We take a look at some of the key developments from 2021 and what employers should expect in the year ahead.
In 2022 we are likely to see a focus on the future of work and the workplace. With COVID restrictions all but over there is bound to be a focus on bringing staff back to the office.
We look at:
- Flexible working & returning to the office
- Worker status and holiday pay
2021 saw the first cases involving COVID-19 being heard in tribunals. Some key points emerged. The decisions of the tribunals have all been first instance decisions and are not binding on other tribunals.
Meynell v Stephenson
The breach of COVID-19 guidelines (not laws) by an employee may not be sufficient grounds for dismissal. A carer dismissed for going to the pub on 20 March 2020 was found to have been unfairly dismissed as “it was perfectly lawful to visit a public house. At its highest, people were being encouraged not to congregate in such establishments”. The ‘breach’ was therefore only a breach of suggested guidelines and not sufficient grounds for dismissal.
Montanaro v Lansafare Ltd, Accattis v Fortuna Group and Rodgers v Leeds Laster Cutting Ltd
The above cases all concerned workers being dismissed for their failure to attend the workplace.
In Montanaro an employee who was on annual leave in Italy when lockdown was announced and remained there was found to be unfairly dismissed. The Tribunal decided the threat of COVID was a serious and imminent danger to the employee and they were therefore taking steps to protect themselves.
Accattatis involved a request from an employee (who worked in a warehouse of a company providing PPE) to be furloughed or to be allowed to work from home given his concerns on commuting and attending the workplace. The employer offered annual leave instead. The Tribunal found that the employee could not do his job from home and that he could not simply refuse to attend the workplace due to the pandemic.
In Rodgers the ET observed that evidence is required that the employer is failing to take proper precautions or that the employee is in particular danger before that employee can be justified in refusing to attend work.
Kubilius v Kent Food
Employees have a duty to obey reasonable and lawful instructions by their employer – including instructions around PPE and COVID-19 safety measures. This case supports an employer’s right to enforce its own health and safety rules (even if these rules go beyond government guidance).
As of 19 January 2022 government work from home guidance came to an end. In fact, all government enforced UK COVID restrictions came to an end on 27 January 2022. It is expected that The Employment Bill (promised in the December 2019 Queen’s Speech) will be published in 2022. The government consultation period on the Bill closed in December 2021 and it is expected to include reforms to reflect the ‘new normal’ and working arrangements.
It is expected that the changes could include a right to request flexible working from day one of employment. Currently the right to request flexible working is not available until 26 weeks continuous employment. It has been proposed that employers should be required to state in job adverts whether the job is open to flexible working.
Returning to the office
Many employers are keen encourage employees back into the workplace, where it is safe to do so. Some employees have now become accustomed to working from home for almost two years, which means employers could face considerable resistance from anxious employees who are reluctant to return back to the work place. This will be particularly relevant for employees who are deemed clinically extremely vulnerable.
For an in depth look at what you can do to get your employees back to the office, click here.
Worker Status in the wake of Uber BV v Aslam
A major development for operators within the gig economy is the ruling in the Uber case that Uber drivers are workers entitled to at least the national minimum wage, holiday pay, pensions and other employment law rights. Employers and businesses that engage temporary staff may need to re-think their business models.
The recent Supreme Court decision in Uber BV v Aslam and ors upheld the decision that the drivers did have ‘worker’ status and were dependant contractors within the statutory definition and not independent contractors.
Significant factors included:
- The drivers could not negotiate terms on which they provided their services to passengers and fees were set by Uber;
- Drivers had to accept 80% of jobs and could not cancel them;
- Drivers were not allowed to give passengers their contact details;
- Uber controlled processes and procedures regulating how jobs were completed.
Uber was not a client or customer of businesses run by the individual drivers. Instead, the driver were ‘workers’ in Uber’s business under UK legislation and were entitled to all rights afforded to workers.
Pimlico Plumbers insisted that Mr Smith was an independent contractor and not entitled to holiday pay. The Supreme Court found that Mr Smith was a worker, meaning he was entitled, in principle, to holiday pay and was able to take his claim to the employment tribunal.
This decision increases the financial consequences for employers where an individual who was treated as self-employed successfully challenges their employment status upon termination. Workers and employees in the UK are entitled to 5.6 weeks paid holiday under the Working Time Regulations 1998.
In cases where a worker’s right to paid leave is disputed or denied, the Court held that the worker’s right to paid leave is only lost at the end of the leave year if the employer can show that they gave the worker the opportunity to take paid leave, encouraged them to do so, and informed the worker that the right would be lost at the end of the leave year.
As a result, Mr Smith’s leave entitlement carried over into successive years and accumulated until his employment ended, at which point the right crystallised. Based on his customary income while working, he was entitled to payment for any accrued but unpaid annual leave at the time of termination.
If you engage with self-employed contractors who might be able to show that they are in fact ‘workers’, be mindful that they may file claims for holiday pay when their contracts are terminated.
I know that when the noise dies down there is a solution to be found. I set about that task as quickly as possible.