Jill Evans, Law Content Analyst, CIPD, looks at employment law developments in July and August 2022 for England, Scotland, and Wales.
A handful of new employment laws appeared before Parliament’s summer shutdown. In mid-July, draft regulations emerged banning contractual exclusivity clauses for those paid at or below the lower earnings limit (currently £123 a week). In the same week, two private members bills – on neonatal leave and handling tips at work – received government backing (which greatly improves their chances of becoming law):
- The exclusivity ban, expected to come into force later in 2022, adds low-pay workers to provisions permitting zero-hours workers to work for more than one employer.
- The Neonatal Care (Leave and Pay) Bill gives parents of babies needing hospital care in their first weeks an additional 12 weeks of paid leave on top of their statutory maternity or paternity leave and pay.
- The Employment (Allocation of Tips) Bill makes it unlawful for employers to withhold tips from staff. It also enables staff to make an information request on employers’ tipping records and paves the way for a new statutory Code of Practice on how tips should be distributed.
On 18 July, the government’s own Data Protection and Digital Information Bill was introduced. Announced in the Queen’s Speech, this bill includes measures that will:
- allow ‘senior responsible individuals’ to replace data protection officers
- create a list of ‘legitimate interests’ for processing data (at the moment employers have to balance the interests of the organisation against the rights of data subjects)
- expand the circumstances for employers refusing subject access requests (SARs).
The different employment rights attached to being an employee, worker, or self-employed continue to be an issue largely resolved by the courts in the absence of the reforms outlined in the Good work plan. At the end of July, a consultation response indicated the government thought it inappropriate to legislate on employment status when business was still recovering from the pandemic. Instead, it’s produced guidance on individuals’ rights and employers’ responsibilities in this area.
The Supreme Court has decided, in the case Harpur Trust v Brazel, that employees who only work part of the year (in this case, a music teacher) are entitled to 5.6 weeks’ holiday in line with their full year colleagues, rather than having their holiday pro-rated. The decision means that employers can no longer multiply the number of hours worked by their irregular hours workers by 12.07% in order to calculate their holiday entitlement. It also means that permanent workers working irregular hours may be entitled to proportionately more holiday than their full-time counterparts.
Gender critical and political beliefs
In Bailey v Stonewall and Garden Court Chambers, an employment tribunal followed the Forstater judgment in deciding that gender critical beliefs were protected by the Equality Act 2010. In this case, a barrister and feminist lesbian campaigner had expressed her view in tweets and to colleagues that Stonewall’s policy of accepting trans women as women were contrary to the interests of gay people. When the charity complained, she was investigated by her chambers and some of the complaints were upheld. Her discrimination and victimisation claims were successful.
In Scottish Federation of Housing Associations v Jones, the Employment Appeal Tribunal decided a housing association’s head of membership and policy was not unfairly dismissed and discriminated against when she was refused permission to stand as a candidate for the Scottish Labour Party and then dismissed a month later. While the EAT confirmed participating in the democratic process was a protected belief, the employer was able to show a clause in the employee’s contract preventing her from having a formal political role.
Other cases of interest include:
- Devaney v Porthaven Care Homes A care home team leader who refused to come into work because she was at high risk from COVID-19 and was shielding, only received statutory sick pay for her time off. This was disability discrimination. A reasonable adjustment would have been to put her on the furlough scheme.
- Kovalkovs v 2 Sisters Food Group A quality inspector in a chicken factory was dismissed for refusing to remove his crucifix. The necklace was not examined and no alternative means of wearing it, such as tucking it into clothing, was considered during a risk assessment. His indirect discrimination claim resulted in an award of £22,074.68.
- In Sunderland v Superdry, a knitwear designer with 30 years of experience was consistently passed over for promotion. The employer’s talent management procedure was unclear, its promotion criteria flawed and it failed to provide satisfactory explanations for its promotion decisions. She won her age discrimination claim and was awarded £96,209.
Explore our resources on these subjects
Recent and forthcoming legislation – running timetable of new and expected law changes
Zero-hours contracts: evolution and current status
Employment law update – see ‘Proposed law changes’ section
Employment status Q&As
Case law on employment status
Data protection, surveillance and privacy at work Q&As
Case law on data protection, surveillance and privacy at work
Annual leave and holiday pay Q&As
Case law on holiday pay
Calculating holiday using 12.07% method unlawful for part-year workers
Gender critical beliefs:
Tribunal rulings show need for caution over gender-critical views
Religious discrimination Q&As
Case law on religion and belief discrimination
Disability discrimination Q&As
Case law on disability discrimination
Age discrimination and retirement Q&As
Case law on age discrimination