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Two new Covid-related employment tribunal decisions

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Two new Covid-related employment tribunal decisions

Slowly, but surely, we are seeing more Covid-related cases filtering through the tribunal system. There have been some decisions already released on furlough and unfair dismissal and now we have two more; one relating to pregnancy and another relating to the dismissal of an employee who refused to attend his self-isolating manager’s home. Although we are likely to encounter fewer Covid-related issues in practice, the points drawn out are worth bearing in mind. Keep reading to find out more.

Alleged discrimination of pregnant worker

In Prosser v Community Gateway Association Ltd (2413672/2020), Ms Prosser was sent home at the start of the pandemic in March 2020 as she was deemed clinically vulnerable by her employer because she was pregnant. 

She wished to return to work in May 2020 and her employer conducted a specific risk assessment to ensure that it would be safe for her to do so. 

It decided that she could work during the day once Perspex screens had been fitted, but that it was not safe for her to undertake night shifts as this involved lone working. There was a delay in her returning to work whilst her employer carried out changes in the workplace in accordance with the risk assessment, such as spacing desks out and installing the screens. 

Ms Prosser raised a grievance, stating that she had suffered pregnancy discrimination due to the delay in her returning to work and because she had not been paid for the shifts she had been scheduled to work. Her employer confirmed that she could return to work and also retrospectively paid her for her missed shifts that were scheduled between April – July 2020. She returned to work in August 2020 and her grievance was not upheld. 

Ms Prosser subsequently brought a claim against her employer asserting that sending her home in March 2020 and not allowing her to return until August 2020, and the delay in payment of her salary amounted to direct pregnancy discrimination. 

The tribunal rejected Ms Prosser’s claim, stating that the employer’s treatment of her was not unfavourable, but was appropriate taking into account Covid-19 regulations and guidance. The delay in paying Ms Prosser was found to be a genuine mistake and not related to her pregnancy. The tribunal went as far as to say that it appeared her employer had done all it could to keep her and her baby safe through the pandemic and that it paid her beyond the terms of her contract. 

What is the implication of this decision? 

This is one of the first judgements that addresses the issue of pregnancy during the pandemic and it centres upon the approach the employer had taken. 

This will be a welcome decision for employers that may have decided to send pregnant workers home where they felt it was unsafe for them to continue working. It will also provide comfort to employers considering similar measures now. It highlights the indispensable benefit of risk assessments when assessing an employee’s suitability to return to work. Had the employer omitted to carry one out, and not had written evidence of it, there may have been a different outcome. 

Dismissal was automatically unfair dismissal for raising health and safety concerns 

In Ham v Esl Bbsw Ltd (1601260/2020), Mr Ham was dismissed from his job when he refused to deliver equipment to his manager’s home, who had Covid-19 symptoms and was self-isolating. In the appeal against his dismissal, he explained that he was concerned for his own health and safety and that of his family and that he had offered to deliver the equipment to another location. 

The tribunal found that Mr Ham’s dismissal was automatically unfair as he had raised health and safety concerns, contrary to section 100(1)(c) & (e) of the Employment Rights Act 1996. Whilst it was taken into account that the manager who dismissed Mr Ham was inexperienced and was dealing with a novel situation in March 2020 with regard to the pandemic, her reaction to his legitimate concerns was found to be inexcusable by the tribunal. 

What is the implication of this decision? 

This decision highlights that, where it can be shown an employee reasonably believed that they are at risk of serious or imminent danger and took steps to protect themselves, a tribunal is willing to find any subsequent dismissal to be automatically unfair. 

It is important to remember that where an employee raises concerns about health and safety, employers should take time to ascertain the facts first and not jump to conclusions that they are unreasonably refusing requests or dismiss their concerns out of hand. Employers should ensure they communicate with employees if concerns are raised, in the context of the pandemic and beyond, with a view to avoiding time-consuming grievances and potentially costly claims.   

If you are an employer and you have concerns about any of the above in relation to your workforce, please do not hesitate to contact us. Likewise, if you are an employee and you feel you have been discriminated against due to pregnancy, or any of the other protected characteristics, or you feel you suffered a detriment or were dismissed due to raising health and safety concerns, please get in touch, we would be very happy to help.

If you require any more information on this topic please contact me via Rianna.Billington@birkettlong.co.uk or 01245 453812

 

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