Employment Case Law Update May 2023

Read on for our monthly digest for employers on upcoming employment law changes and key employment cases that have recently been decided.

 

New employment rights for carers and parents

On 24 May 2023, three pieces of legislation introducing new employment rights for carers and parents received Royal Assent.

The Neonatal Care (Leave and Pay) Act 2023 allows up to 12 weeks of paid leave for parents whose children are in neonatal care, in addition to existing maternity and paternity leave and pay rights.

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 extends existing legal protections against redundancy for employees on maternity/adoption or shared parental leave to pregnant women and those who have recently returned from family leave.

The Carers Leave Act 2023 introduces the right for employees caring for a dependant to take one week of unpaid leave per year.

A date has yet to be confirmed when the laws will formally take effect.

 

Government launches consultation on TUPE, holiday pay and working time rules

On 10 May 2023, the UK Government announced that it was u-turning its plans under the Retained EU Law (Revocation and Reform) Bill and that all retained EU law will now remain binding in the UK from 31 December 2023, unless expressly repealed or amended

The government then published a consultation paper, setting out its plans regarding the future of retained EU employment law. The consultation paper confirms the government’s intention to keep retained EU employment laws in the following areas without any change: family leave rights (maternity, paternity, adoption and parental leave), ‘atypical’ workers’ rights (part-time workers, fixed-term workers and agency workers), and information and consultation rights.

However, certain reforms are proposed in the areas of working time, paid holiday rights and rights upon the transfer of a business or an outsourcing. The government says it has identified areas for reform of laws it considers are ‘too onerous for business to be used effectively or too complex for workers to know, understand and use’.

• Working time: The government is proposing to remove the requirement on businesses to keep a record of all workers’ daily working hours, on the basis that it imposes a disproportionate burden and cost.
• Annual leave entitlement: The proposals include: creating a singe 5.6 week annual leave entitlement by combining the current four weeks’ leave governed by EU rules and the additional 1.6 weeks’ leave governed by domestic rules; and allowing rolled-up holiday as an option, which is currently prohibited under EU law except in certain sectors for workers on irregular hours or zero-hours contracts. The rules on carrying over holidays will stay the same.
• The TUPE provisions are to be changed for businesses with under 50 employees that are undergoing a sale or outsourcing that results in the transfer of fewer than ten employees will no longer have to consult with elected employee representatives, but can instead consult directly with affected employees.

 

The Employment (Allocation of Tips) Act 2023 receives Royal Assent

The Employment (Allocation of Tips) Act 2023 received Royal Assent on 2 May 2023

The new law makes it unlawful for businesses to withhold tips from their employees.

The Act will create new obligations for employers including the following:

• Employers will be required to fairly allocate tips and pay these to workers in full within one month of payment being made by the customer;
• Employers will need to implement written policies to set out how tips will be distributed in their businesses
• Employers are to maintain a record of tips received and how they are allocated and this record is to be kept for three years. Employees will also have the right to request access to these records if needed.

If a worker believes they have not been treated in accordance with these new rules, they will be allowed to issue a claim in the Employment Tribunal within twelve months of the employer’s breach of its obligations.

The E(AT)A 2023 will be supported by a new statutory Code of Practice that will set out advice for businesses and staff on how tips should be distributed, which will be subject to formal consultation.

The proposed code of practice will be subject to formal consultation later this year and it is expected that the new Act will be bought into force by May 2024.

 

Coronavirus unfair dismissal

Lovingangels Care v Mhindurwa

The claimant, Ms Mhindurwa, was employed by Lovingangels Care Ltd as a live-in carer.

The individual who Ms Mhindurwa cared for was taken into hospital, leaving her without anyone to care for. Normally, the claimant would have been transferred to another client, but due to the COVID-19 pandemic, this was not possible.

In May 2020, Lovingangels Care proceeded to dismiss Ms Mhindurwa by reason of redundancy. Ms Mhindurwa made a request to be furloughed but her employer refused. Her contract was terminated on 13 July 2020.

Ms Mhindurwa brought a claim for unfair dismissal.

The Employment Tribunal determined that the Respondent had a genuine redundancy situation, but that they had neglected to consider furlough as an alternative to redundancy in order to determine whether the Claimant could move to another client in the future.

Therefore, the Employment Tribunal upheld the Claimant’s claim for unfair dismissal.

Lovingangels Care appealed the decision, arguing that the furlough scheme would not have applied to the claimant in any event.

The Employment Appeal Tribunal upheld the tribunal’s decision that it was unfair to dismiss Mrs. Mhindurwa from her role due to redundancy when furlough had not been fully considered.

The Employment Appeal Tribunal determined that the lower court correctly applied the law on unfair dismissal and that Lovingangels Care should have contemplated furlough as an alternative to dismissal.

In reaching its conclusion, the EAT was not stating that the claimant should have been placed on furlough, but the employer should have reasonably considered this option before dismissing her outright.

 

Employer takeaway

Despite the fact that furlough is not currently an issue for employers, this case demonstrates that, prior to concluding that a redundancy is necessary when dismissing an employee for redundancy, employers should examine all available alternatives.

The EAT’s decision also made clear that the rules on unfair dismissals are not in need of reform and are sufficiently robust to deal with cases relating to the coronavirus pandemic. As such, employment tribunals are not required to adopt a special or different approach to dismissals in the context of the coronavirus pandemic.

 

Health and Safety detriment claim & disability discrimination

Miles v Driver and Vehicle Standards Agency

The claimant, Mr Miles, worked as a driving examiner at the driver testing office in Pontefract. He was diagnosed with chronic kidney disease in November 2018.

Due to the Coronavirus pandemic, driving examinations ceased in March 2020, with the exception of those deemed essential.

In July 2020, testing resumed. The DVSA required driving instructors to return to work, including those clinically vulnerable such as the claimant, but not those clinically extremely vulnerable.

The claimant voiced concerns about returning to work, stating that he did not believe it was safe for him to return due to his serious kidney condition and his wife’s heart condition “until the Covid situation improved” and that it was impossible to socially distance in a car.

The DVSA replied that safety measures would be implemented and asked if the claimant required any additional adjustments. The safety measures included reducing the number of daily tests, requiring examiner and candidate face coverings, hand washing and vehicle cleaning, avoiding physical contact, and using a tablet to record results.

The claimant, however, refused to return to work, asserting that he was at serious risk due to his condition and that no accommodations would alleviate his concerns.

The claimant was placed on unpaid leave on 6 August. He resigned on 10 August 2020.

He then brought claims of health and safety detriment and dismissal under sections 44(1)(c) and (d) and s 100(1)(c), unfair constructive dismissal and disability discrimination.

All claims failed before the employment tribunal.

The employment tribunal determined that there were circumstances associated with the claimant’s work that he reasonably believed to be harmful or potentially harmful to health or safety, but that he worked at a location where there was a health and safety representative or committee (although not based at the Pontefract office) – as a result, the ss 44(1)(c) and 100(1(c) ERA claims were dismissed.

The ET also determined that the claimant was not disabled because his decision not to return to work was not an effect of his impairment, but rather resulted from an “unreasonable belief”, despite the fact that the Claimant did reasonably believe there were circumstances connected to his work which were harmful or potentially harmful to health or safety, when considering the section ss 44(1)(c) and 100(1)(a) ERA complaints.

The claimant appealed.

The EAT partially granted the appeal.

The ET did not err in determining that the claims were invalid because ss 44(1)(c) and 100(1(c) of the ERA did not apply (it was sufficient for there to be a health and safety representative for the location where the claimant worked, even if it was not at the place of work).

When considering whether the Claimant was disabled, the tribunal fell into error when assessing substantial adverse impact when considering the Claimant’s refusal to return to work. The Claimant relied upon the fact that he avoided going shopping in person and did not go into work because of the significantly enhanced risks to him of Covid. The tribunal held that the Claimant did not go to work not because of his condition but because of his unreasonable belief but did not specify what the unreasonable belief was. The tribunal had concluded the Claimant did have a reasonable belief of circumstances connected with his work which were harmful to health but not a reasonable belief in serious and imminent danger to safety.

However, the EAT ruled that the ET did err in its approach to the Claimant’s decision not to return to work.

In relation to section 44(1)(d), the questions to be answered were set out in Rodgers v Leeds Laser Cutting Limited [2023[ ICR 356 : did the employee believe that there were circumstances of serious and imminent danger at the workplace at the date he refused to return, and if so, was that belief reasonable. On the facts of this case, although the tribunal had been critical of the employee for failing to seek a referral to Occupational Health and his fixed approach to the need to maintain a two metre distance, the tribunal had analysed all the factors and entitled to conclude that the Claimant did not hold a reasonable belief.

 

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Last updated: 30 May 2023

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