The outbreak of coronavirus has put the world in an unprecedented situation. Every day the economic and legal landscape changes and businesses are expected to keep up.
Almost every business will be impacted in some way by COVID-19 - some more substantially than others. If you have any questions about the government’s new ‘furloughing’ scheme, lay-offs, pay reductions, restructures, sick pay and self-isolation or any other related issues, please do not hesitate to give us a call to discuss.
With the legislative changes to compensation limits, leave and wages in force in April, we have provided you with a summary of current facts and figures. The employment facts and figures should prove to be a useful reference tool, but are for guidance only.
Mental health difficulties is a disability
A disability is defined in the Equality Act 2010 as a physical or mental impairment which has a substantial and long-term adverse effect on the individual’s ability to carry out normal day to day activities. If there is a mental impairment, the focus is on the symptoms, rather than a specific diagnosis.
In Plowright v Sky-in-Home Services Ltd  the employee was an engineer installing equipment for customers. In a routine inspection, he was spotted at the top of a ladder without the appropriate safety equipment and he had not secured the ladder correctly. He said that he was going through a divorce, and his partner and child were moving out that day and he was distracted. He was dismissed.
This was found to be an unfair dismissal and disability discrimination. After the event, occupational health declared him unfit to work, and his GP diagnosed him with a mood disorder and a depressive disorder. The Employment Tribunal found that the situation was likely to recur, and therefore this was a long-term situation and was a disability. Even though there was not a diagnosis at the time of the incident, the employer should have realised that the situation impaired his ability to carry out his tasks correctly.
- If an employee has a mental impairment you should focus on the symptoms and the impact of these, rather than whether a ‘label’ has been given to the condition.
- Even if an impairment has not lasted for 12 months, if it is likely that it will then it can still be categorised as a disability.
- If an employee is disabled, you have a duty to consider if there are any reasonable adjustments that can be made.
Too old or too expensive?
A recent case has emphasised the importance of being clear about the reasons for rejecting an applicant for a job. In Levy v McHale Legal Ltd  the individual had over 30 years’ experience as a lawyer. He applied for a job for which it was stated that five years’ post-qualification experience was needed. At the interview salary was discussed and it was later concluded that he was too expensive.
He was told that he was unsuccessful because it had been decided to re-advertise for someone with three to five years’ experience, so that the applicant could be ‘moulded’ to fit the needs of the firm. He claimed age discrimination and was successful. The Employment Tribunal found that the length of experience requirements was changed so that he could not get the job, due to the cost, and that they were not essential to do the job.
- If a specific amount of experience is going to be required to do a job it must be justifiable. If it cannot be justified it could lead to claims of age discrimination.
- The justification should show why the length of service is required, rather than any other length of service. In other words, if you ask for three years’ experience, why is five too many, and two too few?
Resigned in anger
If an employee resigns in answer s/he should be given time to calm down, and then consider if s/he really does want to leave. In Rae v Wellhead Electrical Supplies Ltd  a director had an argument with other directors, which resulted in him walking out and saying, ‘I won’t be back’. The other directors accepted his resignation, but the next day he made contact to say that he did not mean to resign, and he was suffering from stress. He was told that his resignation had been accepted. He successfully claimed unfair dismissal.
- If an employee resigns in anger, make it clear that the resignation has not been accepted and arrange to meet a day or two later to understand what the employee really wants to do.
- If an employee does resign ask the employee to confirm this in writing. If the employee refuses, write to the employee confirming that the employee has resigned and clarifying the relevant dates.
Managing a pregnant employee
The words used to communicate with an employee can indicate a discriminatory approach. In Camara v East London NHS Foundation Trust  the employee was working in a temporary administration role and had only worked for a few months. Her performance was unsatisfactory, but before that was addressed, she informed her employer that she was pregnant. When talking to her employer she was asked ‘Did you plan this?’ and ‘Will this have to come out of my budget?’ (with reference to the costs of maternity pay).
The Employment Tribunal accepted that the words reflected the frustration felt because the manager thought she would not be able to dismiss (both for poor performance and because there was not sufficient budget to continue with the role) now that the employee was pregnant. However, the subsequent dismissal was found to be fair. The employee succeeded in a discrimination claim, due to the words that were spoken by her manager.
- It is possible to dismiss a pregnant woman, if the reasons for the dismissal are not related to the pregnancy in any way. Always contact us for advice before taking any action.
- Line managers need to be really careful in the words that they use, to ensure that they do not reveal any discriminatory thoughts.
The importance of taking care with words is also shown in the recent case of Pemberton v HMRC . The employee suffered from rheumatoid arthritis and needed a mobility scooter to get around. When she was having a flare up with the condition, she sometimes vocalised the pain, and she was also argumentative.
In a referral letter to the HMRC’s Reasonable Adjustments Support Team her manager commented that she could become ‘lively’ during a flare up. He was referring to her argumentative nature and vocalisation of pain. The employee got sight of the letter and brought a claim of harassment on the grounds of disability, arguing that the expression ‘lively’ violated her dignity. She was successful.
- Again, line managers need to be really careful about the language that they are using.
- Line managers also need to be aware that something they think they are writing to just one person could be shared more widely if a case comes to the Employment Tribunal.
- It is important to remember that one inappropriate comment can amount to harassment.
Breach of contract
An employee can resign and claim constructive dismissal if the employer breaches the contract of employment, the employees resigns in response to the breach and does so in a timely manner. It is not essential for the employee to raise a grievance before resigning, as shown in the case of Hobbs v Avon Care Homes .
The employee was involved in recruiting staff for care homes and had found a candidate that she thought was ideal to be a Home Manager. The candidate was of black ethnic origin. Her manager told her that she would not offer the candidate a job, because she did not want to employ someone who was black. The employee resigned, saying that she would not be complicit in illegal and discriminatory actions. She was successful in claiming constructive dismissal.
- Although it is definitely preferable to sort out any conflict before an employee resigns, there is no requirement on the employee to raise a grievance.
- If there has been a breach of contract the employer cannot correct it. Once it has happened, it cannot be undone.
Dismissal when accused of a crime
If an employee is accused of a crime, outside of work, it could potentially be fair to dismiss. Each situation will depend on the facts. In Lafferty v Nuffield Health  the employee worked as a hospital porter, transporting patients who were often anaesthetised. He was accused of a serious sexual offence, outside of work, which he denied. His employer was informed of the allegation. He was dismissed due to the reputational risk, given that he had access to vulnerable patients, should he be convicted.
This was a fair dismissal. However, the Employment Appeal Tribunal noted that an employer must not just take what it is told at face value, it must carry out reasonable enquiries into the situation. The potential impact of continuing to employ the individual must also be considered.
- If an employee is accused of a crime unconnected with work consider whether it has any potential impact on the work done for you, or on your reputation. If it does, consider whether it would be most appropriate to dismiss or to suspend pending the conclusion of the criminal hearing.
- Before dismissing contact us to discuss the situation.
- If you do dismiss the likely reason will be ‘some other substantial reason’.