Whistleblowing: Raising concerns about employer’s conduct

The raising of concerns about how an employer is handling workplace issues during the coronavirus pandemic would count as a disclosure.

To be protected under whistleblowing legislation, the worker must be making the disclosure in the reasonable belief that they are doing so in the public interest. This means that a worker who is dismissed (for example put to the top of the list for redundancy) or subjected to a detriment (for example bullied), for raising genuine concerns about their employer’s safe working practices could bring a whistleblowing claim.

Another scenario that could lead to a whistleblowing claim is an employer retaliating against an employee who has raised genuine concerns about its use of the Coronavirus Job Retention Scheme.

HM Revenue & Customs has a hotline for reporting misuse of the scheme.

Handling discipline, capability, and grievance procedures

How employers have been handling disciplinary and grievance procedures is sure to be examined by employment tribunals in the next couple of years. Claims are likely to involve:

• disciplinary action where employees refuse, or fail, to comply with the employer’s COVID-19 rules put in place to reduce the risk of transmission.
• and the handling of disciplinary, grievance and capability procedures during the pandemic.

Claimants may focus on delays caused by the pandemic tainting a process’s overall fairness, and remote meetings and hearings being conducted unfairly.

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Coronavirus (COVID 19) has serious implications for health and safety in the workplace and some potential openings for litigation for the unwary. Our employment law courses cover all the latest key issues including:

• Health and safety: Refusal to attend dangerous workplace.
• Health and safety duties towards pregnant workers

Health and safety: Refusal to attend dangerous workplace.
Employees are required to obey their employer’s reasonable instructions. However, employees are protected against detriment or dismissal where, in “circumstances of danger” that they reasonably believe to be “serious and imminent“, they leave their workplace or refuse to return. There must be actual “circumstances of danger” and the employee must also “reasonably believe” that the danger is “serious and imminent”. Coronavirus-related employment tribunal claims for detriment or dismissal following a refusal to attend work are likely to revolve around whether the claimant’s belief in “imminent and serious” danger was reasonable, depending on the safe working practices the employer put in place.

Health and safety duties towards pregnant workers
While employers have a duty to look after the health and safety of every worker, they have additional obligations in relation to pregnant workers. Employers that fail to fulfil these obligations could face pregnancy and maternity discrimination claims. When maintaining safe working practices during the coronavirus pandemic, employers should ensure that:

• the risks to pregnant workers are assessed individually; and
• pregnant workers are consulted about potential adaptations to their role.

Find out more with employment law training course

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Understanding Coronavirus and Employment Law
Coronavirus (COVID 19) has pushed many businesses to the brink and beyond. In desperate effort to stay afloat staff are being furloughed and laid off. Many more face cuts in hours and pay. As the song goes, “there may be trouble ahead” for those that have rushed in.

Concrew Training’s courses on employment law are bang up to date and cover the latest key issues and challenges including:

• Selection for furlough: Decision-making to be scrutinised?
• Redundancy: Selection process and informing and consulting
• Breach of contract when cutting furloughed employees’ pay.

Selection for furlough: Decision-making to be scrutinised?
There will be employees who are aggrieved at being placed on furlough, particularly where this is accompanied by a pay cut. Equally, there will be employees who would prefer to have been furloughed, but their employer has turned down their request. Normal employment law principles should have been applied to any furlough selection process, so employers may face discrimination claims and arguments that their furlough decision-making has breached the implied term of mutual trust and confidence. While employment tribunals are likely to be sympathetic to employers that have had to make quick decisions, furloughing decisions still need to be as fair and objective as possible.

Redundancy: Selection process and informing and consulting
With many employers having to make large-scale redundancies often with little warning because of coronavirus, will tribunals be inundated with these claims in the next few years? Both individual and collective redundancy issues should feature. Employers need to bear in mind that: > a failure to warn and consult individually with an employee about their proposed redundancy could result in an unfair dismissal claim; and collective consultation obligations are triggered when they are proposing to make redundant 20 or more employees at a single establishment over a period of 90 days or less, and that failure to comply can result in a protective award of up to 90 days’ pay for each affected employee.

Breach of contract when cutting furloughed employees’ pay.
The lack of clarity within the Government’s guidance on agreement to furlough means that there is trouble on the horizon for employers that have unilaterally imposed a pay cut on furloughed employees. For example, the guidance on the extended Coronavirus Job Retention Scheme, states that employers must “have confirmed to their employee (or reached collective agreement with a trade union) in writing” that they have been furloughed, but “the employee does not have to provide a written response”. Strictly speaking, employers that are reducing an employee’s pay to furlough them should have obtained the employee’s explicit written agreement, as this constitutes a variation to their terms and conditions of employment.

Find out more with our employment law training course

The Law by smlp.co.uk used under CC BY