Despite April only having 30 days, the seemingly longest month of our lives has ended, which means it is time for our employment law update to round up some of the employment law news of the month. COVID-19 has dominated all news including employment law but will only feature as a segue or McGuffin into other topics in this update.
For those looking for a COVID-19 fix, we have addressed many practical implications of coronavirus in our daily blog posts with a more holistic view on Phil’s Medium blog. If nothing else this editorial choice will provide a much needed change of pace.
Random Statistic of the Month
Whilst over 70% of employers have utilised the Job Retention Scheme to some degree by furloughing some or all staff, the statistic we are interested in this month relates to those who are not furloughed but working remotely.
In simpler times, meetings would usually be face to face. However, lockdown and remote working has seen a huge spike in virtual meetings done via Skype, Teams or Zoom (other software providers are available!). Many of you will have seen viral content of people unintentionally committing, (at best) social faux pas, or, (at worst) indecent exposure in such scenarios.
As such our random stat of the month comes from a study by meeting platform, Mentimeter, which found 1/6 remote workers are choosing to leave their camera off for such meetings as they are only partially clothed or nude. We have had many queries over the past 6 weeks relating to the challenges of remote working but this has not been one of them! However, the figure is something to bear or bare in mind next time you are in a remote meeting of six people, particularly if one has the camera off!
Redundancy and Furlough
Many of you will have seen that many big employers are planning or announcing expected redundancies as the financial impact of COVID-19 begins to reveal itself. This week British Airways announced it could make up 12,000 redundancies due to the collapse of air travel during the lockdown and anticipated reduction of demand following lockdown.
Despite, much of the news lately focusing on a phased return following lockdown the Job Retention Scheme was extended until the end of June. This is almost certainly to prolong collective redundancy consultations of 30 or 45 days to try and delay economic recession and mass unemployment. However, as of the time of writing, the scheme in theory does not prevent furloughed employees from being served notice meaning consultation will begin and notice will be served on furlough. That approach may fall foul of the anti-abuse provisions.
Whilst nothing in the scheme prevents employers from doing this, it is not in keeping with the purpose of the scheme to use state subsidy to pay notice periods for jobs that no longer exist. We have already written [POST TO BE LINKED WHEN PUBLISHED] about how the scheme should be adjusted to mean an employee must be continued to be employed until after then end of the scheme to be eligible for the scheme.
However, it has also been mooted that the scheme should be extended until the Autumn. This would allow jobs to be saved whilst employers gradually return to normal in the eventual exit from lockdown. In doing so the furlough would last far longer than the lockdown but would truly retain jobs rather than postpone the inevitable redundancies and recession. It would also ease social distancing during any transition as employees who cannot be accommodated due to any distancing requirements can be kept at home with a job ready for when social distancing is reduced or removed.
Current Affairs – Priti Patel has claim made against her
When the current affairs issue started, we didn’t expect it to almost exclusively focus on the misdeeds of politicians that would make even the most robust HR practitioner’s toes curl. However, it seems politicians are a never-ending source of employment law issues.
This month, Home Secretary, Priti Patel, had an employment tribunal claim lodged against her by former civil servant, Sir Philip Rutnam. Rutnam had previously resigned citing a culture of bullying which he had allegedly made protected disclosures about.
Patel, whose book, Britannia Unchained, stressed a need to strip back employment rights which where overly protective of a lazy workforce, is almost certainly not a fan of employees enforcing their rights in such a way but her performances in daily Government updates and smirking demeanour would certainly make for box office witness cross-examination if the claim does reach a hearing.
Injury to Feeling – Latest Cases
This month a few discrimination cases in the Employment Tribunal caught the eye due to their facts and the discrimination alleged. As with our case law update of last week, if nothing else, these cases show that anyone who feels as though they are muddling through these confusing COVID-19 times is doing a far better job than the employers in these cases.
In Bond v Lads and Dads Barbers, the Claimant announced she was a Muslim to her employer. After this disclosure she received less favourable treatment from the Respondent’s owner and her daughter. The treatment ranged from not being notified of shifts until short notice and not being paid accrued holiday pay to being the only employee asked to pick up dog poo in the car park and being filmed without consent whilst on sick leave.
The Claimant was awarded over 19,000.00 in injury to feelings, an award that could have been mitigated had the Respondent bothered to attend the hearing!
In Sheun v Sheffield Teaching Hospitals NHS Trust, the Claimant who was Chinese, was subjected to inappropriate ‘banter’. This included a colleague making karate chop noises and doing stereotypical Chinese accent impersonations.
The Claimant’s complaint into the conduct but the issue persisted and he was awarded over £22,000.00 in injury to feelings. The judgment did note that the colleagues did not intend to upset the Claimant but the conduct nonetheless had the effect of creating a degrading atmosphere.
In Allen v Paradigm Precision, the Claimant disclosed he was gay to his employer and colleagues. After doing so he disclosed that he and his husband were looking to adopt and take adoption leave. The Claimant was then subjected to a campaign of harassment including stereotypical limp hand impressions, being called camp and unsavoury emails with comments about the Claimant’s sexuality.
In an award totalling over £174,000.00, the Claimant was awarded over £26,000.00 in injury to feelings. The ET noted that the campaign coincided with the Claimant both coming out and stating he wished to take adoption leave and was likely a means to force him out of employment.
Finally, in Giwa-Amu v DWP, the Claimant, who was of Nigerian descent, was subjected to a string of harassment including being called a paki lover, rumours circulated that colleagues would touch her bum and being sprayed with aerosols.
The Claimant also incorrectly had been told she had been overpaid £2,000.00 and as such had to spend time living in financial hardship of £55.00 per week. The ET awarded her nearly £400,000.00, including £42,000.00 in injury to feeling.
Flexible Working – Have we proven presenteeism is a myth?
The increase in remote working during lockdown has shown that many employees can be trusted to work remotely without a significant drop in productivity. We have already looked at how an extension of furlough scheme might help ease the transition from lockdown to normality. But perhaps allowing more flexible working might ease social distancing without yielding a drop in productivity. It will be interesting to see how many employers revert back to presenteeism once the lockdown is lifted but it certainly will have given some food for thought the next time they receive a flexible working request.
Lighter Side of the News – Disney Employee’s Foul Mouthed Gaffe
As always we finish with something silly. Many parents have found some solace this lockdown thanks to the launching of Disney+, the studio’s online streaming service. The company is famed for its family friendly image. However, one of the customer support team did not tow the company line.
After a customer received an error message, they contacted the company’s online chat for support. After asking if support could assist, the customer received a response of, “No, eat shit.” When the customer queried this he received a response of, “Suck my dick. What part of that don’t you understand?”
Foul mouthed customer service such as this is undoubtedly gross misconduct but has also caused reputational damage to a fledgling service that prides itself on being squeaky clean – mouse pun intended! Unsurprisingly, Disney has announced that the employee in question has been dismissed.