Wed 09 Dec 2020

2020 employment law review of the year

In a year that has been overshadowed by the COVID-19 pandemic we take a look at what has made the employment law headlines.


January kicked off with a high profile tribunal case, Casamitjana Costa v League Against Cruel Sports finding ethical veganism was a philosophical belief worthy of protection under the Equality Act 2010 and ended with the topic we all thought would take up the majority of this year's headlines - Brexit.  As the transition period began trade talks were expected to ultimately shape the relationship between the UK and the EU and how employment rights might be affected.  We also expected an appeal against a tribunal decision which extended the reach of TUPE to workers  - there was no appeal but we may still see similar arguments being made in the future.

Meanwhile, one Birmingham worker who wasn't ready to return from the festive season was rumbled pulling a sickie when her ludicrous photoshop of a nail in her tyre went viral on Twitter.


It was game over for those arguing that enhancements to maternity pay needed to be replicated with shared parental pay as February saw permission to appeal to the Supreme Court being refused in Hextall v Chief Constable of Leicestershire Police.  This meant the final say on the matter was that employers can enhance maternity pay without enhancing shared parental pay without fear of discrimination claims. 

Implementation of IR35 was having a bumpy ride - a UK Government review in January, a House of Lords inquiry in February and many calls for its implementation to be delayed until 2021. But, as of February, it was all still on track for April 2020.

Blissfully unaware of how our working lives were about to change we also learnt that a fully equipped kitchen, sofas, and a desk that is out of view of the boss were amongst the 50 things that make up the perfect office.  We should have been more careful with what we wished for…..


In the UK the real impact of coronavirus began to be felt with effect from 23 March.  The clarity of the "go to work/don't go to work" instruction was soon followed by constantly changing and often contradictory guidance from the Treasury, UK Government and HMRC on the Coronavirus Job Retention Scheme - soon to be known as furlough.  IR35 and Gender Pay Gap (GPG) reporting were early employment law casualties of the pandemic with the announcement that implementation of IR35 (no doubt to the delight of many) would be postponed to April 2021 and that GPG reporting was suspended for the year.

In the meantime, as employers rushed to get their employees working from home, employees came up with more and more inventive ways of creating home offices - everything from ironing boards to drinks cabinets being utilised as desk space.


April saw a number of annual changes to employment law together with the implementation of some of the legislation introduced as part of the Good Work Plan including changes to the rules on written statements of terms and conditions.  April also saw the usual changes to the NMW and NLW rates as well as the annual increases to statutory benefit rates including statutory maternity pay and statutory sick pay. April also saw the annual increase in the Employment Tribunal compensation cap for unfair dismissal awards as well as what is now an 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.

In the end, 50% of those normally required to report their gender pay gap did, but the resulting news was not good with an analysis showing the pay gap increasing by nearly 1% compared to the previous year.   The right to Parental Bereavement Leave was also introduced.

A landmark data protection judgement was handed down when the Supreme Court found supermarket chain Morrisons were not vicariously liable for a data breach that affected over 100,000 staff. A "rogue employee" had previously been sentenced to 7 years in prison for uploading payroll data for the entire workforce to a publicly available file sharing website.

As many of us started to get used to homeworking we found our much loved pets weren't quite as good as co-workers as we might have hoped, but they were still a lot better than our home schooled offspring.


May saw mental health awareness week - something that seems all the more important this year and we looked at the importance of kindness at work.  We also celebrated the 50th anniversary of equal pay legislation.  This notoriously complex area of law received Royal assent on 29 May 1970 although it was a further five years before it came into force to give employers some time to prepare. 

As we got to grips with zoom meetings some workers were more fortunate than others when it came to the behaviour of their spouse/partner/flatmate/children as photobombing took on a whole new online life of its own.


A petition signed by over 125,000 gave some hope that mandatory ethnicity pay gap reporting would be debated in Parliament.  The UK Government response was to confirm that they would respond to the consultation that took place in 2018 by the end of the year.  The mood very much suggests now is the time for legislation to be introduced. 

The rumour mill was also turning with the possibility of the re-introduction of employment tribunal fees.  The Times newspaper suggested that ministers intend to re-instate fees after the newspaper had sight of correspondence between Whitehall officials and the head of the English Law Commission that asked the Commission to “provide recommendations for creating a coherent system for charging and updating fees in the future". 

As we entered the third month of lockdown pets once again became the focus (and a way to cheer us up) as photos of dogs working from home went viral.


Flexible furlough took effect from 1 July and seemed to indicate the start of a possible return to a "new normal".  However, the harsh reality for some was redundancies and the UK Government introduced legislation intended to ensure that furloughed employees who were subsequently made redundant received statutory notice pay and redundancy pay based on their pre-furlough rate of pay.  The introduction of the Job Retention Bonus was also announced as part of the summer economic statement.

The employment status of workers was again the focus of attention 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 1998, the Working Time Regulations 1998 and the National Minimum Wage Act 1998. The judgement of the Supreme Court is expected to be published shortly.

July also saw the famous "where should Scarlett's unicorn go?" interview on the BBC, one of a number of similar child based interruptions of television interviews that occurred in 2020.


As furlough was starting to wind down towards an end of October closure of the scheme (or so we thought) it left many employers wondering whether redundancy was the only option.  The EAT also looked at the unusual employment status claim of Jess Varnish, once an Olympian cyclist, and concluded that she was neither a worker nor an employee of the British Cycling Federation against whom she was attempting to progress a discrimination claim. 

While the summer holidays may have seen the end of the home schooling juggle, it saw the start of parents having to ward off bored kids with little to do, leading one barrister to put up a "legal notice" to keep her kids at bay.


September saw the publication of the annual employment tribunal award statistics Relatively unaffected by the pandemic, as it looks at the year April to March 2019/20, the statistics highlighted that awards in sex discrimination cases had the most significant change in terms of both median and average awards - both of which nearly doubled - in a year when there was an unexpected overall reduction in the number of claims made.

We also heard of what is likely to be the largest costs award this year (and possibly in any year) 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.


October brought with it the announcement of the Job Security Scheme, the replacement for the CJRS due to come into effect on 1 November 2020.  As employment lawyers everywhere started beavering away to understand and provide advice on the new scheme it was quickly expanded to provide temporary support to businesses whose premises have been legally required to close, or to provide only delivery and collection services from their premises, as a result of tighterrestrictions (JSS Closed).  Then, with only a week to go until it was implemented, the JSS Open, as it was by then known, was amended to provide for a more generous UK Government contribution and a lower minimum worked hours requirement. 


At close of business on 30 October we thought we were waving goodbye to the CJRS, only to have a UK Government announcement confirm a period of lockdown for England and the extension of furlough.  A few days later and it became clear that furlough would be extended until 31 March and both the JSS and the JRB would be put on hold for the time being

November also saw the implementation of legislation to restrict public sector exit payments on a UK wide basis.  The Regulations, which had first been consulted on in 2015, apply to a "relevant authority" or body responsible for determining remuneration payable to public offices identified in schedules to the Regulations - including Scottish public bodies where employment terms are subject to UK Government approval - and cap exit payments at £95,000.  Scotland had introduced a similar cap for Scottish devolved bodies in September 2019.

The latter part of November brought very welcome positive news about a number of coronavirus vaccines with possible roll out in the New Year. Taking a look at the shocking model of what we might look like if we work from home for the next 25 years this news has not come a moment too soon.


2020 has been a historic year for all the wrong reasons. Current information suggests a three family bubble will be able to spend the festive period together, but we will not be having the usual annual Christmas office parties (although for some waking up without "the fear" of what they might have said to who may be a welcome change).  That is not to say there will be no celebrations - indeed having some festive fun with colleagues is probably more important than ever this year - and a whole new industry seems to be developing in response.  Popular ideas include virtual tours of distilleries; virtual cocktail making lessons; or wine or gin tasting with the alcohol being delivered to employees' homes in advance.  Virtual quizzes, games nights and escape rooms are also popular.

This time last year we were looking forward to the start of a new decade - with a bit of luck things can only get better from here on in.  News that the Pfizer vaccine was approved for use in the UK at the start of December will have brought everyone a bit of early festive cheer - and hopefully this and the other recent vaccine news means that we will get back to normality at some point in 2021 both in terms of our working and our everyday lives.  For details of what we think is likely to make it big next year in the world of employment law watch out for our 2021 preview of the year coming soon…

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