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 … This issue will only become wider in the months to come as lockdown is gradually eased and people progressively return to work. Businesses have a legal duty to protect the health and safety of their employees by ensuring compliance with the regulations as they evolve. 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. Claiming constructive dismissal Constructive dismissal arises where an employee is not actually dismissed… Read on . 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. 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.’. 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. 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). 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. You only have the right to claim unfair dismissal if you’re an employee - this includes part-time and fixed-term employees. It is the health and safety of the work place which you need to demonstrate is risky. Can you be dismissed for self-isolating and not coming into work? All three employees posted comments to a private employee-only Facebook group. 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. You do not have to accept any reduction in pay, because you have taken protected action under the Employment Rights Act 1996. 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. Being put on the scheme under duress like this could also be counted as a ‘detriment’. Sometimes employers have been making employees suffer in other ways as well, like bullying them and not allowing them to work from home when the work could have been done from home. 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’. Section 100 of the Employment Rights Act 1996 relates to health and safety dismissals. (See below for more detail on the practical implications of sections 44 and 100 of the Employment Rights Act.). The NHS website gives full lists of people recognised by the relevant UK authorities as being vulnerable. There is a template letter on our website called ‘Letter from employee dismissed/made redundant due to lack of work’ which you can adapt to suit your own situation and send to your employer in an attempt to get a better financial settlement than just statutory redundancy pay. Here’s the exact wording: “44. 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’. 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. Unfair dismissal claims have increased by 70 per cent during the coronavirus crisis, with the Fair Work Commission dealing with an "unprecedented" caseload. Although both these cases are old and of course pre-date the covid-19 crisis, they are still relevant so far as the law and health and safety dismissals generally are concerned. You can still make an unfair dismissal application during this time. As specialist employment lawyers, Monaco Solicitors would argue that such steps are appropriate. At a practical level, try to take some photos of your work or other evidence, eg. Automatically unfair reasons Some things are 'automatically unfair' if they’re the main reason for dismissing an employee. 24/03/2020. Your employer might be allowed to discipline you, but not to dismiss you. (The government contribution in 2020 being 80% from March to August; 70% in September and 60% in October, with a monthly cap. So, it follows that if you or a member of your household are vulnerable, you will want to take all possible steps to avoid contracting the disease. Application for an unfair dismissal remedy – application dismissed. Therefore if your employer has withheld your pay, then you should ask them to reimburse you with back-pay for the income lost so far, and – if appropriate – to reinstate you on the payroll. 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. The 3 groups of employees who are being or have been subjected to pay or salary detriments and that we have come across most often, include the following: This includes you if you were sent home without any pay, or opted to stay at home and not be paid, or only been paid statutory sick pay. All in all, the law is on your side and it is probable that you would have a case against your employer in an employment tribunal. What is automatic 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. Employers will need to alleviate these concerns and balance these with responsible measures, otherwise they will cause problems down the line. Alternatively, you would have a good basis to argue for compensation and to negotiate an exit settlement agreement to bring your current employment to an end. 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