Employment Law Newsletter – Winter 2022

A warm welcome to Blake Morgan’s Winter newsletter, keeping you informed of the latest developments in Employment, Pensions and Immigration Law.

It has certainly been a busy few months with many significant Employment Law developments. The issue of mandatory vaccinations for COVID-19 is still headline news. The Government recently announced that it will abolish the imminent legal requirement for compulsory evidence of COVID-19 vaccinations in the health and social care sector in England, a requirement that is already in force for Care Quality Commission-regulated care homes in England. Following a short consultation exercise, which is still to be launched, MPs will vote on repealing the legislation. See our article for more details of the announcement, next steps and implications of the repeal.

There has been a range of case law developments, from Court of Appeal judgments on topics as diverse as vicarious liability and accrued but unpaid holiday to Employment Tribunal decisions arising out of the pandemic. In one case, the Employment Tribunal held that the dismissal of a care home worker for refusing to be vaccinated against COVID-19 was fair and in another, that an employee’s fear of catching COVID-19 was not a protected “belief”.

A complete list of the articles is set out below.

Articles

Holiday pay claim stretching back six years was successful

Why is this latest ruling in a long line of cases between Mr Smith and Pimlico Plumbers so significant? The Court of Appeal ruled Mr Smith could claim his holiday pay stretching back for his entire engagement, which was six years. We look at what this means for employers: not only those who may have classified the self-employed as workers, but also those relying on a 2014 case which until now has prevented a “series of unlawful deductions” claim going further back if there is a gap of three months of more between non-payment or underpayments of holiday pay.

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Employer not liable for injury caused by practical joke at work

In a significant decision, the Court of Appeal recently dismissed an appeal relating to a claim for personal injury resulting from a workplace practical joke that went wrong. The employer was not vicariously liable for the acts of its employee who played the practical joke because he was not acting in the course of his employment and the employer had not breached its duty to prevent a foreseeable risk of injury.

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Government u-turns on mandatory vaccination for healthcare and care home sectors

In a dramatic turn of events last week, the Health Secretary announced that the mandatory evidence of vaccination status for the health and social care sector due to come into force on 1 April 2022 would no longer take effect, and that the equivalent legislation currently in force for care homes would be revoked. We look at the different implications for both these sectors, especially care homes.

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Employers must tread carefully when workers are unvaccinated

Mandatory COVID-19 vaccinations and the legality of “no jab, no job” raise challenging issues for many employers. Whilst relatively few are taking the approach of mandatory vaccinations an increasing number are reducing contractual sick pay for unvaccinated staff.

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Digital right to work checks: what employers need to know

From 6 April 2022, employers will be able to use certified Identification Document Validation Technology (IDVT) service providers to carry out digital identity checks. If employers want to carry out the checks themselves they will need to be certified. The recently published Government guidance sets out the steps that need to be taken and the likely timescales for certification.

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Dismissal of care worker for refusing to be vaccinated was fair

An Employment Tribunal recently held that the dismissal of a care home worker for refusing to be vaccinated against COVID-19, prior to the vaccination legislation for care homes in England, was fair. The requirement to be vaccinated was a reasonable management instruction and the claimant had no medical authority or clinical basis for refusing. With the care home vaccination legislation in England now due to be abolished, this case has become highly significant not only in the care sector, but also for any employer considering a mandatory vaccination policy.

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Is fear of catching COVID-19 a protected “belief”?

No, according to the Employment Tribunal which recently held that an employee’s fear of catching COVID-19 if she remained in the workplace was not a “philosophical belief” within the meaning of the Equality Act 2010. Now that the requirement to work from has either been lifted or relaxed across the country, this decision will be welcomed by many employers.

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Employers need to take care to avoid inadvertent discrimination

In very limited circumstances, employers can take positive action to address under-representation in their workforce. However, they need to ensure that the well-intentioned steps they take do not disadvantage another protected group.

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Is pay protection a reasonable adjustment when a disabled employee moves to a lower paid role?

It depends. Although there is no reason in principle to rule out pay protection as a reasonable adjustment, it is often tricky for employers to determine what is reasonable in the circumstances but the EAT has recently given useful guidance.

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Analysis of changes to the Teachers’ Pension Scheme Regulations  

The consultation exercise on amendments to the Teachers’ Pension Scheme Regulations concluded in summer 2021. In this article we consider the resulting significant changes; equalising survivor benefits between same sex couples and changing the participation rules for independent schools to allow for phased withdrawal.

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Employment Webinar

Our first Webinar of 2022 is next week on 17 February when we will be discussing the high profile topic of the menopause. We have had a record number of acceptances for the Webinar and further details of the topic and speakers are set out in our invitation. We do hope you can join us.

Register here

I hope you will find all the articles above informative and helpful, and if you would like any further information please do not hesitate to get in touch with your usual Blake Morgan contact.