As coronavirus dominates the news for a second year, we look at what happened in employment law in 2021.
Brexit finally meant Brexit with a new relationship between the UK and the EU beginning on 1 January 2021, with the points based immigration system applying to EU nationals from that date. A planned post-Brexit review of worker’s rights was confirmed and then swiftly scrapped, following media reports suggesting it would remove protections such as the 48 hour limit on the working week.
The immediate impact of Brexit was eclipsed by the start of a further significant period of lockdown for the whole country. This resulted in the Coronavirus Job Retention Scheme (CJRS) and other similar measures being extended, ultimately, until 30 September 2021. As the vaccination campaign progressed, the question of whether or not employers would be able to require employees to be vaccinated became a hot topic.
As we waited (and still await) the Government response to the consultation on making employment status rules clearer, the judgment in the case of Uber BV & Others v Aslam and Others was handed down by the Supreme Court. In what was seen as a blow for similar gig economy businesses, the Supreme Court judgment not only found that the drivers were workers but took a broad view on what their working time amounted to, increasing liabilities for national minimum wage and holiday pay.
As the focus on employee wellbeing increased, one company believed they had found the solution to monitoring remote workers’ moods. Moodbeam, a silicone wristband, tracks the emotional state of workers via workers pressing a yellow happy button or a blue sad one.
March saw a Supreme Court judgment handed down with significant ramifications for the care sector. The judgment, which was welcomed by care providers who engage workers on “sleep-in” shifts, held that there is no NMW entitlement for hours spent asleep on the job. In a busy month for the Supreme Court, it also handed down a judgment holding women working in Asda stores could compare their pay with male comparators in distribution centres. This only resolved a preliminary issue in a case which is thought to be worth hundreds of millions of pounds if the claimants succeed.
April saw the annual increases to the national living wage, the national minimum wage, statutory benefit rates and the annual increases to employment tribunal unfair dismissal compensation limits. The Vento bands, for injury to feelings awards in discrimination claims, were also reviewed. April also saw the delayed changes to IR35 rules in the private sector taking effect.
The “king of absentees” made headlines in April – the hospital employee had received £464,000 in pay over a 15 year period, despite not bothering to turn up for work. This was not though being dealt with as an internal disciplinary matter – with the employee in question facing charges of abuse of office, forgery and aggravated extortion.
Regulations came into force on 31 May extending the protection from detriment, for leaving or refusing to return to the workplace in circumstances of serious and imminent danger, to workers. The protections had previously only applied to employees.
Meanwhile the annual CIPD/Simply Health Survey found “presenteeism” continued to be a problem even when working from home. Although the pandemic meant it was impossible for this survey to accurately calculate an average sickness absence rate, ONS statistics reported it to be 1.8% in 2020 – the lowest recorded rate since 1995.
May also saw the second largest ever disability discrimination award – £2,567,831.97 – being made to a claimant who was unfairly dismissed and subjected to disability-related harassment and discrimination arising from a disability.
Ethnicity pay gap reporting was back in the news in June with businesses, unions and the Equality and Human Rights Commission calling on the UK Government to make reporting mandatory. We have speculated for a number of years that ethnicity pay gap reporting will become mandatory – nothing has happened in 2021 but hopefully 2022 will see some much needed progress in this area.
A new duty to prevent sexual harassment in the workplace was announced in July. If any evidence of the need for this duty was required, a report by the Fawcett Society showed that over 40% of women experience sexual harassment during their careers. Moreover, for 23% of those surveyed, the harassment increased or escalated while they were working from home.
Publicity surrounding fire and re-hire practices had been circulating for much of 2021, particularly following use of the practice by a number of high-profile employers. However, in July, the UK Government confirmed there was no intention to ban fire and re-hire practices, which have been used for many years.
Following an employment tribunal judgment that menopausal symptoms were a disability, the once taboo subject of menopause in the workplace became one of employment laws hot topics in 2021. This included the launch of an inquiry by the House of Common’s Women and Equalities Committee into workplace issues surrounding women with menopause. In August, the committee chair indicated that changes to the Equality Act 2010 – to strengthen protection for menopausal women – cannot be ruled out.
In a timely warning for employers, two significant awards were made in tribunal cases where flexible working applications had been refused. The first claimant was awarded £184,000 and this was followed, in an unrelated case, with an award of £40,000.
September saw a big step back towards “normal” life with the closure of the furlough scheme. In addition, the UK Government published a consultation on flexible working and, in Scotland, some workers got ready to trial a four-day week.
Having had no gender pay gap reporting in 2020 and a six month delay in 2021, 5 October was the final deadline for reporting on the gap with a snapshot date of 31 March 2020 or 5 April 2020, depending on whether the organisation was public sector, a larger private company or voluntary organisation. The pay of employees who were on furlough on the snapshot date was not included, making it difficult to compare with previous years, but early analysis suggested the pay gap had widened.
November saw covid vaccinations become a mandatory requirement for care home workers in England. This is to be followed in 2022 with mandatory vaccinations for workers in health and social care in England.
This time last year we were looking forward to a better year in 2021. A further lockdown and a vaccination campaign later and we are maybe not quite where we hoped we would be by December 2021. However, we can perhaps look towards 2022 with a bit more optimism. With a significant number of consultations behind us, the promise of new rights in the Employment Bill and hybrid work looking like it will become part of the new normal, it is likely to be a busy year in employment law. For full details of what we think will make it big next year, watch out for our preview of 2022 coming in our January e-news.