Important Employment Law cases of 2022 (so far)

It may be hard to believe but we are now half way through 2022. In this article we look back at some of the most significant employment law decisions so far this year and what they mean for employers.

Covid-19 in the workplace

One of the first decisions to be published this year was Allette v Scarsdale Grange Nursing Home Limited in which a tribunal decided that an employee who was dismissed for refusing to receive the Covid-19 vaccine was fairly dismissed. In January 2021 the care home where Ms Allette worked implemented a policy that all employees must receive the Covid-19 vaccine. Ms Allette refused to get vaccinated despite her employer explaining to her that the vaccine was safe and that it was necessary to protect staff and care home residents. Ms Allette was consequently taken through a disciplinary procedure and eventually dismissed for refusing to follow a reasonable management instruction.

The Employment Tribunal (ET) dismissed her unfair dismissal claim, finding that, in the circumstances, requiring vaccination was a reasonable management instruction and refusing to get vaccinated amounted to gross misconduct. This is a first instance decision and the tribunal judge was careful to state that dismissal for refusing to get the vaccine would not necessarily be fair in all circumstances. Nevertheless, the case does indicate that under certain circumstances, an employer may be justified in dismissing an employee for refusing to be vaccinated against Covid-19.

Other cases this year have looked at how employers have responded to health and safety concerns raised by employees. In the case of Best v Embark on Raw Ltd the tribunal found that an employee had been unfairly dismissed for raising health and safety concerns when her coworkers failed to follow the workplace’s Covid-19 safety measures. The ET found that the employer largely dismissed or downplayed Ms Best’s concerns, and called her “paranoid”. Amid rising tensions amongst other staff, the employer commenced disciplinary proceeding against Ms Best, which ended with her dismissal. 

The ET found that the “principal reason” for Ms Best’s dismissal was that she raised health and safety concerns, which are protected disclosures. She was therefore successful in her claim for automatic unfair dismissal.  

This case can be contrasted with Rodgers v Leeds Laser Cuttings where the tribunal dismissed the claim of an employee who argued he was automatically unfairly dismissed for refusing to work in circumstances he reasonably believed posed “serious and imminent” danger to health and safety.

The Employment Appeal Tribunal (EAT) did not accept that Mr Rodgers genuinely believed there were circumstances of serious and imminent danger in the workplace. Relevant to this decision was the fact that the employer had implemented various Covid-19 safety measures in the workplace, Mr Rodgers had failed to raise any specific health and safety concern with his employer at the time, and he had driven a friend to the hospital and worked in a pub when he was supposed to be self-isolating. 

Best and Rodgers show how unfair dismissal claims regarding health and safety will turn on their facts. Employers must take health and safety concerns seriously. If an employee has explained why they believe work conditions pose a serious risk to health and safety, the onus is on the employer to show they have taken appropriate steps to minimize the risk. Therefore, even where an employer feels they have taken all necessary precautions, they should still meet with the employee and investigate their concerns.

Vicarious Liability

In the case of Chell v Tarmac Cement and Lime Limited Mr Chell, a contractor, was seriously injured as a result of a company employee’s practical joke. Mr Chell claimed that the company was vicariously liable for the acts of its employee and that the company had been negligent for failing to take steps to prevent the foreseeable risk of injury.

The Court of Appeal rejected Mr Chell’s claim. It found that there was insufficient connection between the employee’s actions and his employment to make it “fair, just and reasonable” to hold the company vicariously liable. There was also no breach of duty on the part of the company to Mr Chell. The Court reasoned it would be “unreasonable and unrealistic” to expect employers to have in place a system to ensure employees did not engage in “horseplay” or practical jokes.

Though this case may reassure employers that there are limits to when the courts will hold them vicariously liable, employers should still ensure they have clear policies on what type of behaviour is acceptable in the workplace.

Holiday pay

In Smith v Pimlico Plumbers, Mr Smith was a worker who claimed back pay for unpaid annual leave he had taken. The ET and EAT had dismissed his claim, holding that it was out of time and that Mr Smith could only claim for annual leave that had not been taken as a result of the employer’s refusal to pay for such leave. The Court of Appeal reversed the lower courts’ decision. It reasoned that an employee could carry over and claim for unpaid annual leave unless their employer could show that they:

• openly and transparently gave the employee the opportunity to take paid leave;
• encouraged the employee to take their leave; and
• informed the employee that the leave would be lost at the end of the year if not used.

This case is especially important for employers who engage self-employed contractors. If such individuals can establish that they are in fact workers, they may be able to claim back holiday pay from when they first started working.

Employee Status

In the case of Nursing and Midwifery Council v Somerville the tribunal considered whether there is an irreducible minimum mutuality of obligation that must be present between parties for an individual to be considered a worker. 

Mr Somerville signed a Services Agreement which stated the council was not obliged to offer work and if it did, Mr Somerville was not obliged to accept. There was therefore no mutuality of obligation between the parties. Nevertheless, Mr Somerville filed a claim for unpaid holiday pay on the grounds that he was a worker.

In deciding Mr Somerville’s status, the Court of Appeal reasoned that there is no irreducible minimum mutuality of obligation that must be present between parties for an individual to be a worker. This means that an individual may still be classified as a worker in circumstances where there is no obligation on the business to offer work and no obligation on the individual to accept. When deciding whether an individual is a worker or self-employed, the tribunal will pay more attention to whether they have to perform the work personally, and whether the business appears to be a client or customer of the individual who is in business on their own account.

In another case involving a rideshare app, Johnson v Transopco UK Ltd, the tribunal found that a driver who operated the company’s rideshare app was in fact self-employed and not an employee or worker. Important to this decision was the level of control the company exerted over Mr Johnson, which the judgement said was “more consistent with an independent contractor in business on his own account.” Also relevant was that Mr Johnson was not dependant on the company for work and rejected most of the jobs that were offered to him through the app.  

Johnson adds to the growing case law regarding employment status, and confirms that each case will be decided on its own facts. When deciding the employment status of an individual, a tribunal may  consider the total business activities of the individual and how much work they carry out for the business they claim is their employer. The degree of control a business exercises over the individual also remains an important factor in determining employment status.

Redundancy

In White v HC-One Oval Ltd, the EAT made clear that an employee who volunteered for redundancy may still bring an unfair dismissal claim.

Shortly after being informed that she was at risk of redundancy, Ms White volunteered for redundancy. She subsequently brought a claim for unfair dismissal, which was dismissed by the ET as having no prospect for success. The EAT disagreed with this decision, making it clear that an employee who volunteers for redundancy is not resigning, they are agreeing to be dismissed for redundancy and therefore may still bring an unfair dismissal claim.

The EAT reasoned that in circumstances where the facts are disputed, an unfair dismissal claim cannot be assumed to be “fundamentally flawed”. Even where the tribunal is satisfied that the reason for dismissal was redundancy, it should still examine whether the redundancy process was fair. Employers must therefore treat requests for redundancy very carefully and ensure they always follow a fair process.

If you have questions about any of the above cases, contact our Employment Team on employment@warnegoodman.co.uk or call 023 8071 7717.If you want to receive weekly updates on employment law case updates, subscribe to our newsletter.