Issue 39 October 2021 - Journal - Page 29
It is advisable that employers keep contemporaneous
notes of their decision-making process when implementing or rejecting reasonable adjustments. These
will be helpful in a tribunal hearing.
serious strategic thought to how that argument would
be put forward.
The Department of Business, Energy and Industrial
Strategy (BEIS) and Acas have developed a new
advisory hub for employers and disabled people in
England, Scotland and Wales, which includes advice
relating to reasonable adjustments, flexible working
and long COVID.
Will dismissal be unfair and discriminatory?
An employer should ensure that its absence
management policies are fit for purpose and cater for
the peculiarities that long COVID presents. If the
policies are appropriate and followed properly, then a
dismissal may be fair. As above, employers should
ensure that notes are kept of their thought-making
process when it came to the decision that the employment was no longer sustainable.
We are yet to see how the tribunals will interpret an
unfair dismissal or discrimination case based on long
COVID. However, whilst this is new ground for all of
us, the legal concepts do remain the same and it will
be for the tribunals to apply those concepts to each set
of individual facts presented to it.
Aside from the disability discrimination claim that an
employee may bring if their condition amounts to a
disability, employers should consider other indirect
discrimination claims that an employee may bring.
Employers should recognise that other protected
characteristics may also be triggered when engaging
with or making any decision relating to an employee
suffering from long COVID. The impact of the condition may vary considerably between protected
groups e.g. older employees, ethnic minorities and/or
women – all found to be more susceptible to long
COVID. Therefore, any capability procedures should
be approached with caution and some flexibility maintained. A rigid approach, which dictates that no reasonable adjustments will be made if an employee is off
sick with long COVID and the employer will dismiss,
could by itself amount to an indirectly discriminatory
practice if a protected group is treated less favourably.
Whilst it would be open to an employer to argue that
the practice was justified, it would need to give some
Verity Buckingham - Counsel
Verity is experienced in all aspects of employment law
and corporate immigration matters.
She deals mostly with corporate clients advising on
contentious and non-contentious employment matters. Verity's contentious practice includes defending
claims in the Employment Tribunal and experience
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employee handbooks consisting of extensive policies
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