The field of employment law has been busy in 2021 and 2022 is shaping up to be no different. In this article, the first of a series of two, we look back on key case law and legislative developments over the past 12 months. The second article in this series will be published in early January and will look ahead to what 2022 might bring.
2021 was the second year in which the legal and political landscape was dominated by the Covid-19 pandemic. As the Covid vaccination was rolled out, employers had to consider whether a return to the workplace should be dependent on a worker being vaccinated, particularly in the light of vaccines being mandated for care workers and frontline healthcare staff. Most employers have adopted a policy of encouraging rather than mandating and it will be interesting to see how employers continue to approach this issue in 2022.
The Coronavirus Job Retention Scheme finally closed on 30 September after a number of extensions.
Although at the time of writing the Government is recommending a return to working from home “where possible”, hybrid working has been high on the agenda in 2021, with many employers grappling with the demands of ensuring a safe return to the office and adapting to the demands of today’s workforce, many of whom have benefitted from the flexibilities that working from home has brought. To recognise the new demand for hybrid working, ACAS published a guide in July to help employers establish hybrid working arrangements.
In the tribunals, we started to see the first Covid-related claims being heard, many relating to unfair dismissal. To date, the tribunals have been taking a relatively robust approach. In one of the first cases to come before the tribunal, Kubilius v Kent Foods, the Employment Tribunal (ET) found that an employee had been fairly dismissed after he refused to wear a mask at a client’s premises.
Similarly, in Rodgers v Leeds Laser Cutting Ltd, the ET dismissed the employee’s claim for unfair dismissal after he had refused to attend work because he was worried about contracting Covid-19 and passing it on to his vulnerable children. The ET noted that he had not established that he was required to attend work in circumstances of serious and imminent danger. Mr Rodgers had not raised any specific concerns regarding his workplace, but rather his concerns were about the pandemic generally, which did not meet the statutory test.
Finally, the period for which employees can self-certify sickness absence without requiring a fit note has been temporarily increased from 7 days to 28 days. This change, which has been brought in to assist GPs with their workload and the roll out of the Covid booster programme, will apply to sickness absence from 10 December to 26 January. During this period fit notes will only be required for a period of sickness absence exceeding 28 days.
For more advice on the employment law implications of the Covid-19 pandemic, see our previous publication here.
In other developments, the start of 2021 saw the UK’s exit from the EU. While Brexit has not yet made its impact felt on employment law, (as opposed to employment in general where the effects on recruitment and retention are immense), its effect has been felt in the field of immigration.
Brexit led to the end of freedom of movement and the introduction of a new points-based system from 1 January 2021. This new system places EU nationals on the same footing as those from other countries and gives priority to highly skilled workers.
Other legislative developments in 2021 include the extension of changes to the IR35 regime. Changes were introduced for public sector organisations in 2017 and the new requirements have now been extended to medium and large private sector organisations. From 6 April 2021, when a business engages with an individual through a personal services company (PSC), that business, as the client of the PSC, is required to determine if the arrangement falls within IR35 - ie whether the individual would be an employee for tax purposes if they had engaged directly with the business rather than through a PSC.
If the client determines that the arrangement falls within IR35, income tax and national insurance contributions must be deducted at source by the client. The client must also issue a status determination statement (SDS) to the PSC contractor and to any other intermediary with which the client contracts, that confirms its determination and provides the reasons. This has resulted in a number of businesses simply refusing to appoint contractors and forcing them instead to become employees.
In a significant development, May 2021 saw the introduction of the Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021, which extended to workers the rights under section 44 of the Employment Rights Act 1996 not to be subjected to a detriment at work because they reasonably believed that being at work would place them, or someone else, in serious and imminent danger. Previously this protection was only afforded to employees.
This development was brought about by the High Court’s decision in the 2020 case of The Independent Workers' Union of Great Britain v The Secretary of State for Work & Pensions and others, which found that the UK law did not fully implement the relevant EU legislation.
While this is not strictly a Covid-related measure, the issue came to a head at the start of the pandemic, when many workers and employees were concerned that attending work put them at risk of catching Covid-19 as a result of inadequate provision of PPE or failure to implement social distancing, for example. The change in the law, which will only apply to detriments suffered after 31 May 2021, will ensure that workers as well as employees can speak up without fear of having their contracts terminated.
The courts and tribunals have been busy again this year, with a gradual return to in-person hearings, although most cases are still being heard remotely. A few of the major decisions this year are summarised below.
Perhaps the most high-profile case of 2021 was the culmination of the long-running Uber litigation, in which the Supreme Court ruled that Uber drivers were not self-employed but were workers and were therefore entitled to certain rights such as paid annual leave and the minimum wage. Issues relating to worker status continue to hit the headlines, and the Uber decision is likely to lead to more groups seeking to establish worker status in 2022 and beyond.
The tribunals have also been busy considering aspects of discrimination law. In another high- profile case, Forstater v CGD Europe, the Employment Appeal Tribunal (EAT) overturned the ET’s earlier decision and found that Ms Forstater’s beliefs that sex is immutable and not the same as gender identity, which she had widely expressed on social media, were protected beliefs under the Equality Act 2010 and, therefore, the non-renewal of her visiting fellowship was an act of discrimination.
The EAT found that only those beliefs that are an affront to human rights principles, such as those espousing violence and hatred in the gravest of forms, would be found to be not worthy of respect in a democratic society and would not therefore be capable of protection. Beliefs which are offensive, shocking or even disturbing to others can still be protected.
We also saw one of the first cases to consider whether the menopause can amount to a disability. In Rooney v Leicester City Council, the EAT found that the ET had been wrong to hold that a woman suffering from a wide range of menopausal symptoms which affected her day-to-day life was not disabled for the purposes of the Equality Act.
The menopause presents very varied symptoms and effects but, as a concept on its own, it is not a disability. However, a number of its manifestations, individually or collectively, might constitute a disability. Two parliamentary inquiries were launched on the subject of menopause and 2022 could see better protection for affected workers.
Flexible working was also a hot topic for the courts. In Dobson v North Cumbria Integrated Care NHS Foundation Trust, the EAT overturned the ET’s decision and found that the Trust’s dismissal of a mother of three (including two disabled children) for her refusal to work occasional weekends was an act of indirect sex discrimination. The EAT noted that tribunals should take account of the “childcare disparity”, namely that women typically bear the brunt of childcare responsibilities.
Harassment remained a hot topic in 2021 with the #MeToo and #BlackLivesMatter movements continuing to hit the headlines. The ongoing racism scandal engulfing Yorkshire County Cricket Club is just one example that we have seen over the past year.
In the case of Allay (UK) Ltd v Gehlen, the EAT considered the scope of the “reasonable steps” defence to a harassment claim. Where harassment is alleged to have been carried out in the course of the individual's employment, it is a defence for the employer to show that it took all reasonable steps to prevent that harassment. In this case, the claimant had been subjected to racial harassment throughout his 11-month employment. Managers had overheard comments but not reported them.
His employer argued that it had taken all reasonable steps to prevent the harassment. However, the EAT rejected the employer’s position, finding that it should have provided refresher harassment training when it became clear that previous training had become “stale”. EAT emphasised that an employer seeking to rely on the “reasonable steps” defence has to cross a high threshold.
In July, the Government announced plans to reform sexual harassment laws to introduce a positive duty on employers to take all reasonable steps to prevent sexual harassment and reintroduce protection from third party harassment at work. It is likely, therefore, that harassment will remain a hot topic as we move into 2022 and beyond.
For further information please contact Paul Mander or your usual Penningtons Manches Cooper contact.