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1.11, 20.53 The updated Employment Tribunal Road Map 2022-23 continues the reform programme and the permanent place that video hearings will have in employment tribunals.
1.52, 22.6 From 1 April 2022 the Trade Union (levy payable to the Certification Officer) Regulations 2022 and the Trade Union (power of the Certification Officer to Impose Financial Penalties) Regulations 2022 bring in new powers to the Certification Officer, set out in Schedule A3 of the Trade Union and Labour Relations (Consolidation) Act 1992. These include a power to levy from a Trade Union a maximum of 2.5% of its income, to investigate a complaint by anyone, not just a union member, and to order financial penalties on unions for breaches.
1.67 At the time of writing (April 2023), The Retained Law (Revocation and Reform) Bill 2022 had completed the Report Stage of the House of Lords. The Bill proposes that all retained EU law, if not already in an Act of Parliament, will be repealed by 31 December 2023 unless it is specifically preserved by the government (known as the ‘sunset clause’). Any retained law by that date will then be called ‘assimilated law’.
If the Bill comes into force as it is, this could affect a large tranche of employment legislation that is in the form of Regulations rather than statute, such as Working Time, TUPE, Agency Workers, Part-Time Workers, Fixed Term Workers, etc, unless a positive decision is made to keep them.
It is not yet clear, however, if the government will extend this deadline, or make any further changes to the proposed legislation, given the huge amount of law that will have to be reviewed by the proposed date.
2.14 Although there was no reason in principle why a director/shareholder of a company could not also be an employee or worker (Secretary of State v Neufeld [2009] EWCA Civ 280 CA), it does not necessarily follow that simply because he does work for the company and receives money from it he must be one of the three categories of individual identified in s 230(3) (Rainford v Dorset Aquatics Limited EA-2020-000123-BA).
2.32 The IR35 ‘off payroll’ rules, which required a business to determine the tax status of the individual, will no longer be in place from April 2023. Instead, the onus will be on the contractor.
2.62 In another of the gig economy employment status line of case, in Stuart Delivery v Augustine [2021] EWCA Civ 1514 the Court of Appeal upheld a decision that, on the fact of this particular case, the claimant’s ability to release a slot to other couriers via the respondent’s app was not a sufficient right of substitution to remove the obligation on the Claimant to perform his work personally and so he was a worker.
Just because someone provides services via an app, however, does not necessarily mean that they will be found to be a worker or employee. On the facts of Johnson v Transopco UK Ltd [2022] EAT 6 they had contracted as two businesses and the app was found to be a client of the taxi driver. Although there was an obligation to perform services personally, there was no dependant work relationship between them.
2.69 Tax decisions are somewhat different to employment cases when it comes to employment status. In HMRC v Atholl House Productions Ltd [2022] EWCA Civ 501, which related to IR35 and a journalist at the BBC, it was confirmed that the Autoclenz approach of looking at the true nature of the employment contract only applies in case relating to statutory employment or worker rights. It does not apply in tax cases, and contractual terms should not be disregarded unless they are unrealistic. See also Kickabout Productions Ltd v HMRC [2022] EWCA Civ 502.
2.115 The Apprenticeships (Miscellaneous Provisions) (Amendment) (England) Regulations 2022 came into force on 6 April 2022 and amend The Apprenticeships (Miscellaneous Provisions) Regulations 2017. They set out the framework for a pilot programme of flexi-job apprenticeships in a specified list of sectors, allowing for a 3-month commitment at a time instead of 12 months, allowing for different blocks of apprenticeship adding up to 12 months in total to be taken.
2.160, 23.42 The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 came into force on 21 July 2022. These amend the Conduct of Employment Agencies and Employment Businesses Regulations 2003, which had prohibited an employment business (such as an agency) from supplying workers to cover for those taking official industrial action. The regulations are currently the subject of judicial review proceedings, with the TUC arguing that they violate Article 11 of the ECHR.
2.174 In Kocur v Angard Staffing Solutions Ltd and Royal Mail Group Ltd [2022] EWCA Civ 189 the Court of Appeal confirmed the EAT decision that the right in the Agency Workers’ Regulations is simply to be informed of vacancies in the hirer’s business, not to be considered for them on equal terms as directly recruited staff.
2.186 The Exclusivity Terms for Zero Hours Workers (Unenforceability and Redress) Regulations 2022 came into force on 5 December 2022. They extend the ban on exclusivity clauses to those workers whose average weekly earnings is below the lower earnings limit (£123 per week)
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4.34 In Ali v Heathrow Express and Redline Assured Security Ltd EA-2021-000353-JOJ the claimant worked for the Heathrow Express. For the purpose of security checks, the respondent carried out a test using a bag containing a box, some electric cabling and a piece of paper with the words ‘Allahu Akbar’ written in Arabic. The claimant, a Muslim, heard about this and complained that it amounted to harassment of him by reference to his religion.
The EAT upheld the ET’s decision that it was not, in all the circumstances, reasonable for him to perceive the conduct as having an effect falling within section 26(1)(b). He should have understood that, in using this phrase, the second respondent was not seeking to associate Islam with terrorism, but, in the context of recent incidents in which the phrase had been used by terrorists, had used it in order to produce a suspicious item based on possible threats to the airport.
4.36 The law against third party harassment has had a chequered history. Originally created by the courts in Burton v De Vere Hotels [1996] IRLR 596, where the comedian Bernard Manning had made harassing comments against two waitresses, the EAT held the employing hotel to be liable. This was later rejected by the House of Lords in Pearce v Governing Body of Mayfield School [2003] ICR 937. It was then brought back in the Equality Act, in an easier to prove form of ‘related to’ a protected characteristic (rather than the old ‘on grounds of’), only to be repealed in the Enterprise and Regulatory Reform Act 2013. Fast forward to the ‘Me Too’ era and 2023, and the Worker Protection (Amendment of Equality Act 2010) Bill proposes reinstating protection against third party sexual harassment together with a proactive duty on employers to take all reasonable steps to prevent sexual harassment, with a 25% uplift where the employer fails to do so. This is currently working its way through Parliament.
4.88 The EAT said that the symptoms of menopause in Rooney v Leicester City Council [EA-2020-000070-DA] were substantial impairments that could be long term and so could be a disability.
4.97 The ET has found that long Covid can be a disability on the facts of the case (but this is not binding) Burke v Turning Point Scotland Case No: 4112457/2021.
4.162 The case of Mackereth v The Department of Work and Pensions [2022] EAT 99 shows that while a belief may be a protected characteristic, the employer does not have to allow all manifestations of that belief, especially where there is a conflict with another protected characteristic.
Here, the claimant was a doctor and a Christian who refused to use the preferred pronouns of transgender service users. This conflicted with the respondents’ policies and the claimant left, claiming religious discrimination.
The EAT found that the ET had been entitled to draw a distinction between the claimant’s beliefs and the way he wished to manifest those beliefs. ET had not erred in finding the measures adopted by the respondents were necessary and proportionate to meet a legitimate focus on the needs of potentially vulnerable service users, and on the risks to those individuals and, in consequence, to the respondents.
4.236 The Vento bands for claims presented from 6 April 2023 are:
- Lower band of £1,100 to £11,200 (less serious cases)
- Middle band of £11,200 to £33,700 (cases that do not merit an award in the upper band)
- Upper band of £33,700 to £56,200 (the most serious cases), with the most exceptional cases capable of exceeding £56,200.
5.57 There was some discussion as to whether mandatory ethnicity pay gap reporting would be introduced, but it has now been decided that this will not take place, following a report by the Commission on Race and Ethnic Disparities. Employers can, however, report voluntarily.
The statutory payments for statutory maternity, paternity, etc pay from April 2023 rise to £172.48 and the lower earnings limit will be £123.
The Neonatal Care (Leave and Pay) Bill is currently going through Parliament. It proposes a day one right for employee who are parents of babies receiving neonatal care up to the age of 28 days and who have a continuous stay in hospital of 7 days or more. The leave must be taken within 16 months of the birth and will be for a minimum of a week. The maximum amount of leave is yet to be confirmed.
This right would be paid for those with 26 weeks’ service and who earn above the lower earnings limit.
Following on from the Coronavirus pandemic and the Taylor Review, there has been some movement in legislation furthering flexible working and family rights, with a number of Bills going through Parliament. These are not yet legislation, but show the way that things may be changing.
6.42, 18.62 Reg 10 of the Maternity and Parental Leave regulations provide that where a redundancy situation arises during maternity leave and it is not practicable to continue to employ the mother under the existing contract, she is entitled to be offered any suitable employment on terms and conditions that are not substantially less favourable. The Redundancy (Pregnancy and Family Leave) Bill proposes that this protection is extended to protect employees from redundancy during or after pregnancy or after periods of maternity, adoption or shared parental leave, giving an extended period of protection. It would amend the ERA 1996 to enable the Secretary of State to make regulations on this subject.
Further proposed legislation is as follows:
The Carer’s Leave Bill is intended to allow employees a day one right to one week’s unpaid leave a year to provide or arrange care for a dependant with a long-term care need.
The Employment Relations (Flexible Working) Bill, which proposes to
- Protect workers with less than the lower earnings limit from exclusivity clauses, so they would not be restricted from working for multiple employers
- If an employer cannot accommodate a request to work flexibly, they will be required to discuss alternative options before they can reject the request.
- Remove the 26-week qualifying period before employees can request flexible working, making it a day-one right
- Require employers to consult with their employees, as a means of exploring the available options, before rejecting a flexible working request
- Allow employees to make 2 flexible working requests in any 12-month period
- Require employers to respond to requests within 2 months, down from 3
- Remove the requirement for employees to set out how the effects of their flexible working request might be dealt with by their employer
Although the Government had said it would make the right to request flexible working a day one right, the bill does not cover this and the Government have indicated that this will be delivered through secondary legislation.
The Workers (Predictable Terms and Conditions) Bill is intended to combat ‘one-sided flexibility’, whereby workers on zero hours contracts are often on standby for work that never comes, and to give workers the right to request a predictable working pattern. The process mostly mirrors that of the right to request flexible working. The right would simply be one to make the request, and the employer to consider it reasonably and can reject the request for the same reasons as those for flexible working. If passed, the worker would be able to make two applications in one year.
Workers would have a right not to be subjected to a detriment for making the application, and any dismissal for this reason would be automatically unfair.
Another change that has taken place is the trial of the four-day week in a number of companies, paying 100% of pay for four days’ work. This has largely been a success, with almost all the companies taking part finding that there was no loss of productivity and a greater work/life balance. It is to be noted that the choice of a four-day week has become a legal choice for workers in Belgium.
7.42 Statutory Sick Pay from April 2023 will be 109.90.
7.87 Recent rulings, such as Uber v Aslam and Pimlico Plumbers v Smith, found that many of those in the gig economy are workers and so entitled to holiday pay, etc. The issue then arises: what happens when a worker has taken leave but not been paid for it, as the employer had not regarded them as a worker? In Smith v Pimlico Plumbers Ltd [2022] EWCA Civ 70, the latest in the long-running Pimlico Plumbers case saga, the respondent had disputed the appellant’s entitlement to paid leave, and did not pay him for it. Mr Smith nevertheless took unpaid leave for which he ought to have been paid. He took no steps to invoke the right to payment until after his contract was terminated by the respondent.
Referring to King v Sash Window Workshop (C-214/16), the Court of Appeal reiterated the principle that the right to paid annual leave cannot be lost unless the worker has had the opportunity to exercise that right before the termination of the employment relationship. They said that there is a clear analogy between workers who do not take leave, and those who take unpaid leave, where in both cases, their contracts do not recognise the right to paid leave and their employers refuse to remunerate leave. In both cases, like the worker who is prevented by illness from taking annual leave, they are prevented by reasons beyond their control from exercising the right. The worker who takes leave in these circumstances, knowing it is unpaid leave, will not derive the necessary rest and relaxation from it, because it is unpaid.
If a worker takes unpaid leave when the employer disputes the right and refuses to pay for the leave, the worker is not exercising the right in the legislation. A worker can only lose the right to take leave at the end of the leave year when the employer can meet the burden of showing it gave the worker the opportunity to take paid annual leave, encouraged them to take it and informed them that the right would be lost at the end of the leave year. If the employer cannot meet that burden, the right does not lapse but carries over and accumulates until termination of the contract, at which point the worker is entitled to a payment in respect of the untaken leave. In this case therefore Mr Smith was entitled to a payment in respect of the unpaid leave.
8.39 The rates for the national minimum wage and national living wage from 1 April 2023 are as follows:
(a) national living wage (workers aged 23 and over) £10.42 per hour;
(b) national minimum wage (workers aged 21 to 22) £10.18 per hour;
(c) national minimum wage (18–20-year-olds) £7.49 per hour;
(d) national minimum wage (16–17-year-olds) £5.28 per hour.
8.40 Apprentices under the age of 19, or over 19 in the first year of their apprenticeship, are entitled to a minimum wage of £5.28 per hour.
8.41 The rate for accommodation offset will increase to £63.70 per week (£9.10 per day). These figures are reviewed annually.
Employment (Allocation of Tips) Bill is working its way through parliament and is intended to ensure that employers pass on all tips to staff.
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10.83 Secure Care UK Ltd v Mott [2021] UKEAT 2019-000977 In a claim for automatically unfair dismissal after making a protected disclosure, the ET was found to have applied the wrong legal test. They had applied the ‘materially influences’ test applicable to section 47B claims for detriment by reason of making a protected disclosure (see Fecitt v NHS Manchester [2012] ICR 372), rather than the sole / principal reason test required by the terms of section 103A.
10.114 In Chell v Tarmac Cement And Lime Ltd [2022] EWCA Civ 7 the Court of Appeal upheld the decision that on the fact of this case, where the employee had been engaging in horseplay, there was no vicarious liability.
11.112 Following the case of R (Independent Workers’ Union of Great Britain) v Secretary of State for Work and Pensions and another [2020] EWHC 3050 (Admin), the Personal Protective Equipment at Work (Amendment) Regulations 2022 amend the Personal Protective Equipment at Work Regulations 1992 by extending the duty on employers to provide PPE to workers, not just to employees.
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For dismissals taking place from 6 April 2023, a week’s pay has increased to £643.
The maximum compensatory award has increased to £105,707.
17.162 The case of Rodgers v Leeds Laser Cutting Ltd was appealed to the EAT and then the Court of Appeal [2022] EWCA Civ 1659, which confirmed the ET’s decision. The ET had found on the facts of the case that the employee did not believe that there were circumstances of serious and imminent danger at his workplace and that any such a belief would not have been reasonable and so there was no automatically unfair dismissal.
The court further gave guidance on how to approach section 100 (1) (d):
(1) Did the employee believe that there were circumstances of serious and imminent danger at the workplace? If so:
(2) Was that belief reasonable? If so:
(3) Could they reasonably have averted that danger? If not:
(4) Did they leave, or propose to leave or refuse to return to, the workplace, or the relevant part, because of the (perceived) serious and imminent danger? If so:
(5) Was that the reason (or principal reason) for the dismissal?
Following the P&O Ferries decision to dismiss a large number of staff in 2021, a statutory code of practice on dismissal and re-engagement (aka ‘fire and rehire’) has been drafted and is, at the time of writing, being consulted upon.
18.42, 18.46 When consultation should occur is key. The principles in Williams v Compair Maxam and Polkey v Dayton, with appropriate adaptation, apply to all redundancy situations, not just those involving collective redundancies. The reason for consultation to take place at a formative stage is because that means that a consultation can be meaningful and genuine. That must mean that, for a process to be fair, consultation should occur at a stage when what an employee advances at that consultation can be considered and has the potential to affect the outcome. This particularly applied in this case, where there was a pool of one Mogane v Bradford Teaching Hospitals NHS Foundation Trust [2022] EAT 139
18.62, 6.42 Reg 10 of the Maternity and Parental Leave regulations provide that where a redundancy situation arises during maternity leave and it is not practicable to continue to employ the mother under the existing contract, she is entitled to be offered any suitable employment on terms and conditions that are not substantially less favourable.
The Redundancy (Pregnancy and Family Leave) Bill proposes that this protection is extended to protect employees from redundancy during or after pregnancy or after periods of maternity, adoption or shared parental leave. It would amend the ERA 1996 to enable the Secretary of State to make regulations on this subject. It is currently working its way through Parliament.
19.50 A twelve-month non-competition restrictive covenant was upheld by the High Court in Law by Design Limited v Ali [2022] EWHC 426 (QB).
20.12 A number of cases were decided by the EAT in 2022 relating to extension of time.
- In Wells Cathedral School Ltd v Souter EA- 2020-000801-JOJ time in a discrimination claim was extended as the claimant had waited to exhaust the grievance procedure. The mere fact that a grievance process has been initiated and pursued first, and/or may still be being pursued, is not automatically of itself enough. This does not mean that a claimant can secure a guaranteed extension of time merely by presenting a grievance and at least until the internal process has run its course. Whether or not it is just and equitable to extend time will depend on the tribunal’s weighing in the balance of all the factors that it regards as relevant in the given case.
- In MTN-1 Ltd v O’Daly [2022] EAT 130 , applying the Court of Appeal guidance in J v K [2019] EWCA Civ 5, time was extended in a case where the CEO of the Respondent suffered from mental health issues. The EAT said that these impairments ‘materially and substantially influenced and explain why this appeal was put in late’.
- The EAT found that the merits of a claim are not necessarily an irrelevant consideration when deciding whether it is just and equitable to extend time in a discrimination claim Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 132.
20.36 A potential victimisation claim was held to be within a widely drafted COT3 which covered any claim ‘arising directly or indirectly out of or in connection with the claimant’s employment with the respondent, its termination or otherwise’, and so the claimant was not permitted to pursue the claim Arvunescu v Quick Release (Automotive) Ltd [2022] EWCA Civ 1600.
20.53, 1.11 The updated Employment Tribunal Road Map 2022-23 continues the reform programme and the permanent place video hearings will have in employment tribunals.
21.50 In Mercer v Alternative Future Group Ltd [2022] EWCA Civ 379 the Court of Appeal found that 146 TULRCA, which protects workers against detriment related to taking part in the activities of an independent trade union, does not extend to taking part in industrial action, and therefore action short of dismissal would be legal where an employee had taken part in a strike. The court suggested that, depending on the facts of the case, the legislation may be in breach of Article 11, but that this was for Parliament to decide.
1.52, 22.6 From 1 April 2022 the Trade Union (levy payable to the Certification Officer) Regulations 2022 and the Trade Union (power of the Certification Officer to Impose Financial Penalties) Regulations 2022 bring in new powers to the Certification Officer, set out in Schedule A3 of the Trade Union and Labour Relations (Consolidation) Act 1992. These include a power to levy from a Trade Union a maximum of 2.5% of its income, to investigate a complaint by anyone, not just a union member, and to order financial penalties on unions for breaches.
23.42, 2.160 The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 came into force on 21 July 2022. These amend the Conduct of Employment Agencies and Employment Businesses Regulations 2003, which had prohibited an employment business (such as an agency) from supplying workers to cover for those taking official industrial action. The regulations are currently the subject of judicial review proceedings, with the TUC arguing that they violate Article 11 of the ECHR.
Further in relation to strike action, the Strikes (Minimum Service Levels) Bill is working its way through Parliament, and could affect those in areas such as the NHS, education, fire and rescue, border security, and nuclear decommissioning.
APPENDIX A
The annual increases are mostly set out in https://www.legislation.gov.uk/uksi/2023/318/schedule/made
More specific references such as maternity pay, national living wage, etc are found in the update to the relevant chapter.