Unfair dismissal remedies—general; Reinstatement and re-engagement; Award for compensation; Interim relief; Conciliation; Coronavirus (COVID-19): The Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) Regulations 2020 (Week’s Pay Amendment Regs 2020), SI 2020/814, which provide (among other things) that any basic award, compensatory award or … You may of course have been made redundant or be facing redundancy because of lack of work caused as a result of the coronavirus. Approximately a week later, each of them had their contracts of employment terminated. Managing the risk. The number of workers raising issues with unfair dismissals has surged because of the coronavirus shutdown, with 65 per cent more employees bringing cases to the national industrial tribunal last month than the same time last year. A future COVID-19 vaccine could become compulsory for some Australian workers, forcing them to … 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. 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. 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. 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. Should HR encourage organisations to return furlough funds? Section 100 does not give you an absolute right to withdraw your labour if you think your workplace is unsafe. You can still make an unfair dismissal application during this time. 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.). 24/03/2020. 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’. What is automatic unfair dismissal? 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. See also our Redundancy guide and try out our Redundancy letter builder which helps you create a letter to your employer about your redundancy case – whether you are still employed, or recently made redundant. refused to give up your working time rights - for example, to take rest breaks. What about employees who are not vulnerable to coronavirus? 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). To make our new working environment a safe space, employers and employees must keep up to speed with the fast-changing regulations and should collaborate as much as possible. Businesses have a legal duty to protect the health and safety of their employees by ensuring compliance with the regulations as they evolve. s100 of the Employment Rights Act 1996, ss (1) d & e, actually states: ‘(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or, (e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.’. (1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that—, (d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or, (e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.”. 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. 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. When might you feel unsafe and at risk of getting coronavirus at work? This is an important piece of legislation for employees who have been unfairly treated by their employers because of covid-19 and we will devote more space to it later. There are employment tribunal cases on this area of law. These are if: there was not a genuine redundancy situation; the employee was unfairly selected for redundancy; there … If you think you need legal representation, then get in touch to see if we can help. See our article on coronavirus furlough leave for further details.). The NHS website gives full lists of people recognised by the relevant UK authorities as being vulnerable. Inadmissible … You do not have to accept any reduction in pay, because you have taken protected action under the Employment Rights Act 1996. We are established employment law solicitors specialising only in working with employees (not emloyers). 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. The comments raised concerns about their health and safety, and that of their colleagues. 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’. Unfair dismissal. Have you at any time refused to attend your workplace because you thought it unsafe due to coronavirus risks? if there are people working within 2 metres of each other. Accordingly, care and forethought are prudent prior to giving an employee "the sack". Application for an unfair dismissal remedy – application dismissed. Section 100 of the Employment Rights Act 1996 relates to health and safety dismissals. 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. 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. 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. Indeed, the most recent piece of legislation on the matter – the Health Protection (Coronavirus) Regulations 2020, at Regulation 3(1) – confirms that: “the incidence or transmission of coronavirus constitutes a serious and imminent threat to public health.”. Being put on the scheme under duress like this could also be counted as a ‘detriment’. However, if you are dismissed for self-isolating due to coronavirus then this could amount to automatically unfair dismissal under the Act. About sharing. 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 everyone’s safety, our counters are closed. 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. 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. As mentioned earlier, this applies whether or not you or someone in your household are vulnerable. We will pick up on this issue again later. 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. 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. Applying for unfair dismissal. (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. Your employer might be allowed to discipline you, but not to dismiss you. When is a workplace a serious and imminent health and safety threat? You do not need to be a vulnerable employee to be given dispensation from attending work if you believe it to be unsafe there. Are there correct selection criteria for redundancy? Unfair treatment for not attending a coronavirus unsafe workplace, Not being paid and other unfair treatment for failing to attend an unsafe workplace. All three employees posted comments to a private employee-only Facebook group. Mass exodus of non-citizens to trigger historic fall in population. As an employee, you may or may not be able or permitted by your employer to carry out your work from home. 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. However, if you are dismissed for self-isolating due to coronavirus then this could amount to automatically unfair dismissal under the Act. Note that the maximum amount that you can be awarded as compensation for most claims of unfair dismissal is £88,519, or 52 weeks gross salary, whichever is the lower (from April 2020). This means that you can’t lodge your application at the Fair Work Commission in person. 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. Unfair dismissal claims have increased by 70 per cent during the coronavirus crisis, with the Fair Work Commission dealing with an "unprecedented" caseload. 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. 1079797. Employees have to apply to the Commission within 21 days of the dismissal taking effect. So, in summary: your knowledge as an employee may not be very extensive about the nature of the threat and related health and safety issues in the workplace, but neither is anyone else’s. You are entitled to full pay at this time under section 44. You had a right to resign in this kind of situation and to sue your employer for constructive dismissal. Solicitors Regulation Authority ID no: 621671, See our article on Unfair Dismissal Settlements for a (non-covid-19) overview, 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”. 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. 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 … (See the patient.info website for more detail on what an underlying health condition means from a medical viewpoint.). 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. Unreasonable refusals of reasonable requests will not be welcomed by the tribunals. You can: HTML File(s): 2019fwc1235.htm (94.25 KB) AN immigration officer sacked for alleged racist remarks has won a claim of unfair dismissal. 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. 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. Dismissal in a redundancy case may also be an unfair dismissal. This change could see a dramatic increase in claims relating to employers mishandling the furlough scheme. 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. 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 ; When can an employee bring a case of unfair dismissal? Unfair methods are sometimes used at disciplinary hearings, appeal hearings and arbitration hearings. 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. 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. 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. As well as changing general health and safety regulations, the coronavirus situation has created new working environments specific to each sector. Dismissing someone because of coronavirus (COVID-19) During the coronavirus pandemic, employees have the same rights as usual to not be unfairly dismissed. image copyright Martin Addison/Geograph. Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner. Neither s44 nor s100 of the Employment Rights Act 1996 can help you here. Published. 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. In doing this, the employer opened themselves to liability for unfair dismissal under sections 100 and 103A of the Employment Rights Act 1996. 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. 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. Mostly the ‘detriments’ experienced by employees who fail to attend a covid-19 unsafe workplace have to do with employers withholding some or all of their pay. A key small business group has called for unfair dismissal claims to be paused during the coronavirus crisis and temporary changes to workplace rules to … 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. 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. 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. As mentioned earlier, this applies whether or not you or someone in your household are vulnerable. If an employer feels they need to dismiss someone because they do not have any work for … close. 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”. Employees are protected from ‘automatic’ unfair dismissal. Situations when your dismissal is likely to be unfair include if you: asked for flexible working. 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. Some reasons for dismissal are classed as ‘automatically unfair’ when the reason for dismissal is proscribed by certain statutory provisions as inadmissible. 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 … 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… (See below for more detail on the practical implications of sections 44 and 100 of the Employment Rights Act.). 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. Again, if you want or wanted to remain in employment, you in effect have had no choice but to accept. The government has released new guidance for employers relating to Covid-19 and their role in helping reduce the spread of the virus. Can you be dismissed for self-isolating and not coming into work? Richard Thomas is a partner on the employment team at Capital Law, Nunnery Square - Sheffield Parkway, Sheffield, South Yorkshire, Keep up to date with what actions employers are taking to tackle the Covid-19 crisis with People Management’s live commentary, With thousands of firms choosing to pay back government grants, People Management asks experts whether the function should be driving ethical decisions, Katie Jacobs reflects on what has been a challenging yet momentous 12 months for the people profession, and explains its priorities for 2021, Making the jab mandatory or pressurising employees to have it could lead to criminal implications, says David Sheppard, © Copyright Chartered Institute of Personnel and Development 2020, 151 The Broadway, London SW19 1JQ, UK Incorporated by Royal Charter, Registered Charity no. When is a workplace a serious and imminent ’ danger absolute right to withdraw your if... 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