well, listen, I feel I'm being harangued every day, and her response is unreasonable". Then what the employer did was they issued the employee with a verbal warning to say, "We are concerned that your reaction is disproportionate", essentially.

And then following that, the husband of the husband and wife team that ran this business made a decision that they were going to dismiss her, and she was dismissed from her employment.

Now, it looks to me it was pretty much a penalty kick in relation to it was an automatic unfair dismissal. She didn't have the two-year qualification that's required in England, but they didn't follow any procedure. They brought her in. She asked for a meeting before she returned to work, and in the meeting they just dismissed her.

And interestingly, what the tribunal said was, "Well, it's unfair because when she raised her complaints, you didn't do an investigation in and around it. You just sent a memo out to staff to say, 'You have to adhere to the guidelines'. But yet, when somebody made a complaint about her, you did an investigation and you dismissed her". And they said that it wasn't a reasonable response

But also they said that she had been dismissed because she raised these complaints, she raised health and safety concerns. They awarded her £18,000 in relation to her damages for her whistleblowing aspect, because they directly related the dismissal to the fact that she'd raised concerns about her health and safety.

There are a couple of other small things in that case, which I just thought were important. I mean, there was a finding by the tribunal that the principal reason for the dismissal was that she had made protective disclosures.

And the tribunal went on to say that by not investigating the employee's complaints, or the previous action of the other employees, that the tribunal had imposed a detriment, and subsequently dismissing the employee was a direct result of her protective disclosure and the breakdown in the working relationships that was caused by the complaints that had been raised.

The other thing that they said was that they felt that there was no opportunity for the employee to raise a defence or to give comeback in relation to the issues that had been raised, that they simply just brought her into the meeting and had said right away the decision had been made that they were going to dismiss her in any event

But it's an interesting case, and certainly in and around that aspect that she didn't qualify in relation to the unfair dismissal as a result of the fact that she didn't have her two years, but they still made these findings.

There were other findings that they made, too. There were other elements in the claim. There was a finding that it was an unfair dismissal and she received quite a bit in compensation as well.

Interestingly, just to mention, whenever they were looking at the schedule of loss in relation to the case, they did and say that due to the pandemic, it was going to be harder for her to obtain alternative work. That's interesting in terms of what a tribunal will consider when it comes to future loss and compensation and things like that as well.

Christine: Oh, interesting, then. Are we going to be looking at bigger tribunal awards for the next while as these COVID cases start trickling through? That's an interesting one. Not one I thought of.

Seamus: Potentially, yeah. 

Key Takeaways

Christine: Yeah, that's really interesting. So let's see. Do you have any key . . . what would be your takeaways on that kind of case law for us today, Seamus?

Seamus: With regards to the case law and what it is saying, it still for me is a matter of going back to basics. The other thing is from my own experience, I've had a couple of cases that . . . one redundancy case that I ran in the tribunal. And it's clear to me that the tribunal are not going to forgive or say, "It was really difficult during that pandemic, employer. That's all right. Don't worry about the dealings that you've made".

There's no excuse when it comes to the statutory requirements that are in place. The tribunal does not have a power to say, "Oh, that's okay. Don't worry about it". I think sometimes what I'm seeing is that people are almost flabbergasted that they would be expected to adhere to . . .

Christine: To the law?

Seamus: . . . statutory provisions. And I get it and I understand it. I act for a lot of employers, and I get it and I understand it, but I think that's one trap to avoid in relation to how you think cases are going to proceed.

So for me, it is about following the statutory procedures, remembering that there is the one, two, three procedure that needs to be followed.

Secondly, I think it's a bit balancing the rights of your organisation and the employees that work for it. Often, this is coming down to one employee that feels that they're being treated differently and less favourably. I think you just need to exercise caution. No rash decisions.

And particularly in the Best case where they just brought her in and dismissed her, there was a fear in that case that there were others that were going to leave and resign and leave the employer high and dry. So definitely, look into following through on your policies and procedures, making sure that you're ticking your boxes in relation to your statutory obligations as well.

Really, I think the last one is just an aspect of communication with staff as well. Really, you don't want to be getting down to a point where there is such problems arising between the employer and the employee, or an employee and the other employees. There should be clear policies and procedures in place about guidelines. Employees should be aware of what their expectations are.

And also even making clear to the employees this idea of when you have to self-isolate and when you don't. If you don't have that, that's a discussion on the phone because the person is panicking on the day that they found out that they were a close contact. That information should be available. And for me, it's about being open and making sure that the communication is good.

Christine: Yeah. Brilliant. Thanks very much, Seamus. Someone is asking if we can share the names of the cases. They'll come through in the email. I'll put together a list

Someone is just asking for clarity on whether the Best case was unfair dismissal. My understanding was that she didn't have the years of service to be unfairly dismissed.

Seamus: Yes.

Christine: But she did win on whistleblowing.

Seamus: Yeah.

Christine: Brilliant. Thank you so much. We have run over time, but it's because it was so interesting today. If you want to drop Seamus an email, any questions that we can talk about next time . . . Sorry, drop me that email, so christine@legal-island.com. If you want to get in touch with Seamus, we will share his details. They were up on the screen there, but we'll share them as well.

And make sure you look out for the post-webinar email with all the details of the upcoming events and the eLearning that I discussed, along with your discounts.

"Employment Law at 11" does have its own podcast available on Spotify, Amazon, and Apple. So just search for "Employment Law at 11" and like and subscribe, as the kids say.

We will see you next time. Seamus and I will be back on 4 March for our next "Employment Law at 11".

There's also a bonus webinar coming up next week, 10 February, with Emma McIlveen, BL. It's a Northern Ireland Case Law Revision Day. It's a lunch-and-learn, so it would be great to see you there.

All that remains to be said is thank you very much, Seamus. And thanks for all your help in the background, Rolanda. We will all see you next month. All be well. Thanks very much now.

This article is correct at 04/02/2022
Disclaimer:

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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