Top five cases of 2021

It has been another busy year for employers and HR professionals. Employers have been dealing with and responding to constantly evolving COVID related rules and guidance affecting the workplace. This year, these have included issues surrounding the ending of the furlough scheme, workplace testing, the return to work and hybrid working, changes in rules relating to self-isolation, and the impact of the vaccine rollout on the workforce.

Meanwhile, Claims dealing with employment issues arising out of the pandemic, including COVID concerns, mask wearing and the furlough scheme have made their way through the Employment Tribunal system.

As the year draws to an end, we we pick our top five important employment law cases from 2021 and the practical guidance that employers should take from them.

Number five – the risks of “stale” equality awareness training

A judgment of the Employment Appeal Tribunal (EAT) this year served as a reminder to employers of the risks of allowing equality awareness training to turn “stale”. An employer can be vicariously liable for discrimination or harassment committed by an employee in the course of employment. However, there is a defence available to an employer if it can show that it took all reasonable steps to prevent the employee from doing the discriminatory act.

The EAT confirmed that where equality awareness training had been given, but was no longer effective, a reasonable step for the employer to take would have been to arrange refresher training. In similar circumstances, an employer that does not do so may not be able to succeed in a reasonable steps defence. Employers should be alert to factors that may indicate that any training that has been given has gone “stale”, including managers becoming aware that employees are engaging in harassment or are not reporting harassment to managers. Putting policies and training in place is an important step, but keeping them under review, monitoring and updating as necessary, is key.

Number four – self-employed or worker?

The long running saga of whether Uber drivers are workers reached the Supreme Court this year. The Court considered the nature of Uber’s working model and upheld the decision of the Employment Tribunal that an Uber driver is a worker when they were logged on to the app, within the territory in which they are authorised to work; and able and willing to accept assignments. The Court noted that the Employment Tribunal’s conclusion that the drivers were workers was, based on the facts, “the only conclusion which the tribunal could reasonably have reached”.

In another case, the Court of Appeal found that a courier was a worker, despite having a right of substitution. The Court found that in reality, based on the facts of the case, the right of substitution was not sufficient to remove from him the obligation to perform his work personally.

The judgments demonstrate that in each case, whether an individual is an employee, worker, or self-employed is an issue to be determined by a Tribunal based on analysis of the reality of the arrangement between the parties, as well as any contractual documentation. The significance of the cases is the impact that an individual’s status has on their rights. Workers are entitled to employment law rights that are not available to self-employed individuals, including paid annual leave, protection against unlawful deductions from wages, and the right to the National Minimum Wage.

Number three – menopausal symptoms can be a disability

The Employment Appeal Tribunal (EAT) has clarified that a woman’s menopausal symptoms could in some circumstances amount to a disability under the Equality Act 2010. On the facts of the particular case, the EAT found that an Employment Tribunal was wrong when it found that Ms R’s menopausal symptoms did not amount to a disability.

Whether an individual has a disability under the Equality Act will require “a careful factual analysis”. However, employers should be alert to the fact that the symptoms of the menopause can, depending on the circumstances, have a significant effect on a woman’s day to day activities and their ability to perform their work as usual. In some circumstances, this could potentially amount to a disability.

Issues surrounding the effects of menopause at work have increasingly come into the spotlight this year. ACAS has issued guidance on managing the effects of menopause at work and earlier this year, the Women and Equalities Committee launched an inquiry into workplace practices around the menopause.

Number two – a “gender critical” belief is protected under the Equality Act

The Employment Appeal Tribunal (EAT) has clarified that a “gender critical” belief is a philosophical belief and as such is protected under the Equality Act 2010.

Ms F argued that her belief that “biological sex is real, important, immutable and not to be conflated with gender identity” amounts to a philosophical belief under the Equality Act. The EAT agreed. It noted as relevant that Ms F’s belief is widely shared by many others; and that the belief that sex is immutable and binary is consistent with the law.

The Equality and Human Rights Commission (EHRC) had earlier intervened in the case, urging the EAT to view a “gender critical” belief that sex is biological and cannot be changed as a philosophical belief protected by the Equality Act.

It is now clear that protection from discrimination and harassment under the Equality Act will apply to employees holding “gender critical beliefs”, as holding such a belief is a protected characteristic. Whether or not conduct in a particular situation amounts to harassment or discrimination under the Equality Act will be for a tribunal to determine. Each case will need to be determined on its specific facts. Ms F’s case has been sent back to a fresh Employment Tribunal to decide whether she was discriminated against because of her belief.

Number one – bypassing collective bargaining?

The Supreme Court found that offers made by an employer directly to employees who are trade union members were an unlawful inducement to forgo collective bargaining rights. The Court found that the offers, including an increase in basic pay and a Christmas bonus, “dishonoured” the collective agreement that was in place because they were made before the collective bargaining procedure had been exhausted.

The judgment makes clear that employers may not break an impasse in negotiations by making direct offers to the workforce unless the collective bargaining process has been exhausted. The SC noted that there is nothing to prevent an employer from making a direct offer where the process has been followed and exhausted. However, whether a collective bargaining process has been exhausted will depend on the facts of each case. With potential mandatory awards for each offer of (currently) £4,341, employers should consider their position carefully before making offers directly to employees.

Proposals that did not make it this year

Making flexible working the default? The Government committed to consult on proposals to make “flexible working the default” unless employers have good reason not to. However, consultation published earlier this year on proposals to reform the Flexible Working Regulations makes clear that the Government considers it would not be achievable to introduce a “right to have” flexible working, removing the ability of an employer to turn down a request, in place of a “right to request”. The proposals do not go as far as making flexible working the default, but rather seek to broaden the scope of the right.

An end to Fire and Rehire? There has been debate this year surrounding the right of employers to dismiss and re-engage employees when seeking to make changes to contracts of employment, with calls from Unions for the practice to be banned. The Government has confirmed that it does not intend to legislate to prevent the practice, and instead tasked ACAS with providing guidance aimed at helping employers to avoid the use of fire and rehire.

23 December 2021

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