Insights Worked up, your monthly employment law lowdown – March 2021

Welcome to the March edition of Worked Up!

Like us, you may find it hard to believe that we are approaching the anniversary of the start of the first UK lockdown back on 23 March 2020. Those of you looking forward to lockdown “birthday” celebrations unfortunately have to limit those to household members only while we wait a little longer for restrictions to be eased. On the upside though, with the end of restrictions tentatively planned for 21 June 2021, there are calls for this to be declared a “Merriweather Day” bank holiday!  Here’s hoping…

Merriment aside, it’s certainly been a busy 12 months for Chancellor of the Exchequer, Rishi Sunak, who delivered his budget on 3 March and confirmed the extension of furlough and self-employed support until the end of September 2021. With regards to the Job Retention Scheme, government relief will be tapered from July with employers being required to contribute additional amounts to workers’ wages (in a similar way to the tapered relief during August to October 2020).

In this month’s edition, we cover the Supreme Court’s recent judgment in the widely reported Uber case as well as an Employment Tribunal decision on the dismissal of an employee for failing to wear a face mask. We also consider the employment implications of “no jab, no job” policies and the suspension of the gender pay gap reporting deadline.

If you would like to discuss any of the below updates, please do get in touch.

Alternatively, if you would like to receive these updates directly to your inbox, please subscribe here.

This month's headlines

Uber and others v Aslam and others [2021] UKSC 5

In what was headline news, the Supreme Court has upheld a tribunal decision that Uber drivers are workers, meaning that they will be entitled to holiday pay, pension contributions and a whole host of other workers’ rights. While Uber’s contracts were drafted specifically to avoid worker status and the associated rights, this decision confirms that employers can’t simply draft their way out of worker status as the determination of worker status is a matter of statutory rather than contractual interpretation.

The court paid particular attention to the purpose of the various worker related legislation, which was said to be designed to protect vulnerable workers who have little say over their pay and working conditions because they are in a dependent and subordinate position to their “employer”. The court found that the Uber drivers in question were clearly in a subordinate position to Uber due to the tight control exercised by Uber. Uber was found to: control the remuneration received by drivers; control the drivers’ contractual terms; control the drivers’ acceptances of passenger requests; control the way in which the drivers delivered their services; and control the communication between the drivers and their passengers.

It remains to be seen how the decision will impact Uber’s operations as Uber are reported to have suggested that the decision only applies to a small number of drivers from 2016. But Paul Scully MP, Parliamentary Under-Secretary of State for the Department for Business, Energy and Industrial Strategy has stated that the Government will “make sure…that Uber complies with this judgment”.

What is clear is that worker rights are going to remain a hot topic so it’s important to ensure your business is aware of any potential risk in this area and that freelancers are correctly categorised. While the contract terms will not be determinative, they do establish the framework of control, which, as can be seen from the Uber case, is likely to be key in determining worker status.

Back to top

Covid-19 has naturally led to the relaxation of a number of statutory requirements. One which was perhaps welcomed by many employers this time last year was the suspension of the gender pay gap reporting deadlines for the 2019-20 year, which employers must otherwise have published by 4 April 2020.

The Equality and Human Rights Commission has recently announced that enforcement action against employers who fail to comply with their gender pay gap reporting obligations will start on 5 October 2021, which gives employers an additional six months to publish their data. Given the complexity that can be experienced compiling these reports, this is likely welcome relief for many of you.

Back to top

With widespread reports highlighting the significant impact that Covid vaccines are already having in our fight against the pandemic, many employers are understandably considering the introduction of vaccination policies. However, following the Prime Minister’s announcement of a review into the use of so called ‘vaccination passports’, there are clearly question marks around what may or may not be lawful in this area. This is clearly a ripe topic in need of further Government guidance but we have set out some key points to consider below.

Firstly, regardless of any policy you may decide to introduce, you cannot physically force workers to be vaccinated. Given it is a medical procedure, they will clearly need to consent to the vaccination. The issue therefore isn’t whether you can mandate a vaccine but what steps you might take in the event that a worker chooses not to be vaccinated. Some employers may be considering refusing unvaccinated staff access to their premises or only allowing them to carry out certain roles.  In other cases employers may consider dismissing such individuals. In each case, it will be crucial that you consider whether the proposed policy or course of action is reasonable in the circumstances. If it isn’t, the business could be exposed to risk – for example, it could amount to a repudiatory breach of contract, entitling employees to claim constructive dismissal.

The risk of discrimination claims will also need to be considered carefully. Many individuals may choose not to have the vaccine because of one of more protected characteristics, for example, because they are pregnant or for mental health reasons. In those cases, a policy decision could inadvertently trigger serious exposure to liability.

Any decision to introduce a vaccination policy should therefore be taken with care and ideally instances where staff refuse a vaccination should be dealt with consistently on a case by case basis.

Back to top

Kubilius v Kent Foods Ltd ET/3201960/2020

In this case, an employment tribunal held that an employee was fairly dismissed after he refused to wear a face mask when visiting a client site.

The employee in question was a driver who had been transporting products to Tate & Lyle (one of his employer’s major clients). He was repeatedly asked by a Tate & Lyle manager to put a mask on but he refused to do so while he was in the cab of his vehicle. His reasoning was simple – he wasn’t under an obligation to do so. Given this stance, Tate & Lyle banned him from their site and he was subsequently summarily dismissed by his employer for gross misconduct.

The employment tribunal held that the employer’s decision to dismiss fell within the range of reasonable responses, given the practical difficulties caused by the site ban and the lack of remorse shown by the employee. The employee’s dismissal was therefore held to be fair.

While this is only a first instance tribunal decision (and therefore not binding on other tribunals), it’s clearly a topical case and is indicative of the circumstances in which employers may be justified in dismissing employees during Covid times, in this case as a result of a failure to follow health and safety requirements mandated by a client. As ever, such decisions are likely to be highly fact sensitive and should be dealt with on a case by case basis with appropriate consideration as to whether or not it is reasonable to dismiss.

Back to top