United Kingdom

A tribunal found that Mrs Mhindurwa, who worked as a care assistant, was unfairly dismissed when Lovingangels Care Limited refused to consider furlough and made her redundant in July 2020. The tribunal accepted that there was a genuine redundancy situation since the work she was employed to do had diminished. That said, given the whole purpose of the CJRS was to avoid redundancies, the tribunal found that in July 2020, a reasonable employer would have considered furlough as an alternative to redundancy. It was significant that the employer could not explain why furlough was not considered (or was not considered suitable) for Mrs Mhindurwa and did not appear to have considered furloughing her temporarily to see whether work became available.

However, another tribunal reached a different conclusion on a different set of facts.

Mr Handley worked for a small private airfield where he provided private flying lessons and flight experiences. Shortly after the first lockdown was announced, Tatenhill Aviation Limited decided to close the flying school. It agreed to furlough Mr Handley “for a period of three weeks initially or until [he] could return to work as normal”. The business had been struggling financially pre-pandemic and, in April 2020, it began to consider redundancies. The flight training part of the business had no income at all and they envisaged this would remain the case for the foreseeable future. Mr Handley was made redundant in August 2020 and brought a claim for unfair dismissal, arguing that the furlough agreement prevented his redundancy. The Tribunal disagreed. It accepted that the employer needed to cut costs irrespective of the CJRS and that it wanted to use the CJRS to pay some of the costs of the redundancy. Although another employer may have chosen to leave Mr Handley on furlough for longer, the tribunal found that the employer’s decision was within the range of reasonable responses open to it on these facts, and the decision to dismiss despite the existence of the CJRS did not make his dismissal unfair.

Key Action Points for Human Resources and In-house Counsel 

Cases concerning whether furlough should have been used as an alternative to redundancy are fact sensitive. These decisions are from first-level Employment Tribunals, so are not binding on future tribunals, but they suggest that tribunals may expect employers to have considered furlough when contemplating redundancies. Although it is not necessarily unfair to make an employee redundant while the CJRS exists, it may be unfair if furlough is not considered as an alternative or a good explanation cannot be provided as to why furlough was considered and was rejected.

Mhindurwa v Lovingangels Care Limited

Handley v Tatenhill Aviation Limited

For employees recruited after 1 July 2021, UK employers will no longer be able to accept only an EEA or Swiss passport or relevant National ID Card as evidence of a lawful right to work in the UK. Instead, they will need to see proof of immigration status which will include but not necessarily be limited to eligibility under the EU Settlement Scheme or the UK’s new Points Based System (PBS) immigration framework. On a separate note, temporary changes to the rules governing the employer’s duty to check and document a worker’s right to work in the UK have been in force from 20 March 2021 due to the pandemic. These temporary changes will remain in force until 31 August 2021.  

Brexit: The UK left the EU on 31 January 2020 and entered into a transition period which ended on 31 December 2020.  During the transition period, free movement continued between the UK and the EEA and Switzerland.  Those EEA and Swiss citizens, and where relevant eligible non-EEA / Swiss dependent family members, residing in the UK by 31 December 2020 could apply for immigration status under the EU Settlement Scheme to enable them to continue to live and work in the UK. Applications for immigration status under the Scheme needed to be submitted by 30 June 2021, albeit there are provisions facilitating applications post that date if specific criteria are met. Applicants could apply for Settled Status (if they had been in the UK for five continuous years immediately preceding the application or in certain circumstances for a historic continuous five year period) or Pre-Settled Status (if they had been in the UK for less than five years). As is the case for non-EEA / Swiss nationals, EEA / Swiss nationals commencing employment / work in the UK after 1 January 2021 will need to meet the requirements of the new PBS, rolled out in full for applications submitted from January 1 2021 or other UK Immigration categories.  

COVID-19: Employers have a statutory duty to prevent illegal working and must carry out certain checks to ensure employees have the right to live and work in the UK.  Temporary changes, in place since 30 March 2020, have facilitated right to work checks to be carried out by prospective employees sending scanned copies of compliant ID documents via email, followed by a confirmatory ID video call.

As in pre COVID times, Employers would also have the right where eligible and with the employee’s consent, to conduct right to work checks online utilising the Home Office portal.

From 1 September 2021, employers must once again either:

• Check the applicant’s original documents in the employee’s physical presence and retain certified copies, or
• As above, check the applicant’s right to work online via the Home Office’s portal, if they have given the employer their share code.

Key Action Points for Human Resources and In-house Counsel 

Employers should review existing right to work policies and procedures ensuring they meet the new requirements for employees of all nationalities commencing employment post-30 June 2021. Separately, post-31 August 2021 the COVID concessions will end requiring employers to reinstate previous requirements to check and document an employee’s right to work.

For England, on 19 July the government’s working from home guidance ended, along with the mandatory wearing of face masks and the one meter-plus social distancing rule.  Scotland, Wales and Northern Ireland have set out their plans for the lifting of restrictions separately.

The scrapping of the work from home guidance doesn’t necessarily mean that employers will be requiring everyone to return to the office. Instead, the Prime Minister said it will be up to employers to determine their own working patterns.

Although employers have been given the green light to start to plan a return to the workplace, it will be important that employers take care as to how they deal with certain categories of worker so as to avoid employee relations problems and litigation risks. Some employees may be reluctant to return to work, perhaps because they still regard themselves (or people they live with) as vulnerable to infection, either from their work colleagues or by travelling on public transport.  Other employees may be suffering the effects of long Covid or struggling with mental health issues because of the pandemic and the prolonged isolation. Some employees may have got used to working from home and prefer it to continue – such as those with childcare responsibilities or those who have been working abroad.  These issues if not handled correctly could present risks of claims such as for discrimination and unfair dismissal, including automatically unfair dismissal for health and safety reasons.

Employers will now be considering their options, whether that is getting their workforces back to the workplace or continuing with some remote working where that way of working has proved successful.  Working from home has after all become part of the new normal for many office-based workers. Whereas previously, some employers were reluctant to allow regular or widespread homeworking, the pandemic has challenged these attitudes and has arguably paved the way for less traditional working models to thrive.

More information can be found in our recent Covid-19 articles:

• Post-pandemic flexible working
• The key themes on the updated 6 government guides “working safely during coronavirus”
• Ways we can support your workforce return to work safely and lawfully or to put in place more agile working arrangements

Key Action Points for Human Resources and In-house Counsel 

Employers in England should consider taking the following key steps when planning a return to the workplace:

• Review the updated government guidance “Working Safely During Coronavirus”, implement any necessary changes, and update COVID health & safety risk assessments
• Plan your communications with staff
• Consider any vulnerable workers
• Consider alternative options and what adjustments you may be prepared to make to address any concerns about returning to the workplace
• Update policies on self-isolation and in relation to people travelling abroad
• Review flexible working, home/agile-working and grievance policies.

IT professional, Mr Montanaro, worked in the UK for Lansafe Ltd. Italy went into lockdown while he was there on annual leave. Unsure of whether he could travel back to the UK, he explained the situation to his employer and was asked to wait for further instructions. No further instructions were given despite Mr Montanaro contacting his manager. He continued to work remotely and only discovered he had been dismissed on 1 April 2020, when an email was sent to him which referred to his dismissal.

A dismissal letter dated 11 March 2020, which Mr Montanaro had never received, referred to unauthorised absence and said that Mr Montanaro had not been in contact with his manager or provided reasons for his absence. The employer did not invite Mr Montanaro to a disciplinary hearing before dismissing him.

Under UK law, an employee is automatically unfairly dismissed if the reason (or, if more than one, the principal reason) for their dismissal is that, in circumstances of danger which the employee reasonably believed to be serious and imminent, they took (or proposed to take) appropriate steps to protect themselves or others from the danger.

The tribunal found that Mr Montanaro had been automatically unfairly dismissed. Due to the declaration of a worldwide pandemic and the significant levels of infections and deaths at the time, Mr Montanaro had reasonably believed the virus to be a serious and imminent danger that could be avoided. He had taken appropriate steps to protect himself and others and communicated about the situation in Italy to his line manager.  There was no refusal to work. The dismissal letter was inaccurate. The Tribunal concluded that Mr Montanaro had been dismissed because he had communicated the difficulties posed by the pandemic and proposed to work remotely from Italy until circumstances changed.

Key Action Points for Human Resources and In-house Counsel 

Cases concerning refusal to attend the workplace are fact sensitive. This decision is from a first-level Employment Tribunal and is therefore not binding on future Tribunals. However, it is useful as it demonstrates that employers should be careful not to take rushed decisions if an employee fails to attend work due to COVID related reasons. Where, for example, an employee becomes stranded overseas and expresses concerns for their health and safety, employers should take a considered approach to dealing with the situation.

Employers should always consider the relevant government guidance that is available at the time, as this is a relevant (albeit not determinative) factor that Tribunals will take into consideration.

The case also highlights the importance of having clear rules and procedures in place for annual leave and remote working and making employees aware of these from the outset to avoid misunderstandings.

Montanaro v Lansafe Ltd ET/2203148/2020

The government’s response to the Women and Equalities Committee report on the gendered economic impact of COVID-19 rejects many of the Committee’s recommendations. This includes recommendations for a review of the adequacy of statutory sick pay, amendments to Form HR1 to capture protected characteristic information, the funding of training schemes aimed at women in certain fields and the publication of a gender equality plan for apprenticeships.

However, it does say:

• Amendments to the Flexible Working Regulations to remove the 26-week service requirement for making a flexible working request will be considered. The government wants to make it easier for people to work flexibly and is committed to encouraging flexible working. It will consult on making flexible working the default position in due course.
• The government is committed to bringing forward an Employment Bill “when parliamentary time allows”. However, there was no mention of an Employment Bill in the Queen’s Speech of 11 May 2021. Consequently, the government will not publish the draft Employment Bill by the end of June 2021 as the report recommends.
• The government does still intend to extend the redundancy protection period afforded to mothers on maternity leave. This protection will apply to pregnant women and for six months after a mother has returned to work and will also cover those taking adoption and shared parental leave. The measures will be brought forward “as soon as Parliamentary time allows” – no specific timeframe is given. The government is also considering proposals to require large employers to publish their parental leave and pay policies, and its formal response to a consultation from July 2019 is awaited.

Key Action Points for Human Resources and In-house Counsel 

On other equality issues, while calls for introducing disability pay gap reporting have been rejected, the government has said that it will respond to the ethnicity pay gap consultation in due course.