Employment Law Case Overview 2022

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Employment Law Case Overview 2022

Key Contact: Claire Knowles

Author: Swyn Llyr

2022 has seen the Employment Tribunals desperately try to tackle the backlog of employment claims. With 2023 fast approaching, we take this opportunity to look back at a number of significant and noticeable case law judgments 2022.

  1. The valuable judgment from the case of Harpur Trust v Brazel was a reminder for employers that every worker is entitled to receive the same minimum entitlement of 5.6 weeks’ holiday leave per year, including, most importantly, workers who are on permanent part-year contracts. This entitlement should, therefore, not be pro-rated to accrue only during the parts of the year during which the worker actually worked. For workers without normal working hours, a week’s pay should be calculated as an average of the most recent 52 weeks of earnings in which the worker received remuneration, reaching back up to 104 calendar weeks. Employers are reminded to review their contracts to ensure that they are coherent with employment law requirements.
  • In 2022, several claims have focused on employers who have failed to respect the freedom and diversity of thought to the same extent as other protected characteristics. This has been most obvious in claims surrounding gender-critical views and transgenderism. The leading authority of Forstater v CGD Europe found that the belief that sex is binary and immutable could be a protected characteristic. Further cases this year have expanded on this area, including Higgs v Farmor’s School and Mackereth v DWP. In Mackereth, the Employment Appeal Tribunal found that a doctor’s gender-critical beliefs, which prohibited him from addressing transgender service users by their preferred pronouns, could be protected but that a policy of addressing such users by their presented gender could be objectively justifiable. In Higgs, the claimant published posts that could reasonably be considered homophobic or transphobic, meaning their dismissal could not be considered direct discrimination.
  • In Burke v Turning Point Scotland, the Employment Tribunal held that the Claimant who suffered from long Covid was disabled for the purposes of the Equality Act 2010. Despite this not being a ‘binding’ judgment, the Tribunal’s approach to protect the Claimant in this instance may give rise to further claims being brought by individuals who feel unfairly treated by their employer as a result of fluctuating and long-lasting symptoms of Covid. Whilst each case is fact-specific, employers should be cautious that employees suffering from long Covid may well be protected by employment law. Thus, reasonable adjustments should be considered such as flexible/remote working or allowing more frequent or longer breaks during the working day. Should you require assistance to minimise the risk of any prospective claims, do not hesitate to contact a member of our Employment team.

Alongside these judgments, we also saw a couple of significant legislative developments. The Exclusivity Terms for Zero Hours Workers (Unenforceability and Redress) Regulations 2022 came into force on 5 December 2022. This new regulation renders exclusivity terms in employment and workers’ contracts unenforceable where the workers do not exceed the lower earnings limit, which is currently set at £123 per week. This will allow workers to take up a second job to supplement their income in light of the ongoing cost of living crisis. New National Minimum/ Living Wages were also announced leading to large increases in April 2023. You can more about these increases Here.

With this in mind, the New Year is the perfect opportunity for employers to review their existing contracts, policies, and procedures and to arrange some compliance and management training. If you would like to discuss how to keep your business out of the Tribunal in 2023, please contact our Employment team.

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