Employment Law Update August 2021

Is a dismissal unfair if an employer refuses to hear an appeal?

Whilst it is best practice to offer employees the opportunity to appeal following the disciplinary process (and it is advised by Acas that employers do so) in the matter of Moore v Phoenix Product Development Limited the Employment Appeal Tribunal decided that refusal to hear an appeal does not automatically make a dismissal unfair (in certain circumstances).

Mr Moore stepped down as CEO of the company but remained a director and employee. The relationship between Mr Moore and the company deteriorated and he was dismissed under the category of “some other substantial reason” due to an irretrievable breakdown in the relationship. Mr Moore subsequently pursued a claim for unfair dismissal. Within his claim Mr Moore set out that the company did not provide him with the opportunity to appeal, rendering the dismissal unfair.

The claim was dismissed by the Employment Tribunal as it considered that Mr Moore was entirely responsible for the breakdown of the relationship and that the appeal would have been pointless. The decision was upheld by the Employment Appeal Tribunal which concluded that whilst the appeal would normally be part of a fair procedure, the relevant circumstances should also be taken into account.

However, employers should note that failure to permit an employee to appeal may in many cases result in the disciplinary process being considered unfair.

Can an employee be unfairly dismissed if the employer failed to place them on furlough?

In a recent case before the Employment Tribunal it was decided that employers have a duty to actively consider furlough when making redundancies. The case of Mhindurwa v Lovingangels Care established that the absence of a reasonable explanation for not placing an employee on furlough leave may make a dismissal unfair.

Ms Mhindurwa was employed to provide live-in care for an elderly woman who later moved into a care home. This made Ms Mhindurwa’s role potentially redundant. She therefore asked her employer to place her on furlough leave in May 2020 however this was refused as the company considered that there was no work for her. Ms Mhindurwa was dismissed in July 2020 and thereafter commenced a claim for unfair dismissal.

The Employment Judge considered that a reasonable employer would have given consideration to whether Miss Mhindurwa should be furloughed to avoid dismissal on the grounds of redundancy and therefore concluded that the dismissal had been unfair. The Employment Judge held that although the company had no work for Ms Mhindurwa at the time of her dismissal, it had no way of knowing whether that was likely to change and failed to consider whether Ms Mhindurwa should be placed on furlough leave to allow time to ascertain whether any other work may become available.

Although at the time of Miss Mhindurwa’s dismissal in July 2020 it was not possible for an employee to be placed on the furlough scheme if they had not previously been furloughed, Ms Mhindurwa had asked to be placed on the scheme in May 2020 when it would have been possible to place her on the scheme. Further, the rules of the furlough scheme have since been revised to once again allow employees to be placed on the furlough scheme even if they have not been furloughed previously, which further supports the Employment Judge’s approach.

Compulsory Vaccinations for Care Home Workers

In late July 2021 the government passed legislation compelling care homes to ensure that almost all workers are vaccinated against Covid 19. This legislation will come into force on 11 November 2021 and applies only to care homes in England.

Under the new legislation care homes must ensure that unvaccinated persons do not enter the premises unless they fall into one of the four identified exceptions:

  • care home residents;
  • friends and relatives of care home residents;
  • Emergency help providers (such as ambulance workers, emergency contractors etc.);
  • Children under 18.

Workers who cannot be vaccinated for clinical reasons are also exempt, however religious or philosophical beliefs will not be grounds for care home workers to refuse vaccination. The legislation also bans a large variety of tradespeople who may need to access care homes if they are unvaccinated.

The new legislation is already subject to challenge on the basis that it is unenforceable pursuant to s45E Public Health (Control of Disease Act) 1984 and formal judicial review proceedings are expected to be issued shortly.

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