As we start the New Year we thought we would take a quick look back at some of the legal developments over 2021, and their relevance for purpose and values led organisations.

In the main, the cases from 2021 have supported our belief that organisations which reflect their purpose and values in all that they do and take a human approach to managing their people, will face the least risk in terms of employment law.

Here’s our selection:
Associative indirect discrimination  Follows v Nationwide Building Society It has always been understood that for an employee to bring an indirect discrimination claim they must have the relevant protected characteristic themselves. In contrast to direct discrimination, it was previously thought that individuals could not bring a claim for indirect discrimination based on their association or close connection with a person or group who have a protected characteristic. This employment tribunal decision, whilst not binding (as it is at first instance tribunal level) indicates that a carer for a disabled person could bring a claim for indirect disability discrimination, by association. Employers should therefore seriously consider employee requests for adjustments where they are caring for a disabled person, even if the employee is not disabled themselves.

It’s also worth noting that the government has confirmed its intention to introduce a new statutory right for unpaid carers to take up to one week of unpaid leave per year, when Parliamentary time allows.

Appeal against dismissal  Gwynedd Council v Barratt and another The Court of Appeal confirmed that not being offered the opportunity to appeal in a redundancy dismissal would not of itself make a dismissal unfair. However, the lack of an appeal would be taken into account in looking at the overall fairness of the dismissal. The tribunal had been particularly concerned about the lack of opportunity for the employees to be consulted about the dismissals and/or raise a grievance against the procedures used. So, in practice having proper consultation and offering an appeal is a sensible approach – experience shows that taking an open human approach, properly explaining the issues and really listening to employees reduces the risk of claims.

Subject access requests  The Information Commissioner’s Office has issued an enforcement notice against First Choice Selection Servces Limited for failure to comply with the subject access request from a person who was also making a claim in the employment tribunal. This is not a new development, but is a reminder of the increased use of subject access requests as part of an employment dispute. Employers need to have good procedures in place for dealing with subject access requests, and at the same time ensure that all their employees understand the fact that written communications about any colleagues (in any format and on any digital platform) risk having to be disclosed if a request is made. Sadly such full disclosures often have a significant impact on the chances of success in defending a claim.

Employers also need to take care to ensure that personal data is stored securely and safely. A former employee of another organisation was able to obtain separate compensation when her former employer had to confirm (following a subject access request) that they had lost her employment records.

Employment status  Early in 2021, the Supreme Court confirmed that Uber drivers are workers for the purpose of UK employment legislation. Other decisions about status followed over the year, with a key focus being on whether or not the contractual right for the worker to substitute another person in their place is fatal to any claim of personal service (and related employment rights). In Stuart Delivery Ltd v Augustine the Court of Appeal confirmed that the tribunal should first carefully consider how the arrangements operate in practice, as opposed to whether or not the term is recorded in the contract. So if there is an unfettered right to substitute someone else to do the work in the contract, that will be scrutinised in practice and it may not stand up, especially where an organisation has service standards, brand or uniform obligations, or eligibility requirements and vetting procedures. The trend so far has been for the self-employed gig economy workers to be treated as workers or employees with employment protection.

However, in Independent Workers Union of Great Britain v Central Arbitration Committee (a case about trade union recognition) the Deliveroo riders were found to be able to substitute without prior approval from Deliveroo, subject only to a limited restriction, and therefore their contracts were not for personal service, and they were not workers

This is an area where we expect to see continuing developments this coming year (a group action by drivers against Amazon is being explored). We therefore strongly encourage organisations to carefully review the status of their self-employed or casual workers to ensure that the arrangements are properly recorded and any risks managed.

Putting things right after the wrong has been done  Flatman v Essex County Council In this case there had been a breach of the manual handling regulations by the employer, resulting in injury to the employee. While the headteacher contacted the employee at home and was very supportive and made promises about how things would be handled going forwards, the employee still resigned. While the court acknowledged that real attempts had been made to put this right and there was genuine concern about the employee’s safety, it was not possible for the employer to remedy a fundamental breach after it had happened. The only option is to persuade the employee to stay and for the employee to effectively waive the breach.

We mention it as a timely reminder of the obligation on employers to be proactive and prevent breaches of the law and the contract from happening in the first place, instead of waiting for issues to be actually raised and then resolving them.

‘Fire and rehire’  Last year there was much debate about employers seeking to force contractual changes on employees by dismissal and re-engagement. The government asked ACAS to provide updated guidance, and at the end of last year this was produced – ACAS – Making changes to employment contracts, employer responsibilities. In essence, the guidance is for employers to ensure that they consider all the procedural steps, fully consult with employees, keep discussions constructive, stay focused on reaching a consensus and explore other options to reach a compromise.