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As such, employers should remember that, even if they consult fully, have a justifiable business case and negotiate with employees (safeguarding themselves against ET claims), there’s still a risk they won’t be able to enforce changes to existing terms (especially those relating to permanent benefits). A High Court could approve an injunction to prohibit this. This decision can affect all employers but may be particularly prudent for organisations who recognise a trade union. Unlawful deduction fromwages referred to civil courts In this case, the claimant was employed as an area manager for Leicester but accepted a new position as area manager for Nottingham. He was told he’d receive an increased salary for this role due to the increased responsibilities it brought. The employee and employer failed to agree on the increased wage amount and eventually his employment was terminated. He subsequently raised a claim to the ET for unlawful deduction from wages, arguing he was entitled to a remedy in unjust enrichment (a quantum meruit payment) for the work he did in the ‘entirely different’ position in Nottingham. Unjust enrichment is when one party unfairly benefits at the expense of another: it’s usually unintentional and often the result of a mistake. A quantum meruit payment is compensation based on market value, or the going rate, when a person receives less than is deemed to be fair. The ET agreed the employee should have been paid an increased salary while in that position, and so allowed a claim for unlawful deduction from wages under Part II of the Employment Rights Act 1996. However, Abellio appealed the decision to the employment appeal tribunal (EAT) who found the ET erred in applying the law. Instead, they outlined that an unjust enrichment claim for a quantum meruit couldn’t be brought under Part II of the 1996 Act, since it didn’t fit within the structure of a claim for unlawful deduction from wages. So, the EAT (and ET) didn’t have jurisdiction to decide on such matters. The EAT added that, while a claim of this nature would have to be judged through the civil courts, had it had the appropriate jurisdiction, it would have awarded the employee a quantum meruit payment. This was because he’s entitled to
fair remuneration for the additional level of work completed in an entirely different role to that in the original employment contract. The EAT highlighted it hoped the parties could resolve the matter without the need for further litigation and expense. The case confirms unlawful deduction from wages claims can’t be argued in these situations. It also clearly highlights the importance of employers fairly paying their staff members and following through on promises of higher wage offerings. It also shows the benefits of regularly reviewing and comparing remuneration packages against competitors and fair market value, as this is what a civil court would consider when determining any appropriate compensation. The principles may apply to other organisations who wish to dismiss employees and re-engage them on less favourable Contractual vaccine requirement reasonable and dismissal fair In the recent case of Allette v Scarsdale Grange Nursing Home, the ET had to decide whether an employee’s dismissal for her refusal to get the Covid-19 vaccine was fair. Scarsdale Grange Nursing Home implemented a contractual vaccination policy with the primary aim of protecting the health of all its staff, vulnerable residents and visitors, and a secondary aim of not breaching its insurance policy. The home’s insurers told them they wouldn’t provide public liability insurance for Covid- related risks after March 2021, and they faced the risk of liability if unvaccinated staff passed the disease on to residents or visitors. Therefore, they considered it a reasonable management instruction for all employees to be fully vaccinated, and treated failure to follow this instruction as an act of gross misconduct. The employee refused the vaccine because she had deep distrust for it, believed it was a government conspiracy, terms and conditions
had been rushed through testing and that its safety couldn’t be guaranteed. She later tried to argue her refusal was based on her Rastafarian beliefs. Her failure to mention this until the disciplinary hearing meant the employer and ET agreed it was raised maliciously and disingenuously, so she could later accuse the home of being discriminatory. The tribunal found the decision to implement a vaccination policy was proportionate in the circumstances, given the home’s legal and moral obligation to protect vulnerable residents and its need for continual insurance cover. The ET further concluded that the gross misconduct dismissal was also within the range of reasonable responses in the circumstances, considering the employee’s: ● unreasonable reasons for refusing the vaccine (she had no medical authority or clinical basis for refusal) ● her refusal to answer questions about, or acknowledge, the risk she posed ● the strength and finality of her refusal ● the difficult position presented by the imminent withdrawal of the home’s insurance cover. The ET highlighted that an employee who is merely sceptical of official advice doesn’t have a reasonable excuse for refusing to follow a management instruction to be vaccinated. Organisations who wish to make Covid vaccination a contractual requirement must ensure they satisfy all the following: ● have objective justification for introducing a contractual vaccination policy ● follow a full and fair disciplinary process ● make reasonable adjustments for anyone with reasonable grounds for refusing vaccination. The ET commented more could have been done by the respondent, for example, by placing the employee on paid or unpaid leave. Alternatively, they could have sought further information to persuade her of the safety and necessity of the vaccine, providing her more opportunity to change her mind. It must be noted that, since this case came from the ET, the decision is not legally binding authority. However, it does provide good foundations and employers can mimic the policies and procedures followed by the respondent. It will be interesting to see whether a similar case reaches the EAT, as employers would be bound by their decision. n
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| Professional in Payroll, Pensions and Reward |
Issue 79 | April 2022
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