Employment Law Bulletin September 2022

• Other Developments
• In the Pipeline
• Legislation and Regulation
• Michael Cowie and Others v Scottish Fire and Rescue Services [2022] EAT 121
• McClung v Doosan Babcock 4110538/2019 (5 September 2022)
• Independent Workers Union of Great Britain v Central Arbitration Committee and another [2021] EWCA Civ 95

Welcome to September's Employment news briefing, providing a summary of some of the recent employment judgements and updates.

If you have any questions about any of the topics covered, or would like to discuss anything with our Employment team, please call Martin Stephen on 0141 248 3434 or email mss@wjm.co.uk

 

Other Developments

• Judicial review of agency workers during strike action
o 12 different unions have commenced judicial review proceedings against the government challenging new Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 which permit the use of agency workers to replace striking staff.

• IR35 reforms for contractors https://www.ft.com/content/885b51a2-1d75-40ff-8f36-787ee232b0d0
o Reforms from 2021 shifting the responsibility for determining a contractor’s worker status from the worker to the organisation engaging in their services will be scrapped from April 2023. The responsibility for determining and paying a workers IR35 tax will go back to the individual rather than the business sing their services. This will avoid contractors being impacted by the underlying off-payroll rules, and should increase their take-home pay where they will be taxed on a self-employed basis rather than an employee.

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In the Pipeline

• Fire and rehire – 15 June 2022 government confirmed it will issue draft statutory code of practice on dismissal and reengagement – nothing yet.

• Employment Bill – still nothing on this.

• Retained EU Law (Revocation and Reform) Bill 2022-23
o It will automatically repeal any retained EU law so that it expires 31 December 2023
o The main rights/provisions that will be affected:

• TUPE
• Paid annual leave
• 48 hour working week
• Part-time and fixed-term worker regulations
• Agency worker regulations

o The treatment of EU law as a priority in employment will also stop after 31 December 2023.
o We will need to wait and see what is proposed before we know the employment law implications, and what the government will choose to retain and what might be left to quietly expire.

 

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Legislation and Regulation

Changes on rules for right to work:

• From 1 October, employers can no longer verify eligibility to work in the UK by passport checks over video call – end of emergency COVID rules.

https://www.gov.uk/guidance/coronavirus-covid-19-right-to-work-checks

Reporting obligations for small and medium businesses:

• Government announced plans to expand the size threshold of businesses exempt from regulatory requirements such as gender pay gap and executive pay ratio reporting from 250 employees to 500 employees.
• From 3 October, all new regulations will take this into account

https://www.gov.uk/government/news/red-tape-cut-for-thousands-of-growing-businesses

New Acas guidance published on staff suspensions:

• https://www.acas.org.uk/acas-publishes-new-advice-on-staff-suspensions-at-work

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Michael Cowie and Others v Scottish Fire and Rescue Services [2022] EAT 121

In June 2022, Burke v Turning Point Scotland held that an individual suffering from ‘long covid’ was “disabled” for the purposes of the Equality Act 2010 and therefore protected by disability discrimination provisions. On the back of this decision, Michael Cowie deals with questions as to whether a particular policy, which operated to the benefit of those unable to work because of covid, may in fact be discriminatory on the account of the condition that applied to that policy.

Employees who were unable to work during the pandemic due to shielding etc on account of their own health or another’s continued to be paid in certain circumstances but conditions to this were attached. In particular, they had to use up any accrued time off or outstanding annual leave first. The Union representing employees considered the policy as discriminatory on the basis of disability. The Employment Tribunal held it did constitute unfavourable treatment in terms of disability claim.

On appeal by the employer the Employment Appeal Tribunal concluded employees were handed an advantage in entitlement to paid special leave on account of their disabilities which wold not otherwise have been enjoyed.

Although understanding of the complaints about the conditions attached to that entitlement, the conditions could not be looked at in isolation of the benefit itself, and although the Fire and Rescue Service could practically have issued the benefit without the condition, the condition did not render the policy discriminatory - stating the policy must be viewed as a whole.

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McClung v Doosan Babcock 4110538/2019 (5 September 2022)

Mr McClung brought a claim of unfair dismissal against his formal employer on the grounds of discrimination of a philosophical or religious belief under s.10(2) Equality Act 2010, as his boss was a Celtic supporter, and he a Rangers supporter.

Mr McClung supported Rangers his whole life, never missed a football game and spent the majority of his earnings on game tickets. He believed supporting Rangers was a way of life and as important to him as attending church for religious people.

Held - supporting a particular football team cannot be considered a philosophical belief worthy of protection under the Equality Act 2010. It is merely a support and akin to a lifestyle choice, but is not substantial enough an aspect of human life or have larger consequences for humanity as a whole to determine it a philosophical belief worthy of protection under the Act.

Mr McClung is apparently going to appeal the decision. We will report on that in due course.

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Independent Workers Union of Great Britain v Central Arbitration Committee and another [2021] EWCA Civ 95

Following Court of Appeal decision in June 2021 which upheld a series of previous decisions, the Supreme Court will now consider the relationship between drivers and Deliveroo and particularly the collective bargaining rights afforded to drivers. Despite a recognition agreement on pay, pensions and insurance, drivers are still denied collective bargaining rights, sick pay, and holiday pay because they retain self-employed status.

This has followed on from recent Supreme Court case which unanimously held Uber drivers should be categorised as ‘workers’ rather than self-employed. If the union wins the appeal, drivers will be classified as workers which will impact the way similar business structures classify their workers.

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