REWARD
dangers posed by the Covid pandemic was unfairly dismissed. The case has since progressed to the Employment Appeal Tribunal (EAT) (April 2022) and most recently to the Court of Appeal (CoA) (December 2022). This is the first Covid- related case the CoA has had to consider. To recap, the case involved a claimant who started working in a warehouse in 2019, which was described to be the size of half a football pitch. In total, he would typically work with five other people each day. Following the first lockdown announcement in March 2020, the warehouse remained open, in line with government guidelines for essential services. The respondent put measures in place to control the risk of Covid transmission and keep workers safe, including: l social distancing l regular cleaning of workstations l staggered start and finish times l voluntary use of facemasks, which were provided. In late March 2020, the claimant developed a cough which he attributed to dust in the warehouse, but couldn’t get a Covid test to be sure, so decided to self-isolate. He obtained an isolation note from NHS111. He later texted his manager to inform him he was going to stay off work until the lockdown had eased, as he didn’t want to risk bringing Covid home to his children, as one was vulnerable due to having sickle cell anaemia. His manager responded to say, “Okay mate, look after yourself.” No further communication took place until 24 April 2020, when the claimant received his P45 in the post, which led to him raising a claim for automatic unfair dismissal under Section 100 of the Employment Rights Act (1996). Section 100 refers to employees’ rights not to be subjected to detriment when taking reasonable steps to protect themselves or others from serious and imminent danger, which they can’t be reasonably expected to avoid. Specifically, the claimant asserted that he had been unfairly dismissed, as the reason for his non-return to work was due to the serious and imminent danger posed by the Covid pandemic, for which allowances should have been made. The ET and EAT accepted that the pandemic created some element of danger at work, but that the risk of danger was no greater in the workplace than anywhere else. They also questioned the reasonableness of the claimants’ belief.
realised the escalator payments outlined in the original policy hadn’t been included. When he raised the issue, he was informed these had ceased in 2008, when it was removed from the insurer’s policy, leading him to raise a claim for unlawful deduction from wages. The ET decided he was contractually entitled to the escalator, so upheld his claim. However, the respondent appealed to the EAT, arguing that their documentation included a clause which gave them the right to change the benefit provider, and vary or amend the extent of the cover from time to time. It also argued that their payment obligations were limited to the amount covered by the insurance policy. The EAT also rejected the respondent’s argument, concluding that the offer letter and benefits summary formed part of the overall contract, so payment of the escalator was included in his contractual entitlements. The EAT highlighted that any limitation of the insurance policy and associated benefits must be unambiguously and expressly communicated to the employee. In this case, the claimant hadn’t even been provided with a copy of, or told how to access, the insurance policy, so had no way to know of any potential limitations. The CoA agreed with this judgment and reiterated that the original offer letter was very clear and included details of the escalator, which supported the argument that it was a contractual entitlement. It further agreed that where there is ambiguity in the interpretation of contractual terms, this should be resolved in favour of the employee, as per other case law precedents. The CoA outlined that it was the employer’s responsibility to procure the necessary insurance policy to cover contractual entitlements, but this wouldn’t affect employees’ benefits. The case serves as a good reminder of the importance of ensuring contractual wording is clear and relevant. Where changes are made to any contractual entitlements, these should be fully discussed with affected employees and, where necessary, updates made, in writing, to the contract of employment. Doing so helps prevent disputes such as this and enables all parties to easily understand their rights and entitlements. n
In making their decision, the employment judge specifically considered that: l the workplace was large with few employees, so keeping a safe distance was generally possible l the employee didn’t ask for a mask when they were available l the employee had driven a friend to the hospital when he was supposed to be isolating l the employee was working in a pub during lockdown. As a result, his claim was dismissed. The CoA acknowledged that the law doesn’t require the danger to be exclusive to the workplace; and the judge made specific reference to the fact that it doesn’t matter whether the same danger may be present outside the workplace, for example, when on a bus or in a supermarket. However, it also rejected the claim, reiterating that reasonable measures were in place to reduce the risk of Covid transmission and highlighting that the claimant didn’t take reasonable steps to avert the danger, since he continued to work in a pub and continued to complete other ‘normal’ activities. Ambiguous income protection scheme leads to unlawful deduction from wages The CoA had to consider whether an employer was liable to pay the level of income protection payments (IPP) contained within an offer letter and summary of benefits despite them no longer being included within their insurance policy. In the case of Amdocs Systems Group Ltd v Langton, the claimant had been employed since 2003. When he started, he was given an offer letter and summary of benefits, which included entitlement to a long-term sickness absence income protection scheme. The contract also stated that there was an ‘escalator’ in place of 5% per year, to be applied after the first year. At the time, an insurance policy was in place which covered any payments under the scheme. In 2006, his employment transferred to another organisation under the Transfer of Undertakings (Protection of Employment) rules, but the IPP provision under the existing contract continued. In 2009, the claimant was absent from work for an extended period, triggering IPP payments. However, in 2016, he
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| Professional in Payroll, Pensions and Reward |
Issue 88 | March 2023
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