October 5, 2021

Index

  1. Options for employees who don’t want to work at home
  2. Working Time Regulations
  3. Part-time Workers 
  4. Redundancy Selection
  5. Adjusted Right to Work Checks Extended
Options for employees who don’t want to work at home

While many employers have been looking at hybrid working others have decided to ditch the office entirely, moving staff to permanent home working. This will come as bad news to the 40% of workers who want to work exclusively from an office, some of whom will be examining their practical and legal options. With the Office for National Statistics having recently reported a record 953,000 job vacancies in the three months to July, such workers may look elsewhere for working arrangements that better suit them.

They may well find that they get better pay too: the ONS also reported that average weekly earnings in the three months to the end of June rose by 8.8% compared with a year earlier. Constructive dismissal   The contract of employment cannot generally be relied upon by an employee to force an employer to keep an office open, even if it specifies that office as the place of work. However, there are two key reasons why an employee confronted with a compulsory move to homeworking might seek to establish that the employer was in repudiatory breach of contract.

First, repudiation of the contract by an employer relieves the employee of his or her obligations under restrictive covenants. Secondly, resignation in the face of a repudiatory breach can be relied on to establish a constructive dismissal, which opens up the possibility of claiming wrongful dismissal and unfair dismissal. Resigning is always a risky option for employees, but some will feel they have no alternative.   In most cases of constructive dismissal, the claimant pleads a breach of the implied term of mutual trust and confidence. This requires that neither party will, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee. Even if the employer has contractual discretion to change the place of work (such as under a mobility clause), that discretion will still be subject to the implied term.  

Thus, an employee might argue that closing the office entirely has deprived him or her of suitable facilities or a congenial work environment, such as working in the midst of a buzzy city or interacting with colleagues in person.  

Alternatively, the employee might focus on the unwanted homeworking aspect, perhaps relying in part on the right to respect for a private and family life, home and correspondence under Article 8 of the European Convention on Human Rights. Given the possibility for constructive dismissals to arise from badly handled office closures, employers might consider offering financial or other assistance to the affected employees to help them adapt to the change, for example, the provision of office equipment for the home. Disputes are more likely to arise where new arrangements are imposed rather than being arrived at after consultation.  

Redundancy, any decision to close the workplace and move staff to permanent home working is likely to be a redundancy situation under the Employment Rights Act 1996 – either because the employer ceases ‘to carry on [its] business in the place where the employee was so employed’, under S.139(1)(a)(ii), or because the employer’s requirements ‘for employees to carry out work of a particular kind in the place where the employee was employed’ have ceased or diminished under S.139(1)(b)(ii) ERA.

The ‘place’ where an employee is employed should be determined primarily by a consideration of the factual circumstances pertaining prior to the dismissal, so a mobility clause entitling the employer to make the change to homework will not preclude a redundancy situation arising.

Redundancy is a potentially fair reason for dismissal under S.98(1) ERA, but dismissals can be found to be unfair where, among other things, the employer has carried out inadequate consultation.   Employees dismissed wholly or mainly by reason of redundancy can claim a redundancy payment from the employer if they have two years’ continuous employment.

Where there is a mobility clause, the employer might defend the claim on the basis that the reason for dismissal was not redundancy but misconduct (i.e. the refusal to obey a lawful instruction to move to a different place of work).

Alternatively, or in the absence of such a clause, it might argue that homeworking amounted to an offer of suitable alternative employment, which, if unreasonably refused by the redundant employee, would extinguish the right to a redundancy payment. Importantly, however, in weighing up whether such a refusal is reasonable, an employment tribunal will have to consider the circumstances of the particular employee.  

This was the case in Bowkett v Cowdery Brawn and Co Ltd ET Case No.1602509/11, where the tribunal accepted that home working was not suitable for B because she lived with and cared for her disabled sister. Equality considerations A disabled employee may have cause for complaint if an employer does not make reasonable adjustments to the home workspace by providing appropriate equipment. Equally, disability discrimination could arise where an employee suffers from depression and  the move to home working makes things worse.  

However, the reality for most employees is that they are not going to be able to rely on the Equality Act 2010 to insist on working in an office that has been closed or so reduced in size that there is no room to accommodate them. They might, however, argue that it would be a reasonable adjustment for the employer to provide a co-working space elsewhere.  

The COVID-19 pandemic has without doubt revolutionised the way many people work. We’ll have to wait and see how the new landscape looks in a few years’ time, but cases challenging home working are bound to emerge.  

There are also other areas that must be considered when making any decision to move to Home/Hybrid working arrangements:  

– Benefits and drawbacks?
– Is agreement required?
– Place of work (contractual position)?
– Trial period Right to enter home workers premises (contractual right)?
– Termination of the arrangement?
– Expenses (what home worker can claim contractual)?
– Working time?
– Flexible working requests?
– Unfair dismissal?
– Equality issues?
– Remote working from abroad, and
– Practical considerations.  

As you can see there are many areas where conflict can arise so it is essential that employers Draft a policy to cover home/hybrid working.  
We will be adding blogs that will cover these points over the next few weeks, you can of course call us to discuss this or any other issue that you may have on 07375 097443.
2. Working Time regulations  

In order to claim automatic unfair dismissal under s104 Employment Rights Act in relation to a work pattern in breach of the Working Time Regulations, is it necessary for an employee to have worked the shift they had been instructed to perform?

Not necessarily, held the EAT in Simoes v De Sede UK Ltd.

The Claimant’s employer instructed her to cover a colleague’s pre-booked holiday. She initially accepted but, on realising this meant she would work 14 consecutive days in breach of regulation 11 Working Time Regulations, she asserted that the proposal would be “treating her like a slave”.

Her employer refused to hire temporary cover. The Claimant provided the cover but was later dismissed by reason of her earlier complaint. Applying Spaceman v ISS Mediclean Ltd, the tribunal dismissed her automatic unfair dismissal claim as, at the time of the complaint, the breach had not yet occurred.

The EAT allowed the Claimant’s appeal and a finding of automatic unfair dismissal was substituted. The EAT held the matter crystalised when she was instructed to work. Distinguishing Spaceman, the assertion was not an allegation of future or intended breach such as ‘If you ask me to do that then it will be a breach of my rights’ but instead the instruction itself constituted a breach of her statutory rights.
3. Part-time Workers 

Is it lawful for part-time workers not to receive paid breaks if the reason is that they are working shorter shifts?

Yes, held the EAT, on the facts in Forth Valley Health Board v Campbell.

The Claimant was a part-time Phlebotomist who worked 16 hours per week on a 6-week rota. It was the Respondent’s practice that workers received a paid 15 minute break when they worked shifts of 6 hours or more. The Claimant did receive a paid break when working 6-hour weekend shifts but not when working 4-hour shifts during the week. He argued this was unlawful as full-time workers received a paid break for all shifts that they worked. The tribunal at first instance agreed with him finding that the Respondent’s practice was less favourable to part-time workers who by definition worked less hours.

The EAT disagreed and dismissed his claim. The sole reason why the Claimant did not always receive paid breaks was not his part-time status and the tribunal had erred in applying a ‘but for’ test. The correct approach was to look at why the Claimant was treated less favourably. On the facts this was not ‘because of’ his part-time status but was instead due to the length of particular shifts that he worked. This was demonstrated by the fact that he did sometimes receive the paid break. It was, in fact, possible for part-time workers to always receive the paid break if they worked longer shifts.  

4. Redundancy Selection    

If an employer adopts a fair redundancy selection process, will the lack of an appeal make dismissals unfair?

No, but the absence of an appeal is one of many factors in determining fairness, held the Court of Appeal in Gwynedd Council v Barratt & others.  The case followed a tribunal’s finding that the teacher Claimants were unfairly dismissed, a finding upheld by the EAT and now by the Court of Appeal. The Claimants were dismissed when their school closed and a new one opened on the same site, there was no consultation over the closure and no appeal offered, their applications for new roles at the new school were unsuccessful.   

5. Adjusted Right to Work Checks Extended 

The government has just announced that the end date for the temporary adjusted checks has now been deferred to 5 April 2022.

The following temporary changes were made on 30 March 2020 and now remain in place until 5 April 2022:  checks can currently be carried out over video calls job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals employers should use the Home Office Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents        
If you need any advice or support on any HR or employment law matter call us on 07375 097443.

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