Insights Worked up, your monthly employment law lowdown – February 2022

Welcome to Worked Up, the February edition!

With 2022 well underway, we remain hopeful of a positive year ahead with the prospect (touch wood…) of Covid finally not dominating the year’s headlines. Evidencing this, there are clear signs that the government’s Covid measures are slowly being phased out. Health Secretary Sajid Javid announced in mid-January that the self-isolation period for those who test positive has been shortened once again and is now five full days following two negative LFTs and there is talk that isolation will be scrapped entirely before too long. However, despite Covid-rules easing and case numbers dropping, the pandemic’s impact on employment tribunals will seemingly remain for some time as tribunals report of significant case backlog, with the average time from receipt of claims to a first hearing being 335 days for single claims.

In this month’s edition, we discuss the risks of well-meaning (but ultimately unfavourable) dealings with older employees suffering from ill-health, why some employees may miss out on an extra Platinum Jubilee related public holiday this year due to tightly drafted contracts, whether companies can cut sick pay for unvaccinated employees (and the risks of doing so), how working through an app does not necessarily determine employment status, and why tribunals have no patience for practical jokes in the workplace (and what that means for employers).

With reports that recruitment is on the rise within many employers and talent retention in turn becoming an even hotter topic than usual, we’re pleased to confirm that we are in the process of planning two live client briefings for the spring to tackle these very areas. Keep an eye out for further details on these soon – we’re certainly looking forward to having a chance to tell you about something other than Covid for a change!

If you would like to discuss any of our updates, please do get in touch. Alternatively, if you would like to receive these updates directly to your inbox, please subscribe here.

Chell v Tarmac Cement and Lime Limited [2022] EWCA Civ 7

The practical joke must be the lowest form of humour. It is seldom funny, it is often a form of bullying and it has the capacity, as in the present case, to go seriously wrong.

This was the scathing statement made by the High Court in its judgment on Chell v Tarmac Cement, a case which was recently heard in the Court of Appeal and which dealt with the scope of vicarious liability and direct duty against the factual backdrop of a workplace prank gone wrong. We take this rare opportunity to use the classic TV disclaimer before setting out the facts of this case: Please don’t try this at home (or work)!

In this case, an employee, Mr Heath, caused a small explosion by hitting two pellet targets with a hammer next to the appellant’s right ear. As a result of this “practical joke”, the appellant suffered noise-induced hearing loss in his right ear and tinnitus.

Although Mr Heath was at work when he caused the injury to the appellant, the High Court ultimately found no vicarious liability in this case. In reaching this decision, the High Court ruled that there was not a sufficient connection between the wrongful conduct and Mr Heath’s position at Tarmac (his employer) on the basis that Mr Heath was not in a position of power over the appellant, the wrongful act did not further Tarmac’s aims, and the appellant was not particularly vulnerable to the wrongful exercise of any power Mr Heath did have. The Court of Appeal upheld this decision and confirmed that the facts of the case demonstrate that there was not a sufficiently close connection between the act which caused the injury and Mr Heath’s work so as to make it fair, just and reasonable to impose vicarious liability on Tarmac.

In relation to any direct duty that the employer had on taking steps to prevent Mr Heath’s behaviour, there was nothing to put the employer on notice for the need of a risk assessment concerning horseplay. Indeed, it was held that it was unrealistic for the employer to provide a specific instruction against such horseplay, though it should be noted that if the employer is aware of dangerous practical jokes taking place at work and fails to take action, the court could potentially come to a very different conclusion.

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While IKEA is known for cutting prices, the Swedish company’s decision to lead the way in cutting sick pay for unvaccinated employees forced to self-isolate seems to have started a trend amongst retailers, with Next and Ocado also following suit.

So how risky is such a policy?  Well, while unvaccinated employees’ entitlement to statutory sick pay cannot be changed by employers, employers are largely entitled to operate contractual sick pay policies as they wish. However, care should be taken on how employers implement this change given the potential risk of indirect discrimination claims if those affected have not been vaccinated due to a protected characteristic (with disability and philosophical belief the two most likely candidates). There is also a risk that large scale changes to contractual sick pay policies could potentially trigger collective consultations requirements.

With Covid protection measures declining steadily, such a policy will arguably become more and more difficult to justify in the months ahead. We would therefore recommend that companies following in IKEA’s footsteps give their policies serious thought before they are implemented.

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Mrs J Hutchinson v Asda Stores Ltd: 1602504/2020

The recent case of Hutchinson v Asda is a stark reminder of the importance of exercising caution when discussing ill-health with older employees. In this case, Mrs Hutchinson, 75, had worked for the supermarket giant for 20 years before she started exhibiting symptoms of dementia. This had a noticeable impact on her work. In response to Mrs Hutchinson’s deteriorating condition, her work hours were changed and colleagues were asked to assist Mrs Hutchinson in her work. A few months after Mrs Hutchinson’s symptoms emerged, she began to shield as, being over 70, she was deemed clinically vulnerable to Covid, so she followed NHS guidance to stay at home for twelve weeks. When she returned to work, her condition had become noticeably worse.

While her colleagues were very supportive of Mrs Hutchinson throughout her employment and isolation period, the Employment Tribunal ultimately held that Mrs Hutchinson was treated unfavourably by Asda. Examples of unfavourable treatment included Mrs Hutchinson being asked if she wanted to retire on several occasions, a colleague going through her bag when she had lost her key and bus pass, and her symptoms being presented to her in a meeting, which caused her to become agitated. Mrs Hutchinson eventually quit and took her former employer to the Tribunal, winning her claims for constructive dismissal, age discrimination and disability discrimination.

We should mention that there was a reduction in the compensation awarded to Mrs Hutchinson, who was later diagnosed with dementia. It was noted by the Tribunal that, even with reasonable adjustments, had Mrs Hutchinson continued her work at ASDA, she would have more than likely been fairly dismissed within the year for reasons of incapacity due to the deterioration in her condition.

This case demonstrates the importance of handling concerns around an employee’s age and ill-health with considerable care as even the most well-meaning of intentions can be ill-informed or misconstrued.

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While workers might already be gearing up for street parties and pudding competitions to celebrate the Queen’s Platinum Jubilee June celebrations, it’s worth considering whether all workers are contractually entitled to an extra bank holiday.

This won’t always be straightforward with the devil invariably being in the detail or, in other words, the wording in the particular employment contract.

There are two groups of workers that are most likely to miss out in this respect. Firstly, those whose contracts entitle them to the “the usual” or “8” public holidays would technically miss out unless their employer expressly grants the extra day. Secondly, those whose holiday entitlement only stretches to the statutory minimum (which would cover most casual, zero-hour or freelance workers) will also have no automatic right to an extra day’s leave.

While your workers may not have a contractual right to paid leave, an employment relationship is more than just words on a page. We suspect the majority of businesses will provide the additional paid day off regardless of contractual entitlement.

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Johnson v Transopco UK Ltd EA-2020-000780-AT

For those familiar with the Supreme Court’s judgement in the Uber case last year, Johnson v Transopco is a good reminder that employment status should always be considered on a case-by-case basis.

The Claimant worked full-time as a self-employed black-cab driver for several years before downloading the Mytaxi app. The Claimant used Mytaxi to procure work on an ad-hoc basis but continued to source the majority of his work himself. After using Mytaxi for a year or so, he was removed from the app. Subsequently, he issued claims for protected-disclosure detriment, for working-time holiday pay, of unlawful deduction from wages and of failure to pay the national minimum wage, all of which depended on him being a worker of the Respondent.

The Employment Tribunal held that the Claimant was not a worker of the Respondent. While there was a contract for transportation services between the Respondent and Claimant which created an obligation for personal services, the Claimant could provide these services when he wanted, was not subject to any control on how these services were performed and only a small portion of the Claimant’s earnings (approx. 15%) were derived from work sourced via the app.

On appeal, the Employment Appeal Tribunal dismissed the appeal and agreed that the Employment Tribunal had reached the correct conclusion.

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