A round-up of the most significant employment law cases to be published over the last month including how to establish worker status, the use of PILON clauses, privacy regarding email at work and what test to use to determine detriment in victimisation cases.
Worker Status: “Irreducible minimum of obligation” is not a prerequisite for establishing worker status
Contract: No dismissal where employer invokes contractual PILON after employee’s resignation to bring forward termination date
Privacy: Appeal dismissed against judgment that personal emails sent from business account were not private or confidential
Victimisation: What test should be applied when determining if a Claimant has suffered a detriment under a victimisation claim?
Worker Status: “Irreducible minimum of obligation” is not a prerequisite for establishing worker status
In, Nursing and Midwifery Council v Somerville [2022] EWCA Civ 229, the Court of Appeal has confirmed that an “irreducible minimum of obligation” is not needed to establish worker status under the Working Time Regulations 1998 (WTR 1998). Mr Somerville, a panel member chair of the Nursing and Midwifery Council’s Fitness to Practice Committee, worked under an overarching contract. This contract did not oblige the Nursing and Midwifery Council (the Council) to offer hearing dates to him, and he was under no obligation to accept any dates offered to him. Applying Uber BV and others v Aslam and others [2021] UKSC 5, the court found that the fact that the overarching contract did not impose an obligation to work did not preclude a finding that he was a worker when he was actually working.
In addition, the fact that Mr Somerville could withdraw from an individual agreement to attend a hearing even after he had accepted a particular date did not change the Court of Appeal’s view. He entered into an individual contract for an individual assignment which existed until terminated and had to be read alongside the overarching contract. If an individual contract was not terminated and he chaired a hearing, he would, in the language of section 2(1)(b) of the WTR 1998, have worked under a contract personally to perform services. There is no indication that there must be a distinct, super-added obligation to provide services independent from the provision of the services on a particular occasion. When deciding whether a specific agreement to provide services on a particular occasion amounted to a worker’s contract, the fact that the parties were not obliged to offer, or accept, any future work was irrelevant.
The Court of Appeal’s decision confirms what was previously understood to be the position, that an “irreducible minimum of obligation” is not an essential requirement for worker status. The analysis of the Uber Supreme Court decision also adds to the often-fraught discussion of what it means to be a worker. That said, the Court of Appeal’s decision is clear: where an individual is, in fact, working or providing services personally under a contract, a finding of worker status can be made even where no overarching contract imposing an obligation to provide and accept work exists.
Contract: No dismissal where employer invokes contractual PILON after employee’s resignation to bring forward termination date
In Fentem v Outform EMEA Ltd [2022] EAT 36, the EAT has held that is bound by the decision in Marshall (Cambridge) v Hamblin [1994] ICR 362. Accordingly, where an employer invokes a clause in an employee’s contract enabling it, following the employee’s resignation, to terminate their employment immediately by making a prescribed payment calculated by reference to the unexpired period of the employee’s notice, there is no dismissal under section 95(1)(a) of the Employment Rights Act 1996.
Despite reaching this conclusion, the EAT expressed misgivings about the decision in Marshall. It was strongly inclined to view Marshall as wrong and could see nothing in the reasoning that supported the conclusion that there was no dismissal in that case.
However, the EAT could only depart from its own decisions in the narrow circumstances set out in British Gas Trading v Lock [2016] ICR 503. These include where the earlier decision was not merely wrong, but manifestly wrong. It was the outcome or proposition of law for which the decision stood that had to be the focus of consideration. If there is an argument that can reasonably be advanced in defence of the outcome that is itself not manifestly wrong, then the legal outcome could not be said to be manifestly wrong.
In this case, the employer relied on authorities concerning a scenario in which an employee’s termination date was brought forward with their agreement following their dismissal. The employee argued that these were not relevant because he had not agreed to his termination date being brought forward. The EAT accepted that these authorities may not inform the approach to the issue, but it could not say that they obviously would not. Further, it might be arguable that a contractual provision could have the legal effect that, following a resignation, the employer could cause the employment to end sooner than the date given by the employee, even without the employee’s agreement, by making a contractually-prescribed payment by reference to the unexpired notice period, in a way that only alters how and when the resignation takes effect.
Since these points could not be said to be obviously unarguable, the decision in Marshall could not be said to be manifestly wrong. Therefore, the EAT could not depart from it.
Privacy: Appeal dismissed against judgment that personal emails sent from business account were not private or confidential
In Brake and another v Guy and others [2022] EWCA Civ 235, the Court of Appeal has dismissed an appeal in unsuccessful proceedings for misuse of private information and breach of confidence which arose in relation to a former employee’s personal emails that were sent from a business email account. The email account was used to receive enquiries about the employer’s services.
Baker LJ’s leading judgment emphasised that the success of privacy and confidentiality claims turned on the specific facts, and considered that it had been open to the judge at first instance, HHJ Paul Matthews, to find as he did. In particular, he said that it was telling that the former employee (who was the claimant in the proceedings) had shared access to the email account with two colleagues, and that her employer had set up personal accounts in the names of each of the employees at the same time as it created the business account. Baker LJ also agreed with the first instance judge that, had there been a reasonable expectation of privacy or circumstances of confidence, disclosure of the emails by the defendants for the purpose of obtaining professional advice would not have breached privacy or confidence and, even if it had, damages would have been limited.
The only point of disagreement with the earlier judgments related to HHJ Paul Matthews’ decision to split out the issue of the “iniquity defence” (that is, the public interest defence, which the judge had held was available in relation to privacy and breach of confidence claims where the defendant accessed the information unlawfully), leaving it until after his trial of other matters. Baker LJ considered that any fraudulent conduct on the part of the claimant was likely to be relevant to whether there was a reasonable expectation of privacy or duty of confidence and, if there was, whether they had been breached. He concluded, however, that this had not been determinative in the present case.
This judgment provides some guidance on ensuring that an employer will have full access to emails sent via a business account. In particular, it may be advisable to create individual email accounts for each employee who operates from the central business email address and to require them to limit private emails to the account set up in their name.
Victimisation: What test should be applied when determining if a Claimant has suffered a detriment under a victimisation claim?
In Warburton v The Chief Constable of Northamptonshire Police [2022] EAT 42, the EAT was had to consider whether the tribunal had asked itself the correct question when deciding whether or not the claimant had suffered a detriment, and if not, which was the correct test to use.
The claimant had applied to be a police officer with the Northamptonshire Police force. In his application email he referred to what was accepted as being a protected act, namely, proceedings he was bringing in another employment tribunal against another police force (Hertfordshire Constabulary) alleging unlawful discrimination on the grounds of disability. He had made an application to join that force, which resulted in an offer which was subsequently withdrawn. The claimant was later told by the respondent that his application form had not been accepted.
The claimant pursued a claim for victimisation. The respondent’s argument for why the claimant’s application had not been successful was not due to the protected act but owing to the failure of another force (Avon and Somerset Constabulary) to provide information to allow the vetting procedure to proceed. The tribunal found in favour of the respondent and the claimant appealed.
The appeal was predicated on the basis that the employment tribunal had erred in law by misstating the test for victimisation, and the four other claims flowed from this.
The EAT held that the tribunal had not asked itself the correct question when deciding that the claimant had suffered no detriment. The key test is from the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary[2003] ICR 337: “Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?” The EATconcluded that detriment is to be interpreted widely in this context and it is what a reasonable worker might think, not just the view of a tribunal, to satisfy the test. Therefore, it was not particularly difficult to establish a detriment for these purposes and but the EAT also found that the tribunal had also not applied the correct legal test to the causation or “reason why” question. The appeal was allowed and the victimisation claim was remitted for rehearing.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
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Employment News – March 2022
Employment,
22nd March 2022
Employment Law
This month the news raises some really interesting issues: the CIPD is providing advice on supporting employees with links to Ukraine, the EHRC has advised how to deal with employees suffering with long-covid and the Minister for Women has launched two schemes to promote women. Some eye opening reports have also been published this month: workforce reporting for FTSE 100 firms is inadequate and IPSOS finds two thirds of UK adults want a “right to disconnect” from work.
Support for employees: CIPD urges compassionate treatment of employees with links to Ukraine
Covid-19: EHRC suggests employers should treat long COVID as a disability
Reporting: Inadequate quality of workforce reporting among FTSE 100 firms
Women: Government launches pay transparency and STEM returners pilot schemes
Work-Life Balance: New research shows two third of adults in UK favour a “right to disconnect” law
Support for employees: CIPD urges compassionate treatment of employees with links to Ukraine
On 4 March 2022, Personnel Today reported the CIPD has asked employers to treat all employees affected by the conflict in Ukraine with compassion, especially those who are Ukrainian or have links to the country. Indeed, many Russians living in this country will also find themselves in an unnerving time, with many having close family and friend links with Ukraine, or receiving unwanted attention simply as a result of where they were born, so should also be handled sensitively. More flexible work hours to help manage stress and anxiety, wellbeing checks, and bereavement leave are the types of support employees may require. This is most likely to be necessary for employees with relatives or close contacts in the country. The CIPD also suggests that managers should check in on colleagues who may be affected and could signpost them to wellbeing and mental health support. More resources from CIPD, including a video exploring how people professionals can best support their people through the crisis, can be found here.
Covid-19: EHRC suggests employers should treat long COVID as a disability
According to Personnel Today, (1 March 2022), the head of employment policy at the Equality and Human Rights Commission (EHRC) has suggested that organisations should treat their employees who have long COVID-19 symptoms as if they have a disability for the purposes of the Equality Act 2010. The advice is to avoid employers falling foul of equality law, in the absence of clear legislative protections for people with long COVID. Lingering symptoms, which can include cognitive difficulties and fatigue, may affect employees’ performance at work. However, because symptoms vary and can fluctuate, it is not yet certain whether all cases of long COVID will meet the legal definition of disability. The TUC and other bodies have asked the government to classify the condition as a disability. The EHRC indicates that the short amount of time that long COVID has been a condition, and the fluctuating nature of symptoms, may be a barrier to the government doing so.
Reporting: Inadequate quality of workforce reporting among FTSE 100 firms
The CIPD’s most recent analysis of annual reports shows “inadequate” quality of workforce reporting by FTSE 100 firms: CIPD: Report, How do companies report on their “most important asset”? Only one-third of firms have reported recruitment data and just nine companies reported their ethnicity pay gap. Reporting on the cost of hiring contingent workers was identified as a key gap by the study as only 6% of FTSE 100 firms reported such data. The age of employees, the proportion who identify as LGBT+ and the number of disabled employees was reported by 10%, 5% and 4% of firms respectively. Almost all companies reported investment in skills or training, but a lack of concrete data was identified as fewer firms disclosed the hours (35%) and costs (16%) of training. To address low quality of reporting, the CIPD recommends that the Financial Reporting Council should establish a framework for workforce reporting in collaboration with stakeholders. The framework should set out a baseline of minimum standards.
Despite the inadequacy of reporting in some areas, the results of a snapshot survey of governance professionals have shown that nearly 50% of UK companies and not-for-profits have reported plans to reach gender parity at board level in the next three years. This survey was conducted by the Chartered Governance Institute for UK & Ireland in association with The Core Partnership.
Women: Government launches pay transparency and STEM returners pilot schemes
On 8 March 2022, the government announced that the Minister for Women, Baroness Stedman-Scott, has launched two new pilot schemes to mark International Women’s Day. The first seeks to improve pay transparency by requiring participating employers to include information about salary details in their job adverts and refrain from asking candidates to disclose salary history during the recruitment process. Further details about how the pilot scheme will work and how many employers will be involved are awaited.
The second pilot scheme aims to help women return to careers in science, technology, engineering and maths (STEM). Organisations participating in the scheme will be helped to recruit and retrain candidates who may be overlooked because of a CV gap. Again, further details are awaited.
The launch comes at a time when new research published by the Chartered Management Institute (CMI) has shown a gap between “the rhetoric” employers promote about supporting gender equality and “the reality”. The CMI research found that less than two thirds of employers (61%) try to ensure that women and men receive an equal voice in meetings and decision-making, and only 41% of management positions are held by women.
Work-Life Balance: New research shows two third of adults in UK favour a “right to disconnect” law
On 11 March 2022, IPSOS published the results of new research which shows that a majority of UK adults aged 16-75 are in favour of introducing a law giving employees the right to ignore work-related communications, such as emails, texts and instant messages, outside of their official working/on-call hours. Sixty per cent would support the Government introducing such a law, including 34% who would strongly support it. Only around 1 in 10 (11%) would be against it.
There is little difference in the views of workers and non-workers, nor between Conservative and Labour 2019 voters, although graduates are more in favour than non-graduates, and 16-24 year olds are also less strongly in support.
Currently, two-thirds of UK workers say they participate in work-related communications outside of their working hours (67%). Four in 10 (43%) check work-related communications while a similar proportion (40%) reply to them. A third (34%) proactively send work-related communications. Only 3 in 10 (30%) do not communicate with work outside of their official working hours. Website, People
Management, questioned Ben Willmott, head of public policy at the CIPD, who warned that a legal right to disconnect would have a limited impact, and alone would not address why people feel they cannot switch off.
He cited issues such as heavy workloads, a lack of support and unreasonable management expectations as causes for the inability to disconnect. “Simply giving [staff] the legal right to choose not to respond to calls, emails or other digital communication outside of working hours won’t resolve these issues or necessarily improve wellbeing,” he said.
“Employers should make it clear that employees don’t have to respond to digital communications outside working hours unless it suits them,” Willmott added, highlighting that managers needed to provide staff with achievable objectives and maximise flexible working opportunities to help staff balance competing work and home pressures.
Those earning upwards of £55,000 a year are more likely to be checking, replying to and sending work-related communications outside of working hours, 82% say they do this compared with 65% of workers earning up to £54,999.
More than half of UK adults say it is not acceptable for employers to expect their employees to participate in work-related communications outside of official working/on-call hours. Fifty-five per cent say it is unacceptable for employers to expect their employees to check for work-related communications, while 58% say the same for responding to them and 57% for sending them. Younger people tend to be most likely to believe such expectations are acceptable – for example, 56% of 16-34 year olds believe it is acceptable for employers to expect their employees to check work-related communications out of hours, compared with 34% of 35-75 year olds.
Opinion is split as to whether priority should be given to the right to disconnect or flexible working. A third (32%) say it is more important to give employees the right to disconnect than it is to give them more flexibility around the time that they work. However, a quarter (24%) believe it’s more important to give employees a degree of choice over the times they work. But more, almost 4 in 10 (37%), say both are equally important.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
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Employment Law General Update – February 2022
Employment,
24th February 2022
Employment Law
This month the news highlights the following areas in need of support and reform: Levelling Up the UK, ethnicity pay reporting, sick pay disparity, unused apprenticeship levy funds and new flexi-job apprenticeship plus a spotlight on endometriosis affecting working women.
The White Paper ‘Levelling Up the United Kingdom’ was published on 2 February 2022 and describes the steps the government will take to achieve its objective of “Levelling Up” the UK. This will involve taking steps to make the UK more prosperous and united by tackling the regional and local inequalities that unfairly hold back communities and to encourage private sector investment across the UK.
The new policy regime in the White Paper comprises four key objectives and 12 UK-wide missions in a change programme to be delivered by 2030. In outline, this includes:
Increasing productivity, pay, jobs and living standards by growing the private sector. This is allied to maximising investment from the private sector and public investment in research and development. Other related goals include renters having a secure path to ownership, a reduction in the number of non-decent homes, improving transport connections and maximising the uptake of high-quality skills training.
The highest level of devolution for all parts of England that request it. This is linked to people taking pride in their areas, an increase in well-being and life expectancy and a reduction in crime.
The number of primary school children achieving the expected standard in reading, writing and maths significantly increasing.
The White Paper also contains a detailed policy programme which addresses the practical delivery of the objectives and missions. This is followed by a section setting out the next steps for implementation.
Although the White Paper is intended to set out the practical steps intended to achieve the goal of Levelling Up, it is predominately written at a high and aspirational level and contains more detail regarding context and the status quo than it does hard detail about what is actually going to be done (including how many of the proposals are likely to be funded). However, it is certainly arguable that the mission (to make the UK more prosperous and united by tackling the regional and local inequalities that unfairly hold back people and communities and to encourage private sector investment across the UK) is both positive and desirable.
Pay Disparity: Women and Equalities Committee recommends mandatory ethnicity pay gap reporting
The House of Common’s Women and Equalities Committee examined the case for mandatory ethnicity pay gap reporting in a one-off evidence session on 12 January 2022. In the report of the session, the committee recommends that the government should make ethnicity pay gap reporting mandatory by April 2023. While the report acknowledges the challenges of collecting ethnicity data, such as concerns over the data protection implications of small sample sizes, it states that businesses are ready for the government to act. The government consultation, which stated that it was “time to move on ethnicity pay reporting”, closed in January 2019 but a response has not yet been published.
The Committee’s chair, the Rt Hon Caroline Nokes MP, said,
“The Government’s failure to move forwards on ethnicity pay gap reporting is perplexing. We already have the systems and structures in place to start reporting on the ethnicity pay gap, as well as a clear impetus- tackling inequality benefits not only marginalised groups, but the whole economy. The Government has no excuse. All that is lacking, it seems, is the will and attention of the current administration.
“Last week, the Government made bold promises to ‘Level Up’ geographically. Time and again it proves itself to be blind to the importance of levelling up within our communities and address long-standing disparities along the lines of protected characteristics. By taking this small step, the Government would demonstrate its commitment to working with business to reduce inequality.”
Sick Pay: Think tank report reveals significant age and race disparity in access to sick pay
On 4 February 2022, the Institute for Public Policy Research (IPPR) and University College London (UCL) published a report entitled ‘A Healthy Labour Market: Creating a post-pandemic world of healthier work’ highlighting the disparity in access to sick pay among different groups of workers in the UK. The report revealed that:
Older employees above age 65 are five times more likely to lack access to sick pay compared to younger workers aged 25 to 44.
South Asian workers are around 40% more likely to lack access to sick pay than white British workers. The report suggested that this could in part be caused by institutional racism, as income, occupation and employment status differences do not explain the disparity.
The report also calls for statutory sick pay (SSP) to be reformed, including the abolition of the lower earnings limit threshold, increasing the rate of SSP to 80% of earnings (up to a maximum of £2,500 per month), providing for access to SSP from day one of illness and improving enforcement against employers who do not comply with their obligations.
Apprenticeships: Nearly half of firms returned unspent apprenticeship levy funds
A new poll of more than 500 HR professionals (conducted by Survation on behalf of London First) has found that 48% of firms have returned unspent apprenticeship levy funding and only 17% of employers think the levy system is working well. This has prompted renewed calls for the system to be reformed and made more flexible to allow employers to use it to reskill and upskill employees. The poll also gathered employers’ perspectives on how the levy could be improved.
Increasing the spending deadline from two to three years, using some of the levy to contribute towards the wage cost of new apprentices and incentivising employers to convert Kickstart placements into apprenticeships were each agreed to be potential improvements by 35% of employers. A quarter of employers thought the levy would be improved if larger employers could transfer more funds to SMEs and 41% said they would be more likely to transfer more funds if they were allowed to.
Apprenticeships: New Regulations for “flexi-job” alternative apprenticeships
On 26 January 2022, the Apprenticeships (Miscellaneous Provisions) (Amendment) (England) Regulations 2022 (SI 2022/86) were made, enabling a pilot scheme of “flexi-job” apprenticeships to commence in England. The Regulations come into force on 6 April 2022.
A flexi-job apprenticeship is a new type of alternative English apprenticeship. The Regulations will allow employers taking on a flexi-job apprentice to only give a three-month commitment, instead of the usual 12-month minimum commitment under an approved English apprenticeship agreement. This will allow flexi-job apprentices to complete discrete blocks of employment with training, with different employers, throughout the course of their apprenticeship. A key barrier to taking on apprentices in certain sectors is the need for varied and flexible employment patterns, particularly in the creative and construction sectors, where employment may be short-term or project-based.
After the minimum three-month arrangement with one employer, the apprentice can either begin a new arrangement with the same employer or move to continue their apprenticeship with a new employer. Flexi-job apprenticeships may only be carried out for a limited number of approved apprenticeship standards, in the creative and construction sectors.
The flexi-job apprenticeship pilot scheme will begin in April 2022 and is intended to last for 18 to 24 months. It will be reviewed after nine, 12 and 18 months. The government will publish guidance ahead of the pilot start date. If the pilot is successful, the flexi-job scheme may be made available to other apprenticeship standards.
Women’s Health: Workplace awareness and support needed for endometriosis
On 9 February 2022, workplace support for people with endometriosis was debated in the House of Commons. Alec Shelbrooke MP, gave a particularly good description of the huge impact and variety of ways it can affect sufferers in his speech to the Commons. His main concerns being that employers need to understand the condition better to enable them to support their employees appropriately and reduce discrimination for women, and girls, suffering from this. Alex Davies-Jones MP, went on to say,
“Some 1.5 million women are dealing with symptoms ranging from chronic pain and fatigue to infertility, and the research, awareness and support for those suffering from what—as we have heard —can be an extremely debilitating condition is still lagging far behind, and is lacklustre at best.”
Paul Scully MP, Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy, confirmed that the government’s women’s health strategy, to be published later this year, will focus on workplace health as one of its six priority areas. It will include a chapter on “Menstrual health and gynaecological conditions” which will explore ways to improve awareness, care and treatment of those suffering from endometriosis and other similar conditions. Given that a taskforce was set up this month to tackle Menopause we are hopeful that endometriosis will be properly tackled so that women suffering with endometriosis can fulfil their potential in the workplace in a way that suits them best.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
The UK government is set to introduce significant changes to the unfair dismissal regime...
News & Views
Employment Law Case Review – February 2022
Employment,
22nd February 2022
Employment Law
A round-up of the most significant employment law cases to be published over the last month including a Covid-19 dismissal, worker status, business owner liability, fire and rehire injunction and misclassified worker’s right to holiday pay.
COVID-19: Dismissal for refusing to be vaccinated was fair
In Allette v Scarsdale Grange Nursing Home Ltd ET/1803699/2021 an employment tribunal has held that the summary dismissal of a care assistant employed in a nursing home for unreasonably refusing to be vaccinated against COVID-19 was fair.
In the context of the state of the pandemic in January 2021, a small nursing home’s decision to make vaccination mandatory for staff who were providing close personal care to vulnerable residents was a reasonable management instruction. The care assistant’s refusal to be vaccinated due to concerns about the safety of the vaccine was not reasonable in circumstances where there had been a very recent outbreak and deaths of residents at the nursing home, the pandemic was growing nationally and there was widespread publicity and advice about vaccine safety.
An employer’s instruction that an employee must be vaccinated, unless they have a reasonable excuse, interferes with the employee’s physical integrity in a manner capable of engaging Article 8 of the European Convention on Human Rights. The employer’s aims, of protecting the health and safety of the residents, staff and visitors to the care home during the pandemic and protecting itself against the increased likelihood of claims due to the withdrawal of insurance cover if staff members were unvaccinated, were legitimate.
An unvaccinated staff member would pose a significant and unjustified interference with the Article 8 rights of the residents and the other staff and visitors to the home, such that the requirement for the care assistant to be vaccinated and the dismissal for unreasonably refusing vaccination was justified. Less draconian means could not have been used.
It was within the range of reasonable responses for the employer to conclude that the refusal was due to scepticism of the vaccine and not due to religious beliefs, as had been raised at the disciplinary hearing. In the context of the recent outbreak and deaths at the nursing home, and the urgency with which measures to protect the vulnerable residents needed to be put in place, refusing to comply with the management instruction to be vaccinated amounted to gross misconduct and the dismissal was neither unfair nor wrongful.
Worker Status: London cabbie also working through Mytaxi app was not a worker of the app-operator
In Johnson v Transopco UK Ltd [2022] EAT 6, the EAT has upheld an employment tribunal’s decision that a taxi driver working through an app was not a worker, under section 230(3)(b) of the Employment Rights Act 1996.
Mr Johnson worked as a self-employed London black-cab driver. He also registered with Mytaxi, an app operated by Transopco UK Ltd (TUK). During one year, he completed 282 trips via the app at a total value of £4,560.48. In the same period, he earned £30,472.45 as a self-employed driver. Employment tribunal complaints brought against TUK failed because the tribunal found Mr Johnson was not TUK’s worker. The tribunal observed that Mr Johnson could provide his services as infrequently or as often as he wanted, could dictate the timing of those services and was not subject to control by TUK. It also took into account the small proportion of work done through the app.
The EAT held that the tribunal was entitled to analyse the split of time between income earned as a self-employed cab driver and income earned via the Mytaxi app, when considering whether Mr Johnson’s work for TUK formed part of his own business, and as pointing towards its conclusion that this was not a dependent work relationship. It was not the case that the tribunal’s analysis amounted to a “numbers game” or introduced a minimum hours threshold for worker status.
The tribunal was entitled to take the view that the essence of Mr Johnson’s business was picking up passengers and driving them to where they wanted to go, however they were obtained. This was so having regard also to the tribunal’s findings on the simultaneous nature of the activities, subordination, dependency, control and integration.
The fact that some incentives and risk-sharing were offered by TUK to reflect the risks associated with using its platform (such as the risk of fraud or cancelled jobs), in order to enhance its financial attractiveness as an option, this did not point inevitably to worker status and the tribunal did not err in holding otherwise. The tribunal’s conclusions were soundly reasoned. It followed that although the driver had an obligation of personal service, the tribunal had correctly concluded that TUK was a client or customer of Mr Johnson’s taxi-driving business.
Liability: Dental practice owner liable for alleged negligence of self-employed dentists
In Hughes v Rattan [2022] EWCA Civ 107, the Court of Appeal has held, as a preliminary issue, that a dental practice owner owed a patient a non-delegable duty of care in respect of the treatment she received from self-employed dentists who worked at the practice.
Non-delegable duties put primary liability on a person to avoid harm, to take reasonable care to avoid harm or to see that care is taken by others, rather than imposing secondary liability for the wrongdoing of another person, as with vicarious liability. While the two are conceptually distinct from each other, they may achieve a similar outcome and liability can arise as a result of negligence of an independent contractor, but with a non-delegable duty there is no defence to show that performance was delegated to a person reasonably believed to be competent.
Ms Hughes was, in law, a patient of the practice and the dental practice owner, Dr Rattan, was named as the treatment provider in the treatment plans she had signed. Patients were described as “patients of the practice” in the agreements between the practice owner and the self-employed dentists, and the dentists were subject to stringent restrictive covenants prohibiting them from treating those patients outside the dental practice.
The factors set out in the leading case, Woodland v Essex County Council [2013] UKSC 66, were satisfied:
1. A “patient” included anyone receiving treatment from a dentist; they did not need to be especially vulnerable to qualify.
2. An antecedent relationship between the patient and the dental practice owner was established at the latest on each occasion when the patient signed the relevant treatment plan, which placed her in the practice owner’s actual care.
3. The patient had no control over whether the dental practice owner chose to perform his obligations personally or through employees or third parties.
Although the court was not required to decide whether the dental practice owner was also vicariously liable for the acts and omissions of the self-employed dentists, it expressed a view that he would not be vicariously liable because the test in Barclays Bank Plc v Various Claimants [2020] UKSC 13 was not met.
Contracts: High Court grants in junction to stop Tesco firing and rehiring employees
In USDAW and others v Tesco Stores Ltd [2022] EWHC 201 (QB), the High Court has granted an injunction to restrain Tesco from terminating and re-engaging a group of warehouse operatives in order to remove a contractual entitlement to enhanced pay, which had been incorporated as a result of collective bargaining. The entitlement had been negotiated as a retention incentive at a time when Tesco was reorganising its distribution centres, which involved some major relocations. A collective agreement reached in 2010 stated that the enhanced pay would be a “permanent feature” of each affected employee’s contractual entitlement, and could only be changed through mutual consent, or on promotion to a new role.
In these unusual circumstances, the court granted declaratory relief, setting out the precise contractual term relating to enhanced pay that was incorporated into the contracts of employment, and held that it was appropriate to imply a term preventing Tesco from exercising its right to terminate on notice for the purpose of removing or diminishing the right of each employee to receive the enhanced pay. The court noted that Tesco’s intention to terminate and re-engage on inferior terms would operate to remove a significant proportion of the remuneration currently payable to the affected employees, causing significant injury to their legal rights. Since damages would not have provided an adequate remedy, the court granted an injunction to restrain dismissal in breach of the implied term.
Holiday Pay: Misclassified worker’s right to holiday pay for whole period of employment crystallised on termination
In Smith v Pimlico Plumbers Ltd [2022] EWCA Civ 70, the Court of Appeal has held that a worker who took unpaid leave, having been wrongly told that he was an independent contractor with no right to paid leave, could bring a claim in respect of his entire accrued holiday entitlement under Article 7(1) of the Working Time Directive (2003/88/EC), whether taken or untaken, going back to the start of his contract.
Following the principle in King v Sash Window Workshop Ltd (Case C-214/16), annual leave under the Directive is a “single composite right” to paid leave, rather than a right to leave and a separate right to payment for that leave. As the employer had refused to grant that right, the worker’s full leave entitlement under the Directive accumulated from year to year without limitation, and his right to claim a payment in lieu of that entitlement crystallised on termination of his contract. He did not need to rely on establishing a “series of deductions” under section 23(3) of the ERA 1996, and the time limit for bringing the claim ran from the date of termination, rather than the date of the last non-payment of holiday pay. It was also not necessary for the worker to specify whether the leave in question was untaken or taken but unpaid.
Although the court did not strictly need to deal with this point, it also expressed a “strong provisional view” that the EAT’s decision in Bear Scotland Ltd v Fulton [2015] ICR 221, that a series of deductions is broken by a gap of three months or more between deductions, was wrong.
A few days later the Court of Appeal added a postscript and an appendix.
The earlier judgment of the EAT had included suggested wording to be read into the Working Time Regulations 1998 (SI 1998/1833) (WTR 1998) in order to reflect holiday pay case law under the Working Time Directive (2003/88/EC), including King v Sash Window Workshop and another (C-214/16) EU:C:2017:914. In light of the Court of Appeal’s decision that the EAT had wrongly interpreted King, it invited further submissions from the parties as to the appropriate course to adopt.
Although the court acknowledged that it had “no power to draft regulations” it suggested a form of words that would best reflect EU law, as an appendix to its earlier judgment. It includes the following additional wording to be read into the WTR 1998 at regulation 13(16):
“Where in any leave year an employer (i) fails to recognise a worker’s right to paid annual leave and (ii) cannot show that it provides a facility for the taking of such leave, the worker shall be entitled to carry forward any leave which is taken but unpaid, and/or which is not taken, into subsequent leave years.”
The case has important implications for the way time limits work in holiday pay claims, particularly for workers who have been misclassified as self-employed and therefore denied any paid holiday rights. Such workers may now be able to claim holiday pay back to the start of their employment, without having to rely on the “series of deductions” rules which would otherwise limit the value of historical claims.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
The UK government is set to introduce significant changes to the unfair dismissal regime...
News & Views
Employment Law Newsletter – January 2022
Employment,
26th January 2022
Employment Law
Here we look at some of the big issues to occur over the last 12 months and what to expect over the coming year.
Hot topics of 2021:
COVID-19
The COVID-19 pandemic continues to affect the employment landscape. While many had expected, or hoped, the changes brought by the pandemic would have plateaued in the latter half of 2021, many employees are only just returning to the workplace following a change in government guidance in December 2021. In some respects, the pandemic has acted as a catalyst, particularly around flexible and hybrid working, however the delays to key employment law developments expected to take place in 2021 continue into 2022. The pandemic has also formed the context of a number of cases that have come through the employment tribunal system as a result of remote working and the furlough scheme. There have also been a raft of cases involving unfair dismissals, where not knowing how to react to the difficulties brought by the virus sometimes led employers into trouble. Covid-19 also had a significant gendered economic impact on women.
Flexible Working
Of course, Covid-19 sent the world into a tailspin with employers and employees both having to work out how to be productive despite very challenging circumstances, nevertheless it has highlighted the myriad of possibilities that exist. There have been calls by many respected business groups to make flexible working the default position, leading to a government consultation on the subject, and the CIPD calling for it as a day one right.
Equal Pay and the Gender Pay Gap
Big cases for Morrisons and Asda determined that (female) retail workers could be compared with those of (male) logistics workers at national distribution centres. Meanwhile, enforcement of gender pay gap reporting was put back six months in 2021 due to the pandemic, with most eligible companies now complying with their reporting obligations. There have now been calls for reporting of the ethnic pay gap, especially since some big firms have voluntarily started publishing results whichinclude other diversity metrics including class, sexual orientation, ethnicity and disability – way beyond the minimum obligation, and tying in nicely with the government’s ‘levelling-up’ agenda.
The Employment Bill
The bill was promised in the 2019-20 parliamentary session but did not get past a first reading. It was omitted from the Queen’s speech in 2021 with the government response being it will be addressed “when parliamentary time allows”, namely once all the extra pandemic work is out of the way. There do seem to be small workings taking place though – with the single enforcement body for employment rights starting to take shape, but again, this will involve more parliamentary time to flesh out its bones. We continued to see the evolution of cases involving workers in the gig economy. This is an area that is not going away just yet, and we hope to see more clarification in the Bill when it is ready.
The Big Issues for 2022:
Changes to traditional 9-5 office-based working
Whilst some employers are now requiring their workforces to return to pre-pandemic working locations, the pandemic shifted and centralised the issue of flexible working for employers, with many now normalising a return to offices on a hybrid basis. A government consultation on making flexible working the “default position” ran from September to December 2021 and set out five proposals including making flexible working a day one right. Note that the government’s proposals do not introduce an automatic right for employees to work flexibly. Rather, the proposals include a number of measures to broaden the scope of the right, while retaining the basic system involving a conversation between employer and employee about how to balance work requirements and individual needs, potentially changing the statutory business reasons for refusing a flexible working request. As the consultation closed on 1 December 2021, it is unlikely there will be a response from the government until the latter half of 2022.
Some developing themes which employers may continue to face in 2022 include requests from employees to work flexibly abroad and the impact on wellbeing of continued working from home. Following research about the significant amount of hidden overtime while working from home during the pandemic, there have also been calls for the government to introduce a “right to disconnect“. This has recently been brought into effect in some European countries and is being discussed by the Scottish Government in relation to their own employees. It was also mentioned in a briefing paper on hybrid working published by the House of Commons Library in November 2021. Most recently, several big companies have announced their intention to trial four day working weeks, with senior managers under 35 being the most enthusiastic, understanding the impact on employees as well as improving retention and happiness. Perhaps this is the year that the oft quoted “good work-life balance” statement actually rings true.
Vaccinations at work
On 1 April 2022, following a consultation, regulations come into force which will make vaccination against COVID-19 a requirement for health and social care workers in a face-to-face role. It remains to be seen how employers in this sector will deal with unvaccinated employees. Employers in other sectors, who have a duty to maintain a safe workplace, have been encouraging staff to get vaccinated. In the absence of further government requirements on mandatory vaccinations, there would be risks for employers who may want to make vaccination a requirement for new or existing staff. The key legal problem will be the risk of potential unfair dismissal and potential discrimination claims if employees are dismissed for refusing to be vaccinated and the employer is unable to justify dismissal as a proportionate means of achieving a legitimate aim.
New duty to prevent sexual harassment
On 21 July 2021, the government published its response to the 2019 consultation on workplace sexual harassment. The response confirmed a new duty for employers to prevent sexual and third-party harassment, which is likely to include a defence where an employer has taken “all reasonable steps” to prevent the harassment. The government will also consider the proposal to extend the time limits for claims under the Equality Act 2010, but has not yet committed to making any changes. The duty will come into force when Parliamentary time allows.
Review of gender pay gap reporting regulations
By April 2022, the government must review the gender pay gap regulations as they are obliged to do so within five years of the regulations coming into force (regulation 16(3), Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (SI (2017/172)). The purpose of this review will be to assess the extent to which the reporting requirement achieved the objectives of the regulations, whether the objectives remain appropriate and whether any unnecessary burden is placed on employers.
Data protection
Several data protection developments are likely to impact employment practitioners in 2022. The Department for Culture, Media and Sport (DCMS) proposed data protection reforms in its consultation which closed on 19 November 2021. The primary objective of the consultation was to seek views on the proposals to reduce the burden data protection places on businesses. In addition, the government sought views on how Article 22 of the UK GDPR should be interpreted in the context of artificial intelligence (AI) in several areas, including where it related to automated decision-making.
We are also expecting to see updated data protection and employment practices guidance in 2022 from the Information Commissioner’s Office (ICO), following a call for views which ran until 28 October 2021. The new guidance will finally replace the ICO’s employment practices code, supplementary guidance and the quick guide, which have not been updated since the Data Protection Act 2018 came into force. The new guidance will cover topics including recruitment and selection, employment records, monitoring of workers, and information about workers’ health.
Human Rights Act 1998
In 2020, the government announced the launch of an independent review of the Human Rights Act 1998 (HRA 1998), while emphasising its ongoing commitment to the European Convention on Human Rights. The Independent Human Rights Act Review (IHRAR), conducted by an independent panel chaired by Sir Peter Gross, a former Court of Appeal judge, reported back to the government on 29 October 2021. On 14 December 2021, the Ministry of Justice published Human Rights Act Reform: A Modern Bill Of Rights, a consultation on replacing the HRA 1998 with a Bill of Rights. The full report conducted by the IHRAR Panel was also published on 14 December 2021. Whether the right to a jury trial should be recognised in the Bill of Rights and the introduction of a permission stage for human rights claims where claimants must establish they have suffered “significant disadvantage” or that the claim is of “overriding public importance” are key proposals included in the consultation document.
Many of the proposals are regarded as highly controversial. However, it should be recognised that the proposals are simply being consulted on at this stage and therefore whether they ultimately become law remains to be seen following the close of the consultation in March 2022.
Potential developments to look out for:
Single enforcement body for the labour market
In the Good Work Plan, the government announced an intention to bring forward proposals for a new single labour market enforcement agency. On 8 June 2021, BEIS published the government consultation response on the proposal, and confirmed they would consolidate three of the current enforcement bodies into a single agency with increased powers. On 22 November 2021, Margaret Beels OBE was appointed as the new Director of Labour Market Enforcement, and she plans to set the strategic direction for the three existing labour market enforcement bodies that will be amalgamated into the single body; the Employment Agency Standards Inspectorate, the Gangmasters and Labour Abuse Authority and HMRC’s National Minimum Wage Team. The formation of the new agency requires primary legislation and this will be brought forward when Parliamentary time allows. The joined-up approach is intended to help improve enforcement through better co-ordination and pooling intelligence.
Confidentiality and non-disclosure agreements
In July 2019, the government published its proposals to prevent the misuse of confidentiality clauses or non-disclosure agreements (NDAs) in the settlement of workplace harassment or discrimination complaints. The government reiterated that confidentiality clauses can serve a legitimate purpose in both employment contracts and settlement agreements but confirmed its intention to bring forward new legislation “when Parliamentary time allows“.
This measure has been significantly delayed due to the pandemic, but it is anticipated that the legislation (likely to be included in the long-awaited Employment Bill) will curb the use of NDA provisions in employment contracts and settlement agreements alongside a requirement for independent legal advice to be provided to individuals asked to sign an NDA. New enforcement measures will be introduced for NDAs in employment contracts and settlement agreements that do not comply with legal requirements.
In practice Employment lawyers have been ahead of the government on this matter. Since the emergence of the #MeToo movement settlement agreement have routinely included carve outs from the confidentiality provisions to allow ex-employees to report crimes, as well as seeking support from professionals providing medical, therapeutic, counselling and support services. As ever though without statutory backing the inclusion of such carve outs remains dependent on the negotiating powers of the parties involved.
Tipping, gratuities, cover and service charges
Another measure to be included in the Employment Bill, once progressed, is legislation that will see tips retained by hospitality staff in their entirety, except deductions required by tax law. Employers will also be required to distribute tips in a fair and transparent way, according to a published policy. A new Code of Practice on Tipping, to which employers will be required to have regard, is expected to replace the existing voluntary code of practice.
Neonatal leave and pay
On 16 March 2020, the government responded to a consultation on neonatal care leave, proposing the introduction of statutory neonatal leave and pay for up to 12 weeks for parents of babies requiring neonatal care. The government will legislate to implement the new entitlements in the forthcoming Employment Bill.
Extending redundancy protection for women and new parents
On 21 June 2021, the Pregnancy and Maternity (Redundancy Protection) Bill was reintroduced to Parliament for a second time. The second reading of this Private Members’ Bill is scheduled for 18 March 2022. If passed, the Bill will prohibit redundancy during pregnancy and maternity leave and for six months after the end of the pregnancy or maternity leave, except in specified circumstances. This follows the government’s statement on 22 July 2019 that it would expand redundancy protection in response to a BEIS consultation on the matter. The government has since reiterated their intention to extend the period of redundancy protection for pregnant women and new parents would progress as part of the Employment Bill “when Parliamentary time allows“. It remains unclear whether the extended redundancy protection will be implemented through the Private Members’ Bill or the Employment Bill.
Leave for unpaid carers
On 23 September 2021 the government published a response to its consultation on carer’s leave. In the response, the government committed to introducing a right for unpaid carers to take up to a week of unpaid leave per year. There is no scheduled timetable for the introduction of this right; it will progress when Parliamentary time allows.
Ethnicity pay gap reporting
In 2018, the government launched a series of measures to tackle barriers facing ethnic minorities in the workplace, including a consultation on the introduction of mandatory ethnicity pay reporting, based on the model of mandatory gender pay gap reporting. While the government is still considering mandatory ethnic pay reporting, and has failed to respond to its consultation (which closed in January 2019), there has been a wider move towards voluntary collection of diversity data to help companies identify and address existing barriers to access or promotion.
Disability workforce reporting
The government is consulting on disability workforce reporting for large employers with 250 or more employees and is expected to publish their response on 17 June 2022, as part of the National Disability Strategy. Through the consultation the government hope to glean information on current reporting practices, arguments for and against implementing a mandatory approach and how such a mandatory approach may be implemented. The consultation also requests views on alternative approaches to enhance transparency and increase inclusivity for disabled people in the workforce. The consultation will accept submissions until 25 March 2022.
Whistleblowing review and new EU Directive
BEIS announced a review of whistleblowing legislation, following the publication of data showing that one in four COVID-19 whistleblowers who contacted the whistleblowing advice service, Protect, were dismissed between September 2020 and March 2021. The scope of the review has not yet been confirmed and whether it is to fall within the remit of the single body to enforce workers’ rights. Although the UK will not be required to implement the new EU Whistleblowing Directive (2019/1937/EU), the Directive may still influence whistleblowing practice, especially for pan-European organisations operating in multiple locations. Since 17 December 2021, EU member states have been obliged to bring into force the laws necessary to establish internal reporting channels. (For private sector entities with between 50 and 249 workers, the implementation deadline is extended to December 2023.) The Directive also requires measures to be implemented to protect a whistleblower’s identity, acknowledge disclosures within seven days and provide a response within a reasonable period.
Post-termination non-compete clauses
On 4 December 2020, BEIS opened a consultation on measures to reform post-termination non-compete clauses in employment contracts. The consultation, which closed on 26 February 2021, sought views on proposals to require employers to continue paying compensation to employees for the duration of a post-termination non-compete clause, requiring employers to confirm in writing to employees the exact terms of a non-compete clause before their employment commences, introducing a statutory limit on the length of non-compete clauses, or banning the use of post-termination non-compete clauses altogether. The government is yet to report the results of the consultation.
Extending ban on exclusivity clauses
Another consultation was launched by BEIS on 4 December 2020, on measures to extend the ban on exclusivity clauses in employment contracts to cover those earning under the Lower Earnings Limit, currently £120 a week. This would prevent employers from contractually restricting low earning employees from working for other employers. This consultation, which was launched in response to the impact of the COVID-19 pandemic on low earners, closed on 26 February 2021 but there is not currently a timetable for the next developments.
Working conditions in digital labour platforms
The European Commission has adopted a package of measures to improve working conditions in digital labour platform work and support their sustainable growth in the EU. The measures include a Directive, to which the UK will not be bound but which may prove to be influential.
Key cases:
On 20 January, the Court of Appeal heard the appeal in Kocur & Others vAngard Staffing Solutions Ltd, part of the latest instalment in long-running litigation involving agency workers supplied to Royal Mail. In the decision under appeal, the EAT concluded that the right of agency workers under regulation 13 of the Agency Workers Regulations 2010 (SI 2010/93) to be informed by their hirer of any relevant vacant posts with the hirer does not encompass a right to be entitled to apply, and be considered, for vacancies on the same terms as employees recruited directly by the hirer. The EAT also held, among other things, that there was no breach of the principle of equal treatment in agency workers’ shift lengths being 12 minutes longer than those of direct recruits, nor in direct recruits being given first refusal in relation to overtime. The judgment is awaited.
On 9 November 2021, the Supreme Court heard the case of Harpur Trust v Brazel. Judgment is awaited on whether “part-year workers” (those working only part of the year, such as during school terms) should have their annual leave entitlement capped at 12.07% of annualised hours. Once the case reached the Court of Appeal, Unison was given permission to intervene as an issue of general importance was raised regarding the calculation of holiday pay. The case was widely reported at the latter stages and may lead to further claims being brought by part-time employees. Therefore, the Supreme Court judgment is highly anticipated in the hope it will provide further clarity.
In Smith v Pimlico Plumbers Ltd, the EAT found that the ECJ’s ruling in King v Sash Window Workshop Ltd (Case C-214/16) EU:C:2017:914 should not be interpreted as meaning that a worker is entitled to carry over untaken annual leave where the worker was permitted to take leave that was unpaid. Although King established that a worker is entitled to carry over annual leave that is not taken because the employer refuses to pay for it (thereby discouraging the worker from taking leave), the principle does not apply to leave that was actually taken. The worker in this case, a plumbing and heating engineer, was therefore unable to rely on King when asserting his right to be paid for holiday he had taken at the time when his employer did not accept that he was a worker within the meaning of the Working Time Regulations 1998 (SI 1998/1833) (WTR 1998). The main issue is likely to be whether unpaid leave can properly be regarded as leave for the purposes of the WTR 1998. The Court of Appeal heard the case on 7 and 8 December 2021 and judgment is awaited.
In Baker and others v Royal Mail, 120 postmasters and sub-postmasters brought an employment tribunal claim against the Post Office. The claimants run Post Office franchises but seek recognition as workers because of the degree of control the Post Office has over the work they do. The same argument was used successfully in the landmark Uber BV and others vs Aslam and others on which the Supreme Court ruled in February 2021. A judgment is yet to be delivered in this case and could have implications beyond the specific claimants as there are thousands of sub-postmasters across the UK.
The EAT is expected to deliver judgment in Mackereth v Department for Work and Pensions and another which concerns the refusal of a Christian doctor, engaged to carry out health assessments for the Department of Work and Pensions, to address transgender patients by their chosen pronoun. The EAT will consider an employment tribunal’s finding that while the doctor’s Christianity is protected under the Equality Act 2010, his particular beliefs, that God only created males and females, that a person cannot choose their gender and his conscientious objection to transgenderism, are not protected as they amount to views incompatible with human dignity and therefore conflict with the fundamental rights of others. The EAT heard the case on 18 and 19 October 2021 and judgment is awaited.
Lastly, Chell v Tarmac Cement and Lime Ltd was heard by the Court of Appeal in November 2021 and we are awaiting the outcome. The initial decision by the County Court, upheld by the High Court, found that an employer was not negligent or vicariously liable for a contractor’s personal injury suffered in its workplace because of an employee’s practical joke. The County Court held that devising and implementing a health and safety policy which factored in horseplay, or practical jokes, was expecting too much of an employer.
Further Information:
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com.
The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.
