Looking backwards to 2021 and forwards to 2022
First, a review of some of the cases and other developments which we have reported on over the last year, focusing on their significance to employment practitioners, employers and workers.
Delivery drivers and status
The worker status of delivery drivers and the gig economy has rumbled on this year. In Stuart Delivery v Augustine  EWCA Civ 1514 the Court of Appeal upheld a tribunal’s finding that on the facts Mr Augustine, a delivery driver, was a worker. Once Mr Augustine signed up for a time slot, he was required to provide those services personally. His ability to release a slot was not sufficient to evidence a right of substitution. The tribunal considered that the system set up by Stuart Delivery was intended to ensure that Mr Augustine did carry out the work and if another courier did not take his slot, he could face consequences. This was not an unfettered right of substitution.
Earlier in the year, the Supreme Court ruled in Uber BV & others v Aslam & others that a group of Uber drivers were workers and were entitled to claim national minimum wage, holiday pay and whistleblowing protection. The so-called ‘Partner agreements’ bore little resemblance to the facts and the court dismissed the significance of the contractual terms between Uber and the drivers when deciding worker status. In particular, the Court decided that the contractual terms between the party should not be the starting point in determining whether an individual falls within the definition of a worker. Uber has since confirmed that its drivers would receive the national living wage, holidays and pension.
Delivery drivers collective bargaining rights
The focus on the status and rights of delivery riders has extended to considering recognition of a union, IWGB, for collective bargaining purposes in respect of a group of riders. In The Independent Workers Union of Great Britain v The Central Arbitration Committee  EWCA Civ 952 the Court of Appeal decided that the CAC was entitled to conclude that Deliveroo riders were not in a relationship with Deliveroo for the purpose of Article 11 European Convention on Human Rights as there was no obligation to provide services and an almost unlimited right of substitution. The CAC had declined to accept the application on the basis that the riders were not "workers" within the meaning of the S296 Trade Union and Labour Relations (Consolidation) Act 1992 because the terms under which they provide their services did not require them to do so personally but permitted the use of substitutes.
The Court of Appeal conceded that if and when the European Court of Human Rights comes to consider directly the significance of the right to employ substitutes to the existence of an employment relationship, its approach might differ in detail from that adopted in the English case law. It might, for example, be more generous in its definition of the limits to ‘permitted substitution'. But that is no more than speculation: there is nothing in its existing case law to indicate that it will do so.
Menopause can be a disability claim
The EAT in Rooney v Leicester City Council EA-2020-000070-DA upheld appeals from an employment tribunal decision that a childcare social worker could not include in her claim against Leicester City Council a claim for disability discrimination based on her ‘severe menopausal symptoms’. The EAT criticised the tribunal for focusing on the things that Ms Rooney could do so that it fell into the error of weighing what she could do against what she could not do.
Meanwhile, the Women and Equalities committee launched an inquiry into Menopause and the workplace, which closed for submissions in September 2021. Its outcome is awaited. Caroline Nokes, Chair of the committee, stated in the autumn that changing equality legislation to protect women going through the menopause should not be ruled out.
Direct offers to workers who were Unite members breached section 145B TULCRA
Kostal v Dunkley and others  UKSC 47 concerns legislation prohibiting inducements for workers which undermine collective bargaining rights (section 145B Trade Union Law Reform (Consolidation) Act 1992. The core issue addressed by the Supreme Court was when an employer, which wants to make changes to pay or other collectively bargained terms but has reached an impasse in negotiations with unions, can lawfully step outside that collective bargaining process and make a direct offer to its workers.
The Supreme Court in Kostal, overturning the lower courts’ decisions, decided that a direct offer to workers, in relation to a matter which falls within the scope of a collective bargaining agreement, cannot be made lawfully unless the employer has first followed, and exhausted the agreed collective bargaining procedure and has a genuine belief that that procedure has been exhausted. This decision means that collective bargaining and dispute resolution processes will be even more important going forward. The Supreme Court stated that employers should ensure that collective bargaining agreements clearly define and delimit the procedure to be followed so that it is clear that the employer reasonably believes the process has been exhausted.
It should also be noted that section 145B creates a penal award of £4,341 per affected union member. The award in Kostal was approximately £420,000 because the employer failed to inform the union that it did not wish to enter into Acas conciliation as required by the relevant Recognition Agreement.
Acas’s recent Hire and Fire guidance should also be noted. This states that employers should thoroughly explore all other options before deciding to dismiss and re-engage. However, the government has confirmed that it has no intention to ban fire and re-hire practices. This, despite a survey carried out by the union GMB which suggested that 75% of the UK public backed a legal ban on hire and fire on worse terms practices.
S146 to be interpreted as encompassing participation in industrial action
In Mercer v Alternative Future Group Ltd & Anor  UKEAT 0196/20 the EAT held that Section 146 TULRCA which protects workers against detriment related to taking part in the activities of an independent trade union, was to be interpreted as encompassing participation in industrial action. Whilst the protection provided by section 146 extends to protection against detriment related to taking part in the activities of an independent trade union, the scope of trade union activities in that provision had previously been interpreted as not including industrial action. The EAT in Mercer held that the ET was correct to conclude the failure to confer protection against detriment for participating in industrial action amounted to an infringement of Article 11, ECHR, but wrong to find that a compatible interpretation of s.146 would go against the grain of the legislation. A compatible interpretation of s.146 is possible so as to include protection against detriment for participating in industrial action within its scope.
Withdrawal of concessionary travel benefits for participation in strike
In the wake of the Mercer decision, the case of Ryanair DAC v Morais and others considered the position Section 146 TULRCA where striking pilots (members of BALPA) had their concessionary travel benefits withdrawn for a year. The EAT held that they had been subjected to detrimental treatment subject to section 146 TULRCA (which protects workers against detriment related to taking part in the activities of an independent trade union) and regulation 9 Employment Relations Act 1999 (Blacklists) Regulations 2010. This decision is a significant change in the law and is relevant when an employer contemplates taking action against striking workers, other than deducting pay for work not carried out during the strike. Previously, s.146 had been interpreted as not providing protection from a detriment where an employer subjected a worker, who was taking part in industrial action during a strike, to a detriment such as withdrawing benefits. The case also decided that a prohibited blacklist under the Blacklisting Regulations includes a list of those who have participated in industrial action irrespective of whether that action is protected industrial action.
Gender critical beliefs continue to cause waves
The trans debate has been significant in this year’s media and has proved to be a polarising topic in some respects with entrenched views on both sides.
In Forstater v CGD Europe & Ors  UKEAT 0105/20 the EAT held that Ms Forstater’s gender-critical beliefs, while offensive to some, and notwithstanding its potential to result in the harassment of trans persons in some circumstances, fell within the protection under Article 9(1), European Convention on Human Rights and therefore within s.10, Equality Act (which defines the protected characteristic of religion or belief). The court held that where a belief in other respects falls within these definitions, it would only be in extreme cases involving the gravest violation of other Convention rights, such as the gravest form of hate speech, that the belief would fail to qualify for protection at all.
Ms Forstater, who was a visiting fellow of CGD Europe (a not-for-profit thinktank) held gender-critical beliefs, which included the belief that sex is immutable and not to be conflated with gender identity. She engaged in debates on social media about gender identity issues, and in doing so made some remarks which some trans gender people found offensive and transphobic.
It is notable that the court specifically stated that the judgment did not mean that the EAT expressed any view on the merits of either side of the transgender debate and nothing in it was to be regarded as doing so.
Separately, an EAT judgment is expected in 2022 in the appeal against the ET decision in Mackereth v The Department for Work and Pensions and another, where an employment tribunal found that a doctor engaged to carry out health assessments for the Department for Work and Pensions was not discriminated against on the grounds of religion or belief for refusing to address transgender patients by their chosen pronoun.
Women win latest stage in equal pay claims against Asda
Women in Asda’s retail business who brought equal pay claims relying on a cross-establishment comparison with men employed in Asda’s distribution depots finally won their fight on this point in the Supreme Court. The essential question on this appeal in Asda Stores Ltd v Brierley & Ors  UKSC 10 was whether the common terms requirement for the purposes of equal pay legislation was satisfied. In this case the ET had been wrong to perform a line-by-line comparison of the specific terms and conditions of employment of the distribution employees versus the retail employees in order to identify relevant “common terms”. the correct approach with determining “common terms” is to make a comparison by asking whether the terms enjoyed by the proposed comparators were broadly the same at the distribution depots and at claimants’ establishments, but not necessarily identical.
See also the incisive blog from Daphne Romney QC from Cloisters (Emplaw authors) which was published in March 2021 and explaining how the latest judgment in this equal pay litigation clarifies and simplifies the law concerning comparators at different establishments under s.79 EqA but leaves other questions unresolved
Ethnicity pay gap reporting
As part of its report into racial and ethnic disparities in the UK, published in March 2021, the Commission on Race and Ethnic Disparities said that publication of ethnicity pay gaps should continue to be voluntary for employers but others disagreed.
Indeed, in response, the CBI (the UK’s largest business lobby group) joined the Trades Union Congress (TUC) and the Equality and Human Rights Commission in calling for mandatory ethnicity pay gap reporting, saying data collection will help tackle racial inequalities at work.
The government confirmed that it was still considering responses to its 2018 consultation on mandatory ethnicity pay gap reporting and will respond to the consultation "in due course".
The government response document to the consultation on flexible apprenticeships, published in August 2021, set out how the government would take forward the development of the new flexi-job apprenticeship offer. The government has granted registered flexi-job apprenticeship agencies access to a flexi-job apprenticeship fund and apprentices can be employed by these agencies which hire them out to host organisations.
The government has stated that the long-awaited Employment Bill will be brought forward when Parliamentary time allows. It is anticipated that the Employment Bill will be published at some point in 2022. The measures expected to be included in the Bill include:
- Carer’s leave
- Tipping (ensuring that tips go in full to workers)
- Making flexible working the default
- Pregnancy and maternity discrimination (extending the period of redundancy protection)
- The right to request a more predictable contract
- Leave for neonatal care
- A single enforcement body
These are significant proposals and it is worth looking in more detail at what we know so far about some of them.
The government response to a carer’s leave consultation, which took place in 2020, was published in October 2021 and confirmed its intention to introduce an entitlement to carer’s leave as a day 1 right for employees. The response outlines the decisions that government has taken on what the leave entitlement will look like. It sets out key details including:
· how eligibility will be defined
· how the leave can be taken
· what the leave can be used for
It also provides a summary of the responses from individuals and stakeholders.
Government response to consultation on tipping, gratuities, cover and service charges
There are presently no specific legal rules regarding the proportion of discretionary payments for service that must go to workers. The current voluntary Code of Practice was introduced in 2009 to increase transparency to employers about how to handle discretionary payments for service. However this guidance is not used widely and therefore it alone is insufficient to ensure transparency in how tips are treated and that staff receive their fair share of tips.
The proposed legislative measures will include:
· Requirements for employers in all sectors to not make any deductions from tips received by their staff, including admin charges, other than those required by tax law.
· Requirements for employers to distribute tips in a way that is fair and transparent, with a written policy on tips, and a record of how tips have been dealt with. Employers will be able to distribute tips via a tronc, and a tip must be dealt with no later than the end of the month following the month in which it was paid by the customer.
· Provisions to allow workers to make a request for information relating to an employer’s tipping record. Employers will have flexibility how to design and communicate a tipping record, but should respond within four weeks.
· Requirements for employers to have regard to a statutory Code of Practice on Tipping.
· Where employers fail to comply with these measures, this will be enabled through Employment Tribunal.
The rules are expected to commence no earlier than one year after the proposed Employment Bill has passed.
Making flexible working the default
The government consultation on making flexible working the default, closed in December 2021. It presented five proposals for reshaping the existing regulatory framework so that it better supports the objective of making flexible working the default. The intention is to better support employees to start the conversation about contract changes, and employers to respond. It considers:
· making the Right to Request Flexible Working a day one right;
· whether the eight business reasons for refusing a Request all remain valid;
· requiring the employer to suggest alternatives;
· the administrative process underpinning the Right to Request Flexible Working;
· and requesting a temporary arrangement.
Extending the period of redundancy protection
It was back in July 2019 that the government published a response to consultation concerning the extension of redundancy protection for parents returning from maternity or other parental leave. The response included commitments to;
• ensure the redundancy protection period applies from the point the employee informs the employer that she is pregnant, whether orally or in writing;
• extend the redundancy protection period for six months once a new mother has returned to work (expected to start immediately maternity leave is finished);
• extend redundancy protection for those taking adoption leave, following the same approach as the extended protection being provided for those returning from maternity leave i.e.– it will be for six months beyond return.
Neonatal leave and care
In March 2020 the government confirmed its intention to introduce statutory neonatal leave and pay for parents of babies requiring neonatal care (following consultation on the Good Work Plan: Proposals to support families) and would legislate to implement the entitlement in the Employment Bill.
The government response stated that parents will have the right to take up to a maximum of 12 weeks leave. The leave will be available as a day one right and will apply to employees only. Those with a minimum qualifying period of 26 weeks’ service and who earn above the minimum pay threshold will be entitled to receive pay for the neonatal leave period at the statutory rate.
Government response to consultation on sexual harassment in the workplace
In July 2021, the government responded to a consultation on sexual harassment in the workplace stating that it will introduce a duty which requires employers to prevent sexual harassment and will introduce explicit protections from third-party harassment. Existing protections under the Equality Act will also be extended to volunteers and interns. Finally, the government will look closely at extending the time limit for bringing Equality Act 2010 based cases to six months. A new code of practice is pledged.
All of the commitments made as a result of the consultation will apply to Great Britain (England, Wales and Scotland). Those which require legislative changes will be introduced 'as soon as parliamentary time allows'.
Mandatory vaccination for all patient-facing health and social care workers
The requirement which already applies to nursing and personal care staff in care homes is expected to be extended.
The Health and Social Care Act 2008 (Regulated Activities) (Amendment)(Coronavirus) Regulations 2021 provide that the registered person for nursing and personal care in care homes must secure that from 11th November 2021 – subject to certain exceptions— a person does not enter the care home premises unless they provide evidence that they have been vaccinated with a complete course of an authorised vaccine against COVID-19.
In late 2021, the government consulted on whether to extend these regulations to frontline NHS staff and the wider social care sector. The government response indicated that it would and the green light was given by MPs in a vote on 14th December.