January 2022 employment law newsletter out now!

Welcome to January's newsletter

I would like to wish you all a happy, healthy and prosperous new year on behalf of all of us at 3PB's Employment and Discrimination Law team.

Our first newsletter of 2022 is packed full with employment law news, including a new Practice Direction on the neutral citation of EAT judgments, guidance from ACAS on hybrid work/working from home and how to make changes in employment contracts; a government consultation on the Bill of Rights to replace the Human Rights Act; a Parliamentary report into AI at work; a new fund to help
practitioners tackle racial discrimination; and news concerning increases in the minimum and living wages. Finally, we report Stephen Wyeth's success in the ET for the claimant in a case concerned with COVID-19 health and safety unfair dismissal.

Case law analysis is provided by
- Sarah Clarke on the CoA opening the door for an implied term that employers should act fairly when conducting disciplinary proceedings in Burn v Alder

Hey Children’s NHS Foundation Trust [2021] EWCA Civ 1971;
- Daniel Brown on the employment status of a company director in Rainford v Dorset Aquatics Limited (EA-2020-000123-BA);
- Andrew MacPhail examines the significance of witness evidence in Hovis Limited v Mr W Louton EA-2020-000973-LA;
- and finally, Craig Ludlow looks at the dismissal of an employee for raising frivolous and vexatious grievances in Hope v British Medical Association EA-2021-000187-JOJ.

New Practice Direction sets out the arrangements for the neutral citation of EAT judgments

Sir Keith Lindholm, Senior President of Tribunals, has issued this new Employment Appeal Tribunal's practice direction, which has come into force from 1 January 2022. It follows the practice of other jurisdictions including that of the Upper Tribunal.

Stephen Wyeth successful in COVID-19 unfair dismissal health and safety case

Stephen Wyeth acted for the claimant in Mr C Preen v Coolink Ltd and Mr R Mullins: 1403451/2020 in an automatic unfair dismissal claim for a health and safety reason under s100 of the Employment Rights Act 1996 involving COVID-19. The ET found in favour of the claimant under section 100(1)(c) of the Act – following his refusal to carry out non-essential work and potentially placing his health and others’ at risk. In Stephen's words, "the tribunal had to traverse new territory and determine from the evidence whether the tests posed by the legislation were met in relation to Covid-19 health and safety risks and concerns".

Human Rights Act Reform: a modern Bill of Rights

The government has opened a consultation on its proposals to revise and reform the identified flaws in the Human Rights Act 1998 and to replace it with a Bill of Rights.

National Minimum Wage and National Living Wage rates set to rise

The rates are for the National Living Wage (for those aged 23 and over) and the National Minimum Wage (for those of at least school leaving age) will change on 1 April.

Acas guidance on working from home and hybrid working

The guidance issued by Acas includes how to respond to requests, trial periods and disagreements about home and hybrid working; Health, safety and wellbeing when working from home; managing staff who work from home; and policies for the new arrangements.

All Party Parliamentary Group on the Future of Work launches report into Artificial Intelligence at work 

The APPG reports a significant increase in use of surveillance and other AI technologies that control fundamental aspects of work, with marked gaps in legal protection at individual, collective and corporate levels being identified.

New legal fund launched by the EHRC to tackle race discrimination

The Race Legal Support Fund launched by the EHRC allocates up to £250,000 to tackling race discrimination, harassment and victimisation. From December 2021, legal practitioners can apply for funding to seek advice and help to resolve complaints of race discrimination, up to and including legal proceedings where appropriate.

Acas guidance on changing terms and conditions of employment

Acas issues useful guidance to employers due to make changes to employment contracts, including presenting what the changes will be; consulting about them; handling request for changes; and what to do if changes cannot be agreed.

Dismissal of an employee for raising frivolous and vexatious grievances

Craig Ludlow reviews Hope v British Medical Association EA-2021-000187-JOJ, in which the EAT reminds us that the starting point in determining if a dismissal on the grounds of gross misconduct is unfair, is always section 98 of the Employment Rights Act 1996 and not whether the conduct relied upon was capable of amounting to gross misconduct in the contractual sense.

The significance of witness evidence

Andrew MacPhail analyses Hovis Limited v Mr W Louton EA-2020-000973-LA, and highlights the importance for parties in a case to always carefully consider if they are in a position to call witnesses who can give direct evidence on any disputed factual findings.

The employment status of a company director in Rainford v Dorset Aquatics

Daniel Brown reviews Rainford v Dorset Aquatics Limited (EA-2020-000123-BA), a case which demonstrates that the mere fact that a director has done work for and received payment from a company will not always be sufficient to establish a worker or employment relationship.

CoA opens the door for the development of an implied term that employers should act fairly when conducting disciplinary proceedings

Sarah Clarke analyses Burn v Alder Hey Children’s NHS Foundation Trust [2021] EWCA Civ 1971, in which the Court of Appeal's obiter comments could make the concept of fairness in disciplinary procedures an implied term, reducing employees' burden to show breaches of trust and confidence. 

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.