Employment Law Coffee Break: An international look at Covid-19 vaccinations, and should “interim relief” cause employers concern?

Written on 14 Jan 2021

Covid-19 vaccinations: an international perspective

Vaccinations remain a hot topic as countries seek to combat Covid-19 and return to some form of normality. With vaccination roll-outs now being prioritised across jurisdictions, this week we talk to partners, Thierry Vierin, David Plitt and Stefano Lava, in our offices in Belgium, Germany and Italy respectively on the considerations for employers in their countries.

Listen to our latest podcasts here:

Belgium

Germany

Italy

In the UK, amid the vaccine roll out, we have seen reports this week of businesses seeking to purchase unused NHS Covid-19 vaccines for their staff or employers looking to a adopt a "no jab no job" policy if vaccines become commercially available. Imposing a requirement for staff to be vaccinated raises significant legal and practical issues for employers. We recently discussed the issues for UK employers here. For further advise on the implications for your organisation and the impact of other Covid-19 measures on your operations, please do contact your usual Osborne Clarke contact.

What is "interim relief" and should you be concerned?

The last few months have seen our team advising on a number of applications for interim relief in Employment Tribunal claims.

With a backlog of ET claims and fewer job opportunities, interim relief applications are a powerful tool for claimants. If a claimant is dismissed and makes an application for interim relief within seven days of that dismissal, then the Tribunal will list an interim relief hearing "as soon as practicable" giving the parties a minimum of seven days' notice. If successful, the interim relief prevents the dismissal from taking full effect until their claim is finally determined by re-instating or re-engaging the claimant on terms no less favourable. If the employer refuses, an order will be made for "continuation of the contract" meaning the employee continues to receive remuneration and other benefits under their contract, but is not required to work. Whilst any payments will be taken into account on any ultimate compensation award, if the claim is unsuccessful, there is no requirement for the sums paid to the claimant to be repaid.

However, there are limitations:

  • Applications can only be made in limited cases of automatic unfair dismissal, including where an employee alleges that the principal reason for their dismissal is making a protected disclosure, their trade union membership or activity or for engaging in activities as a workplace representative.
  • An application will only succeed if the ET decides that the claim is "likely to succeed" when it gets to full hearing – this is a high bar, being more than a reasonable prospect of success or just being "more likely than not".

A recent ET decision arising from the Covid-19 pandemic has highlighted risks for employers in this regard. The claimant had raised concerns over health and safety and objected to a pay cut through a trade union representative and was ultimately dismissed for refusing to agree revised pay terms. He claimed automatic unfair dismissal on the grounds that he had made protected disclosures relating to health and safety and also that he was a trade union member. Based on covert recordings made of an internal meeting which the claimant requested a colleague to make, the ET concluded on an application for interim relief that it was likely that the claimant would be able to establish at a full hearing that he was dismissed as a result of his trade union membership. The covert recordings included statements from a manager that "one particular person in the firm has decided to go to a union" and "that person is obviously not backing the company". The manager further stated "I will not be dictated to by a union". The element of his application relating to making protected disclosures was, however, rejected.

With many employees now homeworking, recording or requesting a colleague to record certain meetings will be much easier and more tempting. As well as reminding managers of the importance of acting fairly at all times and following the relevant company policies and procedures, managers should also be reminded of the care which must be taken when dealing with individual employment matters and that ultimately such communications may be disclosed in ET proceedings or as part of a Data Subject Access Request. Employees should also be reminded of the company policy on recording and the behaviours expected.

At present, interim relief applications are limited to specific unfair dismissal claims. There is a possibility that this may change. Following a recent Employment Appeal Tribunal decision looking at whether interim relief is needed to provide an effective remedy in discrimination claims, leave has been granted to appeal to the Court of Appeal, which could make a declaration to this effect resulting ultimately in amendments to the Equality Act 2010. Whilst there are no immediate repercussions for employers, this challenge does raise the profile of interim relief applications at a time where allegations relating to whistleblowing, trade union membership and workplace representation are likely to be on the rise.

If you are faced with an application, please contact your usual Osborne Clarke contact for more information or Phillip Chivers who leads our Employment Tribunal Management practice.