CM September 2021

HR MATTERS
MIND THE GAP
Uncovering disparities in pay gaps and protecting
against imminent danger in a pandemic.
THE CBI, TUC and Equality
and Human Rights
Commission have called
for a clear timetable for the
introduction of mandatory
ethnicity pay gap reporting.
The three signatories argue that
mandatory reporting would highlight
pay disparities and the lack of minority
representation in senior positions with
the hope that this would push employers
towards action. They have addressed
a letter to the Cabinet Office Minister,
Michael Gove, to request clarity for the
introduction of such reporting.
AUTHOR – Gareth Edwards
This follows the findings of the
Commission on Race and Ethnic
Disparities, published in March 2021,
which was set up by the Prime Minister
in 2020 to identify racial disparities and
inequalities in Britain and ways to address
them.
However, the Commission’s findings
did not recommend mandatory pay
gap reporting. Instead, the report
recommended investigating ‘what
causes existing ethnic pay disparities
by requiring the publication of a
diagnosis and action plan for organisations
who voluntarily publish ethnicity pay
figures.’ The Government's response to its
consultation on introducing mandatory
ethnicity pay gap reporting, which
was originally launched in October
2018, is awaited. The Government
opened the consultation to seek views on
whether large employers should be
required to publish ethnicity pay
information.
At the moment, there is no obligation
on employers to report ethnicity pay
gaps. However, in light of this recent letter,
this could change. Employers should be
careful to remain up-to-date with their
requirements.
Employee stuck abroad in March 2020 wins
automatic unfair dismissal claim.
IN a recent tribunal claim, Mr C Montanaro
v Lansafe Ltd, a worker who stayed in Italy at
the beginning of the pandemic and who was
dismissed by his employer was successful in
bringing a claim for automatic unfair dismissal.
Under s100(1)(e) of the Employment Rights
Act 1996, an employee is automatically unfairly
dismissed if the reason (or principal reason)
for their dismissal is that in ‘circumstances
of danger’ which the employee ‘reasonably
believed to be serious and imminent, they
took (or proposed to take) ‘appropriate steps to
protect themselves or others from the danger’.
There is no requirement to have two years of
continuous service to bring a claim.
Mr Montanaro was employed by Lansafe Ltd
from 17 February 2020. He genuinely believed
he had permission to take holiday on 9 and 10
March 2020 for his sister's wedding in Italy, and
so travelled there to attend.
However, when on 9 March 2020, Italy went
into lockdown, the UK Government's guidance
required 14 days' isolation on return from Italy.
Montanaro's flight back to the UK was due
to leave on the morning of 10 March, and he
contacted his employer to inform them of the
restrictions and requested guidance on what he
should do.
On 10 March Lansafe emailed Montanaro
telling him to await further instructions; he did
not board a flight back to the UK as he continued
to await instructions. He continued to work
remotely, contacted his key client to confirm
they were happy for him to do so (they were) and
made several attempts to contact Lansafe.
On 11 March, Lansafe sent a letter to
Montanaro in London (despite knowing
he was in Italy) advising that he had been
The Tribunal
held that the real
reason for the
dismissal were
the appropriate
actions
Montanaro took
in circumstances
he reasonably
believed were
dangerous.
Advancing the credit profession / www.cicm.com / September 2021 / PAGE 55
dismissed with effect from 6 March for failing
to follow company procedures, and for taking
unauthorised leave. The letter was factually
incorrect, claiming that Montanaro had made
no contact with Lansafe and made reference to
a disciplinary hearing that had never been held.
Although it was admitted that Montanaro
did not follow the correct procedure to request
holiday as laid out in Lansafe's staff handbook,
he had in fact not yet been provided with
the handbook and so followed the informal
procedure he had previously followed to take
annual leave. This involved verbal confirmation
from the employer, who allegedly advised
him to follow up with an email including the
proposed dates (which Montanaro did). The
tribunal acknowledged that this was a genuine
misunderstanding on Montanaro's part, and
that his behaviour did not constitute gross
misconduct that justified dismissal.
The Tribunal held that the real reason for
the dismissal were the appropriate actions
Montanaro took in circumstances he reasonably
believed were dangerous. This included
communicating the difficulties posed by the
pandemic and proposing to work remotely from
Italy until circumstances changed.
The case is clear that the employer failed to
provide an adequate reason for the dismissal
and acted unreasonably in dismissing. It is
reminder that COVID-19 is a circumstance of
danger under the Employment Rights Act 1996
and that in many cases, that danger will be
deemed to be 'imminent'.
Gareth Edwards is a partner
in the employment team at VWV
www.gedwards@vwv.co.uk