We take a look that at the 10 most important employment cases of 2021 which HR professionals and business owners need to be aware of.
1. Employment status - purpose of legislation takes centre stage
In Aslam v Uber the Supreme Court decided that Uber drivers were workers (and entitled minimum pay rates and statutory holiday) because they were in a position of subordination and dependence to the company.
It rejected the complicated contractual documentation Uber had put in place to make it appear as though the drivers were self-employed and said that tribunals must examine the actual relationship between the parties rather than the way that relationship is presented in the contract/s. Tribunals must start by looking at the wording of the law, consider what harm it was introduced to prevent and then apply that knowledge to the facts of the case.
Why this matters
This decision isn't limited to the gig economy. If you engage 'independent contractors' who are, in reality, workers or employees you won't be able to hide behind cleverly worded contracts to avoid a tribunal making an adverse decision against you. The tribunal will examine the nature of your relationship with the worker and will ignore anything in the agreed contractual terms that is inconsistent with those findings.
2. National minimum wage - payment for sleep in shifts
In Mencap v Tomlinson-Blake and Shannon v Rampersad (t/a Clifton House Residential Home) the Supreme Court had to decide whether workers who provided sleep-in cover should be paid at the appropriate NMW rate for every hour of their sleep-in shift - even if they didn't perform any work.
It decided that workers who have to sleep at or near their place of work in order to respond to emergencies etc aren't entitled to be paid NMW rates when they are asleep. But, they must receive NMW when they are awake for the purposes of working, such as responding to an emergency call.
Why this matters
Although this decision mainly impacts the care sector, it could also apply to night watchmen and emergency call handlers.
If you engage someone whose job it is to sleep and you provide facilities to enable them to do this, you only have to pay them the relevant NMW rates if they have to perform work during their shifts, but not if they can't sleep for other reasons (such as noise etc). You can agree a different rate of pay with them for any time when they aren't working.
3. Collective bargaining - when can employers make direct offers to staff?
In Kostal v Dunkley and others the Supreme Court had to decide when an employer, operating within the context of a unionised workforce, can lawfully approach its staff direct to try and reach agreement where negotiations with the union have failed.
It held that employers can only lawfully approach staff direct to try and impose new terms and conditions, once they have followed and exhausted the agreed collective bargaining agreement.
Why this matters
This decision doesn't mean that unions can veto any changes to terms and conditions of employment they don't support. You can approach staff who are union members to try and agree terms provided you've followed all of the steps set out in the collective agreement. But you must have reached this point and be able to show that you genuinely believed that the collective process had come to an end. You can't short-cut the process even if it's obvious that the union will not support the changes you want to make.
Even if it doesn't look as though you are going to reach agreement with the union and are close to exhausting the process, we recommend that you take legal advice before you decide to approach union members direct. The financial consequences of getting this wrong are, potentially, very large. Awards are fixed and tribunals can't reduce them like they can in other claims.
4. Flexible working policies: indirect discrimination and the childcare disparity
In Dobson v North Cumbria Integrated Care NHS Foundation Trust, the EAT made it clear that tribunals must accept, as fact, that women still bear the primary burden of childcare responsibilities and this makes it difficult for them to work certain hours.
Why this matters
It now easier for women to establish group disadvantage for the purposes of an indirect sex discrimination claim. For example, women are more likely to find it difficult to work certain hours (e.g. nights) or changeable hours (where the changes are dictated by the employer) than men because of childcare responsibilities.
This decision means that women will not have to provide their own supporting evidence when pursuing claims of indirect sex discrimination in circumstances where factors relating to childcare put them at a disadvantage.
But that doesn't mean that a tribunal will find that a particular policy does, in fact, discriminate against women. For example, if a requirement to work flexibly requires working any period of eight hours within a fixed window, or involves some other arrangement that might not necessarily be more difficult for those with childcare responsibilities, then it would be open to a tribunal to conclude that group disadvantage is not made out.
5. Equality: gender critical beliefs
The EAT in Forstater v CGD Europe and others held that a belief that biological sex is real, important, immutable and can't be conflated with gender identity* is a philosophical belief protected under the Equality Act.
*Gender identity is a person’s innate sense of their own gender, whether male, female or something else which may or may not correspond to the sex assigned at birth.
Why it matters
This decision has to be seen in the context of the highly charged (and in some cases toxic) debate around 'trans rights'. The law now protects both those people who believe in gender identity and those who hold gender critical beliefs. But that doesn't mean that either group are free to act on their beliefs in the context of work and, for example, to harass or bully those who hold different views. So, people who hold gender-critical beliefs can't ‘misgender’ trans people with impunity. Nor should those who believe in gender identity accuse colleagues of being 'transphobic' simply on the basis that they take a different viewpoint.
This can be a very difficult path to navigate, particularly if you have groups of people in your organisation with polarised views. You should not impose blanket restrictions preventing staff from expressing their views but you can (and probably should) remind them that you expect all staff to treat each other with courtesy and respect. And it's also helpful to remind them about what could happen if they step over the line.
6. Menopause: are menopausal symptoms a disability in law?
In order to bring a disability discrimination claim, an employee has to show that they have a mental or physical condition, which has a substantial and long-term effect on their ability to carry out normal 'day to day' activities. Day to day tasks are not limited to workplace tasks and can include an inability to sleep or concentrate. Substantial is something that is more than trivial and, long term means that it has, or is likely to, affect an individual for over 12 months.
In Rooney v Leicester City Council the EAT held that an employment tribunal erred in law in holding that a woman who had severe peri-menopausal symptoms was not a disabled person. She suffered from insomnia (causing fatigue & tiredness), light headedness, confusion, stress, depression, anxiety, palpitations, memory loss, migraines & hot flushes - symptoms had a negative impact on her life.
Why it matters
Women make up 47% of the workforce and outnumber men in many areas of the labour market. The majority of women affected by menopause (those aged 50 to 64) are the fastest growing economically active group in the UK. Around 70% of working women in the UK (that’s almost 4.5 million) are in this age bracket. And that number is set to increase. More women than ever before will therefore transition to the menopause while working and employers that fail to support them through this process will lose their skills and expertise.
Although the numbers are still low, there has been a steady increase in the numbers of women who are bringing employment tribunal claims against their employers alleging that they have been mistreated at work because of their menopausal symptoms.
It's also possible that menopause will be add to the list of protected characteristics in the Equality Act which will be a game changer. The Women and Equalities Committee have looked into how menopausal women are treated at work and what steps need to be taken to protect them and we are expecting their report to be published in the spring.
7. Discrimination: reasonable steps defence available to employers
An employer can avoid liability for harassment/discrimination carried out by its own employees if it can show it took all reasonable steps to prevent it from taking place.
In Alley UK Ltd v Gehlan, the EAT made it clear that employers will only be able rely on the statutory defence if they've provided substantial training on discrimination issues on a regular basis. They may also have to repeat training if it becomes apparent that prior training was ineffective or has been forgotten (perhaps because there's been an increase in the number of complaints or managers have witnessed unacceptable behaviour) .
Why this matters
You'll only be able to avoid liability if you are able to identify what steps you actually took to prevent discrimination in your workplace, establish that these were 'reasonable' and demonstrate that that there weren't any other reasonable steps you could have taken to prevent it.
It's not enough to have a policy on diversity and equality. Your staff must understand why you have a policy, who it protects, what staff can and can't do, how to complain if they are being harassed or bullied by other members of staff and how you will deal any complaints. You should also include mechanisms to test that delegates have properly understood what they have learned.
Even if the training you delivered met these objectives, it can become stale over time and you should provide regular refreshers.
8. Indirect discrimination: can employees bring associative discrimination claims?
An employee can bring a direct discrimination or harassment claim if they have been discriminated against because they associate, or are connected, with someone who has a protective characteristic. They don't need to have the protective characteristic themselves.
A few years ago, the ECJ expanded the concept of associative discrimination to allow employees who are disadvantaged by a workplace provision, criteria or practice to bring indirect discrimination claims even if they didn't have the protected characteristic which caused the disadvantage - provided they were also impacted by it. But, that concept had not been tested in the UK and the Equality Act has not been amended to include associative discrimination in these types of claims.
In Follows v Nationwide Building Society, an employment tribunal upheld a claim of indirect associative discrimination on the grounds of disability. The claimant, Mrs Follows wasn't disabled but she cared for her mother who was. After a restructure, she wasn't able to comply with a new requirement to work in the office on a full-time basis in order to effectively supervise junior staff.
The tribunal accepted Mrs Follows argument that carers are less likely to be able to be office-based than non-carers. This put her at a substantial disadvantage because of her association with her mother's disability and Nationwide had not been able to objectively justified its treatment of her.
Why this matters
Employment tribunals do not create precedents that are binding on other tribunals and courts. However, this case suggests that tribunals may be willing to make similar findings - particularly where carer's of disabled people are disproportionally impacted by workplace policies which require them to work full-time and/or in an office.
It therefore makes sense (from a legal and practical perspective) to help staff manage work around their other commitments by offering flexible or agile working (where appropriate) and exploring other options to help them remain in work.
9. Redundancy: do you have to give employees the chance to appeal as part of a fair procedure?
Employers making staff redundant have a duty to act reasonably. The ACAS Code of Conduct on Disciplinary and Grievance Procedures requires employers to take certain steps before dismissing an employee - including giving them the right to appeal against their dismissal but this doesn't apply to redundancy dismissals.
In Gwynedd Council v Barratt and Hughes the Court of Appeal had to determine if two employees who were made redundant were unfairly dismissed because their employer did not allow them to appeal against their dismissal. On the facts, it held that their dismissals were unfair because the employer had circumvented the established way of dealing with redundancies (consultation, pooling, selection criteria and looking for suitable alternative employment) by putting staff on notice that their jobs were at risk and requiring them to apply for vacancies.
Why this matters
This decision doesn't mean that you must always allow employees to appeal against their redundancy as a final stage in the process. If you have properly consulted about the redundancies (both collectively and individually) your staff will have already had the opportunity to challenge their selection and ask to be considered for alternative roles. And, in those circumstances, you may decide not to offer an appeal to avoid going over the same ground.
But, offering an employee the right to appeal against a redundancy dismissal will strengthen your case that a dismissal for redundancy was fair. And, it's also been held that where the employer does provide an appeal, the usual rule applies that a fair appeal can, if necessary, cure an unfair initial decision. That's why many employers err on the side of caution and offer appeals even where they have properly consulted individuals and given them the opportunity to challenge their selection at an earlier stage in the process.
10. COVID-19: can employees refuse to return to work if they believe that their workplace puts them in serious and imminent danger?
Last year we started to see a steady flow of COVID-19 related claims. These included a number where employees argued that they could not return to work because their workplaces posed a danger to them and/or to vulnerable people they came into contact with.
Under sections 44 and 100 of the Employment Rights Act 1996, employees are protected from being subjected to a detriment (such as being suspended or having their pay deducted) or being dismissed for exercising their right to leave their workplace. To be protected, the employee must have a 'reasonable belief' that their workplace poses a serious and imminent threat to them, or to others - including members of the public and their own families.
This is a 'day one' right and employees don't need two years' service to bring an unfair dismissal claim.
The cases suggest that tribunals are taking a fairly robust attitude towards health and safety issues in the context of coronavirus.
In Rodgers v Leeds Laser Cutting Limited, the tribunal held that Mr Rodgers didn't have a reasonable belief that his workplace put him (and his vulnerable children) in serious and imminent danger. He was able to socially distance himself from his colleagues and he'd driven a friend to hospital which punctured a hole in his claim that he hadn't left the house in several weeks because he was worried about catching the virus.
Similarly, the claimant in Accattatis v Fortuna Group (London) Limited failed to persuade a tribunal that his concerns about the safety of his workplace rendered his dismissal automatically unfair. The tribunal accepted that there were circumstances of danger which the employee reasonably believed to be serious and imminent. But, the employee not been willing to explore how he could safely continue to work and instead had become fixated on being furloughed (which wasn't appropriate as he was a key worker) or working from home (which wasn't feasible).
However the tribunal in Gibson v Lothian Leisure accepted that an employee concerns about the safety of his workplace rendered his subsequent dismissal automatically unfair. The employee's father was clinically extremely vulnerable and he refused to return to work during the first lockdown because his employer hadn't taken any steps to make the confined space he worked in with others COVID-secure. The employee had a reasonable belief that his workplace posed a serious and imminent risk to him and to his father.
In Preen v Coolink v Mullins, the tribunal held that the employee didn't reasonably believe that either he or others were in serious and imminent circumstances of danger of contracting COVID-19 at work. But he did go on to win his claim for automatic unfair dismissal because he had raised concerns about continuing to work during the first lockdown which he reasonably believed were harmful or potentially harmful to health and safety. This is an easier hurdle to clear but is only available to employees if their employer doesn't any have any health and safety representatives in post (or a union who performs that function).
Why this matters
These cases were all brought in 2020 in the early stages of the pandemic. We know much more about the virus than we did in 2020 and have a successful vaccination programme which appears to provide high levels of protection against people becoming seriously ill if they contract COVID-19. Therefore it may be much more difficult for employees to argue that their reasons for wanting to remain at home, or in lower risk jobs is a reasonable response based on the actual danger they face - particularly if they have chosen not to be vaccinated.
That said, the infection rates are still averaging around 100,000 a day and hospital admissions are at record levels. People who are vulnerable, or who live with people who are, may still try and argue that they are protected from being dismissed because their workplace poses a serious and imminent danger to their health. The strength of those arguments is likely to depend on the nature of their workplace.
Want to know more?
To help business owners and HR professionals to get up to speed as quickly as possible with changes to employment law we are hosting a series of free webinars in January and February on various dates.
Please use these links to sign up:
Wednesday 19 January 2022: 9:30am - 10:30am http://events.irwinmitchell.com/employment2022north
Thursday 27 January 2022: 9:30am - 10:30am http://events.irwinmitchell.com/employment2022birmingham
Tuesday 8 February 2022: 9:30am - 10:30am http://events.irwinmitchell.com/employment2022south
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