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Employment Law News

 

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 The COVID-19 Job Retention Scheme from 1 July 2020 onwards – a guide for employers 

This is BDBF’s guide to how the second phase of the COVID-19 Job Retention Scheme (Scheme) will operate between 1 July 2020 and 31 October 2020. This guide was last updated on 3 August 2020. 

Please click on the information below to download the PDF:

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BDBF is currently advising many employers and employees on the challenges presented by the coronavirus. If you or your business needs advice on furlough or other coronavirus-related matter please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact. 

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Employment Law News

 

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Racial stereotypes were discriminatory and justified dismissal without notice

In Lamonby v Solent University the Employment Tribunal had to consider whether it was fair to dismiss an employee who had made remarks which betrayed a tendency to stereotype according to race, even where such stereotypes were sometimes positive.

What does the law say?

Misconduct is a potentially fair reason for dismissal.  In order to show that it has dismissed fairly for misconduct, an employer must show that:

• it believed the employee to be guilty of misconduct;
• it had reasonable grounds for believing the employee was guilty of misconduct; and
• in forming such a belief on reasonable grounds, it carried out as much investigation as was reasonable in all the circumstances.

Most employers will stipulate within their disciplinary rules that discriminatory acts will be treated as gross misconduct warranting dismissal without notice.  Typically, separate internal policies (e.g. equal opportunities / anti-harassment) set out what constitutes discrimination, and this will include discriminatory remarks.

What happened in this case?

Mr Lamonby was a 73-year old part-time lecturer in engineering at Solent University (the University).  During a meeting with his course leader, Dr Bonar, it was alleged that Mr Lamonby made the following remarks:

• Black people “…didn’t have the heritage in their DNA to be able to do engineering” but that he had a “soft spot” for young black men because they are “underprivileged and many without fathers” and “need all the help they can get”;
• People from Africa and Lithuania “…had no basics in engineering. No family involved and no practice”;
• Jewish people were “…the cleverest people in the world” and that they had a “…particular gift” for physics;and
• Germans were “good at engineering” as they were “exposed to a high level of industry from an early stage in their lives”.

He also asked Dr Bonar if she was Jewish because of her ability in maths and physics.

Dr Bonar raised a complaint, stating that she had found the comments personally offensive and that she was concerned that students were being taught by someone with racist views.  The University instituted disciplinary proceedings on the basis that Mr Lamonby had breached the University’s Behaviour at Work Policy and the Solent Values Policy.

Mr Lamonby accepted he had made the remarks, save for the remark concerning DNA.  He apologised and said that he had not intended to be racist or upset Dr Bonar.  Yet, during the investigation and disciplinary process he continued to make inappropriate comments about racial and ethnic groups, including that black males “need extra help” and that Jews had “a special mind” and had “neurological differences”.

The University found that Mr Lamonby was guilty of gross misconduct and he was dismissed without notice.  Mr Lamonby brought claims of unfair dismissal and breach of contract in respect of the notice period.

What was decided?

Firstly, Mr Lamonby argued that the comments made to Dr Bonar were made in a casual, public environment (i.e. the canteen) and not within the workplace.  This was rejected outright by the Judge, who considered that a professional meeting on University premises clearly amounted to a workplace conversation.

Secondly, Mr Lamonby argued that his comments were sympathetic towards or positive about the groups mentioned and were not racist or offensive, meaning his dismissal was unfair.  However, the Judge concluded that ascribing certain abilities or talents (or the opposite of them) to a group by virtue of their nationality, race, ethnic or religious group was potentially racist and offensive.   For example, a Jewish person might feel such positive stereotypes demeaned their personal intellectual ability and hard work.  The Judge added that “…as with any such group, talents or abilities will vary wildly from individual to individual”.

The Employment Tribunal found that the dismissal was within the range of reasonable responses and dismissed the claims.

What does this mean for employers?

This decision serves as a helpful reminder that discrimination can occur even where the perpetrator has not intended to cause offence and/or does not believe they have behaved in a discriminatory manner.  In this case, despite having a clean disciplinary record, Mr Lamonby’s failure to recognise his wrongdoing meant that the University lost confidence in his ability to change (e.g. through training).   The decision also highlights that even positive racial stereotyping can be viewed as racist and offensive.

It’s worth noting that the University was assisted by the fact that it had clear anti-discrimination policies in place which had been well-publicised to staff.  This meant that Mr Lamonby understood the standard of behaviour expected of him, even though he hadn’t, in fact, read them.

Employers should ensure that their policies are clear (e.g. highlighting that positive racial stereotyping is discriminatory) and are circulated to employees on a regular basis.  Ideally, employees should be asked to acknowledge that they have read them and should also attend regular dignity at work training.

Lamonby v Solent University (Southampton)

If you would like to discuss any of the issues raised in this article please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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Employment Law News

 

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Employer discriminated against depressed employee by failing to guarantee that she would not have to work with alleged harassers again

In this case, the EAT considered whether it would be a reasonable adjustment for an employer to provide an undertaking to a disabled employee guaranteeing a severance package in the event that it could not maintain certain working arrangements. 

What does the law say?

Where an employer’s provision, criterion or practice (PCP) places a disabled employee at a substantial disadvantage compared to non-disabled employees, the duty to make reasonable adjustments will arise.  Employers must consider whether an adjustment would lessen the disadvantage and, if it would, whether it is a reasonable step to take in the all the circumstances.  Reasonable adjustments can cover a wide range of possible actions, from adjustments to physical premises (e.g. widening a doorway to allow wheelchair access) to changes to company rules and/or practices (e.g. standard working hours or sickness absence policies).

Where an employer fails to make reasonable adjustments, the employee is able to bring a claim seeking compensation and/or a recommendation that the employer takes appropriate steps to alleviate the disadvantage.

What happened in this case?

The Claimant was employed by Lloyds Bank.  She alleged that she had been bullied and harassed by her line manager, M, and M’s line manager, B.  She went off sick with stress and depression for 16 months and raised a grievance, which was not upheld.  When she eventually returned to work, she made it clear that she did not wish to work with M or B ever again.  Although she was not, in fact, working with M or B (who were based at different offices to her), she asked the Bank to give her an undertaking that:

• it would not rearrange duties or roles with the result that she would have to work with, or report to, M or B in future; and
• if that could not be achieved, it would offer her a severance package equivalent to what she would have received had she been redundant.

The Bank said that it would aim to avoid her working with M or B again, but this could not be guaranteed, nor was it willing to offer the alternative of a severance package.

The Claimant claimed that the Bank’s position represented a failure to make reasonable adjustments.  She argued that she was placed at a substantial disadvantage to a non-disabled person (her disability being reactive depression), because the fear of working with M or B again aggravated symptoms such as hair loss, panic attacks, exhaustion and feelings of dread and hopelessness.

What was decided?

The Employment Tribunal upheld the claim. They awarded £7,500 for injury to feelings and made a recommendation requiring the Bank to provide the undertaking requested by the Claimant.  However, the recommendation was set aside upon reconsideration.  The Bank appealed against the decision, including the original recommendation.  The Claimant appealed against the later decision to set aside the recommendation.

The Employment Appeal Tribunal (EAT) decided that the Bank’s unwillingness to give an undertaking was not a one-off decision, but was a “practice” susceptible to adjustments, and it could be reasonable to give an undertaking providing a disabled employee with special financial benefits in certain circumstances.  Although the purpose of making reasonable adjustments is to keep disabled employees in work, rather than to deal with exit terms, the underlying purpose of the proposed undertaking was to allow the Claimant to work without fear and so remain in work.

The EAT concluded that the Bank had failed to make reasonable adjustments and that the recommendation to provide the undertaking was an appropriate remedy.  It rejected the Bank’s objections that recommendations should not have potential financial implications or last indefinitely.  However, it accepted that the original recommendation made by the Tribunal was inadequate in several respects and it was right to have set it aside.  The EAT remitted the question of precisely what form of recommendation should be made.

What does this mean for employers?

This decision shows how wide-ranging the duty to make reasonable adjustments can be.  Here, the employee’s grievance had been rejected, she was not working with the alleged perpetrators and the Bank had said it would do its best to keep them apart in future.  However, this did not remove the need to also make reasonable adjustments: the Claimant was still fearful, this fear exacerbated her condition and caused her to suffer a substantial disadvantage.

Employers should also remember that the duty to identify appropriate reasonable adjustments lies with them and not with the employee.  Accordingly, employers must proactively consider whether committing to working arrangements (and to severance terms if such arrangements cannot continue) would amount to a reasonable adjustment in any particular case.

Hill v Lloyds Bank plc

If you would like to discuss any of the issues raised in this article please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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Employment Law News

 

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Revised COVID-19 health and safety guidelines for offices and contact centres published

Back in May 2020 the Government published COVID-19 secure guidelines setting out the health and safety measures to be adopted in different types of workplaces.  Following the Prime Minister’s announcement that, from 1 August 2020, employers will have more discretion about whether to return workers to the office, the guidelines governing offices and contact centres (Guidelines) have been updated.  In this briefing, we highlight the latest core objectives for office-based employers contained in the updated Guidelines published on 23 July 2020. 

Introduction

The detailed Guidelines are designed to provide a practical framework for employers to think about what they need to do to continue, or restart, office or contact centre operations.  Each business will need to translate the Guidelines into a set of specific actions to take.  These actions will, to some extent, turn on the nature, size and type of the business and how it is organised, operated, managed and regulated.

The Guidelines highlight that businesses should make every reasonable effort to ensure their employees can work safely and that staff are not obliged to work in an unsafe environment.  From 1 August 2020, this may be working from home, or within the workplace if the Guidelines are followed closely.

The Guidelines are non-statutory and supplement binding legal obligations on employers regarding health and safety and employment.  Where relevant, they should be considered alongside any additional guidance issued by the devolved administrations in Wales, Scotland and Northern Ireland.

Thinking about and managing risk

• Conduct an assessment of the risks posed by COVID-19 as soon as possible, having particular regard to whether any staff are especially vulnerable to COVID-19.
• Consult with employee or trade union health and safety representatives about workplace risks.
• Respond to advice or notices issued by the enforcing authorities within any prescribed timescale and follow all instructions from authorities in the event of new local restrictions.
• Share the results of the risk assessment with the workforce and consider publishing it on your website (all employers with over 50 employees should do this).
• Take action to reduce identified risks to the lowest reasonably practicable level by taking preventative measures in order of priority.
• Display an official notice in the workplace to demonstrate compliance with these guidelines.

Who should go to work?

• Ensure workplaces are safe, whilst also enabling working from home.
• Consult with employees to determine who can come into the workplace from 1 August 2020, taking into account the following factors:
  • use of public transport;
  • childcare responsibilities;
  • protected characteristics; and
  • other individual circumstances.
• Protect clinically vulnerable and clinically extremely vulnerable employees. In both cases, such employees should usually work from home. If a clinically vulnerable worker cannot work from home (in their role or an alternative role) then they should be offered the safest available role in the workplace.
• Treat everyone in the workplace equally and be mindful of the particular needs of different groups of workers (e.g. disabled or pregnant workers or those who live with a clinically extremely vulnerable person).
• Ensure that those who need to self-isolate do not attend work. This includes those who:
  • have COVID-19 symptoms;
  • live in a household with someone who has COVID-19 symptoms;
  • are in a “support bubble” with someone who has COVID-19 symptoms; and
  • are advised to self-isolate as part of the Government’s “test and trace” programme.
• Keep in touch with homeworkers and monitor their wellbeing.

Social distancing at work

• Maintain 2 metre social distancing wherever possible, including upon arrival and departure from work and ensure handwashing upon arrival at work (or provide access to hand sanitiser if not possible).
• Maintain 2 metre social distancing between individuals wherever possible when they are moving around the workplace, at their workstations and using common areas such as lifts and corridors.
• Avoid face-to-face meetings wherever possible and maintain social distancing in essential meetings.
• Where 2 metre social distancing is not viable, consider whether the activity can be redesigned to maintain either 2 metre distancing or 1 metre distancing with added “risk mitigation” steps such as:
  • increasing handwashing and surface cleaning;
  • keeping the activity time involved as short as possible;
  • using screens or barriers to separate people from each other;
  • using back-to-back or side-to-side working whenever possible; and/or
  • reducing the number of people each person has contact with by using fixed teams or partnering.
• Where social distancing guidelines cannot be followed (even through redesigning the activity), consider whether that activity needs to continue for the business to operate. If it does, then the business should “take all the mitigating actions possible” to reduce the risk to staff.
• Do not maintain social distancing if there is an emergency such as an accident or fire.

Managing customers, visitors and contractors

• Minimise the number of unnecessary visitors to the office.
• Make sure visitors understand what they need to do to maintain safety (e.g. by using signs in the premises and providing information by email and/or on your website).
• Business are permitted to host groups of more than 30 people either indoors or outdoors, providing a risk assessment has been conducted and steps are taken to reduce the risk of transmission.

Cleaning the workplace

• Before reopening make sure that any site that has been closed, or partially operated, is clean and ready to restart.
• Keep the workplace clean, especially surfaces which are touched by multiple people.
• Help everyone keep good hygiene throughout the working day (e.g. by encouraging frequent handwashing and providing hand sanitiser in multiple locations).
• Minimise the risk of transmission in changing rooms and showers (if any).
• Reduce transmission through contact with objects and/or vehicles entering the workplace from outside.

PPE and face coverings

• Do not encourage the precautionary use of PPE outside of clinical settings.
• If a risk assessment shows that PPE is required, then this must be provided free of charge to workers who need it.
• Wearing a simple face covering is optional and not required by law. However, if a worker chooses to wear one, provide advice on how to use them safely.

Workforce management

• Change the way work is organised to create distinct groups and reduce the number of contacts each worker has.
• Keep a temporary record of staff shift patterns for 21 days to assist the Government’s “test and trace” service.
• Provide guidance in the event of a COVID-19 outbreak in the workplace.
• Avoid unnecessary work travel and keep people safe if they need to travel between locations.
• Help workers making deliveries outside the workplace maintain social distancing and hygiene practices.
• Make sure all workers understand the COVID-19 related safety procedures through consultation with representatives, written communications and training prior to their return to work.
• Make sure all workers are kept up to date with how safety measures are being implemented or changed.

Inbound and outbound goods

• Maintain social distancing and avoid surface transmission when goods enter and leave the workplace.

BDBF is currently advising many employers on the challenges presented by the coronavirus.  If you or your business needs advice on any coronavirus-related matter please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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