Employment Law Coffee Break | Acas guidance on long Covid, managing holidays, fire and re-hire in the spotlight and the EAT rules on what is a “substantial” impairment

Written on 11 May 2021

Welcome to our Employment Law Coffee Break in which we highlight the latest developments and issues impacting UK employers.

Covid-19 Update

Acas guidance: return to work and long Covid

As businesses look forward to the impact of the vaccination programme and further easing of restrictions, employers must continue to remain alert to the specific issues that Covid-19 raises in the workplace. As well as general guidance to support employers in managing the impact of Covid-19, with estimates that over one million people have reported experiencing long Covid, Acas has issued specific guidance in this respect, providing some helpful reminders for employers including agreeing with an employee how and when to make contact during any absence, talking about ways to support them as they return to work, such as different working hours and a phased return to work, and potentially getting an occupational health assessment. Usual rules for sickness absence and sick pay should be applied.

Employers should take the opportunity now to ensure that managers are educated on the potential for the impact of long Covid among the workforce and are in a position to recognise potential signs that an individual may be unwell and need additional support. In some circumstances, the employee's symptoms may be protected as a disability under the Equality Act 2010 where they are substantial (that is, more than minor or trivial) and have a long term effect on the employee's ability to carry out normal day to day activities. In such circumstances an employer may find itself liable for discrimination claims including where the employee is treated less favourably because of something arising as a consequence of their disability – for example, where an employee is put through a capability procedure due to sickness absences or poor performance process due to a deterioration in their work – unless it can be shown that the treatment is a proportionate means of achieving a legitimate aim. An employer will also be under a legal duty to make reasonable adjustments.

Holidays

With an announcement on international travel, and the terms on which it will be permitted awaited (it is currently proposed that different quarantine rules will apply on a return to the UK depending on whether the destination is green, amber or red), now is a good time for employers to plan for the annual leave challenges that are likely to arise when travel resumes. A key step will be ensuring there is a clear holiday policy and reminding employees of its terms.

A holiday policy should clarify the expectations around when holiday requests can be made, for how long and the basis on which they can be refused, making sure that the statutory minimum holiday provisions under the Working Time Regulations 1998 are reflected. The policy should also make clear the business's position should an employee be required to quarantine on their return; will it be treated as annual leave or perhaps unpaid leave? Employees should also be reminded on what annual leave can be carried over from one holiday year to the next. Other potential challenges include employees wishing to cancel pre-booked leave and, as many employers are finding, employees building up annual leave which is likely to result in too many employees wishing to take holiday at the same time.

While it is sensible to set out annual leave rules and requirements, employers may need to show some flexibility to employees to account for the restrictions faced by many trying to take annual leave during a leave year where travel, schools and other normal patterns have been significantly disrupted. It might be, for example, that a longer period of leave is permitted than usual to ensure employees are taking their leave entitlement and to avoid it all accumulating until later in the year. It remains important to employees' physical and mental wellbeing that annual leave is taken and employers should send out periodic reminders to employees to ensure holiday is taken.

Acas has issued guidance on holidays which employers may find helpful.

Fire and re-hire practices in the spotlight

Dismissal and re-engagement is a mechanism used by employers to achieve a change to terms and conditions where employee consent is not forthcoming. It is a process which is not without legal risk – employers must consider their existing obligation of trust and confidence to an employee as well as an employee's statutory right not to be unfairly dismissed. Employers may also need to build in the statutory collective consultation procedures, as well as be alert to any discrimination risks arising from their proposals. Legal advice must therefore be taken before proceeding down this route.

Covid-19 has thrown a spotlight on this practice with employers looking to renegotiate terms as part of their economic recovery. With calls for reform of the law in this area and pressure also being exerted through the courts, employers must handle any proposals sensitively, considering carefully the ramifications on their brand as well as the legal consequences. Acas has delivered a report to the government on the use of dismissal re-engagement and there has been a call on the government to publish that report. It may be that the Queen's speech on Tuesday will see further developments in this space, along with other reforms which may be proposed under the long awaited Employment Bill.

Disability discrimination: meaning of substantial

The Employment Appeal Tribunal has ruled that when determining whether an impairment has a substantial adverse effect on the ability of an employee to carry out day to day activities for the purposes of the Equality Act 2010, the correct approach is to consider the statutory definition on the ordinary meaning of the words. Was the impairment "more than minor or trivial". The relevant guidance and code of practice issued by the Equality and Human Rights Commission should only be considered if the statutory definition fails to provide a conclusive answer.

Here, the Employment Judge had failed to focus on the core of the underlying claim, that the Claimant contended that because of his neurodiversity he found it "very difficult to deal with changes of procedure and, particularly in the context of stressful disciplinary proceedings, was not able to communicate properly with his line manager". Dealing with change at work, being flexible about procedures and communicating with managers are all day-to-day activities and the medical evidence suggested an impairment that was more than minor or trivial.

The difficulties experienced by neurodiverse staff in a working environment are not always immediately apparent or always present; rather difficulties with "the day-to-day activities" often manifest in stressful situations such as disciplinary or grievance proceedings or where an individual is being performance managed. In these circumstances, employers must carefully consider any reasonable adjustments that may be needed to these processes, such as being accompanied by a companion not usually permitted (a friend or family member), providing information in advance of meetings or conducting the process exclusively in writing etc. We recently spoke to Nancy Doyle, CEO of Genius Within on how employers can support neurodiversity in their organisations – please do listen here.