Key developments during 2021
After the upheaval of 2020 caused by the Covid-19 pandemic, 2021 was just as problematic from an employment law perspective in terms of navigating the issues caused by the pandemic including furlough, mandatory vaccines, and sickness absence caused by the virus/periods of isolation.
We are now starting to see decisions related to Covid-19 coming through in the Employment Tribunals, and whilst it is hoped that 2022 might be easier in terms of the employment issues caused by the pandemic, it’s definitely not the last we will have heard of it.
In addition to Covid-19 considerations, there were also a number of important employment law updates during 2021 that were not related to the pandemic.
This article provides a swift roundup of some of the key developments during 2021.
Menopause at work
Issues surrounding menopause at work have received a lot of media attention over the course of 2021, and many employers are now looking at how they might be able to support employees who are going through menopause. A number of large companies have already introduced measures and policies that specifically support menopausal employees.
In July 2021, the Women and Equalities committee (‘the Committee’) launched an inquiry to consider and scrutinise existing legislation and business practices surrounding menopause and the workplace, to ascertain whether the current arrangements go far enough to support those going through menopause at work.
At present, there is no standalone legal protection for women going through menopause, and if they do experience an issue, they are required to bring claims in the Employment Tribunal for sex, age, and/or disability discrimination. We are seeing more and more cases where menopause is a factor, however, case law has shown that sometimes, the issues which women are experiencing do not fall neatly into the categories currently available to them under the Equality Act 2010.
Many menopause support organisations have been campaigning for workplace protections for menopausal women akin to those provided during pregnancy and maternity, and it remains to be seen whether the outcome of the Committee’s enquiry will prompt further discussions regarding the adoption of menopause as a protected characteristic under the Equality Act 2010.
In 2021, there were a number of cases that considered employment status and working time. The most significant of these cases was the Supreme Court decision in Uber BV v Aslam which considered the employment rights of Uber drivers and concluded that they were workers for the purposes of the Employment Rights Act 1996.
Whilst a number of factors were considered, this case demonstrates that the level of control that a business has over an individual it engages will influence the decision as to whether those individuals are regarded as workers or not.
Being a worker means that an individual has a number of rights including the right to paid holiday, to national minimum wage, and the right to bring claims such as discrimination and whistleblowing. Of course, this places a financial and administrative burden on businesses.
The Uber BV v Aslam decision sets a precedent regarding how tribunals will determine employment status going forward and undoubtedly has and will continue to have an impact on the gig economy as a whole.
As a result, there is likely to be an effort from businesses to amend their platforms to ensure that the individuals it engages are self-employed rather than workers, and this is likely to involve the business giving the individual more control over how they carry out their services. This will no doubt involve a careful balancing act between retaining the customer service levels of the business, against having certainty regarding the employment status of the individuals it engages.
Covid-19 vaccinations made mandatory for care workers
One particularly controversial decision made by the UK Government in 2021 was the implementation of mandatory Covid-19 vaccinations for care workers.
On 11th November 2021, The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 came into force. The Act requires anyone who works inside a Care Quality Commission (CQC) registered care home in England to have received a full course of an authorised covid-19 vaccine before entering care home premises unless they are exempt.
It is worth noting that in the recent case of Allette v Scarsdale Nursing Home Ltd an Employment Tribunal found that the dismissal of a care home employee for refusing to accept the Covid-19 vaccination in January 2021 was fair.
Fear of catching Covid-19 did not meet the criteria to succeed with a discrimination claim
In December 2021, the Manchester Employment Tribunal handed down a judgment in a claim brought by an employee who claimed that she had been subjected to discrimination as a result of her fear of catching Covid-19.
In this case, an employee refused to return to the workplace because of her health and safety concerns in the wake of the pandemic and what she described as a “genuine fear” of catching Covid and passing this to her partner who was at risk of becoming seriously ill in the event he contracted the virus. The employer refused to pay the employee and she claimed that this financial detriment amounted to discrimination on the grounds of religion or belief. Specifically, the employee argued that she held a philosophical belief in the form of “a fear of catching Covid-19 and the need to protect myself and others”.
While the Judge decided that some aspects of the criteria were met by the employee, including that her fear was sufficiently serious and worthy of respect, ultimately she fell short of meeting all of the requirements and it was decided that the employee’s fear of catching Covid-19 did not amount to a philosophical belief, meaning that she failed in her discrimination claim.
Should you have any questions relating to the topic covered or any other employment law-related issue, please do not hesitate to contact a member of the team. We are here to help your business with any employment law challenge.