Health and safety cases Whatever the cause, if the termination of employment is an "unfair dismissal", the employee may be likely to be awarded damages in respect of the unfair dismissal or reinstatement of employment, or both. What is automatic unfair dismissal? Cocaine-test bus driver wins unfair dismissal case. As well as changing general health and safety regulations, the coronavirus situation has created new working environments specific to each sector. That outcome may include reinstatement to your former role on full or (agreed) reduced salary; leaving your employment with a fair exit payment and settlement agreement, or – as a last resort – issuing a tribunal claim: Under section 44 of the Employment Rights Act 1996, you are actually entitled to be paid 100% of your normal salary if you stay at home due to an unsafe workplace, and you can’t lawfully be dismissed for doing so. This case is representative of a wider issue brought by Covid-19 that disproportionately affects key workers and people in lower-paid jobs. If an employer feels they need to dismiss someone because they do not have any work for … You can: Situations when your dismissal is likely to be unfair include if you: asked for flexible working. 19 June 2020. Again, these are still relevant, even though they don’t specifically focus on coronavirus / covid-19 situations. The 3 groups of employees who are being or have been subjected to pay or salary detriments and that we have come across most often, include the following: This includes you if you were sent home without any pay, or opted to stay at home and not be paid, or only been paid statutory sick pay. As with s 44 of the same Act, there is no minimum length of service (see above), so even if you’ve been employed for under 2 years, dismissal in these circumstances can still be regarded as unfair. Sign up to PM Daily and keep up to date with all the latest HR and business news from, People Advisor - People and Organisational Development - South Yorkshire Police, Senior Gender, Diversity and Inclusion Advisor. These unsavoury tactics include the falsification of … COVID-19 posing unfair dismissal problems Sky News Australia. In doing this, the employer opened themselves to liability for unfair dismissal under sections 100 and 103A of the Employment Rights Act 1996. The legislation referred to at the beginning of this article (s44 and s100 of the Employment Rights Act 1996) protects the health and safety needs of all vulnerable employees who are afraid to attend work because they believe it to be unsafe. But some have been ignoring the government guidelines, as well as their staff’s legitimate concerns. Since the coronavirus outbreak, they have evolved fast, so it is imperative that employers put in place effective mechanisms to ensure their business is up to speed with the latest government guidance.Â, To reassure staff and demonstrate proactivity, they should implement new procedures and policies on social distancing, limit face-to-face contact, carry out rigorous risk assessments of vulnerable groups and promote good hygiene generally.Â, The pandemic is also likely to result in an increase in mental ill-health. What’s more, there is no 2 year minimum employment requirement (as there is with most other kinds of unfair dismissal claims) for you to have these rights. Meanwhile, employees can hope to see their rights enhanced. Automatically unfair reasons Some things are 'automatically unfair' if they’re the main reason for dismissing an employee. There are 2 ways you might be able to challenge your dismissal: appealing through your employer’s appeal process; making a claim to an employment tribunal - if you have a genuine unfair dismissal claim and have worked for your employer for more than 2 years; Before you appeal to your employer, you need to think carefully about whether you really want your job back. The Law Commission is aiming to extend the time limit to file a complaint, to give employees more time to consider their legal options. This means that you can’t lodge your application at the Fair Work Commission in person. Share. Unfair dismissals in the age of coronavirus 26 May 2020 By Richard Thomas Richard Thomas explores how employers can best mitigate the risk of claims in the new working environment brought by Covid-19 During the pandemic, employers that require their employees to work during lockdown have had to implement additional safety measures. Hopefully, this will encourage a wider culture change, whereby employers no longer think that their word is final, and listen to their employees’ genuine concerns more than usual. As an employee, you may or may not be able or permitted by your employer to carry out your work from home. The NHS website gives full lists of people recognised by the relevant UK authorities as being vulnerable. Civil Justice Council Forum talk 11.12.20. About sharing. Ex-Home Office chief Sir Philip Rutnam has lodged an employment tribunal claim for unfair dismissal and whistleblowing against Home Secretary Priti Patel. Your employer might be allowed to discipline you, but not to dismiss you. Dismissing someone because of coronavirus (COVID-19) During the coronavirus pandemic, employees have the same rights as usual to not be unfairly dismissed. You can make them aware by forwarding them a copy of this article, or else by using our Coronavirus Employment Rights App which provides you with template letters for that purpose. close. This view also takes account of the employee’s knowledge about the nature of the threat (coronavirus in our case) and health and safety factors in the workplace at the time. In this context, promoting a collaborative culture at work is essential, to create a safe space where managers adopt softer skills with their employees.Â. There is legislation, such as sections 100 and 103A of the Employment Rights Act, which protects employees raising legitimate concerns about their health and safety or that of their colleagues. Claiming constructive dismissal Constructive dismissal arises where an employee is not actually dismissed… Read on . What are your coronavirus health and safety rights at work? It’s a complex area of employment law, but if a claimant is successful, the compensation awards can be substantial. In any claim against your employer you would need to show that you self-isolated because you believed there was a danger to yourself or others from covid-19, and that was the reason why your employer dismissed you. Although it is unlikely that many people exercised this right in the early months of the pandemic, it may be a last resort for you now that the furlough scheme has closed to new entrants. Managing the risk. So, it follows that if you or a member of your household are vulnerable, you will want to take all possible steps to avoid contracting the disease. (b) Employees retained only if they accept a pay cut: Some employers have had reduced demand for their products or services but had sufficient income to be able to keep paying you at a reduced rate of pay. You can rest assured that you will be in the hands of experts who have years of experience of winning cases for employees, yet who understand where you are coming from and the need for a friendly, jargon-free approach. Unfair methods are sometimes used at disciplinary hearings, appeal hearings and arbitration hearings. Dismissal in a redundancy case may also be an unfair dismissal. Section 100 does not give you an absolute right to withdraw your labour if you think your workplace is unsafe. Neither s44 nor s100 of the Employment Rights Act 1996 can help you here. The need for social distancing and not enough space to practise it, Being in public facing roles (eg cashier, receptionist) and with inadequate protection, Inadequate cleanliness in the workplace (eg no provision for cleaning of surfaces during working hours), Having to share equipment in such a way that it cannot be cleaned after each individual has used it, Personal protective equipment (PPE) needed but none or insufficient available (eg in jobs that involve close contact with people who have not been tested for coronavirus), for more detail on what an underlying health condition means from a medical viewpoint.). An alternative – and a preferable – option would be for you to reach an amicable financial settlement with your employer in the form of an exit package or settlement agreement. However, if your employer consistently refused to put you on the furlough scheme, and you suffered a pay cut or even no pay as a result, then you need to review what other options may be available to you as the scheme closed to new entrants  on 10th June 2020. Some reasons for dismissal are classed as ‘automatically unfair’ when the reason for dismissal is proscribed by certain statutory provisions as inadmissible. Your employer is obliged under common law and also under Section 2(1) of the Health and Safety at Work Act 1974, to “ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees”. Unfair treatment for not attending a coronavirus unsafe workplace, Not being paid and other unfair treatment for failing to attend an unsafe workplace. When might you feel unsafe and at risk of getting coronavirus at work? All in all, the law is on your side and it is probable that you would have a case against your employer in an employment tribunal. A nurse sacked over claims he falsified vital patient observations is pursuing an unfair dismissal case at an employment tribunal. The Act essentially says that employees should not be punished or suffer any losses (it uses the phrase ‘‘subjected to any detriment’) for taking such steps. As mentioned earlier, this applies whether or not you or someone in your household are vulnerable. Worse, some have sanctioned their employees for raising concerns in the workplace – dismissing them on claims that they haven’t met standard of conduct.Â, That’s what three delivery drivers working for a franchise store of Domino’s Pizza in Llanelli, Wales, believe happened to them. The steps that employees are taking to protect themselves in our present covid circumstances are to remove themselves from the workplace, and to remain away from it whilst the threat of coronavirus remains imminent there. AN immigration officer sacked for alleged racist remarks has won a claim of unfair dismissal. Were you refused furlough because you thought it was unsafe to attend work? At a practical level, try to take some photos of your work or other evidence, eg. 100(1) (d)-(e) of the Employment Rights Act 1996, Section 100 of the Employment Rights Act 1996, Harvest Press Ltd v McCaffrey 1999 ILRL 778, Teasdale v John Walker T/a Blaydon Packaging (12.4.99 Case No.2505103/98), claims of unfair dismissal is £88,519, or 52 weeks gross salary, how much you should get in your settlement agreement, the Employment Rights Act 1996, section 44, Health Protection (Coronavirus) Regulations 2020, at Regulation 3(1), Letter from employee dismissed/made redundant due to lack of work’, get in touch with us at Monaco Solicitors. Therefore if your employer has withheld your pay, then you should ask them to reimburse you with back-pay for the income lost so far, and – if appropriate – to reinstate you on the payroll. Here are some ways in which the law protects your rights in such circumstances and which you could initially use as leverage to negotiate with your employer for a fair outcome. There can be no doubt that coronavirus presents a ‘serious and imminent’ danger. So, it follows that if you or a member of your household are vulnerable, you will want to take all possible steps to avoid contracting the disease. HTML File(s): 2019fwc1235.htm (94.25 KB) It is unlawful for your employer to dismiss, make redundant or otherwise subject you to any loss – such as reducing your pay, bullying you, or any other mistreatment – because you have left the workplace or refuse to attend it in the above circumstances. Moreoever, from a legal point of view, it is not unreasonable for you to think that the workplace might be a source of imminent danger to your health and safety if you were forced to attend. 1079797. refused to give up your working time rights - for example, to take rest breaks. They worried that not enough dedicated PPE was being provided, that the policies for delivery drivers did not go far enough to sufficiently ensure their safety, and that the food preparation staff within the store found it impossible to keep two metres apart, in part because of the number of staff on each shift, and the footprint of the store.Â. However, if the way in which your redundancy has been carried out is unfair, then you may have a case for what’s called ‘procedurally unfair dismissal’. Section 100 of the Employment Rights Act 1996 relates to health and safety dismissals. Alternatively, you would have a good basis to argue for compensation and to negotiate an exit settlement agreement to bring your current employment to an end. 20 November 2018. Inadmissible … You are entitled to full pay at this time under section 44. A disability is defined as ‘a physical or mental impairment that has a substantial and long-term [12 months or more] negative effect on your ability to do normal daily activities.’ (Source: gov.uk website.). Unfair dismissal claims have soared to record levels as Australians lose jobs en masse because of the coronavirus crisis, as Treasury believes Australia could be in the midst of its unemployment peak. Businesses have a legal duty to protect the health and safety of their employees by ensuring compliance with the regulations as they evolve. Being put on the scheme under duress like this could also be counted as a ‘detriment’. What does being vulnerable or having underlying health conditions mean? You do not have to accept any reduction in pay, because you have taken protected action under the Employment Rights Act 1996. It is likely you will be dismissed before you reach either and for arbitrary reasons such as an alleged complaint by a customer or perhaps your failure to fit in with the culture. For example: Harvest Press Ltd v McCaffrey 1999 ILRL 778 and Teasdale v John Walker T/a Blaydon Packaging (12.4.99 Case No.2505103/98). All three employees posted comments to a private employee-only Facebook group. If your employer is made aware of the main points of the law, they may be more inclined to re-think their approach and agree to pay you fully/fairly, or to take whatever other steps are necessary to balance their employment needs with your health and safety ones. Whether employees work from home or return to the office, employers may want to consider wellbeing initiatives – such as training line managers on spotting the signs, appointing mental health first aiders, organising events and ‘wellbeing’ days, and promoting work-life balance.Â, There is an inherent risk of catching the virus by entering the workplace, so enabling flexible working is highly recommended. During the coronavirus (COVID-19) pandemic, employees have the same rights as usual to not be unfairly dismissed. You were not yourself sick, although you may have been vulnerable to catching covid-19 because of your age or medical condition (see earlier), or there may have been someone vulnerable in your household. So even if you are completely healthy and so is everyone in your household, then it may be illegal for your employer to dismiss you for self-isolating. Unfair dismissal claims have increased by 70 per cent during the coronavirus crisis, with the Fair Work Commission dealing with an "unprecedented" caseload. These are to do with the following areas: 1. pregnancy, including all reasons relating to maternity 2. family, including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants 3. acting as an employee representative 4. acting as a trade union representative 5. acting as an occupational pension scheme trustee 6. joining or not joining a trade union 7. being a part-time or fixed-term employ… When autocomplete results are available use up and down arrows to review and enter to select. Your employer has breached your employment contract in this scenario and you again have a right to resign and sue for constructive dismissal, or to ask for a settlement agreement as for (a) above. If you think you have been unfairly treated by your employer because you refused to attend a workplace that you thought was a covid-19 threat; if you have failed to resolve the problem or are unhappy with the outcome, then get in touch with us at Monaco Solicitors to see if we can help. If you have been made redundant because you decided to self isolate from coronavirus and not to attend your workplace, you may have a claim for ‘automatic unfair dismissal’, as also mentioned earlier in the section on dismissals. As briefly mentioned earlier, the Employment Rights Act 1996, section 44 is about the rights of employees to be provided with a safe working environment. For the purposes of this article, the main ones are as follows: have a lung condition that’s not severe (eg asthma, COPD, emphysema or bronchitis), have diabetes, liver, heart or chronic kidney disease, have a condition affecting the brain or nerves (such as Parkinson’s disease, motor neurone disease, multiple sclerosis or cerebral palsy), are having chemotherapy, radiotherapy or other cancer treatments, are taking medicine that makes them much more likely to get infections (such as high doses of steroids or immunosuppressant medicine). Less well publicised is the fact that the same legislation also protects your health and safety at work needs if you are not vulnerable – in other words if you are in good health. gives full lists of people recognised by the relevant UK authorities as being vulnerable. However, under section 44 of the Employment Rights Act and related judgements, what really matters is not what your employer thinks, but whether you believe that the workplace is unsafe and so are taking appropriate steps in the circumstances. coronavirus; Workplaces where COVID-19 vaccine may become mandatory. if there are people working within 2 metres of each other. If your employer is made aware of the lack of safety of the workplace, but still does not take steps to remedy any such shortcomings, you have the right to continue not to attend until such time as your employer resolves the problems. Joel Gold, 47, was accused by two colleagues of … What about employees who are not vulnerable to coronavirus? A former manager lost a claim before the Employment Rights Tribunal (ERT) yesterday that he was unfairly dismissed on reaching age 65, but he did … Looking back at 2020 – the year HR stepped up. Under sections 20 & 21 of the Equality Act 2010, if you have an underlying health condition, you might have a claim for disability discrimination if your employer refused to offer you furlough leave. Under Sections 44(1) (d)-(e) and 100(1) (d)-(e) of the Employment Rights Act 1996, you are also entitled to leave the workplace and to refuse to return to it until any imminent danger (such a the risks of contracting coronavirus) has passed, so as to protect yourself – and possibly others too  –  from the danger. If you have refused to attend, and then been unfairly dismissed, had a pay cut, been bullied, or suffered other kinds of ill treatment by your employer because of your refusal, then this article is for you. However, if you are dismissed for self-isolating due to coronavirus then this could amount to automatically unfair dismissal under the Act. Unfortunately, you don't have any rights to challenge your dismissal if your employment status is: self-employed; an agency worker or classed as a ‘worker’ a police officer or in the armed forces; a registered dock worker 24/03/2020. It costs nothing to ask! Fair Work Commission general manager Bernadette O'Neill told a Senate committee on Thursday claims were up 70 per cent. Share page. This group includes you if you were placed on the government Coronavirus Job Retention Scheme mentioned earlier and often just called the ‘furlough scheme’. The criteria for an ‘Unfair Dismissal’ application is a minimum service period of Six months for businesses with over Fifteen employees and Twelve months for businesses with less than Fifteen employees. Should HR encourage organisations to return furlough funds? Here’s the exact wording: “44. When is a workplace a serious and imminent health and safety threat? The Fair Work Commission (the Commission) decides on cases of unfair dismissal. Mass exodus of non-citizens to trigger historic fall in population. It is also proposing to increase the powers of the tribunals, to decide claims of breach of contract brought by employees and workers while they are still employed – not just once they have left employment. Employers will need to alleviate these concerns and balance these with responsible measures, otherwise they will cause problems down the line. Copy link . This issue will only become wider in the months to come as lockdown is gradually eased and people progressively return to work. See also our articles on unfair dismissal and how much you should get in your settlement agreement for further details, and for practical advice on being unfairly dismissed. Coronavirus (COVID-19) & unfair dismissal cases. Under section 19 of the Equality Act 2010, if you are an older person, you could have a claim for indirect age discrimination if your employer refused you entry to the furlough scheme. Application for an unfair dismissal remedy – application dismissed. you are also entitled to leave the workplace and to refuse to return to it until any imminent danger (such a the risks of contracting coronavirus) has passed, so as to protect yourself – and possibly others too  –  from the danger. You may of course have been made redundant or be facing redundancy because of lack of work caused as a result of the coronavirus. There are four potential issues which might make a redundancy dismissal unfair. But again, having up-to-date policies and procedures, and ensuring managers are up to speed with their content, will be key to ensure smooth functionality and avoiding unfair dismissals when business resumes.Â. There is a template letter on our website called ‘Letter from employee dismissed/made redundant due to lack of work’ which you can adapt to suit your own situation and send to your employer in an attempt to get a better financial settlement than just statutory redundancy pay. Can employers force staff to have the Covid vaccine. As mentioned earlier, however, negotiation is always preferable, not least because these types of cases have not yet come to court so we don’t know how the judiciary will deal with them. Under the Fair Work Act 2009 (Cth), a person has been unfairly dismissed, if the Fair Work Commission (the Commission) is satisfied that an employee (who is protected from unfair dismissal) has been dismissed and the dismissal was harsh, unjust or unreasonable, and was not consistent with the Small Business Fair Dismissal Code (in the case of employees of a small business), and was not a case of … COVID-19 (Coronavirus) Employment law; Equality and diversity; Working environment; Health and safety rights at work; Wellbeing; Working arrangements; Careers and skills; Pensions and retirement ; Freelancers; Training; Related Topics. Unfair dismissal. It is the health and safety of the work place which you need to demonstrate is risky. However, if you are dismissed for self-isolating due to coronavirus then this could amount to automatically unfair dismissal under the Act. Sometimes employers have been making employees suffer in other ways as well, like bullying them and not allowing them to work from home when the work could have been done from home. There are various reasons why you may have genuine fears about your safety in the workplace due to coronavirus. You do not need to be a vulnerable employee to be given dispensation from attending work if you believe it to be unsafe there. The reason for their dismissal was put down to vague ‘conduct’ reasons and was not expanded upon. If you or a member of your household are vulnerable, then that means that you are at higher risk of the virus affecting you particularly badly, should you contract it. As mentioned earlier, this applies whether or not you or someone in your household are vulnerable. Although this legislation was enacted over twenty years ago, it has not been superceded since then and so still applies. Attention to the provisions of the Fair Work Act 2009 (Cth) and the Small Business Fair Dismissal … So it follows that it would not be unreasonable if you refused to attend the workplace in such circumstances. Even if you’ve acted reasonably, some reasons for dismissal are classed automatically unfair. Unreasonable refusals of reasonable requests will not be welcomed by the tribunals. You have what’s generally referred to as an ‘underlying health condition’. Although both these cases are old and of course pre-date the covid-19 crisis, they are still relevant so far as the law and health and safety dismissals generally are concerned. Unfair dismissal claims have soared to record levels as Australians lose jobs en masse because of the coronavirus crisis. For everyone’s safety, our counters are closed. Have you at any time refused to attend your workplace because you thought it unsafe due to coronavirus risks? In the first few months of the pandemic, we at Monaco Solicitors discouraged any form of legal action against employers in response to their ill treatment of employees. Constructive dismissal is a form of unfair dismissal. Richard Thomas explores how employers can best mitigate the risk of claims in the new working environment brought by Covid-19, During the pandemic, employers that require their employees to work during lockdown have had to implement additional safety measures. If your employer doesn’t uphold this obligation, they can be investigated by the Health and Safety Executive and even face a criminal prosecution. For the purposes of this article, the main ones are as follows: If you are in this category, you will have been told (by the NHS) that you may not attend the workplace, and that you are subject to a range of other restrictions, commonly called ‘shielding’. image copyright Martin Addison/Geograph. Employees have to apply to the Commission within 21 days of the dismissal taking effect. Your employer may say there is work to be done at the workplace and doesn’t agree that the workplace is a danger or threat to your health and safety. The national company presented "Swan Lake" in southeastern city of Daegu on Feb. 14-15 and as the number of COVID-19 cases in the city spiked … (See the patient.info website for more detail on what an underlying health condition means from a medical viewpoint.). You had a right to resign in this kind of situation and to sue your employer for constructive dismissal. 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