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

Welcome to the last Worked Up edition of 2021!

The festive season has truly begun as we have been snowed under (in some places, quite literally) by employment law news over the last month. Firstly, discrimination in sports hit the headlines as former Yorkshire County Cricket Club Capitan Azeem Rafiq publicly raised some serious allegations of bullying and racism against his former club – if you are interested in this case, check out our article on Rafiq’s allegations and the associated issues related to these allegations. Refusing flexible working requests continues to cost employers, with Flexonomics estimating that a refusal to accommodate flexible working requests is costing UK businesses £2 billion a year. Although ministers blocked the fire and rehire bill (mentioned in last month’s edition), Acas will be publishing guidance which (spoiler alert) we will no doubt cover in a future edition of Worked Up!

While many of us had hoped to bring in the new year like it was 2018 (the new 1999), the Omicron variant looks set to scupper many a planned festivity across the UK. That is of course unless you work in Downing Street where we can only assume plans are underway for a Covid proof masquerade ball given how controversial cheese and wine is these days.

This month’s edition covers the impact of the government’s Plan B in the workplace, whether paranoid delusions can be classed as a disability, the impact of AI and algorithms on the employee-employer relationship, how the omicron variant has impacted travel, the importance of handling IR35 correctly, and whether a tribunal can determine that an objective justification is obvious.

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

Sadly, it has now been confirmed that the government will be implementing their Covid “Plan B” this winter Covid. With cases of the (potentially) more transmissible Omicron variant set to double daily and the yearly strain on the NHS over the winter period already coming to the fore, this is no real surprise.

Christmas parties, for the time being, still have the green light (much to the relief of Downing Street, we imagine), though many employers have already cancelled or re-arranged their yearly shindig given the potential heightened health and safety risks. However, some of the additional restrictions of Plan B include mandatory vaccine certification for indoor events with 500+ attendees or outdoor events with a crowd of 4000+ attendees, mandatory face masks in public settings, the re-introduction of guidance to encourage working from home (if possible) and daily testing for those identified as a contact of a Covid case. This is on top of the recent requirement that those who are double vaccinated will now need to isolate if they are a close contact of an Omicron infection.  So, what does all this mean for employers?

Maybe not as much as you might think. Many employers have already embraced flexible / hybrid working and a move back to full-time home working is unlikely to significantly disrupt business now that many employees have the appropriate equipment and experience to work from home effectively. For TV and Film productions and other businesses that need employees to be physically present, the requirement to work from home notably only relates to roles where that is possible and there is no strict lockdown (at least not yet).

Other than fewer people coming into the office over the festive season (which was perhaps anticipated by many companies in the run-up to Christmas), Plan B is unlikely to significantly impact employers, particularly when compared against the lockdown restrictions brought into force intermittently since March 2020. That said, it will be good practice to issue employees with some guidance on the practical aspects of working from home and to re-emphasise that working from home should be the default position until further notice (unless it is not possible to do so).

While we don’t want to be the bearers of bad news, B is of course only the second letter of the alphabet and it could be that further restrictions are introduced later this December or in early 2022. It is anticipated that Germany will make vaccinations mandatory in the new year and many countries, including the UK, have already introduced legislation requiring frontline health and social care workers to be vaccinated which may be the first of many professions to have vaccinations as a condition of employment (although the Health Secretary has indicated so far that he is against a widespread mandate of vaccinations).

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The unwelcome news of a new and more transmissible Covid variant has resulted in a change to the UK’s travel rules. All travellers aged 12 years and over must take a PCR or Lateral Flow test before they travel to the UK from abroad. This applies whether the person is vaccinated or not. Previously someone who was ‘fully vaccinated’ was not required to do this. Vaccinated travellers must then take a pre-booked PCR test in the two days after they arrive and must isolate until they have a negative test result. Non-vaccinated travellers must take a PCR test on days 2 and 8 after arrival, then must self-isolate until 10 days have passed or a negative result is received on the day 8 test. Passenger locator forms are also required.

The rules are significantly more onerous for travellers who have been in a ‘red list’ country in the 10 days before arrival. Only those with British or Irish nationality, or who have ‘residency rights’ in the UK, are permitted to enter the UK from these countries. Travellers must have a negative pre-departure test, and then isolate in a hotel for 10 days. Nigeria has been added to the existing red list countries of South Africa, Namibia, Zimbabwe, Botswana, Lesotho, Eswatini, Angola, Mozambique, Malawi and Zambia. A traveller can only stay at an approved hotel and the costs of the stay (and the quality of the food provided) have been criticised, including by the actor Richard E. Grant who was forced to quarantine at a Gatwick Holiday Inn on return from a recent trip to South Africa.

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Mr S Sullivan v Bury Street Capital Ltd [2021] UKEAT/0317/19/BA

The recent case of Sullivan v Bury Street Capital Ltd is an apt example of the importance of getting to grips with the law surrounding disability discrimination and taking a tailored approach when managing an employee who is having difficulty carrying out their work due to a mental or physical condition.

In Sullivan, the Court of Appeal found that an employee suffering from paranoia was not disabled on the basis that his paranoid delusions were not long term or likely to recur. Mr Sullivan, a senior sales executive, had reoccurring delusions of being pursued by a Russian gang following the breakdown of his relationship with a Ukrainian woman. These delusions affected Mr Sullivan’s performance at work from May 2013, however the Court of Appeal found that these delusions did not substantially impact Mr Sullivan’s ability to carry out his work after September 2013.

As is often the case, whether an illness or condition is a disability will rest on the facts as few medical conditions materialise in precisely the same way . On the facts of this case, Mr Sullivan’s paranoia was held not to be a disability. His delusions did not have a ‘long term’ effect on his ability to carry out normal day-to-day activities as his delusions only affected his work from May to September 2013. Critically, this decision does not rule out the court classing paranoid delusions as a disability in the future. The fact-specific nature of disability means that a less episodic paranoid individual whose condition impacts them for a period longer than twelve months is more likely to meet the legal definition of disability.

Although disability discrimination claims can seem like a game of Russian roulette where it is difficult to predict how a tribunal will respond to the facts of the case, an employer who is well-informed about the legislative framework surrounding disability discrimination can successfully increase the odds of defending a disability discrimination claim / avoiding a claim altogether.

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Little Piece of Paradise Ltd v Revenue and Customs Commissioners [2021] UKFTT 369 (TC)

The recent case involving former Sky Sport presenter Dave Clark and HMRC is a timely reminder that IR35 remains a pertinent issue as we bring in the new year.

In Little Piece of Paradise Ltd v Revenue and Customs Commissioners, the First-tier Tribunal (FTT) found that the relationship between Sky and boxing and darts commentator Dave Clark amounted to a contract of service. The FTT therefore dismissed the appeal made by Mr Clark’s service company against National Insurance Contributions notices and PAYE determinations. Some of the factors that influenced this judgment included a fettered right of substitution, restrictions on Mr Clark’s ability to present for other broadcasters, and a clear mutuality of obligations, whereby Mr Clark was being paid regardless of whether work was done or not.

While this is a high-profile victory for HMRC, businesses should not be dissuaded from engaging contractors. IR35 can, understandably, still feel like a minefield where one wrong step (or inaccurate status determination) can lead to a host of liabilities. That said, a solid understanding of IR35 and tax status often proves an excellent tool for successfully navigating this area of law.

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In this digital era, algorithmic systems and monitoring are transforming the workplace. The use of algorithmic surveillance, management and monitoring technologies has increased considerably for many businesses during the pandemic and only looks set to expand further as hybrid models of working become the norm.

While AI and algorithms most certainly have their place, the arguably panopticon approach some employers have reportedly taken on monitoring and surveillance has received criticism. In their latest report (the New Frontier: Artificial Intelligence at Work), the All-party Parliamentary Group (APPG) took the view that pervasive monitoring and target-setting technologies can have a negative impact on an employee’s physical and mental health as a result of extreme pressure bred from real-time micro-management and automated assessment.

The potential impact of increased surveillance on employee welfare should not be understated. An overly Orwellian approach can negatively impact the culture of the business and the morale of staff while a level of trust and confidence between employee and employer is the basis of a working employment relationship. Employers must therefore be careful to avoid damaging this relationship by taking a sensible and measured approach when implementing such technologies in the workplace.

With the growth of remote working coupled with the rising encroachment of technology in our personal and professional lives, it looks like AI and algorithms are here to stay. A well thought out strategy when incorporating digital monitoring and algorithms in businesses has many benefits and may help avoid some of the welfare and data protection pitfalls that some employers fall into.

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Gray v University of Portsmouth EA-2019-000891-OO

In Gray, the Claimant worked as a Service Delivery Analyst at the University of Portsmouth. After a two-year-long period of sickness absence related to his autism and stress, the Claimant was dismissed and his appeal against his dismissal was rejected.

He subsequently brought a claim for discrimination arising from disability against his former employer. He claimed that the university had treated him unfavourably by ending his sick pay, initiating a formal meeting under their absence management process, dismissing him, and rejecting his appeal. At the initial tribunal hearing, the tribunal held that it was “obvious” that keeping the Claimant’s job open was significantly disruptive to the university and that the aim of the efficient running of the Services department was a proportionate means of reaching a legitimate aim.

On appeal, the Employment Appeals Tribunal (EAT) held that the tribunal had failed to critically evaluate the Respondent’s objective justification defence. Accordingly, it was not sufficient for the tribunal to find that keeping the Claimant’s job open would be “significantly disruptive” to the Respondent. It must also explain why this is the case. The EAT remitted the case to the same tribunal as there was no finding on any additional costs incurred by the Claimant’s absence, whether the absence was disruptive or how the university was covering the Claimant’s job. In addition, it was also unclear whether the tribunal had balanced the needs of the university against the potentially discriminatory effect of the dismissal.

This decision serves as a helpful reminder that employers must clearly demonstrate and provide evidence for the legitimate aim they are pursuing and that the actions taken were a reasonably necessary means of achieving this aim. A tribunal is expected to undertake a detailed assessment of employer working practices and objectivity evaluate the dismissal’s proportionality weighed against the employer’s legitimate aims. Accordingly, employers need to be clear about their pursued aims and consider whether any less discriminatory measures can be taken to achieve those aims.

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