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Key employment cases of 2021

  • United Kingdom
  • Employment law

14-12-2021

As the tribunal system has endeavoured to get back up to speed in 2021, the higher courts, including the Supreme Court, have handed down a number of significant decisions which have clarified the law in important respects. For example, further insight has been provided into indicators of worker status, comparators for equal pay and inducements and collective bargaining. The meaning of working time for care workers who engage in sleep-in shifts was also decided earlier in the year and has resulted in changes in practice in the sector.

Reflecting ever-evolving attitudes to workplace issues of fairness, the last 12 months have also seen developments in the legal understanding of menopause and the need for equality training to be proactive and up to date. In addition, emerging case law in the lower courts on the operation of the Government furlough scheme is, to date, sending some mixed messages.

Below we highlight what we consider to be some of the most significant employment law judgments of 2021.

Worker status

Uber and others v Aslam and others: the SC found that Uber’s drivers are “workers”, reflecting the purpose of employment law in this area, which is to protect vulnerable workers, but also the degree of control, subordination and dependency on the facts, which pointed away from self-employed status. See our briefing.

The impact of the case is already being seen in subsequent court decisions and is encouraging closer scrutiny of potential, misclassified status. The principles were also applied similarly in Addison Lee v Lange, where the CA found that written contracts failed to reflect the reality of the working relationship and were overridden on that basis. Employers who engage individuals on a non-employed basis should consider carrying out a review and risk assessment, in particular, including the degree of control exercised by the putative employer.

Collective bargaining

Kostal Ltd v Dunkley: the SC decided that a direct offer to workers, in relation to a matter which falls within the scope of a CBA, cannot be made lawfully unless the employer has first followed, and exhausted, the agreed collective bargaining procedure and has a genuine belief that it has been exhausted.

The case has clarified the implications for employers seeking to make changes to pay or other collectively bargained issues outside of a CBA. Importantly, employers should ensure that CBAs clearly define and delimit the agreed procedure, specifically resolving any potential ambiguities over when the process ends or when each step in the process ends. Additionally, going forwards, employers need to evidence a genuine belief that the bargaining process has been exhausted and, therefore, there was no real possibility of the terms offered directly being determined by collective agreement. See our briefing.

Equal Pay

Asda v Brierley: in this long-running case, the SC upheld claims by predominantly female shop workers that they can compare themselves, for equal pay purposes, with male distribution depot workers who work at different locations. The employer was found to apply “common terms” across its establishments which allowed for the role comparison in principle. See our briefing.

It is important to remember that establishing comparators in any equal pay case is the first hurdle to proceeding with a fact-sensitive comparison exercise. A decision on the merits of this particular case is therefore many months away. However, in the meantime, the CJEU has reached similar conclusions during 2021, allowing equal pay claims to proceed in principle in the case of K and Ors v Tesco Stores Limited. See our briefing.

Clearly, pay differentials can be justified in certain cases but it is important that employers  understand the nature and origins of such differences in their organisations. A pay audit can usefully identify areas of particular risk.

NMW and sleep-in workers

Royal Mencap Society v Tomlinson-Blake: the SC found that, where workers undertake sleep-in shifts by arrangement, they are entitled to be paid the NMW only for the hours when they are awake for the purpose of working and not for the time spent sleeping.

However sleep-in care workers will continue to be entitled to be paid whenever they are awake and carrying out their duties. See our briefing.

Furlough

A number of ET claims related to the CJRS (now ended) are starting to filter through but It will be some time before a clearer picture emerges as to entitlement and the validity of claims.

  • Mhindurwa v Lovingangels Care Limited: the employer was found to have unfairly dismissed an employee by making them redundant instead of electing to place them on furlough; while, in contrast
  • Handley v Tatenhill Aviation Limited:  dismissal for redundancy during a period of furlough was found to be fair
  • Jimenez v Firmdale Hotels Plc: the employer’s belief that an individual on long term sickness leave could not be furloughed under the CJRS was in error and was potential victimisation

Employers can expect further developments from litigation in this area as their employment decisions but also their interpretation of the CJRS are scrutinised. Retaining records of decisions and decision-making processes will be particularly important.

Protection of striking workers

Ryanair DAC v Morais: the EAT has provided important clarification regarding the protection to striking workers afforded by TULR(C)A.

Pilots of the company alleged that the employer’s withdrawal of travel benefits after they had participated in industrial action amounted to an unlawful detriment (relying on ECHR and TULR(C)A). The pilots also argued that compiling a list of strikers, to facilitate the withdrawal of the benefits, amounted to a prohibited blacklist under the Blacklisting Regulations. The ET and EAT agreed. In so doing, this case goes further than previous cases in extending detriment protections to individuals where industrial is not legally protected action on the part of the trade union (which, in broad terms, triggers certain legal immunities for the union and dismissal protections for striking employees).

Given that the case law on detriment and blacklisting in the context of industrial action is rapidly evolving, and that appeals are underway in a previous case of Mercer and in this case, employers responding to threatened or actual strikes should take advice before taking action in relation to participating employees. See our briefing.

Impact of menopause

Rooney v Leicester City Council: the EAT found that an employee suffering from menopausal symptoms may be disabled potentially under EqA, based on the impact and duration of symptoms. The tribunal had fallen into the error of carrying out a balancing exercise between what the employee could or could not do when determining whether they have a disability and had failed properly to explain its conclusions on the evidence.

This case adds to a growing awareness of the workplace challenges and potential discrimination faced by many women experiencing the menopause and encourages greater employer-engagement. More targeted legal protection may also emerge for menopausal workers in due course, subject to the outcome of a Women and Equalities Committee enquiry in 2021.

TUPE: transfer of income protection scheme

Amdocs Systems Group Ltd: the EAT held that a transferee employer was liable to pay income protection payments inherited from an employee's original employer under TUPE despite those payments no longer being underwritten by insurance. The terms of the benefit formed part of the employee’s contract but the employee was unaware of the position on insurance and had not been notified of any change to his contract by the time he fell ill, post transfer, and was refused payment by his new employer.

While this decision does not change the law, it highlights the importance of transferee employers checking carefully any contractual commitment to health insurance and other benefits underwritten by third parties and, moreover, whether any changes over time have been effected lawfully and communicated. This is especially so if the details are set out in a separate document, such as a handbook or insurance policy, which may have been superseded.

Discrimination: reasonable steps defence

Allay (UK) Ltd -v- Gehlen: the EAT issued a reminder to employers that, in order to raise a defence that they are not themselves guilty of discrimination when an  employee commits an act of discrimination, harassment or victimisation against a colleague, they must be proactive in the steps they take to prevent discrimination occurring.

In this case, despite having an equality and diversity policy and having undertaken staff training, the employer had not refreshed or repeated these steps for 18 months or more. According, the employer failed to demonstrate that, “all reasonable steps” had been taken when allegations of discrimination arose as required by Section 109(4) EqA.  Employers need to be wary of allowing anti-discrimination and other vital policies and training to fall “stale” and should engage in regular reminders and updates.

Impact of childcare demands

Dobson v North Cumbria Integrated Care NHS Foundation Trust: The EAT held that an ET ought to have considered the childcare disparity faced by women in the context of an indirect sex discrimination claim.

A community nurse who had negotiated a flexible working arranged to facilitate her childcare needs was subsequently dismissed for failing to accept a new rostering policy imposed by the Trust. The ET found that the nurse had failed to adduce evidence as to why the new shifts were disproportionately disadvantageous to women in her team and therefore indirectly discriminatory. However, rejecting that approach, the EAT reminded ETs that a relevant consideration in addressing such issues is the greater childcare burden that tends to fall on women, especially single mothers. The ET in this case failed to address that potential issue and should have done so.

The EAT’s acknowledgement of childcare disparity does not mean that flexible working requirements will invariably put women at a disadvantage when compared to men. However, this decision serves as a reminder to employers who propose changing working hours or patterns to check for any disproportionate effects.

Key

CA Court of Appeal

CBA Collective Bargaining Agreement

CJEU Court of Justice of the European Union

CJRS the UK Government Covid-19 Job Retention Scheme

ECHR European Convention on Human Rights

ET Employment Tribunal

EAT Employment Appeal Tribunal

EqA the Equality Act 2010

NMW National Minimum Wage

SC Supreme Court

TULRCA Trade Union and Labour Relations Consolidation Act 1992

TUPE Transfer of Undertakings (Protection of Employment) Regulations 2006

Further significant court decisions are expected in 2022 and should provide important clarifications for furlough, holiday pay and worker status amongst other areas. Watch out for our future briefings and our forthcoming look ahead to “Key employment cases of 2022”.