Employment Law Coffee Break: The EAT rules on philosophical belief; Covid-19 update and a new right to 'stay away from the office'
Published on 18th Jun 2021
Welcome to our latest Employment Law Coffee Break in which we look at the latest developments impacting UK employers.
EAT rules on what is a 'philosophical belief' capable of protection in the workplace
Of all the issues that Employment Tribunals regularly have to deal with, one of the most difficult is perhaps that relating to what constitutes a philosophical belief. This is important because the Equality Act 2010 prohibits direct discrimination, indirect discrimination and harassment in the workplace in respect of religion, religious belief and philosophical belief. Phillip Chivers, Legal Director in our employment team, looks here at the recent EAT decision of Forstater v CGD Europe and others. This is an important case for employers in understanding when a belief is protected under the Equality Act 2010 and in which the EAT draws a distinction between protected beliefs and how they manifest in the workplace.
With many businesses building up to an announcement that lockdown restrictions would be lifted on 21 June, the government announced this week that England would remain at Step 3 of the roadmap lockdown and the move to step 4 has now been set a new potential date of 19 July (subject to a review in two weeks' time). We recommend caution when anticipating what the move to step 4 might mean for businesses and anticipate that a number of measures that employers are to required to have in place currently, under guidance to guard against Covid-19 risk, may well remain.
Work from home guidance
The government guidance to work from home remains in place pending a further announcement. As before, employers should continue to consider whether home working is appropriate for workers facing mental or physical health difficulties, or those with a particularly challenging home working environment and consult with workers to decide who needs to come in. Where workers do attend work this should be reflected in the employer's risk assessment and actions taken to manage transmission risks in line with this guidance. A mix of home and office-based working should be encouraged where full home working is not possible.
Coronavirus Job Retention Scheme
The government has also confirmed that despite the delay in reaching Stage 4, there will be no changes to the requirement for employers to contribute to the subsidy provided under the Coronavirus Job Retention Scheme for furloughed wages from 1 July.
Health and safety compliance
As employers look to open up their workplaces, getting health and safety right remains critical and this is underpinned by the cases which we are seeing coming through the Employment Tribunals, albeit they relate to the Covid-19 situation earlier in the pandemic and inevitably are fact specific. The most recent reported cases relate to section 100 of the Employment Rights Act which protects an employee from dismissal where they have taken steps to protect themselves or others where "in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably be expected to avert, he left or.. refused to return to his place of work". The Employment Tribunal (ET) upheld an unfair dismissal claim where an employee had complained that the employer's failure to provide PPE and put appropriate health and safety protection in place did create circumstances of danger making it appropriate for him not to return to the workplace where he was caring for his clinically vulnerable father. Another ET however rejected an employee's unfair dismissal claim where, while it accepted that the employee reasonably believed there were circumstances of serious and imminent danger, in the circumstances the employee's requests to be furloughed or work at home on full pay were not appropriate steps to protect himself from danger. The employee had rejected the employer's alternative offer of taking unpaid leave or using their paid holiday entitlement.
The central message for employers as workplaces reopen is to ensure that they have carried out a suitable and sufficient health and safety risk assessment prior to any re-opening that can be used to demonstrate that they are "Covid-secure", that they consult with and listen to any concerns from employees and/or health and safety representatives and, as appropriate, consider whether any alternative arrangements should be implemented in the circumstances. Please note that a right for employees not to be subjected to a detriment (reflecting the right not to be dismissed referred to above) has now been extended by legislation to workers.
Proposals have also been announced to make Covid vaccinations compulsory for staff in care homes in England, subject to parliamentary approval. The proposals have attracted wide media attention given the sensitivities involved and the impact on an individual's existing duties should they not comply with any future statutory requirements. There will be a 16 week grace period following the new statutory rules coming into force after which those covered by the new rules will need to produce evidence of having had a complete course of an authorised Covid-19 vaccine (unless they are exempt from vaccination). The vaccination requirement will cover all people who enter a care home building regardless of their role, rather than just care home staff and volunteers, although specific exemptions apply, including the residents, their friends and family and anyone assisting with an emergency or carrying out urgent maintenance work. The government has indicated that there will be a further consultation to decide whether to extend its proposals to other health and social care settings where there may be a public heath rationale to protect those most at risk from Covid-19.
There are no plans at present to extend these proposals further. Employers should continue to take specific advice on the impact of the vaccination programme on their workplace and any specific requirements they are looking to introduce given the legal and data protection issues involved, as well as the impact on employer brand and employee relations. However, those businesses who provide services to care homes (and potentially in future NHS settings) will need to consider the impact of these regulations on their workforce carefully.
Is a new right to 'stay away from the office' on the cards?
We have previously written about the government's proposals to introduce new flexible working legislation. While there was no Employment Bill mentioned in the Queen's speech, media reports suggest that we may now in fact see a consultation this summer with legislation introduced later this year on a new statutory right for employees to work from home unless employers are able to prove it is essential for staff to physically attend the workplace. At present employees only have a statutory right to request flexible working where they have at least 26 weeks' continuous employment with their employer and an employer can reject their request for a one or more of a number of business reasons. For more about the existing statutory right to request flexible working, listen to our podcast here.
With many businesses actively looking at introducing more flexibility for staff following the long period of homeworking during the coronavirus pandemic, Olivia Sinfield, partner in our employment team, was joined this week by four panellists, Emily Plotkin (GitLab), John Nurthen (Staffing Industry Analysts), Paul Allsopp (The Agile Organisation) and Sue Rains (OVO) to discuss approaches to hybrid working and the issues this raises. Please find here a recording of the webinar.