This latest bulletin continues with some Covid -19 topics, including new Shielding Guidance, availability of home testing kits for employers, and the extension of health and safety detriment protection to workers. It also talks about the recent Supreme Court ruling regarding sleep-in workers and a recent disability discrimination case about reasonable adjustments.

New Shielding Guidance

Public Health England has issued new guidance to those categorised as extremely clinically vulnerable.

It states that, from 1 April 2021, they are no longer advised to shield and states: “Everyone is currently advised to work from home where possible. If you cannot work from home, you should go to work.”

The effect of this change means such employees will no longer be eligible for SSP as a result of being advised to shield. They will however remain eligible for furlough (subject to meeting the qualifying conditions – see my previous briefings and the latest guidance at  HMRC Furlough Guidance for Employers but the decision on whether to keep them furloughed remains the employers.

If an employer is looking to return to work an employee previously advised to shield, they should ensure their Covid 19 risk assessment has reviewed any additional risks and if satisfied low risk, discuss the precautions and protections being taken with the relevant employee/s.

If an employee remains reluctant to return to work, then employers need to be mindful of disability discrimination and should seek advice. A referral to occupational health is likely to be appropriate.

Workplace Testing – further extension to apply for home test kits

You will have seen from my recent bulletins that employers can register for free access to lateral flow tests to conduct at the workplace.

A few days ago, it was announced that this will be further extended from early April to enable employers with 10 or more employees, to be able to order tests for their employees to collect from their workplace and use at home twice a week.  Employers can do this if they cannot provide testing in the workplace.

Please note however that there is a deadline for applying of 12 APRIL 2021.

The registration link is at:  Apply for Workplace testing

Health & Safety Detriments – extension to workers

The government has laid new Regulations which extend to workers, the protection already given to employees who raise health and safety concerns.

In plain English: at the moment an employee can claim in a tribunal if subjected to a detriment because (in simple terms) they reasonably believed that being at work would place them (or someone else, such as a household member) in serious, imminent danger. This right is found in s44 of the Employment Rights Act 1996, which was rarely used before last year but is now being used frequently by employees who are anxious about traveling to or being in, work during the coronavirus pandemic.

The new Regulations extends the protection so that it now covers ‘workers’, rather than just ‘employees’.

If approved (and it will be), it will apply to any detriments taking place on or after 31 May 2021.

Care workers who ‘sleep-in’ not entitled to National Minimum Wage

Care workers who sleep at service users’ homes are not entitled to the national minimum wage for the hours they are not carrying out work activities, the Supreme Court has ruled – a landmark decision that is set to have ramifications for jobs where workers are required to sleep at their place of work.

Therefore, is a ‘sleep-in shift time work’ for the purposes of the National Minimum Wage Regulations 1999 and 2015?

No, holds the Supreme Court in Royal Mencap Society v Tomlinson-Blake.

This case puts to bed a long-held belief that sleep-in shifts could qualify for the national minimum wage following British Nursing v HMRC. That held that a worker could be ‘working’ even if not required to be awake (or simply be available for work) if a need arose.

All the judges giving a judgment in the case decided that British Nursing v HMRC should not be followed any longer but they were divided on why that was, and so unfortunately Tomlinson-Blake cannot be regarded as definitive on different facts.

Employers should seek advice on their own circumstances if they have staff who are required to sleep at their place of work.

Reasonable Adjustments

Must a tribunal consider physical features and auxiliary aids when assessing a reasonable adjustments case?

Yes, held the Employment Appeal Tribunal (EAT) in Mallon v Aecom Ltd.

The Claimant, a litigant in person, brought a claim for failure to make reasonable adjustments for his dyspraxia during an application process. He asserted that completing an online application put him at a substantial disadvantage as compared with non-disabled applicants. The claim was struck out by the employment tribunal on the basis that he would not be able to demonstrate substantial disadvantage arising from the requirement of having to apply online and that he, therefore, had no reasonable prospect of success.

Upholding the Claimant’s appeal and remitting the case to a freshly constituted tribunal, the EAT was critical of the decision to strike out which must only be used “in the most obvious and plain cases” (citing HHJ Serota in QDOS Consulting Ltd v Swanson) and rarely with discrimination. The tribunal should have considered whether this was an auxiliary aid case and did not.