COVID-19: what next for UK employers, Part 5 – are they at risk under the away goals rule?

Work

Here is another good question from our What Next webinar a couple of weeks ago. More to follow soon.

If someone whose role involves International travel has a medical condition which makes that travel undesirable in a post-pandemic World, would the capability dismissal process be applicable?

Probably so, but we need to look at the question in a little more detail before we can be sure.

First, when we say “undesirable”, do we mean that the employee has a condition which places him at a recognised and significant additional risk of serious illness or death if he contracts Covid?  Or just that because he is not well he fears on a non-specific basis and without actual evidence that Covid could treat him more roughly than if he were in good health?  Although it may not be a point worth taking in practice, the latter might make his refusal to travel unreasonable in the legal sense and so move the situation towards a conduct or SOSR question instead.

Second, travel where?  Not all destinations represent an equal Covid risk.  Many countries in Europe could be said to represent a lesser risk than staying in the UK, and the rigorous precautions around air travel in particular will probably make that a safer pastime than using public transport here.  Especially since the Government’s recent relaxation of the travel lists, refusal to travel overseas when required for the job is becoming harder to justify.  Try to book an overseas holiday for the half-term week for less than £squillions and you will see what I mean.  However, just because there are now going to be more Brits hitting foreign beaches than on D-Day and more casualties from sunburn and dodgy moussaka than Covid does not mean that the same rules apply to everyone.  If your employee does indeed have good medical grounds for his concerns, then what others may be willing to do is largely irrelevant.

Third, is international travel still necessary at all?  We all thought that travel and meetings and indeed offices were essential until March 2020, and now there are significant question marks over all of them.  The wheels of commerce have kept turning reasonably satisfactorily even with most business aviation completely grounded.  If the employer is going to rely on an inability or refusal to undertake international travel as justification for termination, it will need to show why requiring that travel is reasonable.  [If you dismiss and get to the ET on this, do cross your fingers for an in-person hearing – if you can conduct contentious and complex legal proceedings virtually, will run the obvious argument, what does physical travel actually bring you?].

Fourth, is this a long term issue?  Or is it simply a period of particular vulnerability for the employee (recuperation from an operation or other illness, for example) such that given a brief break from international duties he will soon be fit enough for what limited travel requirements still remain.  Is he perhaps currently unvaccinated during that recuperation period but soon able to be double-jabbed?

Last, even if he is willing to fly, will he be allowed to do so if his medical condition means that he cannot or will not be vaccinated?  if it is a case of won’t rather than can’t, we move back towards a conduct or SOSR termination – after all, the employee has chosen expressly a course of conduct which prevents him from doing a key part of his role.  If it is genuinely can’t, however, then we are back to capability.

I have not raised here the question of whether the medical condition is a disability.  That is because ultimately it is unlikely to matter much.  If you can show a genuine business need for that particular employee to travel to particular places at particular times and that no alternative accommodation can be made to get you to your foreign business goals, then you may well have the basis for a fair dismissal.  At the same time, you will also probably be able to justify that dismissal under the disability legislation.  By contrast, if you can’t show that you considered either the need for the travel and/or alternative ways of reaching the same commercial objectives, then you are likely to go down not just on fairness but if the employee is disabled, also discrimination.

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