New strike use for agency workers, first long COVID tribunal claim and trans rights at work

Jill Evans, Law Content Analyst, CIPD, looks at employment law developments in June and July 2022 for England, Scotland, and Wales. 

On 13 July, the RMT union, representing railway, maritime and transport workers, announced a one-day strike over pay on Wednesday 27 July. The union held similar railway strikes in June and reportedly said it would continue its dispute with railway operating companies ‘for as long as it takes’. On 12 July, it emerged that train drivers’ union Aslef, and another railway workers union, the TSSA, had also voted for strike action over pay, raising the prospect of a co-ordinated stoppage between the three unions.

Industrial disputes are happening in a range of sectors, including the airline industry, Royal Mail, and even among criminal barristers. A majority of employers believe a more unstable employee relations environment is emerging and the TUC has reported a 700% surge in online inquiries about trade union membership in the past few weeks.  

In response, the government introduced an amendment to the Conduct of Employment Agencies and Employment Businesses Regulations 2003, allowing employers to use agency workers to backfill for striking workers from late July. Previously this was unlawful. A law firm has predicted a legal challenge from unions over whether the amendment curtails their right to strike. The government has also significantly increased fines for unions taking unlawful industrial action from £250,000 to £1 million.  


In Burke v Turning Point Scotland, the EAT decided for the first time that long Covid could be a disability with the definition of the Equality Act as it was likely to last for at least 12 months and cause physical or mental impairments affecting someone’s ability to carry out normal day-to-day activities. In this case, two occupational health reports said a caretaker’s post-Covid symptoms, such as fatigue, joint pain and reduced ability to concentrate, did not amount to a disability but advised a phased return to work anyway. A tribunal will now need to assess whether he was discriminated against when he was dismissed. 

Trans rights 

Two cases involving trans rights were decided recently. In Mackereth v Department for Work and Pensions, a doctor assessing people for disability-related benefits maintained his Christian beliefs prevented him from using the chosen personal pronouns of those contemplating, or who had undergone, gender reassignment. He was suspended, then dismissed. His claim for indirect discrimination would have succeeded except that his employer was able to justify its ‘preferred gender’ policy as a legitimate business aim of treating vulnerable service users appropriately. The doctor is hoping to take his case to the Court of Appeal. 

This Employment Appeal Tribunal (EAT) decision followed a judgment last year in Forstater v CGD Europe, in which the EAT found: 

  • Beliefs only had to meet a low threshold to be protected by the Equality Act 2010 
  • Courts do not have to examine the validity of a belief and should remain neutral between competing beliefs. 

The Forstater case involved the dismissal of a think tank researcher for expressing her gender-critical beliefs on social media. She maintained that it is not possible to change a person’s sex and could not accept that a trans woman is a woman or a trans man, a man. The case recently returned to an employment tribunal which upheld her direct discrimination and harassment claims. The case indicates that her beliefs met the test of being ‘worthy of respect in a democratic society’ even though they conflicted with trans rights. 

Other cases to note include: 

  • Finn v British Bung Manufacturing, in which an electrician who had worked for the same company for 24 years was found to have been unfairly dismissed and harassed because of his sex due to his baldness. 
  • Atholl House Productions v HMRC, the Court of Appeal found against HMRC in another IR35 case involving a broadcast journalist. The CA held that HMRC should have carried out a fuller overall assessment of employment status, which could include looking at how the service was provided in previous years rather than just the tax year in question. 

Fit notes 

Organisations should be aware that since 1 July 2022, nurses, occupational therapists, pharmacists, and physiotherapists working in GP practices or in hospitals have been able to issue and sign fit notes. The change is intended to free up GP time for patient consultations. 

Explore our resources on these subjects 

Employee relations:

Collective employee voice – new CIPD report on working with trade unions 

Trade union recognition and industrial action Q&As 

Case law on trade union recognition and industrial action 

Agency workers:

Agency workers: understanding the law 

Temporary and agency workers Q&As 

Case law on agency workers 

Disability discrimination:

Disability discrimination Q&As 

Case law on disability discrimination 

Religion and belief discrimination:

Religious discrimination Q&As 

Case law on religion and belief discrimination 

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