Our light-hearted review of 2021 recaps key employment law developments from the past twelve months to the tune of five re-written verses of "The Little Drummer Boy". Enjoy with a mince pie!


Come and listen, pa rum pum pum pum
What a year for Employment in twenty twenty-one
Here are the highlights of a changeable year
Jan 'n Feb in lockdown with the CJRS (a tough time all round – but we persevered)
In March a new status test, pa rum pum pum pum
In Uber and Aslam[1]

Equal pay claims next in the supermarkets
Store staff and depot staff can compare for the test[2]
Disclosure obligations cover a lot[3]
Best to do an audit and review where you're at - can you justify gaps? What can you spot?
April changes to IR thirty five
Status tests have arrived

Widening protection under the Equality Act
Gender critical beliefs are protected[4] (what will be the impact?)
The first case of associative indirect discrim[5]
And budget limits can be a legitimate aim, said the Court of Appeal, rum pa pum pum[6]
Contracts split proportionally on TUPE SPCs[7]
(Quite a surprise)

A new duty for employers to protect from harassment
And a case that reminds us, training on this mustn't be spent[8]
No appeal on a redundancy isn't fatal to be fair[9]
And it's lawful to make direct offers to employees if you've exhausted collective bargaining[10]
Holiday pay change was expected in June
But it didn't come through[11]

So, what's left to say before we go?
Since the end of September no more furlough
Flex working consulting closed earlier this month
And another on disability reporting closes in March (you can respond to this now)
Here, the AG team wish you all the best
And an end of year rest


Footnotes

[1] Uber and ors v Aslam and ors [2021] UKSC (Uber drivers are workers and not in business on their own account due to the level of subordination and control exercised over them) 

[2] Asda Stores Ltd v Brierley and ors [2021] UKSC (Female retail staff can compare themselves to male distribution staff working at different establishments for the purposes of equal pay claims)

[3] Tesco Stores Ltd v K Element & Ors [2021] UKEAT (Request for disclosure of comparator information in equal value claim was not a "fishing expedition”)

[4] Forstater v CGD Europe and others UKEAT (A gender critical belief (including that sex is immutable) was a philosophical belief qualifying for protection under the Equality Act 2010)

[5] Follows v Nationwide Building Society, ET (ET upheld a claim of indirect associative discrimination on the grounds of disability for a homeworker with caring responsibilities who was made redundant due to a requirement to attend the office more) 

[6] Heskett v Secretary of State for Justice [2020] EWCA (Budget constraints can be a legitimate aim where an employer's aim is more than just a desire to save costs) 

[7] McTear Contracts Ltd v Bennett and others UKEAT (In a transfer to multiple transferees on a service provision change, the employment contract of a transferring worker could be split between each of the transferees in proportion to the tasks performed by the worker)  

[8] Allay (UK) Ltd v Gehlen UKEAT (Equality training will only provide a defence to discrimination claims where it is substantial and conducted regularly to avoid it becoming "stale")

[9] Gwynedd County Council v Barratt and another [2021] EWCA (Lack of an appeal was not fatal to a fair redundancy process)

[10] Kostal UK Ltd v Dunkley and others [2021] UKSC (It is only lawful to make direct offers to employees if the collective bargaining process has been exhausted)

[11] The Supreme Court was due to hear appeals in June 2021 in: (a) East of England Ambulance Trust v Flowers (whether holiday pay must include regular overtime); and (b) Chief Constable of the Police Service in NI & ors v Agnew (whether a period of 3 months between deductions or non-payments breaks a series of deductions), but Flowers settled due to an NHS-wide deal on holiday pay and Agnew was also removed from the list in light of settlement discussions. This means that the Court of Appeal's decision in Flowers stands (holiday pay must include regular voluntary overtime) and there remains divergence between Northern Ireland and the rest of Great Britain as to whether a 3-month period between deductions or non-payments will break a series of deductions, after the Northern Ireland Court of Appeal held in 2019 that whether there had been a series of deductions through time was a question of fact.  NICA's decision is only binding in Northern Ireland, but can be taken into account elsewhere in the UK.

Helen Almond

Helen Almond

Principal Knowledge Lawyer, Employment & Immigration
Manchester, UK

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