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On 19 January 2022, the Prime Minister announced that the Plan B contingency measures introduced to tackle the Omicron variant would be lifted, including the working from home guidance.  In this briefing, we outline what is changing and what this means for employers.

Working from home

The latest round of working from home guidance came into force on 13 December 2021, with workers told that they should work from home if they could.   Exceptions were made for those who could not work from home (for example, where they needed to access equipment necessary for their role, or where their role had to be completed in person).  In addition, workers facing mental or physical health challenges, or those with particularly challenging home environments, were allowed to attend the workplace. 

This guidance was lifted with effect from 19 January 2022.  The Working Safely During Coronavirus Guidance for Offices (Office Guidance) confirms that workers no longer have to work from home.  The Guidance says that employers should now talk to staff to agree arrangements to return to the workplace, consulting with workers where appropriate.

The lifting of the guidance means that employers can now resume office working, on a hybrid or full-time basis.   However, employers are told they should “remain responsive to workers’ needs” and consult with them about health and safety measures in the workplace.  In particular, extra consideration should be given to those who are at higher risk of severe illness from COVID and to those facing mental and physical health difficulties.  This will include those who are clinically extremely vulnerable, disabled workers and pregnant workers.  Special guidance is in place for pregnant workers.

Other changes

The other changes brought about by the lifting of the Plan B restrictions are discussed below.

Face coverings

From 10 December 2021, face coverings were required by law in some public indoor settings, such as theatres and cinemas, but not in hospitality settings.  This was in addition to the existing requirement to wear them in shops, cinemas, premises that provide close contact services, transport hubs and on public transport.   However, they were not required in office settings.

These requirements were lifted on 27 January 2022.  However, people are advised to wear them in crowded and indoor spaces where they may come into contact with people they do not normally meet.  The Office Guidance encourages the wearing of face coverings in offices in congested areas (e.g. corridors / lifts etc). 

Changes to self-isolation rules

The rules on self-isolation have changed a number of times over recent months.  The current default rules are that people infected with COVID-19 must self-isolate for a period of 10 full days.  However, since 17 January 2022, it has been possible to be released from self-isolation on or after Day 6, provided the individual has had negative lateral flow tests on two consecutive days (e.g. negative results on Days 5 and 6 would mean release on Day 6).  You can read more about these rules here. 

The Government has said it intends to scrap self-isolation altogether after the current rules expire on 24 March 2022.  The legal rules are likely to be replaced with advice and guidance.  Without strict legal rules in place, employers will have to consider their approach to the issue and whether someone who has tested positive for COVID and is feeling well should be prevented from attending work (this is discussed further below). 

Isolation and sick pay

Currently, if an employee is legally required to self-isolate, they are entitled to be paid statutory sick pay (SSP), if eligible.  In addition, small and medium-sized businesses can recover the cost of SSP for COVID-related sickness absences occurring after 21 December 2021. 

When the self-isolation rules change as discussed above, it is likely that entitlement to SSP will also change.   There are two scenarios employers will need to deal with:

• Where employees have COVID, and are too unwell to attend work, they should remain entitled to SSP. If eligible, they should also be entitled to company sick pay.  In recent weeks, there have been reports of some employers (e.g. Ikea, Next, Ocado, Morrisons and Wessex Water) choosing to cut company sick pay for unvaccinated employees.  However, on closer inspection, the removal of company sick pay in these cases only applied to unvaccinated staff who had tested negative for COVID, but who had to self-isolate as a contact of a positive case. (Vaccinated people are excused from self-isolation in such circumstances).  It appears that company sick pay was still provided to unvaccinated staff who had tested positive for COVID. 
• Where employees have COVID and feel well enough to work, it is not clear whether they will remain entitled to SSP. If such employees are able to work from home, the solution would be to allow them to do so until they recover.  However, if they are unable to work from home, should you allow them to attend work or not?  If you prevent them from coming to work, how would that absence be treated?  If it is treated as a period of enforced sickness absence, how would it be paid?  And would it count towards sickness absence management thresholds? Yet, if it is not regarded as sickness absence, how should it be treated and paid?  The situation will become clearer over the coming months, but there will be some tricky issues for employers to grapple with. 

Covid status checks

From 15 December 2021, certain businesses and events (nightclubs and large venues) were required by law to check the COVID status of both workers and customers using the NHS COVID pass or a negative lateral flow test.   

From 27 January 2022, this requirement was lifted, although affected businesses may choose to continue with these measures on a voluntary basis.

BDBF is currently advising many employers and employees on the challenges presented by the coronavirus pandemic, including preparing for the return to the workplace.  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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In the case of X v Y, an Employment Tribunal decided that a claimant’s fear of catching COVID-19, and her belief that she needed to protect herself and her partner from catching it, was not a protected belief for the purposes of discrimination legislation. 

What happened in this case?

The first national lockdown was lifted in July 2020 and employers were permitted to return workers to the workplace.  In this case, the claimant took the decision not to return to the workplace on the grounds of health and safety connected to COVID.

In addition to concerns about health and safety in the workplace, the claimant said she was fearful of contracting the virus herself and passing it on to her vulnerable partner.  She explained her position to her employer and said she would not be returning to work.  Her employer stopped paying her wages.

The claimant brought various claims in the Employment Tribunal, including that the employer’s actions amounted to discrimination on the grounds of her protected belief, which was described as “a fear of catching COVID and a need to protect herself and others”.  

What was decided?

We know that workers are protected from discrimination in employment on the grounds of their religion or their religious or philosophical belief.   However, only philosophical beliefs which meet a certain standard are protected.  In order to be covered, a philosophical belief must:

1. be genuinely held;
2. be a belief and not a mere opinion or viewpoint based on the present state of information available;
3. concern a weighty and substantial aspect of human life and behaviour;
4. have a certain level of cogency, seriousness, cohesion and importance; and
5. be worthy of respect in a democratic society and not be incompatible with human dignity or conflict with the fundamental rights of others.

The Employment Tribunal decided that the first, fourth and fifth criteria were met, but the second and third were not.

As to the second criterion, it was decided that the claimant’s fear did not amount to a belief.  Rather, it was an instinctive reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat.  Further, a view that certain actions (e.g. attending a crowded place) would increase the risk of contracting COVID, was an opinion based on the state of information available at the time.

As to the third criterion, the Tribunal said that fears about the harm caused by COVID are weighty and substantial and not minor or trivial.  They also concern aspects of human life and behaviour.  The fact that such a fear could be descried as time-specific (i.e. for length of the pandemic) would not, in itself, mean this criterion could not be met.  However, in the claimant’s case, her fear concerned herself and her partner only – there was no wider concern for others.

Accordingly, the claimant’s discrimination complaint was not allowed to proceed.

What does this decision mean for employers?

As the working from home guidance is lifted once more, many employers will be looking to bring workers back to the workplace for some, or all, of the time.  Some workers may be fearful about the return.  This case shows that if negative consequences follow a refusal to return, a worker is unlikely to succeed in a philosophical belief discrimination claim.  Even if a claimant could demonstrate concern for a wider group of people (to satisfy the third criterion), it is difficult to see how they would satisfy the “belief not viewpoint or opinion” requirement.

However, employers should remember that employees in this situation may have other valid claims.  For example, if employees raise concerns about the safety of the workplace and suffers negative consequences they may be protected against detriment and dismissal (under special rules governing health and safety disclosures and/or whistleblowing laws).  In addition, if employees, or someone they live with, are vulnerable to COVID and qualify as disabled, they could argue that a requirement to return to work amounted to indirect disability discrimination.

For these reasons, employers faced with reluctant returners should always engage with employees to understand their concerns and make appropriate adjustments where needed.  It would also be sensible to share workplace risk assessments with staff to reassure them of the steps taken at work to protect their wellbeing.

X v Y

If you would like to discuss any issues arising out of this decision please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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In the case of Hope v British Medical Association the Employment Appeal Tribunal upheld a decision that it had been fair to dismiss an employee who raised multiple informal grievances and refused to progress them or attend a grievance hearing. 

What happened in this case?

The claimant was employed by the British Medical Association between June 2014 and May 2019. By February 2019, he had raised around seven grievances.  The claimant said he wished to discuss these grievances informally with his line manager. However, as the grievances related to more senior managers, his line manager did not have authority to resolve the issues raised.

The claimant refused to progress any of the grievances to a formal stage. Instead, he sought to reserve the right to do so and did not withdraw the grievances.  However, the employer treated the complaints as formal grievances and a grievance hearing was scheduled for 21 March 2019.  The claimant refused to attend despite being informed that attendance was a reasonable management instruction. He was also told that if he persisted with filing grievances this may be treated as a disciplinary issue.

Eventually, he was invited to attend a disciplinary hearing in April 2019 to respond to three allegations made against him. These were that:

• he had submitted numerous, frivolous grievances against two senior managers;
• he had failed to follow a reasonable management instruction to attend the grievance hearing; and
• there had been a fundamental breakdown of the working relationship between him and senior management.

The disciplinary chair concluded that each of the allegations was made out and the claimant was dismissed for gross misconduct.  He brought a claim for unfair dismissal. The Employment Tribunal found that the dismissal was fair.  The claimant appealed to the EAT.

What did the EAT decide?

The claimant argued that the Employment Tribunal had failed to consider whether the alleged misconduct was capable of amounting to gross misconduct in the contractual sense.  He suggested that the Tribunal should have considered whether his conduct amounted to either a “deliberate and wilful contradiction of the contractual terms” or “very considerable negligence”.  He also argued that the Tribunal’s decision was perverse, and his conduct did not justify dismissal.

The EAT held that the employer had not raised “contractual gross misconduct” as a reason for the dismissal and, on that basis, a contractual analysis was not required. The EAT disagreed with the claimant’s submission that whenever the label “gross misconduct” is used an analysis of whether the conduct amounts to either a wilful contradiction of the contract or gross negligence is always required.  In this case, the real question was the statutory one, namely, whether the employer had acted reasonably in treating the conduct as a sufficient reason to dismiss.

The EAT also concluded that the Tribunal’s decision was not perverse.  Importantly, the EAT noted that the proper purpose of grievance procedures is to resolve concerns, not to act as a repository for complaints to be left unresolved and resurrected at will.  It was unreasonable for the claimant to raise numerous complaints and expect to leave them unresolved.   His failure to attend the grievance hearing could also be regarded as wrongdoing in the circumstances.  Therefore, the Tribunal was entitled to conclude that the dismissal fell within the band of reasonable responses of a similarly sized employer.  The appeal was dismissed.

What does this mean for employers?

This decision confirms what many employers already knew, namely that a dismissal is fair if it complies with the requirements of the statute – there is no gloss requiring the employer always to show contractual gross misconduct or negligence.  However, this does not mean that dismissing an employee for misconduct is straightforward.  There are still the statutory questions of whether the misconduct is sufficient to justify dismissal and whether a fair dismissal procedure has been followed to address.  Failure to satisfy both elements puts an employer at risk of an unfair dismissal claim.

The decision also shows that the raising of multiple frivolous grievances, and a failure to progress them formally, may justify dismissal.  Employers may wish to update disciplinary rules to specify that this will be treated as gross misconduct.

Hope v British Medical Association

If you would like to discuss any issues arising out of this decision please contact James Hockley (jameshockley@bdbf.co.uk) or your usual BDBF contact.

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In Judd v Cabinet Office the Employment Appeal Tribunal upheld a decision that the withdrawal of an overseas secondment opportunity on health and safety grounds was not disability discrimination.  The appeal turned on whether the employer had acted disproportionately in withdrawing the opportunity, rather than allowing the employee to go with safeguards in place.

What happened in this case?

The claimant applied for an overseas secondment to Montenegro and was offered a placement in September 2018.   A few months earlier, she had been the victim of a crime, which had had a negative impact on her health and wellbeing. In fact, she had had two significant health episodes which had resulted in her attending hospital on an emergency basis.

The claimant was required to undergo medical clearance. This was undertaken by Healix, a contractor which provided risk assessments for proposed transfers and secondments abroad. In October 2018, Healix advised the employer that the claimant was “high risk” and should not travel to Montenegro for the time being.

In November 2018, the claimant was then assessed by the employer’s occupational health service. She did not disclose her complete medical history, including the two emergency trips to hospital. Based on incomplete information, Occupational Health assessed her as fit to travel but made certain recommendations, such as registering with a local doctor who could liaise with her GP, taking out appropriate medical insurance, and producing a wellbeing and contingency plan for repatriation in the event of an emergency.  Healix disagreed with this assessment and highlighted that these measures were undeliverable.  As a result, the employer withdrew the secondment offer.

In January 2019, Occupational Health issued another report following two further assessments and having reviewed a letter from the claimant’s consultant which referred to one of the two episodes that had resulted in emergency hospital admission.  The report said the claimant was fit to undertake the secondment, subject to the implementation of its proposals

The employer refused to reinstate the secondment offer and the claimant brought a claim for disability discrimination.

What did the EAT decide?

It was not disputed that the claimant had a disability, nor that the withdrawal of the secondment opportunity constituted unfavourable treatment because of something arising in consequence of her disability.  The dispute centred on whether that unfavourable treatment could be justified.  If it could, the claim would fail.  It was agreed that the employer’s aim was to protect the health, safety and wellbeing of its employees when working abroad. The key question was whether it had acted proportionately.  In other words, could it have achieved the health and safety aim by less discriminatory means?

The Employment Tribunal had found that Healix had classified the claimant as “high risk” which was highly unusual and, indeed, a first for the employer.  The Tribunal accepted that if the same medical emergency happened to the claimant in Montenegro as had happened in the UK, she would not have had the same joined-up services available.  The Tribunal accepted that the assessment was not a permanent restriction but one that could be reviewed after about a year and it was likely that more secondment opportunities would arise.  The Tribunal concluded that there was no alternative action that would have overcome the obstacles and so it dismissed the claim.  It also dismissed the claim that there had been a failure to make reasonable adjustments.

At appeal, the claimant sought to argue that the Tribunal had failed to consider other factors relevant to proportionality when dismissing her case. However, the EAT went on to find that the Tribunal’s findings were not perverse and there was no legal error in its approach. It dismissed her appeal.

What does this mean for employers?

This case does not mean that disabled employees can be excluded from secondment opportunities, even those which carry risk to them.  There may be reasonable steps that an employer can take to mitigate the risk.  It will depend on the particular circumstances of the case.  Here, there was nothing the employer could reasonably do.

What this case does show is that employers must be careful when making offers to employees in situations where risk assessments are required.  Offers should be made conditional upon satisfactory clearance being obtained.  This should be spelt out in any secondment policy and in the secondment offer letter itself.

Even where an employer genuinely believes it is acting in an employee’s best interests, the withdrawal of an opportunity is likely to cause bad feeling.  Having clear and open lines of communication may help to manage expectations and defuse a difficult situation which might otherwise arise.

Judd v Cabinet Office

If you would like to discuss any issues arising out of this decision please contact James Hockley (jameshockley@bdbf.co.uk) or your usual BDBF contact.

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NEGOTIATING SENIOR EXECUTIVE CONTRACTS – PITFALLS AND TIPS

With bonus season behind us and the Great Resignation in full swing, many people are beginning to rethink their career or plan their next job move. Clients often ask us: “how do I negotiate my contract?” or “can I negotiate my contract?”. At BDBF, as well as regularly negotiating exits and fighting cases, we are expert in providing bespoke and tailored advice to senior executives at the point of entering new employment contracts. BDBF Partner, Paula Chan and Senior Associate, Blair Wassman offer some guidance below on negotiating your contract.

The first rule of negotiation: negotiate

Many believe employers will not deviate from their standard form contract, and as a result they simply accept the terms on offer. This can be the case, but it does not reflect our experience across the board. Many employers are receptive to proposals and we often successfully negotiate more favourable terms for executives and professionals joining small and large organisations, including listed companies. We commonly do this by assisting in the background rather than dealing with your new employer directly.

You are in the best position to negotiate beneficial terms before your employment commences. Securing talent at a senior level is rarely an easy task for employers and they are likely to be as eager as you to secure your start. Your negotiating leverage is therefore likely better than you think.

Do not assume restrictive covenants are unenforceable 

Restrictive covenants can limit what an employee can do after employment ends. They can prevent an employee from working for a competitor, from soliciting or dealing with clients or potential clients or from poaching or moving with key employees. Many individuals do not pay attention to these restrictions until they wish to move on, mistakenly believing that covenants, particularly non-competes are unenforceable. The drafting and scope of the restrictions may mean they are unenforceable but, where drafted properly, they can prevent an employee working in their desired role on termination of employment.

You should consider with care the duration and scope of any proposed restrictions. They may be too widely drafted and go beyond what is required to protect an employer’s legitimate business interests. Consider how they interact with any notice and garden leave clauses. Often garden leave clauses provide that the duration of restrictive covenants will be reduced by any period spent on garden leave.

Check whether you are restriction free

You may be subject to onerous restrictions in your last employment contract, as well obligations to notify your existing employer about offers of employment you have received or to provide a prospective employer with a copy of your restrictions.

Check whether your new employment contract states that your employment is conditional on you not being bound by any restrictions preventing you from taking up the role. This means that if you are subject to restrictions, your new employer may be able to withdraw their offer or terminate your employment immediately. This can be particularly disastrous for employees who lose deferred compensation on the giving or expiry of notice in order to take up a new role, especially if they are relying on a guaranteed or sign on bonus from their new employer to cover that loss.

If you are concerned about the impact of restrictions on your existing or new employment relationship , it is important to seek legal advice at an early stage before you resign or accept an offer of employment, especially if you are planning on working for a competitor.

If you breach an existing restriction, you (and your new employer) may be subject to costly and time-consuming legal proceedings. You could be ordered by a Court not to commence or to cease employment with your new employer or to make a payment on account of profits to your former employer. Even if legal proceedings do not materialise, it is our experience that a letter from a former employer threatening legal action can be incredibly disruptive to the stability and success of a new employment relationship.

Read the small print 

It is important to read the whole contract, as some employer-friendly provisions may be hidden in places you may not expect.

For example, consider whether there is an option for the employer to make a payment in lieu of notice. Does it include benefits and bonus? Is it subject to certain conditions, i.e. does it allow the employer to make payments in instalments, or is there a requirement for you to mitigate your loss? Check whether your employer can make changes to your benefits or place of work without your consent. This has never been more important given the move towards greater flexibility and more home working with some senior executives moving out of the City whilst retaining City roles.  If you have been led to believe that your role will allow for homeworking does the contract reflect that?

Pay attention to probationary periods

Check whether you will be subject to a probationary period, and whether the employer has the option to unilaterally extend this period. Many probationary clauses will also allow the employer to terminate your employment with very little notice, and some contractual benefits may not commence until you have completed your probation. As unfair dismissal rights only arise once you have two years’ service, the contractual terms surrounding probation and corresponding notice period are crucial.

Do not proceed without a clear understanding of variable remuneration

You may happily be entitled to receive a bonus, incentive or other form of deferred compensation. However, such benefits often come with strings attached. They may be subject to stringent conditions, malus and clawback and plan documents external to your employment contract.

It is essential that you understand exactly what you will be entitled to, how awards will be made, and any conditions attached to incentives. You should ask for copies of the plan documents so that you understand vesting periods, the nature of your employer’s discretion, additional restrictive covenants (which may go beyond those in your contract), and the leaver provisions. Will you lose any unvested awards or bonuses if your employment ends before the awards vest or bonuses are paid?

Further, if you will lose out on variable remuneration as a result of having to leave your previous job, you may want to consider whether your new employer will buy you out and if so, at a guaranteed level.

Avoid relying on promises not contained in the contract 

All elements of the deal should be expressly incorporated into the contract. We often advise against relying on verbal or email assurances as employment contracts may contain entire agreement clauses, which state that the contract records the entire agreement between the parties and replaces any previous agreements or representations.

Look out for “agreements to agree”. These may include a promise of equity or cash bonus ‘to be determined’ on joining. All terms should be clear and should avoid giving the employer the luxury of being able to default on promises at a later stage.

Pick your battles

This is a new relationship. We recommend that clients pick their battles and focus on the most important elements of the deal when negotiating to get things off to a good start and to maximise the prospects of securing what matters most to them. We can provide you with strategic advice on which employment provisions should receive focus and how best to approach discussions.

If you would like to know more, or you need advice regarding your contractual terms, please contact Paula Chan (paulachan@bdbf.co.uk), Blair Wassman (blairwassman@bdbf.co.uk) or your usual BDBF contact.

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