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Key employment cases to look out for in 2022

  • United Kingdom
  • Employment law

17-01-2022

As the new year begins, we highlight below some key cases for HR practitioners and in-house employment counsel. We have divided these between cases in which judgment is pending and those in which a significant issue has been given permission to appeal, and is awaiting a hearing during the year.

The cases span a diverse range of both practical and legal issues, including the scope of the IR35 off-payroll legislation, the practical application of the Agency Workers Regulations and the first EAT decisions on COVID-19 workplace complaints. Following the trend in previous years, employment status cases continue to occupy the courts, reflecting the fact specific nature of many such claims.

Appeal judgments pending

Holiday pay for term-time workers

The SC is deciding what amounts to appropriate holiday pay for part-time term-time workers and will decide whether the CA was correct to rule that a 12.07% cap upon annualised hours was unlawful. The outcome of this appeal will have implications for those workers who have no normal working hours - particularly for those who work on a term-time basis or intermittently throughout the year. Harpur Trust v Brazel

Arrow  Read our briefing

Holiday pay and worker status

A CA judgment is due on whether the claimant was out of time when claiming holiday backpay. The respondent treated the claimant as a self-employed independent contractor with no entitlement to paid annual leave. The claimant did take periods of unpaid leave and, having won his worker status claim, he initiated a claim for holiday pay. The EAT upheld the ET’s decision that he was out of time and rejected the claimant’s argument that EU case law applied in his favour. This case is of significance for organisations assessing the financial risk of misclassifying worker status. Smith v Pimlico Plumbers

Appeals awaiting a hearing

Agency workers

In January, the CA is due to consider a number of issues relating to the application of the Agency Workers Regulations. At EAT level, these included: whether there is a breach where shift lengths for the claimant agency workers were 12 minutes longer than for direct employees and where direct recruits were given first refusal for overtime opportunities; and, the extent of the right to be informed by the hirer of any relevant vacant posts with the hirer. The EAT held that the longer shift and overtime arrangements did not breach the Regulations and they do not entitle an agency worker to apply, and be considered, for internal vacancies on the same terms as directly-recruited employees. Depending on the CA decision, this may have implications for temporary staffing costs and management. Kocur v Angard Staffing Solutions Ltd

Worker protection when participating in industrial action

Listed for hearing in January, the CA will decide whether to uphold the EAT’s judgment that UK strike law is incompatible with human rights law and it must be reinterpreted to comply. In particular, whether protection from detriment for taking part in trade union activities includes participating in industrial action, and whether the EAT was right in adding words to the legislation to achieve this result. The EAT’s decision was significant and is particularly relevant where an employer contemplates taking action against those striking, other than deducting pay for work not done during the strike, such as withdrawing benefits. Mercer v Alternative Future Group

Arrow  Read our briefing

COVID-19 and refusing to return to work

A number of COVID-19 ET decisions are seeking permission to appeal and, in due course, will provide EAT guidance on some of the more challenging issues associated with business continuity during a pandemic. For example, how to assess whether a worker, who refuses to attend the workplace, has reasonable belief in serious and imminent danger? In one such case, which has been given permission to appeal, the ET dismissed the case where the claimant believed that COVID-19 presented circumstances of serious and imminent danger “all around”, but not specifically in his workplace. He did not raise any specific issue within the workplace, nor any formal complaints about COVID-19 measures and the ET decided that he could have reasonably averted danger by abiding by the guidance at that time. Rodgers v Leeds Laser Cutting Ltd

Employment status

Following the SC’s 2021 decision that a group of Uber taxi-drivers were workers, not self-employed contractors, for minimum wage, holiday pay, pension and whistleblowing protection purposes, a number of status cases are under appeal, each raising particular issues based on their facts. For example, a February CA hearing will consider whether worker status requires an obligation on a claimant to accept and perform some minimum amount of work. The EAT decided that it did not. The judgment suggests that a degree of confusion has arisen from the legal authorities on this question, such as differentiating it from the minimum obligation necessary to establish a contractual relationship (which is required for worker status). Nursing and Midwifery Council v Somerville

Arrow  Read our briefing on Uber

Contract of employment, PHI and TUPE

This appeal, before the CA, concerns the following facts: the claimant had contractual documents setting out the terms of a long-term sickness absence and income protection payments (IPP) scheme. The IPP was subject to an annual increase. After a TUPE transfer, the claimant, who was sick, received no increase to his IPP and was informed by the respondent that this benefit had ceased on the lapsing of insurance cover. He successfully claimed the uplift with the EAT deciding that, as the respondent’s predecessor had made the contractual commitment to the claimant, it was bound to honour it, whether or not it continued to be backed with insurance cover in later years. Whatever the outcome, it is a timely reminder to employers involved in TUPE transfers to carefully check the status of benefits provided by the transferor and underwritten by third parties. Amdocs Systems Group v Langton

The scope of IR35 off-payroll legislation

Organisations procuring labour services, such as freelancers and consultants, need to understand whether the IR35 (or “off-payroll”) rules apply, in particular since last April when the rules were extended to the private sector. A key part of IR35 involves determining the deemed employment status of contractors who supply their services via an intermediary, such as a personal services company. The test for deemed employment status for tax purposes can be confusing and it is hoped that a CA decision, following a hearing in February, will provide updated guidance and some clarity. HMRC v Atholl House Productions Ltd

Key

CA Court of Appeal
ET Employment Tribunal
EAT Employment Appeal Tribunal
SC Supreme Court