Employment Law Review – April 2022

It has been a busy period for employment law, with lots of cases and legislation. In this update, we have split it into two sections – one covering selective case law likely to be of interest and the other commenting on legislative changes.

Case law

Fentem v Outform EMEA Ltd – Where an employee resigns and the employer brings forward the termination date by making payment in lieu of notice, there is no dismissal.

The Employment Appeal Tribunal (“EAT”) held that where an employee delivers their notice of resignation and the employer brings forward the termination date by making a payment in lieu of notice pursuant to contractual terms of the contract, there shall be no dismissal under s.95 of the Employment Rights Act 1996.

Mr Fentem resigned by letter dated 16 April 2020, with his notice period due to end on 16 January 2020. On 19 December 2019 Outform advised Mr Fentem that it would be relying on a term in his contract to make a payment in lieu of notice and bring his employment to an immediate end. Mr Mr Fentem brought a claim for unfair dismissal and an employment judge had to decide if he had been dismissed.

The employment judge confirmed that Mr Fentem had not been dismissed. The judge distinguished between these facts and where an employer unilaterally brings forward the date of termination (in which instance this would amount to a dismissal). However, Outform relied on a contractual term allowing it to shorten or dispense with the period of notice given by the employee. The EAT upheld that the termination was one by reason of resignation.

USDAW and ors v Tesco Stores Ltd – Tesco prevented from firing and rehiring employees

The High Court granted an injunction preventing Tesco from ‘firing and rehiring’ employees in order to remove a contractual entitlement to enhanced pay. The enhanced pay entitlement was used as an incentive to retain employees at a time when Tesco was reorganising its distribution centres. When the clause was included within the contracts, it was done so on the basis that it would remain for as long as the employee remained in the same role. Tesco affirmed to the individuals that the enhanced pay would remain on this basis, and that it could not be negotiated away. It could only be changed through mutual consent, on promotion or in the case of an employee-requested change to working patterns.

The Court held it was proportionate to imply a contractual term preventing Tesco from exercising its right to terminate on notice for the purpose of removing or diminshing the employee’s entitlement to the enhanced pay. The Court was of the view that Tesco’s intention to ‘fire and rehire’ workers would remove a significant proportion of the remuneration currently payable to the affected employees, causing significant injury to their legal rights. Damages was not an adequate remedy.

The Court concluded that it was just and convenient to make an order restraining Tesco from giving notice to terminate the contract of an affected employee.

Worker Status – Contrasting Cases on the genuine right to send a substitute – Stuart Delivery and DPD Group

A minimum criterion for both employee and worker status is the requirement to perform work personally and this issue will turn on whether there is a genuine right to send a substitute.

Stuart Delivery Ltd v Augustine

A moped courier was deemed to be a worker on the basis that there was no genuine right afforded to the worker in this case to send a substitute.

Mr Augustine was a moped courier working for Stuart Delivery. The couriers could work on an ad hoc basis, with the ability to take individual jobs. Couriers were also able to sign up for specific timeslots. If couriers signed up for a timeslot, they were required to stay within a certain geographical area and be available to take jobs in return for a guaranteed minimum hourly rate of pay.

If a courier signed up for a slot, but no longer wished to work, they could request to release the timeslot. If another courier did not take the shift, then the original courier would be required to work during that timeslot, or face a penalty.

The Employment Tribunal made a clear finding of personal service, and there was no right of substitution at all. The EAT upheld this finding, commenting that there was no right of substitution, but ‘merely a right to hope that someone else in the pool will relive you of your obligation. If not, you have to work the slot yourself. You cannot, for example, get your mate to do it for your, even if s/he is well qualified. All you can do is release your slot back into the pool.’

Stojsavljevic v DPD Group UK Ltd

DPD couriers entered into a franchise agreement to provide parcel collection and delivery services as independent contractors. Couriers could perform the work themselves or nominate another driver on a permanent or temporary basis up to 90 days.

The eligibility criteria for the 90-day couriers were not as stringent as the requirements for permanent drivers, and the agreement did not distinguish between the permanent and 90-day drivers.

The Employment Tribunal found that there was a genuine right to substitute, as the claimants were entitled to send other drivers in their place.

Lee v Ashers Baking Co – Appeal disallowed in ‘Support Gay Marriage’ cake case

The European Court for Human Rights (“ECHR”) has declared that an appeal brought by Mr Lee against the bakery that refused to supply a cake with the message “support gay marriage” is inadmissible. In Lee v Ashers Baking Co the Supreme Court held that the refusal by the baking company located in Northern Ireland to bake a cake with the slogan ‘Support Gay Marriage’ was not an act of discrimination on the grounds of sexual orientation or political opinion.

In lodging his appeal, Mr Lee relied on his rights to respect for private and family life, freedom of thought, conscience and religion, freedom of expression and freedom from discrimination. He asked the ECHR to consider whether the Supreme Court’s dismissal of this claim was an interference of his Convention Rights.

The ECHR stated that Mr Lee had not asserted that his Convention rights should be balanced against the bakers when bringing his claim to the Supreme Court. As the Supreme Court did not have the opportunity to consider where the balance of rights lay, the ECHR commented that it was being asked to usurp the role of the Supreme Court. Mr Lee had not exhausted the domestic remedies available to him and therefore the ECHR refused his appeal on the basis it was inadmissible. This brings an end to a seven year battle.

X v Y – Fear of Covid-19 is not protected under UK discrimination laws

Ms X brought a claim to the Employment Tribunal under section 10 of the Equality Act 2010, asserting that her fear of catching covid-19 amounted to a protected belief.

Section 10 protects employees who are discriminated against because they hold a particular religion or belief. For a person to be protected under the legislation, they must demonstrate that their belief:

• Is genuinely held;
• Isn’t an opinion or viewpoint;
• Relates to a weighty and substantial aspect of human life and behaviour;
• Has a level of cogency, seriousness, cohesion, and importance; and
• Is worth of respect in a democratic society

Ms X had growing concerns about the increasing spread of covid-19 and decided not to return to her workplace on 31 July 2020. She was worried that she would contract the virus and pass it on to her highly vulnerable husband. Ms X claimed that her workplace posed a serious and imminent danger to her and others under section 100(1)(d) of the Employment Rights Act 1996.

Y withheld Ms X’s wages and she brought her claims to the Tribunal

Ms X’s claims were unsuccessful. The Tribunal accepted that Ms X genuinely believed that she might catch covid-19 and need to protect herself and others. The Tribunal found this belief to be cogent, serious, coherent and important. The Tribunal was also satisfied that it was worthy of respect in a democratic society. However, the Tribunal found her fear to be a ‘reaction to a threat of physical harm’ rather than a belief. In addition, Ms X’s concerns were about protecting herself and her husband and therefore was not wide enough to meet the human life and behaviour criteria.

Hope v British Medical Association – Employee who brought vexatious claims was fairly dismissed.

The EAT has upheld a decision that an employee who raised several claims which he refused to progress or withdraw was fairly dismissed.

Mr Hope was a senior policy advisor employed by the British Medical Association (‘BMA’). Within the space of a year he had raised seven grievances over the lack of an invite to attend meetings. Mr Hope refused to progress or withdraw his grievances. Mr Hope approached his line manager and asked to informally resolve his grievances; however, he was unable to do this given his complaints related to senior managers.

Mr Hope, having raised three grievances about this, was given a deadline to withdraw or raise the issues formally. In response, Mr Hope raised another grievance alleging an abuse of process. Following an unproductive meeting with a senior manager, Mr Hope was advised that his continuance to raise grievances could be treated as a disciplinary issue.

The BMA once again tried to resolve the issue by setting up a formal grievance hearing, which Mr Hope did not attend, and a decision was made in his absence. The decision maker established that his refusal to progress the formal grievance and his conduct in general, was frivolous, vexatious, disrespectful and insubordinate and his refusal to attend the meeting was an abuse of process. Ultimately, the grievance was dismissed, and the decision maker invoked the disciplinary procedure.

Mr Hope was dismissed for gross misconduct on the basis he had submitted a number of vexatious claims against his managers, failed to follow reasonable management instructions in relation to attending meetings and there was a fundamental breakdown of the working relationship.

Mr Hope claimed he was unfairly dismissed, but the Employment Tribunal held that his dismissal was fair, and this decision was subsequently upheld by the EAT.

Best v Embark on Raw Ltd – Boss harassed employee by continually asking if she was menopausal.

In this case, the Tribunal was tasked with deciding whether asking a female member of staff if she was menopausal was discrimination against on the grounds of her age and sex.

Ms Best was a 52-year-old sales assistant, selling pet food to the public. During the first lockdown in 2020, her relationship with her employers became strained as she felt that her colleagues were not taking the covid-19 measures seriously enough, which put hers and others health at risk. Ms Best brought her concerns to the attention of the owners on a number of occasions, and they consequently dismissed her because they thought her to be ‘obsessive, paranoid and irrational’.

Prior to the dismissal, one of the owners, Mr Fletcher, had directly asked Ms Best if she was menopausal, despite her not wanting to talk about it. On another occasion, Mr Fletcher read out a newspaper article about covid-19 which suggested that medical staff may need to ‘play god’ in prioritising younger people because they ‘are more likely to survive’.

Ms Best complained to Mr Fletcher’s wife about his behaviour (As she was a co-owner of the business). Mrs Fletcher was dismissive of Ms Best and gave her a verbal warning. Ms Best’s dismissal followed a couple of weeks after this.

When bringing her claims, Ms Best asserted that she had been unfairly dismissed and commented about the menopause violated her dignity ad created a humiliating environment at work. She also claimed that the comments about the ventilators amounted to harassment as her employers were insinuating she was not young or fit.

The tribunal held that the comments amount to harassment because of Ms Best’s age and sex. It also found that Mrs Fletcher victimised Ms Best after she had complained about Mr Fletcher and concluded that Mrs Fletcher did not want to entertain the idea that her husband might have behaved insensitively and inappropriately. Instead Mrs Fletcher chose to blame Ms Best calling her ‘paranoid, petty and obsessive’.

Legislation, Policy and other points of interest

Government brings forward ‘Brexit Freedoms’ Bill

On 31 January 2022, the Prime Minister’s Office announced that the new ‘Brexit Freedoms’ Bill will be brought forward by the Government. The Bill declares that it will ‘make it easier to amend or remove outdated “retained EU law” – legacy EU law kept on the statute book after Brexit as a bridging measure – and will accompany a major cross-government drive to reform, repeal and replace outdated EU law’. All EU retained laws are under view to assess if they are favourable to the UK.

Menopause in the Workplace: Government Commission report Published

In our October 2021 Review, we mentioned that the Government would be opening a commission into Menopause in the workplace.

The report was published at the end of 2021 and sets out a clear need to build support for menopausal women in the workplace.

The report also recommends that s.14 of the Equality Act 2010 is enacted. S.14 is the provision relating to the dual characteristic discrimination and if enacted, would have the effect of preventing direct discrimination though the combination of two protected characteristics.

It remains to be seen if the recommendations will be implemented.

Consultation on disability workforce reporting

The Disability Unit, which is part of the Cabinet Office, has opened a consultation on disability workforce reporting. The purpose of the reporting is to improve data and transparency on disabilities in the workplace. It is hoped that the data will give employers the tools to analyse the affect of inclusive practices relating to recruitment and retention of disabled people.

As part of the consultation, employers with 250 or more staff may put under a mandatory duty to report the percentage of their employees that identify as disabled. The Unit acknowledges there may be disadvantages to this approach in that employees may not offer information regarding the disability status.

The consultation is open until 25 March and seeks input from employees and employers on various issues.

Annual Increase in Compensation Limits

The Employment Rights (Increase of Limits) Order 2022 is coming into force on 6 April 2022. We set out old and new rates of awards affected by the Order which are of core relevance to our clients.

Statutory Sick Pay Rebate Scheme Closed

The Statutory Sick Pay Rebate Scheme closed on 17 March 2022, meaning that employers will no longer be able to claim the statutory sick pay (‘SSP’) payments made to employees for covid-19 related absences or self-isolation after this date.

Employers had until 24 March to submit or amend their claims for payments made before 17 March 2022.

From 17 March, the normal SSP rules apply. Employers should pay SSP from the fourth qualifying day the employee if off work regardless of the reason for their sickness absence.

EHRC suggests employers should treat long covid as a disability

The head of employment policy at the Equality and Human Rights Commission (EHRC) has suggested that organisations should treat employees suffering with long covid as though they have a disability for the purposes of the Equality Act 2010.

The advice has been issued to help employers from breaching equality law, in the absences of clear legislation. Long covid has the potential to affect employees performance at work, particularly as symptoms include cognitive difficulties and fatigue. However, as symptoms can fluctuate it is not clear if all instances of long covid will fall within the legal definition of disability.

Compulsory vaccination of health and social care staff to be revoked

On 31 January 2022, the Health and Social Care Secretary announced that regulations making vaccination mandatory for staff working in health and social care settings are set to be revoked, subject to public consultation and parliamentary approval.

There was widespread support from the public in dropping the policy, and it has been announced that the mandate will be dropped.