In the case of Rodgers v Leeds Laser Cutting Ltd, the Court of Appeal has decided that an employee had not been automatically unfairly dismissed for refusing to come to work during the COVID-19 pandemic.  This is a notable decision as it is the first post-pandemic Court of Appeal claim considering s100(1)(d) of the Employment Rights Act (1996) (the “ERA”).  It is also a helpful decision for employers; finding that employees must reasonably believe that their actual workplace poses a serious or imminent danger for the special protections against dismissal in s100 to apply. Travel to and from work, and the risk of infection during a commute, will not be enough for an employee to show such danger.  

The facts of this claim are likely to be similar to those faced by many employers during lockdown and the pandemic.  The employer in the case was able to remain open during lockdown and had hired a third party to ensure that sufficient procedures were put in place to maintain safe working practices.  The Claimant was unable to work from home due to the nature of his role.  Despite the measures put in place at his workplace, the Claimant stated that he would not be attending work as he was concerned for the health of his vulnerable children.  Following a period of leave in accordance with NHS 111 guidance, the Respondent heard nothing further from the Claimant for a number of weeks and therefore dismissed him.

The Claimant, sought to argue that his dismissal was unfair under s100(1)(d) ERA, which states:

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—

(a)–(c) …

(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

By way of reminder, an employee does not need to have two years of service to bring this claim.

The claim was rejected by both the Employment Tribunal and the Employment Appeal Tribunal. Both courts found that while the pandemic could give rise to instances of serious and imminent danger, it did not in this case. Instead, the Claimant’s decision to stay away from his workplace related to his general fears regarding the pandemic and not to his concerns about the workplace itself.  The Claimant appealed to the Court of Appeal, which dismissed the claim.

The Court set out a five-stage test which Tribunals should adopt in cases where it is claimed that s100(1) ERA applies:

  • Did the employee believe that there were circumstances of serious and imminent danger at the workplace?
  • Was that belief reasonable?
  • Could they have reasonably averted that danger?
  • Did they leave, or propose to leave or refuse to return to the workplace because of the (perceived) serious and imminent danger?
  • Was that the reason (or the principal reason) for the dismissal?

The Court’s finding that the legislation is designed to cover dangers relating to use of equipment, the actual premises itself or systems in place at work rather than a more general risk of infection will be helpful to employers.  The findings in this case show a narrow application of s100(1) ERA, however, as ever, each application will depend on the facts of the case.  Here, the measures which the Respondent had put in place to allow safe working was looked on favourably by the Court and the Claimant’s own actions during the pandemic (refusing to wear a mask and working part time in a pub) did little to assist his argument.   

With 2022 now over, we look ahead to the key developments that look set to shape the UK employment legal landscape in 2023 and beyond.

New employment rights

Whilst the Government’s promised Employment Bill now looks unlikely to materialise, in 2022 the Government instead announced that it intended to support a raft of private members’ bills to implement the changes promised in the, now defunct, Employment Bill. 2023 therefore looks set to be a busy year on the legislative front, with a suite of six Government-backed private members’ bills currently making their way through Parliament and looking likely to enter the statute books during the course of 2023/2024. These include:

  1. Protection from Redundancy (Pregnancy and Family Leave) Bill 2022-23: once passed, this Bill will give the Secretary of State power to introduce regulations to extend the existing redundancy protections available to women on maternity leave, so that the same protections are also available to cover a woman’s pregnancy and for a six month period after returning to work. The same enhanced protections will also be available to those employees on adoption or shared parental leave.  You can track the progress of the bill here.
  1. Worker Protection (Amendment of Equality Act 2010) Bill 2022-23: once passed, this Bill will (i) place an obligation on employers to take reasonable steps to prevent employees from suffering harassment in the course of their employment from third parties (such as customers or clients); and (ii) create a new duty on employers to take all reasonable steps to prevent sexual harassment of employees in the course of their employment. If the latter duty is breached, an uplift of up to 25% of the compensation awarded in respect of the sexual harassment claim can be awarded.  You can track the progress of the bill here.
  1. Employment Relations (Flexible Working) Bill 2022-23: once passed, this Bill will enhance employees’ rights to request flexible working by (i) extending the number of flexible working requests an employee can make during a 12-month period from one to two; and (ii) require an employer to consult with an employee before refusing a flexible working request. You can track the progress of the bill here.
  1. Employment (Allocation of Tips) Bill 2022-23: once passed, this Bill will create a legal obligation on employers to allocate all qualifying tips, service charges and gratuities fairly between employees. Employers will also be required to implement a written policy setting out how it allocates qualifying tips amongst its employees and to keep, and share, if requested, records of any qualifying tips received and allocated between employees. However, the Bill will only apply to tips an employer receives or exercises control or significant influence over – the Bill will not catch tips paid directly to workers in cash. You can track the progress of the bill here.
  1. Neonatal Care (Leave and Pay) Bill 2022-23: once passed, this Bill will give parents of a child who is receiving, or has received, neonatal care a statutory entitlement to a minimum of one week’s neonatal care leave which can be taken up to 68 weeks from the child’s date of birth. This will be a day one right available to all employees irrespective of their length of service. The Bill will also provide employees with protection from dismissal or detriment due to having taken the leave. In addition, employees with at least 26 weeks’ service, will be entitled to be paid for the neonatal care leave at the prescribed rate. You can track the progress of the bill here.
  1. Carer’s Leave Bill 2022-23: once passed, this Bill will give the Secretary of State power to create new regulations setting out an employee’s right to carer’s leave. Eligible employees will be entitled to unpaid carer’s leave of at least one week within a 12-month period for caring for a dependent, such as a spouse, civil partner, child or parent, who has long-term care needs. Like neonatal care leave, the right to carer’s leave will be a day one right and will provide protection from dismissal or detriment as a result of taking the leave.  The Bill is expected to be passed in 2023, with the Regulations following in 2024. You can track the progress of the bill here.

Although the exact timetable for implementation of the Bills above is unknown, at the time of writing, each Bill is scheduled to begin its report stage by the end of February 2023. It is therefore anticipated that the Bills will likely receive Royal Assent in 2023, with any secondary legislation required to implement the provisions following in 2024.

‘Fire and re-hire’ practices

It is anticipated that a new statutory Code of Practice on the use of ‘fire and re-hire’ practices (which was originally announced in March 2022 in the wake of the mass redundancies at P&O Ferries) will be published in 2023. Although the exact timescale for its publication is currently unknown, Lord Callanan confirmed in a House of Lords debate in November 2022 that the new code would be published ‘in the near future’. Once in place, the new Code will require businesses to hold fair, transparent and meaningful consultations with employees with respect to proposed changes to their terms of employment. Courts and Employment Tribunals will also be required to have regard to the Code, and will be able to award an uplift of up to 25% in the event that an employer has unreasonably failed to follow the Code.

Consideration of fire and re-hire practices could also enter the courtroom again in 2023, after the Supreme Court, on 23 December 2022, granted permission for USDAW to challenge the Court of Appeal’s decision in USDAW v Tesco Stores Ltd, in which it over-turned a High Court injunction preventing Tesco from dismissing warehouse staff and then re-employing them on a lower rate of pay. The timing of the appeal is currently unknown.

Trade Unions

Following a turbulent year of strike action, in October 2022, the Government introduced new legislation in the form of the Transport Strikes (Minimum Service Levels) Bill 2022-23, which will continue to make its way through Parliament in 2023 (it is currently awaiting its second reading). If passed, the Bill will provide for minimum service levels for transport services affected by strike action by trade unions. You can track the progress of this bill here.

In the courtroom, the High Court has recently granted permission for the TUC (on behalf of 11 unions), Unison and NASUWT to launch a judicial review challenging the Conduct of Employment Agency and Employment Businesses (Amendment) Regulations. These Regulations came into force in July 2022 and allow employers to engage agency workers to cover for those employees who are taking part in industrial action. The Unions are challenging the Regulations on the basis that: (i) the Government failed to consult the unions prior to introducing the Regulations; and (ii) the regulations breach the fundamental trade union rights guaranteed under Article 11 of the European Convention on Human Rights. The hearing is expected to take place in March 2023.

Whatever the outcome of the hearing, with more strikes planned for 2023, the rights of workers during industrial action looks set to remain a key area of debate throughout 2023.

Retained EU Law

In 2022, the Government introduced to Parliament the Retained EU Law (Revocation and Reform Bill) 2022-23, which, under its sunset provision, provides that all EU-derived secondary and retained direct EU legislation will expire at the end of 2023 unless it is expressly retained. It also brings to an end the supremacy of EU Law paving the way for domestic Courts and Tribunals to depart from existing EU-derived domestic case law.

Little is known about which EU-derived laws the Government intends to retain, and there are significant concerns that a number of important employment-related protections, such as the Working Time Regulations 1998, the Agency Worker Regulations 2010, and the TUPE Regulations 2006, amongst others, could fall away at the end of the year unless expressly preserved by the Government. Only time will tell whether the Government intends to keep intact these key employment-related regulations, but one thing is for sure – this Bill remains one to watch in 2023. You can track the progress of the bill here.

In response to its ‘Making Flexible Working The Default’ Consultation (the “Consultation”) published on 5 December 2022, the government set out a raft of new measures designed to improve the existing framework for the right to request flexible working which it anticipates will extend the right to an additional 2.2 million people.

The current law

Under the existing statutory framework, all employees have the right to request flexible working provided they have 26 weeks’ continuous service, and only one request can be made in any 12 month period. Employers currently have three months in which to respond to a flexible working request and can refuse such a request for one of eight business reasons, for example if the flexible working arrangements requested would place an additional costs burden on the business or negatively affect its ability to meet customer demand.

New measures following the Consultation

Notable measures the government has committed to introduce include:

  1. the removal of the requirement for 26 weeks’ continuous service making the right to request flexible working a day one right;
  1. allowing employees to make two flexible working requests in any given 12-month period as opposed to one;
  1. reducing the time in which an employer has to respond to a flexible working request from three to two months;
  1. placing an obligation on an employer to consult with an employee to explore all alternative options before rejecting a flexible working request; and
  1. removing the requirement for employees to set out the business case for flexible working and making this a more collaborative process to be engaged in by both the employer and the employee.

Whilst the planned changes set out above are likely to be welcomed by business and individuals alike, given the broad support they received in the Consultation, interestingly, the government opted to retain the status quo with respect to the eight business reasons for refusing a flexible working request. This is perhaps surprising, given that 62% of respondents to the Consultation did not believe that the reasons for refusing flexible working remained valid. However, that figure masks a sharp divergence of opinion between the individual respondents and the business respondents. The individual respondents largely supported a reduction in the list of business reasons for refusing a flexible working request on the basis that the current list is too broad, making it too easy for employers to refuse flexible working requests. In contrast, the majority of business respondents felt that the reasons remained valid. Given the lack of consensus and the unclear picture this presents, the government has confirmed that it will retain the current list of business reasons for refusing a flexible working request.

It is also notable that the government emphasised in its response that this is a ‘right to request’ and not a ‘right to have’, which critics may argue does not go far enough to promote flexible working.  So, while the move to make this a day one right (to request) is significant, the retention of the various and broad grounds for an employer to refuse mean that it remains a right with limited teeth for employees.  Of course, where an employee has a protected characteristic ground for making the request (e.g. they are disabled or have child-care responsibilities), then refusal may constitute indirect discrimination (already a day one right) unless the employer can justify its refusal, and, to do that, they will need to go beyond simply identifying one of the eight statutory reasons under the flexible working regime.  

Timetable

The current timetable for implementing the measures set out above is currently unknown, although the majority of the proposals (save for the day one right) are likely to receive a statutory footing in the Employment Relations (Flexible Working) Bill, which is currently making its way through Parliament.  The day one right, however, will be introduced by secondary legislation ‘when Parliamentary time allows’, so it remains to be seen when what is arguably the most significant new measure will be implemented.

As the year draws to a close, this is a quick reminder about our new series of short podcasts focused on diversity, equity and inclusion (DEI): OPEN Talks.

Our recent interviews cover the equal pay settlement for the US women’s national soccer team, DEI at Mayer Brown and QBE’s approach to diversity, inclusion and wellbeing. The episodes can be found here and on all major podcast platforms. If you would like to be notified of future OPEN Talks episodes, alongside our existing UK employment law podcast series, please contact us here.

What helping hand could the French State, traditionally a Welfare state, give to employees with the lowest income and therefore those most affected by inflation?

Only a large-scale measure, both attractive to employees and employers, would have had a chance of achieving the dual objective of increasing the purchasing power of employees without jeopardising the economic balance of the company.

The legislator has therefore provided a new method for employees to buy back rest days (known as “RTT days” for “working time reduction days”) which should benefit, in view of the eligibility criteria adopted, the fringe of employees most exposed to the effects of inflation.

So what does this buy-back scheme consist of? Over what period is it planned to apply and what are the eligibility criteria?

The French government outlines all the conditions to benefit from this temporary measure in the link below:

Link: https://www.service-public.fr/particuliers/actualites/A15921?lang=en For further information on this temporary measure, please contact Julien Haure or Marine Hamon.

In the latest episode of OPEN Talks, our new series of short podcasts focused on diversity, equity and inclusion (DEI), Christopher Fisher, Head of the London Employment Group at Mayer Brown, interviews Nikki Lees, People Director, Inclusion & Wellbeing, at QBE. They discuss QBE’s strategy and approach to diversity, inclusion and wellbeing.  Listen to this episode here. If you would like to be notified of future OPEN Talks episodes, alongside the existing UK employment law podcast series, please contact us here.

Reversing his predecessor’s pledge, the new Chancellor of the Exchequer, Jeremy Hunt, announced in an emergency statement on 17 October 2022 that the off payroll rules will not be scrapped after all.  See Government news story here. Pending any further announcements, employers should therefore ignore the previous Chancellor’s announcement and continue to follow the off payroll rules which have been in place since April 2021.

In this episode of the Mayer Brown employment podcast, Chris Fisher looks at a recent case where an employer was unable to claim legal privilege over a grievance investigation report which they had sent to their lawyers for advice the day after it had been finalised, and before it had been sent to the employee.  Access the podcast here: https://www.mayerbrown.com/en/perspectives-events/podcasts/2022/10/claiming-legal-privilege-over-a-grievance-investigation-report

IR35 regime

Among possibly more eye-catching headlines, last week the Chancellor made a significant announcement in respect of the IR35 reforms by announcing that these will be repealed from 6 April 2023. Changes were made to the IR35 regime in April 2021, aimed at preventing tax avoidance through the use of intermediaries between clients and workers. Many have welcomed the decision as a positive step to re-introduce flexibility into the UK workforce, but others complain at the sudden U-turn and fear employers may now look to make redundant those self-employed individuals who were taken onto the payroll as employees when the reforms came in only 15 months ago.

From 6 April 2023

The Government Growth Plan 2022 has set out that, from 6 April 2023, workers providing their services via an intermediary will once again be responsible for determining their own employment status and paying the appropriate amount of tax and National Insurance contributions. The objective is to free up time and money for businesses that engage contractors that could be put towards other priorities. To enact the proposal, the next Finance Bill will need to be drafted, which has not been published yet.

Prior to 6 April 2023

IR35 rules will continue to apply to any large and medium sized businesses that engage contractors through an intermediary (such as by a personal service company). Under the current rules, the onus is on the business receiving the service to carry out a multi-factorial assessment as to whether or not the contractor would be considered an employee of the business if they were hired directly.

The HMRC “Check Employment Status Tool” (CEST) may be considered of use in any assessment as a starting point, however, the use of this tool is not legally required, and if results are conflicting, then other avenues may be preferred. Notwithstanding this, if a large business does use the CEST tool to determine the status of its contractors and it gives an “inside IR35” result, that business may need to think twice before it ignores that assessment.  If the tax saving is significant enough, then the business will need to notify HMRC that it is going against the CEST assessment, as a result of the Uncertain Tax Treatment (UTT) rules, introduced on 1 April 2022.

With menopause receiving much attention, both in the media and Government at the moment,  the cross-party House of Commons Women and Equalities committee has published a report which calls on the Government to take various actions in relation to menopause in the workplace.

The report considers the cost to women, employers, society and the economy of not addressing the challenges that employees experiencing menopause face, citing that women over the age of 50 are the fastest growing group in the workforce, with 4.5 million women aged 50 to 64 currently in employment. Women in this age group are often at the peak of their careers, being highly skilled and experienced, and act as role models to younger employees. However, of women that report at least one problematic menopausal symptom at the age of 50, 43% were more likely to have left their job by the age of 55, with 23% more likely to have reduced working hours.

The report refers to several approaches organisations can take to best support menopausal women in the workplace:

1. Openness, awareness and training: menopause in the workplace should be talked about more openly as a first step, in addition to referring to menopause in on-boarding and induction processes. This will make it clear that it is a health issue the organisation wishes to help with. Other suggestions include creating a library of books on menopause, appointing workplace menopause champions and running training sessions on the impact of menopause.

2. Menopause policies and guidance: having specific workplace policies which address how employees can be supported through menopause can assist both employees and their managers.

3. Sickness policies: where several short-term absences can trigger performance reviews or disciplinary action, it can be especially challenging for menopausal women. To address this, organisations could record menopause-related sickness absences as an ongoing issue, rather than as individual and discrete absences.

4. Flexible working: flexible working was cited repeatedly as a method for assisting menopausal women, both in terms of location of work and hours.

The report further calls on the Government to appoint a Menopause Ambassador, to champion good practice in the workplace and to work with businesses to encourage awareness and disseminate guidance to employers. Further, the report requests that the Government allows dual discrimination claims based on more than one protected characteristic under the Equality Act, for instance age and sex, and for the Government to consult on making menopause a protected characteristic in its own right. The Government is yet to respond to the report, although, as discussed in our previous blog post, it has previously announced that there is no intention to introduce the menopause as a new protected characteristic.