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

Welcome to the May edition of Worked Up!

With the vaccine roll out continuing apace and hugs and soft play being back on the agenda from 17 May 2021, it’s almost as if summer has come early, that is if you forget about the rain…

In this month’s edition we consider two topical cases dealing with claims of automatic unfair dismissal for health and safety reasons. We also touch on the end of the Covid adjustment to ‘right to work’ checks as well as examining cases on shared parental pay and aggravated damages.

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This month's headlines

The Government has announced that the temporary changes made to right to work checks as a result of Covid-19 will come to an end on 20 June 2021.

Since 30 March 2020, employers have been able to carry out right to work checks via video call. However, from 21 June 2021 employers must return to checking original documents or checking the applicant’s right to work online.

The Government has confirmed that retrospective checks will not be required so applicants whose right to work was confirmed under the temporary Covid measures will not need to be re-checked.

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Mr B Price v Powys County Council UKEAT/0133/20/LA (V)

In this case, the Employment Appeal Tribunal (EAT) confirmed that an employer’s decision to offer enhanced adoption pay but only statutory shared parental pay was not direct sex discrimination.

The Claimant in the case had decided against taking shared parental leave when he discovered that he would only receive statutory shared parental pay for his time out of the office. The Claimant’s employer had a policy of paying enhanced maternity pay and enhanced adoption pay but only statutory shared parental pay.

The Claimant alleged that this was discriminatory and argued that the purpose of both adoption leave and shared parental leave was the facilitation of childcare. This argument was rejected by the EAT which held that there were material differences between the two types of leave which meant that the Claimant could not compare himself to a woman on adoption leave and that a more appropriate comparator would be a woman on shared parental leave. As a woman on shared parental leave would receive the same pay as a man on shared parental leave, there was no case of discrimination and the Claimant’s appeal was dismissed.

This is in line with the decision in Ali v Capita Customer Management Ltd [2019] EWCA Civ 900 where the Court of Appeal held that it was not directly discriminatory for an employer to offer enhanced maternity pay but no enhanced shared parental pay as the circumstances between a man taking shared parental leave and a woman taking maternity leave were materially different.

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Rodgers v Leeds Laser Cutting Ltd ET1803829/2020

In this case, an employment tribunal held that a Claimant who left his workplace in March 2020 and told his employer that he was going to stay off work until lockdown had eased was not automatically unfairly dismissed when his employer dismissed him a month later.

The Claimant was a laser operator whose work needed to be carried out on his employer’s premises. After he had been absent from work for nearly a month, the Claimant was dismissed by his employer. The Claimant claimed that this dismissal was automatically unfair as he was protected by the provisions of the Employment Rights Act 1996 which provide employees with protection from dismissal for exercising their rights to leave the workplace and take steps to protect themselves where they reasonably believe there is serious and imminent danger. The Claimant had a young baby and a child with sickle-cell anaemia and he was worried about infecting them with Covid-19.

The judge noted that while conditions pertaining to Covid-19 could potentially amount to circumstances of serious and imminent danger, they did not do so in this case. The employer was found to have implemented hand washing and social distancing procedures (which were the government advised precautions at the time) and it was held that the Claimant did not take any steps to avoid the danger or raise any concerns with his manager before deciding to leave work.

An interesting case and very much a fact dependent decision. Also, perhaps not one where we should really feel too sympathetic for Mr Rodgers as he was found to have cheekily breached self-isolation guidance to drive a friend to hospital the day after he left work.

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Mr C Sinclair v Trackwork Ltd UKEAT/0129/20/OO (V)

This case considered whether the Claimant, a Track Maintenance Supervisor, could rely on the automatic unfair dismissal provisions in the Employment Rights Act 1996 because his dismissal had been linked to his carrying out health and safety activities.

Unbeknownst to his colleagues, the Claimant had been tasked with implementing a new safety procedure which changed the way in which his colleagues were accustomed to working. His colleagues raised concerns with management which ultimately led to the Claimant’s dismissal.

The Claimant alleged that he had been automatically unfairly dismissed as the principal reason for his dismissal was because he had carried out health and safety activities. The employment tribunal at first instance dismissed his claim, finding that he had been dismissed not because he had carried out health and safety activities but because of how he had managed these and the effect this had on the wider workforce.

The Employment Appeal Tribunal overturned the Tribunal’s decision, finding that health and safety activities may often be resisted by colleagues and that it would undermine the protection given to employees if an employer “could rely upon the upset caused by legitimate health and safety activities as being a reason for dismissal that was unrelated to the activity itself”. The Employment Appeal Tribunal found that there was no proper distinction between the workers’ reaction to the protected activity and the protected activity itself and therefore held that the Claimant had been automatically unfairly dismissed.

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Antuzis and others v DJ Houghton Catching Services Ltd and others [2021] EWHC 971 (QB)

There’s probably a few jobs you’d prefer to do than be a chicken catcher but if you think it sounds appealing then take heed of this case. It considered the amount of damages to be awarded to a group of chicken catchers who were subjected to appalling conditions by their employer. In a 2019 case, the directors of the company were held to be personally liable for the serious contractual and statutory breaches which had taken place, including failure to pay minimum wage or holiday pay and withholding pay for alleged transgressions.

The directors lost more than they bargained for when the High Court not only awarded the full amounts claimed for wages, overtime and holiday pay but also uplifted the damages awarded by 20% in order to compensate the employees for the exploitation carried out by their employer and its directors.

The facts of this case were extreme, but they show that there are circumstances where directors will be held liable for the actions of the company and where aggravated damages will be justified.

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