In this month's legal update, our Employment & HR team cover:

News:

• The temporary Covid-19 adjusted right to work check measures
• Employee status to all platform workers in Spain
• The issue of 'fire and re-hire'
• Will flexible working become the default option?
• Calls for long Covid to be recognised as a disability
• Have NHS England finalised a deal on holiday pay?

Commentary on recent employment law tribunal cases:

• Tesco staff can rely on article 157 of the TFEU - equal pay claims
• Further extension of philosophical belief
• Illegal performance does not prevent enforcement of contract terms
• Taking judicial notice of women with childcare responsibilities
• Dismissal for voicing concerns about commuting during lockdown
• Chef's dismissal for raising Covid-19 concerns

News

The temporary Covid-19 adjusted right to work check measures

In place since 30 March 2020, were extended from 16 May until 20 June 2021. These changes have allowed right to work checks to be carried out over video calls and for job applicants and existing workers to send scanned documents or a photo of their documents to employers via email or a mobile app, rather than sending the originals. However from 21 June 2021, employers must once again either:

• Check the applicant's original documents; or
• Check the applicant's right to work online, if they have provided the employer with their share code.

Employers will maintain a statutory defence against a civil penalty if the right to work check is undertaken in the prescribed manner or as set out in the Covid-19 adjusted checks guidance.

Employee status to all platform workers in Spain

In a move which may in turn be followed in the UK given the recent decisions in the gig economy cases, the Spanish government has passed significant legislation which will give employee status to all platform workers. The law will also give labour unions access to workforce management algorithms, enabling them to ensure that workers are not underpaid when there is fall in demand. Spanish employers in the food delivery and courier sectors now have until mid-August to change the status of the approximately 30,000 staff from workers to employees.

The issue of 'fire and rehire

The government has asked ACAS to investigate the issue of 'fire and re-hire', which has been in the news recently as a result of the well-publicised British Gas situation. A Commons debate commented that the evidence in the report is being given full consideration but that, while  it is "completely unacceptable" to use the threat of fire and re-hire as a tactic to pressurise workers during negotiations, the government should be cautious about intervening in commercial contractual matters between employers and employees. It is clear that the practice of firing and re-hiring should not be used as a "bully-boy tactic" in negotiations, but there must be the flexibility to fire and re-hire where it is "a matter of a choice over protecting jobs in the first place". There was no mention of this in the Employment Bill, which notably was not anyway referred to in the Queen’s speech. ACAS published its report on 8 June 2021, a consequence of which is that the government has no plans to ban the tactic.

Will flexible working become the default option?

The government has announced that it is commencing consultation regarding whether or not flexible working should become the default option unless there are good reasons not to do so. Apparently, it is not likely to go as far as enshrining working from home as a legal right, but there was mention in the Queen’s speech that it would consult on flexible working rights.

Calls for Long Covid to be recognised as a disability

The TUC has published a report on workers' experiences of long Covid. 5% of respondents stated that they had lost their jobs as a result of the impacts of long Covid. 79% of those who responded were key workers, with the majority comprising educators or health and social care workers. Consequently, the TUC has called for long Covid to be recognised as a disability and for Covid-19 to be classified as an occupational disease to provide for legislative protections and access to compensation for workers.

Have NHS England finalised a deal on holiday pay?

One of the most eagerly awaited Supreme Court judgments, that of the East of England Ambulance Trust v Flowers and others, which was due to be heard on 22 June, has been removed from the court hearing list. The appeal concerned whether holiday pay under the Working Time Directive must include regular voluntary overtime. It is believed the case may have settled as a consequence of a NHS-wide deal on holiday pay, effective in England only, which confirms that NHS employers should include regularly worked overtime and additional standard hours in the calculation of pay when NHS staff are on annual leave. It also confirms that existing legal claims will be resolved through local settlement discussions.

Commentary

Tesco staff can rely on article 157 of the TFEU - equal pay claims

Article 157 TFEU (Treaty on the Functioning of the European Union) sets out the fundamental EU principle of equal pay for equal work.  Following a request for a preliminary ruling from the Tribunal on whether or not the relevant Article can be directly effective in the UK, the ECJ has held, in K and ors v Tesco Stores that it is. As such, the Tesco staff bringing equal pay claims can rely directly on this Article regarding both "equal work" and "equal value" claims.

Thousands of current and former Tesco store-based employees brought proceedings claiming that they had not enjoyed equal pay when compared to colleagues in Tesco's distribution centres, contrary to the Equality Act 2010 and Article 157. The claimants argued that they were entitled to compare their work to that of male distribution workers under Article 157 notwithstanding that the work was carried out in different establishments. They argued that Tesco was the "single source" for both their terms and conditions and those of the male distribution workers. Tesco’s argument was that Article 157 did not have direct effect in respect of "work of equal value" and so could not be relied upon.

This is a case very similar to the Asda case recently, where the concept of whether or not Article 157 had direct effect in equal pay claims based on "work of equal value", was doubted by the Court of Appeal. The ECJ held that Article 157 had an unambiguous requirement to ensure that the principle of equal pay for male and female workers is applied. To draw a distinction between "equal work" and "work of equal value" would hinder the objective of Article 157.

Under Article 157, the work and pay of workers whose pay conditions, and those of their comparators, emanate from a “single source” can be compared even if they work in different establishments. Since Tesco Stores Ltd employed both the store-based and the distribution centre employees, this fulfilled the single source criterion.

Further extension of philosophical belief

The EAT case of Forstater v CDG Europe & Ors is a further example of the extension of what constitutes a philosophical belief and so is a protected characteristic.

The respondent is the European arm of an American not-for-profit think tank focusing on international development. The claimant took up a series of consultancy arrangements with the respondent, the last of which ended on 31 December 2018. The claimant alleged that her relationship with the respondent ended as a result of the ‘gender-critical’ opinions which she expressed publicly. These were that sex is a material reality and should not be confused with gender or gender identity. The claimant engaged in a number of debates on social media about gender identity issues and made some remarks which upset transgender people. There were complaints by some of her colleagues that they found her comments offensive. As a result, an investigation was undertaken and her consultancy was not renewed.

She alleged that the reason for this was because of her expressed views on gender identity and brought claims in an employment tribunal, one of which was that her gender-critical views constituted a protected ‘philosophical belief’ under the Equality Act 2010 and that she was discriminated against because her consultancy was not renewed as a result.

A preliminary hearing at the tribunal held that her views did not constitute a philosophical belief, applying previously established case law principles. However the EAT held that the tribunal had wrongly applied the criteria. It held that the employment tribunal had been wrong to find that the claimant’s beliefs were ‘not worthy of respect in a democratic society’ and that a philosophical belief would only not be protected if its expression was akin to Nazism or totalitarianism and so not likely to be protected under the European Convention of Human Rights. The claimant’s gender-critical beliefs, which were shared by many and which did not seek to trespass on trans persons, did not fall into that category. As such the belief that sex is immutable does qualify as a philosophical belief.

Illegal performance does not prevent enforcement of contract terms

In Robinson v His Highness Sheikh Khalid Bin Saqr Al Qasimi the Court of Appeal has reiterated the approach to common law illegality as a defence to claims for unfair dismissal. Employment tribunals must take account of the three considerations set out in a recognised case (whether, bearing in mind the illegality, allowing the claim would harm the integrity of the legal system and focusing on the underlying purpose of the law that has been breached; public policy considerations; and whether denying the claim would be a proportionate response to the illegality). In the light of these principles, the tribunal must consider whether there was sufficient connection between the illegal conduct and the content of the tribunal claim. Just because one of the parties to the contract had performed it illegally was not enough of a test for the doctrine of illegality to apply.

The respondent engaged the claimant to carry out various duties, believing her to be self-employed; the contractual arrangements stated that she would be responsible for her own tax. After a few years, the respondent took advice and told the claimant that it was likely she was in fact be an employee and so would have to be taxed at source. A few years on, the claimant told the respondent she had not paid tax on any earnings since 2007, and made out that the respondent should have put her onto a PAYE scheme and deducted tax at source from the outset.

The respondent started making statutory deductions from her gross pay and there was then a dispute about the amount she should be earning and about the amount of back tax payable. Eventually the respondent dismissed the claimant who brought a claim for automatic unfair dismissal having made a protected disclosure, as well as ordinary unfair and wrongful dismissal.

The tribunal found she had been dismissed because of the ongoing arguments about who should pay her tax , not because she had made protected disclosures. It also found that she had been wrongfully dismissed as she had not been paid 10 weeks’ notice – but that her claims could not succeed because they relied on a contract which had been performed illegally.

The claimant successfully appealed against the illegality point and the EAT remitted the case to the tribunal to decide on unfair and wrongful dismissal. The respondent appealed to the Court of Appeal, which dismissed the appeal on the grounds that one party to the contract performing the contract illegally was insufficient to render the illegality doctrine applicable here.

Taking judicial notice of women with childcare responsibilities

Dobson v North Cumbria Integrated Care NHS Foundation Trust concerned a case of flexible working and childcare responsibilities. The claimant was a community nurse who worked fixed days due to her childcare responsibilities, which included two disabled children. The trust brought in a flexible working policy requiring all community nurses to work flexibly. Because of her responsibilities, the claimant was unable to do so, and was dismissed. She brought claims for indirect sex discrimination and unfair dismissal.

The tribunal dismissed her claims on the basis that, although it accepted there was a provision, criterion or practice (PCP which applied equally to men and women, all the women, and the only man, affected by the change in practice were able to comply with it. The claimant had not produced any evidence that women particularly were placed at a disadvantage compared to men. While the tribunal accepted that she personally was disadvantaged, as she was the only one who could not comply with the new practice, she had not established that there was a group which was placed at a disadvantage compared to the rest of the group affected by the PCP. The tribunal anyway went on to hold that, even if it had agreed with her on this point, there would have been a justification argument that to impose flexible working was a proportionate means of achieving the legitimate aim of producing a safe and efficient service and encouraging flexible working to do so.

The claimant appealed to the EAT which accepted her appeal. With regard to the group disadvantage, it found that the tribunal had been wrong to only consider the group of community nurses in which she worked. The flexible working policy applied to all community workers across the trust and this was the pool which should have been looked at. It also agreed with her that no judicial notice had been taken of the fact that more women than men have childcare responsibilities and so are less able to comply with flexible working requirements.

The EAT said  that the two points to emerge from the authorities discussed were, first, that women bearing the greater burden of childcare responsibilities than men (which may limit their ability to work certain hours) is something of which judicial notice has been taken on several occasions (known as ‘the childcare disparity’). Secondly, that while there is no legislation requiring this disparity to be taken into account, it is one which courts have done at all levels for many years.

Dismissal for voicing concerns about commuting during lockdown

Although this case is not binding, because it is an employment tribunal decision only, it is an example that not all dismissals for expressing concerns regarding health and safety during the pandemic qualify as automatically unfair.

In Accattatis v Fortuna Group (London) Ltd the claimant worked for a company which distributed PPE and as such was understandably exceptionally busy during the pandemic. The claimant expressed concerns about the risks to his health in commuting during the pandemic and asked repeatedly to be furloughed. The company had no need to furlough him because it was extremely busy, and told him that his job could not be done from home because it involved distribution of goods. He was told he could take holiday or unpaid leave. The third time he made the request to work from home or be furloughed he was dismissed.

He brought a claim for automatic unfair dismissal on the basis that he had been dismissed for raising concerns regarding his health and safety under section 100(1)(e) of the ERA 1996 for having taken steps to protect himself from danger. He had insufficient service to claim ordinary unfair dismissal.

While the tribunal considered that he reasonably believed there was a serious and imminent risk of danger, it also found that he had not taken the reasonable steps required to help protect himself from these risks. He had been told he could stay at home, but he wanted to be furloughed, in circumstances where the company had no need to furlough him; or work from home on full pay, which was not feasible either due to the nature of the respondent’s business. The Tribunal decided that these were not sufficient steps to protect himself from risk and as such he was found not to have been automatically unfairly dismissed.

This case is another reminder that it is far from automatic that the pandemic may, of itself, justify a refusal to attend work under section 100(1)(e) if employers have reasonably tried to accommodate employees' concerns and reduce transmission risk.

Chef’s dismissal for raising concerns regarding health and safety automatically unfair

In a contrasting case, Gibson v Lothian Leisure, a tribunal has found that the claimant, a chef, was automatically unfairly dismissed for raising concerns regarding the lack of PPE in the workplace. His employer, a restaurant, temporarily closed and he was furloughed; when it reopened he was asked to return to work. He expressed concerns regarding the lack of PPE and other Covid secure precautions because his father, with whom he lived, was clinically vulnerable. He was sacked without any further investigation into his concerns or attempts to resolve them.

The employment tribunal found that he had been automatically unfairly dismissed under section 100(1)(e) of the Employment Rights Act 1996 because he had been taking reasonable steps to protect the health and safety of his father who was clinically vulnerable and who he reasonably believed to be in circumstances of serious and imminent danger. Alternatively, as he had been sacked via a text message, which indicated a restructure within the restaurant, he had been unfairly selected for redundancy anyway.

Both these two cases demonstrate the importance of the employer adopting a risk assessment approach to concerns raised by employees regarding the risks of the pandemic and how, in doing so, they can avoid decisions of automatic unfair dismissal against them.