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

Welcome to Worked Up, 2022! We’ve high hopes for the year ahead – it’s just got to be a good one, surely?

Whether you are working at home, back in the office or fresh and free from your brief stay in a Melbourne immigration detention hotel, we hope that you had a wonderful festive break.

While it appears that Covid will sadly remain on the agenda, there is plenty to look forward to in 2022 (not least an extra day’s bank holiday to celebrate the Queen’s entry into the exclusive Platinum Jubilee club). Though we would prefer to avoid kicking off the new year with Covid-related news, there have been several updates worth bearing in mind when dealing with Covid-related employee absences. Firstly, the self-isolation period for those with Covid-19 has been reduced from 10 days to 7 days where the individual has received negative LFD results on day 6 and day 7 of their self-isolation period. In addition, from 11 January (in England), people who receive a positive LFD result will be required to self-isolate immediately and are no longer required to take a confirmatory PCR test.

In this edition, we discuss the key developments expected over the coming year, including updates to sexual harassment legislation, new visa routes and upcoming changes brought in by the highly anticipated Employment Bill. We also examine several recent case law updates concerning the importance of sticking to the three-month decision period when dealing with flexible working requests, circumstances where an employee can be potentially fairly dismissed as a result of raising grievances and why it is worthwhile carefully handling the dismissal of an individual who has made a protected disclosure (even if the protected disclosure is not the root cause of the dismissal).

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What’s new for 2022?

  • Workplace Sexual Harassment Legislation
  • Gender Pay Gap Reporting
  • Covid-19 Developments
  • Employment Bill
    • Flexible Working
    • NDA Provisions
    • Neonatal Leave
    • Predictable Working Patterns
  • New Visa Routes for Businesses

Inflexible decision period for flexible working requests

No cause for complaint: when is dismissal for grievances potentially fair?

Tribunal considers whether disclosure was the root cause or a casual factor in dismissal case

With a number of consultations, legislative updates and hearings being put on the backburner during the pandemic, we are expecting to see several developments in employment and immigration law come to the fore this year. While the below is not an exhaustive list of what to expect in 2022, it highlights some of the key legal developments in the coming year. Of course, we will be reporting on these developments and providing other employment and immigration law updates on a monthly basis, so consider subscribing to Worked Up to avoid missing out!

Workplace Sexual Harassment Legislation

As reported in our September 2021 edition, in its response to the consultation on workplace sexual harassment, the government has proposed introducing a preventative duty on employers as well as new protections from third-party harassment to assist with the tackling of sexual harassment in the workplace. The government is also considering extending the time limit for Equality Act based cases from three months to six months, which would significantly impact any internal resolution of discrimination and harassment cases, if implemented.

While the government has given itself the precise deadline of “when parliamentary time allows” to introduce these changes, it is expected that draft legislation will be implemented later this year.

Gender Pay Gap Reporting

As some of you may be aware, gender pay gap reporting has, like many things, not been straightforward during the pandemic. The gender pay gap reporting deadline was suspended entirely for the 2019-2020 reporting year and was delayed until 5 October 2021 for the 2020-2021 reporting year. Despite several spanners in the works over the last two years, it looks to be business as usual in 2022 as the deadline for gender pay gap report submissions is currently set to be 4 April 2022 (for the private sector). Let us know if you need a refresh on gender pay gap requirements or if your company grew to more than 250 employees last April and therefore needs to submit a report this April.

Covid-19 Developments

The aftermath of the bombshell that is Covid-19 continues to be felt in the employment law landscape. We expect to see many Covid-related cases come through the appellant courts this year, the rulings on which may affect how employers implement any mandatory testing, vaccination or NHS Covid pass policies. As other countries, such as Austria, have mandated compulsory vaccination, it remains to be seen whether the UK will take a similar route. Given the lack of measures taken in December and Boris Johnson’s recent statement that Britain will not emulate other European countries by pursuing a policy of coercion, it looks unlikely that the UK will take more extreme blanket measures to tackle Covid-19. That said, following on from the legislation introduced mandating that care home workers and front-line NHS staff must (unless medically exempt) be fully vaccinated, we may well see further developments in this area in due course.

Employment Bill

The highly anticipated Employment Bill, which is currently in its second reading in the House of Commons, is expected to be published during 2022. While the below is not a comprehensive list and may change as the Bill progresses through the House, some of the key updates promised are as follows:

Flexible Working – Flexible working was a hot topic in 2021 and will likely continue to trend during 2022. While we are unlikely to see a response to the flexible working consultation (discussed in more detail in our October update) until the latter half of 2022, it is likely that the Employment Bill will introduce the right to request flexible working from day one rather than after 26 weeks’ service. In any event, flexible working now looks to be a mainstay in employment. Moving forward, alongside increased legislation in this area, we expect that market and employee pressures will continue to shape how hybrid working is implemented in the workplace.

NDA Provisions – While the measures proposed in 2019 on the misuse of confidentiality clauses in settlement agreements have been significantly delayed, it is expected that the Employment Bill will introduce legislation to curb the use of NDA provisions in employment contracts and settlement agreements. A requirement to provide independent legal advice to individuals asked to sign an NDA has also been proposed.

Neonatal leave and pay – Following on from its 2019 consultation, the government has confirmed its intention to introduce neonatal leave and pay for parents of babies requiring neonatal care. The leave is intended to allow these parents to have the opportunity to bond with their newborn outside of a medical environment without having to rely on their existing statutory entitlement to maternity or paternity leave. Parents will have the right to take an additional week of leave for every week their baby is in neonatal care, up to a maximum of 12 weeks. Parents who have been continuously employed for 26 weeks and who earn above the minimum pay threshold will also be entitled to receive pay for the neonatal leave period at the current statutory rate.

Predictable Working Patterns – In a bid to progress the Good Work agenda, increased certainty for those working in the gig economy is also expected to be included in the Employment Bill. Workers (including zero-hour and agency workers) working variable hours with 26 weeks’ continuous service may be granted the right to request a more predictable and stable contract. In addition, the legislation may also introduce compensation for short-notice shift cancellation and new rights surrounding reasonable notice of working hours, though whether such legislation will be implemented and what form these rights would take remains to be seen.

New Visa Routes for Businesses

Fundamental change to some aspects of UK immigration law is a yearly occurrence. 2022 will be no different, with the introduction of several new visa routes, the likely passing of the Nationality and Borders bill and continued reform of systems as the Home Office seeks to streamline and improve visa application processes. For this update, we will focus on the new routes for businesses.

The new visa routes were announced as part of the Government’s ‘Build Back Better’ policy paper of March 2021 and are focused on “Attracting global talent and boosting investment”. They are expected to be introduced in Spring 2022 and include the following:

Global Business Mobility visa: The Global Business Mobility visa aims to increase the options available for overseas companies to establish a presence or transfer staff to the UK, amalgamating some existing visa routes, such as the intra-company transfer route, and introducing some new possibilities. The expectation is that this route will require sponsorship in some form.

Scale-Up visa: The Scale-Up visa will allow those with a skilled job offer from a recognised UK scale-up to qualify for a fast-track visa. The definition of a scale-up company is expected to require 20% growth of average revenue or employment numbers per annum, for a three-year period. This route will not require sponsorship.

High Potential visa route: The High Potential visa route will be open to “applicants who have graduated from a top global university” and aims to attract graduates from top global universities to live and work in the UK, though the expectation is that the qualification criteria will also include those with high earnings, post-graduate qualifications and STEM degrees. This route will also not require sponsorship. Immigration law geeks may notice a striking similarity to the ‘Highly Skilled Migrant’ visa, also known as Tier 1 (General) of the ‘Old’ Points Based System, which was scrapped in 2015, plus ça change!

There is some hope that the Government may follow the recommendation of the Migration Advisory Committee made in their report of October 2021, to explore how the visit visa rules could be adapted to facilitate time-limited, essential work travel to the UK, introducing some much-needed flexibility.

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Walsh v Network Rail Infrastructure Ltd EA-2020-000724

In this recent case, the EAT considered whether the employer’s failure to hear a flexible working request appeal within the three-month decision period left the employer, Network Rail, facing an employment claim.

The Claimant submitted a flexible working request on 11 February 2019. After his request was rejected, he submitted an appeal on 13 March 2019. On 24 June, the Claimant agreed to attend an appeal hearing fixed for 1 July 2019. Both the Claimant’s agreement to attend the appeal hearing and the appeal hearing itself fell outside the three-month decision window (which had closed on 10 May 2019). Just before his appeal, on 25 June 2019, the Claimant brought a claim to Tribunal alleging numerous breaches of the flexible working legislation, including a failure to consider the flexible working request within the decision period. The employer’s appeal hearing went ahead on 1 July 2019 and the decision to reject the flexible working request was upheld.

In the first instance, the Tribunal held that it did not have jurisdiction to hear the claim. In its judgment, the Tribunal held that the claim had been submitted prematurely on the basis that the Claimant had agreed to extend the decision period when agreeing to attend the appeal hearing that was arranged outside the decision period. On appeal, the EAT determined that the Tribunal had erred in its decision. It held that the Claimant’s decision to attend the appeal was a distinct matter from whether there had been an agreement to extend the decision period. Therefore, as there was no agreement to extend the decision period, the claim was not premature and could proceed.

The main takeaway from this decision is that employers should bear in mind the three-month decision period deadline when considering flexible working requests. If the flexible working request is complex or the employee looks likely to appeal the decision, the employer should seek the employee’s agreement (preferably in writing) to extend the decision period before the three-month timer runs out. Legally speaking, there is no right to appeal in flexible working requests. However, many employers do offer an appeal as flexible working requests should be dealt with in a reasonable manner (as recommended by the ACAS Statutory Code). Where an appeal is offered, care should be taken to deal with the request in good time and inform the employee of the decision (or seek to agree to an extension) before the three-month decision period has passed.

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Mr M Hope v British Medical Association EA-2021-000187-JOJ

While some grievances can seem to take forever to resolve, this case involves an employee that did not seem to want his grievances resolved at all.

Mr Hope brought several grievances against BMA’s senior managers to his line manager during his employment. Although his line manager did not have the authority to resolve the issues raised, Mr Hope kept the grievances in limbo by refusing to withdraw or progress his grievances to a formal stage. Mr Hope also declined to attend a grievance meeting to resolve these issues. The meeting was held in his absence and found that Mr Hope’s repeated instigation of the grievance procedure without following through amounted to an abuse of process and that his conduct was frivolous, vexatious, disrespectful and insubordinate.

Following this meeting, BMA decided to invoke its disciplinary procedure on the basis that Mr Hope had submitted numerous frivolous grievances; had failed to follow reasonable management instructions; and that there was a fundamental breakdown of the working relationship between the employee and senior management. Each charge was upheld, and Mr Hope was ultimately dismissed for gross misconduct.

Mr Hope later brought a claim for unfair dismissal against BMA. However, the Tribunal ultimately held that the dismissal was fair. Mr Hope launched an appeal on the basis that the Tribunal had not considered whether, in the contractual sense, the conduct relied upon was capable of amounting to gross misconduct.

Ultimately the appeal was dismissed. The EAT held that the main question is whether the employer acted reasonably in all the circumstances in treating the conduct as sufficient reason to dismiss. Whether an employee is in breach of contractual obligations is a potentially relevant consideration, but it is merely one of the circumstances to be taken into account in considering whether the dismissal was fair or unfair within the meaning of s98(4) Employment Rights Act 1996.

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Mrs M Fitzmaurice v Luton Irish Forum: EA-2020-000295-RN (Previously UKEATPA/0313/20/RN)  

The EAT recently considered the proper application of the test for causation in relation to detrimental treatment after the Claimant made protected disclosures.

After facing disciplinary action, the Claimant resigned and claimed constructive dismissal, citing her making protected disclosures as the principal reason for her dismissal. When considering her claim, the Tribunal determined in the first instance that only one of the three reasons for bringing disciplinary proceedings was related to the protected disclosures and the other two reasons related to the Claimant’s conduct. The Tribunal dismissed her claim on the basis that there was no connection between the disciplinary procedures and the public interest disclosures accepted by the Tribunal.

On appeal, the EAT held that the Tribunal had not correctly directed itself on the dividing line between the making of protected disclosures and how the disclosures were made. Accordingly, the case was remitted to the Tribunal for consideration on whether the disciplinary proceedings were instituted because of the Claimant’s conduct that is properly separable from making the protected disclosures.

This case highlights the importance of careful management of the dismissal process or any other disciplinary actions against an employee who has raised a protected disclosure. Employers should take care to ensure that the protected disclosure is not a material factor behind the reason for dismissal or disciplinary actions and may want to consider taking legal advice with such notoriously sticky situations.

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