Top 5 recent workplace developments – January 2022

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

1. Flexible working requests

The Employment Appeal Tribunal has ruled that an employee’s agreement to attend a late appeal does not of itself extend the three month decision period.

Under the statutory scheme for making flexible working requests:

• Employers must notify employees of the outcome of their flexible working request, including any appeal, within the ‘decision period’ which is three months from receipt of their request
• The employer and employee may agree to an extension of the decision period

On 11 February 2019, Mr Walsh made a flexible working request. This was rejected by Network Rail and he subsequently appealed. The decision period ended on 10 May 2019, but correspondence regarding the appeal continued and on 24 June 2019, Network Rail confirmed that his appeal would be heard on 1 July 2019. Mr Walsh presented his tribunal claim on 25 June 2019. On 1 July 2019, Network Rail rejected his appeal.

One of the grounds of Mr Walsh’s claim was that Network Rail hadn’t concluded the process within the decision period. A tribunal ruled that an agreement to hold the appeal meeting on 1 July 2019 necessarily meant that there was an agreement to extend the decision period.

However, the Employment Appeal Tribunal disagreed. It concluded that there is nothing implicit in an employee agreeing to attend an appeal meeting outside the decision period - and the employee must agree specifically to extending the decision period.

Practical point

In the last year, there has been a significant increase in the number of tribunal decisions relating to flexible working requests.

Employers should diarise the decision period in which the decision, including any appeal, must be notified to the employee and, if they want to extend the decision period, they must seek the employee’s explicit agreement to this in writing - to avoid a potential dispute subsequently.

For more on flexible working see the Acas Code of Practice and Acas advice generally.  Also separately in December 2021, new practical guidance on hybrid working was published by the CIPD.  This  supplements the Acas advice on working from home and hybrid  working.

Mr_J_Walsh_v_Network_Rail_Infrastructure_Ltd

2. COVID-19: Workplace legislation and government guidance update

The working from home guidance in England has been withdrawn from 19 January 2022 and in Scotland, employees will begin a phased return to the workplace from 31 January 2022. In addition, changes have been made to the Statutory Sick Pay rules for smaller employers.

In addition to a return to work, in England:

• The compulsory use of the NHS COVID pass ends on 27 January but venues may use them if they wish
• The mandatory wearing of face coverings ends on 27 January but the government suggests people continue to wear a face covering in crowded and enclosed spaces where they may come into contact with other people they do not normally meet
• Self-isolation rules for people who test positive with Covid-19 remain in place for now but there “will soon be a time” when self-isolation will not be required
• From 11 February eligible fully vaccinated travellers entering the UK will no longer need to take a post-arrival lateral flow test; for those who do not qualify as fully vaccinated, they will only need proof of a negative Covid test taken 2 days before travel but must also take a post-arrival PCR test. Passenger locator forms must still be completed by all arriving passengers; fully vaccinated continues to mean 2 doses of an approved vaccination, or 1 dose of the Janssen vaccine; under 18s continue to be treated as eligible fully vaccinated passengers.

In Scotland, guidance urging people to work from home wherever possible is to be relaxed in favour of a "hybrid" system of office and remote working. Employers have been asked to phase workers back into spending some time in the workplace from 31 January.

Separately, the Statutory Sick Pay Rebate scheme for SMEs has been reintroduced.  whereby employers with fewer than 250 employees can claim up to two weeks’ Statutory Sick Pay (SSP) per employee for Covid-related sickness absences.   The scheme applies to any days of incapacity after 21 December 2021. The Scheme will end on 24 March 2022, which is the last date for claims to be submitted to HMRC.

Practical point

Employers should follow the Working safely during coronavirus guidance and Coronavirus: safer businesses and workplaces for England and Scotland respectively, and continue to follow statutory health and safety requirements, conduct a risk assessment and take reasonable steps to manage risks in their workplace.

For further details, see our update: COVID-19: Working from home guidance lifted in England with immediate effect.

3. COVID-19: Recent tribunal decisions

In two recent decisions, an employment tribunal has ruled that a fear of Covid isn’t a protected belief under discrimination law, and another tribunal that an employee was fairly dismissed for breach of government lockdown guidelines.

Employees who are discriminated against because of a particular philosophical belief are protected under discrimination law if they can demonstrate that their belief is genuinely held, isn't an opinion or viewpoint, relates to a weighty and substantial aspect of human life and behaviour, has a level of cogency, seriousness, cohesion and importance, and is worthy of respect in a democratic society.

In X v Y, a tribunal had to decide, as a preliminary issue, whether Ms X was discriminated against on the grounds of her beliefs about Covid, when she refused to return to the workplace on 31 July 2020 because she feared that she would get Covid and give it to her husband who was at high risk of being seriously unwell.

While the tribunal accepted that Ms X genuinely believed that she might catch Covid and needed to take steps to protect herself and others, it said that her fear wasn’t a philosophical belief, but a “reaction to a threat of physical harm”. In addition, Ms X’s concerns were about protecting herself and her partner, and not wide enough to meet the legal criterion. Her claim therefore failed.

In Taylor v Borough Care Ltd, Ms Taylor, a Care Home Manager, had responsibility for safety of residents and staff. On 28 November 2020, she attended a colleague’s birthday party at her colleague’s home, with other more junior members of staff whom she managed. A video shared on social media showed the staff dancing and in close contact with each other, with no social distancing or PPE, in breach of government Covid lockdown guidelines in place at the time.

The tribunal concluded that Ms Taylor was fairly dismissed. The party was a breach of government guidelines and the employer's infection control policies. The tribunal ruled that the employer had acted reasonably in dismissing Ms Taylor, given that her actions had put vulnerable elderly people at risk.

Practical point

Although the issue before the tribunal in X v Y was whether a fear of catching Covid is a protected belief, employers will more often be faced with detriment and dismissal claims where employees allege their refusal to attend work was due to a reasonable belief they are in serious and imminent danger. In these cases, in addition to establishing risk, employees must show that the risk is serious and imminent despite any steps that can be taken to reduce it. It is possible that employers will see an increase in this type of claim as restrictions ease.

4. Disability - ability to carry out normal day-to-day activities

The Employment Appeal Tribunal has ruled that the question of whether an employee's impairments had an adverse effect on their ability to carry out normal day-to-day activities was an objective one and could not be determined by the individual’s subjective beliefs about how to manage their condition.

In a discrimination claim, for disability to be established there must be a connection between a physical or mental impairment and a substantial adverse effect on the person’s ability to carry out normal day-to-day activities.

Ms Primaz, who worked at McDonald’s, brought a disability discrimination claim in 2019. She alleged that she was disabled through epilepsy, vitiligo, dermatitis, organic psychosis and cancer, having had an astrocytic tumour which was removed by surgery in 2008. Believing that they would adversely trigger her epilepsy and vitiligo, she avoided coffee, alcohol, cosmetics, cleaning products, sunlight and all medications (including those prescribed by her doctors to manage her conditions).

The EAT stated that the question of whether an employee's impairments had an adverse effect on their ability to carry out normal day-to-day activities was an objective one and couldn’t be determined by their subjective beliefs about how to manage their conditions. In this case, the employee only relied on physical (not mental) impairments. Her coping mechanisms weren’t relevant to this, even though her belief that they were necessary was strongly held. The key issue is the impact the employee’s actual conditions have on their day-to-day activities, leaving aside the impact of any avoidance behaviours. The question of whether the employee has a disability will be referred to a fresh tribunal.

Practical point

When considering whether an employee has a disability, their coping mechanisms to manage a physical condition won’t be relevant to their ability to carry out day-to-day activities. Instead, it is whether objectively the employee’s actual condition adversely impacts on their ability to carry out day-to-day activities. However, if medical evidence supports adopting specific behaviours in order to cope with a particular condition (such as avoidance behaviours) and the employee follows medical advice, this may be relevant to whether their condition has a substantial adverse effect on their ability to carry out day-to-day activities.

Primaz v Carl Room Restaurants Ltd (t/a McDonald's Restaurants Ltd)

5. Disability – workforce reporting

The government has launched a consultation on disability workforce reporting.

The consultation on disability workforce reporting, launched on 16 December 2021, was promised as part of the National Disability Strategy published in July 2021.

Given that evidence around the use of the existing voluntary reporting framework is limited, the consultation aims to explore disability workforce reporting for large employers with 250 or more employees. It covers current practice and how workforce reporting on disability might be stepped up, including both voluntary and mandatory reporting practices.

In relation to potential mandatory reporting, the focus of the consultation is on the publication of the proportion of employees in a workforce who identify as disabled and whether a standardised approach to collecting disability workforce data should be adopted - and if so, how this could be achieved. The consultation will also consider if there are alternative approaches that could also be taken to enhance transparency and increase inclusive practices.

Practical point

The focus of the consultation appears to be on recording information about disabled people in the workforce, rather than the pay received by disabled people.

The consultation closes on 25 March 2022 and a response is due to be published by 17 June 2022.