Employment Law: 2022 in review and outlook for 2023

2022 was a quiet year for legislation, however there were a number of cases that made the headlines and are worthy of mention.

Holiday Pay (again)

Larger Contractor liabilities

In Smith v Pimlico Plumbers the courts had already established that Mr Smith had worker status and therefore was not self-employed. For round two, given his new worker status, Smith successfully claimed he was entitled to back pay for the holidays he had not taken during his tenure (a sum of around £74,000). The case is notable for two reasons. Firstly, it establishes that in cases where a worker does not take holiday because it would be unpaid, or where a worker takes unpaid leave because the employer refuses to recognise their right to paid holiday, their denied holiday entitlement carries forward each year. Secondly, because the claim was brought under the Working Time Regulations 1998, which doesn’t have a backstop, the claim stretched back over the full six years of tenure (historically claims have been brought under the Employment Rights Act 1996 as an unlawful deduction of wages, which has a two-year limit). The case therefore has a major bearing on potential liabilities attaching to misclassified contractors.

Part-year workers – time to review your holiday pay calculations

In Harper Trust v Brazel the Supreme Court took the view that a term time employee’s holiday entitlement should not be pro-rated, when compared to an employee who works for the full year. The court determined that an employee working on an indefinite contract should have 5.6 weeks of holiday based on their weekly working pattern, regardless of how many weeks they actually work in the year. The decision has the result that an employee that works for only one full week during the year would be entitled to 5.6 full weeks of holiday for that year. Employers should now review how they are calculating the holiday entitlement and pay for part-year workers (term-time, zero-hours etc.,) to ensure that they are compliant with the method laid out by the court and possibly look to minimise their exposure by using fixed term contracts which would then allow for a prorated approach.

What’s a disability?

Long COVID?

In the case of Burke v Turning Point Scotland, the Employment Tribunal held that long COVID could be a disability, if it satisfied the three-part test laid out in the Equality Act 2010. In this particular case, the tribunal found in favour of Mr Burke, because his long COVID was a physical impairment which had a lasting and sustained effect on his ability to carry out his normal day to day activities. The tribunal considered that despite him only having had the condition for nine months, it was likely that it would last beyond 12 months and thus satisfy the ‘long-term’ part of the test.

Menopause?

In Rooney v Leicester City Council, the Employment Appeals Tribunal held that the employee’s symptoms satisfied the definition of a disability because of their long-term nature (they had already lasted 12 months at the date of the tribunal) and also the substantial affect they were having on her ability to carry out her normal day to day activities.

TUPE - does a share incentive plan transfer under TUPE?

When TUPE applies, an employee transfers to the new owner on their existing terms of employment, and any change to these terms will be null and void.

In the case of Ponticelli UK Ltd v Mr A Gallagher, the transferring employee’s request that he be provided a similar share incentive plan was refused by his new employer on the basis that it a voluntary scheme and did not arise either ‘under’ or ‘in connection’ with his contract of employment. The tribunal disagreed and asserted that the employee was entitled to a substantially similar scheme because it clearly arose ‘in connection with’ the contract of employment.

Discrimination and Protected Characteristics

Philosophical beliefs

In Forstater v CGD Europe and others, Ms Forstater has the belief that a person's sex is an immutable biological fact and cannot be changed. Social media posts made by Ms Forstater in connection with this belief were reported to her employer as offensive and the employer took the decision not to renew her contract. Ms Forstater claimed direct discrimination. The tribunal upheld her claim on the basis that her beliefs were a protected characteristic under the Equality Act 2010 and that the social media communications were simply an assertion of this protected belief, and despite being provocative or mocking on occasion this was merely the ‘common currency of debate’ and could not be considered objectively offensive or unreasonable.

Gender

In Finn v The British Bung Manufacturing Company Ltd and Mr J King, Mr Finn was shouted at by a colleague who referred to him as a ‘bald {expletive}’. Finn brought a case for unlawful harassment on the ground of sex. The Tribunal found in Finn’s favour asserting that baldness being more prevalent in men than women is inherently related to sex, and his claim was successful because the remark met the statutory definition of harassment.