Employment Law Coffee Break | Covid-19 update, key cases in 2021, and whistleblowing

Covid-19 update

Plan B instigated: "Go to work if you must but work from home if you can"

The prime minister announced on Wednesday 8 December that England is moving to Plan B: in light of the spread of the Omicron variant this is "now the proportionate and the responsible thing" to do. The following measures will now be introduced:

• From Friday 10 December, face coverings will become compulsory for all members of the public and staff in most public indoor venues, such as cinemas, theatres and places of worship. Exemptions apply to venues where "it is not practical to wear one, such as when.. eating, drinking or exercising". Face masks will not apply in hospitality settings. Face coverings have been mandatory on public transport and in shops since 30 November.

• From Monday 13 December, "those who can will be advised to work from home". 
• From Wednesday 15 December the NHS Covid Pass will become mandatory for entry into nightclubs and crowded indoor and outdoor settings which meet threshold numbers of people.
• Those aged over 40 can now book booster vaccination appointments. The gap between second jab and booster jabs is reduced to three months.

The work from home requirement for office workers from Monday 13 December will be disappointing for many employers seeking to re-establish some form of normality to their operations. While many will now have plans in place enabling a rapid return to home working, the prime minister has confirmed that "employers should use the rest of this week to discuss working arrangements with their employees". Updated guidance recognises that there will be those who do still need to attend the workplace "for example, to access equipment necessary for their role or where their role must be completed in person" and it is recognised that in-person working will be necessary in some cases "to continue the effective and accessible delivery of some public services and private industries". Reflecting previous concerns on the impact of working from home on some individuals, employers are again advised to consider whether home working is appropriate "for workers facing mental or physical health difficulties, or those with a particularly challenging home working environment". The guidance encourages individuals attending work to consider taking lateral flow tests regularly "to manage your own risk and the risk to others"; employers looking to put in place any more formal workplace testing requirements will need to assess potential health and safety, data protection and employment law considerations.

However, concern has been raised that these measures have been introduced with no promise of financial support, such as that previously provided under the Coronavirus Job Retention Scheme. Frances O'Grady, general secretary of the TUC, stated: "requiring people to work from home over the busy Christmas period will hit jobs – unless ministers bring back furlough" and Matthew Fell, chief policy director of the CBI, stated that "it will be vital that the impact of these restrictions is closely monitored, and that the government is ready with targeted support as required".

The new measures do not rule out Christmas parties but guidance remains that people "may wish to take a rapid lateral flow test if it is expected there will be a period of high risk that day. This includes spending time in crowded and enclosed spaces..". Please listen to our podcast on the issues social gatherings raise for employers at this time. Where parties do go ahead, employers should confirm with settings any specific requirements for entry and social distancing that apply.

Self-isolation rules

We reported last week that close contacts of someone with the Omicron variant would be required to self-isolate even if they were exempt under the existing rules (that is, double-jabbed or under 18 years and 6 months). From now on, the prime minister has stated that as the Omicron variant spreads through the community "we will also introduce daily tests for contacts instead of isolation, so we keep people safe while minimising the disruption to daily life".

Vaccination

While acknowledging that vaccine and testing "remain our best line of defences" the prime minister has stated in response to a question on mandatory vaccination that he does not want to force people to get vaccinated. Requiring vaccination to attend the workplace remains a hot topic for international businesses. While the latest announcement does not change the position in England, the position overseas continues to evolve: the BBC reported earlier this week that a requirement to be vaccinated to attend work will apply to private sector employees in New York from 27 December.

Duration and review

The government has confirmed that relevant guidance will be updated in the coming days (the "How to stay safe" guidance has been updated today) with face covering regulations being laid in Parliament this week and remaining regulations laid on Monday 13 December. A vote is expected to take place on Tuesday 14 December. The regulations will be reviewed after three weeks, but will be set to expire six weeks after implementation; these dates have been announced as 5 January 2022 and 26 January 2022 respectively subject, of course, to the regulations being passed. The government has made it clear that it is keeping "the data under constant review" and further measures could be considered, with epidemiologist Professor Neil Ferguson from Imperial College London warning that a lockdown in the New Year cannot be ruled out.

Supporting pregnant staff

Maternity Action has published a new report setting out 16 recommendations to improve the safety of pregnant employees and protect their employment in light of the Covid-19 pandemic. As well as calling for government, Acas and HSE guidance on individual risk assessments to be updated, it also looks at extending timeframes for expectant employees or new mothers to bring employment tribunal claims and a recommendation for the government to help employers with the cost of placing pregnant employees on paid maternity suspension. With health and safety protections for pregnant workers remaining a live issue, we wait to see if any of these recommendations are progressed.

The latest government guidance dealing with pregnant employees in light of the Covid-19 pandemic is here.

Key cases in 2021 – Part One

2021 has seen significant changes to the world of work with a shift to hybrid working and Covid-19 continuing to impact on workplaces and business travel. There have also been a number of important employment law judgments that are easy for busy employers to miss; so this week and next we're taking the opportunity to provide a reminder of the principal messages for employers we have looked at this year as we head into 2022.

Anti-harassment training must be fit for purpose

The Employment Appeals Tribunal (EAT) has reminded employers of the importance in ensuring that their equality and diversity programmes are effective in combatting harassment, including "thorough and forcefully presented training", refreshed at appropriate intervals.

An employer can defend a discrimination claim where it can demonstrate that it has taken "all reasonable steps" to prevent the employee from doing "that thing" or "anything of that description" (our emphasis). In considering the steps that have been taken, and whether further reasonable steps were required, it is legitimate to consider how effective the steps that have been taken were likely to be when they were taken and, in appropriate circumstances, how effective they have proved to be in practice.

In this case, it was found that the training that had been provided to the perpetrator of race harassment, and a number of other employees, including two managers who failed to report matters to HR, was "clearly stale" and required refreshing – "It is not sufficient merely to ask whether there has been training, consideration has to be given to the nature of the training and the extent to which it was likely to be effective. If training involved no more than gathering employees together and saying 'here is your harassment training, don't harass people, now everyone back to work', it is unlikely to be effective, or to last".

Employers should review the effectiveness of their anti-harassment training and consider enhancing or re-running this training regularly and in any event where it becomes clear that employees have not understood it, or incidences of harassment are still arising - "if management become aware that despite such training employees are continuing to engage in harassment, or demonstrating that they do not understand the importance of preventing it and reporting it to managers, this may serve as a notification to the employer that they need to renew or refresh the training. The fact that harassment takes place after such training, even if unknown by the management at the time, may provide some evidence that demonstrates the poor quality of the training that was provided, particularly if it is not only the alleged harasser who did not understand the training, or act on it, but that was also the case with other employees".

Lack of appeal on a redundancy is not fatal to showing a fair dismissal

The Court of Appeal looked at the right of appeal in a redundancy situation and reaffirmed the principle that if the original selection for redundancy has followed a fair procedure, the absence of an appeal will not be fatal to an employer showing a fair dismissal. An appeal is just one of the many factors to consider when determining fairness.

There is no statutory obligation on employers to provide an employee with the right to appeal against a redundancy dismissal; although providing the right to appeal is likely to reduce the risk of an unfair dismissal. Employers with a contractual redundancy process will, however, be in breach of contract for any failure to follow a right of appeal provided. In most cases, providing a right of appeal is appropriate and it can give the employer the opportunity to explore the full position and resolve issues that may otherwise lead to legal proceedings.

It is helpful to have confirmation that the right to appeal is not absolute, as on occasions, there may be nothing further to consider; however, a right of appeal remains one of the factors when considering the overall fairness of the redundancy process and employees should always have the opportunity to question their selection for redundancy, their inclusion in a selection pool and their scoring against any selection criteria applied.

Ensure actions to reduce the gender pay gap are not discriminatory and unfair

With diversity strategies high on all employers' agendas, many are understandably focused on addressing any underrepresentation in the workforce and creating equal opportunities for existing and new talent. However, an Employment Tribunal decision provides a clear warning that employers must think carefully about the strategies utilised and make sure that they do not have a discriminatory or unfair impact on other groups of the workforce.

In the case before the tribunal, the employing advertising agency was keen to reduce a significant gender pay gap, but in its desire to do so, unfairly dismissed and discriminated against two male creative directors in scoring them unfairly for redundancy and having a conscious motivation to dismiss them in part to improve the gender balance of the team and the employer's gender pay gap. The employer had vowed to "obliterate" its reputation for being comprised of straight white men and both of the dismissed directors had raised concerns about aspects of the presentation, which included this stated intention. The tribunal noted that the directors' dismissals were motivated by their complaints and because they were also perceived as not being on board with the gender pay strategy and desire to change the make-up of the senior creative team.

Diversity strategies may include steps to take positive action, but this must be within the parameters of the Equality Act and not stray into positive discrimination.

New whistleblowing rules across the EU: 17 December draws closer

New whistleblowing rules are due to be adopted by EU member states, implementing the EU Whistleblowing Directive. The Directive applies to businesses with 50 or more employees based in the EU and the deadline for compliance depends on the size of the business's presence in the EU: a business with 250 or more employees must comply by 17 December 2021 while a business with 50 to 249 employees has an additional two years until 17 December 2023. Obligations under the directive include, among others, a requirement on organisations with 50 or more employees to put in place internal reporting channels that are sufficiently safeguarded and to ensure that reports are acknowledged and dealt with within set timescales. The directive only protects individuals reporting breaches of EU law but the EU is encouraging national legislators to extend the protection to cover wrongdoing relating to national laws.

While statutory reform to whistleblowing laws in the UK is not currently on the cards, many employers are reviewing their whistleblowing policies and procedures in light of the current climate, developing trends and best practice. International employers should also keep under review how their UK whistleblowing policy and those in other jurisdictions align to ensure, so far as possible, consistency of approach and clarity for managers and staff on the applicable processes for them. It is anticipated that a number of EU countries will miss the 17 December deadline to implement the EU Directive so this remains an area which global employers will need to keep a careful watch on.

If you would like further guidance on the adoption of the Whistleblowing Directive and legal requirements in EU jurisdictions in which you operate, please contact your usual Osborne Clarke contact. In this November webinar Chris Wrigley, Co-head Global Compliance (UK), and Lucie Mongin-Archambeaud, Counsel (France), look at the new requirements and the relevance for your business.