In a recent court case, an employee played a practical joke on the claimant, who was a contractor at work, by bringing explosive pellets into work and hitting them with a hammer close to the claimant’s ear. When the pellets exploded, they caused the claimant to suffer a perforated eardrum, hearing loss and tinnitus. The claimant claimed damages from the employer for personal injury, arguing the employer was vicariously liable for the employee’s actions, and that the employer was directly liable for breaching its own duty of care. The County Court and the High Court dismissed the claimant’s case, stating that the employer was not negligent or vicariously liable, so the claimant appealed to the Court of Appeal.

The Court of Appeal has upheld the County Court’s decision (that the employer was not negligent nor vicariously liable). This decision was reached on the basis that there was not a close enough connection between the act causing the injury and the employee’s work to make it fair, just and reasonable to make the employer vicariously liable. The explosive pellet was one of the main causes of the claimant’s injuries, but the pellet was not the employer’s equipment as the employee had brought it into work.

In terms of the employer’s breach of duty, the court stated that there was not a reasonably foreseeable risk of injury arising from the practical joke. But even if there was such a risk, it would be unreasonable and unrealistic to expect an employer to put measures in place to prevent employees from engaging in horseplay. The employer expected employees to carry out their tasks using reasonable skill and care, and that included to refrain from horseplay.

A claimant who suffered two episodes of paranoid delusions, which affected his timekeeping and attendance at work, was dismissed by his employer on the basis of his capability. The claimant brought numerous claims to the tribunal. The tribunal upheld the claim for unfair dismissal but rejected the disability discrimination claim and the unlawful deduction of wages claim. The claimant’s appeal to the EAT was dismissed, so the claimant appealed to the Court of Appeal.

Even though the delusional episodes had a substantial adverse effect on the employee’s ability to carry out normal day-to-day activities, the Court of Appeal held the tribunal were allowed to state the effect was not likely to recur or continue for at least 12 months. Therefore, the delusional episodes did not have a substantial and long-term adverse effect (and therefore, did not amount to a disability under the Equality Act 2010).

When the tribunal considered whether the substantial adverse effect was likely to recur, it was not relevant that the delusional episode recurred in the second episode. Even though a substantial adverse effect recurring in another episode might suggest there is a strong chance that a further episode could recur, the court stated this will not always be the case. On the facts, the tribunal were correct in finding the later delusional episode had been triggered by an event that was unlikely to continue or recur.

The Court of Appeal dismissed the claimant’s appeal and upheld the employment tribunal’s findings – that the employee was not disabled under the Equality Act 2010.

According to a recent survey by the Fawcett Society, 47% of working adults are asked about their previous salaries when applying for a new job. 61% of female working adults stated this affects their confidence to negotiate better pay.

The Fawcett Society are encouraging employers to avoid asking questions relating to candidate’s salary history as it could contribute to pay inequality, for example by keeping women on lower wages based on their previous salary.

Only 25% of people surveyed thought their salary should be based on their previous rate of pay. But 58% of women and 54% of men think that by being asking about their previous salaries, they will be offered a reduced salary.

According to a new report by the Health and Safety Executive, 850,000 workers suffered from a new case of a work-related illness in 2020/2021 and just over half reported this was caused by stress, anxiety or depression.

Before the pandemic, the main causes for these symptoms were based on factors such as workload and a lack of support. The effects of the pandemic are now considered to be a contributory factor.

The report found that women aged 25 to 34 are most likely to suffer with work-related stress, anxiety and depression, and the rates are higher than average in the public administration and defence, health and social care and education sectors.

Following the 2016 consultation on tips, gratuities, cover and service charges, the government has confirmed it will pass legislation to ensure workers can keep tips they receive for their service in full.

When passed, the new Employment Bill will introduce the following rules:

• Employers will need to be aware of the new statutory Code of Practice on Tipping, which will replace the existing voluntary code;
• Workers will be able to inquire about the employer’s tipping record and employers should respond to this request within 4 weeks in a way they see fit;
• Employers in any sector cannot deduct from tips their staff may receive, except for tax purposes;
• Employers will need to distribute tips in a fair and open manner by the end of the month, after the month in which the customer paid the tip;
• Employers will need to produce a written policy on how tips are to be managed and should keep a written record of how tips are handled.

These new rights will become enforceable by workers in the employment tribunals and should come into force at least one year after the Bill’s enactment.

Changes introduced by the Covid-19 pandemic have affected British and foreign nationals working and living in the UK.

The government published its ‘Statement of Changes HC617’ to the UK’s immigration rules on 10 September 2021. Some of the changes, which became effective from 6 October 2021, include the following:

• There are new Covid-19 concessions on Tier 1 (Entrepreneurs), Tier 2 (Sportsperson), the EU Settlement Scheme (EUSS) and Skilled Workers;
• The T2 and T5 Temporary Worker routes have been replaced by a new International Sportsperson route for professional sporting workers;
• Individuals who are joining their EUSS family member can apply to the EUSS as a Visitor whilst they are in the UK;
• The list of qualifying prizes under the Global Talent route has been extended;
• The Youth Mobility Scheme has been expanded to encompass Icelandic and Indian nationals.

In September 2021, the government announced it will raise the rates of dividend tax and some National Insurance contributions (NICs) by 1.25%, although NIC rates are set to be lowered again in April 2023. The change will be legislated for in the Finance Bill 2022.

Changes to NIC rates will apply to the self-employed (Class 4) and employees and employers (Class 1), as well as those above the current state pension age of 66-years-old. Existing NICs reliefs will continue to apply to, for example, employers employing apprentices aged 25 or below and the employment allowance.

However, increasing tax rates will result in higher costs being faced by employers and the self-employed.

The Office for National Statistics have recently released data from June to July 2020 that shows home-workers are more likely to plan for a later retirement.

Of those workers who fall into the age category of ‘50 an over’, 11% who chose home-working during the pandemic stated they would plan for a later retirement. However only 5% of those who continued working at their usual place of work planned for a later retirement.

10.9% of workers with a long-standing illness, disability or infirmity, who chose home-working during the pandemic had plans for a later retirement, compared with 5.9% of those who continued working at their usual place of work.

A Trade Union Congress (TUC) recently collaborated with online parenting portal Mother Pukka to conduct a study on flexible working.

The report, ‘Denied and discriminated against’, found that 50% of almost 13,000 working mothers who took part in the study had had their flexible working requests either rejected or only partially accepted by their employer.

42% of women stated they were reluctant to request flexible working because they were concerned about how their employer would react. In fact, they did not want to make a flexible working request if their request could just be rejected.

Of those women who were working flexibly, 86% specified that they had experienced workplace discrimination and felt disadvantaged following their decision to choose flexible working.

The TUC have advocated that every job advertisement should refer to the legal right to request flexible working. The government is holding a consultation on this point, amongst other reform proposals for flexible working.  

The government are consulting on broadening the scope of an employee’s right to request flexible working, which has become particularly relevant since more people have decided to work from home during the Covid-19 pandemic. The right to request flexible working is set to become a “day one” right, so employees will not need to have worked for their employer for 26 weeks to qualify.

The government have outlined this proposal in its consultation, which is to remain open until 1 December 2021. Other matters covered in the consultation include, amongst others:

• Potentially changing the eight statutory business reasons employers can use to refuse a flexible working request;
• Employers may need to propose alternatives to what the employee had suggested;
• Potentially allowing employees to make more than one statutory request in any given year;
• Making more employees aware of their right to request a temporary flexible working arrangement.

An employer (a hotel) who did not furlough its employee under the Coronavirus Job Retention Scheme (CJRS) has had a victimisation claim brought against it at a preliminary hearing, since its actions subjected the employee to a detriment under section 27 of the Equality Act 2010.

The employee was on long-term sick leave and was not receiving Statutory Sick Pay, so, the employer believed the employee was not eligible to be furloughed under the CJRS. The employment tribunal held that the employer could have furloughed the employee and they failed to explain to the employee their reasons for not doing so.

The employer’s defence was that there was no differential treatment because other employees on long-term sick leave were also not placed on furlough. At the preliminary hearing, the judge allowed the employee’s claim to proceed, but advised the employee to consider the employer’s defence. The employee must decide if they will bring their victimisation claim to a final hearing, or if they will amend their argument to instead bring a discrimination claim arising from their disability.

A moped courier, who worked under a contract for the personal performance of services, could notify other couriers if he wished to release a delivery slot. This limited right of substitution was sufficient for the courier to be classed as a “worker” under section 230(3)(b) of the Employment Rights Act 1996.

The Court of Appeal upheld the tribunal’s decision that the courier’s ability to release a slot was not unfettered substitution, since it was outside of the courier’s control whether any other courier would sign up. When the courier signed up to undertake a slot, they were required to personally perform the delivery work. The tribunal found that this satisfied the fifth category of substitution identified in the case of Pimlico Plumbers Ltd and another v Smith 2017, so the courier’s right of substitution was insufficient to negate the existence of an obligation to personally perform their work.   

A recent case has highlighted the challenges facing many menopausal women in the workplace, including the difficulties they can experience in establishing that their menopausal symptoms should be classed as a disability under the Equality Act 2010.

An employee set out an extensive list of her menopausal symptoms and how they had an adverse effect on her daily activities. The tribunal dismissed the employee’s claims for harassment, victimisation and disability and sex discrimination. The tribunal’s justification for this decision was that the employee’s symptoms only had a minor effect on her daily activities, which they believed was insufficient to amount to a disability under the Equality Act 2010.

However, the Employment Appeal Tribunal (EAT) held the tribunal erred in its judgment as it had not fully evaluated or considered the employee’s claims and evidence. The tribunal had also not fully explained why it dismissed the employee’s claims. The EAT referred the employee’s claims to a differently constituted tribunal.

Generally, documents relevant to disputes are subject to disclosure. An exception to this rule is the legal professional privilege, which protects against the disclosure of communication exchanged between professional legal advisers and their clients without the client’s consent. However, the legal professional privilege is subject to an “iniquity” exception which states documents created to further a criminal or fraudulent purpose should be disclosed.

In a recent case, an employer sent an email to a HR consultant that indicated an intention that the employee may be dismissed as the employer did not want the employee to return to work. The email was sent before a disciplinary hearing took place.

The EAT held this email could not be classed as an “iniquity” exception to litigation privilege. The employer and their legal adviser did not discuss how to act unlawfully, and the email did not further a criminal or fraudulent purpose. Instead, the EAT held the employer freely communicated with the HR consultant believing the communication was privileged and would not need to be disclosed.