COVID-19 related cases and their impact today

August 7, 2024

Recently, a number of COVID-19 related cases have gone through the Employment Tribunal (ET) and Employment Appeal Tribunal (EAT). While the judgments largely relate to COVID-19 specific legislation, with little relevance to our current day-to-day work, we identify some key takeaways that are helpful reminders of basic employment law.

Dismissal for some other substantial reason and balancing competing ECHR rights

In Masiero and ors v Barchester Healthcare Ltd, the EAT considered whether employees dismissed from their roles in a care home for refusing to have the COVID-19 vaccination contrary to the Respondent's COVID-19 vaccination policy had been fairly dismissed.

The Claimants argued their dismissals were both unfair under section 98 Employment Rights Act 1996 and a breach of their right to respect for private and family life under Article 8 European Convention on Human Rights (ECHR). The ET dismissed their claims and appeals were lodged with the EAT.

The EAT dismissed the appeals. It rejected their argument that the ET had erred by failing to consider whether the employees had acted unreasonably in refusing to accept the changes of terms (i.e. the requirement to have the COVID-19 vaccine). It commented that there will be some, perhaps many, cases where the employee acts reasonably in refusing to accept new terms and conditions, but the employer still acts reasonably in imposing them such that dismissal is fair.

Considering the claim that the dismissal breached the Claimants' Article 8 rights, the EAT further found no error of law in the ET's balancing exercise between these rights and the care home residents' Article 2 right to life (which the policy had been implemented to protect). The EAT commented that, for an employee's dismissal to be fair, an employer does not have to show that someone else's ECHR rights would actually be breached if the employee was not dismissed.

Additionally, the EAT commented that the vaccination policy did not deprive the Claimants of their right to give free and informed consent to vaccination, which would have amounted to an infringement of Article 8, as they did not have the vaccination.

While vaccination policies are unlikely to spark large numbers of claims now, this case is a good example of how a tribunal will approach the required balancing exercise when an employee argues that dismissal has breached their human rights under the ECHR, especially where the potential infringement is intended to protect the ECHR rights of others.

Holiday carry-over provisions

Between 26 March 2020 and 31 December 2023, regulations 10 and 11 Working Time Regulations (WTR) provided that a worker could carry over untaken holiday if "in any leave year it was not reasonably practicable" for them to take it "as a result of the effects of coronavirus".

Considering this temporary holiday carry-over provision, the EAT in Knight v Off Broadway Ltd restated the importance of the principle established in the case of Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV v Shimizu (Shimizu). The principle is that an employer bears the burden of showing it has ensured that workers have the opportunity to take holiday by encouraging them to do so, "formally if need be", and informing them in good time that leave not taken during the holiday year will be lost.

Considering the Claimant's claim for holiday carry-over, the EAT found that the ET in this case relied on the fact that the Claimant was in charge of scheduling his entire team's holidays (as he was the bar manager) and had the opportunity to take holiday as he pleased. The EAT held that the ET had failed to engage with whether the Respondent fulfilled its duty to encourage the Claimant to take holiday. As such, this case is a crucial reminder of the increasing importance of actively encouraging employees to take holidays.

What amounts to a protected disclosure

In Ritson v Milan Babic Architects Ltd, the EAT, when discussing what amounts to a protected disclosure, highlighted the difficulty in establishing both a belief there is "likely" to be a breach of legal obligations and that an employee has raised such an issue in the public interest.

The EAT considered text messages in which the Claimant raised concerns about working while on furlough and alluded to the legal consequences of this for his employer under the Coronavirus Job Retention Scheme. The EAT upheld the ET's decision that the Claimant had not made qualifying disclosures for the purpose of whistleblowing legislation. The ET had made clear findings that, at the time of the disclosures, the Claimant did not subjectively believe he was making them in the public interest.

The Claimant argued he was concerned that, if he did not flag these points, his employer would ask other employees to break the law and that this amounted to a qualifying disclosure. The EAT, however, held that this suggested a mere "possibility or risk" of a future breach rather than a "probability" and so fell below the standard required in Kraus v Penna.

While discussions concerning the legality of something an employee is being asked to do may still amount to qualifying disclosures, this case highlights the difficulties of proving this.

Health and safety dismissals/detriment

In the UK, an employee, regardless of length of service, has the right (1) not to be subjected to a detriment (e.g. denied promotion) and (2) not to be dismissed on various grounds relating to health and safety.

Rather logically, many of the employment claims resulting from the COVID-19 pandemic have centred on health and safety concerns. Overwhelmingly, Tribunals have had to consider whether steps taken or not taken by employers after employees have raised these concerns amount to detriments. In most of these cases, employers' failures to protect their employees have easily been evidenced - with Tribunals taking a rather strong stance on, for instance, not mandating or even allowing people to wear masks, not facilitating or allowing social distancing, not implementing health and safety policies, and criticising employees who raised concerns. As such, it will be interesting to keep an eye on future health and safety related claims to see whether Tribunals will continue to take such strong positions when claims are not related to the COVID-19 pandemic.