07 February 2022
In each issue, Nicola Mullineux, senior employment specialist for Peninsula, explores the interesting outcomes of three different employment law cases
Fear of catching Covid-19 isn’t a philosophical belief
In the recent employment tribunal (ET) case of (X v Y), an unnamed employee refused to return to the workplace, despite government coronavirus restrictions being lifted allowing employees to do so. The employee argued she had reasonable and justifiable health and safety concerns about the workplace in relation to Covid-19 and the threat it posed to public health. These concerns were amplified due to her partner being considered as high risk of getting seriously unwell from Covid-19.
The employee was subsequently not paid for the period of refusal to work. She claimed this decision constituted discrimination on the grounds of a philosophical belief, namely coronavirus, and the danger from it to public health. When probed by the tribunal on exactly what the belief was, the claimant confirmed it was a fear of contracting, and spreading, Covid-19.
When determining whether this belief should be protected as a philosophical belief under the Equality Act 2010, the employment judge considered the five key tests about the belief:
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it must be genuinely held
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it must be a belief, and not an opinion or viewpoint, based on the present state of the information that is available
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it must be as to a weighty and substantial aspect of human life and behaviour
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it must attain a certain level of cogency, seriousness, cohesion and importance
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it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
The ET concluded the claimant genuinely held the belief, that it was cogent, worthy of respect and is a weighty and substantial aspect of human life and behaviour. However, the claim was still rejected on the grounds that, while it is genuinely held, her fear is a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat. The judge further commented the fear is time-specific, since the concerns will only last for as long as the dangers associated with the Covid-19 pandemic do, and that it did not relate to society as a whole. It was made clear that the employee was solely concerned about catching the virus herself and passing this on to her partner.
The employee can no longer proceed with a claim for discrimination; however, it remains to be seen whether a separate claim for suffering a detriment after making a protected disclosure is allowed to proceed and whether it will succeed. A new ET will have to determine whether her fear meets the criteria to be a qualifying disclosure. If so, the employer may later face difficulties that the loss of wages was a detriment, for which compensation may apply.
It’s important to note that, since this case was only considered by the ET, the decision is not legally binding. It’s entirely possible the employee may appeal the decision, in which case the outcome of the employment appeal tribunal (EAT) would be binding authority, which all employers would have to follow.
Delays to flexible working requests must be agreed
The government has not yet confirmed the outcome of its public consultation on making flexible working the default position for all employees from day one of employment. However, in the meantime, the ET system has confirmed the responsibilities of employers to provide an outcome to all flexible working requests within three months of a request being made.
Under section 80F of the Employment Rights Act (1996), employers can apply for a change to the terms and conditions of their employment, typically relating to factors such as their hours, place and time of work. This applies if they have worked continuously with the same employer for at least 26 weeks. The Act further states that employers are required to deal with any requests in a reasonable manner, and that, where there is an appeal, the appeal decision must also be notified within the decision period. The decision period in this situation is specified as being ‘…(a) the period of three months beginning with the date on which the application is made, or (b) such longer period as may be agreed by the employer and employee.’
In the case of Walsh v Network Rail Infrastructure Ltd, the employee made a flexible working request on 11 February 2019, which the respondent rejected on 6 March 2019. An appeal was submitted on 13 March 2019; however, a date could not be arranged by both parties to hear the appeal. The delay to the process led the employee to apply for an early conciliation certificate on 4 April 2019.
Extensive correspondence between both the employee and employer continued, but by 10 May 2019 (the three-month decision period deadline), the meeting had still not been arranged. Eventually, it was agreed to be held on 1 July 2019, but the claimant submitted a tribunal claim on 25 June 2019. This was on the grounds the flexible working request had not been dealt with reasonably, was determined on incorrect facts and that the process was not concluded before the end of the decision period. The appeal was finally held on 1 July 2019, with the decision to not uphold it given on the same day.
The ET determined that, since the employee agreed to attend the appeal on 1 July 2019, there was an implied agreement to extend the decision period. This led the ET to conclude there was no jurisdiction to hear the claim.
However, the claimant appealed to the EAT, who confirmed the ET had erred in deciding the employee agreed to the extension of the decision period, because they were attending the delayed appeal meeting. The EAT concluded the purpose of the regulations was to ensure decisions are made within a reasonable time. They found the fact the employee attended the appeal hearing to be another matter altogether and was likely an action to try to resolve the substantive issues at hand.
Therefore, businesses must ensure they follow the procedures laid out in the regulations and ensure agreement is sought if there is a need to extend the decision period. For the avoidance of doubt, it is beneficial to confirm agreement in writing, with all parties signing and dating the document. This may become particularly prudent should the government confirm changes to the flexible working process, including reducing the current timeframe for response.
Forced resignation is constructive dismissal
An Aldi employee was awarded over £27,000 after being forced to resign from his position as store manager in the recent ET case of Williams v Aldi Stores Ltd. In this, the claimant had worked for the company for ten years, most of which he was well regarded by his seniors. He worked to transform underperforming stores. However, the respect and encouragement from his managers changed when his store’s performance began to struggle.
Issues which are regularly overlooked in well-performing stores (e.g. hiding price cards when product lines had run out) were raised against Williams and he was invited to a disciplinary hearing. The claimant explained he had been under immense pressure and did not feel safe in his role because of this, saying Aldi used past incidents as an excuse to force him out. The ET agreed, concluding that, on the balance of probabilities, if a store manager was performing well then the removal of price cards was ignored. But, if there were other performance issues and the store was struggling, removing price cards would be used together with other allegations of either underperformance or misconduct by the individual, to dismiss them or reach a confidential settlement agreement.
The ET found that Aldi was in fundamental breach of the implied term of trust and confidence in the way they dealt with the claimant, leading to his claim for constructive unfair dismissal being successful. The ET also outlined that the treatment of, and towards, Williams made it clear that the respondent wanted him out of the business.
The compensation awarded to Williams was reduced by 20% due to contributory fault. Specifically, since he admitted misconduct, which he accepted was against the rules, even though it was usually ignored for good performers anyway. The tribunal took into consideration the view that Williams was acting to protect his job role when deciding not to make the reduction higher.
This case is a reminder for employers of the need to follow fair and reasonable processes when dealing with performance and conduct issues. It also highlights the importance of taking a consistent approach to what is deemed to be misconduct across a business, and not allowing managers to make allowances for good store performance in taking decisions on disciplinary matters. Although there was a reduction considering the claimant’s contributory fault, it was recognised this was as a result of the undue pressure applied to him. Therefore, this shouldn’t not be taken as a sign by employers that this sort of treatment of employees is to be tolerated.
Featured in the March 2022 issue of Professional in Payroll, Pensions and Reward. Correct at time of publication.