Avoiding employee Covid claims

The pandemic has brought a whole host of new issues for employers and employees and we’re likely to see the after-effects of these for some time to come.  Unfortunately, employers are likely to see an increase in claims against them relating to the treatment of employees during the pandemic. 

The first “batch” of Employment Tribunal claims have already made their way through the courts and there are a number of judgments that we can gain insight from.  However, no clear principles have been established in the case law so far and it will be a while before we see any patterns emerging. 

In the meantime, there are practical steps that employers can take to reduce the risk of employee COVID claims, which we’ve set out below. 

End of furlough/redundancy and related issues

The Government’s furlough scheme ended on 30 September 2021.  Prior to that there were numerous changes to the Government guidance and, unsurprisingly, this has led to a number of Employment Tribunal claims including claims about whether employees should or should not have been furloughed, whether dismissal during furlough was fair, the misuse or misunderstanding of the furlough scheme where employees were asked to work whilst furloughed and whether or not employees were paid properly during the scheme. 

Going forward, now the scheme has ended, the claims are more likely to be around the return to work, redundancy and discrimination.  A few pointers to reduce the risk of grievances and claims:

• Employers should already have put in place the mechanics to bring staff back to work after furlough and given thought to how this process is to be managed.  This will involve carrying out risk assessments, putting any relevant policies in place (e.g. health and safety/COVID compliance policies and any hybrid/remote/agile working policies).
• Given the amount of time that some employees have been away from work employers should consider putting on refresher induction days, training, a gradual return to duties and providing returning employees with a buddy to help with the readjustment.
• Should your business not be able to sustain bringing back employees on their previous terms and conditions, before deciding to make redundancies, you should consider the alternatives – reducing hours and/or pay, asking staff to take paid or unpaid leave, short-time working or lay off (assuming the contract of employment gives this right) or keeping employees on furlough but without the government grant (meaning that staff will continue to be paid less but will also have to work less).  These changes require consultation with staff and, ultimately, their agreement otherwise it’s a breach of contract and could also lead to constructive unfair dismissal claims.
• If redundancies are unavoidable, ensure there is a genuine redundancy situation, that all employees carrying out a role that is no longer required are included in the pool for selection for redundancy (i.e. not just those who have been furloughed), that employees are selected for redundancy on fair and objective grounds (and not, for example, for discriminatory reasons such as disability, maternity etc, which may have led to them being furloughed) and that a fair and meaningful redundancy consultation is carried out. If you are considering making 20 or more or 100 or more redundancies within a 90 day period, this amounts to collective consultation.  Collective consultation triggers onerous rules and timescales on the employer and requires careful planning and specific legal advice.
• Anyone being made redundant is entitled to contractual or statutory notice or payment in lieu of notice and those with 2 or more years of service are entitled to a statutory redundancy payment -https://www.gov.uk/calculate-your-redundancy-pay.  Employees with 2 or more years’ service should be given the right to appeal the redundancy but it’s good practice to roll this out to all employees being made redundant.

Vaccine issues

The question of whether employers can insist that their staff are vaccinated and whether they can dismiss an unvaccinated employee is complex. While it is understandable that employers wish to ensure that their staff and customers are as safe as possible, employers do not have the right to compel employees to be vaccinated and therefore any “no jab, no job” dismissal is likely to be unfair.  Alternatively, if an employee is forced to resign because the employer is insisting they are vaccinated, this may amount to a constructive unfair dismissal.  As well as these risks there is also the risk of discrimination claims if employees are refusing the vaccine on the grounds of disability, pregnancy or religious or philosophical belief. 

The situation is different for those working in care homes where mandating vaccines is lawful – and this policy may be rolled out to other frontline health and social care workers in due course.

However, whilst most employers cannot compel staff to have the vaccine, they can encourage it and indeed this is recommended in order for employers to meet their obligations to reduce workplace risks for staff.   Most employees who wish to have the vaccine will have already had it – but booster vaccinations will start shortly and employers can support and encourage employees to have these by allowing time off to get the booster and offering this time off to be on full pay.

Many employers will wish to know which of its employees are vaccinated and use this information to shape its workplace policies.  Again, whilst completely understandable, asking or requiring employees to disclose their vaccine status raises a number of legal issues.  Firstly, the Information Commissioner’s Office has published advise to organisations collecting vaccination status data confirming that this must be necessary and relevant for a specific purpose if there is a legal basis for doing so.  The safest legal basis under the data protection legislation will be compliance with your legal obligations and “substantial public interest”.  When collecting vaccine data you must comply with general data protection obligations.  If you’d like advice on the data protection issues around vaccine status data please get in touch.    

The decision to mandate vaccines and/or collect vaccine status data is complex, with much depending on the particular circumstances of the employer and the employee.  Employers thinking of introducing such policies are urged to take specific legal advice.

Health and Safety issues

In order to reduce the risk of claims under section 100 of the Employment Rights Act 1996 (the right of employees to refuse to attend work or take steps to protect themselves or others if there is serious and imminent danger), whistle-blowing claims (the right of an employee not to be dismissed or suffer a detriment for blowing the whistle on unsafe working practices), disability discrimination (the right not to be discriminated against because of a disability which could make an employee more vulnerable to COVID infection) and other unfair and constructive unfair dismissal claims, employers can put in place the following measures:

• Comply with all Health and Safety Executive guidance and the Government’s COVID secure workplace safety guidelines https://www.gov.uk/guidance/working-safely-during-covid-19 https://www.gov.scot/publications/coronavirus-covid-19-general-guidance-for-safer-workplaces/  https://www.hse.gov.uk/coronavirus/working-safely/index.htm as a minimum.
• Carry out regular risk assessments to identify COVID risks in your workplace, keep a paper trail of the assessments and the measures you take to address the risks identified.
• Establish clear, written rules/policies around the behaviour expected from employees – e.g. regular hand-washing, not coming to work if they test positive or have symptoms, sanitising work stations, social distancing, mask wearing in communal areas etc (and the provision of space, sanitizer etc).  Ensure that employees feel comfortable raising any safety issues and that these will be welcomed, addressed and the solution communicated to staff. Ensure there is proper consultation with staff and that any rules/policies are properly communicated.
• Encourage vaccination but do not insist upon it (unless there are very specific and strong reasons for doing so – see paragraph above on vaccines).
• Consider introducing a testing policy (e.g. twice a week) as a condition of attending the workplace.
• To the extent possible, do not insist on employees attending the workplace, particularly those who are vulnerable (or who live with vulnerable people), as this will increase the risk of disability and constructive unfair dismissal claims.
• Pay full company sick pay for employees who have to self-isolate.
• Allow adjustments, where required, to working hours etc so that employees can avoid busy times on public transport or support other means of commuting.

If you’d like advice on any of the issues raised above please email hannah.roche@mbmcommercial.co.uk and morgan.landels@mbmcommercial.co.uk.

For more information get in touch

Hannah Roche Head of Employment & Holistic HR Partner View profile