These are to do with the following areas: 1. pregnancy, including all reasons relating to maternity 2. family, including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants 3. acting as an employee representative 4. acting as a trade union representative 5. acting as an occupational pension scheme trustee 6. joining or not joining a trade union 7. being a part-time or fixed-term employ… Section 100 does not give you an absolute right to withdraw your labour if you think your workplace is unsafe. Claiming constructive dismissal Constructive dismissal arises where an employee is not actually dismissed… Read on . Under the Fair Work Act 2009 (Cth), a person has been unfairly dismissed, if the Fair Work Commission (the Commission) is satisfied that an employee (who is protected from unfair dismissal) has been dismissed and the dismissal was harsh, unjust or unreasonable, and was not consistent with the Small Business Fair Dismissal Code (in the case of employees of a small business), and was not a case of … Fair Work Commission general manager Bernadette O'Neill told a Senate committee on Thursday claims were up 70 per cent. As mentioned earlier, this applies whether or not you or someone in your household are vulnerable. Whether employees work from home or return to the office, employers may want to consider wellbeing initiatives – such as training line managers on spotting the signs, appointing mental health first aiders, organising events and ‘wellbeing’ days, and promoting work-life balance.Â, There is an inherent risk of catching the virus by entering the workplace, so enabling flexible working is highly recommended. 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. However, if you are dismissed for self-isolating due to coronavirus then this could amount to automatically unfair dismissal under the Act. 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. Coronavirus (COVID-19) & unfair dismissal cases. When might you feel unsafe and at risk of getting coronavirus at work? Unfair dismissal claims have soared to record levels as Australians lose jobs en masse because of the coronavirus crisis, as Treasury believes Australia could be in the midst of its unemployment peak. Can employers force staff to have the Covid vaccine. Were you refused furlough because you thought it was unsafe to attend work? 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. You do not have to accept any reduction in pay, because you have taken protected action under the Employment Rights Act 1996. There are employment tribunal cases on this area of law. Mostly the ‘detriments’ experienced by employees who fail to attend a covid-19 unsafe workplace have to do with employers withholding some or all of their pay. you are also entitled to leave the workplace and to refuse to return to it until any imminent danger (such a the risks of contracting coronavirus) has passed, so as to protect yourself – and possibly others too  –  from the danger. The NHS website gives full lists of people recognised by the relevant UK authorities as being vulnerable. Unfair treatment for not attending a coronavirus unsafe workplace, Not being paid and other unfair treatment for failing to attend an unsafe workplace. This means that you can’t lodge your application at the Fair Work Commission in person. Kenneth Ferguson, who headed up the Glasgow-based Robertson Trust from 2011 until he was dismissed in March 2020, is seeking nearly £75,000 in damages for alleged unfair dismissal… What does being vulnerable or having underlying health conditions mean? Published. For example: Harvest Press Ltd v McCaffrey 1999 ILRL 778 and Teasdale v John Walker T/a Blaydon Packaging (12.4.99 Case No.2505103/98). It is likely you will be dismissed before you reach either and for arbitrary reasons such as an alleged complaint by a customer or perhaps your failure to fit in with the culture. You had a right to resign in this kind of situation and to sue your employer for constructive dismissal. The need for social distancing and not enough space to practise it, Being in public facing roles (eg cashier, receptionist) and with inadequate protection, Inadequate cleanliness in the workplace (eg no provision for cleaning of surfaces during working hours), Having to share equipment in such a way that it cannot be cleaned after each individual has used it, Personal protective equipment (PPE) needed but none or insufficient available (eg in jobs that involve close contact with people who have not been tested for coronavirus), for more detail on what an underlying health condition means from a medical viewpoint.). (See the patient.info website for more detail on what an underlying health condition means from a medical viewpoint.). Under Sections 44(1) (d)-(e) and 100(1) (d)-(e) of the Employment Rights Act 1996, you are also entitled to leave the workplace and to refuse to return to it until any imminent danger (such a the risks of contracting coronavirus) has passed, so as to protect yourself – and possibly others too  –  from the danger. These are if: there was not a genuine redundancy situation; the employee was unfairly selected for redundancy; there … refused to give up your working time rights - for example, to take rest breaks. The Fair Work Commission (the Commission) decides on cases of unfair dismissal. 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. Dismissals here refer to employees who are being or have been dismissed because they refuse/d to attend work in the workplace on the grounds that it was dangerous to their health and safety (as discussed above in the section on dismissals). Businesses have a legal duty to protect the health and safety of their employees by ensuring compliance with the regulations as they evolve. We are established employment law solicitors specialising only in working with employees (not emloyers). 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. If you think you have been unfairly treated by your employer because you refused to attend a workplace that you thought was a covid-19 threat; if you have failed to resolve the problem or are unhappy with the outcome, then get in touch with us at Monaco Solicitors to see if we can help. Unfair dismissal ; When can an employee bring a case of unfair dismissal? This change could see a dramatic increase in claims relating to employers mishandling the furlough scheme. They worried that not enough dedicated PPE was being provided, that the policies for delivery drivers did not go far enough to sufficiently ensure their safety, and that the food preparation staff within the store found it impossible to keep two metres apart, in part because of the number of staff on each shift, and the footprint of the store.Â. Constructive dismissal is a form of unfair dismissal. 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. The Law Commission is aiming to extend the time limit to file a complaint, to give employees more time to consider their legal options. This group includes you if you were placed on the government Coronavirus Job Retention Scheme mentioned earlier and often just called the ‘furlough scheme’. If you think you need legal representation, then get in touch to see if we can help. As well as changing general health and safety regulations, the coronavirus situation has created new working environments specific to each sector. Employers will need to alleviate these concerns and balance these with responsible measures, otherwise they will cause problems down the line. It was up to the employer to decide who to put on this scheme and whether or not to top up the percentage paid by the government to 100% of your usual monthly wage/salary. Inadmissible … The steps that employees are taking to protect themselves in our present covid circumstances are to remove themselves from the workplace, and to remain away from it whilst the threat of coronavirus remains imminent there. 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. In this context, promoting a collaborative culture at work is essential, to create a safe space where managers adopt softer skills with their employees.Â. You can still make an unfair dismissal application during this time. It gives them the right to take reasonable steps to protect themselves from what they believe is serious danger or threats to their health and safety. 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. 100(1) (d)-(e) of the Employment Rights Act 1996, Section 100 of the Employment Rights Act 1996, Harvest Press Ltd v McCaffrey 1999 ILRL 778, Teasdale v John Walker T/a Blaydon Packaging (12.4.99 Case No.2505103/98), claims of unfair dismissal is £88,519, or 52 weeks gross salary, how much you should get in your settlement agreement, the Employment Rights Act 1996, section 44, Health Protection (Coronavirus) Regulations 2020, at Regulation 3(1), Letter from employee dismissed/made redundant due to lack of work’, get in touch with us at Monaco Solicitors. However, if your employer consistently refused to put you on the furlough scheme, and you suffered a pay cut or even no pay as a result, then you need to review what other options may be available to you as the scheme closed to new entrants  on 10th June 2020. (1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that—, (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.”. A future COVID-19 vaccine could become compulsory for some Australian workers, forcing them to … As with s 44 of the same Act, there is no minimum length of service (see above), so even if you’ve been employed for under 2 years, dismissal in these circumstances can still be regarded as unfair. If you or a member of your household are vulnerable, then that means that you are at higher risk of the virus affecting you particularly badly, should you contract it. Unreasonable refusals of reasonable requests will not be welcomed by the tribunals. You can make them aware by forwarding them a copy of this article, or else by using our Coronavirus Employment Rights App which provides you with template letters for that purpose. Some reasons for dismissal are classed as ‘automatically unfair’ when the reason for dismissal is proscribed by certain statutory provisions as inadmissible. 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 … If your employer is made aware of the lack of safety of the workplace, but still does not take steps to remedy any such shortcomings, you have the right to continue not to attend until such time as your employer resolves the problems. Looking back at 2020 – the year HR stepped up. Employees have to apply to the Commission within 21 days of the dismissal taking effect. AN immigration officer sacked for alleged racist remarks has won a claim of unfair dismissal. For everyone’s safety, our counters are closed. As briefly mentioned earlier, the Employment Rights Act 1996, section 44 is about the rights of employees to be provided with a safe working environment. Employees are protected from ‘automatic’ unfair dismissal. You only have the right to claim unfair dismissal if you’re an employee - this includes part-time and fixed-term employees. if there are people working within 2 metres of each other. What about employees who are not vulnerable to coronavirus? These unsavoury tactics include the falsification of … Unfair methods are sometimes used at disciplinary hearings, appeal hearings and arbitration hearings. There can be no doubt that coronavirus presents a ‘serious and imminent’ danger. This issue will only become wider in the months to come as lockdown is gradually eased and people progressively return to work. 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. Sack '' O'Neill told a Senate committee on Thursday claims were up 70 per.... 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