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Employment Law General Update – June 2022
This month the news focus is on the future of working practices and health. The government is being prompted to get on with setting up the new single labour enforcement body, some companies are trialling a four-day working week and BEIS has issued a call for evidence on the future of the UK labour market after COVID. Meanwhile, COVID-19 is hanging around with long-COVID, the menopause is increasingly being cited in tribunal cases and new regulations allow more healthcare professionals to sign “fit notes”.
- Law Change: EHRC recommends that government set out legislative timetable for proposed single labour market enforcement body
- Health at Work: New regulations will allow more healthcare professionals to sign “fit notes”
- COVID-19: ONS releases latest statistics on prevalence of self-reported long COVID-19
- Working Practices: Seventy companies begin trial of four-day working week
- Menopause: Menopause-related employment tribunal claims nearly double over the past year
- Future of Work: BEIS Committee launches call for evidence on future of UK labour market
Law Change: EHRC recommends that government set out legislative timetable for proposed single labour market enforcement body
On 9 June 2022, the Equality and Human Rights Commission (EHRC) published an inquiry which assessed the treatment and experiences of lower-paid ethnic minority workers in health and social care, particularly during the COVID-19 pandemic. One of the key findings was low awareness of employment rights. The EHRC recognised the positive role the proposed new single labour market enforcement body, which would have powers and resources to help increase awareness of and access to rights for vulnerable workers, could play in improving the treatment and experiences of such workers. However, it noted the uncertainty created by the lack of a legislative timetable for the introduction of the new body. To address this, the EHRC has recommended that the Department for Business, Energy and Industrial Strategy (BEIS) set out a legislative timetable for the introduction of the new single labour market enforcement body and ensure it is sufficiently resourced to meaningfully monitor and enforce compliance with employment rights. The EHRC also recommended that BEIS legislate to ensure that access to information on workers’ rights, including where to go if they want to raise a concern, is detailed in the statement of particulars provided under section 1 of the Employment Rights Act 1996.
The government committed to setting up a single labour market enforcement body in June 2021, when its consultation response on the proposed new body confirmed that three of the current enforcement bodies, the Employment Agency Standards Inspectorate, the Gangmasters and Labour Abuse Authority, and HMRC’s National Minimum Wage Team, would be consolidated into a single agency. In April 2022, a call for evidence was issued on the labour market enforcement strategy for 2023 to 2024, which will shape the remit of the combined agency, and was open for responses until 31 May 2022. The strategy is due to be delivered to government in autumn 2022. The formation of the new agency requires primary legislation, which is awaited.
Health at Work: New regulations will allow more healthcare professionals to sign “fit notes”
The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) (No 2) Regulations 2022 (SI 2022/630) have been laid before Parliament. These regulations amend existing legislation on statements of fitness for work, or “fit notes”, to expand the category of people who can sign them for the purposes of SSP and social security claims. From 1 July 2022, the Social Security (Medical Evidence) Regulations 1976 (SI 1976/615) and the Statutory Sick Pay (Medical Evidence) Regulations 1985 (SI 1985/1604) will be amended to allow registered nurses, occupational therapists, pharmacists and physiotherapists to sign these statements. The regulations also insert a definition of “healthcare professional” which includes doctors and the four new professions. It is hoped that this change will make it easier for patients to see GPs by reducing their workloads.
COVID-19: ONS releases latest statistics on prevalence of self-reported long COVID-19
The Office of National Statistics (ONS) has found that, as of 1 May 2022, 2 million people living in private households in the UK were experiencing self-reported long COVID-19 symptoms, considered to be symptoms that continue for more than four weeks. For 1.4 million people (71% of those with self-reported long COVID-19), symptoms adversely affected their day-to-day activities. 398,000 (20%) reported that their ability to go about their day-to-day activities had been “limited a lot”. The most common symptom reported to be part of individuals’ experience of long COVID-19 continued to be fatigue. This symptom was reported by 55% of people with self-reported long COVID-19, followed by shortness of breath (32%), a cough and muscle ache (23% each).
Working Practices: Seventy companies begin trial of four-day working week
On 6 June 2022, around 3,330 workers at 70 companies began a trial of a four-day working week, as reported by Personneltoday.com. The trial, thought to be the largest of its type in the world, is expected to last for six months and is led by campaigning group 4 Day Week Global. It will be monitored by academics from Oxford and Cambridge Universities, as well as Boston College, who will consider the impact on employees, companies and the environment. Employers taking part have agreed that workers will receive 100% of their pay for 80% of their time, in return for workers committing to 100% productivity.
Menopause: Menopause-related employment tribunal claims nearly double over the past year
Peoplemanagement.co.uk has reported on an analysis of court records by Menopause Experts Group has found that 23 cases cited the menopause in 2021, which is a 44% increase from the 16 cases that cited the menopause in 2020. Of these 23 cases, 16 included claims for disability discrimination, 14 included claims for unfair dismissal and 10 included claims for sex discrimination. In addition, mentions of the word “menopause” increased by 75% in tribunal documents.
This research adds to other recent findings about the impact of the menopause on employees’ experiences at work. Menopause Experts Group has suggested that employers should offer their workforce training about symptoms, signs and side-effects of the menopause and that the House of Commons Women and Equalities Committee should advocate for a requirement that all employers have a menopause policy or code of conduct.
Future of Work: BEIS Committee launches call for evidence on future of UK labour market
On 27 May 2022, the Business, Energy and Industrial Strategy (BEIS) Committee published ‘Post-pandemic economic growth: UK labour markets’ in which it launched a call for evidence into the UK labour market, in particular whether the UK has enough workers with the right skills in the right places to do the jobs required for the economy, taking into account an ageing population, migration changes and the impact of technology. The Committee also wishes to understand whether current employment law is fit for purpose or requires reform.
Responses to the call for evidence are invited by 8 July 2022, which you can view and comment on here. Submissions are invited to questions under five headings: the state of play in the UK labour market post-Brexit and the impact of the COVID-19 pandemic on recruitment, skills shortages and the growth of the labour market; Artificial Intelligence (AI) and technology in the workplace; workers’ rights and protections; employment status and modern working practices five years on from the Taylor Review; and the impact of an ageing population on the labour market.
The Committee has indicated that it will welcome submissions which address the challenges currently facing both UK employers and workers, and which identify potential solutions and actions required by the government, businesses and employers to effectively support the UK labour market, while boosting productivity, equipping a skilled labour force and protecting workers’ rights. Since it will not be able to consider every aspect of the economy in depth, the Committee would particularly welcome data-rich case studies which might exemplify national trends.
The call for evidence follows the recent announcement that Matt Warman MP would be leading a review on the Future of Work.
Further Information:
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com
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Employment News – Case Update May 2022
A round-up of the most significant employment law cases to be published over the last month largely centred around dismissal. We have a harassment case that looks at how employers should provide for breastfeeding mothers returning to work, and some interesting cases of dismissals showing that common sense ultimately steers the tribunals.
- Harassment: Tribunal finds school harassed teacher who was forced to express breast milk in ‘dirty’ toilets
- Unfair Dismissal & Disability Discrimination: Failing to make a reasonable adjustment for a disabled employee does not render dismissal unfair
- Unfair Dismissal: It was not automatically unfair to dismiss an employee who refused to go to work because of concerns over COVID-19 risk to his vulnerable children
- Indirect Sex Discrimination & Constructive Unfair Dismissal: Shop assistant was unfairly dismissed after being made to work Saturdays despite childcare issues
Harassment: Tribunal finds school harassed teacher who was forced to express breast milk in ‘dirty’ toilets
In the case of Mellor v The MFG Academies Trust [2022] ET/1802133/2021, the tribunal had to consider the effect of how a teacher had been treated in respect of expressing breastmilk while at school. Ms Mellor had been a teacher of Citizenship at Mirfield Free Grammar School. In July 2020, she returned to work from maternity leave and before returning to work, made a flexible working request and informed her employer she required a room in which to she would be able to express milk or possibly feed her baby during lunchtimes while at school. Having been told that due to COVID-19 restrictions, her partner was not allowed onto school premises to bring the baby to her to breastfeed, Ms Mellor again requested somewhere to express. Having had nowhere suitable she raised the matter with her line manager, as her breasts were becoming uncomfortable from being prevented from expressing the milk and she was afraid of developing mastitis again. Through a series of requests which were not followed up properly, Ms Mellor ended up expressing regularly at lunchtimes either in her car where she might be seen by students, or whilst sitting on the floor in the dirty toilets, and trying to eat her lunch at the same time.
Judge Miller found that Ms Mellor “genuinely and reasonably had no choice but to use the toilets or her car to express” and had made the school aware on numerous occasions but not only was no suitable room provided. “The alternative was that the claimant would experience an embarrassing leakage in the afternoon,” Judge Miller explained. “It is obvious that this is unacceptable.” Ms Mellor was also keen to avoid developing mastitis again and was under the impression this would be avoided by expressing during the day.
Judge Miller therefore found in favour of Ms Mellor, expressing the sentiment that the conduct did have the effect of creating a degrading or humiliating environment for the claimant on the basis that “a woman who has recently given birth should not be subjected to these circumstances solely because she has done so.” The judge also concluded that “As the claimant reasonably and genuinely felt compelled to act in a way that she did not want to, she was we find forced to do so”, therefore interpreting the meaning of ‘forcing’ to include leaving someone with no realistic choice but to take a particular course of action and must be read in conjunction with ‘unwanted’ – such as expressing milk in the toilets while eating lunch and /or in the claimant’s car with the risk of being seen by pupils and others.
The claim of harassment succeeded, but the claim of direct discrimination was dismissed as the failure to provide a suitable room was more due to administrative incompetence rather than on the basis of her sex, and in any event, the same detriment could not be relied upon to make out both claims. The claim of indirect discrimination failed because the provision, criterion or practice (PCP) must place women at a particular disadvantage compared to men. Given that expressing breastmilk is a sex specific practice in which biological men can have no interest this PCP cannot be meaningfully applied to both men and women and therefore there is no comparative disadvantage that can arise.
Unfair Dismissal & Disability Discrimination: Failing to make a reasonable adjustment for a disabled employee does not render dismissal unfair
In Knightley v Chelsea & Westminster Hospital NHS Foundation Trust [2022] EAT 63 the EAT considered the question of if an employer dismisses a disabled employee, but fails to make a reasonable adjustment during that process, must that render the dismissal unfair?
At first instance, the Employment Tribunal found that the employer had failed to make a reasonable adjustment to its procedure when dismissing the employee on grounds of capability in that it had not allowed her an extension of time to lodge an appeal against her dismissal. It therefore upheld her claim under section 20 of the Equality Act 2010 (duty to make reasonable adjustments). However, it found that her dismissal was fair and proportionate, and therefore dismissed her claims for unfair dismissal and discrimination arising out of disability, contrary to section 15 of the Equality Act 2010.
The employee’s appeal was on the basis that the Tribunal’s finding, for the purposes of the duty to make reasonable adjustments, that the employee was unreasonably denied an opportunity to appeal against her dismissal ought to have led to her other claims succeeding and/or that the Tribunal had not sufficiently explained how her dismissal could be fair or proportionate given this finding and/or that the Tribunal had wrongly relied on its finding that the employee’s appeal would not have been successful in any event and had thereby committed the Polkey heresy. The ‘Polkey Deduction’ is a very well established principle that, if a dismissal is unfair on procedural grounds, the fact that the employee would have been dismissed in any event, even if a fairer procedure was followed, only impacts the remedy rather than the question of liability.
The EAT dismissed the appeal, noting that it was obvious that the legal tests involved in the three claims before the tribunal were different, and just because an employer might fail on one of the claims does not mean that the others will also fail. What matters to the tribunal is drawing conclusions under each test from the facts which the tribunal has found. The legal principles applicable to each claim should be separately applied to the findings of fact because the elements of each part of the Act are different. Here, the conclusion on the reasonable adjustment claim did not depend on or reflect, the merits of the case for dismissal or the dismissal itself or whether the appeal would have made any difference to the outcome.
Unfair Dismissal: It was not automatically unfair to dismiss an employee who refused to go to work because of concerns over COVID-19 risk to his vulnerable children
In Rodgers v Leeds Laser Cutting Ltd [2002] EAT 69 the EAT considered the case of Mr Rodgers who had refused to go into work during the first national lockdown, despite his work remaining open, because he was concerned that if his children caught COVID-19 they would become very ill. As a result of this refusal, Mr Rodgers was dismissed. He claimed unfair dismissal on the basis that he had exercised his right not to return to work in order to protect himself from circumstances of danger, which he had reasonably believed to be a serious and imminent threat, and which he could not have been expected to avoid (section 100(1)(d) or (e) Employment Rights Act 1999).
However, the EAT found that the employment judge had accepted that the Coronavirus pandemic could, in principle, give rise to circumstances of danger that an employee could reasonably believe to be serious and imminent, but this case failed on the facts. The circumstances of the workplace (it was large and few people worked in it, he could generally maintain social distance at work, masks were available, the tribunal rejected the claimant’s contention that he was forced to go out on deliveries) combined with Mr Rodgers’ actions (he had remained at work from the date of the announcement of the lockdown on 24 March 2020 until he left at his normal time on 27 March 2020, he had not asked for a mask, he did not say that he would not be returning when he left on 27 March 2020, he drove his friend to hospital while he was meant to be self-isolating, he worked in a pub during the lockdown) did not support his argument that there were circumstances of danger which he believed were serious and imminent. Even if the tribunal had been wrong about this, it had been entitled to find that Mr Rodgers could have been expected to take reasonable steps to avoid such danger, such as wearing a mask, observing social distancing, and sanitising his hands. The appeal was dismissed.
Indirect Sex Discrimination & Constructive Unfair Dismissal: Shop assistant was unfairly dismissed after being made to work Saturdays despite childcare issues
The case of Keating v WH Smith Retail Holdings Ltd ET/2300631/2019 has recently been published, which relates to a single mother working at the large retail chain. Following a drop in sales and the reduction of Saturday staff, the manager instated a rota for Saturday working – where sales assistants would have to work 1 in every 4 Saturdays. Although Ms Keating’s contract stated she would work 20 hours a week, flexible to the needs of the business, and could be required to work up to eight hours extra per week where trading patterns required it, and further, she may be required to work Saturdays. Sundays or bank holidays. Ms Keating did not normally work weekends and explained she was unable to work Saturdays as she had no childcare for her eight year old daughter. The manager, Mr Cruikshank, told her she should arrange to swap with one of her colleagues. He also admitted to saying to Ms Keating that if he permitted her not to work the Saturday rota, everyone else would want the same. Otherwise he had not dealt with the issue nor discussed it further with her. On the first Saturday Ms Keating was rostered to work, she had to bring her daughter to work with her. She was then off sick for four weeks and resigned, giving four weeks’ notice.
Ms Keating claimed indirect sex discrimination and constructive unfair dismissal. Ms Keating was put at a disadvantage: as a woman, with a dependent child, as a single mother and who could not afford childcare and had no family or other network she could call upon. The Judge found that while there was a legitimate business aim to introduce the Saturday rota, there was ‘no consideration’ by Mr Cruikshank of any less discriminatory ways to carry out his legitimate aim (i.e. to meet weekend staffing needs). Ms Keating was found to have resigned in response to this breach of the implied term of trust and confidence, and no potentially fair reason was advanced by the employer. The Judge held both claims to be well founded and both claims succeeded.
Further Information:
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com
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Employment News – Case Update March 2022
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 EAT concluded 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.
Further Information:
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com.
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Employment Law Case Review – February 2022
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
- Worker Status: London cabbie also working through Mytaxi app was not a worker of the app-operator
- Liability: Dental practice owner liable for alleged negligence of self-employed dentists
- Contracts: High Court grants in junction to stop Tesco firing and rehiring employees
- Holiday Pay: Misclassified worker’s right to holiday pay for whole period of employment crystallised on termination
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.
Further Information:
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com
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Employment Law Newsletter – January 2022
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 which include 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 v Angard 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.
