January 2022 – lots of employment law news – jabs for sick pay, horseplay and vicarious liability, and THOSE parties…

Jabs for sick pay?

We’ve become a little familiar with the ‘jabs for jobs’ arguments, but recently there are growing reports that companies have, or are considering, withdrawing contractual sick pay for unvaccinated staff who have to isolate as a contact of someone with covid, limiting their pay to statutory sick pay (SSP) for the isolation period.  Ikea, Next, Morrisons and Ocado are all big names who have been mentioned as at least thinking about this. 

Ikea have reportedly been clear that they will make exceptions for those unvaccinated for good reason, presumably including medical reasons, and they have said each decision will be taken on a case by case basis.  This is no doubt to protect themselves from possible indirect discrimination claims if someone cannot be vaccinated due to disability or philosophical belief. 

Employers thinking about implementing such a policy should include those safeguards but also, before making any changes, consider whether company sick pay is a contractual term.  If so, it cannot be changed unilaterally and full consultation is required.  Failure to do so could result in constructive dismissal claims. 

All of these risks need to be weighed up and balanced against the cost of absence and employee relations challenges – do you upset the unvaccinated, or the vaccinated who are not happy that their unvaccinated colleagues are at home on full pay?  There are also GDPR considerations to factor it. 

In all, making changes might not be worth the risk, especially if all isolation rules are removed in the spring/summer as is rumoured.

Fair to dismiss for refusing vaccination

Following from above, it was reported today that a care home worker who refused to be vaccinated was fairly dismissed by her employer.  The Claimant in Allette v Scarsdale Grange Nursing Home Ltd cited may reasons for refusing the vaccine, including concern about its safety and also her religious beliefs as a Rastafarian, but ultimately the Tribunal were persuaded by the concerns of the care home that vaccination needed to be mandatory in its case. 

It is clear the employer had considered the issue carefully and relevant factors in their decision that the the home’s insurers had said that they would not provide public liability insurance for COVID-related risks after March 2021 and that the home faced the risk of liability if unvaccinated staff were found to have passed the disease on to a resident or visitor. Following the hearing, the care home concluded that the Claimant did not have a reasonable excuse for refusing the vaccine and that, if she remained unvaccinated, she would pose a real risk to the health of residents, staff and visitors. She was dismissed because the company took the view that it could not make an exception for one member of staff because not all residents could be vaccinated, the vaccine was not 100% effective, and visitors might be unvaccinated.

The Tribunal accepted that the care home had a primary legitimate aim of protecting the health of staff, residents and visitors, and a secondary aim of not risking breaching its insurance policy.  It noted that the Claimant’s fear was genuine, but ultimately the care home was a small employer with a legal and moral obligation to protect its vulnerable residents.

It’s interesting to see these cases coming through, and the case law shows that full consideration and a thorough and fair process are essential for a dismissal to be fair.  Most curious here is that the Claimant did not allege discrimination linked to her religious beliefs.  It would have been interesting to see how the Tribunal would have approached that point.

Tribunal waiting times

Covid has delayed everything in all walks of life.  The already creaking Employment Tribunal system is no different – waiting times up to March 2021 were published this week to be 335 days for claims made by a single employee and 388 days for claims made by multiple employees.  We are seeing this in practice with many of our cases taking 18 months to get to a final hearing.

Horseplay and employer’s vicarious liability for workplace pranks

Horseplay is word rarely heard in everyday life, however it features heavily in the Court of Appeal case of Chell v Tarmac Cement and Lime Limited. 

In this case the Court had to determine whether the employer could be held vicariously liable for the acts of an employee who had used a hammer to strike a pellet target which he had placed on a bench close to the Claimant’s ear.

The prank backfired causing the Claimant to sustain hearing loss and tinnitus.  The employer was not held liable for the employee’s actions. 

Although these things can be a close call, the fundamental question remains whether the wrongful act is sufficiently related to the conduct authorised by the employer to justify the imposition of vicarious liability, which was not the case in this situation.

THOSE party allegations, and the Sue Grey report…

Well, we’re not going to go there…BUT a reminder that actually the ministerial party line of ‘waiting for the investigation report’ is absolutely the right line to take if you are involved with a disciplinary situation at work.

For any misconduct dismissal to be fair, the first step must be a thorough and fair investigation, followed by a disciplinary hearing and finally, the right of appeal must be given. Prejudging any of these critical steps is likely to lead to a finding of unfair dismissal, however blameworthy the individual’s conduct might have been.