Employment Law Coffee Break
Published on 28th Jan 2022
Our latest Employment Law Coffee Break looks at the latest legal and practical developments impacting UK employers, including HR and the decarbonisation transition, Covid-19 update, grievances, and pensions and TUPE issues.
'Green jobs' and 'green HR': the decarbonisation transition from a workforce perspective
At the end of 2021, we held a webinar looking at the role of HR, as employers help meet the UK's ambitious environmental net-zero commitments from a workforce perspective, through the transition to "green jobs" and "green HR". In this insight, we look at how HR can help drive the green job transition. (You can also listen to our webinar.)
Green jobs and HR are among the many challenges employers are tackling as the world of work adapts. We also take a look at this and other issues on employers' agendas for 2022.
With Plan B ending in England, we are now seeing many clients looking at their return-to-office plans for employees who have been working from home in line with government guidance. Many businesses are now well prepared with return-to-work plans previously actioned. The government's guidance for office working has been updated; it confirms that return to work arrangements should be reflected in health and safety risk assessments and reminds employers of the importance of remaining sensitive to individual concerns, with "extra consideration" given "to people at higher risk of severe illness from Covid-19, and to workers facing mental and physical health difficulties". Employers may also start seeing a rise in flexible-working requests where employees wish to formally change their existing (pre-Covid) working arrangements to reflect the ability to work from a different location, at different times etc. Please do speak to your usual employment contact or a member of our specialist health and safety team, led by partner Mary Lawrence, for advice.
The government has indicated that it is keeping under close review its commitment to introduce mandatory vaccination for frontline workers in the health and social care sector on 1 April 2022. However, it has now published guidance aimed at service providers, Care Quality Commission (CQC)-registered persons, local authorities, people who are employed or otherwise engaged to provide CQC-regulated social care activity in settings other than care homes and people who receive care and support services in these settings. The guidance includes information about where and how the new regulations apply with a workflow and examples to help organisations understand those individuals who are in scope and who will need to have received their first vaccination by 3 February to meet the 1 April deadline. We are working closely with a number of service providers on the application of the regulations to their workforce in these settings – please do speak to your usual Osborne Clarke contact or partner Anna Elliott, if you would like to discuss any aspect of these new rules further.
EAT finds dismissal for bringing multiple vexatious and frivolous grievances fair
The Employment Appeal Tribunal (EAT) has upheld as fair the dismissal of a claimant who brought numerous grievances against senior managers that could not be resolved at an informal stage; partly as he wanted to deal only with his line manager who had no authority to resolve concerns about more senior managers. While refusing to progress any of the grievances to the formal stage, the claimant also refused to withdraw them. The claimant was subsequently dismissed for "gross misconduct" for failing to follow a reasonable management instruction in attending a formal grievance meeting arranged by his employer and for bringing "numerous vexatious and frivolous grievances".
The EAT agreed with the tribunal that the employer had acted reasonably in dismissing in the circumstances. While the employee argued his actions could not amount to gross misconduct, which case law has established requires "deliberate wrongdoing or gross negligence", the EAT noted that the test for unfair dismissal simply referred to "conduct as being a permissible reason for dismissal" and "it is well established that conduct for these purposes need not be "reprehensible" or "culpable" in order for it to be a potentially fair reason for dismissal". While s98(4) Employment Rights Act 1996 involves a "consideration of all the circumstances, one of which might include, in some cases, the fact that the conduct relied upon involved a breach of contract amounting to gross misconduct… there was no such contractual element in this case and an analysis on that basis was not required". Whether or not dismissal by reason of conduct is fair or unfair within the meaning of s98(4) does not depend on the label attached to that conduct by the employer.
This is a helpful case for employers when faced with an employee submitting numerous vexatious and frivolous grievances and who fails to follow reasonable instructions to engage with the applicable grievance process. The EAT noted that "the purpose of a grievance procedure is to resolve concerns about colleagues or the workplace; it is not a repository for complaints that can then be left unresolved and capable of being resurrected at any time at the behest of the employee. The employer cannot be expected to leave concerns unresolved for unlimited duration as this would destroy its ability to address legitimate concerns promptly and to ensure the well-being both of the employee raising the grievance and of those who may be subject of the grievance". However, employers should continue to consider the facts of each specific case; for example, there may be cases where it is appropriate for a grievance to be stayed at an informal stage or good reasons for an employee in the circumstances not engaging with the formal process. Care must also be taken where any complaints relate to allegations of discrimination or a protected disclosure – an employee may argue that any action taken is itself discriminatory and/or victimisation or has been taken on the grounds of the alleged disclosure.
HR pensions spotlight for January: TUPE transfers and pensions
Pension issues can seem complicated when staff are transferring under TUPE (the Transfer of Undertakings (Protection of Employment) Regulations 2006) and, indeed, sometimes they are. In this month's HR pensions spotlight we look at some of the issues to consider where you are going to become the new employer of transferring staff.