Case law updates

COVID-19 – automatically unfair dismissal: The EAT has upheld the tribunal’s decision that the dismissal of an employee who refused to attend the workplace during the first lockdown was not automatically unfair under the legislation that protects workers from dismissal or detriment for taking steps to protect themselves from danger where they have a reasonable belief of a serious and imminent danger to health and safety. In this case, the employee refused to attend work in circumstances where he had medically vulnerable children, but it was found that his concerns were not particularly attributable to the workplace, and his employer was complying with the ‘working safely’ guidance in place at the time. Although the EAT concluded that, in principle, circumstances outside of the workplace could give rise to a reasonable belief of serious and imminent danger, it was relevant on the facts of this case that the claimant did not wear a face covering, had breached self-isolation rules and could have taken precautionary steps at work, such as maintaining self-distancing and regular sanitisation of his hands. While relating to events in April 2020, when the COVID-19 landscape was different to now, this case will reassure employers with workers who are reluctant to return to work at the present time. However, employers must nevertheless remain cautious, comply with their health and safety obligations and be mindful of individuals’ specific circumstances as on alternative facts there may still be the potential to satisfy the ‘reasonable belief of serious and imminent danger’ test. Read more on our Employment Law Watch blog. (Rogers v. Leeds Laser Cutting)

Employment status – IR35: The Court of Appeal has provided guidance on assessing employment status for the purposes of an IR35 status determination that, following the 2021 reforms, falls to the end user of services to carry out. In both cases, individuals’ personal service companies were engaged to provide services under a series of contracts and the Court of Appeal considered there to have been a correct finding in earlier decisions that, on the facts, there was both mutuality of obligation and control by the end user. However, although the Court of Appeal reminded us that both these elements are necessary pre-requisites for employment status, they also concluded that their existence did not lead to a presumption of employment. Instead, it is important to consider all of the relevant factors and to consider the issue of status holistically, namely, that mutuality of obligation and control are part of that multi-factorial approach, but that other factors may also be relevant and given weight in the deliberation. While helpful guidance, these cases highlight the difficulties of assessing status for tax purposes. (HMRC v. Atholl House Productions; Kickabout Productions v. HMRC)

Harassment ‒ baldness: In a claim hitting the media headlines this month, the tribunal has held that a claimant who was called an expletive in relation to his baldness at work was subjected to harassment related to his sex, contrary to the Equality Act 2010. On the facts, the comment was unwanted conduct with the purpose or effect of violating the claimant’s dignity, and the tribunal concluded this was inherently linked to the protected characteristic of sex on the basis that baldness is more common in men. Although a non-binding decision, this claim demonstrates the potential scope of harassment protection and a reminder of employers’ duties to prevent harassment in the workplace. It is unclear whether the decision will be appealed, and a remedies hearing has not yet been held to know the financial consequences of the finding. (Finn v. The British Bung Manufacturing Company)

Victimisation: In another claim reported in the media this month, a tribunal has awarded £75,000 to a casino worker who was constructively unfairly dismissed and victimised for bringing complaints of race and age discrimination against her employer. The media reports pick up on her having been excluded from an invitation for drinks by her colleagues, although other elements of her claim were also successful (and many elements, including claims for direct discrimination, were not). The relatively large compensation claim (vis-à-vis her salary) was also newsworthy, although it is relevant that the award includes significant interest and ‘grossing up’ ‒ without these adjustments, she received £18,000 of injury to feelings (the middle of the second ‘Vento’ band) and £4,000 of aggregated damages (i.e., additional compensation for distress caused by the employer’s manner, motive or conduct), with named respondents being jointly and severally liable for elements of the award. Although an unbinding decision, the claim is a reminder that the bringing of a discrimination claim is a ‘protected act’ and that unfavourable treatment following from that may amount to victimisation. It is also a reminder that individual employees can get included in proceedings and be potentially personally liable. (Leher v. Aspers (Stratford City)

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