Employment Case Law Update January 2023

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Read on for our monthly digest for employers on upcoming employment law changes and key employment cases that have recently been decided.

 

Government consultation on part-year worker holiday entitlement 

The Government has published a consultation paper to address the issues raised by last year’s Harpur Trust v Brazel Supreme Court decision.

As a result of Harpur Trust, part-year employees now have a higher holiday entitlement than part-time employees who work the same total number of hours over the course of the year.

The Government intends to rectify this gap so that workers’ holiday compensation and entitlements are proportional to the amount of time they spend working.

The proposal is to replace the 52-week reference period in which weeks without compensation are disregarded with a 52-week reference period that includes weeks without compensation. According to its impact assessment, this adjustment will save employers £113 million annually.

The purpose of the consultation is to determine the ramifications of the decision on various industries, particularly contingent workers with complex contractual arrangements. The government wants to guarantee that any changes would not negatively impact other areas of law.

The government is inviting views from as many stakeholders as possible until 9 March 2023.

 

Government consultation on draft ‘fire & rehire’ Code of Practice

The Department of Business, Energy, and Industrial Strategy (BEIS) has launched a consultation seeking feedback on a draft of a legislative Code of Practice that outlines the duties of employers when attempting to modify employment terms and conditions.

The draft ‘Code of Practice on Dismissal and Re-engagement’ relates to the practice often referred to as “fire and rehire.” It outlines the obligations of employers when attempting to modify employment terms and conditions if dismissal and re-engagement are possible outcomes. Employers are required to speak with employees and consider other choices without using the fear of termination to coerce workers into accepting new terms.

BEIS stated the consultation is “an opportunity for all interested persons and groups to explore the proposed Code, assess its provisions, and provide feedback.”

Ahead of releasing a Government response and final version of the Code in due time, it has stated that it will analyse all contributions and consider all opinions voiced.

The consultation is open until 18 April 2023.

The fire and rehire approach gained notoriety during the pandemic lockdown, when a number of companies attempted to terminate employees and then rehire them under alternative terms and conditions.

Business Secretary Grant Shapps stated, “The government has made clear that threats of termination and rehiring should not be used as a negotiating technique.” Reengagement and termination should only be considered as a final resort. We anticipate that all businesses will interact effectively with their workforces and representation, while evaluating all available options.”

 

Health & safety unfair dismissal

Rodgers v Leeds Laser Cutting Ltd

This Court of Appeal decision dealt with a case relating to health and safety dismissals during the early stages of the pandemic.

In March 2020, Leeds Laser Cutting Ltd informed its employees that COVID-19 protection measures were being implemented. Employees were instructed to continue working as normally as possible.

Mr Rodgers was a laser operator who was able to maintain social distance for most of his role. He text his manager to say he was unable to come into work until lockdown was lifted, indicating he had a 7-month-old baby and a child with sickle cell anaemia who “would be severely ill if he contracted the virus.”

His employer dismissed him in April 2020 due to his absence without leave or explanation.

Mr Rodgers asserted that his dismissal was automatically unfair under Section 100 of the Employment Rights Act 1996 and that he was dismissed for exercising his right to stay away from the workplace which he reasonably believed presented a risk of serious and imminent danger. He did not meet the two years’ continuous employment requirement to claim ordinary unfair dismissal.

The matter was considered by the Employment Tribunal and the Employment Appeal Tribunal, which both ruled against the claimant. Mr Rodgers filed a second appeal and the Court of Appeal heard his case.

The Court of Appeal provided general guidelines on how employment tribunals should evaluate certain health and safety-related dismissal cases:

  • Did the employee believe that circumstances at work posed a severe and impending threat?
  • Was this belief rational?
  • Could they have reasonably avoided the risk?
  • Because of the (perceived) substantial and impending threat, did they leave, intend to leave, or refuse to return to the workplace?
  • Was that the reason (or major reason) for the dismissal?

 

The Court of Appeal also refused the appeal, finding that the Employment Tribunal had been right to determine that Mr Rodgers did not have the requisite belief and “did not feel substantially at risk in the workplace”. The Court of Appeal also confirmed that it was not automatically unreasonable to dismiss an employee who absented themself from work during the COVID-19 pandemic.

 

Employer takeaway

This judgment illustrates that employers who are able to establish a considered and measured approach to COVID-19 (or any other form of health risk) should be well-positioned to defend any claims brought under section 100(1) of the ERA. It also indicates that employee concerns about health and safety must have some relevance to the workplace to acquire the protection of Section 100 (1)(d) ERA 1996.

 

Need assistance?

If you have a question about employment case law and the impact of tribunal and court decisions on your business, DavidsonMorris’ experienced employment lawyers can help. Working closely with our specialist human resource colleagues, we offer a holistic advisory and support service for employers encompassing both the legal and people risks of workforce management. Speak to our experts today for advice.

Last updated: 30 January 2023

Author

Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.

She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.

Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

About DavidsonMorris

As employer solutions lawyers, DavidsonMorris offers a complete and cost-effective capability to meet employers’ needs across UK immigration and employment law, HR and global mobility.

Led by Anne Morris, one of the UK’s preeminent immigration lawyers, and with rankings in The Legal 500 and Chambers & Partners, we’re a multi-disciplinary team helping organisations to meet their people objectives, while reducing legal risk and nurturing workforce relations.

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