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The November 2021 Flying solo session for in-house counsel provided over 100 lawyers with an excellent summary of recent regulatory and commercial news to help them support their organisations. As always, the event was facilitated and sponsored by ÀÏ˾»úÎçÒ¹¸£Àû, Radius Law and F-Lex Legal.

Following update on all things corporate and commercial (see part 1), took us through the employment law side of things focusing on coronavirus (COVID-19) related news and some recent cases involving gender-related issues, worker status and employment status for tax purposes. Here’s a summary of what she covered:

Three points on the pandemic 

Coronavirus Job Retention Scheme

Sandra looked back at the position we were in last year when employment lawyers were trying to get their heads around the government’s initial Coronavirus Job Retention Scheme (CJRS) guidance.

Now that the furlough scheme has ended, the CJRS guidance has switched its focus to paying back CJRS grants with a new section on offsetting amounts overclaimed by employers. For a comprehensive timeline of the CJRS, see Practice Note: Coronavirus Job Retention Scheme—guidance tracker.

Long-covid

Sandra updated us on the in relation to ‘long covid’. The guidance acknowledges that it is not possible to determine (at this point in time) whether long covid will be treated as a disability, but it recommends making ‘reasonable adjustments’ to support workers with the condition. These could include allowing:

• flexible working hours

• temporary redistribution of duties

• home working (more on this point later)

For up to date guidance on dealing with absences and adjustments due to coronavirus, see our Practice Note: Coronavirus (COVID-19)—sickness and other absence (in particular section ‘Long COVID’).

Compulsory vaccinations

From 11 November 2021 it has been illegal for those working in care homes not to have had both coronavirus vaccinations (unless exempt). People working or volunteering in care homes with a medical reason exempting them from a coronavirus vaccine will be able to self-certify that they meet the medical exemption criteria through an NHS COVID-19 Pass, which they must give to their employer. On 9 September 2021, judicial review proceedings were issued challenging the mandatory vaccination requirement, so watch this space for updates…

Earlier this year, a consultation was held to determine whether the compulsory vaccination requirement should be extended to include frontline workers, including NHS workers. Despite 65% of respondents not supporting the proposals the government will be introducing these new regulations to workers with direct face to face contact with service users (some exemptions will apply). For more information, read our news item: .

…and a fourth related point—hybrid working 

On 11 October, the Financial Conduct Authority (FCA) published a setting out its remote or hybrid working expectations for firms. The FCA did so to ensure firms can plan and continue to meet their regulatory responsibilities.

The FCA has stated that it will evaluate existing firms, firms applying to be regulated and firms proposing to submit further applications (eg variation of permission, change of control) which are considering remote or hybrid working on a case-by-case basis.

Firms (and their lawyers) should consider how they operate their business, their engagement with the FCA, and whether their planned changes to their working arrangements require prior notification to the FCA.

For an overview of the FCA guidance see our news item: . For information on more general legal and practical issues an employer should consider in relation to hybrid working, see Practice Note: Hybrid working.

Recent employment cases 

Gender pay gap—Bayfield and Jenner v Wunderman Thompson (UK)

A good example of how not to address a gender pay gap can be found in the employment tribunal decision in . The employer, responding to its very high gender pay gap, publicly announced its plan to ‘obliterate its reputation as being full of straight white men’ and then, a few days later, went on to make two straight white male creative directors redundant. The two men responded by bringing (and winning) claims of direct sex discrimination and unfair dismissal. See Practice Note: Understanding and improving gender and other pay gaps.

Gender as a critical belief—Forstater and Higgs

In the highly publicised case of Forstater v CGD Europe, Center For Global Development and Ahmed  the court ruled that ‘Gender Critical’ beliefs are a protected characteristic under the Equality Act 2010, while stressing that prohibitions on discrimination and harassment continue to apply. In the words of the Judge: ‘[the] beliefs may well be profoundly offensive and even distressing to many others, but they are beliefs that are and must be tolerated in a pluralist society.’ For analysis of the possible consequences and developments which may arise from this judgment see News Analysis: .

In a similar case from 2020, Higgs v Farmor's School, an employment tribunal ruled that an employee’s beliefs that gender cannot be fluid and that an individual cannot change their biological sex do constitute protected beliefs under the Equality Act 2010. In this particular case, it was nonetheless held that the claimant was not discriminated against or harassed because of her beliefs. See News Analysis: Tribunal holds beliefs that gender cannot be fluid and that an individual cannot change their biological sex are protected (Higgs v Farmor's School). See also Practice Note: Transgender and other gender issues.

Menopause as a disability—Rooney v Leicester City Council

Whether or not menopausal symptoms will amount to a disability will be fact specific. In Rooney v Leicester City Council  the EAT held that an employment tribunal had erred in law in holding that the claimant, who had experienced severe menopausal symptoms over at least two years, was not a disabled person, and remitted the case to a new tribunal to determine whether her symptoms amounted to a disability. A particular consideration of the EAT was that the employment tribunal had been wrong to focus on what Ms Rooney could do, rather than what she could not do.

Sandra closed the discussion on gender-related issues by drawing our attention to the House of Commons Women and Equalities Committee inquiry which was launched in July 2021 ‘scrutinising existing legislation and workplace practices, and asking if enough is being done to address the issue’ of almost a million women in the UK leaving jobs as a result of menopausal symptoms, resulting in women eligible for senior management roles leaving work at the peak of their career, with knock-on effects on workplace productivity, the gender pay-gap and the gender pension gap. The call for evidence is now closed and Committee meetings are ongoing, so keep an eye out for updates in 2022.  For more information, see: Menopause issues in the workplace.

Worker & employment status

As the session drew to a close, Sandra highlighted a few more key cases in-house counsel should be aware of and suggested they keep their eyes out for developments in the following areas:

Worker status

In The Independent Workers Union of Great Britain v The CAC , the Court of Appeal found that Deliveroo riders are not workers, unlike Uber drivers, as we saw here. The key difference, in the court’s eyes, between Deliveroo riders and Uber drivers is that Deliveroo riders can substitute themselves whereas Uber drivers are required to personally perform the services. For more information, see News Analysis: Deliveroo riders are not workers with ECHR Article 11 right to form trade unions: confirmed (The Independent Workers Union of Great Britain v The CAC).

This case is in contrast with Stuart Delivery v Augustine , in which the Court of Appeal confirmed that a courier driver who could release a delivery slot that he had agreed to undertake to another courier was a ‘worker’ under the Employment Rights Act 1996. The limited right or ability of the initial courier to notify other couriers via an app that they wished another courier to take the slot was not a sufficient right of substitution to remove from them that obligation to perform the work personally, particularly as, if no one accepted it, the original courier remained liable for completing the delivery.

In terms of upcoming cases, in February 2022 the Court of Appeal will consider an appeal in the case of Nursing and Midwifery Council v Somerville A2/2021/1185 as to whether worker status requires an ‘irreducible minimum of obligation’ to accept and perform work. 

Employment status for tax purposes

The final case Sandra discussed was HMRC v Professional Game Match Officials Ltd .This case concerned determination of employment status for tax purposes of referees for football matches who undertook refereeing duties alongside other employment.

Although the Court of Appeal provided some guidance on the difficult issue of mutuality of obligation, it did not give a definitive answer. However, it confirmed that the First Tier Tribunal (FTT) and the Upper Tribunal had applied the wrong legal tests on mutuality of obligation and control.

The case has now been remitted to the FTT, which will look at the evidence again to determine whether there was mutuality of obligation and a sufficient degree of control in each contract to amount to a contract of employment.

For more information on this case, see News Analysis: Court of Appeal provides guidance on mutuality of obligation (HMRC v Professional Game Match Officials Ltd) and journal article: .

For an overview of worker and employment status, see Practice Note: Employment status—why it matters.

Keep the conversation going on Radius Law’s , where you will find the session slides and other useful materials, as well as the opportunity to discuss all things legal with other in-house lawyers.

Join us for the last in-house counsel session of 2021 on 8 December at 10 – 11am.

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