The PM (People Management) put together the 10 most important employment law cases of 2021 and why they are important for employers and I wanted to share these with you:
1 Employment status: purpose of legislation
In Aslam v Uber, the Supreme Court decided Uber drivers were workers (and entitled to 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 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 decided that workers who have to sleep at or near their place of work 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 they aren’t working.
3 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’s 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 or changeable hours (where the changes are dictated by the employer) than men because of childcare responsibilities.
This decision means 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.
4 Covid-19: can employees refuse to return to work if they believe their workplace puts them in danger?
Under ss 44 and 100 of the Employment Rights Act 1996, employees are protected from being subjected to a detriment (such as suspension or pay deductions) 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.
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.
Why this matters
Now we have a vaccination programme which appears to provide high levels of protection against people becoming seriously ill if they contract Covid-19, it may be 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.
5 Discrimination: reasonable steps defence available to employers
That said, 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.
An employer can avoid liability for harassment or discrimination carried out by its 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 can only rely on the statutory defence if they’ve provided regular, substantial training on discrimination issues. They may also have to repeat training if prior training was ineffective or has been forgotten.
Why this matters
You’ll only be able to avoid liability if you can identify what steps you actually took to prevent discrimination in your workplace, establish that these were ‘reasonable’ and demonstrate 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 with any complaints. You should also include mechanisms to test those 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.
6 Menopause: are symptoms a disability in law?
To bring a disability discrimination claim, an employee must show 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. These can include an inability to sleep or concentrate. Substantial is something more than trivial and, long-term means it has, or is likely to, affect an individual for more than a year.
In Rooney v Leicester City Council the EAT held 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, lightheadedness, confusion, stress, depression, anxiety, palpitations, memory loss, migraines and hot flushes – these symptoms had a negative impact on her life.
Why it matters
Most women affected by menopause (those aged 50 to 64) are the fastest growing economically active group in the UK. Around 70 per cent of working women in the UK (almost 4.5 million) are in this age bracket, and that number is set to increase. More women will therefore transition to the menopause while working and employers that fail to support them through this process will lose their skills and expertise.
There has been a steady increase in the numbers of women bringing employment tribunal claims against their employers alleging 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. We are expecting a Women and Equalities Committee report on how menopausal women are treated at work and what steps need to be taken to protect them this spring.
7 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 with a protective characteristic.
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 to effectively supervise junior staff.
The tribunal accepted 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 justify 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 carers of disabled people are disproportionately impacted by workplace policies which require them to work full-time and/or in an office.
8 Redundancy: do employees have a right to appeal?
In Gwynedd Council v Barratt and Hughes, the Court of Appeal had to determine if two employees 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 employers must always allow employees to appeal against their redundancy as a final stage in the process. If they have properly consulted about the redundancies (both collectively and individually) their staff will have already had the opportunity to challenge their selection and ask to be considered for alternative roles. In those circumstances, they 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 their 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.
9 Collective bargaining: when can employers make direct offers to staff?
In Kostal v Dunkley, 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. Employers can approach staff who are union members to try and agree terms provided they have followed all of the steps set out in the collective agreement. But they must have reached this point and be able to show that they genuinely believed that the collective process had come to an end. They can’t shortcut the process even if it’s obvious that the union will not support the changes they want to make.
10 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.
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 is 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 difficult path to navigate, particularly if employers have groups of people in their organisation with polarised views. They should not impose blanket restrictions preventing staff from expressing their views but they can (and probably should) remind them that they expect all staff to treat each other with courtesy and respect. It’s also helpful to remind them about what could happen if they step over the line.
I would be really interested to hear your comments and thoughts on any of the above.