Employment Law Review 2022

Change to fit notes so that a wider group of qualified professionals could issue fit notes. From 1 July 2022, fit notes could be issued by physiotherapists, pharmacists and occupational therapists. These professionals would however have to be working in a hospital or a clinical setting such as a doctor’s surgery.

Introduction of increase in NIC contributions by 1.25% with the aim to fund the NHS, known as the Health and Social Care Levy. This was introduced in April and then subsequently scrapped by Liz Truss after she took the government and the levy for 2023 will not come into force.

There are a number of private members bills making their way through the system which may become law in 2023 – these include the right to request flexible working twice a year and for this to become a day one right, for redundancy protection to be extended so that it applies during pregnancy and for a defined period after returning to work, a new framework to support parents of premature of sick babies, an introduction of carers leave and an extension in the protection of workers from harassment.

On 17 November 2022, increased rates were announced for National Living Wage and National Minimum Wage – the National Living Wage will increase to £10.42 per hour from 1 April 2023 and the national minimum wage for 21 – 22 year olds will increase to £10.18 per hour.

The recommendation from the Living Wage Foundation was that the real living wage should be £11.95 per hour in London and £10.90 across the rest of the UK.

The ban on exclusivity clauses in employment contracts was extended on 5 December 2022 to cover low-income workers as well as zero hours workers.

From 1 December 2022, employment judges and judges of the EAT are to be addressed as Judge, not Sir/Madam.

The long running case brought by a former Pimlico Plumber was successful where the Court of Appeal upheld their claim for accrued holiday pay. He had been unsuccessful in the employment tribunal and EAT but the Court of Appeal awarded him £74,000. He had been unsuccessful before as the previous courts held that his claims for holiday pay were out of time. However the Court of Appeal held that he had a right to four weeks’ paid leave each year and this right continued throughout his contract. As a result, the two year backstop for claims of underpaid holiday did not apply as he had been miscategorised as self employed and therefore prevented from taking holiday.

In the case of Rodgers v Leeds Laser Cutting, the Court of Appeal made another significant decision confirming that an employee who was dismissed after he refused to return to work during the pandemic was not unfairly dismissed. Whilst it is acceptable for there to be a fear of a risk at large, it also has to exist within the workplace and this would have to be the reason why the employee would refuse to come to work.

The Supreme Court then threw the cat among the pigeons as a result of its decision in Harpur v Brazel when looking at the holiday pay that a term time worker was entitled to. In this case, Ms Harpur worked on a term time basis only and her holiday entitlement was pro-rated to reflect her actual hours of work compared to a full-time worker. The way this was calculated was by using the percentage method which was commonly calculated using the percentage of 12.07%. In this decision, the court held that a term time worker on variable hours was still entitled to 5.6 weeks holiday based on their weekly work pattern during the term, without any reduction to reflect that they only worked part of the calendar year. The end result is that part-year workers receive a higher proportion of their annual earnings as holiday pay.

In Forstater v CGD Europe, the EAT held that gender-critical beliefs, including a belief that sex is immutable and should not be conflated with gender identity, are protected under the Equality Act 2010. However, whilst a particular belief may be protected, a case may turn on how this belief is manifested and it is the manifestation of a belief that may be restricted.

An employee who tried to argue that his avid support of Rangers FC amounted to a protected philosophical belief failed.

In the case of Finn v British Bung Company, Mr Finn (who had worked for the company for almost 24 years as an electrician) brought a claim against the company and his supervisor, Jamie King. It related to two arguments and during one argument, Mr King called him old and bald (plus other more colourful language!) and in the second one called him bald.

The tribunal found that Mr King had not made any comments relating to Mr Finn’s age but that he did call Mr Finn ‘bald’. The tribunal then held that comments about an employee’s baldness amounted to harassment on the grounds of sex.

The employment tribunal ruled in the case of Burke that symptoms of long COVID could satisfy the definition of disability under the Equality Act.

In a separate case of Quinn, the Claimant failed in her claim that she had been dismissed as a result of having long COVID. The reason for this was that at the point of her dismissal, she did not have long COVID as she was only diagnosed with it some six weeks after dismissal. Even though she had tested positive for COVID on 11 July 2021, she was only diagnosed with long COVID on 12 September 2021 – her dismissal had taken place on 27 July 2021.

2022 Employment Review