The 10 most important employment law cases in 2021

Despite the coronavirus pandemic, HR professionals have had their fair share of employment law rulings to keep track of in 2021. We count down the 10 most important judgments of the year that every employer should know about.

10. Male directors dismissed to improve gender pay gap

Bayfield and another v Wunderman Thompson (UK) Ltd and others (employment tribunal)

The employment tribunal upheld two male directors' claims after their advertising agency dismissed them in a bid to "obliterate" its reputation as a "Knightsbridge boys club", in this cautionary tale for employers that are seeking to correct overnight the systemic issues that influence a gender pay gap.

Not long after publishing a "horrible" and "embarrassing" gender pay gap, the advertising agency held a conference to address the lack of diversity in which reference was made to the agency wanting to "obliterate" its reputation that it was full of "white, British, privileged, straight, men".

In a decision that the tribunal found to be discriminatory and unfair, the advertising agency subsequently made two creative directors redundant. It selected two straight white British men for redundancy, both of whom had been among those who had complained about the presentation.

9. Failure to consider furlough affected redundancy's fairness

Mhindurwa v Lovingangels Care Ltd (employment tribunal)

In one of the first cases to examine the furlough scheme, the employment tribunal held that the employer's failure to consider the possibility of furloughing a care worker as an alternative to redundancy resulted in her dismissal being unfair.

In the early days of the pandemic, a live-in care worker was made redundant, despite her request to be furloughed. She brought a successful unfair dismissal claim, citing in particular her employer's failure to consider her furlough request seriously.

The tribunal highlighted that the purpose of the furlough scheme was to avoid laying off employees because of the pandemic and this was exactly the type of situation that the furlough scheme envisaged. In the tribunal's view, a reasonable employer would have considered if she could be furloughed to avoid redundancy.

8. "Stale" training no defence for racist jibes

Allay (UK) Ltd v Gehlen (EAT)

In this case, the Employment Appeal Tribunal (EAT) held that the employer's diversity training was insufficient to amount to a "reasonable steps" defence in a claim of racial harassment committed by one of its employees.

Employers are liable for acts of harassment committed by their employees against other employees in the course of their employment, unless they can show that they took reasonably practicable steps to prevent those acts.

The EAT agreed with the employment tribunal that the "reasonable steps" defence was not valid here because the training that the staff in question had received several years earlier was "clearly stale" and required refreshing.

7. Absence of appeal not determinative of redundancy's fairness

Gwynedd Council v Barratt and another (Court of Appeal)

In this decision, the Court of Appeal neatly answered a question that is frequently asked during a redundancy procedure: if a proper consultation process is followed, must employers still give employees the right to appeal against the decision to make them redundant?

The Court of Appeal held that the absence of an appeal in an otherwise fair redundancy process does not, of itself, render the dismissal unfair. According to the Court of Appeal, it would be wrong to find a dismissal unfair only because of the failure to provide the employee with an appeal hearing.

However, the Court of Appeal did say that the absence of an appeal is one of many factors to consider in determining the overall fairness of a redundancy. In this case, the tribunal had been entitled to consider all the relevant circumstances, which included a lack of consultation as well as the absence of an appeal.

6. Office-based role discriminated against primary carer

Follows v Nationwide Building Society (employment tribunal)

While it is a non-binding first-instance decision, this case provides a timely reminder for employers that a non-disabled employee may bring a claim for indirect disability discrimination if they suffer a particular disadvantage because of their association with a disabled person.

The most likely scenario is where a primary carer is disadvantaged by their employer's inflexible policies. That was the case here, where the employer's requirement for a senior manager, the primary carer for her disabled mother, to be office based was found to be indirectly discriminatory.

The decision shows how important it is for employers to support employees with caring responsibilities and ensure that they are not treated less favourably than employees who are not carers. Employers should put in place clearly framed policies, such as a carers policy and a policy on requesting flexible working.

5. Menopausal symptoms can be disability

Rooney v Leicester City Council (EAT)

Law firm Linklaters has highlighted the rising number of tribunal cases in which employees are alleging menopause-related discrimination, prompting the firm to call for more awareness and support for staff experiencing it.

In this key 2021 case, the EAT ruled that an employment tribunal had wrongly decided that a woman suffering with menopausal symptoms was not disabled.

While the case law in this area develops, employers should ensure that line managers understand how menopausal symptoms can impact an employee's wellbeing, performance and attendance. This will help line managers to have sensitive and supportive conversations with affected employees, as well as reduce the risk of discrimination claims.

4. Shop workers can compare themselves with depot workers

Asda Stores Ltd v Brierley and others (Supreme Court)

In this long-running equal pay saga, the Supreme Court confirmed that workers in Asda supermarkets are entitled to compare their pay with the pay of depot workers.

While this decision resolves the comparator issue in this case, the employment tribunal has still to decide if the claimants performed work of equal value and, if so, whether there are any non-discriminatory reasons for Asda's failure to pay the two roles equally.

This case has been blighted by challenges on technical points of law at every turn. In its decision, the Supreme Court advised tribunals to avoid overly complicated assessments when considering cross-establishment comparisons and to discourage appeals, which may make it easier for claimants to overcome this first hurdle in an equal pay claim.

3. Uber drivers are workers entitled to basic employment rights

Uber BV and others v Aslam and others (Supreme Court)

In this high-profile case, the Supreme Court had little hesitation in finding that Uber drivers are workers and are entitled to receive the national minimum wage and paid annual leave.

The decision is consistent with the direction of travel of the case law on the employment status of gig-economy workers, with the Uber drivers being successful at every stage of the legal process when arguing that they are workers and not self-employed.

In recent years, rulings in this area have had a significant business implications on employers in the gig economy. Many gig-economy employers have had to rethink the terms on which they engage workers, offering them basic employment rights from day one.

2. Sleep-in care workers not entitled to minimum wage while asleep

Tomlinson-Blake v Royal Mencap Society; Rampersad and another (t/a Clifton House Residential Home) v Shand (Supreme Court)

In this long-awaited decision - the case was heard in February 2020 but the ruling published only in March 2021 - the Supreme Court found that sleep-in care workers are entitled to be paid the national minimum wage only when they are awake for the purposes of working, not when they are sleeping.

The judgment was a bitter blow for sleep-in care workers, with unions, charities and campaign groups believing that the national minimum legislation covering sleep-in payments is out of date and unfair.

However, the Supreme Court's remit in this case was narrow. Its job was to interpret the wording of the national minimum wage legislation to decide if it requires sleep-in workers to receive the minimum wage only when they are awake and "available" to work. According to the Supreme Court, the legislation is quite clear and issues of general fairness could not influence its decision.

1. Direct pay offers to workers during collective bargaining unlawful

Kostal UK Ltd v Dunkley and others (Supreme Court)

In the most important trade union case for years, the Supreme Court held that trade union legislation prevents employers from bypassing the union and making direct offers to employees while the collective bargaining process is ongoing.

In this case, the employer had reached a stalemate with the recognised trade union over a pay package and Christmas bonus. It wrote to its workforce directly, offering them a deal and threatening consequences if they rejected it.

The Supreme Court made clear that a direct approach can be made after the collective bargaining process has been followed and exhausted. However, the Supreme Court warned that what an employer cannot do with impunity is to make offers to workers before the collective bargaining process has been exhausted.