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There have been media reports that the government is expected to repeal the ban on agency workers being used to cover striking employees. Agencies are currently prohibited from supplying employers with workers to perform duties normally performed by striking workers. Breach of this legislation is a criminal offence. The BBC reports that repeal could take effect as early as mid-July.
The government’s statements around this clearly envisage that repeal would have a significant impact on the ability of employers to make contingency plans around strike action. However, other considerations need to be weighed in the balance, including whether agency workers can practically and safely step in, and whether bringing in a relief workforce would fan the flames around the underlying industrial dispute. Some agencies may also be hesitant to supply agency workers in such circumstances because of trade union sympathies amongst their own workforces or because they fear it may cause them reputational damage if public opinion sides with the striking employees. The BBC report makes this clear in quotes from the Recruitment and Employment Confederation.
BEIS has commented on the timing of some outstanding employment commitments. First, it has announced that it will consult this summer on a new statutory code of practice in relation to some dismissal and re-engagement strategies aimed at changing terms and conditions. This code will follow guidance from ACAS last year. BEIS has indicated that the statutory code will also set out good practice with the aim of helping parties to reach a negotiated agreement. However, unlike the ACAS guidance, not following the new code could result in increased compensation should there be a successful tribunal claim.
BEIS also commented on the delays to the Employment Bill by suggesting that “there are many other ways of delivering what were manifesto commitments than a formal government employment Bill”. Carers’ leave was particularly pinpointed as a commitment that may be suited to an alternative legislative vehicle. It isn’t clear what other ad hoc legislation may be brought forward to implement parts of the government’s outstanding employment legislative commitments. Discrete items that would involve tweaking existing laws rather than introducing new statutory frameworks seem most likely. Perhaps changes such as increasing redundancy protection for pregnant employees might still be on the agenda sooner rather than later after all.
An ET has agreed that an employee’s long covid was a disability. Mr Burke was dismissed by Turning Point Scotland in August 2021 for reasons relating to continued absence from work. He had first contracted covid during November 2020 and continued to experience unpredictable fatigue which had peaks and troughs. He brought several employment claims, including disability discrimination. At a preliminary hearing the employment tribunal agreed with him that his long covid was enough to amount to a disability under equality legislation. This requires a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on a person’s ability to do normal daily activities.
The ET acknowledged that long covid is a recognised difficulty and a possible outcome for those contracting covid. It also made allowances for the lack of detailed medical evidence in B’s GP reports because much of his interaction with his GP was through telephone consultation and this was the ‘way in which matters were being dealt with in the period’. It also focussed on the credibility of B’s own evidence and favoured his evidence rather than OH reports which had indicated he was not disabled and could return to work. The impairment had an adverse effect on B’s ability to carry out normal day to day activities because: he could not walk to the nearby shop to collect his paper as he had done; he could not help with the cooking and ironing chores or shopping; he had difficulty reading for any length of time or following a TV programme; and his sleep was also disturbed. This all affected his socialising and family events too. These adverse effects were substantial as they were not minor or trivial. Although long covid is difficult to predict, in this case it was long-term in nature as it was likely to last for a period of 12 months. Although the tribunal agreed B was disabled, it will still need to decide if the underlying claim of disability discrimination is well founded.
This decision does not mean that all cases of alleged long covid are disabilities as it will be a fact specific assessment for each individual. If contemporaneous medical evidence is limited (perhaps because of telephone medical appointments) the credibility of the employee themselves may be very important as it was in this case.
This page is updated weekly with News and Views from that week’s employment weekly briefing email. For previous articles, please contact us: Employment Law Plus.