Employment Law: Whistleblowing, Long Covid, Part-time Workers | November 2021

Employment Law: Whistleblowing, Long Covid, Part-time Workers | November 2021

In this Employment Law update, we share guidance for employers on some key topics that have been making headlines in recent weeks, such as whistleblowing and Long Covid. 

Read on for all the details...

1. Whistleblowing – Government Review

Whilst there has been no date given, the Government has confirmed that they will review whistleblowing protections following an increase in employees who claim they were dismissed for speaking up about COVID-19 related issues.

Whistleblowing is an extremely complicated area of Employment Law, as identifying whether or not a disclosure of information amounts to a "qualifying disclosure" and whether a claimant can rely on legal protection under the law.

Protect (the whistleblowing advice service) found that one in four (26%) whistleblowers who contacted its advice line were dismissed after raising coronavirus concerns in the first six months of the pandemic.

In the recent Covid related case Martin v London Borough of Southwark (June 2021) the appeal tribunal outlined the following criteria that should be considered at a tribunal:

  • whether there was a disclosure of information;
  • whether the claimant believed the disclosure was made in the public interest;
  • whether that belief was reasonable;
  • whether the claimant believed the disclosure tended to show a breach of a legal obligation; and
  • whether that belief was reasonable.

2. Long Covid

Whether Long Covid is treated as a disability or not is currently a subject garnering much attention in the news. ACAS states that ‘under the law, a disability is a physical or mental impairment that has a 'substantial and long-term' negative effect on a person's ability to do normal day-to-day activities’. By definition 'Long term' means the impairment:

  • has lasted or will last for at least 12 months;
  • can come and go or is likely to last for the rest of the person's life.

Whilst Long Covid is accepted to exist, there is still relatively little information about the impact this is having on sufferers’ experiences at work. However, it is something employers need to keep in mind going forwards.

3. Part Time Workers – ‘but for test’

The following case relates to how employers treat part time workers and the law relating to ‘less favourable’ treatment.

The EAT in Forth Valley Health Board v Campbell provided guidance on the difference in treatment between full and part time workers and the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. In this claim, Mr Campbell tried to argue that not receiving paid breaks was unlawful as full-time workers received paid breaks.

The EAT overturned a previous tribunal decision on the basis that it was not because Mr Campbell worked part time that he did not receive paid breaks but because of the particular number of hours he worked in one shift. If it were a full-time worker doing the same length of shift, they would also miss out on a paid break.

The EAT held that in claims of this nature, a “but for test” should be applied, “but for” the employee being a part time worker would the same treatment still be received? If the answer is yes, as was the case here, the employee’s claim will fail.

NB: This information is for general guidance only and is not legal advice. It should not be regarded or relied upon as a complete or authoritative statement of the law. However, if you have any HR issues on this or any other HR matters and would like to talk them through with our team, please contact us.

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