Top 5 recent workplace developments – September 2021

This is our selection of 5 recent developments which we consider will impact on HR practice.

1. COVID-19: UK government’s Autumn and Winter Plan 2021

The UK government has published its plans for tackling COVID-19 in England during this autumn and winter. 

The government’s Plan A, as outlined in the COVID-19 Response: Autumn and Winter Plan 2021 relies on building the country’s defences through vaccines and other pharmaceutical interventions; continuing to use “Test Trace and Isolate”; protecting the NHS; giving clear guidance to people and businesses on how to protect themselves; and helping vaccinate the world and manage risks at the border. 

As people begin to return to the workplace, businesses are advised to follow the government’s Working Safely during Coronavirus guidance to reduce risk of transmission. This guidance should be considered when preparing health and safety risk assessments and putting in place suitable mitigations. In particular, the plan:

• Reminds employers that they must not ask or allow employees to come to work if they are required to self-isolate.
• Encourages employers to: 
  • Ask employees to stay at home if they are feeling unwell
  • Ensure there is an adequate supply of fresh air to indoor spaces (including taking steps to improve airflow in poorly ventilated areas)
  • Provide hand sanitiser and clean surfaces which people touch regularly
  • Display an NHS QR code poster for customers to check in using the NHS COVID-19 app
  • Consider using the NHS COVID Pass.

The government’s Autumn and Winter Plan includes contingency plans ("Plan B") in the event that measures are needed to prevent "unsustainable pressure" on the National Health Service.

The measures that may be introduced under Plan B include:

• Introducing mandatory vaccine-only COVID-status certification in certain settings
• Making it mandatory to wear face coverings in certain settings
• Asking people to work from home if they can, for a limited period

However, the government recognises that homeworking causes disruption and has significant costs implications for businesses and the economy, so a final decision on home working will be made in light of the COVID data at the time.

Practical point

It is possible that workers who can work from home will be asked to do so for a limited period over the autumn/winter. The government is providing details now of measures that may need to be introduced in the autumn and winter, so that businesses know what to expect and can prepare for this.

2. Immigration: Right to work checks

Temporary changes to the rules governing the employer’s duty to check and document a worker’s right to work in the UK, which have been in force since 20 March 2021 due to the pandemic, will remain in force until 5 April 2022. 

Employers have a statutory duty to prevent illegal working and must carry out certain checks to ensure employees have the right to live and work in the UK.  Temporary changes to right to work checks, in place since 30 March 2020, have facilitated right to work checks being carried out by prospective employees sending scanned copies of compliant ID documents via email, followed by a confirmatory ID video call.

As in pre-Covid times, employers also have the right where eligible and with the employee’s consent, to conduct right to work checks online using the Home Office portal.

The temporary changes were due to end on 31 August 2021, requiring employers to reinstate previous requirements to check and document an employee’s right to work. However, the UK Home Office announced on 26 August 2021 that the temporary changes to the right to work checks will remain in place until 5 April 2022.

Practical point

Employers will not need to reinstate previous requirements to check and document an employee’s right to work before 6 April 2022.

Given that the Home Office acknowledged that businesses are happy with the adjusted process, there may be scope for a further extension of the temporary rules if the new digital solution is not available by 5 April 2022.

3. GDPR: Data subject access requests

The UK Information Commissioner's Office (ICO) has issued an enforcement notice to respond to a data subject access request (DSAR) from an individual who had also brought an employment tribunal claim.

In response to a DSAR from an individual who had also brought an employment tribunal claim, First Choice Selection Services Ltd, a Northern Ireland employment agency, informed the individual that they would only release the information requested when they were instructed to do so by the tribunal.

The individual then made a complaint to the ICO which found that, as well as failing to comply with the DSAR, First Choice was in breach of the accountability principle - demonstrating that their data processing activities comply with the data protection principles.

The ICO’s enforcement notice dated 2 March 2021 required First Choice by 1 April 2021 to properly respond to the DSAR and to make changes to their internal systems, procedures and policies to ensure that they identify and respond to future DSARs. Failure to comply with an enforcement notice could result in a large fine of up to £17,500,000 or 4% of global turnover (whichever is the higher) although there is no need to comply with the notice pending determination of any appeal.

Practical point

DSARs are frequently made in the context of a tribunal claim and are sometimes used by claimants as leverage in a dispute to achieve a settlement. The person making a DSAR is not required to explain the purpose of their request and their motivation for making it could be relevant when considering whether or not it is excessive or disproportionate.  Regardless of an employer’s suspicions about the claimant’s motive, the ICO’s notice serves as a reminder for employers that they must have processes in place to ensure they recognise and respond to DSARs, and that if a DSAR is made at the same time as a tribunal claim, the employer must comply in the normal way.  Disclosure as part of a tribunal claim attracts different rules and procedure but they do not prevent claimants also making a DSAR under the data protection regime.

First Choice Selection Services Limited | ICO

4. Unfair dismissal: Capability

The UK Employment Appeal Tribunal has ruled in a poor performance case that it was fair for an employer to move straight to a final written warning.

In January 2016 TWI Ltd started an informal performance management process and set objectives for Mr Fallahi, Technology Senior Project Leader, with targets to be measured in June and October 2016 and January 2017. However, by May 2016, his manager was concerned at the lack of progress being made and invited Mr Fallahi to a capability hearing. Mr Fallahi was given a final written warning with a three-month review period but after two months, his manager considered that insufficient progress had been made. Mr Fallahi went on sick leave at the end of July 2016 and, following unsuccessful settlement negotiations, was dismissed for poor performance in November 2016.

The EAT upheld the tribunal's decision that Mr Fallahi was fairly dismissed on the basis that it could not look behind the final written warning unless it was "manifestly inappropriate". The tribunal was entitled to find that TWI had acted fairly in applying its internal procedures, in spite of shortening the set review periods, that the final warning was not manifestly inappropriate and that overall the dismissal was fair.

The Tribunal and EAT noted that there was a history of concerns about Mr Fallahi’s performance and informal steps had been taken to manage this before a warning was issued. So the fact that TWI went straight to a final warning was not inappropriate in these circumstances – the capability procedure allowed for it and Mr Fallahi had not come close to meeting the objectives and targets set as part of the informal process.

Practical point

In capability cases, tribunals will look at the circumstances of the dismissal as a whole and consider whether the reasons to dismiss the employee were reasonable - and should only re-evaluate the merits of a final warning if it was “manifestly inappropriate”.

This case is a helpful reminder that employers must ensure a fair dismissal process is followed. With poor performance, this will normally involve giving more than one warning before dismissal and in most cases it will only be reasonable to move straight to a final written warning where it is sufficiently serious.

Fallahi v TWI Limited

5. Discrimination: Disability associative discrimination

An employment tribunal has ruled that an employee, who was not disabled but was the carer for her disabled mother and employed on a homeworker contract, suffered indirect associative discrimination when her request to continue working from home was denied.

Ms Follows, a senior lending manager (SLM) at Nationwide Building Society, was employed under a homeworking contract. Her place of work was her home address and she was required to attend the office for meetings - she usually attended 2-3 days a week. Nationwide knew she had to work from home because she was the primary carer for her mother who was disabled under the Equality Act. Nationwide decided to reduce the number of SLMs and began a redundancy exercise. It also decided all SLMs must be based in the office because they needed "accessible and visible managers" to provide "oversight, supervision, advice and guidance". In 2017, Nationwide informed the homeworkers, including Ms Follows, that their roles were at risk of redundancy because of the requirement to attend the office. At the end of the consultation process, Nationwide dismissed her on the grounds of redundancy.

Ms Follows brought various claims, including for indirect associative disability discrimination - alleging that:

• Nationwide had applied a provision that SLMs could no longer work from home
• Applying that provision put carers of disabled people at a particular disadvantage because they are less likely to be able to be office based than non-carers
• As the primary carer of her disabled mother, the provision put her at that disadvantage
• The provision was not justified.

The employment tribunal concluded that the requirement to attend the office full-time put Ms Follows at a substantial disadvantage because of her association with her mother's disability as her principal carer. It held that Nationwide had not taken such steps as were reasonable to avoid the disadvantage because they had not discussed alternatives, had not provided evidence on which the decision was based, and had ignored Ms Follows' view that the role could continue with her existing arrangements – and that Nationwide could not justify the disadvantage suffered by Ms Follows.

The tribunal also found that the provision amounted to indirect sex discrimination as more women than men are primary carers for elderly relatives.

Practical point

This decision shows that a non-disabled employee may bring a claim for indirect disability discrimination if they suffer a particular disadvantage because of their association with a disabled person – that said, this is a first-instance decision and is not binding on other employment tribunals.

Where employers are requiring their employees to return to the office after home working during the pandemic, they should consider the need for this requirement carefully, and take account of the individual’s own circumstances and why they may be reluctant to return to the workplace.

Follows v Nationwide Building Society