An employee who was dismissed as a result of having been charged with a criminal offence was unfairly dismissed. The employer had invited him to attend a disciplinary hearing on a matter of misconduct, but was unable to decide whether the employee had committed the offence. Finding that they were unable to rule out the possibility that he had, the employer then dismissed him for a different reason –  the risk of reputational damage if it became known that it had continued to employ him. The dismissal was both procedurally and substantively unfair.

In this case, an employee who was suffering paranoid delusions was not disabled for the purposes of the Equality Act 2010 because he was unable to show that his condition had had a substantial long term impact on his day to day life and was likely to recur.

The CIPD and Equality and Human Rights Commission EHRC have produced guidance for employers on how to manage and support employees experiencing domestic abuse. The aim is to encourage employers to take an active supporting role to employees experiencing domestic abuse and the guidance sets out some practical recommendations on how to achieve this. A copy of the guidance can be found here.

In this alert we summarise the principal employment-related criminal offences for which employers and company officers can currently be liable arising from COVID-19 restrictions in England. Employers should pay particular attention to the requirement to not knowingly allow a worker to breach mandatory a self-isolation requirement for work purposes.

The Inner House of the Court of Session in Scotland has upheld a decision that the Police force did not breach its officers’ rights to privacy when it brought disciplinary proceedings against them based on messages from two private WhatsApp chat groups they were members of. The messages were discovered on a colleague’s phone during an unrelated criminal investigation. The Court ruled that the officers did not have a reasonable expectation of privacy in the messages taking into account its inappropriate content and the fact that the officers were bound by professional conduct rules which they had clearly breached. The Court made clear that it considered that the standards and regulatory framework to which police officers are subject put them in a different category from ordinary members of the public; the usefulness of this judgment to employers is likely limited to situations where the regulatory backdrop has reduced expectations of privacy. Ordinary employees who are not subject to the same degree of professional conduct standards will have a higher expectation of privacy.

An employment tribunal has held that the protected characteristic of “gender reassignment” under the Equality Act 2010 extends to employees who are gender fluid/non-binary employees. However, whilst this is a novel point of law, as a tribunal-level decision, it is not binding on other tribunals.

The EAT has held that on the facts of this case it was a reasonable adjustment to promise to pay a severance package to a disabled employee, if certain circumstances arose in the future, as part of a package of adjustments designed to enable the employee to continue working. In this case, the promise was part of an undertaking to keep an employee with anxiety from working with two colleagues, and, if that became impossible, to pay a redundancy severance package. This decision is surprising but other cases where this type of undertaking would be reasonable could prove rare.

The UK government has announced that further businesses will be allowed to reopen from 4 July, including pubs, restaurants, hairdressers, hotels and guest accommodation, cinemas and outdoor gyms.  Non-essential retail businesses have been permitted to reopen since 15 June.

While the message continues to be that those who can work from home should continue to do so, more employees will be returning to the workplace.  The government has published updated workplace-specific guides (available here) for employers to enable them to operate safely (known as being “COVID secure”).

Employers should check the appropriate guidance for the types of workplace they operate as they make their plans, but check back regularly to see if updates have been made.

Further guidance on flexible furlough has been published. The scheme was announced on 1 June 2020 and will go live on 1 July 2020. A new Treasury Direction for the scheme will be required; it remains to be seen whether this will alter or add to the announced conditions. In the meantime, the main new detail in the guidance is a seeming requirement for express written consent to be flexibly furloughed. There are also complex rules about how you calculate flexible furlough pay and when flexible furlough can start depending on if and for how long an employee was furloughed in June 2020.

In brief The UK’s Coronavirus Job Retention Scheme (CJRS) has entered its second week of operation, its first week having seen the release of yet more updated guidance. Anecdotally, HMRC’s online portal appears to be bearing up, although some problems have been reported, such as calculations for variable pay. Nevertheless,…