Employment Law Top Ten of 2022

It’s been an eventful year including a change of monarch, a few changes of Prime Minister and a cost of living crisis. While the coronavirus pandemic no longer dominates the headlines, the rates of long-COVID continue to be worrying. With the end of the year approaching, we take a look back at some of the most important Employment law cases and key topics from 2022.

This year’s countdown is brought to you in the form of some favourite karaoke songs. So, make a coffee, get a mince pie and sit down to remind yourself of this year’s key developments. You can sing along too if you know the songs!

UPDATE: Since this article was written the Court of Appeal has given its judgment in Rodgers v Leeds Laser Cutting Ltd, the case appearing at number ten below. The Court of Appeal upheld the Employment Tribunal and EAT’s decisions that an employee who refused to return to work until the COVID-19 lockdown eased was not automatically unfairly dismissed.

Homeward Bound

One of the very first Employment Tribunal decisions arising out of the COVID-19 pandemic was given in 2021 and it arose out of a health and safety dismissal. So why are we including it in our Top Ten of 2022? It’s because earlier this year, the case was the first pandemic-related claim to be appealed to the Employment Appeal Tribunal (EAT).

Coming in at number ten we have the case of Mr Rodgers[1]. Following the national lockdown in March 2020, Mr Rodgers informed his manager that he had to stay off work and remain at home until the lockdown had eased because he had a child at high risk as well as a young baby. His workplace was staying open however and measures such as social distancing, staggered start times and making masks available had been put in place.

After his dismissal, Mr Rodgers brought a claim for automatic unfair dismissal under section 100 Employment Rights Act 1996 (ERA). This provides that in circumstances of danger which the employee reasonably believed to be serious and imminent:

• He left or refused to return to his place of work (or proposed to do so), it not being reasonable to expect him to avert the danger; and/or
• He took (or proposed to take) appropriate steps to protect himself or others from the danger.

The Employment Tribunal dismissed the claim. Mr Rodgers’ employer had conducted a proper risk assessment and taken steps to implement it. Mr Rodgers had referred to staying away from work until the lockdown had eased, as opposed to when improvements were made to the workplace. Although he had a genuine belief that there were circumstances of serious and imminent danger, Mr Rodgers’ belief was not objectively reasonable because the danger was not confined to his workplace but was all around.

The EAT upheld the Employment Tribunal decision. Mr Rodgers could reasonably have been expected to avert the circumstances of danger by, for example, social distancing, using PPE and regular handwashing. However, that’s not the end of the matter. Permission to appeal to the Court of Appeal was given and the hearing took place on 3 November 2022. It looks like we’ll be considering this case again in 2023!

For more details of the Employment Tribunal decision see our previous article here.

Human

The high-profile topic of the menopause was in the news constantly throughout 2022 and it merits inclusion at number nine.

From the largest ever survey of menopausal and peri-menopausal women carried out by the Fawcett Society[2], to the House of Commons cross-party Women and Equalities Committee (WEC) report[3] we now have a wealth of data about the impact of the menopause.

According to the Fawcett Society Report, 10% of women left their job during the menopause due to their symptoms, 14% reduced their hours at work and 80% of women said their employer had not trained staff, or put in place a menopause absence policy. The WEC report, found that employers’ lack of support for menopausal symptoms is pushing highly skilled and experienced women out of work, with knock-on effects on the gender pay and pension gap and the number of women in senior positions. It highlighted two changes that could benefit those going through the menopause:

• Ensuring that sickness policies address menopause-related sickness absence because short-term absence “trigger points” often result in a performance review or disciplinary action which have a particular impact of menopausal employees.
• Making the right to request flexible working a day-one right for all employees.

The Government’s policy paper[4] was published in summer 2022 and we now have a better idea of its future strategy. Significantly, it does not intend to make menopause a new “protected characteristic” under the Equality Act 2010. Its view is that the existing protected characteristics of sex, age and disability already provide protection against unfair treatment due to the menopause. The Government announced however that one or more Menopause Employment Champions will be appointed by the Minister for Employment and there will be a Government-backed employer-led campaign with links to advice, guidance and best practice case studies. Finally, large employers will be expected to put in place workplace awareness, training and support via Employee Assistance Programmes (EAP) with a “champion” point of contact but there is no information yet as to timing.

For details of the flexible working consultation paper see our earlier article here.

The Joker

A topical case at number eight. At a time of Christmas parties and nights out with colleagues, many employers will be relieved at the Court of Appeal’s decision that an employer was not vicariously liable for the acts of its employee who caused injury to a colleague when a workplace practical joke went wrong.

Mr Chell[5] was a contractor employed by Roltec and he worked at a site controlled by Tarmac. He worked alongside Tarmac’s fitters, one of whom was Mr Heath. Tensions arose between the two groups and Mr Chell mentioned these to his supervisor but did not mention Mr Heath specifically. He met with Tarmac to discuss the concerns. One day, Mr Heath put two pellet targets on the bench close to Mr Chell’s right ear and hit them with a hammer. This caused a loud explosion and Mr Chell suffered a perforated eardrum, a noise induced hearing loss and tinnitus. The pellet targets were brought into work by Mr Heath (or a colleague) and the hammer was work equipment. Mr Heath was dismissed and Mr Chell brought a claim for damages for personal injury against Tarmac. He argued that:

• Tarmac was vicariously liable for Mr Heath’s actions on the basis that there was a close enough connection between his actions and the work he did for Tarmac.
• Tarmac was negligent in breaching its duty of care to take steps to prevent a foreseeable risk of injury and in failing to provide a safe working environment.

The County Court dismissed the claim. Mr Heath was not acting in the course of his employment and hitting pellet targets with a hammer was not within the field of activities assigned to him by Tarmac. The pellet targets were not work equipment and Mr Heath had no supervisory role in relation to Mr Chell. Work merely provided Mr Heath with an opportunity for him to carry out the prank. There was no breach of the duty of care as there was no suggestion that violence by a Tarmac fitter against a Roltec fitter was at all likely.

The High Court upheld that decision as did the Court of Appeal. There was an insufficiently close connection between the act which caused the injury and Mr Heath’s work. Further, there was no reasonably foreseeable risk of injury to Mr Chell by Mr Heath’s actions and nothing to indicate that Mr Heath would engage in dangerous horseplay.

For more details of the Court of Appeal decision, read our article here.

Get Back

Allegations of sexual harassment occur across all types of organisations and sectors. There are reports that working from home and using platforms such as Zoom, Teams and social media have given harassers a new way to access their victims. Worryingly, victims have felt less able to report concerns to their employers while working remotely. With remote working likely to be a common feature in the workplace for the foreseeable future, this important topic of sexual harassment comes in at number seven.

Harassment is defined in the Equality Act 2010 as unwanted conduct related to a protected characteristic which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual. Sexual harassment occurs when a person engages in unwanted conduct of a sexual nature and this includes sexual comments, suggestive looks, sexual advances and unwelcome physical contact. A person can experience unwanted sexual conduct from someone of the same or different sex and male employees can of course be sexually harassed.

In July 2021, the Government published its response to an earlier consultation exercise on sexual harassment in the workplace[6]. As a reminder, the Government said it will introduce a duty on employers to prevent sexual harassment to encourage employers to take positive proactive steps to make the workplace safer. It will support the Equality and Human Rights Commission (EHRC) in developing a statutory Code of Practice which will complement the existing EHRC Guidance. Accessible guidance for employers will also be produced and the time limit for claims under the Equality Act 2010 may be extended from 3 to 6 months. We may see progress from another source however. A Private Members’ Bill[7] was introduced on 15 June 2022. Its provisions include making employers liable for third-party harassment of their employees, introducing a duty on employers to take all reasonable steps to prevent sexual harassment of their employees and providing for a compensation uplift in those cases where there has been a breach of that duty. As a Private Members’ Bill, Government support is crucial and it will be interesting to see what developments there are in the months ahead.

You Can’t Always Get What You Want

Many employers have faced an increased number of requests for flexible working recently. Our case at number six is a useful reminder that employers need to take care when dealing with requests otherwise they face the risk of discrimination claims. This is especially important given the Government announcement on 5 December 2022 that the right to request flexible working will be available from day one of employment rather than the current 26 weeks.

Ms Allen[8] was a department manager at the Primark store in Bury. The managers’ shifts included a late shift from 10.30am to 8.30pm. There were eight managers at the store and two were needed to cover a late shift. Whilst on maternity leave, Ms Allen made a flexible working request to change her contractual hours. She had sole responsibility for her child with only some limited family support and could not guarantee her availability to work the late shift. Primark agreed that Ms Allen did not have to work late shifts except on Thursdays because only one other manager was available then. Ms Allen resigned and brought claims of indirect sex discrimination and constructive unfair dismissal.

She argued that the requirement for department managers to guarantee availability to work late shifts amounted to a provision, criterion or practice (PCP) that put women (a) who were department managers at that workplace or (b) who were department managers in the wider workforce at a particular disadvantage compared to men because of childcare responsibilities. She also argued that the PCP had not been a proportionate means of achieving a legitimate aim, which Primark said was to ensure an appropriate level of management cover during operational and trading hours and to close stores safely.

Primark denied that the PCP placed women at a substantial disadvantage. At the Bury store, the individuals disadvantaged by the requirement to work a Thursday late shift because of childcare responsibilities, were two men, Z and I, and Ms Allen. Accordingly, women were not at a particular disadvantage. The Employment Tribunal dismissed the claims. Ms Allen successfully appealed to the EAT arguing that the Employment Tribunal had not identified the correct pool for comparison. Z and I’s circumstances were different in that they worked late on a Thursday on a voluntary basis while she was required to guarantee her availability to work then. The matter was remitted back to the Employment Tribunal for rehearing.

I’m A Believer

Our case at number five considered the issue of “belief”[9]. In determining whether a belief has the protection of the Equality Act 2010, the Grainger test[10] is relevant:

• (i) The belief must be genuinely held.
• (ii) It must be a belief, not an opinion or viewpoint based on present information available.
• (iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.
• (iv) It must attain a certain level of cogency, seriousness, cohesion, and importance.
• (v) It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

Dr Mackereth, a Christian, was employed by the DWP as a health and disabilities assessor. He held (a) a biblical belief that a person cannot change their sex/gender at will (b) a lack of belief in “transgenderism” and “gender fluidity” (c) a belief that it would be irresponsible and dishonest for a health professional to accommodate a patient’s “impersonation” of the opposite sex. Due to his beliefs, Dr Mackereth would not agree to use the preferred pronouns of transgender service users, as required by the DWP’s policies. Options such as taking on a non-customer facing role or not assessing transgender service users were considered but neither were feasible.

Dr Mackereth left the DWP and brought unsuccessful claims of direct and indirect discrimination and harassment on the grounds of religion or belief. The Employment Tribunal accepted that Christianity was a protected characteristic but Dr Mackereth’s beliefs did not meet the Grainger criteria. Further, the DWP acted in the way they did to ensure transgender service users were treated in accordance with their rights under the Equality Act 2010 and to provide a service that promoted equal opportunities. Their conduct was not because of Dr Mackereth’s beliefs. He appealed. The EAT held that his beliefs did meet the Grainger criteria but there had been no direct or indirect discrimination or harassment because of them. Dr Mackereth had not been asked to renounce his beliefs, had not been dismissed because of them and the DWP had wanted to treat service users in the manner of their choosing.

The Long and Winding Road

A preliminary hearing decision of an Employment Tribunal doesn’t usually merit inclusion in our Top Ten. However, we can make an exception with this case, at number four, because it was held that an employee suffering from the effects of long-COVID satisfied the definition of disability in the Equality Act 2010.

Mr Burke[11] worked as a caretaker for 20 years. On 15 November 2020, he contracted COVID-19. His symptoms were very mild initially but he did not return to work. He developed severe headaches, felt exhausted after showering and dressing and lacked the energy to carry out household chores. He developed joint pain, had difficulties concentrating and problems sleeping. The GP fit notes stated that Mr Burke was suffering from the after effects of long-COVID and post viral fatigue syndrome. Occupational health reports stated that with a phased return, Mr Burke could return to work and it was unlikely that he had a disability.

Mr Burke’s contractual sick pay ended in June 2021 and he was dismissed on 13 August 2021 on the grounds of ill-health. He brought claims including unfair dismissal and disability and age discrimination. All the claims were denied and his employer raised time limits and disability status as preliminary issues.

Disability is a “protected characteristic” under the Equality Act 2010 and the Employment Tribunal addressed several issues in concluding that Mr Burke had a disability. He had a physical or mental impairment, namely long-COVID or post viral fatigue syndrome. This had a substantial adverse effect on his ability to carry out normal day-to-day activities and the effect was long-term because it would have lasted until the end of November 2021 (12 months after Mr Burke had COVID-19). Mr Burke’s case will now proceed to a full hearing.

According to the most recent ONS statistics, an estimated 2.2 million people are suffering the effects of long-COVID. It is inevitable that more long-COVID disability cases will be brought in the months ahead. However, long-COVID affects people in different ways but as each case is decided on its own facts, another case might be decided differently by the Employment Tribunal. Even so, it is important to be aware of the Burke decision.

To consider how employers can to support staff suffering from long-COVID, read our article here.

Somebody Told Me

We are in the final top three now and at number three is a decision that has been criticised for creating uncertainty for whistleblowers[12]. The Court of Appeal held that the reason for dismissal was the employee’s conduct related to making protected disclosures rather than the disclosures themselves. The employee’s conduct could be separated from making the disclosures, the “separability” principle.

Ms Kong was the Head of Financial Audit. By October 2018, she had made a number of protected disclosures about insufficient safeguards on one of the templates being used. She raised her concerns by email with the Head of Legal, Ms Harding, and also in an unscheduled meeting with Ms Harding in which she questioned her awareness of the law. Ms Harding complained to the CEO and Head of HR that Ms Kong had questioned her integrity and as a result, felt unable to work with her. Ms Kong was summarily dismissed on 3 December 2018 because her “behaviour, manner and approach had resulted in people not wanting to work with her”. Ms Kong brought claims of whistleblowing detriment (against Ms Harding) and automatic unfair dismissal under section 103A Employment Rights Act 1996.  

The Employment Tribunal held that Ms Harding’s conduct towards Ms Kong amounted to a whistleblowing detriment but the claim was out of time. Ms Kong’s dismissal however, was because of her conduct in questioning Ms Harding’s competence and not because of her protected disclosure. Although Ms Kong was successful in her ordinary unfair dismissal claim (her behaviour had been broadly reasonable), her claim for automatic unfair dismissal failed. The EAT upheld the Employment Tribunal’s decision as did the Court of Appeal. It agreed that the principal reason for dismissal was Ms Kong’s conduct and this was distinct from the protected disclosures which played no part in the actual decision to dismiss.

For more details of the Court of Appeal decision, read our article here.

I Can See Clearly Now

Getting ready for the seasonal festivities can be stressful and headache-inducing. A bit like grappling with the complexities of the holiday pay litigation. No end of year review is complete without a holiday pay case and at number two we consider the Supreme Court decision about holiday pay for “part-year” irregular hour workers[13].

The Supreme Court upheld the Court of Appeal’s ruling in 2019 that both holiday entitlement and holiday pay for “part-year” workers on permanent contracts (with irregular hours), could not be reduced pro-rata to reflect the actual hours worked during the year.

Ms Brazel was a music teacher employed under a permanent zero-hours contract who worked irregular hours during the school year. The Harpur Trust calculated her holiday pay entitlement at the end of each term as 12.07% of the hours she worked in the preceding term. This was based on 5.6 weeks equating to 12.07% of a working year (52 weeks less 5.6 weeks). This is the “Percentage Method” of calculation. Ms Brazel argued that the “week’s pay” calculation, set out in section 224 Employment Rights Act 1996 using a 12-week average (now a 52-week average) should be applied. This “Calendar Week Method” would have resulted in higher holiday pay. She brought an unsuccessful, unlawful deductions claim in the Employment Tribunal for the difference.

The EAT allowed Ms Brazel’s appeal and the Court of Appeal and Supreme Court upheld that decision. Although the “Calendar Week Method” might produce a more favourable outcome for workers with an atypical work pattern (compared to permanent, full-time staff), the Supreme Court said this did not justify a wholesale revision of the statutory scheme. The decision particularly affects the education sector but it is also significant for staff engaged on permanent zero-hours contracts or irregular hours contracts such as in retail, hospitality and leisure. In summary, workers such as Ms Brazel must now receive:

• The full statutory minimum 5.6 weeks’ paid holiday entitlement per year; and
• Their pay for this holiday must be based on the Calendar Week Method of averaging a week’s working hours (averaged over a 52-week period and using weeks where they actually worked).

For more details of what the decision means in practice see our Q&A here.

The Times They Are-A Changin’

It’s hard to imagine anything topping a Supreme Court decision about holiday pay but, at number one the Retained EU Law (Revocation and Reform) Bill 2022-23 (“the Bill”) does just that. The Bill was introduced to the House of Commons on 22 September 2022 and its provisions could potentially alter the UK legal landscape that has developed over decades.

For a Bill of such significance a quick recap might be helpful. The UK left the EU at 11pm on 31 January 2020 (“Exit day”) and entered a transition period which ended at 11pm on 31 December 2020. To avoid legal uncertainty, retained EU law became domestic law at the end of the transition period. Put simply, the Bill will end the status of retained EU law. Clause 1 of the Bill revokes all domestic subordinate legislation made under the European Communities Act 1972 and all retained direct EU legislation from 31 December 2023. The legislation will be revoked unless it has been preserved before that date or the sunset provision in Clause 2 has been triggered to extend the deadline to 23 June 2026.

If considering 2,417 pieces of retained EU law across a range of Government Departments such as DEFRA, HMRC and the Department for Transport. before 2024 was not momentous enough, the Bill also contains clauses which include:

• Abolishing the supremacy of EU law and expressly confirming supremacy is not part of domestic law
• Abolishing the general principles of EU law and expressly confirming the principles are no longer part of domestic law
• Replacing the test for higher appellate courts to use when deciding whether to depart from retained EU case law

In the context of key employment rights, many of the UK Regulations deriving from EU law could be affected for example, relating to working time, part-time workers, agency workers, fixed term employees and TUPE.

Last month, a range of organisations including the CIPD, Institute of Directors and TUC wrote to the Business Secretary, Grant Shapps, expressing their concern that revoking EU laws and legal principles would “cause significant confusion and disruption for businesses, working people and those seeking to protect the environment.”

But that’s not all. On 21 November 2022, the Regulatory Policy Committee (“RPC”) published its formal opinion on the Government’s impact assessment for the Bill. The RPC is an independent body which assesses the impact of changes to legislation. It gave the impact assessment a formal red rating as “not fit for purpose” and the Government “has not made a sufficient case” for the sunsetting of all retained EU regulations by December 2023.

On 27 October 2022, it was reported that the Prime Minister is considering deprioritising the Bill because of the huge burden on the civil service. There is also speculation that the sunset clause could be extended. The legal uncertainty surrounding the Bill and its implications will continue throughout 2023 and we will keep you updated.

Our annual Top Ten countdown shows the wide-ranging challenges faced by employers and their HR teams but for now, it’s time to enjoy the festive season before we update you about what we can expect in 2023!

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Footnotes

[1] Rodgers v Leeds Laser Cutting Ltd [2022 EAT 69]

[2] Fawcett Society Report Menopause and the Workplace

[3] Women and Equalities Committee Report Menopause and the Workplace

[4] Government policy paper Menopause and the Workplace: How to enable fulfilling lives

[5] Chell v Tarmac Cement and Lime Ltd [2022 EWCA Civ 7]

[6] Government Equalities Office: Government response to consultation on sexual harassment in the workplace 21 July 2021

[7] The Worker Protection (Amendment of Equality Act 2010) Bill

[8] Allen v Primark Stores Ltd [2022 EAT 57]

[9] Mackereth v DWP [2022 EAT 99]

[10] Grainger plc v Nicholson [EAT 2010 IRLR 4]

[11] Burke v Turning Point Scotland [ETS/4112457/2021]

[12] Kong v Gulf International Bank (UK) Ltd [2022 EWCA Civ 941]

[13] Harpur Trust v Brazel [2022 UKSC 21]