Employment Law Newsletter – Summer 2022

A warm welcome to Blake Morgan’s Summer newsletter, keeping you informed of the latest developments in Employment, Pensions and Immigration Law.

“Hybrid” working is a familiar concept now and a recent survey from Acas found that 60% of employers have seen an increase in hybrid working compared to before the coronavirus pandemic. In our article, we consider what lessons employers have learned from hybrid working over the past couple of years and what key issues need to be addressed if hybrid working is to be introduced for the first time.

The recent surge in COVID-19 infections is a huge concern as is the ever increasing number of people suffering from long COVID, currently an estimated two million people. The Employment Tribunal recently held, as a preliminary issue, that an employee suffering the effects of long COVID satisfied the definition of disability in the Equality Act 2010. This is potentially a very significant decision with considerable implications for employers and for more details see our article.

Finally, I would just like to update you on some very welcome team news. Employment partner Rajiv Joshi has been named as a Thomson Reuters Stand-Out Lawyer in 2022. Congratulations to Rajiv who was independently nominated for the prestigious accolade by a client through a global survey of in-house counsel. Further congratulations to my colleagues in our Cardiff office. Blake Morgan scooped the top honour at the Wales Legal Awards 2022, with the firm named “Law Firm of the Year”. A particularly pleasing aspect of the award was the recognition of the impressive amount of community engagement and pro-bono work provided by the firm.

We hope you will enjoy our mixture of highly topical articles and a complete list is set out below.

Have you implemented a Hybrid Working Policy and is it still working?

Many organisations have implemented “Hybrid” or “Smart” working policies, others may only formally be introducing them now, with COVID restrictions having ceased. We look at what the considerations are, whether for a new policy, or revisiting an existing one if an organisation is reflecting on what has and hasn’t worked for them over the last couple of years.

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Long COVID met the definition of disability

In a potentially significant decision, the Employment Tribunal held, as a preliminary issue, that an employee suffering from the effects of long COVID and post-viral fatigue syndrome satisfied the relevant tests to meet the definition of disability in the Equality Act 2010.

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Indirect sex discrimination and the importance of the comparison pool

In a claim for indirect sex discrimination arising out of a flexible working request due to childcare responsibilities, a recent decision of the EAT in Allen v Primark Stores Ltd illustrates the importance of identifying the correct pool for comparison.

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Combating loneliness at work

The coronavirus pandemic has had a significant impact on mental wellbeing across all age groups and, although remote working has been welcomed by many, for others it has increased their feelings of loneliness at work. How can employers combat isolation?

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When could a Without Prejudice letter still be admissible in an Employment Tribunal?

A recent case shows just how careful HR professionals, employers and lawyers need to be when heading a letter “Without Prejudice” in order to ensure that its contents will in fact be protected if a dispute ultimately leads to an Employment Tribunal hearing.

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“ESG” – what is it all about?

“ESG” or Environmental, Social and Governance is the latest acronym that all businesses now have to deal with. The decoding of the letters is the easy part, but what does this actually mean for businesses, their staff, customers and supply chains?

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Maximum 25% uplift for failure to comply with the Acas Code of Practice was appropriate

Where the employer’s procedure for dismissal was a total sham and wrongly labelled as “redundancy”, it was appropriate to apply the maximum 25% uplift for failure to comply with the Acas Code of Practice even though the Code states that it does not apply to redundancies. In a recent decision, the EAT gave useful guidance on the issues to consider when determining the extent of the uplift.

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Dealing with body odour in the workplace

It is important to manage the tricky subject of an employee who has consistent unpleasant body odour, as failure to do so can have a significant impact on relationships between colleagues and/or third parties, affect morale and productivity, and even result in the organisation losing clients.

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Dress Code Policy or Express Yourself?

The post-pandemic working routine is now established for most people with many benefitting from more flexibility, whether working from home or adopting hybrid working. Does that flexibility extend to dress codes or should employers draw the line when it comes to letting staff dress as they wish?

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Employment Webinar

Our next Employment webinar will take place in the autumn and we will provide details of the topics and date in due course.

I hope you will find all the articles above informative and helpful, and if you would like any further information please do not hesitate to get in touch with your usual Blake Morgan contact.

Many of you may have made holiday plans for the summer, whether in the UK or overseas and I hope those plans run smoothly and are not derailed by COVID infections or transport problems.