Employment Law Developments – Looking Forward

Not only has the past year brought about a number of changes to the world of work, but a number of significant judgments have been reached in employment-related cases and are worth taking note of.

In this article we take a look at some recent judgments as well as looking ahead to an important upcoming case.

Recent Cases

  • Royal Mencap Society v Tomlinson-Blake – Pay and Benefits – This case concerned two care workers who as part of their roles had to spend the night at, or near, their workplaces. The workers were expected to sleep for most of the night-shift but would occasionally be woken up if their assistance was needed. Both workers received a fixed allowance for the night-shift, with one being paid additional sums if she was called on during the night for more than one hour, and the other receiving free accommodation all year round as well as the fixed allowance. Both workers claimed that they were being underpaid, arguing that the whole sleep-in shift amounted to working time. The case reached the Court of Appeal and it was held that the workers were available for work rather than actually working.  As a result  they were not entitled to be paid the National Minimum Wage for the whole sleep-in shift, but only for the time that they were required to be awake for the purposes of working. The workers appealed the decision to the Supreme Court, however their appeals were dismissed. This decision will be welcomed by many employers, especially those within the care sector., given that it adds some much needed clarity to this previously uncertain area.
  • Uber BV and others v Aslam and others – Employment Status – Many of you will be aware of the Uber case which has been well documented across the news recently. This case has now been heard by the Supreme Court and the judgment was delivered on 19th February 2021. It was held that Uber drivers are workers and not self-employed. This is a significant decision as Uber has no further right of appeal and therefore must accept that their drivers are workers under employment law in England and Wales. While we were awaiting the outcome of this case, thousands of linked cases across the UK were stayed. Given that an outcome has now been reached, these cases can be concluded and the floodgates may open for similar cases. It is strongly suggested that employers review the arrangements they have in place with any contractors following this judgment to ensure that they are not left open to worker status claims.
  • Rodgers v Leeds Laser Cutting Ltd – Unfair Dismissal and COVID-19 – Over the coming months it is expected that we will see a large number of COVID-19 related cases concerning unfair dismissal, discrimination and whistleblowing. In this case, the Claimant, Mr Rodgers contacted his line manager on 29th March 2020, stating that he would be staying away from his workplace “until the lockdown has eased” because he was anxious about infecting his vulnerable children (a baby and a child with sickle-cell anaemia) with COVID-19. The following month, the Claimant was dismissed. As the Claimant did not have over 2 years’ service to bring a claim for unfair dismissal, he instead issued a claim for automatic unfair dismissal, arguing that he had been unfairly dismissed as a result of refusing to return to work in circumstances of danger which he reasonably believed to be serious and imminent. The Employment Tribunal held that when judging whether or not an individual has a reasonable belief in a serious and imminent workplace danger, it is necessary to consider what was known when the relevant acts (e.g. dismissal) took place.  The Tribunal held that on the facts of the case, the Claimant was unable to demonstrate that such a belief was held and therefore his claim failed. In particular, the Tribunal referred to the following:
    • The Claimant had breached self-isolation guidance when driving a friend to the hospital on 30th March 2020, which brought his concerns regarding COVID-19 into question.
    • The Claimant’s message to his boss on 29th March 2020 did not mention concerns about dangers in the workplace and he was unable to demonstrate that there were any dangers. The employer had followed the Government’s safety guidance at the time.
    • The Claimant had acted inappropriately in not taking any steps to avoid danger and he also failed to raise any concerns with his manager before informing him that he would not be attending the workplace.

Although this decision is not binding (given that it is an Employment Tribunal decision), it does highlight to employers the importance of ensuring adequate COVID-19 safety measures are put in place as this could prove relevant in the defence of such claims.

An Upcoming Case

  • Mackereth v The Department for Work and Pensions and Another – Discrimination – In this case, a Christian doctor who was engaged to carry out health assessments for the Department for Work and Pensions (DWP) refused to address transgender patients by their chosen pronoun, which was in breach of DWP’s policy. Dr Mackereth claimed before the Employment Tribunal that he had been discriminated against on the grounds of religion or belief, stating that he had been put under pressure to renounce his belief, had been suspended and then summarily dismissed. Whilst the Tribunal held that Dr Mackereth’s Christianity was protected under the Equality Act 2010, it held that his particular beliefs that God only created males and females and that a person cannot choose their gender, and his lack of belief in transgenderism, were views incompatible with human dignity which conflicted with the fundamental rights of others. Therefore, the Tribunal held that these particular beliefs were not protected religious or philosophical beliefs under the Equality Act 2010.

We understand that Dr Mackereth intends to appeal the decision and it will be interesting to consider how the Employment Appeal Tribunal approaches the matter of precedence where two characteristics, both protected under the Equality Act compete.

If you would like more information about any of the issues raised in this article or on any other aspect of employment law, please contact us on 029 2034 5511 or at employment@berrysmith.com.