Key employment cases regarding coronavirus and Supreme Court decisions

Despite the success of the vaccine programme, the impact of the pandemic on businesses will continue for some time.  For example, when the furlough scheme ends in the autumn, it is expected that the number of employment tribunal claims will rise and case law will take even longer to filter through to policies and practice.

‘Meanwhile, we are starting to see tribunal cases relating to the Covid risk in the workplace and, so far, the outcomes are generally encouraging for employers,’ says Elizabeth Bartle, partner in the employment team with Ingram Winter Green in London. ‘Although these are only tribunal decisions and other tribunals do not have to follow them, they offer some reassurance to those employers who have brought in Covid-secure measures.’

‘We are starting to see tribunal cases relating to the Covid risk in the workplace and, so far, the outcomes are generally encouraging for employers.’

In our latest round-up of key employment law cases, Elizabeth also looks at a European case of interest to the ‘no jab, no job’ debate and highlights two Supreme Court decisions; one on pay for ‘sleeping in’ with huge significance for the care sector and one of importance to the gig economy.

Walking out on a job due to perceived Covid risk

In March 2020, Mr Rodgers walked out of his job, telling his manager he would be back when lockdown eased. He was worried about infecting his vulnerable children, one of whom had sickle cell anaemia. A month later, he was dismissed. Mr Rodgers did not have enough service to bring a claim for ordinary unfair dismissal.  Instead, he claimed he was automatically unfairly dismissed for exercising his right to leave the workplace where he reasonably believed that there was a serious and imminent danger. There is no minimum service requirement for this claim.

In Rodgers v Leeds Laser Cutting Ltd [2020], the employment tribunal disagreed with his claim, pointing to inconsistencies in Mr Rodgers’ behaviour as he had driven a friend to hospital the day after leaving work and had worked in a pub later during the pandemic.

The tribunal found it was inappropriate to walk out without raising concerns with his manager first, and that the employer had implemented the recommended Covid-secure measures at the time.

Sacked for refusing to wear a face mask

In Kubilius v Kent Foods Ltd [2020], Mr Kubilius refused to wear a face mask onsite when asked to by a client of his employer. The client banned him from their site.

Mr Kubilius was dismissed from his job as a lorry driver for misconduct. The tribunal found the dismissal was fair, taking into account the employer’s need to keep good relations with its client.

Mandatory vaccinations

Whilst a different outcome could be reached in relation to a ‘no jab, no job’ policy involving relatively new Covid-19 vaccines, the case of Vavřička and others v the Czech Republic [2021] is of interest.  The European Court of Human Rights found that it was not a breach of human rights to enforce penalties against parents who failed to vaccinate their children under a mandatory scheme. The scheme related to long-established child vaccines. The penalties, which comprised a fine of about €110 or exclusion from pre-school, were deemed proportionate.

Pay for sleeping-in

The Supreme Court in Royal Mencap Society v Tomlinson-Blake [2021] brought huge relief to care sector employers and other businesses who have employees are on call during the night. The Supreme Court had overruled long-standing cases in deciding  that workers who ‘sleep in’ and are on call overnight, were not automatically entitled to the national minimum wage (NMW) for their shift

Employees usually receive a ‘sleeping-in’ allowance for the shift, which is less than the NMW and are paid for the actual time that they are awake and performing duties. The claimants argued that the whole of the shift should be paid at NMW. The Supreme Court disagreed and the claimants were not entitled to any back payments.

This judgment will have a significant impact on the care sector. The potential historic liability (estimated in the hundreds of millions of pounds) would have threatened some providers’ future viability. The judgment may also have enormous ramifications on businesses outside the care sector. Although the facts will vary from case to case, the Supreme Court drew a clear distinction between ‘actual work’ and ‘availability for work’ which should assist in determining whether a worker carrying out a sleep-in shift is entitled to be paid the NMW.

Holiday pay and national minimum wage (NMW) for wrongly-classified workers

The Supreme Court decision in Uber v Aslam [2021], has been widely reported. This is not just because it involved a household name but also because of the repercussions it will have on many businesses who rely on what were previously referred to as “self-employed contractors”.

In Uber v Aslam, the Supreme Court came down on the side of the Uber drivers who claimed it was wrong for Uber to treat them as self-employed contractors, given the control that Uber exercised over them. The Supreme Court found that the drivers are workers. “Worker” status entitles the drivers to paid holiday and to the NMW.

Following the Uber case, the starting point in working out employment status is to scrutinise the actual working relationship, not the contract, and to bear in mind that the purpose of the relevant laws is to protect vulnerable workers.

Whilst Pimlico Plumbers successfully resisted a claim for £74,000 for arrears of holiday pay in Pimlico Plumbers v Smith [2020] this was on the basis that Mr Smith was too late in bringing his claim.  The Supreme Court had agreed Mr Smith was a worker, not a self-employed contractor as Pimlico Plumbers argued but the Employment Appeal Tribunal (EAT) denied him his claim for unpaid holiday pay because he had brought his claim outside of the strict time limits.

If a worker is put off taking any holiday because the employer refuses to pay them on the (wrong) basis that they are self-employed, when the worker leaves, they can claim a back payment for accumulated holiday pay for the time they worked for the employer. However, the EAT said that this did not apply to Mr Smith because he had taken time off, even though it was unpaid, the EAT said that his claim had been made too late. Mr Smith is reported to be appealing against the decision.

How we can help

Employment law is a complex and rapidly moving area. We can help your business avoid the expense and disruption of tribunal claims.

Please contact Elizabeth Bartle in the employment team on 020 7845 7443 or email elizabethbartle@iwg.co.uk.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.