Employment Newsletter - Issue 12

23rd June 2021

Employment Newsletter - Issue 12

In this edition, we will be covering:

  • Health and Safety Detriment Protection Extended to Workers
  • Mandatory Vaccinations for Care Home Workers
  • Hot Topic: Lockdown Inspired Reform to Shared Parental Leave
  • Case Law Update: Unfair Dismissal in a Pandemic
  • Update on Adjusted Right to Work Checks

Legal Update #1 - Health and Safety Detriment Protection Extended to Workers

For a number of years, employees have had the right not to be subject to any detriment of any kind by their employer on the basis that they have taken or proposed to take steps (including leaving the workplace) to protect themselves or others from circumstances which they reasonably believed posed serious and imminent danger.  From 31 May 2021, this protection now extends to both workers and employees.

In the context of the Covid-19 pandemic, this protection has enabled employees who genuinely and reasonably have concerns that they or their families will be faced with a serious and imminent danger of being exposed to the virus at work to take steps to protect their families (see case law update below).  However, the extension to workers will only apply to protect them from detrimental acts (or failures to act) that took place on or after 31 May 2021.

Legal Update #2 - Mandatory Vaccinations for Care Home Workers

Following consultation, the government have confirmed that Covid-19 vaccinations will become mandatory for all staff working in care homes registered with the Care Quality Commission.  The new requirement will cover all those who enter care homes regardless of their role including volunteers, health professionals, hairdressers, tradespeople and CQC inspectors.  However, exemptions will apply for residents and their friends and family, those assisting with an emergency or carrying out urgent maintenance work, those only working in the external grounds of care home, and those who are exempt on medical grounds.  As yet, a date for the introduction of the new regulations has not yet been announced however it has been confirmed that there will be a 16-week grace period following their introduction.  Further guidance is also expected to provide examples of the types of evidence that will be acceptable to show vaccination status.

The Health Secretary, Matt Hancock, has confirmed that the Department of Health and Social Care would consult on whether the vaccination requirement should be extended to NHS workers and that there is no intention to extend the policy outside of a health and care setting.

Legal Update #3 - Hot Topic: Lockdown Inspired Reform to Shared Parental Leave

Charities that promote the rights of parents, including the Fatherhood Institute and Maternity Action, are campaigning for greater flexibility for parents and, in particular, reform to Shared Parental Leave to allow fathers to take a more active role in parenting.

The Fatherhood Institute, in their report “Lockdown Fathers” funded by the Nuffield Foundation, reported that during the first Covid lockdown 78% of fathers in two parent households spent more time with their children and 65% reported that they had a better relationship with their children following the spring lockdown.  Those fathers who had spent more time with their children were also more likely to report improvements to their mental wellbeing.  Following this report, the Fatherhood Institute have launched a campaign, “Time with Dad”, with the aim of developing new and innovative solutions to maintain these “lockdown positives”.

Maternity Action, the maternity rights charity, have recently published their proposals for reform to Shared Parental Leave arguing that the current scheme is not fit for purpose as it too complex and difficult for employers and new families to understand and administer.  Under Maternity Action’s proposals, women who give birth would be entitled to 6 months’ maternity leave and their partners two weeks leave immediately following the birth.  Both parents would then also be entitled to a non-transferable (‘use it or lose it’) period of 6 months leave to be taken flexibly in the first 18 months after the birth.  Maternity Action also recommend that pay for these periods of leave is significantly increased so that it is, as a minimum, in line with the national minimum wage.

Whilst changes to Shared Parental Leave on this scale are, perhaps unlikely, there does appear to be an increasing focus on the benefits of fathers’ taking more parental leave and growing calls for them to be provided with more support to do so and employers may want to consider how their family friendly policies coincide with employee expectations.  For example, John Lewis have announced a major reform of their policies from Autumn 2021 which include the right for all parents who have worked for the company for a year to take up to 26 weeks’ paid leave on becoming a parent regardless of how they did so.

To encourage more parents to use the existing scheme, the government have launched an online planning tool for Shared Parental Leave that prospective parents and employers may find useful.  This tool can be found on the government website:

legal Update #4 - Case Law Update: Unfair Dismissal in a Pandemic

The Employment Tribunals have recently published the decision in three cases that reveal some of the complexity of covid-19 related issues in the context of unfair dismissal claims.

In the first case, Khatun v Winn Solicitors Ltd ET/2501492/2020, the employment tribunal held that refusal to accept a proposed variation to a contract of employment (in this case to give the employer the right to furlough employees or to unilaterally reduce their hours and pay by 20%) could fall within the statutory fair reasons for dismissal as “some other substantial reason”.  The employment tribunal also recognised that, given the downturn of work due to the pandemic, the firm had a “sound, good business reason” for the changes.  However, the tribunal held that the firm had not followed a fair process in dismissing Ms Khatun.  The tribunal was sympathetic to the employer’s argument that they needed to respond quickly to a rapidly changing situation (in March 2020).  However, the speed with which they had moved to dismissal (only 48 hours after the variation had been proposed), the lack of consultation or exploration of alternatives to either the variation or dismissal and the failure to follow any disciplinary or grievance procedure or to allow Ms Khatun to appeal the decision ultimately meant that the dismissal was unfair.  Employers should be aware that whilst procedures may need to be adapted to respond to challenging circumstances, this does not remove the requirement that the process be fair.

In the second case, Gibson v Lothian Leisure ET/4105009/2020, a Scottish Employment Tribunal held that an employee had been unfairly dismissed (or unfairly selected for redundancy) in response to questions raised by the employee about a lack of PPE or other covid-secure precautions motivated by his concerns about transmitting the virus to his extremely vulnerable father whom he lived with.  The tribunal held that the combination of the growing prevalence of the covid-19 virus and the potential for significant harm to his father meant that the employee did reasonably believe that there were circumstances of serious and imminent danger and that asking questions about PPE etc. before his return to work in April 2020 was an appropriate step to protect his father in these circumstances.  Therefore, the employer’s decision to dismiss him in response was automatically unfair (particularly relevant here as the employee did not have the two years’ continuous service required to bring an ordinary unfair dismissal claim).

In the third case, Accattatis v Fortuna Group (London) Ltd 3307587/2020, the tribunal similarly found that an employee’s actions in the early stages of the pandemic were motivated by a reasonable belief that they were in circumstances of serious and imminent danger.  However, in this case the Employment Tribunal did not consider the steps the employee took, refusing to attend the office and repeatedly requesting he be put on furlough,  to be an appropriate step to protect himself.  His employer had allowed any staff that felt uncomfortable commuting and attending the office to take either paid or unpaid leave but did not feel that use of the furlough scheme was appropriate (they provided PPE and demand was, therefore, unusually high) nor did they consider Mr Accattatis’ role could be performed from home as he was responsible for unpacking deliveries and used software only available in the office.  The tribunal appear to have been sympathetic to Mr Accattatis’ concerns that working in the office put him in danger, however, found that in the circumstances his insistence that he should work from home or be furloughed was not appropriate, accepting that he could not work from home and that his employer had offered him a way of staying at home (albeit one where he would receive less pay).

In both cases, the Employment Tribunal seemed happy to accept that in the context of a pandemic employees may reasonably believe that there is a serious and imminent danger and employers should not treat them less favourably if they take steps to protect themselves or others from that danger provided that those steps are appropriate.

Legal Update #5 - Update on Adjusted Right to Work Checks

In our May newsletter we reported that employers would be required to return to checking original documents in person when performing ‘right to work’ checks from the 21 June 2021.  However, following the delay to the proposed ending of step-three restrictions, the Home Office have confirmed that the adjusted rules allowing remote checks will now remain in place until 31 August 2021.


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