COVID claims begin, Uber drivers, supermarket pay, sleep-in shift pay

Jill Evans, Law Content Analyst, CIPD, looks at employment law changes in April/May 2021

April is the month when statutory rates increase, and this year is no exception. Statutory maternity, adoption, paternity, and shared parental pay rose to £151.97 and sick pay increased to £96.35 in the first week of April 2021. The cap on compensation for ordinary unfair dismissal claims increased to £89,493, in the same week and the limit on a week’s pay for calculating redundancy pay and unfair dismissal basic awards rose to £544.

The National Living Wage also increased to £8.91 an hour and now applies to 23-year-olds and over, and the IR35 rules were extended to the private sector (the start date was delayed from April 2020 because of the pandemic).

COVID-secure working

As workplaces open after lockdown, organisations resume the challenge of keeping their workforces safe. Making it clear to employees exactly what’s required of them and listening to their concerns is crucial as the cases beginning to trickle through on this subject make clear.

In Kubilius v Kent Foods, a lorry driver was dismissed after refusing to wear a mask in his cab when delivering to his employer’s main customer, Tate and Lyle, during the first COVID-19 lockdown. Tate & Lyle asked all site visitors to wear masks to protect its workforce. The lorry driver refused on the grounds that mask wearing wasn’t a legal requirement at that time and hadn’t been written into the site rules. He was banned from the site and subsequently dismissed for gross misconduct after consistently refusing to change his attitude. His unfair dismissal claim failed as the employment tribunal judged his employer’s response, in the circumstances, was reasonable.

In another recently reported case, Rodgers v Leeds Laser Cutting, an employee was dismissed after failing to return to work in the first lockdown. His employer’s premises remained open and followed COVID-secure practices. Rodgers didn’t believe the workplace was unsafe but argued that COVID-19 presented a ‘serious and imminent’ danger to him and his family because it was “all around”. His dismissal claim on health and safety grounds (under s 44, Employment Rights Act 1996) failed, the tribunal noting that while the virus could create circumstances of serious and imminent danger, that was not the case in Rodgers’ workplace because of the safety measures in place.

These cases are fact specific and non-binding, and more examples are needed to show how the law will work in this area. Organisations’ exposure health and safety claims relating to automatically unfair dismissal  widens on 31 May when the right to protection from detrimental treatment for refusing to work in dangerous workplaces is extended to workers rather than just employees, following a High Court ruling last autumn.

Workers’ rights

The government’s Employment Bill announced in the December 2019 Queen’s Speech was expected to be published in 2021 but failed to make an appearance in May’s Queen’s Speech. In the meantime, the courts are busy clarifying existing employment rights. In Uber v Aslam (February 2021), the Supreme Court decided Uber drivers were workers and working when logged on to the platform, in their licensed territory, and ready to accept trips. The ruling entitles the drivers to the National Minimum Wage (NMW), paid leave, and protection against unlawful deductions from wages. The Financial Times reported that just days after the decision, the EU launched a six-week consultation on whether all gig workers should be given the same employment rights as those in more secure employment. Drivers for private hire and courier company Addison Lee have also been found to be workers in a case decided by the Employment Appeal Tribunal. The Court of Appeal has recently refused the company permission to appeal a second case, Addison Lee v Lange.

In an equal pay case involving 35,000 women, Asda Stores v Brierley, the Supreme Court decided that female checkout staff could compare themselves with male warehouse staff even though they worked at different sites, in different parts of the organisation with different pay arrangements. Supermarkets facing similar claims will be watching the progress of this case although the final outcome on whether the work the men and women carry out is of equal value is still some way off.

The care sector has finally received clarity in April on the payment rules for ‘sleep-in shifts’ in the case Mencap v Tomlinson-Blake. The Supreme Court found that care workers only had to be paid at the NMW when required to be awake to perform a specific activity, rather than for the whole shift. The potential cost to the sector had the case gone the other way is estimated in hundreds of millions of pounds.

Tribunal backlog

An increase in tribunal claims during the pandemic has added to a pre-existing backlog. The official tribunal figures for the period March to November 2020 have yet to be released but an early snapshot from the employment tribunals users group shows single claimant cases increased by 40% (up from 30, 687 to 43,209) and multiple claimant cases by 19% (from 4,966 to 5,926) in England and Wales. Employment judges said they had seen more claims for redundancy unfair dismissal, whistleblowing (on furloughing misuse and inadequate PPE), unpaid holiday (especially while furloughed) and inadequate collective consultation for redundancy.

Claims are not expected to diminish as workplaces open and virtual tribunal hearings look set to continue.

Explore our resources on all of these subjects:

Statutory rates and compensation limits

Recent and forthcoming legislation

IR35 implications for people professionals

COVID-19: returning to the workplace guide

Employment status factsheet

Unfair dismissal Q&As

Working Time Regulations Q&As

Tribunal claims Q&As

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