February 2022 employment law newsletter out now!

Welcome to February's employment law newsletter

In our February newsletter, our news section considers the final decision in the case of Lee v Ashers Baking Company Ltd and ors; the latest Covid-19 legal requirements and the government's likely decision to scrap the jabs for NHS staff policy. 

Case law analysis is provided by
- Alex Leonhardt on the CoA decision on vicarious liability and “horseplay” in the workplace in Chell v Tarmac Cement and Lime Ltd [2022] EWA Civ 7;
- Sarah Clarke analyses Allette v Scarsdale Grange Nursing Home Ltd 1803699/2021, a case in which the Employment Tribunal rules on a COVID-19 vaccination dismissal;
- Grace Nicholls examines the CoA's decision on the liability of a Chief Constable in a disability discrimination claim in Chief Constable of Avon and Somerset Police v Nicholas Eckland

[2021] EWCA Civ 1961;
- Sarah Clarke provides a second case analysis, this time focusing on the EAT's decision on just and equitable time limits in Secretary of State for Justice v Johnson [2022] EAT 1;
- Finally, Grace Nicholls reviews the EAT's decision to overturn a Tribunal’s refusal to postpone a 12-day Final Hearing in Khan and Uzayr v BP plc EA-2021-000261-JOJ.

Lee v United Kingdom case will not proceed to ECHR

Employment lawyers will remember the case of Lee v Ashers Baking Company Limited and ors UKSC 2017/0020, decided by the Supreme Court in October 2018. Briefly, Mr Lee, a gay man, sought to purchase a cake for an event organised by campaigners for same sex marriage in Northern Ireland. He wanted the words “Supports Gay Marriage” iced onto the cake. The order was withdrawn and Mr Lee brought claims of direct and indirect sexual orientation discrimination. The district judge in the county court allowed the claim that refusing to complete his order was direct discrimination.

The Court of Appeal dismissed the appeal. The bakery appealed to the Supreme Court and won; it was held that the bakery would have refused to complete the order for anyone, whatever their protected characteristics. The ECHR declared that Mr Lee’s challenge was inadmissible as he had failed to invoke his rights under the ECHR in proceedings before the domestic courts.

COVID-19: working from home, face masks and NHS Covid Pass

In England, from 19 January 2022 the government has confirmed that they would no longer ask people to work from home and encouraged staff to talk to their employers about agreeing a return to work.

In England, from 27 January 2022 face coverings are no longer a legal requirement, but the government recommended that people continue to wear them in indoor, crowded spaces. An NHS COVID pass at venues and events also ceased to be a legal requirement.

Government may scrap jabs for NHS staff policy

Sajid Javid’s confirmation back in November 2021 that it would become compulsory for frontline NHS staff in England to be fully vaccinated is today under consideration in light of the Omicron variant being ‘more transmissible but less dangerous’. The Health Secretary had told the House of Commons that 93% of NHS frontline staff had had their first dose, with 90% being full vaccinated. NHS staff would have to have their first jab by 3 February 2022 and be fully vaccinated by 1 April 2022. The change of policy is thought to help ease pressures on the NHS.

EAT overturns Tribunal’s refusal to postpone 12-day Final Hearing

Grace Nicholls reviews Khan and Uzayr v BP plc EA-2021-000261-JOJ, in which the EAT reminds us that the relevant considerations need to be taken into account when granting postponements, ensuring that justice is not denied.

EAT on just and equitable time limits

Sarah Clarke analyses Secretary of State for Justice v Johnson [2022] EAT 1, in which the EAT makes it clear that when considering whether or not it would be ‘just and equitable’ to extend time limits, it is not only the period of delay prior to the issuing of the claim that is relevant.

Court of Appeal on vicarious liability and “horseplay” in the workplace

Alex Leonhardt reviews Chell v Tarmac Cement and Lime Ltd [2022] EWA Civ 7, in which the Court of Appeal considers both vicarious liability for employees’ practical jokes or “horseplay” and a purported direct duty on employees to prevent the same, with some useful commentary on the relevance of tension or animosity between staff when that contributes to an employees’ wrongdoing.

CoA considers liability of Chief Constable in disability discrimination claim

Grace Nicholls analyses Chief Constable of Avon and Somerset Police v Nicholas Eckland [2021] EWCA Civ 1961, a case in which the Court of Appeal confirmed that a Chief Constable was liable for the actions and
omissions of a panel it had appointed and which had wrongfully dismissed a police officer.

The Employment Tribunal on a COVID-19 vaccination dismissal

Sarah Clarke reviews Allette v Scarsdale Grange Nursing Home Ltd 1803699/2021, in which the ET held that the dismissal of a care worker following a refusal to get the Covid-19 vaccine was fair. However, the case highlights that employers should ensure, before disciplining any employee for refusing to get vaccinated, that they have carried out a full investigation
as to the reason why they consider that the vaccination is necessary within their particular workplace and the reasons why an employee has refused the vaccine.

The tribunal were careful to make it clear that they were not setting a precedent

that dismissal for a refusal to have the vaccine would always be fair, as all the circumstances surrounding the case had to be taken into account, including the public health situation of the day and the respondent's business insurance requirements.

Meet the team

3PB’s employment law group offers expert advisory and advocacy services to private and public sector employers across all areas of employment law including unfair dismissal, discrimination, equal pay, industrial disputes, executive contracts, wrongful dismissals, restrictive covenants, whistleblowing, TUPE, injunctions, pensions disputes and disciplinary proceedings.