U.K. courts have faced novel employment questions regarding whistleblowers, discrimination over personal beliefs and whether long COVID can be a disability. Employers in the United Kingdom should keep a note of these recent rulings to inform their own policies.
Clarification on Worker Status
In Nursing and Midwifery Council v Somerville  EWCA Civ 229, the Court of Appeal (CoA) considered whether an obligation on the part of a worker to perform a minimum amount of work was a prerequisite for worker status.
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.