A Recap Of 2021 & Things To Watch Out For In 2022
Key Contact: Claire Knowles
Author: Katie Shanahan
Following the above webinar hosted by Katie Shanahan on 16 March 2022, we have provided a quick overview of the topics and some of the important case law covered, with a particular focus on the things that we should look out for as a result of the outcomes. If you would like to view the full webinar, you can do so using the following link: https://acuitylaw.com/employment-law-webinar-a-recap-of-2021-things-to-watch-out-for-in-2022/
A recap on case law:
Mrs Alice Thompson v Scancrown Ltd t/a Manors
In this case, the employer refused the employee’s flexible working request to work four days per week and finish an hour earlier so that she could collect her daughter from nursery. The employee subsequently brought claims in the Employment Tribunal, including one for indirect sex discrimination. The Tribunal found that not letting her finish before 6pm would place her at a disadvantage as this is typically the time that a nursery closes.
As a result of the pandemic, employers are receiving many more flexible working requests and several successful claims of indirect discrimination for refusing such requests have achieved recent media notoriety, particularly in relation to childcare. The potential compensatory award for discrimination is uncapped and can be very high, especially for high earners. Employers should therefore think very carefully before refusing a request and should ensure a fair and reasonable process is followed when considering the request and any possible alternatives. Legal advice is recommended when considering refusals, particularly where the relevance of protected characteristics could result in claims for discrimination.
Ms M Rooney v Leicester City Council
In this case, an employee brought a claim against her employer for disability discrimination as a result of her employer’s treatment of her in relation to her experiencing severe menopausal symptoms. The Employment Appeal Tribunal held that she was ‘disabled’ for the purposes of the Equality Act 2010 because her symptoms had a substantial adverse effect on her ability to carry out normal day to day activities. This case serves as a timely reminder of the difficulties that can arise for menopausal women in the workplace and highlights the duties of employers. Employers should take concrete steps in order to recognise menopause in the workplace, empathise with staff who are suffering and give women a safe space to speak out. Steps can include educating line managers, introducing training on menopause, menopause policies, etc.
Dobbie v Felton (t/a Felton Solicitors)
A solicitor at a law firm contended that he made three protected disclosures to the effect that a major client had been overcharged and was subsequently dismissed which he claimed was due to the disclosures he had made. On appeal, the Tribunal noted there is a general public interest of solicitors to ensure the client does not get overcharged and to comply with regulatory requirements even though on this occasion only one client could be affected. This case highlights that the public interest threshold is not a high one and what could appear to be a private matter affecting one person might actually be interpreted otherwise. Employers should seek legal advice if they find themselves in a situation where they think someone has made a disclosure.
McTear Contracts Ltd v Bennett & others; Mitie Property Services UK Ltd v Bennett & others
In this case, on appeal, the Tribunal had to decide whether, following a TUPE transfer, employment contracts could be split meaning employees could hold two or more contracts with two different employers at the same time. It was held that there is no reason in principle why an employee cannot work for more than one company following a service provision change so long as the work is separate and identifiable, here it was separate due to the geographical location.
This case represents a significant shift in the TUPE landscape. Therefore, if it is the case that contracts may need to be split, employers will need to consider this carefully as it is likely to create issues that need to be worked through between the parties. This case has now returned to the Tribunal, who will consider the effect of the transfer on each employee. In the meantime, employers entering into service contracts or those which are coming to an end will need to look at the indemnities closely and see what the liabilities are.
Kostal UK Ltd v Dunkley & Ors
This case concerns legislation designed to penalise employers who seek to change their employees’ terms and conditions outside of an agreed collective bargaining process by making offers to employees directly and bypassing the relevant trade union.
The Supreme Court held that an employer who makes an offer directly to its employees before the relevant collective bargaining process has been exhausted will be in breach of the Trade Union and Labour Relations Act of 1992. The Supreme Court also provided guidance on conducting the collective bargaining and understanding when it becomes exhausted, emphasising the importance of clearly documenting agreements and procedural decisions.
Following the UK Government’s announcement of its “Living with COVID-19” plan and the recent announcement from the Welsh Government to change its testing regime from 28 March 2022, employers are grappling with a wide range of practical and policy questions as they consider amendments to their workplace arrangements in light of the changing rules and guidance. We have set out some guidance which applies as at the date of this article below (however, if you have any further queries, we would advise you to contact a member of the Employment Team).
In summary, you will need to continue to pay employees who are off sick with diagnosed Covid-19 – this is because the employee is unwell so would be entitled to the employer’s usual sick leave and sick pay provisions under their contract, including Statutory Sick Pay (SSP).
From 24 March 2022, the current SSP rules in relation to COVID-19 will end and pre-pandemic rules will apply. The right to claim SSP from the first day of absence because the worker is sick or self-isolating due to COVID-19 will also come to an end. This means that those who are unwell with COVID-19 will only be paid SSP from the fourth day of their absence.
Separately, where an employee has to self-isolate because they return to the UK from abroad and cannot work from home, they are not sick so there will be no obligation to pay them unless this is an entitlement covered by their contract of employment.
Despite the recent guidelines scrapping the legal requirement to self-isolate, record numbers of employers are planning a permanent shift to hybrid working. After being forced to move to remote working through necessity during the pandemic, many organisations have seen the benefits of a more flexible approach, which can include more committed staff, a happier workforce, better retention rates and increased productivity. However, this does have legal implications for employers, particularly in relation to their duty of care towards their workforce, as this still applies where staff work from home.
Employers should also consider whether changes to the employment contracts of staff need to be made, depending on the type of hybrid working model adopted, if any. Remote or hybrid working can be agreed on a temporary, informal basis. This means that there is no legal obligation for the employer to change an employment contract. However, employers taking this approach should be aware that, over time, this working arrangement could become an implied term of the employment contract and make it difficult for the employer to enforce a fulltime move away back to the office in the future.
Communication between employer and its staff seems to be key here, including an explanation of why it might be beneficial for the employer to come into the office, if necessary, with the aim of an agreement being reached between the parties. If an agreement cannot be reached, the express terms in the contract will be crucial.
Upcoming legislation / guidance
We also discussed the following upcoming legislation and guidance we expect (and in many cases, hope) to see this year:
- Fire and rehire: in November 2021 – Acas published advice for employers on fire and rehire which is thought to be able to help employers maintain good employment relations and reach agreement with staff if they are thinking about making changes to their contracts. The guidance concluded that “fire and rehire” is an extreme step with difficult legal risks and that employers should explore all other options first in order to reach agreement with staff underlining the importance of engaging and consulting.
- Employment Bill: the Government first proposed an Employment Bill in 2019. However, it has not yet progressed and this may occur in 2022. The Bill is expected to bring with it many sought after provisions, including providing unpaid leave for carers and making it illegal for employers to withhold tips from workers.
- Flexible working: late last year the government published a consultation paper around flexible working and broadening the scope of employees’ rights. As part of this, It is thought that Flexible working to be made a day-one right, meaning employees will be given the right to request flexible working from the first day of their employment. The consultation also looks at cutting the current 3-month period an employer has to consider any request and creating a right of employees to be able to make a request more than once a year.
- Employment Rights (Increase of limits) Order 2022: from 6 April 2022, this will introduce new limits and caps to apply in the EP for compensation, weekly pay for redundancy and other rates.
- National Minimum Wage: from 1 April 2022, there will be increased rates of national minimum wage and national living wage.
If you have any further queries or would like further advice on the above, please feel free to contact a member of the Employment Team.