The 10 most important employment law cases of 2021: part one

In the first of a two-part series, Jo Moseley examines five important tribunal cases from last year that HR professionals and business leaders should be aware of

Employment status: purpose of legislation 

In Aslam v Uber, the Supreme Court decided Uber drivers were workers (and entitled to minimum pay rates and statutory holiday) because they were in a position of subordination and dependence to the company. 

It rejected the complicated contractual documentation Uber had put in place to make it appear as though the drivers were self-employed and said tribunals must examine the actual relationship between the parties, rather than the way that relationship is presented in the contract/s. Tribunals must start by looking at the wording of the law, consider what harm it was introduced to prevent, and then apply that knowledge to the facts of the case.  

Why this matters

This decision isn't limited to the gig economy. If you engage 'independent contractors' who are, in reality, workers or employees you won't be able to hide behind cleverly worded contracts to avoid a tribunal making an adverse decision against you. The tribunal will examine the nature of your relationship with the worker and will ignore anything in the agreed contractual terms that is inconsistent with those findings.  

National minimum wage: payment for sleep-in shifts

In Mencap v Tomlinson-Blake and Shannon v Rampersad (t/a Clifton House Residential Home) the Supreme Court decided that workers who have to sleep at or near their place of work to respond to emergencies, etc. aren't entitled to be paid NMW rates when they are asleep. But, they must receive NMW when they are awake for the purposes of working, such as responding to an emergency call. 

Why this matters

Although this decision mainly impacts the care sector, it could also apply to night watchmen and emergency call handlers.

If you engage someone whose job it is to sleep and you provide facilities to enable them to do this, you only have to pay them the relevant NMW rates if they have to perform work during their shifts, but not if they can't sleep for other reasons (such as noise, etc.). You can agree a different rate of pay with them for any time they aren't working.   

Flexible working policies: indirect discrimination and the childcare disparity

In Dobson v North Cumbria Integrated Care NHS Foundation Trust, the EAT made it clear that tribunals must accept, as fact, that women still bear the primary burden of childcare responsibilities and this makes it difficult for them to work certain hours.  

Why this matters

It’s now easier for women to establish group disadvantage for the purposes of an indirect sex discrimination claim. For example, women are more likely to find it difficult to work certain hours or changeable hours (where the changes are dictated by the employer) than men because of childcare responsibilities. 

This decision means women will not have to provide their own supporting evidence when pursuing claims of indirect sex discrimination in circumstances where factors relating to childcare put them at a disadvantage.

But that doesn't mean a tribunal will find that a particular policy does, in fact, discriminate against women. For example, if a requirement to work flexibly requires working any period of eight hours within a fixed window, or involves some other arrangement that might not necessarily be more difficult for those with childcare responsibilities, then it would be open to a tribunal to conclude that group disadvantage is not made out.

Covid-19: can employees refuse to return to work if they believe their workplace puts them in danger?

Last year we saw a steady flow of Covid-related claims. These included several where employees argued they could not return to work because their workplaces posed a danger to them and/or to vulnerable people they associated with. 

Under ss 44 and 100 of the Employment Rights Act 1996, employees are protected from being subjected to a detriment (such as suspension or pay deductions) or being dismissed for exercising their right to leave their workplace. To be protected, the employee must have a 'reasonable belief' that their workplace poses a serious and imminent threat to them, or to others. 

In Rodgers v Leeds Laser Cutting Limited, the tribunal held that Mr Rodgers didn't have a reasonable belief that his workplace put him (and his vulnerable children) in serious and imminent danger. He was able to socially distance himself from his colleagues and he'd driven a friend to hospital which punctured a hole in his claim that he hadn't left the house in several weeks because he was worried about catching the virus. 

Similarly, the claimant in Accattatis v Fortuna Group (London) Limited failed to persuade a tribunal that his concerns about the safety of his workplace rendered his dismissal automatically unfair. The tribunal accepted that there were circumstances of danger which the employee reasonably believed to be serious and imminent, but the employee not been willing to explore how he could safely continue to work and instead had become fixated on being furloughed (which wasn't appropriate as he was a key worker) or working from home (which wasn't feasible).  

However, the tribunal in Gibson v Lothian Leisure accepted that an employee concerns about the safety of his workplace rendered his subsequent dismissal automatically unfair. The employee's father was clinically extremely vulnerable and he refused to return to work during the first lockdown because his employer hadn't taken any steps to make the confined space he worked in with others Covid-secure. The employee had a reasonable belief that his workplace posed a serious and imminent risk to him and to his father.

In Preen v Coolink v Mullins, the tribunal held that the employee didn't reasonably believe that either he or others were in serious and imminent circumstances of danger of contracting Covid at work. But he did win his claim for automatic unfair dismissal because he had raised concerns about continuing to work during the first lockdown which he reasonably believed were harmful or potentially harmful to health and safety. This is an easier hurdle to clear but is only available to employees if their employer doesn't have any health and safety representatives in post.  

Why this matters

Now we have a vaccination programme which appears to provide high levels of protection against people becoming seriously ill if they contract Covid-19, it may be more difficult for employees to argue that their reasons for wanting to remain at home, or in lower risk jobs is a reasonable response based on the actual danger they face – particularly if they have chosen not to be vaccinated. 

That said, people who are vulnerable, or who live with people who are, may still try and argue that they are protected from being dismissed because their workplace poses a serious and imminent danger to their health. The strength of those arguments is likely to depend on the nature of their workplace. 

Discrimination: reasonable steps defence available to employers

An employer can avoid liability for harassment or discrimination carried out by its employees if it can show it took all reasonable steps to prevent it from taking place.  

In Alley UK Ltd v Gehlan, the EAT made it clear that employers can only rely on the statutory defence if they've provided regular, substantial training on discrimination issues. They may also have to repeat training if prior training was ineffective or has been forgotten. 

Why this matters

You'll only be able to avoid liability if you can identify what steps you actually took to prevent discrimination in your workplace, establish that these were 'reasonable' and demonstrate that there weren't any other reasonable steps you could have taken to prevent it.  

It's not enough to have a policy on diversity and equality. Your staff must understand why you have a policy, who it protects, what staff can and can't do, how to complain if they are being harassed or bullied by other members of staff and how you will deal with any complaints. You should also include mechanisms to test that delegates have properly understood what they have learned.

Even if the training you delivered met these objectives, it can become stale over time and you should provide regular refreshers.

Jo Moseley is an employment law solicitor at Irwin Mitchell