Employment Essentials March 2022: Employment law top 10 recent developments

23 minute read
02 March 2022

2022 sees our Employment Essentials series reverting to the pre-pandemic monthly, rather than quarterly, format in which we bring you the latest top picks of employment law developments that may affect your business.

This month we look at:

COVID-19 update

  1. Living with COVID-19 timeline

Legislative developments

  1. Right to work checks
  2. Self-isolation
  3. Statutory Sick Pay
  4. Vaccination as a Condition of Deployment
  5. Pilot study into four-day working week

Case law updates

  1. Agency workers: the right to be notified about job vacancies does not extend to parity in the right to apply for vacancies
  2. Unfair dismissal: dismissal for raising numerous frivolous grievances found to be fair
  3. Recent strengthening of the unions' hands: Restraining 'fire and re-hire'
  4. Holiday pay: holiday taken but unpaid can be carried forward for holiday pay claim


COVID-19 update

1. Living with COVID-19 timeline

On 21 February 2022, the Government published 'COVID-19 Response: Living with COVID-19', setting out its plan to remove the remaining coronavirus (COVID-19) domestic legal restrictions in England. Regarding the employment-related changes:

From 24 February 2022

  • End of the legal requirement to self-isolate following a positive test.
  • End of the legal requirement for close contacts who are not fully vaccinated to self-isolate.
  • End of the legal obligation for individuals to tell their employers when they are required to self-isolate.
  • End of the employer's legal obligation to prevent workers required to self-isolate to work in any place except the place where they are required to self-isolate.
  • End of routine contact tracing.
  • End of self-isolation support payments, and national funding for practical support and the medicine delivery service will no longer be available. (People who were instructed to self-isolate before 24 February 2022 will still be able to claim support payments within the next 42 days).

From 15 March 2022

  • Vaccination will no longer be required as a condition of deployment in Care Quality Commission (CQC) registered care homes.

From 24 March 2022

  • The COVID-19 provisions within Statutory Sick Pay and Employment and Support Allowance regulations will end.
  • As a result, from 25 March Statutory Sick Pay will no longer be payable from day one if unable to work because they are sick or self-isolating due to COVID-19.

From 1 April 2022

  • Routine contact tracing ends, including venue check-ins on the NHS COVID-19 app, although the NHS app will continue to allow people to indicate their vaccination status for international travel.
  • End of free symptomatic and asymptomatic testing for the general public. Free symptomatic testing to remain available to social care staff and a small number of (as yet to be confirmed) at-risk groups.
  • Removal of the health and safety requirement for every employer to explicitly consider COVID-19 in their risk assessments.
  • Consolidated guidance to the public and businesses, in line with public health advice.
  • Replace existing set of 'Working Safely' guidance with new public health guidance.

Takeaways

The revocation of these mandatory measures puts the onus on employers to manage COVID-19 in the same way as they manage other common health risks in the workplace. Managers will also need to be equipped to deal with individual concerns from particularly vulnerable people or staff concerned about vulnerable family members.

For more, see our alert COVID-19 Response: Living with COVID-19 Quick Summary: Employment-related provisions.

Legislative developments

2. Right to work checks

During the pandemic, the Home Office introduced adjusted right to work checks, which have enabled employers to carry out their right to work checking responsibilities without having to handle physical documents.

Since 30 March 2020, the adjusted process has allowed right to work checks to be carried out over video calls, with job applicants and existing workers able to send scanned documents or a photo of their documents to employers via email or a mobile app, rather than sending the originals.

The adjusted process has been well-received, but the downside is an increased risk of individuals being able to use fraudulent documents to secure employment. The Home Office has now created a new digital right to work checking solution. From 6 April 2022, employers will be permitted to use certified providers to undertake digital identity checks. This will be available for use in relation to British and Irish citizens who hold valid passports (or Irish passport cards) as they are currently outside the scope of the Home Office's existing online service (which is largely limited to EEA nationals with settled status). The new online system will also be able to be used for pre-employment DBS checks.

The current adjusted right to work checks process was due to end on 5 April 2022. However, on 22 February 2022 the Home Office extended the concession permitting employers to carry out a manual right to work check using video conferencing and copies of supporting documents to 30 September 2022. The updated guidance states that extending the deadline will ensure "employers have sufficient time to develop commercial relationships with identity service providers, make the necessary changes to their pre-employment checking processes and carry out responsible on-boarding of their chosen provider".

3. Self-isolation

The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 have been in place since 28 September 2020 and impose a legal duty on individuals who test positive and certain close contacts to self-isolate. They also introduced a legal duty on employers prohibiting them from allowing workers required to self-isolate to work in any place except the place where they are self-isolating and related criminal offences for breach of these regulations.

Originally due to expire on 24 March 2022, these Regulations were revoked on 24 February 2022 under The Health Protection (Coronavirus, Restrictions) (Self-Isolation etc.) (Revocation) (England) Regulations 2022.

4. Statutory Sick Pay

On 24 March 2022 The Statutory Sick Pay (General) Regulations 1982 and the Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020 will be amended to remove COVID-19 provisions. As a result, from 25 March 2022 Statutory Sick Pay (SSP) will no longer be payable from day one if an employee is unable to work because they are sick or self-isolating due to COVID-19. Pre-pandemic SSP rules will instead apply, reverting to the first three days being qualifying days.

From 17 March 2022 the Statutory Sick Pay Rebate Scheme,  allowing employers with fewer than 250 employees (as at 30 November 2021) to recover up to two weeks' SSP for each employee who is off work suffering from COVID-19 or in self-isolation due to possible COVID-19 infection, will close. Eligible employers will have until 24 March 2022 to submit any new claims for absence periods up to 17 March 2022, or to amend claims already submitted.

5. Vaccination as a Condition of Deployment

The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021, making vaccination a condition of deployment, were introduced in CQC registered care homes from 11 November 2021. These regulations require that individuals entering the premises are fully vaccinated, unless otherwise exempt. Regulations to extend vaccination as a condition of deployment to health and wider social care settings were set to come into force on 1 April 2022.

From 15 March 2022, the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 3) Regulations 2022 revoke the requirement for vaccination as a condition of deployment in these settings.

6. Pilot study into four-day working week

A six-month trial looking into the four-day week with no loss of pay will start in June 2022. The pilot is based on the principle that employees receiving 100 per cent of their pay for 80 per cent of their time in exchange for a commitment to maintain 100 per cent productivity. Similar trials are also happening elsewhere in Europe including Spain and Ireland. On 15 February 2022 the Belgian governing coalition agreed a draft package of economic reforms (subject to parliamentary approval, which is expected to take several months) that includes:

  • Four-day working week: an option for employees to request to work longer days in order to earn a three-day weekend (under which they will work the same total hours).
  • Right to switch off: companies with 20 or more employees will need to offer their staff the option to "disconnect" after working hours, meaning they need not answer calls or respond to emails between 11pm to 5am.
  • Variable hour staff: staff on variable hours to be given their working hours seven days in advance.

Case law updates

7. Agency workers: the right to be notified about job vacancies does not extend to parity in the right to apply for vacancies

Under the Agency Workers Regulations 2010 (AWR), from the first day of their assignment, agency workers are entitled to information about vacancies in the hirer to give them the same opportunity as other workers to find permanent employment. But just what is the scope of this right?

Angard Staffing Solutions Ltd and Royal Mail Group Ltd v Kocur and anor, concerned claims brought by agency workers supplied by Angard to Royal Mail. When permanent job vacancies arise, Royal Mail post the vacancies on a notice board. Vacancies are offered first to Royal Mail employees in permanent posts and to those in a reserve class of directly employed employees. Agency workers are not eligible to apply for the posts. Agency workers can, however, apply for vacancies when they are advertised externally, and will be in competition with all other external applicants.

Mr Kocur argued that Royal Mail's practice breached his right "to information about vacancies in the hirer to give [agency workers] the same opportunity as other workers to find permanent employment". In particular, he argued that the right encompassed a right to (1) be notified of vacancies, (2) apply for a vacancy, and (3) be considered for a vacancy.

The Court of Appeal disagreed. The AWR simply confer on an agency worker a right to be notified. It does not extend to a right to parity in applying and/or being considered for the notified post. As such, the Royal Mail practice was lawful.

Takeaways

Agency workers simply have a right to be informed by the hirer of vacancies. This does not mean that the agency worker is entitled to apply for, and be considered for, internal vacancies on the same terms as directly recruited employees.

8. Unfair dismissal: dismissal for raising numerous frivolous grievances found to be fair

In Hope v British Medical Association, a senior policy adviser at the BMA submitted numerous grievances against senior managers about not being invited to meetings by management senior to him. Mr Hope insisted that his grievances were addressed only by his line manager, despite his line manager not having the authority to resolve grievances about senior management. Mr Hope then refused to progress or withdraw any of his grievances. When warned that he could face disciplinary action if his grievances were found to be frivolous or vexatious, he raised another grievance about the imposition of a deadline to decide whether he wished to pursue the formal grievance process. After following the appropriate grievance and disciplinary processes, the BMA dismissed Mr Hope for misconduct.

The EAT upheld the tribunal decision that Mr Hope had been fairly dismissed for bringing numerous vexatious and frivolous grievances, refusing to progress them or withdraw them (abuse of process), and failing to comply with a reasonable management instruction to attend the grievance meeting.

Takeaways

This case is an interesting example highlighting that it is possible in some cases to fairly dismiss an employee for bringing repeated, frivolous and vexatious grievances. This case may come as a relief to managers who find themselves in an endless and self-perpetuating cycle of grievances about minor grievances.

However, each case will be fact-specific. Employers should continue to always carefully consider the merits of each grievance an employee raises and follow the appropriate procedure. Effective handling of a grievance will involve looking for a solution addressing an employee's legitimate concern, while at the same time balancing the needs of the organisation/the employee's colleagues and managing the employee's expectations about what can, and/or cannot, be done to resolve the grievance.

9. Recent strengthening of the unions' hands: restraining 'fire and re-hire'

During the pandemic there has been increased public attention on the use of so-called 'fire-and-rehire' practices – where an employer gives notice to dismiss with an offer of immediate re-employment of workers on changed terms and conditions. While recent calls for introducing new legislative protections in this area have been, and continue to be, rejected by the Government, there has been a significant development out of the High Court.

In USDAW & others v Tesco Stores Limited the High Court has granted an injunction restraining Tesco from 'firing and rehiring' employees in order to remove a contractual entitlement to enhanced pay known as "retained pay". The entitlement was negotiated as a retention incentive in 2010 at a time when Tesco was reorganising its distribution centres requiring staff to relocate some 45 miles away. Retained pay represents between 32 to 39 per cent of the affected employees' wages. The express contractual clause states "retained pay will remain a permanent feature of an individual's contractual eligibility" subject to a few clearly defined exceptions. In staff communications, unequivocal assurances were given that retained pay would last for as long as the employee remained in the same role, with phrases such as "guaranteed protection for life" repeatedly used.

In these unusual circumstances, the Court held that it was appropriate to imply a contractual term preventing Tesco from exercising its contractual right to terminate on notice for the purpose of removing or diminishing the employee's contractual entitlement to the retained pay. In the Court's view, without such a term, an individual employee's entitlement to retained pay would not be permanent and the contract would lack practical coherence.

Takeaways

Due to what the Court refers to as the "extreme" facts in this case, this case is not necessarily an opening of the floodgates bringing an end to an employer's ability to terminate employment and offering to re-engage on less favourable terms ('fire and re-hire') generally. What it does mean is that an employer's ability to withdraw a 'permanent' contractual benefit, by simply relying on the ultimate right to terminate the relevant contracts by giving due contractual notice, is prohibited. Nevertheless, the unions' hand, when seeking to resist the removal of "benefits", has been strengthened.

At the time the clause was negotiated in this case, it would have been open to Tesco to set a longstop date for the entitlement to retained pay, but they did not, thereby failing to future proof the contract. As this case illustrates, a general termination on notice clause will not be sufficient on its own to limit the lifespan of a "permanent" contractual benefit clause.

The potential to seek an injunction in a similar scenario is not limited to unionised workforces. However, given the speed with which an injunction will need to be sought (before the employer terminates the contract), combined with the cost of seeking a High Court injunction and incentives by employers to agree to changes (in this case an 18-month retained pay pay-out was offered if agreed within three weeks), such injunctions are unlikely to be sought without union backing.

10. Holiday pay: holiday taken but unpaid can be carried forward for holiday pay claim

Back in 2017, the Court of Justice of the European Union (CJEU) held in King v Sash Window Workshop Ltd and another that a worker is entitled to be paid on termination for any periods of annual leave that have accrued during employment, if they have been discouraged from taking that leave because it would have been unpaid. In that case, the employer misclassified a worker as a self-employed contractor. There was no limit on the amount of leave that could be carried over in this type of case because an employer that does not allow workers to take paid leave must bear the consequences.

In the long-running case of Smith v Pimlico Plumbers Ltd, having succeeded in establishing 'worker' status, Mr Smith has now succeeded in establishing that his holiday back pay claim was issued in time. The Court of Appeal has confirmed that the right to carry over annual leave without limit covers not only a worker who does not take leave because it would be unpaid, but also a worker who takes unpaid leave because the employer refuses to recognise their right to paid leave. In both scenarios the employer is preventing the exercise of the single composite right to paid leave. Under the Working Time Directive the right to annual leave and the right to a payment on that account of that leave are two aspects of a "single right", not two distinct entitlements.

In light of the Court of Appeal's judgment in relation to Mr Smith's claim under the Working Time Regulations 1998 (WTR), the Court did not need to consider his claim on the basis of a series of deduction of wages claims under the Employment Rights Act 1996 (ERA). Nevertheless, the Court provided a non-binding "strong provisional view" that the EAT in Bear Scotland v Fulton [2015] was wrong to hold that a period of more than three months between non-payment or underpayments would result in the earlier underpayments being excluded from a "series of deductions". This is in accordance with the 2019 judgment of the Northern Ireland Court of Appeal (NICA) in Chief Constable of Northern Ireland v Agnew.

Takeaways - what the judgment does

A worker can carry over and accumulate a claim for payment in lieu on termination if they are prevented from exercising the right to paid annual leave under reg 13 WTR, and does not take some or all of the leave entitlement, or takes unpaid leave because the employer refuses to recognise the right to paid annual leave.

Workers in this position may have claims for four weeks' holiday pay per year going back to when they began work (or commencement of the WTR whichever is later) and whether or not they have actually taken any leave. It has far-reaching consequences, particularly for employers in the 'gig economy' where the right to paid annual leave has generally been denied in circumstances where the employer has sought to argue that the individual was self-employed rather than an eligible worker. Where these claims cover many years the amounts involved can be significant; for example, the claimant in this case was claiming holiday pay for the entire period of his employment in the sum of around £74,000.

As a claim brought under the WTR, rather than as one for unlawful deductions from wages under the ERA, the employer cannot rely on the two-year 'backstop' provision that applies to unlawful deduction claims brought on or after 1 July 2015. Similarly, they cannot rely on the Bear Scotland ruling that a three-month gap causes a break in any series of deductions, to the extent that the ruling remains authoritative.

Takeaways - what the judgment does NOT do

Workers who claim to have been underpaid (rather than unpaid) holiday pay are unaffected. The principles under King and Pimlico only apply to cases in which the employer has denied the right to "paid annual leave" altogether. King and Pimlico are not cases in which the employer recognised the right to paid annual leave, but made an underpayment due to miscalculating "normal pay" (for example, by not including overtime/commission). Taking paid leave (even if underpaid) means the right to paid leave has been exercised. An underpaid employee will instead need to claim for unlawful deductions to recover the difference.

This judgment also does not fully resolve the conflicting views on whether a gap of more than three months breaks a series of deductions claim under the ERA as held in Bear Scotland. The Court of Appeal's comments in Pimlico and the NICA ruling in Agnew though persuasive are non-binding on employment tribunals and the EAT in Great Britain (tribunals in Northern Ireland are bound by the position under Agnew). We eagerly await the pending Supreme Court judgment in Basfar v Wong. While Basfar is a case on the extent of diplomatic immunity, the issue on appeal concerns the extent to which previous decisions of the Court of Appeal and Supreme Court on a similar issue are binding where non-binding comments are made by the majority of the Supreme Court criticising an earlier Court of Appeal judgment.

What will your next steps be?

To understand more about any of the above developments or discuss any questions these have raised, please contact Jane Fielding or Connie Cliff.

Also, if you're yet to visit our overview of what's expected for 2022 in other areas of employment law, take a look at our article on 'The horizon for 2022'.


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