Failure to wear a mask was a fair reason to dismiss
A delivery driver fired for refusing to wear a face mask inside his cab while delivering to a supplier during the UK’s first Covid lockdown was not unfairly dismissed, a tribunal has found.
An employment tribunal has ruled that Kent Foods Limited had lost confidence in delivery driver Deimantas Kubilius’ future conduct after his refusal to wear a face mask led him to be banned from a supplier’s site.
The landmark tribunal held that while Kubilius was not at the time aware of his requirement to wear a mask inside his cab, his “continued insistence” that he had done nothing wrong and “lack of remorse” made the employer’s decision to dismiss a fair and reasonable response. The judge added that it was “not feasible for the claimant to continue in his contractual role” because of the ban.
Prior to the incident involving Kubilius, a client of Kent Foods had taken the decision to make wearing a face mask mandatory to reduce the risk of coronavirus infection. All visitors were issued with face masks at the gatehouse.
The client contacted Kent Foods to inform them that a a driver had been banned after being “asked repeatedly to put his mask on” and refusing to comply. Kubilius responded to the allegation, stating that “he did “nothing wrong” and that wearing face masks was “not the law”.
Kent Foods made the decision that this this materially affected the driver’s ability to do the job for which he was employed. Kubilius attended a disciplinary meeting where he repeated that the request for him to wear a mask had been “wrong” as he was in his own environment, and that government guidelines stated wearing a mask was optional.
It was decided that Kubilius’ deliberate refusal to comply with a health and safety instruction was a “serious breach” and his lack of remorse in his disciplinary hearing was an important factor. He was summarily dismissed.
The Judge found that the decision to dismiss fell within the range of reasonable responses and the dismissal was fair.
Social media post resulted in a fair dismissal
An actress, billed to play a lesbian character, was not subjected to discrimination or harassment by either her agent or the theatre she was working for when she was dismissed, a tribunal has found.
The employment tribunal ruled that Leicester Theatre Trust was making a business decision when it terminated its contract with Seyi Omooba after it came to light that she had previously posted on her public Facebook page that she did “not believe homosexuality is right”.
The tribunal found that the theatre’s chief executive had not discriminated against her, but “made a commercial decision”.
In March 2019, it was announced that Omooba would be playing a character who falls in love and has a relationship with another female character. However, soon after the announcement, a publicly viewable Facebook post, made by Omooba in 2014, started circulating widely on Twitter. In the post, Omooba said: “I do not believe you can be born gay and I do not believe homosexuality is right, though the law of this land has made it legal doesn’t mean it’s right. I do believe that [sic].
The post came to the attention of the chief executive, who contacted Omooba’s agent and asked whether the actress had changed her views since the post was made. He was told she hadn’t and so asked for a written statement from Omooba whose statement said “As for the personal faith I will stand firm.”
The chief executive feared the issue could lead to boycotts, audience booing and demands for ticket refunds and so terminated her engagement however honoured the full contract sum. However, an implication of this action was that Omooba’s agent refused to represent her any further, claiming that she was “unmarketable”.
Omooba brought a tribunal claim against both the theatre and former agency on the grounds her career had been damaged because of her religious beliefs.
Both claims were dismissed. This is a reminder that employees can be held to their views displayed on social media.
Review status of employees who are currently working from abroad
It is being suggested that employers should examine a practice which has seen a number of employees doing their job from abroad during the pandemic. Over the last year, many businesses have experienced an increase in employees requesting to work from a different country to where they would ordinarily have worked. However, what started as a temporary arrangement has extended for some employees and employers are being urged to review arrangements due to the potential legal, tax and practical implications caused by overseas home working.
If income tax is in another jurisdiction, there may be a payroll withholding requirement imposed on the UK employer in that host country, meaning the UK organisation has to register and maintain an overseas payroll to collect what may be due. For non-UK resident employees situated in the UK, the 2020 HMRC concessions covering a number of exceptional days that employees were stuck in the UK owing to Covid have not been continued. There is now a process for non-UK residents to file a self-assessment tax return together with supporting evidence to verify inability to leave the UK. Additionally, the guidance states that a day spent working in the UK will continue to be treated as a UK workday and therefore constitute a taxable presence.
If these matters are not carefully managed, both employers and employees face additional costs and administrative burdens. To avoid this, some employers have asked employees to return to the employer home country as quickly as possible.
If employers have not done so already, any overseas working arrangements should be documented and they should clarify matters such as the governing law and jurisdiction of the contractual relationship, responsibility for employee risk/losses and responsibility for any local tax or social security payments and personal tax declarations that may need to be made.
Injunction issued for dismissing and rehiring employees
A recent Court of Session ruling has significant implications for businesses which routinely hire and rehire employees to save money. The Court of Session has issued a temporary injunction prohibiting Tesco from terminating contracts in order to withdraw entitlement to a benefit of “retained pay”. The ruling has also prevented the company from unilaterally terminating workers’ contracts with less than 2 years’ service in order to re-engage the same staff, at its Livingston distribution centre.
Usdaw, the union representing the workers involved, alleged the supermarket was forcing some of the staff at the Livingston distribution centre to sign up to a new contract that would result in them losing between £4,000 and £19,000 per year.
According to research by the TUC, one in 10 workers have been told to reapply for their jobs on worse terms since the first lockdown in March 2020. The use of dismissal and rehiring staff with less than 2 years’ service has often been used as a legitimate way for businesses to change terms of employment or to revise terms that are commercially unsustainable.
Whilst there are times when this action may be used as part of a genuine attempt to preserve jobs during these challenging times, the technique is not without risk for employers.
Tesco have pledged to challenge the ruling, stating that “we made a fair offer to those colleagues affected, and many of our colleagues have chosen to accept this.”
Usdaw is also representing workers in cases at other Tesco distribution centres, including Litchfield, Daventry clothing and Avonmouth.
Managers think businesses should be able to make Covid-19 vaccinations mandatory for returning to work
The Chartered Management Institute’s poll of 1,050 UK managers indicated that many supported the idea of the “no jab, no job” clause some businesses have been planning to include in their contracts.
Asked whether they agreed to disagree that businesses in the UK should be allowed to make Covid-19 vaccinations mandatory for employees returning to their regular place of work, 20% strongly agreed and 38% agreed. Thirty-five per cent disagreed that they should be allowed to do this.
The CMI also found that almost half (43%) of managers think office access should be restricted for staff who refuse to get vaccinated on non-medical grounds, but 44% disagreed.
Three-fifths have already decided to make testing available to staff when they reopen their offices. The government revealed that 48,000 employers had expressed an interest in its free workplace rapid testing programme.
However, as thousands of businesses have successfully operated remotely for the past year, there should be no reason why permanent flexible working opportunities shouldn’t be available wherever possible.
Supreme Court Ruling on NMW and Sleep-in Shifts
As expected the Supreme Court has agreed with the earlier Court of Appeal decision in Royal Mencap Society v Tomlinson-Blake & Shannon v Rampersad & another and confirmed that sleep-in shifts do not constitute ‘working time’ for national minimum wage purposes.
The court found that provisions in existing national minimum wage legislation meant two care workers, one who had brought a claim against charity Mencap and the other against Surrey care home Cliffton House, were not allowed to count their sleep-in shifts as ‘time work’ or as part of their salaried hours unless they were awake for the purpose of working.
Claire Tomlinson-Blake, a ‘time work’ employee – meaning she was paid for the hours she worked, and John Shannon, a salaried worker, had both launched separate tribunal claims against Mencap, arguing that they were entitled to the minimum wage for the entirety of their sleep-in shifts.
Tomlinson-Blake, whom the court described as a “highly qualified care support worker”, provided support for two vulnerable adults in their home. When she worked nights she was allowed to sleep, but was not allowed to leave her place of work and was required to “keep a listening ear out” while she slept and attend to emergencies. The court heard she was disturbed around six times over a 16-month period.
She was paid an allowance of £22.35 plus one hour at the minimum wage – £6.70 at the time – for each night shift. But Tomlinson-Blake argued she was entitled to the minimum wage for the duration of her shift and claimed wages in arrears.
Both the initial employment tribunal and the Employment Appeal Tribunal found that Tomlinson-Blake was not merely available for work but actually working during her night shift – even when asleep – meaning she was entitled to NMW for the entirety of her shift. However, the Court of Appeal overturned this decision, and the Supreme Court upheld the decision by the Court of Appeal.
Shannon was an on-call night care assistant at the residential care home Cliffton House, where he was provided with free accommodation and paid a fixed amount of £50 per week, which later rose to £90 a week. Shannon was required to be on site between 10pm and 7am and while he was allowed to sleep, he had to assist the night care worker on duty if needed. The court heard that in practice he was rarely called upon.
Shannon was dismissed in 2014 and, as part of the resultant tribunal claim, he argued he was entitled to the NMW and claimed payment in arrears of £240,000.
The initial employment tribunal, the Employment Appeal Tribunal, the Court of Appeal and the Supreme Court all dismissed Shannon’s claim.
In particular, the court cited a recommendation first made in 1998 by the Low Pay Commission, and accepted by the government as part of the National Minimum Wage Regulations 1999, that sleep-in workers should receive an allowance and not the NMW unless they are awake for the purposes of working.
This recommendation was also included in the National Minimum Wage Regulations 2015.
“The sleep-in worker who is merely present is treated as not working for the purpose of calculating the hours which are to be taken into account for NMW,” said Lady Arden in her judgement. “The fact that he was required to be present during specified hours was insufficient to lead to the conclusion that he was working.”
The care sector would “breathe a huge sigh of relief” at the decision, which could have knock-on effects for other care workers.
Although this decision only directly applies to workers whose main purpose is to sleep at or near their place of work… it’s possible that home workers will find it more difficult to argue they are working throughout their shifts, rather than simply being ‘available for work.
Care workers will be very disappointed, particularly as they perform a vital service yet are some of the poorest paid workers in our society.
This ruling would be helpful for employers in the care sector as well as others, including those providing security staff or emergency IT cover, who engage sleep-in workers.
Businesses lack policies for staff unwilling to return to the office.
Almost one in six (16%) businesses expect to have staff who refuse to return to the office when coronavirus restrictions are lifted, yet 90% said they still lack the policies in place to deal with it.
According to a new survey, employers believe they cannot take action against an employee for refusing to return to the workplace.
Government guidance recommending people still work from home where possible was cited as the main reason for this.
Almost two-thirds (65%) of businesses said they had not made and did not intend to make any adjustments for unvaccinated staff or those unwilling to return.
As well as HR teams being mindful of the employer’s duty of care to ensure a safe working environment, now is a good time to review flexible working policies. Many employees have worked very well from home and will either want to continue to do so or will want a hybrid home/office working going forward.
The vaccination challenge and returning to work safely survey also found 25% of respondents have only been able to operate on a limited basis during the pandemic due to insufficient remote working procedures.
A further 4% have not been able to operate at all.
Uncertainty surrounding what proportion of its workforce can or cannot be vaccinated has made return to work planning difficult for businesses.
Around half (55%) of businesses said they did not know if they had any employees who were unable to have the vaccination on health grounds, though 27% said they would make adjustments for staff who cannot have the vaccine on medical grounds.
Another problem businesses will face will be issues of consistency, as employees’ flexible working demands will differ from one another. While there may be some line managers who require an employee to go through a formal process and involve HR, there will be others who simply agree and take a more flexible approach.
Grievances are often underpinned by an argument of unfairness and inconsistency, therefore training for line managers may be required and this should include the need to consult HR on these decisions.
Clinically Extremely Vulnerable People No Longer Advised To Shield
The Government has written to all clinically extremely vulnerable people in England explaining that from 1 April 2021 they are no longer advised to shield and that as a consequence if they cannot work from home (in line with the Government’s advice that everyone should work from home where possible) they should attend their workplace.
The letter also sets out that from 1 April 2021 these employees will no longer be eligible for Statutory Sick Pay (SSP) on the basis of being advised to shield. An employer will still be able to furlough an employee if they cannot safely return to work. The Health and Safety Executive has issued guidance on protecting vulnerable workers during the coronavirus (COVID-19) pandemic.
The Scottish Government has updated its shielding guidance in anticipation of (and subject to) all level four areas in Scotland moving to level three (or lower) in the coming months.
The updated guidance sets out that individuals currently on the shielding list will be able to return to the workplace from 26 April 2021and in the meantime, they should continue to work from home if they can. If these individuals cannot work from home between now and 26 April 2021, the guidance outlines that they should not return to work even if they have received one or two doses of the vaccine.
The guidance sets out that the Chief Medical Officer will be sending a letter to those currently on the shielding list in Scotland to confirm the updated advice. In addition, it outlines that the shielding notification letter will act as a fit note for sick pay purposes and will be valid until 30 June 2021, presumably subject to the current lockdown restrictions being eased and local restrictions where the individual works and/or studies being moved into a level 3 or lower area.
Do you check-in with your employees on their mental health?
Experts warn of ‘criminal’ lack of communication with staff over their wellbeing, and urge businesses to encourage openness and train line managers appropriately.
A quarter of employees have had no wellbeing check-ins since the start of the pandemic, a survey has revealed, leading to calls from experts for employers to “catch up” to the mental health crisis.
In the poll of 2,000 workers by Mental Health First Aid (MHFA), 25 per cent said their workplace had not checked in on their mental health since the crisis hit a year ago. Similarly, nearly a third (29 per cent) have never had a conversation with their line manager about their mental health.
Only a third (32 per cent) of employees said mental health and wellbeing support improved over the pandemic, compared to 43 per cent of respondents who said their support stayed the same or worsened. Two-fifths (41 per cent) said they had less frequent wellbeing check-ins or none at all.
The survey’s findings reflected the continued impact coronavirus was having on the nation’s mental health. Isolation, anxiety, loss and trauma are affecting millions of people as a result of Covid-19, and is likely to affect every workplace in the UK.
Mental health problems cost businesses £35bn in the UK before Covid-19. It’s likely that will grow this year as a result of what many of us have experienced over the last 12 months.
Employers could take simple steps to reduce the impact on their workforce’s mental health. Employers can give their teams more control over how they work, and be more flexible with their policies on compassionate leave or caring responsibilities.
A culture of being open about mental health at every level, encouraging people to seek help when they need it and training managers can all make people feel more confident and connected.
The survey also found that women’s mental health had suffered more than men’s. More than two-thirds of women reported decreased confidence at work because of the pandemic, compared to less than a third of men (68 per cent and 31 per cent respectively). Women were also much more likely than men to report feeling lonely or isolated during the crisis (64 per cent and 36 per cent respectively).
Failure to properly investigate resulted in unfair dismissal
An employee who worked night shifts as a security officer at St Thomas’ Hospital in London, was dismissed by his employer, Corps Security UK without notice on the grounds of gross misconduct, after more than 10 years of service following theft allegations but an employment tribunal has ruled that the “deficiencies” of the investigation leading to his dismissal were so great that the employer “could not have had a reasonable belief in the claimant’s guilt because of the unreasonable process which led to that belief”.
The employee’s role involved spending time at the control desk in the management office, as well as checking and locking up each department using a set of master keys. In August 2019, another security officer working at the hospital was handed a lost wallet containing cards and £80 in cash. She logged it in the lost property book, placed the wallet and the completed lost property form into a green transparent patient bag and placed it into another bag at the control desk in the management office. However, when the bag was opened the following Monday, it was discovered that the wallet was not in it.
Footage from security cameras covering the control desk was reviewed and the claimant was suspended with immediate effect and an investigation conducted. The view was taken that the CCTV appeared to show the claimant opening the property bag, taking the patient property bag out, hiding the contents then walking out of the control desk before later returning to the office and shredding paper and what appeared to be a card.
After being informed that he had been identified on the CCTV footage, the claimant said he wasn’t saying that it wasn’t him on the camera footage, but that he did not take the wallet or shred paperwork.
The tribunal noted that the claimant was not given the opportunity to view the footage or ask him to explain the actions he was seen undertaking on the footage.
The claimant was invited to a disciplinary hearing and provided with statements from various colleagues, including the security officer who found the wallet, and stills taken from the CCTV footage but not provided with the footage itself nor any opportunity to view it.
The hearing concentrated primarily on whether or not the claimant was the person in the footage. During that hearing, he admitted that it was him in the stills from the footage but maintained he did not take the wallet. He explained that his reason for using the shredder was that when he went to the toilet and took off his jacket, two cards fell out, prompting him to look through other cards in his wallet. When he found some that he no longer needed he disposed of them in the shredder.
No steps were taken to investigate further, and the employee was dismissed.
The tribunal ruled that during the investigatory stage, the employee was asked only generalised questions, and was not shown CCTV footage relied upon or the still photographs taken from it.
It was held that the employee had a “potentially fair reason for dismissal” in believing that the employee had committed theft, however he found “deficiencies in the extent and quality of the investigation conducted. A reasonable investigation would have sought to verify the claimant’s explanation for the actions seen on CCTV.” It was therefore judged that “the deficiencies in the respondent’s investigation made this dismissal unfair.”
This case highlights the importance for employers to be able to justify that they acted reasonably in dismissing an employee, especially in potentially career-ending situations of this nature. An important element of is conducting a thorough investigation, taking into account all evidence available and considering all explanations put forward by the employee that may explain their actions. A remedial hearing will be held to decide on the financial award.