On 19 January 2022, the Women and Equalities Select Committee heard evidence as part of its enquiry into menopause in the workplace and considered whether it should be considered as once of the legally protected characteristics under the Equality Act 2010.

The committee heard evidence regarding the discrimination faced by women experiencing menopause symptoms (or perceived to be experiencing symptoms), including inappropriate comments or losing out on pay or promotion opportunities.

The current position for anyone experiencing such treatment must rely only on the existing legislation which covers disability discrimination or sex discrimination to pursue a case. The committee heard that increased guidance and general awareness of the issues would be helpful to address the lack of clarity as to employers’ obligations in this regard.

https://committees.parliament.uk/oralevidence/3322/pdf/

The Employment Tribunal held that the summary dismissal of a care assistant for unreasonably refusing a COVID-19 vaccination was a fair dismissal.

The employer was a nursing home that implemented a mandatory vaccination requirement for those members of staff who were providing close personal care to vulnerable residents (unless they had a reasonable excuse) which they contended was a reasonable management instruction. The circumstances taken into account by the tribunal regarding this decision by the employer included a recent breakout of COVID-19 in the setting and the resultant deaths of residents at the time (January 2021).

It was held by the tribunal that it was within the band of reasonable responses to conclude that the employee’s refusal of the vaccination was due to general safety concerns and scepticism about the vaccine, not due to religious beliefs.

The employee claimed that enforcing the mandatory vaccination rule was an infringement on their physical integrity which was capable of engaging Article 8 of the European Convention on Human Rights. It was held that the employer’s aim of protecting the health and safety of residents, staff and visitors to the setting and protecting itself from the increased likelihood of claims due to their insurance cover being withdrawn for unvaccinated staff was a legitimate reason to enforce mandatory vaccination rules against the employees.

The Employment Tribunal therefore held that in these circumstances, the employee’s refusal to comply with the management instruction to be vaccinated amounted to gross misconduct so the dismissal was not unfair or wrongful.

https://assets.publishing.service.gov.uk/media/61e68df88fa8f50585ecbafb/Ms_C_Allette_-V-_Scarsdale_Grange_Nursing_Home_Ltd_1803699.2021.pdf

The EAT upheld the decision of the Employment Tribunal that a taxi driver who was working through an App was not a worker under section 230 (3)(b) of the Employment Rights Act 1996.

The taxi driver was a self-employed black cab driver who also registered with an App called ‘MyTaxi’. The Employment Tribunal heard that over the course of one year he earned £4,560.48 via the App, but earned £30,472.45 as a self-employed driver.

The tribunal took this into account in addition to the nature of the working relationship with MyTaxi which allowed the taxi driver to provide his services via the app at any time and as frequently as he wanted and was not subject to control by the App. The tribunal also viewed the nature of the activities, dependency and control of the work, and the subordination and integration of the taxi driver.

The EAT found that although there was an obligation to provide a personal service, the tribunal had correctly concluded that the App was a client or customer of the taxi driver’s business.

https://assets.publishing.service.gov.uk/media/61e69755e90e0703816577ea/Mr_Christopher_Johnson_v_Transopco_UK_Ltd__2022__EAT_6.pdf

The NHS published guidance regarding mandatory vaccination as a condition of employment for healthcare workers on 14 January 2022.

From 1 April 2022, providers of CQC-regulated activities in the health and social care section in England will only be able to place individuals who have been fully vaccinated against COVID-19 in patient-facing roles.

The new legal requirements will affect hospitals, GP practices, dentists and community services where care is delivered in a person’s home. As the legislation covers all healthcare staff in patient-facing roles, this means that not only front-line healthcare workers will be affected, but also receptionists, ward clerks, porters and cleaners in face-to-face patient contact must also be vaccinated.

For those members of staff which will be affected by the mandatory vaccination requirement, the last day to obtain their first vaccination is 3 February 2022. Whereas, new members of staff onboarding after 1 April 2022 must provide evidence of first dose of vaccination at least 21 days before starting work, and then evidence of full vaccination within ten weeks of their first vaccination.

There are limited exemptions available to avoid the mandatory vaccine requirement, including for medical reasons, participation in clinical trials and the under-18’s. There are also temporary exemptions in place for pregnant women and those who have recently tested positive for COVID-19.

The NHS guidance provides advice on the steps health and social care employers should take if workers are unwilling to be vaccinated, such as holding a consultation process, considering redeployment away from a patient-facing roles and dismissal.

https://www.england.nhs.uk/coronavirus/wp-content/uploads/sites/52/2022/01/C1545-update-vcod-for-healthcare-workers-phase-2-implementation.pdf