It goes without saying that COVID-19 has blighted all our lives since it first took hold in March this year. Government restrictions, social distancing and the need for COVID-safe environments have impacted every organisation and household nationwide. Courts and Tribunals are amongst the many organisations faced with extreme backlogs in their normal business activities. There are many new questions for employers about ‘safely’ managing the workforce during the COVID-19 pandemic. We are in unknown territory with the prospect of many new claims for discrimination, detriment and dismissal arising out of old laws but with novel facts and circumstances. Courts and Tribunals will be challenged to fit the current legal framework around work-place situations never-before faced, thanks to COVID-19. They say, “you can’t teach an old dog new tricks”. We will have to wait and see…. and it will be a long-wait before judgements are available from the higher courts to give some much-needed clarity to the many grey areas and unknowns taxing employers and employment lawyers alike.
But for now, while there are noticeably fewer cases coming through the justice system, there are still a couple which are worthy of note:
Definition of Disability
Did an employee who suffered from paranoid delusions that affected his timekeeping have a disability for the purposes of the Equality Act 2010?
Short answer: No, held the EAT in Sullivan v Bury Street Capital Limited
The Claimant's condition caused him to believe that he was being tracked by a gang of Russians. The delusions impacted his timekeeping and attendance. This was found to have a substantial adverse effect on his ability to carry out his day-to-day activities.
The Tribunal held that, at the relevant time, the substantial adverse effect that existed, and was caused by the condition, was not long term, as it was not likely to recur.
The EAT agreed, rejecting the argument that this was in error as the substantial adverse effect did recur later. The Tribunal was required to make its assessment on the basis of condition prevailing at the time. The fact that the substantial adverse effect had in fact recurred did not preclude the tribunal from concluding that, as at an earlier date, it was not likely to do so.
Medical evidence from a medical expert or occupational health practitioner will assist in deciding whether a condition is long-term and is likely, or not to recur. This will assist in decisions around treating the employee as disabled for the purpose of making reasonable adjustments and avoiding claims for discrimination.
Whistleblowing: time limits
Did the imposition of a new contract amount to a continuing act for the purpose of whistleblowing time limits?
Short answer: No, held the EAT in Ikejiaku v British Institute of Technology Limited
Explanation: The Tribunal had rejected the Claimant's argument that the imposition of a new contract amounted to a continuing act as the new contract continued to be in place until the Claimant's dismissal.
The EAT upheld this decision. The time limit ran from the date of the act or failure to act. Tribunals should not confuse a continuing detriment with a continuing act. There was no basis for concluding that the imposition of the new contract was a continuing act which extended over the whole period ending with the Claimant's dismissal. Rather, it was a plain example of a 'one-off' act with continuing consequences. Accordingly, the time limit ran from the date of the new contract.
The time limit for bringing a claim for detriment resulting from making a public interest disclosure (whistleblowing) is 3 months less one day from the date of the detrimental act complained of. The detrimental consequences of such an act may continue but this will not extend the time limit for the individual to make a claim in the employment Tribunal. In short, imposing new contractual terms is a 'one-off' event with continuing consequences, not an act which 'extends over a period' and time for bringing a claim will start to run from the date of the new contract.
New Criminal Offence for Employers:
At midnight, on 27th September 2020, the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 (“the Regulations”) came into force, but only in England. (see link below)
These Regulations give rise to a new criminal offence for employers punishable by a fixed penalty fine of between £1,000 for a first offence, rising to £10,000 for multiple breaches of the same.
The Regulations set out mandatory periods for self-isolation, and a duty to notify the Secretary of State of the names of people in the same household as anyone who has tested positive for COVID-19. The Regulations should be considered alongside the Government guidance, updated on 9th October, 2020 (see link below) for households with possible or confirmed coronavirus (COVID-19) infection where there are:
- people with symptoms that may be caused by COVID-19 including those who are waiting for a test;
- people who have received a positive COVID-19 test result (whether or not they have symptoms);
- people who currently live in the same household as someone with COVID-19 symptoms or who has received a positive test result.
Regulation 7 makes it an offence for an employer to knowingly permit a worker (including an agency worker) to attend any place other than where the individual is self-isolating. This includes individuals who are required to self-isolate because they live with someone who has tested positive. So, if an employer knows a worker has tested positive (or lives with someone who has tested positive), it is now responsible for stopping the worker from working (unless they can work from home). Any employer who fails to do so will face a fine, starting at £1,000.
Regulation 8 places an obligation on a worker to tell their employer that they are required to self-isolate (and the start date and end date of the isolation period) as soon as reasonably practicable, and in any event, before they are due to start work within their isolation period. Any individual who breaches self-isolation will, normally, commit a separate criminal offence with a more modest fine of £50 for breaching the Regulations.
Employers should notify their workers (including agency workers) of their obligations under the Regulations, making it clear that a breach of the requirement to notify of the employer of a need to self-isolate will amount to misconduct and will be dealt with according to the disciplinary policy.
Government Guidance on staying at home to self-isolate
Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020