Littler Global Guide - United Kingdom - Q2 2022

Browse through brief employment and labor law updates from around the globe. Contact a Littler attorney for more information or view our global locations.

View all Q2 2022 Global Guide Quarterly updates   Download full Q2 2022 Global Guide Quarterly

Taxation of Off-payroll Working: No Presumption of Employment from Finding of Mutuality of Obligation and Control

Precedential Decision by Judiciary or Regulatory Agency

Authors: Megan Todd-Jones, Associate, and Raoul Parekh, Partner – GQ | Littler

On April 26, 2022, the UK Court of Appeal established the correct approach for determining employment status of general application in both IR35 and employment cases. This approach requires considering all relevant factors including both the words of the full real contract (not a hypothetical one) and the factual reality of the relationship in question when determining employment status. In particular, the Court of Appeal held that the existence of mutuality of obligation and control did not create a presumption that there was a contract of employment.

Appeal Tribunal Confirms Not Unfair to Dismiss Employee Who Refused to Work Due to COVID-19 Safety Concerns

Precedential Decision by Judiciary or Regulatory Agency

Authors: Ben Rouse, Associate, and Raoul Parekh, Partner – GQ | Littler

On May 6, 2022, the UK Employment Appeal Tribunal upheld a decision that the dismissal of an employee who refused to attend the workplace due to COVID-19 safety concerns was not unfair. In UK law, a dismissal will be automatically unfair if an employee is dismissed for refusing to attend the workplace in what they reasonably believe to be circumstances of serious and imminent danger. The EAT confirmed that this test was not met on the specific facts, in part because the employer had taken steps to mitigate the risks from COVID-19 in line with government guidance.

Though specific to its facts the decision is encouraging for employers that took reasonable steps to mitigate against the risk of COVID-19. However, the EAT acknowledged that the pandemic could give rise to a successful claim so it is possible that claims based on different facts may succeed.

Employment Appeal Tribunal Rules Security Testing Processes Did Not Constitute Harassment Based on Religion

Precedential Decision by Judiciary or Regulatory Agency

Authors: James Champness, Senior Associate, and Raoul Parekh, Partner – GQ | Littler

On April 7, 2022, the Employment Appeal Tribunal (EAT) held that an Employment Tribunal had not erred in finding an employer and its third-party security consultant did not harass a Muslim employee by using the phrase “Allahu Akbar” (written in Arabic) on a test package designed to assess the response of security officers to suspect items. The EAT concluded that this was not directed at the claimant because of his religion and that the phrase was used to link the training to recent (at the time) events in order to make the package more suspicious for training purposes. The tribunal confirmed that while a claimant’s perception of whether conduct was harassment is relevant, that perception had to be reasonable in light of the context of the conduct and its purpose and intent.

Tribunal Confirms That “Long COVID” Is Capable of Being a Disability, Giving Rise to Discrimination Protections

Precedential Decision by Judiciary or Regulatory Agency

Authors: Ben Smith, Associate, and Raoul Parekh, Partner – GQ | Littler

On May 27, 2022, the Employment Tribunal confirmed that an employee who was suffering from “long COVID” was disabled for the purposes of UK discrimination law. The employee in the case had been absent from work for around 10 months after developing post-COVID viral fatigue with various symptoms that prevented him from working. He was dismissed on grounds of ill health. This was a preliminary decision solely dealing with the question of whether the claimant was disabled, and the tribunal will now go on to consider if the dismissal was discriminatory. While the decision is specific to its facts, it is a useful reminder for employers that they should not assume that employees with “long COVID” are not disabled. Instead, employers should apply the statutory definition of disability, with support from Occupational Health or other medical professionals as needed, in order to determine if an employee is disabled.

Proposal to Make It Easier for Businesses to Engage Temporary Staff During Industrial Action

Proposed Bill or Initiative

Authors: Jessica Lim, Associate, and Raoul Parekh, Partner – GQ | Littler

In June the UK Government announced proposals to make it easier for employers to engage skilled temporary agency workers to perform the duties of employees who are taking part in industrial action. Under current law, employment businesses such as agencies are prevented from supplying employers with temporary agency workers to perform duties that are normally performed by workers who are on strike or taking industrial action. Under the proposals, employers will still need to ensure that the temporary workers have the necessary skills and/or qualifications to meet health and safety obligations. Draft legislation is expected to be published in the coming weeks and will apply across all sectors in England, Wales, and Scotland.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.