May 2022 law blog

‘Future of work’ review, protection for low-pay and shop workers, self-isolating for monkeypox. 

Jill Evans, Law Content Analyst, CIPD, looks at employment law changes and case law in May 2022.

This month’s Queen’s Speech listing new government bills was missing one containing the expected right to request flexible working on day one of employment but did contain other proposals for law changes relevant to employment. These included: 

  • giving UK ports the power to refuse ships paying crews less than the National Minimum Wage (in response to P&O’s firings in April) 
  • creating a new data protection framework focused on privacy outcomes rather than box-ticking 
  • allowing Parliament more leeway to alter laws inherited from the EU 
  • making large firms more accountable for their anti-slavery measures. 

The government has also announced a new review into the ‘Future of work’. It hasn’t yet implemented all the commitments in the Good Work Plan arising out of Matthew Taylor’s review in 2017, but its announcement says the latest review will build on those reforms rather than replace them.  

The review will be conducted over the summer by Conservative MP Matt Harman and is likely to be in line with the Labour Market Enforcement Strategy for 2023/24. It will focus on: 

  • the link between geography, local labour markets and creating good jobs 
  • the role of automation 
  • how to increase flexibility in labour markets, while preventing exploitative practices and encouraging productivity. 

Shop and low pay workers 

The Police, Crime, Sentencing and Courts Act 2022, which became law last month, has made headlines because of its public protest measures. But the Act also doubles the penalty for assaulting shop staff from 12 months to two years in a bid to deter the growing incidence of violence and abuse from the public towards retail staff, particularly during the pandemic. According to the British Retail Consortium, abusive incidents rose from 424 a day in 2018/2019 to 455 a day in 2019/2020 – equivalent to over 50 an hour. 

Later this year, the government intends to extend the ban on exclusivity clauses in zero-hours contracts, in place since 2015, to workers earning on or below the Lower Earnings Limit (currently set at £123 a week). Exclusivity clauses prevent employees from working for other employers. The measure will allow an estimated 1.5 million people to work multiple jobs in order to cope more effectively with the current upsurge in the cost of living.  

Monkeypox self-isolation 

The number of confirmed monkeypox cases in the UK has risen to 190, according to the UK Health Security Agency. Although the risk to the general public remains low, those confirmed to have the virus or who have been in close contact with someone who has had it confirmed, are advised to self-isolate for 21 days. As with COVID-19, those who are unwell with monkeypox are entitled to sick pay, while those who are well but self-isolating should work from home if possible. 

COVID-19 case law  

In the first EAT decision on a COVID-19 case, Rodgers v Leeds Laser Cutting, an employee was found not to have been unfairly dismissed when he stayed away from work because he was worried about his family’s health during the pandemic. His employer had made risk assessments and followed government guidelines on social distancing, handwashing and masks, and the EAT decided it was not reasonable for the employee to believe his workplace represented a ‘serious and imminent danger’ justifying his non-attendance.  

In the case, Regnante v Essex Cares, an employee with a clinically extremely vulnerable husband resigned when asked to return to the office. She had successfully worked from home and was only asked to return because the company was asking other staff to do so. Her manager encouraged her to amend her replies on a risk assessment questionnaire in order to facilitate this. She resigned and successfully claimed constructive unfair dismissal due to breach of trust and confidence and detriment on health and safety grounds. 

In McNabb v Denholm UK Logistics, a warehouse team leader did not self-isolate for 14 days in line with government guidance at the time when returning from a family holiday in Dubai. Instead, he returned to work but tested positive for COVID-19 a few days later. He was summarily dismissed for gross misconduct for breaching the company’s policy and government rules on COVID-19 safety. 

The claimant said in his defence that his learning difficulties, illiteracy and dyslexia had led him to misunderstand the guidance but the tribunal found this was a self-diagnosis and dismissed it as evidence. Although this employee did not claim discrimination, tribunal discrimination claims involving similar neurodiverse conditions are up by a third, according to recent news reports, increasing from 70 in 2020, to 93 in 2021, with the biggest rises in autism and Asperger’s cases (up by 40% and 31%). The increases are attributed to greater awareness of these conditions. 

Other issues to note in recent case law include: 

  • transferred redundancy liability for furloughed staff. Here the employees were assigned to a cleaning and security contract for a shopping centre which closed during the COVID-19 lockdowns. A preliminary hearing in Crawford v Eyekon Services and Fernglen has found that there was a TUPE service provision change when the contract transferred first from one contractor to another before being insourced to the shopping centre when it reopened. The claims against the second contractor will be heard in due course. 
  • a harassment claim arising out a failure to provide adequate breastfeeding facilities in a school. The teacher in Mellor v MFG Academies Trust had been allocated a room to breastfeed her first baby but this was withdrawn for her second baby because of COVID-19 restrictions. This meant she had to express milk in the car park or the toilet during her lunch break, creating a degrading or humiliating environment for her amounting to harassment. 

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