Employment Briefing – January 2022

• Covid-19 vaccination: no jab, no job?
• The Statutory Sick Pay (Medical Evidence) Regulations 2021
• Vicarious liability: can employers be held liable for their employees’ actions?
• Extension of time in discrimination claims

Welcome to January’s Employment news briefing, providing a summary of some of the recent employment judgements and updates.

If you have any questions about any of the topics covered, or would like to discuss anything with our Employment team, please call Martin Stephen on 0141 248 3434 or email mss@wjm.co.uk.

Covid-19 vaccination: no jab, no job?

There has been much debate as to whether companies can force employees to get vaccinated. You may have even heard the phrase ‘no jab no job’ being thrown around. But can companies actually implement these kind of rules and can they subsequently dismiss an employee when they fail to adhere to them? Recent case law suggests they can.

In November 2021, an employment tribunal held that the dismissal of a care home employee who refused to be vaccinated against covid-19 was fair. In the case of Allette v Scarsdale Grange Nursing Home Ltd, the employee was a care assistant working in a nursing home which provided residential care to dementia sufferers. In January 2021, the care home implemented a new rule requiring their staff to be vaccinated. While there was no statutory obligation mandating such a requirement, an employee was dismissed for refusing to adhere to the care home’s new policy.

The employee subsequently brought a claim against her employer for unfair and wrongful dismissal. The tribunal concluded that, in the circumstances, the employer’s decision to implement their mandatory vaccination policy was a reasonable management instruction (given the staff provide care to vulnerable residents) and the employee’s refusal to be vaccinated was not reasonable. The judge expanded on this, noting that the claimant’s decision was based her fear of and scepticism about the vaccine and unsubstantiated belief that there was a conspiracy, rather than religious belief. The judge followed on from this noting that because the claimant knew she represented a risk to others, her actions fell within the definition and examples of gross misconduct set out in the respondent’s disciplinary policy. Her refusal to be vaccinated was therefore an action which, in the circumstances of this case, amounted to a repudiatory breach of her contract of employment with the respondent.’ Accordingly, the judge was of the opinion that the care home was entitled to dismiss the employee.

While the tribunal underlined the fact that this decision was based entirely on the facts of the case, and does not in any way indicate that it’s fair to dismiss an employee should they refuse to be vaccinated against covid-19, it does shed some light on some on the factors a tribunal may consider when faced with an unvaccinated employee facing dismissal in the future.

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The Statutory Sick Pay (Medical Evidence) Regulations 2021

The Statutory Sick Pay (Medical Evidence) Regulations 2021, which came into force on 17th December 2021, introduced a short-term measure to attempt to help ease the burden on GP’s.

The regulations stipulate that employees can now self-certify sickness for up to 28 days, instead of the 7-day period which was previously permitted, for statutory sick pay purposes.

Please note that this only applies to periods of sickness from 17th December 2021 to 26th January 2022, or periods of sickness which commenced before 17th December 2021 but which didn’t last more than 7 days on that date.

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Vicarious liability: can employers be held liable for their employees’ actions?

In a recent Court of Appeal case, namely Andrew Chell v Tarmac Cement and Lime Limited, the question of whether an employer could be held vicariously liable for the actions its employees when they were playing a practical joke arose.

By way of background, the appellant was employed by Roltec Engineering Limited as a contracting fitter and worked at a site that Tarmac Cement operated and controlled. There were tensions between the fitters of the two companies, and one day one of the fitters of Tarmac, namely Mr Heath, carried out a “practical joke” on the claimant, which resulted in him suffering hearing loss and tinnitus.

Mr Chell subsequently raised a claim against Tarmac, arguing that they were i) vicariously liable for the actions of Mr Heath; and ii) liable in a negligence for breaching its duty to prevent foreseeable risk of injury.

The Court dismissed both claims, noting that while “horseplay, ill-discipline and malice could be the mechanism for causing such a reasonably foreseeable risk of injury", that was not established on the facts of this case. In relation to vicarious liability, the court was of the opinion that the connection between the employer-employee relationship and the practical joke was not sufficient. Lady Justice Nicola Davies provided some justification as to why she reached such a decision, noting that “the risk created by this employee was not inherent in the business’ and ‘on no basis could it be said that [the employee] was authorised to do what he did by Tarmac.”

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Extension of time in discrimination claims

The question of whether an employment tribunal can extend time in discrimination claims, where the claimants brought their claim outside the three-month time limit as they were pursuing grievances, was recently addressed in Wells Cathedral and another v Souter and another.

In this case, both claimants alleged acts of discrimination which led to them resigning from their positions. When the claimants eventually brought their claim, they were out with the time limit to do so, however, they asked the tribunal to exercise its discretion under section 123(1)(b) of the Equality Act 2010 and extend the time allowed to bring their claim. The tribunal was of the opinion that it was just and equitable to extend the time, and accordingly granted the claimants request.

The Employment Appeal Tribunal (“EAT”) upheld the decision of the tribunal, noting that tribunals can extend the time limit so that claims can be brought within “such other period as the Employment Tribunal thinks just and equitable”. In reaching this decision, the EAT noted that determining “whether or not it is just and equitable to extend time…will depend on the tribunal’s weighing in the balance of all the factors that it regards as relevant in the given case”. The EAT followed on from this, noting that “beyond some basic principles, what factors are relevant and how to weigh them up in the given case are matters for the Employment Tribunal … the tribunal should beware of taking a mechanistic approach… what is or is not a good or a bad reason for delay is inherently malleable, variable and fact-specific”.

It’s noteworthy that while the EAT reached this decision in this instance, they made sure to highlight the fact that employees are not guaranteed an extension of time just because they raise a grievance.

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