The Employment Tribunal cases in 2022 that employers should be aware of

2022 is looking to be another busy year for employment law in the courts and tribunals, with important decisions expected regarding holiday pay, vicarious liability, and protected beliefs. Our Employment Law team today reviews the key cases that employers should be watching for in 2022. 

Holiday pay calculations – the case of Harpur Trust v Brazel

This appeal was heard by the Supreme Court in November 2021 and is probably one of the most eagerly anticipated decisions of 2022, with potentially significant implications on how employers must calculate holiday pay for part-year workers.

Ms Brazel was a peripatetic music teacher. She only worked during term time and worked irregular hours. Under her employment contract, she was entitled to the full-time equivalent of 5.6 weeks’ paid annual leave, to be taken during the school holidays. Her employer calculated her holiday pay as 12.07% of the hours she actually worked during the year. She argued that, under the Working Time Regulations, her pay should be calculated using her average weekly earnings during the 12 weeks before she went on holiday.

The Court of Appeal agreed with Ms Brazel, with the decision meaning that an individual engaged on a part-year, permanent contract would be entitled to receive proportionately more holiday pay than an equivalent full-year worker. The Supreme Court’s final decision on the matter is eagerly awaited by businesses in sectors that frequently engage part-year workers, such as the education sector. 

Vicarious liability – the case of Chell v Tarmac Cement and Lime Limited

In this case, a contractor had been unintentionally injured as a result of an employee’s practical joke. The High Court ruled that the employer was not liable for the injury, with Justice Spencer reasoning that the employee’s actions were unconnected with any instruction given to him and that it would be “expecting too much of an employer to devise and implement a policy or site rules which descend to the level of horseplay or the playing of practical jokes.”

This case has been appealed to the Court of Appeal. If the High Court’s decision is upheld it will join other recent cases such as Morrisons and Barclays where the courts have articulated limits on vicarious liability for employers.

Holiday pay – the case of Smith v Pimlico Plumbers

In 2022, the Court of Appeal is scheduled to hear this long-running case concerning the carry over of holiday pay. Mr Smith’s employer refused to pay him during his annual leave, arguing Mr Smith was a self-employed contractor and therefore not entitled to paid annual leave.

Once it was established that Mr Smith was in fact a worker, he tried to claim back pay for the unpaid annual leave he had taken. The Employment Tribunal (ET) dismissed this claim, holding that it was out of time because Mr Smith had brought the claim more than three months after his last period of unpaid holiday. Mr Smith appealed, arguing that he should be entitled to carry over that leave and receive payment for the whole of his unpaid leave on termination of employment.

In March 2021, the Employment Appeal Tribunal (EAT) affirmed the ET’s decision, confirming that workers would only be entitled to carry over unpaid leave where the worker did not take the leave because the employer refused to pay for it. This did not apply to Mr Smith’s case as he had in fact taken his leave. Mr Smith’s claim therefore was out of time. The EAT’s decision effectively limits the amount of backdated holiday pay a worker can claim where they have taken unpaid annual leave and employers will be eagerly waiting to see if the Court of Appeal upholds the lower courts’ rulings.  

Protected beliefs – the case of Higgs v Farmors School

Permission to appeal to the EAT has been granted in this case in which a school employee alleges she was dismissed for her beliefs on gender fluidity and homosexuality.

Mrs Higgs was dismissed after making several homophobic and transphobic posts on social media. The ET found that Mrs Higgs’ was not dismissed for her beliefs but because of the negative impact her beliefs could have on pupils, parents, and the wider school community. Her claim of unfair dismissal was therefore dismissed.

However, the ET also reasoned that though Mrs Higgs’ beliefs would be offensive to some, they were nevertheless protected under the Equality Act 2010. This conclusion conflicts with earlier cases in which the ET had held that similar beliefs regarding homosexuality and gender fluidity were not protected because such beliefs conflicted with the fundamental rights of others and were not worthy of respect in a democratic society. A further decision from the EAT on this case may bring some clarity.

We are not able to say with any certainty when to expect decisions in any of the above cases but we will keep you updated as and when they occur. We will report on the decisions in our Employment Law Newsletter which you can subscribe to by completing our subscription form or emailing us at events@warnergoodman.co.uk. . If you have any questions about the current state of employment law, please contact our Employment Team on employment@warnegoodman.co.uk or call 023 8071 7717.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.