Employment legal update #53 | March 2022

Our Employment & HR team brings its monthly review of new legislation, guidance and case law.

News: 

The Statutory Sick Pay (Coronavirus) (Funding of Employers' Liabilities) Regulations 2022 and the Statutory Sick Pay (Coronavirus) (Funding of Employers' Liabilities) (Northern Ireland) Regulations 2022 came into force on 14 January 2022. These re-introduce the Statutory Sick Pay Rebate Scheme across the United Kingdom which allows employers with fewer than 250 employees (as at 30 November 2021) to recover up to two weeks' Statutory Sick Pay (£192.70) for each employee who is off work suffering from COVID-19 or in self-isolation due to possible COVID-19 infection. The scheme applies to any days of incapacity on or after 21 December 2021, including where the sickness absence started before that date. The scheme will end on 24 March 2022, which is the last date for claims to be submitted to HMRC. This mirrors the scheme previously implemented in May 2020 which ended in September 2021.

The Personal Protective Equipment at Work (Amendment) Regulations 2022 (amended PPE Regulations) comes into force on 6 April 2022. They extend the employer’s duty to provide suitable PPE where there is a health and safety risk to all workers; not just employees. As with employees, employers will not be allowed to charge workers for the cost of the PPE. The employer's duty will apply during periods that a worker is working under their worker's contract but not otherwise.

Pilot studies are being organised into the effects of having a four-day working week with no loss of pay. The organisers are hoping for between 20 and 30 businesses of varying sizes will participate. The scheme will be run in collaboration between academics from Cambridge and Oxford universities, Boston College, the UK 4 Day Week Campaign and the thinktank Autonomy. As a result of the changing working practices because of the pandemic, there is growing interest in the potential benefits of giving employees an additional day off, such as increased productivity and staff retention. Already a number of large businesses, including App-based Atom Bank and Morrison's Bradford headquarters, have signed up to shortening their work week and others are trialling optional four-day weeks.

The Women and Equalities Select Committee has heard evidence from employment lawyers as part of its inquiry into menopause and the workplace. The discussion focused on whether the menopause should be made a legally protected characteristic. The Committee had heard that some women face discrimination, including inappropriate comments or missing out on pay or promotions, if they are (or are perceived to be) going through the menopause, regardless of whether they are experiencing symptoms. Those who experience such treatment have to rely on existing legal protection under the Equality Act. The Committee also heard evidence that both employees and employers have a lack of clarity of businesses' obligations to employees going through the menopause and that increased guidance and awareness of the issues would be helpful.

Research carried out by a law firm has established that employment claims related to flexible working increased by 52% in the past year, from 127 in 2019/20 to 193 in 2020/21. It is thought that employees’ reluctance to return to the office following the ease of restrictions may have contributed to this as they try to retain the flexibility that working from home has given during the pandemic. Those with caring responsibilities or health conditions are also believed to have contributed to the increase of these claims, which are often coupled with discrimination claims. The reasons most frequently given for refusal were that granting the request would have a "detrimental impact on performance" or "on ability to meet customer demand" and warned that employers should be cautious not to take a "heavy-handed approach" to requests, particularly given the current considerable challenges in hiring and retaining talent.

Commentary: 

Holiday pay claims thrown up in the air

The Court of Appeal has thrown a curve ball at the previously considered way of dealing with various types of holiday pay claims, in Smith v Pimlico Plumbers Limited. This holiday pay claim started life as a challenge to employment status of the plumber (Mr Smith) who worked for the respondent. Mr Smith claimed he was a worker where the respondent claimed he was self-employed. It went to the Supreme Court which declared that Mr Smith was indeed a worker and as such could bring holiday pay claims. The case was then remitted back to the employment tribunals to deal with the holiday pay claims.

The tribunal, upheld by the EAT, threw out the holiday pay claims on the basis that the claimant could not bring them, and they were anyway out of time. However, the Court of Appeal has overturned the EAT judgment, throwing the whole previous mantra of holiday pay claims into disarray. The claimant was found to be in time to bring his holiday pay claims going back throughout the entirety of his engagement. Furthermore, the concept of a 2-year backstop for holiday pay claims, expounded in the Bear Scotland v Fulton case, has now been done away with. It is therefore open to all manner of holiday pay claims which could not previously have been brought, to now be so brought.

In doing so, the Court of Appeal went against the tribunal and EAT in its view of the King v Sash Windows case, on which both lower courts had dismissed the claimant’s claims. This case had held that only claims for holiday which had not been taken because the individual was prevented from doing so knowing that it would be unpaid, could be brought. If holiday has been taken unpaid, these claims could not be brought. Furthermore, the King case established that the holiday which the claimaint in that case had been dissuaded from taking because the employer would not pay it meant that he carried forward the holiday from year to year until the termination of his engagement. In contract, the tribunal and eat in Smith had held that the claimant could only bring claims which were part of a series of pay deductions (where holiday had  been taken but not paid for) which had to be within 3 months of each other and could anyway only bring claims which were in the current holiday year of his terminations.

To recap, Mr Smith, now officially designated as a worker, south payment for holidays which he had taken but which had been unpaid, and he knew they would be unpaid when he took them. He brought these claims on the termination of his engagement going back several years. When these claims were deemed to be out of time the matter came before the Court of Appeal. This court took a different view and held as follows: -

To apply the King v Sash Windows decision to this case would go against the purpose of the Working Time Directive from which the Working Time Regulations emanate, in providing for annual leave for the purposes of rest and recuperation. Furthermore, there is not only an entitlement to the leave, but also an entitlement to payment for it. Just because individuals take the leave which has not been paid for does not preclude them from bringing a claim for the unpaid holiday. This, according to the Court of Appeal, would fly in the face of the purpose of annual leave being that an individual can enjoy a period of holiday without having to worry about his financial situation because he is not being paid for it. The overarching right is for paid annual leave. If the individual takes leave for which he is not paid, he is not exercising his right to paid leave. He is only exercising his right to leave. A worker can only lose the right to paid annual leave at the end of any leave year if the employer has offered the opportunity for the individual to take the leave and he or she has refused. If the individual is either precluded from taking leave because they will not be paid for it and so is not exercising a right to paid leave, or takes it unpaid, the employer is not discharging the burden of showing that it offered the individual the opportunity to take paid leave; only the opportunity to take leave.

Consequently, the Court of Appeal held that Mr Smith could indeed bring his claim for unpaid holiday throughout the time time of his engagement with the respondent, that the right to paid leave rolled on throughout his engagement and his claims were not out of time.

"Gay Cake" case deemed inadmissible by European Court of Human Rights

In the case of Lee v UK, the individual in this case brought a claim against a bakery in Northern Ireland for refusing to provide him with a cake decorated with a logo supporting gay marriage. He was successful in the lower courts in demonstrating that he had been discriminated against on the grounds of sexual orientation and religion or belief: the bakery owners were Christian, and their belief was fundamentally against the concept of gay marriage.

However, when the bakery appealed to the Supreme Court, the appeal was allowed on the basis that the refusal had been a refusal to provide the cake with the message, not because of the claimant’s actual or perceived sexual orientation. The court also held that the claimant had not been discriminated against on the grounds of political opinion given the bakery owners had a right to freedom of thought and expression, and the Order under which the lower courts had found that the claimant had been discriminated against, should not be interpreted as requiring the bakery owners to supply a cake with a message with which they profoundly disagreed.

The claimant then applied to the European Court of Human Rights (ECtHR), relying on various Articles of the European Convention on Human Rights,  including the right to respect for private life); the right to freedom of thought conscience and religion; and the right to freedom of expression), in conjunction with the prohibition of discrimination. However, the complaint was rejected as inadmissible because the claimant had not, at any stage during the domestic proceedings, sought to invoke the Convention rights but relied solely on domestic law. The Human Rights Act litigants to invoke the Convention rights in domestic law and, as the claimant not done so, he had not exhausted his domestic remedies.

Employee fairly dismissed for bringing vexatious grievances

In Hope v British Medical Association, the EAT upheld a tribunal decision that an employee had been fairly dismissed, without any formal warnings, for bringing numerous "vexatious and frivolous" grievances, attempting to keep them running indefinitely instead of progressing them, and failing to comply with a reasonable management instruction to attend a grievance meeting.

The claimant was a senior policy adviser with the BMA. The director of policy accused him of being unprofessional and dismissive in an email to a colleague and he raised a complaint seeking assurances that the BMA did not have the same opinion of him. Although the grievance was not upheld, his appeal was partially successful, albeit expressing disappointment that he had not taken up the opportunity of meetings with the colleague concerned to resolve the issues. He then complained about not being invited to various meetings by that person and responses to those were met with more grievances. Eventually he was asked if he wanted to pursue his complaints formally, to which he replied that he did not, but he wanted the facility to do so should he wish. When given a formal deadline by which he had to decide, he lodged a further complaint that this deadline was arbitrary, along with yet another grievance regarding this same colleague's failure to invite him to a meeting.

Following attempts to resolve his issues and his refusal to attend meetings, and his lodging further complaints, he was disciplined and dismissed for gross misconduct for bringing vexatious complaints. When he brought a claim, the tribunal upheld the decision to dismiss for gross misconduct and that this decision was not unfair given his conduct and the way in which he had brought, but not pursued, multiple grievances. The employer had acted within the range of reasonable responses in disciplining and dismission him for his conduct.

His appeal to the EAT was dismissed. It held that the tribunal's decision was not perverse, and it was entitled to treat the claimant's non-attendance at a grievance meeting as wrongdoing.

In doing so, the EAT issued some interesting guidance on the use of grievance procedures. It looked at the legitimate purpose of grievance procedures, commenting that they are not a "repository for complaints that can then be left unresolved and capable of being resurrected at any time at the behest of the employee". In other words, employees cannot insist on keeping unresolved grievances in limbo.

The decision suggests that, where a grievance has not been resolved informally, it may be open to the employer to insist that the employee either withdraw it or cooperate in pursuing it formally out of fairness to all concerned. The abuse of the grievance process may potentially be regarded as misconduct, depending on the circumstances.

However, it remains the case that employers should treat complaints on their merits and, if certain complains are better off dealt with informally, then this route should be adopted. It will always depend on circumstances of each case as to how employers handle complaints; but this is an interesting case, albeit possibly quite extreme, of an extreme where the claimant's persistence in throwing complains about without properly pursuing them was considered to be misconduct sufficient to justify dismissal.

Another worker/taxi driver case

The case of Johnson v Transopco UK Ltd, is another case concerning whether a gig economy person is or is not a worker. In this case, the employment tribunal held that a taxi driver working through the Mytaxi app was not a ‘worker’ of the app operator, and this was upheld in the EAT.

The claimant was in business on his own account as a black-cab driver in London. In February 2017 he registered as a driver on TUK Ltd’s Mytaxi app. Between April 2017 and April 2018 he earned £4,560.48 after commission via the app, but in the same period he earned £30,472.45 as a self-employed driver through other sources. The claimant issued proceedings against TUK Ltd, the success of which depended on his having been TUK Ltd’s ‘worker’.

The tribunal found that passengers engaged with TUK Ltd for taxi services, but these services were then delivered via a separate contract between the claimant and TUK Limited. It found that the claimant had an obligation of personal service to TUK Ltd under that contract. However, the tribunal considered that TUK Ltd was a ‘client or customer’ of   the claimant’s separate taxi-driving business, and not a worker. As such, the claimant fell within the exclusion in the legislation which precludes those who do work for a client or customer of theirs from being a worker. The tribunal took into account that the claimant had total flexibility as to how often or otherwise he provided his services, when he provided them, and that he was not subject to any control by TUK Ltd as to how those services were carried out. In addition, the work he did for TUK was very considerably less than the income derived from his other taxi driving.