Our monthly employment law update brings our clients the latest top picks of employment law developments that may affect your business.

Remember though, we’re always here to answer any questions you have and to help you navigate the wonderous world of employment law in managing your people!

This month we will cover:

• Changes to Fit Notes
• Private spaces to allow expressing of breastmilk
• Exclusivity Clause ban is widened
• Recent case law with takeaways for your business:
  • Long Covid: Is it a Disability?
  • Redundancy Exercise: Was it a ‘sham’?
  • Did a “bald expletive” comment amount to Harassment?

Fit notes should be provided to the employer by an employee when they’ve been off work ill for more than seven days, as evidence about the absence and any relevant advice on how to support the employee to remain in or return to work.

These have always been issued only by Doctors only but from 1st July, new rules came in to abolish the requirement that only doctors can issue the Fit notes.

The idea behind the changes is that it will allow better conversations about work and health between employers and staff by making it easier to get health advice certified by the most relevant healthcare professional such as Nurses, Occupational Therapists, Pharmacists and Physiotherapists for example.

This change follows legislation changes in April 2022 which made it possible for eligible healthcare professionals to certify fit notes digitally and also for patients to receive their fit note via digital channels.

Beware! Failing to provide private space for a mother to express breastmilk at work could amount to harassment. A tribunal recently upheld a claim of harassment related to sex for this very reason.

In upholding the harassment claim, the tribunal said that the failure to provide a private space forced Ms Mellor (the claimant) to express milk in the employer’s bathrooms or her car creating a degrading and/or humiliating environment for her and, because it was related to her sex, amounted to harassment.

The case is a useful reminder of the need to provide appropriate support and spaces for breastfeeding employees.

The government has announced plans to widen the ban on the use of exclusivity clauses beyond zero-hour contracts.

Exclusivity clauses are contractual clauses designed to stop employees and workers from working for other employers at the same time and are common in most contracts.

The new proposals will mean that these clauses can no longer be included in contracts where the minimum guaranteed weekly income for the employee or worker employed on that contract, is on or below the Lower Earnings Limit (currently £123 per week).

The change is designed to make sure lower paid workers can increase their income and to widen the pool of talent for employers to choose from.

Legislation introducing the ban is expected later this year.

1. Long Covid – Was the Employee Disabled?

A tribunal has found that an employee with long COVID symptoms was disabled for the purposes of the Equality Act 2010 (Burke v Turning Point Scotland). The employee reported that his symptoms included fatigue, severe headaches and difficulty sleeping and that his symptoms fluctuated from day to day.

In finding that the employee was disabled under the Act, the tribunal held that the employee suffered from a physical impairment (post viral fatigue syndrome or long COVID) which had a substantial adverse effect on his ability to carry out day to day activities and that the effect was long term.

Takeaways – What does this mean for employers?

The decision is a useful reminder that cases citing long COVID will be fact specific and the evidence in each case will be assessed against the usual test for determining whether the definition of disability is met.

It’s always a good idea to protect yourself as an employer by referring any persistent or long-term sickness cases to an Occupational Health Professional for assessment, prior to making any decisions about their ongoing employment as ‘not knowing’ the employee was disabled isn’t an excuse that will carry weight.

2. Was the Redundancy exercise really a sham for getting rid?

In the case of Rentplus UK Ltd v Coulson, Ms Coulson was dismissed after a reorganisation described by her employer as a redundancy exercise.

However, the tribunal found that the decision to dismiss her had really been made a year earlier and because of that, concluded that the reason for dismissal was not redundancy and the procedure followed was a “sham”.

The Tribunal felt that the decision to dismiss Coulson was down to dissatisfaction with her and/or her performance, so was in fact a "disciplinary situation" to which the ACAS Code should apply.

It upheld the claimant’s claims of unfair dismissal and sex discrimination and awarded her a 25% uplift on compensation for the employer’s failure to follow the ACAS Code.

Takeaways – What does this mean for employers?

This is a useful reminder that tribunals will look beyond the reason for dismissal given by the employer and, if it concludes that redundancy is not the reason for the dismissal, may determine that the ACAS Code applies meaning a 25% uplift in compensation.

3. Did a “bald expletive” comment amount to Harassment?

You may have heard in the news that a tribunal did indeed find that a male employee was subjected to harassment related to sex when a colleague called him a “bald [expletive]” during an argument in the case of Finn v (1) The British Bung Manufacturing Company Ltd and (2) King.

The tribunal concluded that the comment about ‘baldness’ amounted to degrading and unwanted conduct related to the claimant’s sex.

In analysing the issue, the tribunal noted that although women as well as men may be bald, baldness is much more prevalent in men and therefore that it’s much more likely that the person on the receiving end of a remark about baldness would be male.

The result was that the tribunal found that there was a connection between the word “bald” and the protected characteristic of sex and concluded that baldness is inherently related to sex, upholding Mr Finn’s claim.

Takeaways – What does this mean for employers?

The definition of harassment is very broad and as there is no stand-alone claim that can be made for workplace bullying, it’s often the case that Employees must hang their complaints off some ‘protected characteristic’, in this case ‘sex’.

Therefore, it’s important that behaviour and language like this is discouraged at work as far as possible as there’s always a danger it could lead to a Tribunal claim, even on what might seem like very tenuous grounds.

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