Written by;
Fflur Jones, Partner and Head of Employment, Darwin Gray
Twenty years ago this year, my mother and I visited Oberammergau, a tiny village in Bavaria, Germany. The purpose of our visit was to witness the ‘Passion Play’, – the story of Jesus’s passion covering the short final period of his life from his visit to Jerusalem and leading to his execution by crucifixion.
The villagers of Oberammergau have been putting on this play for a period of almost 400 years – every ten years since 1634. In 1633, the residents of the village vowed that if God spared them from the bubonic plague ravaging the region, they would produce a play thereafter for all time every 10 years depicting the life and death of Jesus.
Little did I think then that twenty years later, all of us would be in lockdown due to our own modern-day plague. Whilst the power of prayer during this time again will give solace to many, we also hope that a vaccine will be mass produced in the not too distant future so our lives can return to a semblance of normality.
In the meantime, our 2020 lockdown, and its implications, is having a deep and wide-spread impact on every aspect of society. As an employment lawyer, I have been particularly interested and involved in the impact on our businesses, organisations, and on individual employees and workers.
Unlike medieval times, our workers and employees now have a raft of legislation to preserve and protect their employment rights from unscrupulous employers, and poor behaviour towards them whilst they work. However, for a number of reasons, the present COVID-19 crisis is likely to stress test the protection given to employees under this legislation.
A good place to start to examine the challenges of the present crisis is to consider how employment rights were playing out before it arrived. Take Sir Philip Rutnam’s case for example, who on 20 April 2020 lodged Employment Tribunal proceedings against Home Secretary Priti Patel.
Sir Philip, who had held the post of Home Office Permanent Secretary, – one of the most senior civil servants in the land, resigned from his prestigious post on 29 February 2020. The following day he publicly accused Patel of forcing him from his job, bullying her staff, and planning a vicious campaign against him. He said she had created a ‘climate of fear’ in her department.
Sir Philip’s speech after his resignation is resonant of very many of the challenges employers and employees will face during and after the current crisis.
Sir Philip says he faced claims that he had briefed the media against the home secretary – a claim he says is completely false, and Patel’s alleged involvement in this ‘smear campaign’ has entitled him to resign on the basis that his position was made untenable and claim constructive unfair dismissal.
Given the number of failures already alleged in the media of the Government’s and other key organisations’ handling of the COVID-19 crisis (and the inevitable public inquiry that will follow) it is likely that other senior officials and key employees may follow Sir Philip’s example. If organisations try and deflect criticisms away from themselves, and make senior employees scapegoats for alleged shortcomings in the handling of the crisis, it is very likely that there will be a rise in constructive unfair dismissals claims brought in the near future.
Sir Philip also referred in his public statement to the fact that “One of my duties as permanent secretary was to protect the health, safety and well-being of our 35,000 people”.
According to Sir Philip however, Patel did not respect this duty, and that her conduct included shouting, belittling people, and making unreasonable and repeated demands of them – behaviour that caused a climate of fear, and needed bravery to call out. In his Tribunal claim, Sir Philip claims to have ‘called out’ about this behaviour to the Cabinet Office, an act he says has caused him detriment, entitling him to bring a whistleblowing claim to the Employment Tribunal too.
It is unlikely that employers will currently be thinking about the risk that some of their current practices or demands on employees may cause in terms of future whistleblowing claims brought by their employees. However, it would be prudent to keep this possibility in mind.
Significant numbers of employees working as teachers, in care homes, hospitals, public transport and shops are claiming, quite publicly in some cases, that unreasonable demands are being made of them during the crisis. Many are claiming that they are having to work without adequate safeguards against COVID19, including personal protective equipment, or working without adequate social distancing, or where hygiene rules are not implemented or followed.
Many of these people may go on, in time, to claim that they subsequently suffered a detriment for putting their head above the parapet to call out these poor practices.
Employers must heed these calls, and act appropriately to respond to them. If not, we will likely see very many whistleblowing claims being brought in the future, at a significant cost and potential damage to the reputation of very many organisations.
The same is true of bullying and harassment claims. An advert on the London tube once noted that ‘People type tougher than they talk’. Claims of bullying and harassment are also likely on the rise. Achieving good remote management is difficult, but employers should put serious thought into their attempts to tackle this, or face costly consequences at a later stage.
Sir Philip’s claim is unlikely to be heard for many months to come, by which time the current COVID-19 crisis will hopefully be a painful memory. In the meantime, we should be grateful that unlike our medieval counterparts, we have so many employment rights to protect us. Employees should take comfort from that fact.
Employers who heed those rights now will also be rewarded with staff loyalty and with their reputations as exemplary employers enhanced.
