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Gloucestershire Business News

Changing challenges for regulatory and employment law - Nigel Tillott of Davies and Partners

By Nigel Tillott, head of Davies and Partners' employment and regulatory departments 

You can hardly have missed the changes to the furlough scheme announced at the Budget and also the fallout from the Uber case.

In short, furlough has been extended until the end of September. 

Employees will still receive 80 per cent of pay calculated on the same basis as before with employers having to contribute 10 per cent in July and 20 per cent in August and September.

It was hardly a surprise the Supreme Court determined Uber had sufficient control of drivers for them to be deemed workers. 

Uber is now saying it has moved on and its practises are different from the circumstances when the case started. No doubt other claims will follow.

Given the headlines attracted by those two issues, we thought it might be appropriate to have a look in other directions.

Financial matters

The National Minimum Wage will increase to £8.91 per hour from April.

Incentives for companies to take on apprentices will increase to £3,000 per apprentice.

Employment Tribunal limits will increase from April 6 with the cap on weekly pay for the purposes of calculating the basic award rising to £544. The same will apply to Statutory Redundancy payments. 

The cap on unfair dismissal awards in most cases will be £89,493, although it should be remembered that in such cases the maximum award is one year's pay. 

 The minimum basic award in health and safety related dismissals will increase to £6,634.

Fair dismissal for not wearing a mask

While there is a long backlog in the tribunal system, we are starting to learn the outcomes of the first Covid-related claims.

Kubilius v Kent Foods Limited is a case in point. This was the decision of an Employment Tribunal which means other tribunals are not bound by it, but it does give an indication of direction of travel.

Mr Kubilius was a lorry driver. His employers' handbook required courteous treatment of clients and that employees should take all reasonable steps to safeguard their own health and safety and those of others they came into contact with as a result of their actions at work. There was also a requirement to follow customers' PPE instructions.

Mr Kubilius drove onto the Tate & Lyle site on the Thames Estuary and was given a face mask to wear. He refused, saying his cabin space was his own and he could do what he liked there. 

He was told that this was not the case as because the cab on his vehicle was elevated, droplets from his mouth could land on people's faces.

His behaviour was reported to his employer who dismissed him on the basis he had breached the requirements that he maintained good relationship with clients and to co-operate to ensure a safe working environment.

The tribunal went along with the employer and decided the dismissal was fair - a good reminder of the standards which an Employment Tribunal has to apply.

While it took the view an employer could have issued a warning, it decided that the dismissal fell within the range of reasonable responses open to the employer. 

Equality and diversity training - shake it up

Employers often despair when they face claims of discrimination as a result of actions on the part of an employee which they would condemn. 

There is a potential defence to such claims on the basis that the employer has taken all reasonable steps to prevent the discrimination. 

In practise, this is a hard standard to achieve and this fact was reinforced in the case of Allay (UK) Limited v Gehlen. Having an equal opportunities policy in place is simply not enough.

In this case, the employer had gone so far as to introduce equality and diversity training but it was regarded as out of date and 'stale'. 

The Employment Appeal Tribunal made it clear that having training in itself was not sufficient to tick the box. Employers had an obligation to refresh the training if it is out of date or employees appeared to have forgotten it.

If your workforce has not undertaken equality and diversity training in a while, it may be time to hold a further and updated session.

Covert recording

The subject of covert recordings comes up from time to time in tribunal proceedings. 

It will often be that an employee has secretly recorded a disciplinary meeting or another meeting, the employer protests about its use and the tribunal tut-tuts, but says that ultimately it wants to look at the truth and then listens to it.

The case of Northbay Pelagic Limited v Anderson which was determined by the Employment Appeal Tribunal looked at covert recordings from a different angle. 

In this case, a director of the company set up a web-enabled camera in his office to which he had exclusive access because he suspected someone had been entering his room and accessing his computer without his knowledge or consent. 

Having discovered this, the employer dismissed Mr Anderson.

The Employment Tribunal decided the dismissal was unfair on the basis that the dismissal was not within the range of reasonable responses - in contrast to the Kubilius case. 

The tribunal thought the employer should have carried out a balancing exercise between the right to privacy and Mr Anderson's wish to protect confidential information in circumstances where there was a negligible risk that innocent bystanders would be caught on camera.

No jab, no job

This is becoming a hot topic so we thought we should weigh in with our thoughts with a number of competing considerations. 

No employer can compel an employee to have a vaccination, but employers do have a duty of care towards employees and others with whom their employees may have contact.

This is not a straightforward issue and we could debate it at length, but in circumstances where there would be significant health and safety concerns if an individual did not have a Covid injection, such as in the care home sector, employers may well be able to justify a dismissal of an employee who without good reason refused to have a vaccination.

There will be those with medical grounds for refusing to have the vaccination and in such circumstances, employers will need to take care. 

In such circumstances other measures may need to be put in place such as very regular testing of the employee concerned.

Employers who enforce the 'no jab, no job' rule where individuals haven't had the opportunity to have a jab are likely to be at risk of discrimination claims. 

For example, the young, who generally have not had that opportunity yet, may claim age discrimination.

For more information about Davies and Partners and the services they provide, please visit https://www.daviesandpartners.com or call 01452 612345.

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