Employment Law Review – July 2021
This last month has seen a number of updates in employment law, which of course, include Covid-19. We anticipate that updates in relation to Covid-19 will continue as the vaccine rollout progresses, and employers wish to understand whether they are able to enforce a blanket mandatory vaccination policy. However, as ‘Freedom Day’ has now passed, we expect there to also be new updates on a number of non-Covid related employment issues.
Although the Government has announced plans to introduce a mandatory vaccination policy in social care settings in England, there is currently no suggestion of such a policy in other settings.
Despite this, there are of course increasing concerns from employers who are seeing an increase in Covid-19 outbreaks and wish to understand their position as to whether they can enforce a mandatory vaccination policy for all staff. However, as per our previous June review, employers are not able to compel employees to take a vaccine (of any kind) because The Public Health (Control of Disease) Act 1984 (“PHA1984”) provides that members of the public should not be forced to undergo any mandatory medical treatment.
The term ‘mandatory medical treatment’ within PHA1984 includes vaccinations. Therefore, although there is not any definitive case law in this area (as no cases have progressed through the Employment Tribunal yet), Acas have issued some guidance to Covid-19 vaccinations and have confirmed that there is not currently any existing legislation providing that people must have the vaccine, even if their employer would prefer them to have it.
However, Acas have advised employers to support their staff to get the vaccine as opposed to forcing them, and have suggested proposals such as providing paid time off for vaccination appointments. Acas have advised that all employers should obtain independent legal advice if they are considering imposing a mandatory vaccination policy, so that the matter can be discussed further and to avoid any possible discrimination or Equality Act (“EA”) claims as a result.
An Employment Tribunal (ET) has very recently handed down a decision in a landmark case, regarding whether sending a pregnant worker home during COVID-19 was indeed discrimination. The ET recently decided it was not discriminatory to send a pregnant worker who was working under a zero hours contact home during the pandemic for health and safety reasons. It is important to note that the pregnant worker was sent home for health and safety reasons and was also not permitted to return to the workplace for several months.
This landmark decision is arguably very useful for employers, and provides some reassurance that they are able to take the necessary steps during the ongoing pandemic to act in the best interest of their employees’ safety, without this being viewed as discriminatory. With the NHS track and trace app’s ‘pingdemic’ continuing, with numerous workers being asked to self-isolate, it is important that employers are able to take the required necessary steps for health and safety as they say fit.
Notwithstanding this, it is also crucial to consider that each employee’s circumstances will undoubtedly be different and therefore the above ET decision may not be applied to all circumstances. However, in the above case, the ET was complimentary of the employers actions and stated that “the respondent appeared to do all it could to keep the employee and her baby safe through the Covid-19 outbreak”.
INDIRECT SEX DISCRIMINATION
Further to our May employment law review, there has been the landmark case of Dobson v North Cumbria Integrated Care, whereby the Employment Appeal Tribunal (“EAT”) held that it was appropriate to consider the concept of ‘childcare disparity’ when determining whether women were disadvantaged by a specific policy. This ‘childcare disparity’ concept resembles that of the current societal norm and assumption that women have greater childcare responsibilities than men, and the EAT ruled that such ‘childcare disparity’ should be considered when assessing whether women are disadvantaged by particular policies, and in this case, the policy was to change working days from being fixed to flexible.
In the Dobson case, the claimant was personally disadvantaged by the above-mentioned changes due to her childcare commitments, however the ET ruled against her, ruling that there was no group disadvantage of this policy because none of her colleagues were similarly disadvantaged.
However, when this case was brought before the EAT, the EAT overruled the ET’s previous judgment, and considered that this principle of ‘childcare disparity’ should have been taken into account. However, in doing so, the EAT confirmed that although it might be appropriate to take into account ‘childcare disparity’ (as in the above case), this does not necessarily mean that there will be a group disadvantage (disadvantage similarly shared by team/colleagues) as this will undoubtedly depend on the proposed policy in question.
We hope that the above updates in employment law has provided a helpful summary in not only the COVID-19 updates but other important changes in employment law. If you wish to receive detailed legal advice in this area, then please do not hesitate to contact our Employment Department: