Insights

Nighat Sahi

Published 27 January 2022
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Your 2021 Employment Law Review

Despite the fact that last year saw significant periods of lockdown for the UK, the employment law wheels kept on turning, with a number of significant changes and decisions emerging from the tribunals, courts and government. So in this post, we’ve summarised some of the more important decisions and changes that you need to be aware of as work starts to get back to normal in 2022.

Employment law update

Whistleblowing

We started last year with a finding by the Employment Appeal Tribunal (EAT) in the case of the Ikejiaku v British Institute of Technology Ltd about time limits for bringing a whistleblowing detriment claim as well as the issue of imposing a penalty for failure to adhere to the ACAS Code of Practice on Disciplinary and Grievance Procedures (‘the ACAS Code’).

The case was an important reminder about the need for employers to follow the ACAS Code in whistleblowing cases and provided further clarity about whether an incident forms part of a series or is a one-off event. This will apply across other areas, such as discrimination claims. The case also served as a reminder of the time limitations, and the fact that a new “detrimental” contract imposed on the claimant in this case was subject to a three-month limitation.

You can read more about this decision here.

A second case in respect of whistleblowing (Kong v Gulf International Bank Ltd)clarified what has become known as the ‘Jhuit’ principle (derived from the EAT case of Royal Mail v Jhuti), namely that an employee will be unfairly dismissed if the reason for dismissal is whistleblowing, even if that reason is concealed from the dismissing officer. The Kong case clarified that this principle will not apply unless the non-decision-maker exercises a significant degree of manipulation or influence over the dismissal decision-maker.

Constructive Dismissal

Although decided on its own unique set of facts, in the case of Mrs K Ure v Chemcem Scotland Ltd the Employment Appeal Tribunal considered what constitutes acceptance of a repudiatory breach of an employment contract in an unfair dismissal case.

The breach in the case involved the claimant’s maternity leave and included failing to pay statutory maternity pay, varying her pay without warning, not answering her queries about her pay situation, moving her to a different payroll and misleading her.

Following the end of her maternity leave, the claimant did not return to work. Neither did she communicate this decision. No attempt was made by her employer to contact her. Her employer was actually her father and his new partner would have been the claimant’s junior had she returned to work. An employment tribunal found that the breaches of contract were repudiatory and that by not returning to work she had communicated her acceptance of the contract breaches and the termination of her employment.

However, the EAT noted that not turning up at work will not ordinarily imply acceptance of a repudiatory breach of contract. For those finding themselves in a similar situation, it would be wise to communicate.

You can read more about this decision here.

Changes to IR35

In April 2021, significant changes to the IR35 regime came into effect when the rules were expanded to include most private sector businesses. Under the new IR35 rules, if the “end-client” hiring organisation deems a contractor to be within the IR35 rules, then the fee-payer (usually the organisation but sometimes a recruitment agency) will be responsible for deducting income tax and NICs from the contractor’s fee.

This had significant implications for a number of businesses, especially for those heavily reliant on PSC or off-payroll contractors. At the time, we urged such businesses to carry out a full audit of their processes and payment infrastructure before the new regime came into effect and not to rely too heavily on the Government’s Check Employment Status for Tax “IR35 status checking” tool.

You can read more about our recommendations and the full implications of the changes here.

Safety in the Workplace

The Employment Rights act 1996 (section 44) protects “employees” from being subjected to a detriment (a detriment means some action short of dismissal) by their employer in specific health and safety situations. These include:

  • where an employee absents themselves from work due to a reasonable belief that attendance would put them in serious and imminent danger, or
  • where an employee takes or proposes to take appropriate steps to protect themselves or others in the reasonable belief that there is a serious and imminent danger.

 Dismissal in either of these situations will be automatically unfair. The legislation in respect of this area has become increasingly important since the pandemic and in May last year, the protection it affords was extended to “workers”.

However, in the case of Moore v Ecoscape UK Ltd, a general fear of Covid-19 was found to be an insufficient reason for failing to come into work, especially when the employer had made substantial adjustments to mitigate the risk of infection.

You can read more about this issue here.

Standby periods can count as working time

Last year, two European Court of Justice (ECJ) decisions made findings about whether standby periods count as working time, finding that a worker on standby may be considered working where they are required to be contactable and must be able to return to the workplace within a given period.

The ECJ also found that standby periods which are counted as rest periods but are very long or frequent may constitute a risk to the health or safety of workers. Therefore, employers should make sure all their workers receive sufficient rest periods.

There were specific factors taken into account in both decisions which you can read more about here.

Making a direct offer to employees where there is collective agreement is unlawful
The issue in the case of Kostal UK Ltd v Dunkley was whether and if so, when, an employer can negotiate directly with an employee where a trade union holds collective bargaining powers.

The Supreme Court confirmed that direct offers can only be made to employees once the collective bargaining process has been genuinely exhausted. Any offers made prior to that will amount to an unlawful inducement and are prohibited.

Employment “Worker” Status and Uber

Employment status and what gives someone “worker” status continued to hit the headlines in 2021. Early in the year, the Supreme Court unanimously decided that drivers engaged by Uber are workers rather than independent contractors. The finding was a helpful reminder that tribunals should focus on the reality of the relationship and not be bound by what the documents say.

The important rights of a worker mean Uber drivers are now entitled to payment of the National Minimum Wage/National Living Wage, an itemised pay slip, working time rights, protection from discrimination, and from unlawful deduction from remuneration, Health and Safety protection, auto-enrolment on to a pension scheme and paid annual leave.

Later in the year, the case of Addison Lee v Lange, confirmed that Addison Lee drivers are also workers and found that the Uber case confirmed that a tribunal should disregard any contractual provision that does not reflect the reality.

This decision was followed by one in respect of Deliveroo delivery riders. However, the Court of Appeal held that Deliveroo riders are not in an employment relationship with Deliveroo. Deliveroo riders work under non-negotiable ‘supplier agreements’ in which drivers are described as independent contractors, with no obligation on Deliveroo to provide work and no obligation on the rider to be available at any time or to accept jobs. However, a key point of significance is that the agreements also allow riders to provide a substitute, who may be employed or engaged directly by the rider, without the need for approval by Deliveroo.

This is unlikely to be the end of litigation on the subject of worker status.

You can read more about these decisions here.

Sleep at work 

In a similar vein, in the case of Tomlinson-Blake v Royal Mencap Society, the Supreme Court held that being asleep meant the worker was not “available for work” and therefore did not qualify for the payment of national minimum wage for their overnight “sleep in” shifts where sleeping facilities were provided. However, the court held they were entitled to full payment if they had to be awake for work.

Discrimination in the workplace

It’s never a surprise to see discrimination in the employment law headlines and last year was no exception with two particular decisions. 

Indirect discrimination

The issue of Indirect discrimination was addressed in the case of Wisbey v City of London Police, where the claimant was a police officer who had a form of colour blindness. After a sight test, he was temporarily restricted from firearms and advanced driving duties although, after more tests, he was reinstated.

He brought a claim for indirect sex discrimination against his employer because a significantly higher proportion of men suffer colour vision impairments than women. The employment tribunal found that there had been indirect discrimination but only in relation to the restriction on advanced driving. The tribunal did not award anything for injury to feelings as it said the discrimination was unintentional.  

The Court of Appeal upheld the decision not to award compensation and noted that the claim for injury to feelings related to the firearms ban but it was the driving aspect that had been found to be discriminatory.

This case was a reminder that an employee will need to provide evidence of injury to feelings in order to succeed in a claim for compensation.

Disability Discrimination

In the recent case of All Answers v W and another, the Court of Appeal held that the issue of whether an impairment has lasted or is likely to last at least 12 months must be decided by reference to the facts that existed at the date of the discriminatory act. Assessing whether an impairment is long-term can be complex and this case is helpful in clarifying the information that should be taken into account when determining this.

You can read more about these decisions here.

Gender-critical beliefs

In another area that is set to continue to be important, last year in the case of Maya Forstater v CGD Europe, the EAT held that a belief that biological sex cannot be changed is a protected philosophical belief under the Equality Act 2010, despite the fact that this belief conflicts with the protected characteristic of “gender reassignment”.   

New Laws on Flexible Working

Flexible working has been a hot topic since the start of the pandemic for obvious reasons. In September last year, a consultation was opened by the government in respect of plans to introduce new laws which will give employees the right to request to work from home from the first day that they start work. The consultation document also announced new potential entitlements for unpaid carers. The consultation closed on the 1st December 2021 and the government response is awaited.  

Employing workers from overseas Sponsorship Licences

Since January 2021, all EU and non-EU nationals coming to the UK to work have had to be sponsored by an employer with a sponsorship licence. That means if you want to employ workers from outside the UK, you will nearly always need to apply for a sponsor licence from the Home Office’s UK Visas & Immigration (UKVI) division.

This is a complex area and you can find more help with how to apply here.

Menopause and the Workplace

The menopause certainly became a hot topic in 2021 and in the case of Davies v Scottish Courts and Tribunal Service, the tribunal found the claimant’s extreme menopause symptoms amounted to a disability.

In July 2021, the House of Commons Women and Equalities Committee opened an inquiry titled, “An invisible cohort: Why are workplaces failing women going through menopause?”. The inquiry is now closed to submissions and we await the outcome.

We shared some important information at the end of last year in respect of the menopause which you can find here and we will be posting about this again in the next few weeks.

Covid and the workplace

It’s no surprise that in 2021 the courts and tribunals started to hear cases arising from the Covid pandemic. The extent to which the guidance provided by these decisions will continue to be relevant of course remains to be seen but whilst the pandemic still rumbles on, the following cases will be important to keep in mind.

In the case of Kubilius v Kent Foods, it was held that an employee has a duty to obey all reasonable and lawful instructions issued by their employer, including those concerning Covid-19 safety measures. This case concerned wearing a mask at work. Whilst in the case of Gibson v Lothian Leisure an employee with a vulnerable father was found to have been automatically unfairly dismissed after he raised health and safety concerns about the lack of PPE and a failure to comply with government guidance.

Finally, Montanaro v Lansafe Ltd, dismissal of the claimant who stayed in Italy after annual leave because he was uncertain if he could travel under Italian lockdown, was found to have been unlawfully dismissed. 

As always, if you wish to discuss any of the issues covered in this post, please get in touch and we’ll keep you informed in respect of any developments.

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