Ahead of the expected changes for employment law this year, we look back at the implications of the cases that took place in 2022, and what we can expect in 2023. 

Can a self-employed worker claim holiday pay?

In Smith v Pimlico Plumbers, Mr Smith established he had worker rights despite being self-employed. He successfully claimed backdated holiday pay over six years. This case reinforces the importance of providing Contracts for all staff whether they are Employees, Workers or Self-Employed.

Is long covid a disability?

In Burke v Turning Point, Mr Burke was dismissed having been off sick with long Covid-19 for nine months. This case confirms that long Covid-19 could be classed as a disability and each case should be assessed on its' own facts and a medical or occupational health report should be considered prior to any decision regarding an employee’s absence.

Should term-time workers benefit from a full 5.6 weeks holiday?

In Brazil v Harpur, Trust it was found that paying 12.07% of hours worked as holiday pay for part-year workers was unfair and they should in fact get 5.6 weeks holiday at their normal pay rate. If you have zero hours workers or those working only part of a year you should NOT be using 12.07% to calculate holiday pay any longer.

Please contact us and we will assist you with these calculations and contracts.

If an employee falsifies his qualifications and gets a job does s/he have to repay their wages?

In R v Andrewes, Mr Andrewes made several false claims on his CV regarding degrees and post-graduate qualifications over a ten year period. He was able to hold jobs such as Chief Executive Officer, Non-Executive Director and Chair of a Health Trust. He was dismissed and prosecuted and had to repay a proportion of his earnings. Obtaining work through a fraudulent CV is a crime.

Is it fair to select an employee for redundancy because their contract is due to end first?

In Mogane v Bradford, NHS Trust two nurses on fixed-term contracts were at risk of redundancy. No consultation took place and Ms Mogane was unfairly selected for redundancy just because her fixed-term contract was due to

end.  Meaningful redundancy consultation involves a series of meetings with staff at risk and the application of fair and objective selection criteria in order to successfully defend a Tribunal claim.

As far as 2023 is concerned:

Will flexible working request rights be extended to all employees from day one?

The government launched a consultation on the right to request flexible working in September 2021. Currently only employees with 26 weeks service can make a flexible working request. This may change to apply from day one of employment. Employers may be required to consult with employees who request flexible working and to show they have considered all options prior to rejecting a request. It may be that employees can submit up to two flexible working requests (currently they can only submit one) in a 12 month period and that employers must respond within two months (currently three).

What about carers?

The Carer’s bill will give carers the right to up to one week’s unpaid leave (or up to a week used flexibly) from day one of employment.

Is a woman who returns to work from maternity leave protected from redundancy?

The Protection from Redundancy (Pregnancy and Family leave) Bill will extend the right to be redeployed during pregnancy, maternity and family leave and for six months after that leave. This means if there is a redundancy situation a pregnant employee or one who is on maternity leave or has recently returned from family leave whose role is at risk should be considered first for any suitable alternative roles.

Is my employer liable if I am harassed by one of their customers?

Proposed amendments to the Equality Act will make the employer liable for harassment committed by third parties eg customers, clients, service users and students. This thirdparty liability covers all forms of unlawful harassment including racial harassment and offensive conduct based on age or disability etc. As well as having policies, organisations will need make it clear what is unacceptable; enforce those standards; and demonstrate that action is taken to tackle these issues if and when they arise. If you have questions regarding the implications of any of the cases above or employment law changes expected this year please get in touch with the team via the contact details below.

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