Top 5 recent workplace developments - March 2022

This is our selection of the recent developments which we think will impact on HR practice.

1. COVID-19: End of restrictions and SSP

The UK Government has published its plan for ‘Living with COVID-19’ for England.  Scotland, Wales and Northern Ireland have their own plans for lifting restrictions. From 24 February the legal requirement to self-isolate following a positive test has been replaced with guidance to stay at home and avoid contact with other people in England.  Routine contact tracing has also ended. Unvaccinated close contacts are no longer legally required to self-isolate and fully vaccinated close contacts are no longer being advised to test for 7 days.

Employers and workers should continue to follow government guidance on COVID-19. For employers, the ‘Working Safely during coronavirus’ guidance is still in place. In particular, employers should not ask workers with COVID, or any of the main symptoms of COVID to come into work, and if they’re unable to work from home, they should talk to the worker about the options available, such as receiving SSP. The latest Government guidance also says that it is no longer asking people to work from home and people should speak to their employers to agree arrangements to return to the office.

From 24 March 2022, the current statutory sick pay (SSP) rules in relation to COVID-19 will end and we will go back to the pre-pandemic rules. The right to claim SSP from the first day of absence because the worker is sick or self-isolating due to COVID-19 will also come to an end. This means that those who are unwell with COVID-19 will only be paid SSP from the fourth day of their absence.

Practical point

Employers will need to consider what steps they will take to keep employees safe, taking into account the relevant guidance. For now, this means trying to ensure people who test positive for COVID-19 or have any of the main symptoms of COVID follow the current guidance and stay at home. For those who are a close contact or living with someone with COVID, the steps the employer should take will depend on the particular workplace and circumstances. Taking an approach that goes against the guidance could put employers at risk of claims and other employee issues.  

Given this, employers should update their risk assessments and decide what measures are appropriate following these changes. They should also communicate with employees about what steps are being taken and any expectations of employees going forwards. Employers should also address their minds to what they will do around issues such as sick pay, workplace testing and protecting vulnerable staff, assuming that self-isolation guidance is relaxed further.

For more details about these and other recent changes and the implications for employers, see our more detailed client alert.

2. Holiday pay rights

In a significant judgment for employers in the gig economy and beyond, the Court of Appeal has ruled that a worker is entitled to carry over four weeks per year of EU leave which has been taken but not paid because his employer didn’t recognise that he was a worker.

Article

Mr Smith worked for Pimlico Plumbers Ltd (PP) for over five years. Throughout that time PP maintained that he was not an employee or a worker so was not entitled to paid holidays. He subsequently brought tribunal claims, including for unpaid holiday pay that had accrued over those years. In 2018 the Supreme Court ruled that he was a worker, rather than an independent contractor. This enabled him to proceed back to the Employment Tribunal where he claimed that although he had been allowed to take, and had taken, holiday, he had not been paid for it. 

Decision

The Court of Appeal (CA) found that Mr Smith was entitled to backdated holiday pay relating to the 4 weeks’ annual leave required by the EU Working Time Directive (EU leave), for every year he was working for Pimlico Plumbers, from 25 August 2005 to 3 May 2011. Applying the principles set down by the ECJ in King v Sash Windows, the CA decided that workers who were denied the opportunity to take their EU leave can accumulate leave and carry it over to subsequent years, and are entitled to payment in lieu on termination. The worker will then have 3 months from termination to bring their claim. This applies whether or not the worker actually took leave (as in this case) or not (as was the case in King v Sash Windows).

The CA said that the right to carry over the EU leave will only be lost if the employer can show it gave the worker the opportunity to take paid annual leave, encouraged them to take it and informed them that the right would be lost at the end of the leave year. 

Practical point

The case establishes that where individuals have been denied worker status whilst working for their employer, they can recover, without limit, on termination of their employment, compensation for four weeks’ EU Leave which they were entitled to for each year of their employment, whether or not they took that leave. 

Employers who engage independent contractors should carry out an audit to assess whether there is any risk that they are in fact workers, and therefore are at risk of future claims for unpaid EU leave going back to the start of their contract.

In addition, all employers should consider:

1. the wider implications of this case if they consider there are potential claims for underpaid holiday pay (whether outstanding or future) or for untaken holidays during long term sickness and
2. having a clear policy which makes it clear that workers have the opportunity to take paid leave and, are encouraged to do so; and what the carry over rights are for untaken leave (including whether the right will be lost at the end of the leave year if not taken).

For a full discussion of the implications of this case for employers, see our client alert here. 

Smith v Pimlico Plumbers

3. Vicarious liability

The Court of Appeal has ruled that an employer was not vicariously liable for a contractor's personal injury suffered in the workplace because of an employee's practical joke.

Mr Chell worked as a contractor at a quarry site. Mr Chell reported tension between external contractors and employees who feared the contractors might replace them. Subsequently, an employee played a “practical joke” on Mr Chell. The employee brought explosive pellets into work and hit them with a hammer close to Mr Chell's ear. As a result of the explosion, he suffered a perforated eardrum, hearing loss and tinnitus.

Mr Chell unsuccessfully claimed damages for personal injury from Tarmac in the County Court, arguing that it was vicariously liable for its employee's actions, and directly liable for breaching its own duty of care and failing to provide a safe working environment. The High Court upheld the County Court decision, and Mr Chell appealed to the Court of Appeal.

Dismissing the appeal, the Court confirmed that there was not a sufficiently close connection between the employee’s work and the act which caused the injury to make it fair, just and reasonable to impose vicarious liability. The Court noted that the real cause of Mr Chell's injuries was the explosive pellet, which was not Tarmac's equipment and was not used in the employee's work. It could not be said that Tarmac authorised what the employee did. As to breach of duty of care, the Court found that there was no reasonably foreseeable risk of injury arising from the prank and the tension between contractors and employees did not suggest potential violence. Even if such a risk of injury had been established, it would be unreasonable and unrealistic to expect an employer to have in place a system to ensure employees refrained from “practical jokes”. In any event, the general Site rules included the warning: “No one shall intentionally or recklessly misuse any equipment.”

Practical point

The Supreme Court emphasised in the WM Morrisons Supermarket PLC v Various Claimants [2018] case, where data breaches were caused by a disgruntled employee, that the application of vicarious liability is limited to circumstances where the employee’s actions were carried out in pursuing the business of the employer. As this case confirms, it is unlikely that vicarious liability will arise where a claimant has been injured as a result of a practical joke.

To reduce the risk of this happening in the workplace, employers should ensure employees are aware of:

• the importance of following health and safety rules
• the standards of behaviour expected
• the types of conduct that are prohibited

Chell v Tarmac Cement and Lime Limited

4. Agency workers' rights - applying for internal vacancies

The Court of Appeal ruled that agency workers are not entitled to apply, and be considered, for relevant vacancies with a hirer on the same terms as directly-recruited employees.

Two agency workers employed by Angard, a wholly owned subsidiary of Royal Mail, were supplied to work in the Leeds Mail Centre and had attained the 12 weeks' service required for an agency worker to qualify for rights in relation to basic working and employment conditions. They brought claims for a number of breaches of the Agency Workers Regulations, including not being eligible to apply for internal vacancies within Royal Mail.

The Court of Appeal agreed with the EAT that the right to be informed of any relevant vacant posts with the hirer does not mean agency workers are entitled to apply for and be considered for internal vacancies on the same terms as comparable permanent employees.

Practical point

Although agency workers must be informed of relevant vacancies with a hirer, they do not have a right to be considered for those vacancies on the same terms as directly-recruited employees. Hirers will welcome the court's decision, which confirms that agency workers are not in all respects comparable with permanent workers.

Kocur v Angard Staffing Solutions

5. Adjusted right to work check measures extended to 30 September 2022

Temporary measures which have been in place since 30 March 2020 allow employers to make right to work checks over video calls, and job applicants and workers to send scanned documents or photo of their documents to employers via email or a mobile app, rather than sending the originals.  These measures were due to end on 6 April 2022 but have now been extended to 30 September 2022. The extension is to allow employers time to develop commercial relationships with identity service providers and make changes to their pre-employment vetting processes following the proposed introduction of government-certified “identification document validation technology” (IDVT), to be launched from 6 April 2022 so that employers can check the right to work of UK and Irish citizens who hold a valid passport.