An employee has the right not be subjected to detriment by their employer on the ground that they made a protected disclosure. In deciding whether treatment is done ‘on the ground’ of making a protected disclosure, the tribunal must decide whether the protected disclosure was a material factor in the employer’s decision making but it does not have to be the sole cause. It is possible to distinguish between treatment which results from a protected disclosure and treatment which occurs because of something else instead – the manner in which a disclosure was made, or something that was done at the same time as the disclosure or even something which is a consequence of the disclosure rather than the disclosure itself. Sometimes it will be possible to separate the disclosure from these other things but the case of Fitzmaurice v Luton Irish Forum has shown just how much care an employment tribunal must take in applying the legal test to the facts of a case.
An employment tribunal has found that a fear of catching Covid-19 is not a protected belief under the Equality Act 2010 (EA). Section 10 of the EA says that a belief means any religious or philosophical belief. To be a philosophical belief, the case of Grainger v Nicholson said the belief must be genuinely held, be a belief rather than a viewpoint or opinion, concern a weighty and substantial aspect of human life and behaviour, attain a certain level of cogency, seriousness, cohesion and importance and must be worth of respect in a democratic society. In X v Y, an employment tribunal looked at how the law applies to a claimed belief involving a fear of Covid-19.
Section 15 of the Equality Act 2010 deals with discrimination arising from disability. This is where an employee is treated unfavourably because of something arising from their disability. An employer will have a defence if it can show that its actions were a proportionate way of achieving a legitimate business aim.
Employers must follow the Acas Code of Practice on Disciplinary and Grievance procedures when dealing with employee grievances or dismissing for misconduct or poor performance. If an employer does not follow the Acas Code, an employment tribunal can increase compensation by up to 25 per cent if it is just and equitable to do so. In Slade v Biggs, the EAT dealt with an appeal by an employer against a 25 per cent uplift in a discrimination claim.
For a dismissal to be fair, the reason (or main reason) for the dismissal must be one of the potentially fair reasons under section 98 of the Employment Rights Act 1996. These are capability, conduct, redundancy, statutory illegality, or some other substantial reason (SOSR). The employer must also show that it acted reasonably in all the circumstances, bearing in mind its size and resources, including following a fair procedure. The employment tribunal will decide whether, on the particular facts of the case, the dismissal fell within the band of reasonable responses open to the employer in the circumstances.
Eligible employees who are off sick are entitled to statutory sick pay of £96.35 per week for up to 28 weeks. The employee must earn on average £120 or more per week and must be off work for at least 4 days in a row (including non -working days). Medical evidence is usually required for statutory sick pay purposes. Most employers allow employees to self-certify absence of up to 7 days, with a GP note required for longer absences.
The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (the Rules) contains the rules on strike out. Rule 37(1) says that a tribunal can strike out all or part of a claim (ET1) or response (ET3) at any stage of the proceedings, of its own accord or following an application by either party, if:
The law sets out the minimum hourly rates that workers must be paid. It isn’t always as simple as simply paying that minimum rate for each hour worked. Some deductions from the worker’s pay, or payments made by the worker, are relevant and will reduce the amount of the total pay for National Minimum Wage purposes. The worker must still be left with at least the NMW after these deductions or payments are taken into account. The EAT has looked at this issue recently in Augustine v Data Cars.
Section 6(1) of the Equality Act 2010 sets out the statutory definition of disability. A person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day to day activities. Paragraph 2 of Schedule 1 to the Equality Act deals with recurring conditions. If an impairment stops having a substantial adverse effect, it will be treated as still having that effect if that effect is likely to recur. Likely here means that something ‘could well happen’. The Court of Appeal has looked at recurring conditions recently in a case called Sullivan v Bury Street Capital.
ACAS has issued updated guidance on dismissal and re-engagement, which can be accessed here.
What is dismissal and re-engagement?
Dismissal and re-engagement, also known as “fire and re-hire”, is a common (and legal) method that employers can utilise to implement changes to employees’ terms and conditions of employment. Where employees refuse to expressly agree to a change, or where employers do not have the contractual right to make changes, it is likely that terminating the existing contract on notice and offering continued employment on new terms is an employer’s best option.
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