Employment Law E-Bulletin – Issue 86

• An Overview of 2022
• 2023: What’s to come?

Overview of 2022

Employment Status 

Questions surrounding employment status remained prevalent throughout the year. The case of Nursing Midwifery Council v Somerville confirmed that a minimum level of ‘mutuality of obligation’ is not required to attain worker status; personal service is all that is required. Mutuality of obligation, which essentially means that there is an obligation on the employer to offer work and an obligation on the worker to accept that work, is an irreducible minimum of employee status only.

Despite employee status still being an area of uncertainty at times, the Government has decided, following the Good Work Plan, that there will be no legislative reform on employee status. Employers should therefore be mindful of the nature of the relationship between their business and their staff to ensure that they are assigned to the appropriate employment status.

Use of agency workers during industrial action

2022 has seen industrial action from railway workers, postal workers, NHS workers and many more. The Government sought to address this issue with the enactment of the Conduct of Employment Agencies in Employment Businesses (Amendment) Regulations 2022, which allows employers to fill staffing gaps caused by strike action with agency workers.

Assessing Disability

Cases in the Employment Tribunals demonstrated the importance of looking at the effects the condition has on the particular person, rather than the condition itself, when assessing if someone has a disability for the purposes of the Equality Act 2010. In Burke v Turning Point Scotland, long covid was held to be a disability within the meaning of s6 Equality Act 2010 because:

1. It was a physical impairment which had an adverse effect on the employees ability to carry out normal day-to-day activities
2. The effect was more than minor or trivial
3. It was long term as it ‘could well’ last for a period of 1 months when viewed from the dismissal date.

This case illustrates the correct test to be applied when assessing if an employee is a disabled person.  This was also highlighted in Rooney v Leicester City Council where it was confirmed that the symptoms experienced during menopause can amount to a disability.

Gender Critical Beliefs: a Protected Characteristic?

Gender critical beliefs have been the subject of several judgments over the past year. In Mackereth v DWP, a doctor was not discriminated against when he was required to address transgender patients by their chosen pronouns, which he refused to do. However, in Forstater v CGD the claimant was successful in her direct discrimination claim when her employer refused to renew her contract due to her expressing her gender critical beliefs.

The key point to take from each of the cases is that gender critical beliefs can be a protected characteristic, however it depends how these views are expressed as to whether there can be a successful claim for discrimination.

Holiday Pay

The decision of Harpur Trust v Brazel left many employers wondering whether they were calculating their employees’ holiday pay correctly. This decision relates to part year workers, and it was held that the ‘calendar week method’ is the correct method to calculating holiday pay for these workers, as opposed to the 12.07% method.

In response to this decision, on 12 January 2023, the Government launched a consultation Calculating holiday entitlement for par-year and irregular hour workers. The Consultation states that, as a result of Harpur Trust, part-year workers are now entitled to a larger holiday entitlement than part-time workers who work the same total number of hours across the year. The Government is keen to address this disparity to ensure that holiday pay and entitlement received by workers is proportionate to the time they spend working. It will therefore be interesting to see the outcome of this consultation and how these issues will be addressed.

Retained EU Law (Revocation and Reform) Bill 2022/2023

A further significant development we saw in 2022 was the introduction of the Retained EU Law (Revocation and Reform) Bill (“the Bill”), which, as it currently stands, has the potential to significantly alter employment rights once it comes into force.

The proposed sunset date of 31 December 2023 means that all retained EU law will automatically be revoked, unless otherwise preserved by Parliament before this date. This includes areas that we deal with on a daily basis such as the Working Time Regulations 1998 and Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”).

The Bill gives significant power to the Government to amend the wording and effects of retained EU law, even if preserving it beyond the sunset date. It is therefore likely that there will be some notable changes in the sphere of employment law once the Bill is enacted.

What to expect in 2023

Retained EU Law Bill

The changes we can expect to see as a result of the Bill are largely unknown. Some predictions suggest that the ban on harmonisation of contractual terms following a TUPE transfer will be removed. It has also been suggested that we will see changes to the rules under the Working Time Regulations. The Bill does allow for retained EU law to be preserved in its entirety, meaning that there could be little to know change at all. However, it is difficult to see why the Government would be afforded the powers to re-write and repeal retained EU legislation if it had no intentions to use them… We therefore await with interest to see what is to come.

We may of course not see the effects of the Bill in 2023, if the sunset date is extended. The Bill provides that it may be extended to June 2026, and following criticism that such drastic changes cannot be made in such a short amount of time, it looks like this extension is likely to be utilised…

Agency workers during strike

As mentioned above, the Government attempted to address the issues caused by the effects of strike action with the Conduct of Employment Agencies in Employment Businesses (Amendment) Regulations 2022 (“Regulations”). However, these Regulations have not gone down well with the unions. UNISON and TUC have launched judicial review proceedings to challenge them on the basis that they breach article 11 of the European Convention on Human rights.

On 14 December 2022, the High Court granted permission for the judicial review. This means that a judge will make a decision as to whether the implementation of the Regulations was done fairly and legally. The review is expected to be heard in March 2023… will the Regulations be short lived?

Flexible Working

An extension of the right to request flexible working is also firmly on the cards for 2023. On 28 October 2022, the Government announced it would be supporting the Private Member’s Employment Relations (Flexible Working) Bill 2022-23. This will introduce a requirement for employers to consult with employees before they reject a formal request, reduce the time an employer has to make the decision from 3 months to 2, and will allow an employee to make 2 requests in any 12 month period, increasing from 1.

The Bill does not currently remove the condition of 26 weeks’ service to make a flexible working request. However, on 5 December 2022 the Government’s response to the flexible working consultation announced that secondary legislation will be introduced to make the right to request flexible working a day one right for employees. These announcements suggest that the changes to the flexible working regime are likely to happen sooner, rather than later.