10 key employment law cases of 2022

As we start 2023, we look back on a selection of employment law cases from the last 12 months which have brought to light key employment issues.

1. Smith v Pimlico Plumbers

In his previous long-running court case, Mr Smith had successfully established that he had worker rights despite being engaged as a ‘self-employed’ plumber. He subsequently claimed he was due accrued holiday pay stretching back over six years even though he had taken time off and had never brought claims for non-payment. Was his claim out of time?

No. The Court of Appeal held that he could claim the backdated holiday pay. His claim was not time-barred as where there had been no facility provided to take paid leave the time limits were not triggered. Instead, the right to the holiday pay accrued and carried over from year to year until the contract came to an end.

Key takeaway

The decision should serve as a warning to any business which regularly engages ‘self-employed’ contractors that there is a risk of substantial claims for backdated statutory holiday pay. Steps should be taken to minimise that risk by assessing whether contractors could qualify as workers for example where they may not provide a substitute.

3. Burke v Turning Point

Mr Burke had been absent from work with Long Covid for nine months when he was dismissed. He brought a claim of disability discrimination. Could Long Covid amount to a disability?

Yes. An Employment Tribunal held that his condition had a substantial adverse effect on his ability to carry out normal day-to-day activities and it could well last for 12 months or more. This met the definition of disability under the Equality Act 2010.

Key takeaway

This decision confirms that those with Long Covid could be classed as disabled. Each case will need to be considered on its own facts taking into account any relevant medical evidence to assess its impact on the individual.

5. Brazel v Harpur Trust

Mrs Brazel complained that the 12.07% allowance she received for holiday pay was unlawful given that she was a term-time worker. Should her holiday pay have been based on her average pay before her holiday was taken?

Yes. It was held that the practice of paying a 12.07% allowance did not accurately reflect the holiday pay entitlement of a worker who was permanently employed but worked only part of the year. The 12.07% was based on a presumption the work would be carried out throughout the year. A worker had a statutory entitlement to 5.6 weeks’ paid holiday leave per year at their normal pay rate.

Key takeaway

The decision highlights that the principle of applying a pro-rata reduction to the accrual of holiday entitlement will only apply in respect of the hours worked over a week not the weeks worked over a year. The practical impact is that paying an additional 12.07% wages may lead to an underpayment for part-year workers.

7. Richards v 1) Waterfield Homes Ltd 2) Unity Build and Repairs Ltd

Mr Richards, worked under the Construction Industry Scheme (CIS) as a self-employed contractor. He had been working exclusively for the same company since 2010 working regular hours from Monday to Friday. In 2018 he was told that the contractors were to be given employment contracts to regularise the working relationship. Could Mr Richards claim that his employee status should be recognised as applying before the new contracts were introduced?

Yes. While HMRC had accepted that under the CIS he was self-employed for tax purposes, it was only one of the factors that had to be considered to assess his employment status.

Key takeaway

The decision shows that while the CIS is based on self-employment it will not be sufficient to prevent someone having employee status where there are other factors supporting such a conclusion. The fact that in July new guidance was issued to help identify employment status may help but there will be many situations like this where the individual’s status for tax purposes may be looked at differently for employment purposes.

9. Ponticelli UK Ltd v Mr A Gallagher

Mr Gallagher’s new employer had inherited the rights and liabilities of him and other staff under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). His request that he be given access to a similar Share Incentive Plan as prior to the transfer was rejected as it was voluntary and did not arise either “under” or “in connection with” the contract of employment. Was Mr Gallagher entitled to have an equivalent scheme after his employment transferred?

Yes. It was held that Mr Gallagher was entitled, after the transfer, to participate in a scheme substantially equivalent to that operated by the transferor. While the obligations in question did not arise “under” the contract, they plainly arose “in connection with” the contract.

Key takeaway

The decision highlights the importance of understanding what terms and conditions are in place prior to a TUPE transfer. Even where benefits are not contained in the contract of employment they may still need to be provided post-transfer in a similar manner.

This article was previously published in People Management.