As more case law begins to emerge around employers’ actions during the pandemic, Richard Fox looks at a recent Employment Appeal Tribunal decision regarding the Scottish Fire and Rescue Service’s leave policy during Covid.
Hot on the heels of the recent decision of the Scottish Employment Tribunal which found Long Covid may be a disability for the purposes of the Equality Act, another Covid-related decision has recently been handed down by Scotland’s Employment Appeal Tribunal (EAT).
The case of Michael Cowie and Others vs Scottish Fire and Rescue Service deals with the question as to whether a particular policy, which operated to the benefit of those unable to work because of Covid, may in fact be discriminatory on account of the conditions that applied to that policy. The judgment was issued on 11 August 2022.
The Scottish Fire & Rescue Service operated a special leave policy during the Covid pandemic. If employees were unable to work, for example because they were shielding on account of their own health or a member of their household, or they had school aged children or other caring responsibilities, interim measures applied.
Employees affected in this way could continue to be paid in certain circumstances, but there were conditions attached. In particular they had to first use up any accrued time off in lieu and any outstanding annual leave.
The employees were represented by the Fire Brigade Union, which considered such a policy was discriminatory on the basis of disability and sex. The union lodged a collective grievance on behalf of its members but the grievance was rejected.
Proceedings were then issued before the employment tribunal in Glasgow. It concluded the policy did constitute unfavourable treatment in terms of the disability claim, but that it did not give rise to particular discrimination for women. Both sides appealed.
In relation to the disability claim, the EAT concluded that the employees were handed an advantage in being entitled to paid special leave when they could not work on account of their disabilities.
It was argued that this was an advantage they would not otherwise have enjoyed. They may have complained about the conditions attached to that entitlement, but those conditions could not be looked at separately and in isolation from the benefit itself.
Conceptually, the Scottish Fire & Rescue Service could have provided the benefit without the conditions attached, and that may have been more advantageous for the employees, but that did not of itself render the policy discriminatory.
The EAT also rejected the sex discrimination claim for similar reasons, arguing that the policy must be viewed as a whole. There was no requirement to use accrued time off in lieu or annual leave, other than as part of the policy providing the benefit.
What does this mean for Covid policies?
One of the difficulties in advising employers on Covid policy has been the lack of relevant case law dealing with this issue specifically.
With the passage of time, that position is now changing and we are building up a body of law which is beginning to assist.
The above case provides reassurance to employers who seek to make accommodation to those of their employees whose ability to work has been affected by Covid and where they also wish to attach certain conditions before the benefit applies.
These cases are of course very fact sensitive, but moving forward it does seem employers are entitled to look carefully at the relevant treatment they are giving to staff and not allow employees to pick and choose what elements of that policy they feel to be discriminatory.
Instead, the position must be looked at in the round. This case is certainly an important one for employers to bear in mind when formulating their policies in light of the pandemic. And the principles are as valid in England & Wales as in Scotland.