Employment law update 2022

In this employment law update, we look at some key case law decisions from 2021 and review other employment law updates which have come into effect in 2022. 

For further information on the issues covered update, view our employment law update webinar. To understand what may come into place in 2023, view our employment law update 2023.

2021 key cases round up

Holiday pay

The Supreme Court has handed down its decision in the long running Harper Trust v Brazel holiday pay case.

The claimant worked as a music teacher during term-time on a contract which covered the whole year. She was paid based on the work she did and her hours varied.

All workers are entitled to 5.6 weeks’ paid annual leave per year and in this case, she took her leave during school holidays. The Harper Trust based the holiday pay on 12.07% of the claimant’s earnings, which she argued was not correct.

Despite failing in employment tribunal (ET), the claimant subsequently succeeded and the Supreme Court has confirmed that the correct method of calculating holiday pay for “part-year’ workers should be based on average pay, ignoring weeks where an individual does not earn anything. This is the case, even if this means individuals receive a greater proportion of holiday pay than full-time workers. It was found that there is no legislative provision which means that part-timers cannot be better off than comparable full-time workers.

Sleep in shifts and National Minimum Wage

The long-awaited Supreme Court judgment in Royal Mencap Society v Tomlinson Blake was handed down in March 2021. The court held that individuals carrying out “sleep-in” shifts are not entitled to national minimum wage for time spent asleep at, or near, the workplace. Such workers are only entitled to national minimum wage when they are awake “for the purposes of working”.

This was a particularly key decision for the charity and care sector, which faced significant liability for historic back pay had the outcome been different.

Anti-harassment training

In Allay (UK) Limited v Gehlen, the Employment Appeal Tribunal (EAT) emphasised the importance of anti-harassment and diversity training being up to date and fit for purpose.

In this case, an employer’s “stale” diversity training was not enough to defend a claim of harassment brought by an employee who had seen subjected to racist comments by a colleague in the workplace.

Employers are normally responsible for any discriminatory or harassing acts committed by their employees. However, there is a defence under the Equality Act 2010, for an employer who would otherwise be responsible, if the employer can show that it took “all reasonable steps” to prevent the employee from doing that discriminatory act.

This case highlighted that having a policy and putting equal opportunities training in place is simply not enough – equal opportunity policies should be regularly reviewed, and refresher training provided as needed.

Menopause discrimination

Can menopause symptoms amount to a disability? Yes, said the EAT in the case of Rooney v Leicester City Council. In the first binding decision on the issue, the EAT held that it was wrong for a tribunal to find that an employee suffering from significant menopausal symptoms was not disabled under the Equality Act 2010.

Menopause itself is not specially mentioned in the Equality Act 2010. However, as this case shows, there is no reason in principle why menopausal symptoms cannot have the relevant disabling effect on an individual to afford the protection from discrimination under the Act.

With a growing focus on menopause in the workplace, this case highlights those employers should take heed of and address these symptoms.

Redundancy appeals

The Court of Appeal in the case of Gwynedd Council v Barratt and Others confirmed that a failure to offer an appeal in a redundancy situation does not, on its own, automatically render a redundancy dismissal unfair.

The court held it would be wrong to find a dismissal unfair if lack of appeal is only defect in otherwise fair process. Instead, a tribunal will look at all the factors in any process before determining whether a redundancy process is fair.

Many employers will offer an appeal in a redundancy situation as a matter of course, and there are benefits to doing so. In some situations, there may be reasons why holding an appeal might not be recommended, and the absence of the appeal may not be fatal.

Addressing the gender pay gap

 The case of Bayfield and Jenner v Wunderman Thompson UK Ltd generated headlines in 2021 as a cautionary tale for employers looking for a ‘quick fix’ to address gender pay gap issues.

Shortly after publishing an “embarrassing” gender pay gap report, the respondent advertising agency gave a presentation at a conference, pledging to “obliterate” its reputation for being full of “straight white men”.

The two claimants (who were white, British, heterosexual men in their fifties) raised concern with the messaging. They were dismissed shortly afterwards as part of a wider redundancy exercise.

The tribunal upheld their claims for sex discrimination, victimisation and unfair dismissal, finding that they had been dismissed because of their sex. This decision highlights that there is no quick fix to addressing systematic gender pay gap issues. Promoting one group of employees at the expense of another is likely to be ineffective as well as potentially unlawful.

COVID-19 case law

2021 saw the first of the COVID-19 cases reaching the tribunals, with some key points emerging.

These included:

• Employees have a duty to obey reasonable and lawful instructions issued by their employer – including those around PPE and COVID-19 safety measures (Kubilius v Kent Foods)
• An employer’s failure to consider placing a care worker on furlough affected the fairness of her subsequent redundancy dismissal (Mhindurwa v Lovingangels Care Ltd)
• A breach of COVID-19 guidelines (rather than laws) may not of itself be sufficient grounds to dismiss an employee (Meynell v Stephenson)
• Dismissal of a worker who refused to be vaccinated against COVID-19 was not unfair dismissal or wrongful dismissal and interference with the worker’s Article 8 right was justified (Allette v Scarsdale Grange Nursing Home Ltd)
• It was held not to be automatically unfair to dismiss an employee who refused to attend work over COVID-19 risk concerns to his vulnerable children (Rodgers v Leeds Laser Cutting Ltd)
• Employees with COVID symptoms may be considered disabled under section 6 of the Equality Act 2010 (Burke v Turning Point Scotland)
• An employee suffering from long COVID was not disabled under the Equality Act 2010 because at the time of her dismissal she did not have long COVID (Quinn v Sense Scotland)
• Requiring employees to exhaust all holiday and TOIL before receiving further paid leave was held not to be ‘unfavourable treatment’ under the Equality Act 2010, because advantageous treatment can never be deemed unfavourable (Cowie and others v Scottish Fire and Rescue Service)

Quinn v Sense Scotland

The facts

An employee who tested positive for COVID-19 in July 2021 experienced a number of symptoms which affected her day-to-day activities including shopping, driving and sleeping. On 26 July, the employee contacted her GP to arrange an appointment, but on 27 July she was dismissed from her employment.

Following multiple consultations with her GP, the employee was deemed unfit to work due to ongoing COVID-19. She was later diagnosed with long COVID on 12 September.

The claim

The employee brought a direct disability discrimination claim and the ET had to determine whether she was disabled at the time of her dismissal.

She claimed that the impairment of long COVID could be relied upon and was the same condition as COVID-19. She also relied on the fact that other women with no underlying health conditions recovered more quickly than her after two weeks, so it was likely she would experience long COVID.

The judgment

The ET found that the employee was not disabled because at the time of dismissal, she did not have long COVID; she was diagnosed six weeks later.

Additionally, the impairment on carrying out day-to-day activities had only lasted two and a half weeks at the relevant time and was not long term.

Finally, most people who suffer COVID-19 do not develop long COVID, so it cannot be argued that it was likely.

Although these have been first instance decisions (and not binding on other tribunals) they will be of interest to employers with current live claims in the tribunal system.

Other key decisions

Further high-profile cases in 2021 included the Supreme Court decision in the Uber v Aslam case, which held that Uber drivers definitely have the status of workers.

Although a very fact-specific case and judgment, it is a useful reminder for business who engage self-employed individuals to review their own arrangements.

The case of Kostal UK v Dunkley is of interest to employers who recognise a trade union. The Supreme Court held that making a direct pay offer to employees covered by a collective agreement is unlawful. Such direct offers can only be made once the collective bargaining process has been genuinely exhausted. Employers who recognise a trade union need to ensure that they follow any collective bargaining framework agreed with the union.

The EAT held in the case of Forstater v CGD Europe, that gender-critical beliefs are capable of being protected under the Equality Act 2010 as a philosophical belief.

The case was concerned only with the narrow legal issue of the scope of a philosophical belief but is of interest for highlighting that some beliefs may be capable of protection, even if they are controversial.

What to expect in 2022

Gender pay gap reporting

For those businesses to whom it applies, gender pay gap reporting was due by:

• 30 March 2022 – public sector
• 4 April 2022 – private sector

There was speculation about the introduction of new ethnicity pay gap reporting. The government have recently decided against making this a mandatory requirement at the current time, but voluntary guidance is expected.

Pay costs

Increasing payroll costs are likely to be a key issue for many employers and HR departments in the coming year. With December 2021 inflation reaching a 30-year high, employers are likely to find themselves under more pressure to increase wages.

On top of this, we have seen additional cost pressures with National Minimum Wage/living rates going up on 1 April 2022 and the introduction of the social care levy on 6 April 2022.

National Minimum/Living Wage

From 1 April 2022, the following rates apply:

These are significant pay increases. Increasing pay at the bottom end of the pay scale will likely lead to a knock-on effect to increase pay levels above National Minimum/Living Wage levels.

Health and Social Care Levy

6 April 2022

A new social care levy was introduced UK-wide from 6 April 2022 to help fund health and social care.

In 2022, this is collected via a 1.25% increase in National Insurance rates for employers, employees and the self-employed. It does not affect those earning under the NICs threshold.

From 6 April 2023, it is expected that this will be collected as a separate Health and Social Care Levy at a rate of 1.25%.

People above State Pension age are not affected by the temporary increase to National Insurance contributions for the 2022 to 2023 tax year but will be liable to pay the levy from April 2023.

Other rates

Family friendly leave

From 3 April 2022, there was a 3.09% increase in the following statutory family payments:

• Statutory maternity pay
• Statutory adoption pay
• Statutory paternity pay
• Statutory shared parental pay
• Statutory parental bereavement pay

These rates increased to £156.66, up from £151.97.

Sick pay

Statutory Sick Pay also rose on 6 April 2022 by 3.11%.  The new rate is £99.35, up from £96.35.

This increase may have a knock-on effect on employers who offer enhanced or company sick pay schemes.

Statutory redundancy payments

A weeks’ pay, for the purposes of calculating statutory redundancy pay, increased from £544 per week to £571 per week from 6 April 2022.

Right to work checks

Although the concept of right to work checks is not new, there were several changes which took effect from 6 April 2022 which employers should be aware of.

They include the implementation of a new Identity Document Validation Technology (IDVT) process, and changes for those that hold a Biometric Residence Card, Biometric Residence Permit or Frontier Worker Permit. The temporary COVID-19 adjusted checks which were put in place will continue until 30 September 2022 alongside these other changes.

Flexible working

A consultation on flexible working closed in December 2021. It sought responses on proposals to extend the existing right to request flexible working.

These proposed changes were intended to form part of the Employment Bill which was originally announced in the 2019 Queen’s Speech. The 2022 Queen’s Speech, however, made no mention of the Employment Bill. Given the changes in working arrangements as a result of the pandemic, this could be taken forward separately in the next year.

It is anticipated the changes could include a new right to request flexible working from day one (currently it is not available until 26 weeks’ continuous employment).

It has been made reasonably clear from the consultation that there is no intention to introduce a right to work flexibly by default – the changes will likely modify the current right to request.

The five proposals set out in the consultation included:

• Making the right to request flexible working a day one right
• Whether the eight business reasons for refusing a request all remain valid
• Requiring the employer to suggest alternatives
• The administrative process underpinning the right to request flexible working
• Requesting a temporary arrangement

The proposal to require employers to state in job adverts whether the job is open to flexible working may also be considered.

It remains to be seen how many of these proposals will form part of any new laws and when those laws may arrive.

Carer’s leave

In September 2021, the government published its response to a 2020 consultation on Carer’s leave. It has confirmed that it plans to legislate an entitlement to Carer’s leave for employees as a “day one” right.

It is anticipated that under these proposals, employees will be able to take up to five days’ (one week) unpaid Carer’s leave each year to help them carry out their caring responsibilities. The leave can be taken flexibly (from half a day to one week) and will be for planned care or making arrangements for planned care (not emergencies). It will not replace existing leave for time off for dependents.

Employees will be required to give notice that is at least twice the length of the time being requested, but there will be stricter refusal grounds for employers – for example if their business will be “unduly disrupted”.

The person being cared for must have a long term care need, but it is not anticipated that there will be any evidential requirements needed, but further details are awaited.

Employers will need to be aware of any new leave entitlement and consider whether it will be offering any paid enhancements to the statutory right.

It remains to be seen how many of these proposals will form part of any new laws and when those laws may arrive.

Stable contracts

The Employment Bill was also expected to introduce new rights for workers with variable hours to request a more stable and predictable contract after 26 weeks’ service.

It was expected that the Bill would introduce a right for workers to receive reasonable notice of working hours and to be compensated where their shifts are cancelled without reasonable notice.

The EU transparent and predictable working conditions directive will introduce similar rights on an EU-wide basis in August 2022.

It is currently unclear how and if these proposals will form part of any new laws.

Equality laws – third party harassment

The government has promised to introduce a new pro-active duty on employers to prevent sexual harassment in the workplace. It has also committed to bring back laws making employers responsible if employees are harassed by customers or other third parties. How this will work in practice, however, remains to be seen.

These are still proposals and we are yet to see how and if these proposals will form part of any new laws.

Whistleblowing – EU Directive

On October 23, 2019, the EU formally adopted the new EU Whistleblower Protection Directive (the Directive) to enhance protection for whistleblowers within the EU.

A key feature is the requirement to provide feedback to whistleblowers within certain specified timescales (seven days to acknowledge and no more than three months to report back) as well as requirements to keep strict records of how this has been dealt with.

Although as a result of Brexit the Directive will no longer apply to the UK, we believe it may influence best practice here.

A private members bill was introduced in May 2022 dealing with whistleblowing. The intention of the bill is to establish an Independent Office of the Whistleblower to protect whistleblowers and whistleblowing in accordance with the public interest. This bill will need to pass through the various stages of parliament before it is made law.

Neonatal care and redundancy

The UK government has pledged to introduce a new right to 12 weeks’ paid neonatal leave for parents whose babies spend time in neonatal care units.

The government’s response to consultation confirmed they were going to legislate on this issue, although a definitive date is yet to be given.

It is anticipated that the leave would be a day one right. The definitions of “parent” and “neonatal care” are still to be confirmed, as are the notification requirements.

Pregnant workers – redundancy

The UK has also committed to improve redundancy protection for pregnant employees and maternity returners by giving them priority for alternative employment opportunities if made redundant. There is currently no set date yet for when these provisions would come into force.

The proposals include similar protections for parents returning from adoption or shared parental leave.

The protection is speculated to be extend protections that apply during maternity leave to a period of time (potentially six months) after the maternity leave ends.

Tips

The Employment Bill was expected to also introduce the long-awaited tips regulations governing how tips are to be distributed. This was in response to a consultation that closed in 2016.

The proposals would prohibit any deductions from tips other than taxes and include introducing a Statutory Code of Practice for how employers should distribute tips in a way that is fair and transparent, with a written policy on tips, and a record of how tips have been dealt with.

Under the changes, employers will be able to distribute tips via a tronc, and a tip must be dealt with no later than the end of the month following the month in which it was paid by the customer. The changes would also include provisions to allow workers to make a request for information relating to an employer’s tipping record.

It is currently unclear how and if these proposals will form part of any new laws.

Sick certificates

From July 2022, fit notes can be certified and issued by nurses, occupational therapists, pharmacists and physiotherapists in addition to doctors.

The aim of this is to ease the pressure on NHS doctors and GPs.

Modern slavery reporting

The Queen’s Speech this year proposed a new Modern Slavery Bill. The intention is for this bill to extend mandatory reporting requirements to include public bodies that have a budget of £36 million or more.

Future developments

The House of Commons has published a report aimed at supporting employees experiencing the menopause in the workplace. Key recommendations include the appointment of a menopause ambassador, consultation on whether the menopause should become a ‘protected characteristic’, the launch of a public health campaign, a Government pilot of a menopause leave policy and the Royal College of General Practitioners being required to make training on menopause a mandatory aspect of continuing professional development.

Further support

If you require more detailed employment law guidance on the issues covered in this article, book a free 30-minute consultation with a member of our Employment team today, at a time that suits you.

This content is correct at time of publication