January 2020 saw the high profile case of Casamitjana Costa v League Against Cruel Sports within which the tribunal found ethical veganism to be a philosophical belief worthy of protection under the Equality Act 2010 at a preliminary hearing. Mr Casamitjana Costa was employed by an animal welfare charity, The League against Cruel Sports. He took exception to some of the funds which his pension had been invested into as he considered them unethical. He subsequently sent various emails to his colleagues highlighting his concerns and providing details of the action he had taken regarding his pension, including moving his contributions to be invested in a fund which he considered more ethical and therefore compatible with his beliefs. Mr Casamitjana Costa was subsequently dismissed by his employer as a result of these emails.
In February 2020, an appeal to the Supreme Court was made in the case of Hextall v Chief Constable of Leicestershire Police, which concerned whether the enhancement of maternity pay where there was no corresponding enhancement to shared parental pay was discriminatory. This Supreme Court denied the appeal, so the court of appeal judgement allowing the enhancement of maternity pay without enhancing shared parental pay without fear of discrimination claims stands.
With the first national lockdown in March came the introduction of the furlough scheme, along with other amendments to legislation to help employers and employees navigate the coronavirus pandemic. This included permission for employees to roll over annual leave for up to two years where they have been prevented from taking it due to the crisis and amendments to the sick pay rules to support those who are required to self-isolate.
As usual, April saw several changes to employment law, including the implementation of some of the legislation introduced as part of the Good Work Plan such as changes to the rules on written statements of terms and conditions. April also saw the annual changes to the National Minimum Wage and National Living Wage rates as well as the customary increases to statutory benefits including statutory maternity pay and statutory sick pay.
The Employment Tribunal compensation cap for unfair dismissal awards was also increased along with the annual increase in the Vento bands for injury to feelings awards in discrimination claims.
From 6 April all termination payments above the £30,000 threshold became subject to employer national insurance contributions and the right to Parental Bereavement Leave was also introduced which is an entitlement to up to two weeks statutory leave to deal with the death of a child if they die under the age of 18 or are stillborn. The entitlement to leave is a day one right, but employees with more than 26 weeks service may also be entitled to Parental Bereavement Pay.
Other changes were postponed as a result of the coronavirus pandemic, including IR35 and Gender Pay Gap (GPG) reporting with the announcement that implementation of IR35 would be postponed to April 2021 and that GPG reporting was suspended for the year, with employers now required to report their gender pay gaps by 05 April 2021.
In another eagerly-anticipated decision, the Supreme Court overturned a Court of Appeal judgment in WM Morrisons Supermarkets plc v Various Claimants and found that the supermarket chain Morrisons was not vicariously liable for a data breach that affected over 100,000 staff. A “rogue employee” had previously been sentenced to seven years in prison for uploading payroll data for the entire workforce to a publicly available file-sharing website and tipping off three national newspapers where the information could be found.
The employment status of workers was again in the spotlight in July, with the Supreme Court hearing Uber’s appeal against the Court of Appeal decision in the case of Uber BV and others v Aslam and others. Uber was appealing the decision that Uber drivers are workers for the purposes of the Employment Rights Act 1996, the Working Time Regulations 1998 and the National Minimum Wage Act 1998. We are currently awaiting the judgment from the Supreme Court, but this is expected to be published imminently.
In August the EAT considered another employment status claim, this time brought by Jess Varnish, once an Olympic cyclist, and found that she was neither a worker nor an employee of the British Cycling Federation against whom she was attempting to bring a discrimination claim.
In September we saw what is likely to be one of the largest costs awards in the employment tribunal when a total of £432,000 was awarded against the claimant in Tan v Copthorne Hotels Ltd. Mr Tan was described by the Employment Judge as “duplicitous” and acting in a way that undermined the trust and confidence between himself and his employer due to his “scattergun approach” in referring to every possible claim he could think of to strengthen his position during a redundancy exercise and the making of hundreds of hours of covert recordings made during his employment.
October saw the judgment in Mackereth v DWP and others, in which a doctor was found to have been fairly dismissed. Dr Mackereth was dismissed as a result of his refusal to refer to transgender individuals by the relevant pronouns, and the Tribunal found that this amounted to unlawful discrimination or harassment towards the transgender individual, irrespective of Dr Mackareth’s religious beliefs.
Whilst coronavirus appears to have dominated the headlines last year, understandably so, there were also other decisions that we thought it would be useful to revisit.