On 21 February 2022, the U.K. government announced its “Living with COVID-19’” plan. This month’s U.K. Employment Law Update outlines the key changes in England and what it means for employers.
Tesco Restrained From ‘Firing and Rehiring’ Employees
In USDAW and ors v Tesco Stores Ltd  EWHC 201 (QB), the High Court (HC) granted an injunction to restrain U.K. supermarket giant, Tesco, from ‘firing and rehiring’ employees who did not agree to the removal of a permanent right to a benefit.
This decision is significant as it offers a potential new legal remedy for employees whose employers are looking to ‘fire and rehire’ them in order to remove a permanent entitlement. The practice of ‘fire and rehire’ was already controversial and under increasing scrutiny prior to this decision, and it will be interesting to see the extent to which employers will try to deploy it in the future.
Recent Employment Tribunal (ET) decisions have shed light on the risks that can arise for employers where employees refuse to attend the workplace because of COVID-19 concerns. We consider below how ETs have dealt with claims of discrimination and automatic unfair dismissal related to COVID-19.
In X v. Y (ET 241947/2020), an employer withheld an employee’s wages after she refused to attend the workplace due to her fear that she would contract COVID-19 and pass it on to her vulnerable husband. The employee brought a claim for unlawful discrimination arguing that her opinion regarding the risk of COVID-19 and the need to protect herself amounted to a philosophical belief that was capable of constituting a protected characteristic under the Equality Act 2010. The ET disagreed. It found that the employee’s view was not a philosophical belief protected under the Equality Act 2010 but “a widely held opinion based on the present state of information” and a “reaction to a threat of physical harm”. Her claim therefore failed.
On January 21, 2022, France’s Constitutional Council approved a law requiring individuals who are 16 or older to show proof of vaccination against COVID-19 (a “vaccine pass”) before entering certain public places, such as restaurants, bars, and stores. The law also permits business owners to check a customer’s vaccine pass against the customer’s identification documents where they have good reason to suspect that the vaccine pass being shown does not genuinely belong to the customer presenting it.
Currently, individuals in France are required to present proof of vaccination or of a negative test result to enter public venues. Under the new law, which will take effect on January 24, 2021, a negative test result will no longer be accepted.
Was a Redundancy Dismissal Unfair Because of Lack of Appeal?
In Gwynedd Council v (1) Barratt (2) Hughes  EWCA Civ 1322, the Court of Appeal (CA) considered whether an employer’s failure to give an employee an opportunity to appeal against the decision to dismiss them for redundancy rendered the dismissal unfair.
The claimants were teachers who were dismissed for redundancy as a result of the closure of the school at which they taught. They brought a claim for unfair dismissal, arguing that the redundancy process had been unfair, in part because they were not given an opportunity to appeal their dismissal.
With the arrival of a new year and a promising COVID-19 vaccine, many U.K. employers have expressed renewed interest in returning to the workplace. But those hoping a mandatory vaccination policy will serve as a silver bullet to reopening plans should proceed with caution. Whilst there may be certain settings in which such a policy is reasonable, pursuing it could trigger a number of legal implications.