employment law rights can be incurred from day 1 of employment

the number of age discrimination claims has risen by 32%

training your managers on diversity provides you with a legal argument

protection is afforded to casual agency, or even some freelance workers as well as employees

a strictly adhered to policy may provide you with legal protection

graphic of people

legal updates

7 December 2017

​Legal update

Various v Claimants v WM Morrison Supermarkets plc 2017

 In this case an IT payroll Manager employed by WM Morrison, in revenge over an earlier disciplinary warning he had been given, loaded personal information (names, salary, addresses, bank account etc.) of a number of WM employees (99,998 employees to be precise) onto an encrypted memory stick and in his own time, outside work on his personal computer, posted that information onto a file sharing website. Links to that website subsequently appeared elsewhere on the internet. Then a cd of the same data was sent to three newspapers by an anonymous person who told the newspapers worryingly the same information was appearing online. The newspapers did not print it but told WM Morrisons what it had received and the website was taken down within hours.

The employees, whose information had been shared, claimed against WM Morrisons:

  • It was a breach of the Data Protection Act and/or
  • A breach of confidence (both by Morrisons directly and indirectly by one of its employees).

 The claim was brought against the employer rather than the employee who had done the dastardly deed.

The Court decided that it was not a breach of the Data Protection Act (as WM Morrison was not the Data Controller At the time of the dastardly deed, it decided the rogue employee was the data controller by the time the data was being misused) also WM Morrisons did not know nor ought it to have known the rogue employee posed a threat to security just because he had been given an earlier warning. But the Court did decide it was a breach of confidence and the employer (WM Morrison) was liable for the acts of its rogue employee (the IT Manager) even though an employer will only be liable if the act done is in the course of employment.

How can information shared on a personal computer via a personal email address on a Sunday (a non-working day) be “in the course of employment””? The test is- was there sufficiently close connection with employment?  The employee only had the data because of his work there was a continuous line between the warning he had been given and the plan he hatched to get back at his employer and that linked the act with the employment, it was sufficiently close. The employer was liable as it had allocated the work to the employee, which gave him access to the information, and had control over the employee as his employer. This all meant WM Morrisons was liable for the act of the rogue employee.

This is a high court decision and Morrisons were given the right to appeal the outcome as the Judge was concerned about one point in particular, he was possibly encouraging criminal activity as the employer was held liable for the act of a rogue employee, an employee who had therefore successfully got back at his employer, which is exactly what he wanted to do – harm Morrisons.  

From a practical perspective Managers, when allocating duties, must ensure they are delegating to an employee who can be trusted and if not that there re checks in place not to allow one employee to have access to such confidential information.



15 May 2017

Legal update - “hidden disability”

I am getting asked more and more about what steps that can be taken in relation to employees with Dyslexia, Asperger’s, Autism and Dyspraxia.  

This update has been prompted by the recent case of The Government Legal Service v Brookes and a look back at the case reported last year Kumulchew v Starbucks.
In the Brookes case,  Ms Brookes was applying for a legal job within the Government Legal Service (GLS). The recruitment process included a multiple choice Situational Judgement Test (SJ Test). Ms Brookes contacted the GLS in advance and informed them of her Asperger's Syndrome and requested adjustments to the SJT. She was informed she could have extra time, but an alternative test format was not available. She completed the SJ Test and failed. She claimed disability discrimination.
Ms Brookes argued the requirement that all applicants take and pass the SJ Test was a 'provision, criterion or practice' (PCP) and that it put a group people such as Ms Brookes at a particular disadvantage compared to those who did not have Asperger's Syndrome. And it put Ms Brookes herself at such a disadvantage.
GLS argued the requirement that all applicants take and pass the SJ Test (“the PCP”) served a legitimate aim, however GLS was unable to show that making everyone sit the SJ Test was a proportionate means to achieving that legitimate aim and so Ms Brookes' claim of indirect disability discrimination succeeded. She also won a claim that GLS had failed to make reasonable adjustments.

So what could GLS have done? It could have asked and listened as Ms Brookes had information from her psychiatrist that a multiple choice format test would not be appropriate for her. Therefore, asking her sit another form of test could have been made to take away the disadvantage.  Rarely are processes set in stone.  The EAT accepted the GLS needed to test the core competency of its candidates to make effective decisions; however, a psychometric test was not the only way to achieve this.

In the Starbucks case, Ms Kumulchew was a Qualified Shift Supervisor at a Starbucks store.  She is dyslexic and struggles with reading, spelling and comprehension with information.  Starbucks was aware of her dyslexia from an early stage in her employment.

Ms Kumulchew had made some incorrect entries in the Duty Roster Notebook and was accused of “falsifying” the Duty Roster Notebook.  Ms Kumulchew said she had made a mistake because of her dyslexia.  Starbucks started the disciplinary process. And as part of that process she was asked to produce a “certificate” to prove her reason for making the mistake.  Ms Kumulchew asked her GP for a certificate and she was told (and passed this information on to Starbucks) that people with dyslexia are not provided with certificates, and the GP suggested Starbucks could send her to a company doctor.  She was not sent for a medical assessment. She was then given a written warning.

The “history” to this employee is relevant too Ms Kumulchew had made various complaints alleging sex discrimination on the part of a fellow employee and had started previous tribunal proceedings alleging race discrimination, (which had settled).  The tribunal found that the previous allegations were protected acts (so protected Ms Kumulchew from future victimisation) and some were also protected disclosures (therefore, whistleblowing protection was relevant).

In a terrible judgment against Starbucks, the tribunal decided the evidence given by Starbucks’ witnesses’ was inconsistent and lacked credibility.  The outcome was - the written warning amounted to discrimination in relation to something arising out of her disability (it was linked to her disability). And the disciplinary procedure was not reasonably adjusted by Starbucks (i.e written notes were not typed up and given to her, the notes, when given, were late etc,). Finally, she had been victimised and suffered a detriment because of the previous allegations (sex and race discrimination) and she had only been disciplined about the Duty Roster book because she had made a previous claim.

As an employer, if you know or ought to know of a disability make time to check what having that disability can mean, work wise, check out a relevant charity website to gain some background knowledge, whilst accepting you are not medically qualified. Having got some back ground information have a meaningful exchange of views with the person with the disability about what changes (reasonable adjustments) can be made so you can avoid/limit any allegation of a failure to make a reasonable adjustment and avoid/limit any claim of discrimination arising out of a disability or indirect discrimination. If it is something that triggers a medical review, use occupational health to make recommendations, again, on the basis you are not medically qualified. Both of the cases above could have been avoided/defended with this approach.

22 March 2017

There have been two sickness cases in the last two weeks that it is worth you knowing about.

O'Brien v Bolton St Catherine's Academy 2017

Ms O’Brien was a teacher who went off work with stress/depression, she was off for more than a year and the school decided to end her employment for reason of capability. Capability is potentially a fair reason to dismiss but the dismissal must fall within a band of reasonable responses. Ms O’Brien started a claim against the school asserting the dismissal was unfair and as it was linked to her disability it was discriminatory and automatically unfair.  

Cases of sickness dismissal are difficult  and that is because it was decided way back in 1977 (long before the disability was a protected characteristic) that:   

Every case depends on its own circumstances. The basic question which has to be determined in every case is whether, in all the circumstances, the employer can be expected to wait any longer and, if so, how much longer? Every case will be different, depending upon the circumstances.

The relevant circumstances include "the nature of the illness, the likely length of the continuing absence, the need of the employers to have done the work which the employee was engaged to do"  

In Ms O’Brien’s case she had been off nearly a year (and during that year she had occupational health appointments and meetings with the school which her union rep attended too) when she got a letter from the school asking her amongst other things:


7. What do you believe are the barriers to you returning to work?

8. Do you feel that you will be able to return to work at some point in the future and if so what are the likely timescales?

9. Are there any adjustments that can be made by the Academy in order to facilitate return to work ?"

Ms. O’Brien did not reply to this letter and so the school asked the union to reply.


7. I believe that the work environment at [the school] has made me ill.

8. This is impossible for me to answer this point in time.

9. I refer you to my answer to question 7. I also suggest that you look at your own notes on that subject to which could provide you with all of the information that you need in this regard."

On receipt of this vague reply the school wrote to Ms O’Brien’s GP. In reply the GP said the school should ask Ms O’Brien (a circular problem). Frustrated by this, the employer arranged a formal incapacity hearing and Ms. O’Brien was told it could lead to her dismissal. At the formal hearing Ms O’Brien said she had 7 therapy sessions coming up and she had been told her condition was treatable but she could not give a return to work date.

The decision was taken to dismiss Ms O’Brien, the reasons given were:

"1. the length of time off work [over one year] to date with no substantive progress of condition;

2. no prognosis that indicates a return to work likely in the near term;

3. concern that the incidents that precipitated your condition could occur again in the school environment".

Ms O’Brien appealed the decision and in this appeal she said she was now fit to return to work (the dismissal hearing took place at the end of January and the appeal in April 2013).  Despite this the decision to dismiss was upheld.

The Employment Tribunal decided the dismissal was discriminatory and unfair: the employer had (a) not produced evidence of any adverse impact which her continuing absence was having on the running of the school and (b) that in the absence of such evidence it was reasonable to wait "a little longer" to see if she would be able to return to work, particularly in the light of the encouraging evidence available at the appeal hearing.

The employer appealed and the EAT decided the dismissal was fair and the dismissal was not discriminatory.  

Ms. O’Brien appealed. The Court of Appeal decided the case was borderline due to the length of absence but in its view Ms O’Brien had been unfairly dismissed and it was discrimination. This is 6 years after she first went off sick.

The reason for going into detail with this case is to highlight the “crunch factor” in this case it was Ms O’Brien turning up to the employer’s appeal hearing with fresh evidence at appeal– i.e. she was fit to return to work – and that made a potentially fair dismissal, unfair and discriminatory. If the employer had sought its own medical evidence at that stage to say that was not in fact true, then its action of dismissal would have probably been ok.   

As a lesson for you, when deciding to dismiss and when making decisions on appeal you must take into account the latest information and assess it in light of the business needs and the history of the employment.


Newcastle Upon Tyne NHS Foundation Trust v Haywood.

In this case, Ms Haywood turned 50 in July 2011, if she was made redundant prior to being 50 she was entitled to a significantly smaller pension redundancy fund than if she was made redundant after 50. She was given notice of redundancy in April 2011 and paid in lieu of notice. There was no right in her contract to be paid in lieu. The argument in the Tribunal was around the “effective date of termination”. Ms Haywood argued it was at the end of what would have been her notice period (i.e. after July 2011) and the employer said it was when she was paid in lieu (i.e in April 2011, before she was 50). There was also an argument about when the 12 weeks’ notice started running. The letter of notice was sent on 20 April but Ms Haywood was on holiday and so she did not get it until 27 April, that was the date the 12 weeks’ notice started to run, said the court, 27 April.  

And it ran for 12 weeks, so after the date Ms Haywood was 50  and so she got paid her enhanced redundancy pay.      

The lesson here is: notice is effective when it is received, so use tracking mail. Also, not having a pay in lieu clause can catch you out if there is a critical date in what would have been the notice period.     


20 January 2017

The Modern Slavery Act 2015 came into force in October 2015 and relates to financial years ending after April 6, 2016. Section 54 of that Act refers to a statement an organisation must publish (on its website in a prominent position) relating to Modern Slavery. Such a statement must be published within a desired 6 months following the end of the relevant financial year, hence the timing of this email.  

Only organisations (and group turnover is relevant when calculating the figure) with a turnover of 36 million UK pounds must publish such a statement.  

If your organisation has under 36 million UK pounds turnover there is no need to “publish” a statement but you may wish to make a voluntary statement on your website, along the following lines:    

“XXX Limited, and all companies within the group, does not condone Modern Slavery and it works with the group and their partners to maintain that position”

You may also wish to include a sentence in your handbook to reflect the company position, acknowledging this is an important issue to which employees attribute value, disregarding your turnover.  Finally, you may wish to ensure your supply chain has taken the correct steps in relation to Modern Slavery and include in any terms and conditions the fact that the supplier does not condone Modern Slavery and/or, if relevant, has complied with its obligations under the Modern Slavery Act.

For those companies with a turnover of 36 million or more annually, the statement must be signed by a director and the Home Office guidance says the statement should be:

  • Written in simple language to ensure that it is easily accessible to everyone.
  • Succinct but cover all the relevant points and link to relevant publications, documents or policies.
  • In English, but may be provided in other languages that are relevant to the supply chain. It suggests that specifying the actions by specific country will help readers understand the context of the steps taken.
  • Include either a statement: of the steps the organisation has taken during the relevant financial year to ensure that slavery and human trafficking is not taking place in any of its supply chains, and in any part of its own business; or

that the organisation has taken no such steps.

Here is the link to the Home Office guidance on how to describe the “steps the organisation has taken” for inclusion in your statement - https://www.gov.uk/government/publications/transparency-in-supply-chains-a-practical-guide


13 December 2016

Gender Pay Gap Regulations

Who needs to comply?

·         All private sector employers with 250 or more “employees” this means employees and workers (workers who are engaged directly by employers as consultants, independent contractors etc.).

What data needs to be collated?

Salary and bonus (defined to include commission and securities) payments paid to employees and workers in a particular pay period.  It has to be reasonably practicable to get the data for “workers” otherwise it does not need to be included. I am assuming if you are making the payment, the argument is; it will always be reasonably practicable, as you ought to know who you are paying.  Only the “full-pay” of relevant employees should be included in calculating mean and median hourly pay rates. For example, if a woman is on maternity leave on 5 April, she will only be included in the hourly pay data if she is receiving full pay during April rather than reduced maternity pay. Hourly rate of pay and how to calculate it is set out as a six step exercise in the Regulations attached.

What needs to be published and where?

·         The mean and median hourly pay gap between men and women, based on a pay period in April each year. The actual date is 5 April however, for monthly-paid employees, the relevant pay period will be the whole of April each year.

·         The annual bonus gap between men and women, again using the same date in April.

·         The difference in the median bonus pay figure in addition to the mean figure.

·         The proportion of male and female employees who received a bonus that year.

·         The numbers of men and women in each of four quartile pay bands.

The numbers of men and women who fall within the four quartiles pay bands involves splitting the workforce into four equal-sized groups that are organised according to the hourly pay rate, from the lowest to the highest paid. Four steps to assist with the calculation are set out (in regulation 14 attached). If a number of employees receive the same hourly rate of pay and so fall within more than one quartile pay band, you should so far as possible ensure the relative proportion of men and women is the same in each pay band. This prevents an employer in this situation from moving the men and women into separate pay bands

When must the first data be published?

The 2017 information must be published by 4 April 2018, on the employer’s website.

What happens to the data?

As well as publication on the employer’s website, there is to be a website designated by the Secretary of State to which all gender pay reports must be uploaded (including the name and job title of the person who signed the accompanying statement).


17 November 2016

Two practical cases were decided this week in the courts. One on redundancy consultation and one on working time.

Thomas v BNP Paribas Real Estate

The Employment Appeal Tribunal decided a redundancy consultation process was unfair (even though the Employment Tribunal had decided it was fair).

Mr Thomas had over 40 years' service with his employer and by the date he was made redundant he was a Director.

The Company undertook a strategic review of its working practices and following this, placed Mr Thomas at risk of redundancy. The strategic review’s outcome was the Property Management business had too many Directors and Senior Directors compared to the volume of work and level of business in that area, so cut backs were needed. Mr Thomas was then placed in a pool of 1.  On telling Mr Thomas he was at risk or redundancy, he was immediately put on paid leave and told to stay at home and not contact clients or any other employees, not go into the company premises and he would not have access to any company systems. He was allowed his mobile phone. Mr Thomas was told all this via a manager reading from a crib sheet. Mr Thomas then reived a letter the next day from the Company starting Dear Paul….. his name was Peter. The judge said this was particularly insensitive. There was only one other consultation meeting (a month later) when Mr Thomas was told he was dismissed and then he received a letter of confirmation which had the right name this time, but the wrong date of termination. The outcome was the view the way he was consulted with was “perfunctory and insensitive”.

Lessons to be learnt: when relying upon a redundancy decision, always remember it is a no fault dismissal. Always treat the person at risk with respect and with sympathy, as in a ideal world you would like to retain them as an employee but it is the business levels that have triggered a potential dismissal, not an act or omission of the employee.  Think how you would like to be treated in such a difficult situation and apply that level of attention.

Grange v Abellio London Ltd,

In this case Mr Grange worked for AL Ltd as a ‘Relief Roadside Controller’ from 2011 regulating and monitoring bus services. Prior to July 2012 he worked 8.5 hours a day. He was paid for 8 hours and so he had built into his working day a half hour unpaid lunch break, which he often found difficult to take (time wise) but it was time allocated to a break.  Then in July 2012 Mr Grange got an email from his employer setting out an expectation that he would work eight hours without a break and leave half an hour earlier.

The Employment Tribunal had to decide was this; at best an expectation or at worst an instruction or even a refusal of a request for a rest break. The Employer said it was an expectation and Mr Grange said it was a refusal. If it was a refusal, it would be in breach of the Working Time Regulations 1998 rest break entitlements. All workers (which includes the employees) are entitled to 20 minutes rest away from their work station after 6 hours work (Regulation 12).

Mr Grange initially raised an internal grievance, which was rejected and so he started a claim in the Employment Tribunal (whilst remaining in employment).

The Employment Tribunal rejected his claim as there had been no ‘refusal’ and a ‘refusal’ had to be a distinct act, in response to a worker’s attempt to exercise his or her right. As Mr Grange had made no request for a rest break, the employer could not have refused him this right. The fact that AL Ltd may (at worst) have instructed him to work without a break could not in itself amount to a refusal.

Mr Grange did not agree with the Employment Tribunal i.e. that there needed to be an express refusal on the part of his employer and so he appealed to the Employment Appeal Tribunal.

The dictionary definition of ‘refusal’ is ‘an act of refusing, a denial or a rejection of something demanded or offered’, meaning that the employee first had to seek to exercise the right, and the employer then had to refuse it. Was that the correct definition to use in this case? Could a refusal be simply where the employer fails to make provision for such breaks, even if the worker does not expressly request them.

The Employment Appeal Tribunal went right back to the original intention of the right to a break. The entitlement to rest breaks is intended to be actively respected by employers for the protection of workers’ health and safety.  In light of this, and taking a commonsense approach the employer has an obligation to afford the worker the entitlement to take a rest break; and that entitlement will be ‘refused’ if it puts into place working arrangements that fail to allow the taking of such breaks. Therefore, employers must take active steps to ensure that their working arrangements enable workers to take the requisite rest breaks: workers cannot be forced to take rest breaks but they are to be positively enabled to do so.

Mr Grange therefore, won his appeal.

Both cases referred to above relate to matters that have been in the court system for nearly two years. In the first case Mr Thomas had been made redundant in early 2015 and in the second case Mr Grange raised his grievance in 2014 and both men are only seeing the fruits of their labour at the end of 2016. It seems somewhere along the line the parties could have reached a commercial amicable solution to avoid such a long wait and inevitable legal costs to resolve their issues, maybe……..  


28 October 2016

You will have heard on the news that two claimants, who brought claims against Uber funded by the union the GMB, have had the decision today that they are “workers” and therefore, they are not self-employed.  As you also know there are three main categories: employees, workers, or self-employed (there are officers too, which is not relevant for the purposes of this case).  The Tribunal has decided Uber drivers are “workers”.  This means they have the right to holiday pay, and the minimum wage. They do not have the right to claim unfair dismissal (as employees do).

If you have self-employed individuals/contractors on your “books” you need to audit the relationship to see if it can be argued they are in fact workers and or employees.


28 September 2016

Gender Pay gap reporting

You may have heard about this in the news and it was thought legislation would be ready for an October 1 start date however, it is not and it is envisaged that the regulations will be laid before Parliament in the near future and will commence in April 2017. If this is the case, it is likely that the first "relevant date" under the regulations will be 30 April 2017, meaning that the first gender pay gap reports will be due by the end of April 2018. The obligation will be to report the mean and median figures and the details will be included in the eventual regulations, when they are put before Parliament.

The National Minimum wage from 1 October 2016 are:

  • National living wage (NLW) rate for workers aged 25 and over: £7.20.
  • The rate for workers aged 21 to 24: £6.95.
  • The development rate (for workers aged 18 to 20): £5.55.
  • The young workers rate (non-apprentices aged under 18 but above compulsory school age): £4.00.
  • The apprenticeship rate: £3.40.

The maximum £20,000 financial penalty does not change and applies in respect of each underpaid worker.


15 August 2016


There is a proposed change to the taxation of termination payments and the main changes are:


·         make all PILONs (payments in lieu of notice) taxable, even if they are non-contractual;

·         require payment of employer NICs on sums over £30,000 (not currently payable);

·         ensuring payments for injury to feelings are subject to tax (there is currently a conflict of judicial authorities on this point)

If you wish to contribute to this consultation and possibly affect the changes you need to email or write before 5 October 2016,

by e-mail to:


or by post to:

Employment Income Policy Team

Room 1E/08 100 Parliament Street London SW1A 2BQ


6 June 2016

Discrimination and working long hours

A case last week had to decide on whether an employer’s response to working long hours was a failure to make a reasonable adjustment in a disability discrimination claim. It all revolved around a PCP.  You may have heard the phrase “PCP” when lawyers talk about discrimination claims generally (not just disability).

A”PCP” is a “practice, condition or policy”. If an employer has a PCP which, if the employer follows, has a detrimental impact on a certain group of employees it could amount to discrimination.

In the case last week the employee said the PCP was “being required to work late”. It was later refined by the Employment Appeal Tribunal as being “an expectation or assumption to work late”. The reason why the Employment Appeal Tribunal  refined the PCP definition was because the employer argued there was no written practice or condition or policy which said that employees had to work late, and if this employee had worked late it was because he had volunteered to work, he was not required to do so.  

The reason I am bringing the case to your attention is because if you have a long working hours culture an employee can claim that even though there is no contract, practice, policy or condition to insist they work late and/or long hours there is a clear expectation or assumption that they will work long hours, and if they do not they will not progress.  

If a PCP is identified, a tribunal goes on to decide if the group allegedly disadvantaged is in fact disadvantaged and if the particular employee falls into that group and whether that employee suffered the disadvantage.

Once the PCP is identified and the disadvantage established for the group and the particular employee the employer then only has recourse to arguing it can objectively justify the work late culture:

  1. Can the employer establish that it was pursuing a legitimate aim (this cannot just be a cost saving aim)?

  2. Can the employer establish that the measures taken to achieve that aim were appropriate and proportionate (i.e. is the PCP reasonably necessary)?

Legitimate aims accepted in the past have been: providing a proper range of experience across the business and providing income for those who had previously no chance of earning income. Neither of these aims sound as if they would work in defending a late working hours culture.  Possibly meeting client needs could be argued but is that reasonably necessary if the work could be done at another time or by others?

One point that could be argued by an employer in a case like this is the PCP may not be “working late” but working flexibly which means it actually suits the employee to work in the evening. An example of this could be a full time home worker who achieves 8 hours work a day (full time) but not between the traditional hours of 9-5pm, rather the employee works flexibly throughout a day that spans from 9.30am (after a school run) to 10pm as the employee has worked in the evening to make up for time spent in the afternoon with their children. If this works for the employer and employee then it is not to the employee’s “disadvantage”. The main issue here would be having the evidence to show the employee did in fact work that flexibly and only worked 8 hours, as the employee may argue they are working all day and also needed to be seen to be responding to emails at 10pm, or later.

What is most interesting about this case is it is the first time a “working late” claim has got as far as the tribunal system to a full hearing.


21 April 2016

There have been a few tribunal and court decisions in the last 10 days, two of which relate directly to the contract of employment. When someone starts work they will have (i) statutory rights (gained through acts of parliament which can be linked to length of service eg the right not to be unfairly dismissed after 2 years’ service) and (ii) contractual rights based on what is written in their contract of employment or another document or what has happened through custom and practice. Often contracts of employment are not audited to make sure they are still applicable and also they can refer to other documents which are outdated, irrelevant or never referred to when they should be. The two cases below show how seriously you should take your contracts of employment.  

Department for Transport v Sparks

This is a Court of Appeal case. The employee Mr Sparks, had been off ill and steps were taken by his employer (the Department of Transport) to deal with his illness (and to deal with 6 other ill employees). Those 7 employees said the steps taken by the dept. were in breach of contract, the contract being the sickness policy which was in Part A of their Employee Handbook. The dept. said there was no contract to breach, the sickness policy was only a policy and a guidance, not a contractual term.  The Court of Appeal read through the Handbook and the contract of employment which referred to the Handbook and decided the sickness policy did have contractual effect because the introduction to the Handbook states:

1.2 The Department Handbook

1.2.1 The Departmental Staff Handbook, as applying to you, sets out many of your terms and conditions. It is the intention of the recognised trade unions … and of the Crown that all of the provisions of the Departmental Staff Handbook which apply to you and are apt for incorporation should be incorporated into your contract of employment.

1.2.2 The Departmental Staff Handbook is in two parts:

  • Part A contains terms and conditions. Without prejudice to the generality of paragraph 1.2.1 above, all of Part A and all annexes of Part A which apply to you and which are apt for incorporation, will be incorporated into your contract of employment

You wonder why the Department for Transport even appealed this case reading this wording above (my highlights). But it was relying upon the following:


Chapter A10: Ill Health

This chapter

o    sets out your terms and conditions of employment relating to sick leave;

o    sets out your terms and conditions of employment relating to the management of poor attendance …

A10.1 Sick Leave

10.1.1 Paragraphs 10.1.2 to 10.1.23 inclusive set out your terms and conditions of employment relating to sick leave. In addition:

a. Annex A: Maintaining satisfactory standards of attendance … sets out the procedures that can be invoked whenever your line managers believe that your attendance is unsatisfactory.


c. Chapter A10.3 … sets out guidance and procedures for helping you and your line managers to address sickness absence.


The Department, therefore, argued the sickness Chapter A10.3 was guidance only, not a contract. The Court of Appeal did not agree. The reason why Mrs Sparks and co. wanted the sickness policy to have contractual effect was because there were time limits in it before steps could be taken and the Department of Transport had not adhered to those time limits.

The purpose of highlighting this case is to remind to you make sure that it is only those parts of the Employee Handbook that you want to be binding which should be contractual and if you want some processes to be just guidance you must say so and check that nowhere else in the same or other document does it contradict that wish.   

Bartholomews Agri Food v Thornton

This is another contract of employment case. This one relates to restrictive covenants. An employee joined Bartholomews Foods just under 20 years ago and his contract of employment at the time had a restrictive covenant in it which said; do not solicit customers, even though at the time he was a trainee and had no customers and no hope of being allowed near a customer. The covenant was not reasonable therefore, at the time.  20 years on and even though he had been promoted to a role where it could have been reasonable, the court said it would not uphold the restriction. The implication of this being – on every promotion – if you need a covenant to protect a legitimate business interest of the company you need to enter into a new reasonable covenant each time, not rely upon an old contract. In addition, in the Bartholomew case as the covenant sought to prevent the employee from dealing with any customer of the employer regardless of whether he had had any prior dealings with the customer and given that the employee worked with customers who represented only 2% of the company's overall turnover, it would be unfair to prevent him from working with customers representing the other 98% of the company's existing customer base. The one argument the company thought would save the day was it had agreed to pay the employee his salary during the period of the restriction. The Court said that was not acceptable as it could not “purchase” a fair restriction.

The outcome of this case is to constantly audit the relevance, scope and need for a restriction in an employee’s contract. If the employee is critical to your business make sure the restriction is potentially enforceable and updated so it relates to what they actually do.  

Legislation alert

EU Data Protection Regulation

The Data Protection Act is being updated and by 2018 (if we stay in the EU) a new regulation will come into force. Amongst other things it provides that an employee’s 'consent' to data processing must be 'freely given, informed, specific and explicit'. At the moment the test is  must be 'freely given, specific and informed'. It is the new “explicit” bit that may catch employers out as the new Regulations go on to say “in the context of a written declaration which also concerns other matters, the request for consent must be presented in a manner which is clearly distinguishable from the other matters, in an intelligible and easily accessible form, using clear and plain language'. Does a contract of employment seeking consent to data processing as just one of its terms satisfy the “explicit” test, probably not.


March 2016

The compensation limits in the Tribunal are going up slightly from 6 April 2016, so these new limits will apply to any dismissal happening after 6 April. It also affects “a weeks’ pay” when calculating statutory redundancy pay.

A weeks’ pay is currently £475.00 and will increase to £479.00 from 6 April.

Maximum compensation for unfair dismissal (this does not apply to discrimination where there is no cap on compensation) is currently £78,335.00 and will increase to £78,962.00 or the employees annual salary whichever is lower.


Patterson v Castlereagh Borough Council.
In this case the employee argued that his voluntary overtime - being overtime which the employer is not obliged to provide and the employee is not obliged to perform - should be included in holiday pay. The Industrial Tribunal in November 2014 (they are still IT’s in N Ireland) said no, voluntary over time is not included, however, the Court of Appeal in Northern Ireland this week said yes, it can be included and depends on the facts of each case.  The Court of Appeal did not provide guidelines as to the tests an employer needs to apply in determining holiday pay and stressed that this was a 'question of fact' for each tribunal to determine, based on the particular circumstances of each individual case. In this case, to compare, Mr Patterson was paid £60.00 per week in voluntary overtime and he normally carried out the overtime, although it was voluntary, and it was a permanent feature of his employment triggering inclusion into his holiday pay.

Whilst Northern Court of Appeal decisions are not binding in England and Wales, I am sure this case will be referred to in future holiday claims in England and Wales. The more ad hoc an employer keeps their overtime on a voluntary basis, the more straightforward it will be to say no permanent feature had been set up and so payment cannot be included in holiday pay.

Home Office (UK Border Agency) v Essop and ors,
The Court of Appeal in England has held that when claiming indirect discrimination the person has to show a group disadvantage and an individual disadvantage to succeed in their claim.

This case relates to an exam at the Home Office, all staff had to sit and pass a core skills assessment ('CSA') in order to become eligible for promotion. It is a generic test for all roles at a particular level in the salary structure, and if passed, is followed by a further test tailored to the role in question. In 2009 the Home Office commissioned a report on the equality impact on the CSA. The report stated that black and ethnic minority (‘BME’) and older candidates had a proportionately lower CSA pass rate than white and younger candidates. A claim was started based on race and age discrimination and it was held whilst there is a group disadvantage Ms Essop and others had to show they were individually disadvantaged by the CSA, and they had not been, so the claim failed.

Ivor Hughes Educational Foundation v Morris
This case decided that the obligation to consult over collective redundancies can be triggered when an employer makes a provisional decision to close a workplace. In this case the consultation period was 90 days, now it is 45 days.

In February 2013 the school decided it would have to close at the school year end, summer 2013 if pupil numbers had not increased by April 2013. Ultimately, the school closed in April 2013. There was no collective consultation over the decision, in breach of Section 188 of TULR(C)A 1992.

Therefore, did the law trigger consultation when an employer is proposing a strategic decision that will foreseeably or inevitably lead to redundancies, or when that decision has been made and redundancies are a consequence.

The EAT held the decision in February 2013 to close the school, unless numbers increased by April 'was either a fixed, clear albeit provisional intention to close the school or amounted to a strategic decision on changes compelling the employer to contemplate or plan for collective redundancies. On either analysis, the duty to consult arose on that date, February 2013. Sometimes an employer can argue there were special circumstances which meant it could not consult, however, in this case as the employer had not even thought to consult, it could not have considered special circumstances either, so the employer was liable for 90 days’ pay for each member of staff.


Two changes in the law from today, 26 May 2015:

• if you have employees on zero hours contracts, you cannot also have an exclusivity clause in that contract. So you cannot stop the employee taking up employment with other third party organisations whilst he/she still has a zero hours contract with you;
• National minimum wage fines can be up to £20,000.00 per employee paid below the National Minimum wage (it used to be up to £20,000.00 per notice of infringement and there was no limit on the number of employees covered by the notice).  

May 7, 2015
Meaning of establishment
As you know if you are making collective redundancies (more than 20) there are collective consultation laws as well as individual consultation obligations. 45 days collective consultation is needed where 100 or more redundancies are taking place over a 90 day period at one establishment. It was always thought at one establishment meant if you have a site in Birmingham and a site in Northampton etc. they would be treated as different establishments as they are in different geographic locations. Then last year a case was decided involving Woolworths stores that said all the stores collectively (disregarding geographic location) were to be treated as at one establishment. This meant Woolworths had not consulted for long enough as it had relied on each store being a separate establishment and as some stores had less than 20 employees being made redundant – had not collectively consulted at all in those stores.

The penalty is up to 90 days’ pay (with no statutory cap) for each affected employee. This was an expensive mistake.

Now the European Court has given its judgment and said Woolworths did the right thing. Each store was a different establishment and so if you are making collective redundancies affecting different sites you can count up the numbers in each site, independently, to ascertain if collective consultation is triggered.  

What happens if an employee raises a grievance during disciplinary proceedings?
It is common practice when an employee knows they are to be the subject of disciplinary proceedings they either raise a grievance about the disciplinary process and/or go off sick. A case decided this week made reference to the fact as an employer you do not have to adjourn the disciplinary process (unless your policy says otherwise) whilst you hear the grievance. Failing to adjourn the disciplinary will not make it unfair. Obviously each case is decided on its own facts but it is helpful to have a case, decided at appeal level, which makes the point that the disciplinary does not need to be adjourned whilst the grievance is heard.

Just two statutory points. Statutory redundancy pay has gone up to £475.00 for each year of service and shared parental leave rights can now being exercised by employees.


Legal update 3 February 2015

There have been a few developments which you should keep in mind.

Appeal outcomes
If an employee is dismissed and then the employee appeals the decision, if the appeal hearing outcome is to not uphold the decision to dismiss, the employer does not have to write or communicate this to the employee in order to trigger the return date to work or revive the employment contract. The employee is automatically reinstated as an employee from the date of dismissal in the eyes of the law. This means back pay as if the employee had not been dismissed too.
Salmon v Castlebeck Care 2015  involved an employee who had been dismissed before a TUPE transfer and then her appealed upheld after the TUPE transfer. The appeal outcome not to uphold the dismissal meant the contract was revived she was a transferring employee despite at the time of the transfer she was not employed immediately before the transfer.

This only relates to appeal outcomes. Any dismissal decision must be communicated to the employee and it is only once it is communicated that it is effective. 

Make sure anyone hearing the appeal knows the consequence of the outcome. There is nothing you can out in your disciplinary policy that can change this as it is a matter of statute rather than policy wording.

Sick leave
If an employee is off on long term sick and then somewhere down the line resigns and claims constructive dismissal due to a fundamental breach by the employer, the employer may argue that the employee had accepted the breach, and so there can be no dismissal, if the employee has accepted sick pay in the meantime Colomar Mari v Reuters 2015.

Shared Parental Leave  
Make sure you review your Maternity Policy and Adoption Policy and Parental Leave Policy so it does not conflict with your Shared Parental Leave Policy. For instance if you have enhanced maternity pay you need to decide if it will stop if the employee elects to take Shared Parental Leave instead.

Fit for Work
Guidance has been issued by the government and the new helpline and website is open for referrals. This dates back to when we changed from Sick notes to Fit notes and is the next stage in the process. 
The website is at:


0800 032 6235
Opening hours advice: Monday to Friday 8.30am to 6.00pm
Opening hours assessment: Monday to Friday 8.30am to 6.00pm

The guidance notes are attached at the bottom of this page.

Legal update 22 December 2014

The value of Holiday Pay

You will remember there have been a number of recent cases on how to calculate holiday pay. Obviously is equates to an employee’s basic pay but what other payments should it include? Definitely compulsory overtime, and in certain circumstances voluntary overtime, and possibly commission and bonus etc. If an employee has a claim, the other uncertainty is how long can a claim go back? The government announced last week any claim started on or after 1 July 2015 can only go back two years. This still leaves uncertainty for those claims started already or started next year, after 1 July 2015.    

Working with Social Media
Game Retail Ltd v Laws

Mr Laws had a personal Twitter account. His role meant he had to monitor a number of stores (of Game Retail Limited, the employer) and one way of doing this was to follow those stores using his personal account. Those stores in turn followed Mr Laws.  Mr Laws posted remarks on his personal Twitter account and it was decided those remarks were offensive. He was dismissed. 

Whilst the Employment Judge thought the remarks posted by Mr Laws were offensive he found the dismissal unfair because the tweets were posted for private use and it had never been established that any member of the public or employee of the employer had access to L’s tweets or associated him with the employer and the employer’s disciplinary policy did not clearly state that inappropriate use of social media in private time would or could be treated as gross misconduct.

The employer appealed to the EAT and succeeded in having the case sent back to a different Tribunal to decide again as the original employment judge did not properly test the question of whether Mr Law’s usage of the Twitter account was infact private.

I attach social media guidelines below (or please scroll to bottom of page). You might wish to use or compare against your current policy to ensure it covers the points raised in this case. 


In case you missed this in the news, obesity can be a disability and so an employee could be provided protection under the Equality Act 2010 and reasonable adjustments may have to be made. The origin of the disability, or contribution to it, are irrelevant.

Legal updated 28 November 2014

Shared Parental Leave

The Shared Parental Leave Regulations come into force on 1 December 2014 although they will only start to engage for parents of children born after 5 April 2015.
The key points are:

• Employed mothers will continue to be entitled to 52 weeks of maternity leave and 39 weeks of statutory maternity pay or maternity allowance.

• If she chooses to do so, an eligible mother can end her maternity leave early (but not to end in the 2 weeks after the actual birth or 4 weeks if the mother works in a factory) and, with her partner or the child's father, opt for Shared Parental Leave instead of Maternity Leave. If they both meet the qualifying requirements, they will need to decide how they want to divide their Shared Parental Leave and Pay entitlement. The parents can opt to take leave at the same time and in blocks (up to 3 unless the company scheme allows for more). There is an 8 week written notice requirement for leave. 

• Paid Paternity Leave of two weeks will continue to be available to fathers and a mother's or adopter's partner, however Additional Paternity Leave will be removed (Shared Parental Leave will replace it).

• Adopters will have the same rights as other parents to Shared Parental Leave and pay.
ACAS has published a helpful guidance on the Regulations (www.acas.org.uk).  Please let us know if you need help updating policies or if you would like us to run through the new Regulations with you.

Claims for psychiatric illness (Yapp v FCO)

An apparently robust employee (Mr Yapp) developed a depressive illness as a result of his employer (the FCO)’s conduct during a disciplinary process and subsequently because the FCO withdrew his post.  The Court of Appeal said it would be exceptional that an employee who showed no signs of vulnerability would develop a depressive illness as a result even of a very serious set back at work.

Despite this decision, it is still important for employers to take action to manage the risk of psychiatric illness (primarily by addressing the issue of stress in the workplace).  This case considered employer’s common law liability to employees with psychiatric illness but there may also be a disability claim under the Equality Act. Some steps to consider are: using return to work interviews after sickness and performance appraisals; providing support and counselling; carrying out training and designing a stress policy.

Redundancy/Maternity Leave (Sefton County Council v Wainwright)

The Employment Appeal Tribunal (EAT) has considered an employee’s right to be offered suitable alternative employment in redundancy situations under the Maternity and Parental Leave Regulations.  The case is a useful reminder that women who are both on maternity leave and in a redundancy situation have special legal protection. Regulation 10 is the right to return to the same or similar role. 

In this case, the employee (Mrs Wainwright), who was on maternity leave, was placed in a pool of 2 managers at risk of redundancy as their jobs were being combined into one new role. Both Mrs Wainwright and the other manager (male) were interviewed for the new role.  It was offered to the other manager. 

The employer (Sefton County Council) argued that it was not in breach of the Regulations because it had until the end of the redundancy process in which to offer Mrs Wainwright suitable alternative employment. The EAT disagreed with this argument.  It said that the duty under Regulation 10 arises when the employer becomes aware that the woman’s role is redundant or potentially redundant and not a date the employer determines is the redundancy date.   Mrs Wainwright’s dismissal was therefore automatically unfair.

Contract variations – Science Museum v Wess

Changes to an employee’s existing terms and conditions of employment should, where possible, be agreed (either individually with the employee or through a collective agreement) and recorded in writing.  If changed terms are not expressly agreed, it can sometimes be argued that they have been agreed by implication.  However employers should be cautious about relying on this latter approach.

In Science Museum v Wess the employer introduced new terms and conditions which the employee didn’t agree to, although she continued working for her employer.  The EAT held that the employee had accepted the new terms and conditions by implication, as it was made plain to her that future employment would be offered to her on the basis of those new terms and conditions.  Although this is potentially a helpful decision for some employers, the EAT emphasised that employers should not assume that they can unilaterally introduce new terms by implication in all cases.  In this case it was made clear to the employer that her continued employment was contingent on her accepting the new terms and the fact that she continued working meant she impliedly accepted the term.  In different circumstances this argument would not be available to an employer.

Holiday Pay/overtime claims – Bear Scotland v Fulton

Unite has announced that it is not appealing the recent decision on holiday pay and overtime claims.  In November, the EAT confirmed that holiday pay ought to include normal non-guaranteed overtime, although it limited the scope for bringing backdated claims quite significantly.  It was anticipated that Unite would appeal this latter part of the judgment. Its decision not to do so probably means that the anticipated flood of back dated claims will not materialise. However the decision not to appeal also means that, for the time being at least, the judiciary will not have the opportunity to shed light on various unanswered question relating to backdated claims.  For further details see our Legal Update dated 4 November 2014 at www.ayersnewmark.com.

If you have any queries about any of the information in this update please contact shonanewmark@ayersnewmark.com or carolineparr@ayersnewmark.com.
Ayers Newmark
November 2014


Legal update 4 November 2014

The Employment Appeal Tribunal has reached a decision today in relation to holiday pay and overtime.  This note summarises the decision, highlights some of the issues and gives makes some practical suggestions:

1. Holiday pay ought to include normal non-guaranteed overtime. This relates to 4 weeks holiday only (full timers currently have 5.6 weeks holiday entitlement per year under statute and maybe more under their contract of employment). 

2. A worker who has not been paid normal non-guaranteed overtime in their holiday pay to date will be out of time to bring a claim if the last time they were “underpaid” was more than 3 months ago and/or there is more than 3 months between each successive underpayment (subject to the reasonable practicability test).

3. Any travel payments which exceed actual expenses incurred should also be included in holiday pay. 

It is point 2 above that will cause questions.

• If a worker is in time to make a claim, how far can he/she go back?

• If the employee is in time can he/she only claim for the amount “underpaid” for that holiday and what is the reference period to assess “normal non-guaranteed overtime” if it varies? Can the employee go back for a longer period of time to assess underpayment?   This point (2) above will almost certainly be appealed.

A practical step to take now is to check holiday records and any employee who has worked and been paid for voluntary overtime (non-guaranteed overtime) and taken holiday in the last three months:

• determine the date of the last holiday; is it more than 3 months ago?  If yes, it is more than 3 months ago, arguably any claim is now out of time and make sure any future holiday is paid at rate that includes non-guaranteed and guaranteed over time.

• If no, they have had holiday in the last three months, what was paid in holiday pay, did it include overtime, did they work any overtime voluntarily? 

• If yes, what voluntary overtime do they normally work?

• what are they paid for that?

• Is that holiday entitlement part of the 4 weeks or the “extra” 1.6 weeks. Assess this by finding out if the employee has taken more than 4 weeks holiday to date and if so when did they take the last day of that 4 week holiday entitlement in your current holiday year. If it is not part of the 4 weeks, arguably they are out of time to bring a claim.

• What was the date of the holiday before that? Is it more than 3 months from the most recent holiday? And keep working backwards to find a 3 month plus gap. This is to assess potential liability.

At the moment there are a lot of unanswered questions but an assessment of potential seems essential at this stage and future inclusion of non-guaranteed overtime in holiday pay also essential.

 If you have the holiday records, go through 1-6 above and then let us know if any one falls into the category – they had a holiday in the last 3 months, they were not paid over time in that holiday pay and they still have 2 weeks holiday left until the end of the holiday year – If they do, let us have their holiday records, dates, pay, copy of contract and we can assess the situation for you.

Please contact us at shonanewmark@ayersnewmark.com or carolineparr@ayersnewmark.com with any queries.


Legal update 23 October 2014

What steps should an employer take when making reasonable adjustments for disabled workers?

The law requires employers to take positive steps to ensure that disabled people can access and progress in employment.   These are called “reasonable adjustments”.  Employers have to go beyond simply avoiding treating disabled workers, job applicants and potential job applicants unfavourably.  They may also have to take additional steps to which non-disabled workers and applicants may not be entitled, if they are reasonable.    
The Employment Appeals Tribunal has been considering what a reasonable step might be.  Although it confirmed that it depends on all the circumstances of each individual case, it emphasised the need for there to be an identifiable step.  Therefore, an employer who dismissed an employee on a final written warning for having a poor attendance record, had not failed to take a reasonable step because it did not disregard that final written warning.  A reasonable step should be more akin to a positive action rather than an expectation that an employer go through a certain mental process. 
The ECHRC Code of Practice has a non- exhaustive list of possible reasonable steps. These include providing information in accessible formats, allocating duties to another worker, altering hours of work or training and providing supervision or support. 
If you would like further information about the recent EAT decision or reasonable adjustments generally please email shonanewmark@ayersnewmark.com or carolineparr@ayersnewmark.com.

Legal update 30 September 2014
A number of employment law changes take effect from tomorrow 1 October 2014.

• Time off to accompany partner to antenatal appointments: 

Employees and agency workers will have a right to take unpaid time off to accompany a pregnant woman with whom they have a “qualifying relationship.” The right applies to employees from day one of their employment (and to agency workers after 12 weeks service). A “qualifying relationship” is either that of expectant father or the “partner” of a pregnant woman. “Partner” includes the spouse or civil partner of the pregnant woman and a person (of either sex) in a long term relationship with her. 
Employees and qualifying agency workers have a right to take unpaid leave for 1 or 2 appointments (time off is capped at six and a half hours for each appointment).
Employers are not entitled to ask for evidence of the ante-natal appointments, such as an appointment card, as this is the property of the expectant mother attending the appointment. Instead an employer is entitled to ask for a declaration. 
The Department of Business, Innovation and Skills has published an employer’s guide Reference BIS/14/1063 – available at www.gov.uk.

• Power to order equal pay audits

Tribunals will have the power to order employers found to have been in breach of equal pay law to carry out equal pay audits in certain circumstances.  The new legislation is the Equality Act 2010 (Equal Pay Audits) Regulations 2014.

• National minimum wage increase

 The national minimum wage rates for all workers will increase. The standard adult minimum hourly rate will now be £6.50 per hour. Further information at www.gov.uk/national-minimum-wage-rates.

• Reserve Forces reform/unfair dismissal.

The statutory two year qualifying period for unfair dismissal where the dismissal is connected with the employee's membership of the Reserve Forces has been removed.  There is also new legislation making provision for payments to small and medium-sized employers of reservists who are called out for service.
If you would like further information about any of these changes please contact either shonanewmark@ayersnewmark.com or carolineparr@ayersnewmark.com

17 July 2014 

1. Hershaw and ors v Sheffield City Council

A letter from HR informing an employee of an outcome to a grievance can create a contractual obligation which the employer is then contractually bound by, even if the HR advisor did not have the authority to create a contractual obligation.

In the Hershaw case employees had raised an issue about grading and pay. When the issue was reviewed the pay and grading system did not change and so they commenced a grievance. The outcome of the grievance was to re grade the employees. Despite this the employees did not get a pay increase and so they each started an unlawful deductions from wages claim.  They succeeded in that claim despite the Sheffield City Council arguing: an outcome to a grievance cannot change a contract; the HR employee who sent the letter of grievance outcome did not have authority to increase pay and the employees did not accept the change as they did not write back to the grievance outcome letter. None of these arguments were accepted by the Employment Appeal Tribunal. The employees claim for unlawful deduction was successful.

One practical step following this case is to add into the grievance policy that any outcome will not and cannot change any contractual term between the employer and the employee unless specifically stated otherwise.  

2. Kaltoft v Municipality of Billund (C-354/13)

This is a Danish case – referred to the European Court to determine if obesity can be a disability and so protected by discrimination laws; yes says the advocate general (first stage of the European decision). In any case where the employee has a BMI in excess of 40 – it can amount to a disability.

In this case Mr Kaltoft was a childminder and had difficulty performing his duties his BMI was 54 and this would be classified as class III obesity, or ‘severe, extreme or morbid obesity’, under the World Health Organisation classification. It was accepted he had a disability and protection from discrimination.


22 May 2014

Flexible working

From 30 June 2014 the law on flexible working is changing, from that date all employees with more than 26 weeks service can make a request. The employee does not have to be a carer. However, the strict time frames for responding to such a request will go and the only rule is the process should be completed in 3 months, unless you have agreed a longer period. I attach a short policy that you can adapt for your use.

British Gas case

On 22 May the advocate general (European Court level) gave his view on a case referred to it by the UK on whether, when calculating holiday pay, commission should be added to basic pay. In British Gas when an employee has holiday he/she is only paid basic pay and yet their total remuneration is made up of basic pay and commission. The practical result of this is a British Gas employee’s average commission earnings over the course of the year will be lower than they would be if he/she had not taken leave, because, during the leave period, he/she will not have undertaken any work that would entitle him/her to commission payments.

The advocate general has decided that commission must be taken into account in the calculation of the total remuneration to which a worker is entitled in respect of his annual holiday. Therefore holiday pay must be made up of basic pay and commission.  

25 March 2014

Early Conciliation.

From 6 April 2014 the first thing you, as an employer, will know about a potential employment tribunal claim against you is a call from ACAS to let you know the potential claimant has submitted a free Early Conciliation form to ACAS to try to settle a potential employment tribunal claim and the claimant wants to negotiate a settlement, prior to starting that claim.

The call may be made to anyone in your organisation as it is the potential claimant who has provided ACAS with a name and contact number. I know in the past when the claimant has had to put in the name and address in an employment tribunal form he/she sometimes puts their manager’s name and phone number rather than HR. Make your managers aware.

Once you get that call (or it could be a letter or email but ACAS is keen to call first) what do you do, what can you do?

1. You can tell ACAS that you are not in a position to settle; either because you have done nothing wrong or you think the potential claimant is trying it on and would never pay £250.00 to make a claim so you are not interested in any settlement discussions; or
2. Tell ACAS - until you know what the claim is for and what the claimant thinks you have done wrong-  it is difficult to assess any settlement offer. Once you have that information you can then decide whether there is a future risk of a claim and if so, would it be successful. If there is a risk and if it could be successful it might be very cost effective to settle at this stage rather than spend costs and time on any stage (even completing the ET3) of an employment tribunal claim.  
3. Ask ACAS for more information as if you may want to settle, even if you  decide you have no intention of settling, to find out more about a claimant’s potential case against you and to give the claimant information to show how strong any defence could be.

If you know the potential claimant and you have a gut feeling this person would make a claim, and is not scared off by the fees to make such a claim, this early conciliation may get rid of that claim with limited costs for the business.

If you know the potential claimant and your gut feeling is they would not make a claim, because of the fees or for some other reason, settling in early conciliation could be unnecessary and so a potential waste of money. 

Whether you say no at the outset to early conciliation, or during the course of it, will be irrelevant in any future hearing as the judge will not be told about it.

The settlement discussion time has an impact on time limits and so can mean a potential claimant has up to 4 months to start a claim.

Let us know what you think. We will be very interested (as will ACAS) to see how this works out in practice, email shonanewmark@ayersnewmark.com.


February 28, 2014

Legislation changes to be aware of ……

Pension auto enrolment
You may have been notified of a staging date – a date when your business should have in place a pension scheme into which all employees (with certain exceptions) are automatically enrolled unless they opt out. A simple clause in your contracts of employment will cover the point:
“The Company will comply with the employer pension duties in respect of [the Employee] [you] in accordance with Part 1 of the Pensions Act 2008 as amended.”

There is also an obligation to inform employees of their right to opt out and other rights. www.thepensionsregulator.gov.uk is a useful website on this topic.

Compensation limits for claims
Every year the limits for unfair dismissal are reviewed and this year from 6th April 2014 the maximum compensatory award increases from £74,200 to £76,574 - subject, of course, to the overarching limit of one year's pay which has existed since July 2013.  It also increases the maximum for a 'week's pay' from £450 to £464. This latter increase will affect statutory redundancy calculations and basic awards.
Rehabilitation of Offenders Act
On 10 March 2014 changes will be made to reduce rehabilitation periods please refer to S.139 of the Legal Aid, Sentencing and Punishment Act 2012.

February 24, 2014

Reasonable adjustments – time limits

When an employer has to consider a reasonable adjustment for an employee with a disability, if that adjustment is refused by the employer, the employee can bring a claim for disability discrimination even though that claim is started more than 3 months after the decision to refuse the adjustment is taken by the employer.
The EAT in the Jobcentre Plus v Jamil case stated the time limit for bringing such a claim can be a rolling three month date, starting from the date of refusal of the adjustment and carrying on until the adjustment has been made or no longer needed, as the state of affairs without the adjustment continues to exist for the employee and so the alleged discriminatory situation continues to exist.  

Vicarious liability

Cox v Ministry of Justice   and   Mohamud v Morrison Supermarkets.

Both these cases were heard in the Court of Appeal and both related to vicarious liability.

Vicarious liability is where someone is responsible for the acts of another. In employment law this can mean an employer is responsible for the act of its employees if the act is done “in the course of employment”.

In the Cox case a female catering manager in a prison was injured by a prisoner who worked in the prison catering facility as the prisoner acted negligently. The crux of the case was whether the prisoner was an “employee” and was he acting in the “course of employment” as he was clearly a prisoner. As he was paid for the work done and under the catering manager’s supervision it was found he was an employee and so the prison was liable for his negligent act which injured the catering manager.  
The tests applied were:
(i) the MoJ had the means to compensate the catering manager;
(ii) the negligence was committed as a result of activity conducted on behalf of the MoJ in maintaining the prisons and prisoners under S.51 of the Prison Act 1952, including providing prisoners with food;
(iii) the activity being conducted by the negligent prisoner was part of the activity of the MoJ in running the catering department of the prison;
(iv) the MoJ, by assigning the prisoner to the activity, had created the risk of the negligence being committed by him; and
(v) the negligent prisoner was undoubtedly under the MoJ's control.

Even though only (i), (iv) and (v) applied in this case, the Court decided whilst the Mo J was not running a business and the prisoner was not taken on “voluntarily” like an employee; the feeding of the prisoners and the procurement of supplies for that purpose was clearly part of running the prison and the MoJ took the benefit of this work and there was, therefore no reason why it should not take its burdens and so it was responsible for compensating the catering manager for the prisoner’s negligence.

In the Morrison’s supermarket case a customer visiting a Morrison’s petrol station was attacked by one of the Morrison’s employees and the customer sued Morrison’s. However, Morrison’s successfully argued the attack was not in the course of employment and the employee had been told by his supervisor not to follow the customer out of the petrol station booth to his car where the attack took place. The Court held there was not a sufficiently close connection between the attack and the employee’s duties.

There may have been a different outcome if the employee’s duties had been to provide security at the petrol station.

Early Conciliation – keep in mind

After 6 May 2014 a claimant must have approached ACAS for early conciliation prior to submitting an ET claim otherwise the ET claim is invalid.   

January 27, 2014

What makes a disclosure protected?

The case of Norbrook Laboratories (UK) Ltd v Shaw illustrates a protected disclosure can be made by collating information given in three separate emails, sent to two different people, by an employee who then alleges he has been dismissed because of what he said in those three emails and such a dismissal is automatically unfair.

One reason an ex-employee might allege his/her employment was terminated because they made a protected disclosure is because he/she will not need 2 years’ service before such a claim can be made. In the Norbrook case the disclosure arose around three emails sent in the winter of 2010 when the weather was bad and snow was on the ground. A team manager sent an email to the health and safety officer asking what the policy was for travelling around in such bad weather conditions. The team manager managed a group of sales executives who were worried if they did not meet their calls and targets they would not be paid.  No satisfactory reply came back from health and safety and so he sent another chaser email and a further email to HR to ask what the company policy was and stating that the weather was dangerous because of the snow and he had driven in it and safety could be compromised.

At the hearing to decide whether the team manager had even made a protected disclosure, the team manager argued he had made a disclosure, when reading all the three emails he had sent. He also argued he had not made allegations or stated an opinion but he had provided information to the health and safety officer and HR and so it was a protected disclosure based on health and safety and in particular; “The health or safety of my team is likely to be endangered, the danger being the road conditions due to the severe weather”. 

The Employment Appeal Tribunal agreed this was a protected disclosure and so the ex employee could continue with his claim that he was unfairly dismissed for having made that disclosure.
It is clear at the time of sending the emails the team manager did not have in his mind he was making a protected disclosure that he could later rely upon, he was merely trying to find out what the policy was. However, he was then able to use the emails he sent as assistance to help him initiate an unfair dismissal claim with no limit on compensation if he wins it despite having less than two years’ service.


January 9, 2014  Legal update
Rooney v Dundee City Council
What do you do if an employee has appealed a final written warning and in the meantime commits another act of misconduct that warrants a final written warning too?

You can refer to both final written warnings and dismiss the employee and allow the employee to appeal both warnings at a subsequent appeal. If that appeal hearing upholds both final written warnings, taken together, the employer can dismiss, so says the Employment Appeal Tribunal who decided in favour of Dundee City Council and their dismissal decision affecting Ms Rooney. 

Grace v Places for Children.
What is the difference between having a religion or belief and manifesting that religion or belief when it comes to employment protection against discrimination?

The EAT held there should be very little to distinguish having a belief and manifesting it. However, if the manifestation of it affects others then it could be non-discriminatory to dismiss for that reason.  Ms Grace wanted other employees where she worked to attend bible meetings and warned other employees that something would happen in the workplace that would have tremendous ripple effects; this scared those other employees. She was then dismissed and she claimed her dismissal was because of her religious belief.

The employment tribunal and the EAT both stated the dismissal was not because of her religion but because her actions (manifestation of it) was having an adverse effect on other employees.

Cases like this need to be read in the context of their own facts and decided upon based on how extreme the employee is being and why; and the impact on others. It is useful to know however, that a tribunal will accept an employer has to draw a line somewhere when protecting its employees.

West London Mental Health NHS Trust v Chhabra.
What can happen if an employer starts disciplinary proceedings based on an allegation of gross misconduct when the act complained of is not really gross misconduct?   

The employee can go to court to get an injunction to stop the employer holding the disciplinary meeting until the employee has been given time to collate all the evdience to allow him to show the allegation of gross misconduct is misconceived.

There is an implied contractual right to a fair hearing and so in this case where a consultant forensic psychiatrist was asked to attend disciplinary hearing for an alleged act of gross misconduct, the court intervened (on an application by the employee) confirming the disciplinary hearing could not go ahead as at its very best, the allegation against the consultant was not gross misconduct.

Statutory update
New TUPE regulations are coming into force on 31 January 2014.

6 April, 2014, all employees with 26 weeks service have the right to request flexible working



Two redundancy cases.

Osoba v Hertfordshire Police.

The police gave evidence on the redundancy exercise it undertook which left Mr Osoba selected for redundancy. The employee argued he was selected on a discriminatory basis. His age was the reason he was selected he argued. The police argued it had devised a selection matrix and scored it and used it to select the at risk employee. The Tribunal and EAT found the redundancy exercise was shambolic, scores added up incorrectly and misapplied but the exercise was shambolic for everyone and so it was not on the grounds of age and so no discrimination. Not the most attractive argument for the police to run… the HR department was shambolic and the redundancy exercise was a mess for all but at least it was not discriminatory.  

Devon Primary Care Trust v Readman

When you undertake a redundancy exercise and you identify a suitable alternative role for a potentially redundant employee, on being offered that role the employee has a chance at the end of the trial period to accept or reject the role. If the employee rejects it the employee may risk losing their redundancy rights. The case of Devon Primary Care v Readman was to establish when can an employee reject a suitable alternative role and still retain their redundancy rights.  In this NHS case the employee’s job that was redundant was a band 8a. The new role was a band 8a. The redundant role was as a community modern matron based within a territory. The new role was a modern matron based at a hospital with a reduction in employees reporting to her.

The Court of Appeal said the test is:

“whether this particular employee in this particular situation acted reasonably in refusing the offer of employment”. As this particular employee did not like the new role as it was not based in the community but based in a hospital, it was a reasonable refusal by her and so she maintained her redundancy pay.

This is very subjective test and so could lead to more redundancy pay outs even where there is another role at the same grade for the employee to do.


What is Custom and Practice? August 5, 2013

Sometimes an employee will argue that a payment should be made to them due to custom and practice. The reason they have to argue this is because there is no express written or oral contractual term they can refer to for that payment to be made and so they have to rely on an implied term. A way to argue an implied term exists is by saying it paid through custom and practice. 

In the case of Park Cakes Limited v Shumba & Others the Court of Appeal listed the points to consider when assessing whether a redundancy payment being claimed (which was greater than the statutory redundancy payment) was a payment that had to be made to the Employees due to an implied term through custom and practice, or not. The implied term being if you are made redundant by Park Cakes you will be paid the amount greater than the statutory redundancy payment.

(a) On how many occasions, and over how long a period, the benefits in question have been paid. The more often it was paid before the more likely employees will reasonably understand it will be paid to them if they are made redundant.

(b) Whether the benefits are always the same. If, an employer may always make an enhanced redundancy payment, he nevertheless vary the amounts or the terms of payment, the lack of certainty means it may be more difficult for an employee to argue custom and practice.

(c) The extent to which the enhanced benefits are publicised generally. If an enhanced redundancy benefit is published to the workforce generally, that will tend to create an obligation to pay

(d) How the terms are described. If an employer clearly and consistently describes his enhanced redundancy terms in language that makes clear that they are offered as a matter of discretion it will be hard for an employee to argue they are contractually obliged to the payment.

(e) What is said in the express contract. If there is a contradictory clause in the express written or oral contract that will override an implied custom and practice clause unless the employee can show the employer intended to vary the express clause.

(f) Equivocalness. The burden of establishing that a practice has become contractual is on the employee, and he will not be able to discharge it if the employer's practice is, viewed objectively, discretionary rather than an obligation to pay.

In the Park Cakes case the matter has been sent back to a tribunal to decide the case again based on the list given above.


Just a reminder.

In brief from Monday 29 July 2013:


Claimants will have to pay for starting a claim and having a full hearing. This may reduce the number of claims made. At the moment a number of organisations are challenging this new fee system and it may be overturned sometime in the future but at the moment from Monday fees will have to be paid.

Any case in existence at the moment remains free.


Every claim submitted and paid for will have to go through a checking system by a judge to assess if it has any merit. This does not mean if it gets through the "sift" it is a great claim, it merely means it is not hopeless.

Maximum Award

From Monday the maximum award for unfair dismissal is the claimant's annual salary or £74,200.00 whichever is the lower figure.

Settlement discussions

These can be started, after Monday, to end an employee's employment and subject to certain rules cannot be used by the employee, if those discussions break down and the employee goes on to claim unfair dismissal as an admission that the employer did something wrong.

8 July 2013

As you know the tribunal costs (fees for starting an employment tribunal claim and having a hearing) come into to force on 29 July 2013.

Also on that date, 29 July 2013, the new regime for settlement agreements comes into force. This means:

  1. The current format for settling matters with an employee is a Compromise agreement. There is a problem with compromise agreements which is if there is no “dispute” between the employer and the employee the discussions leading up to an agreement can be used at an Employment Tribunal hearing, if the matter is not resolved by such an agreement. So an employee could say at a tribunal the company must have thought it had done something wrong as it offered to pay me £XXXX before I left.  The “new” settlement agreements are to be introduced to try and resolve that problem. So after 29 July, even if an employee had no idea his/her employer was thinking about ending the employment relationship, a settlement agreement can be proposed.
  2. Therefore, from 29 July 2013 you can have pre termination discussion with an employee about settlement arrangements for ending their employment without those discussions being used against you at a later date if those discussions break down and the matter is not settled and it is taken to an Employment Tribunal instead.
  3. The pre termination discussion relates to ordinary unfair dismissal claims only – this means the employee has more than 2 years’ service and is not asserting it is a discriminatory termination or linked to a whistleblowing incident or health and safety etc. (in these cases the employee does not need two years’ service).  It cannot cover discrimination, harassment or victimisation issues.
  4. If the pre termination discussion is improper or there is improper behaviour it means the Employment Tribunal can hear evidence of that pre termination discussion at any later date hearing (again where the negotiations have broken down and the matter is not settled and it is taken to an Employment Tribunal instead).
  5. Harassment, bullying, intimidation, discrimination, placing undue pressure on an employee or employer, physical assault or threats of, criminal or wrongful behaviour are all improper behaviour.
  6. Undue pressure is not allowing an employee a minimum of 10 calendar days to think about the offer, reducing the value of the offer during that ten day period, telling the employee dismissal is the only other alternative if he/she does not take the offer, threatening to undermine a reputation if the offer not increased/decreased.

From 29 July therefore, we will be referring to Settlement Agreements. They will look a lot like the “old” compromise agreements but if there has been no improper behaviour, and the notion of ending an employee’s employment is discussed prior to any dismissal and that employee has more than two years’ service, if an agreement is not reached and the employee then leaves and brings a claim, that discussion cannot be referred to in those tribunal proceedings. I appreciate it may seem like it has limited use but for those cases where it is applicable it will save a lot of time on other procedural steps.


June 15 2013

An update which will affect your advice to your business partners.

The two cases relate to redundancies.

USDAW v WW Realisation 1 Ltd (in Liquidation) 

This case revolves around the closure of the Woolworths stores around the UK.  When a protective award claim was made in the Employment Tribunal by the union for lack of consultation on the resulting redundancies, the Employment Tribunal agreed there had been no consultation but treated each Woolworths store as an individual establishment. This affected which ex employees were paid compensation for the protective award. The decision was based on the wording of Section 188, Trade Union and Labour Relations (Consolidation) Act 1992

Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of …..”

Each store was treated as one establishment so those stores with less than 20 employees did not trigger the right to collective consultation in the first instance and so the employees from those stores were not paid a protective award.

The union appealed and the Employment Appeal Tribunal accepted there was a conflict between the original European law governing collective consultation on redundancies which merely referred to the numbers per establishment and the overall numbers as opposed to the UK legislation which referred to “at one establishment” as quoted above. The EAT decided if it is a single business, and in this instance Woolworths clearly was, despite each store being located in different geographic locations, that was irrelevant and every employee should benefit from the protective award claim.

Previously employers have relied heavily on the fact that each geographic location was one establishment and so consultation on a collective basis was only triggered if there were 20 or more employees being made redundant at each location. This is now not acceptable practice and runs the risk of attracting a protective award being allocated to those who were not collectively consulted.

Contract Bottling Ltd v Cave.

In this case an employee whose role remained intact within a company proposing to make redundancies could be forgiven for thinking his job was safe. In Contract Bottling Ltd v Cave the Employment Appeal Tribunal did not agree. The employer had to implement redundancies due to a down turn in work and chose as its pool for selection a wide generic pool and applied a wide generic set of selection criteria which meant an employee whose job in accounting was not affected by the down turn in work was placed at risk of redundancy. The employee argued this was unfair and the EAT said not necessarily. The EAT said the employer had shown there was a diminution in the requirement of the business for work of a particular kind as it decided the diminution can be over several kinds of work not just individual kinds of work.

This is a very helpful case when it comes to “bumping”. It requires a wide pool of employees, and clear consideration of that pool being reasonable in the circumstances, and a set of well thought through selection criteria so an employee cannot argue it was biased towards one type of role over another.

Unfair dismissal compensation

The other main point arising this week is the cap for unfair dismissal will be £74,200.00 or 52 week’s pay, whichever is the lower. This will come into force in July (date to be determined). A week’s pay is defined as what an employee is paid for his normal working hours in a normal week where that employee’s pay is not varied according to work done. This arguably means it does not include bonus payment or commission if such payments are not part of the employee’s contractual terms and conditions.


7 June 2013

The link below is the new ACAS code on Settlement Agreements (to replace compromise agreements on a date in the near future). The actual code starts at page 11 and runs to page 16. There are a few changes to the process envisaged at the beginning of the year eg. adding in a 10 day period for an employee to respond to a settlement and employees being allowed to be accompanied to settlement meetings.

At present the law introducing settlement agreements is not in place but as soon as it is put in place information will go on this update.



May 2, 2013

There have been two cases this week which provide a timely reminder of how important the drafting of the initial employment terms and conditions is and the continuing review of those terms throughout employment.

The first case relates to bonuses to be paid out to bankers.

Dresdner Kleinwort Limited & Commerzbank AG v Attrill & Ors

Dresdner Bank was sold by Allianz to Commerzbank in 2009. Prior to the sale the main concern was the retention of staff. If there was a mass exodus the business would collapse. To retain staff before the sale therefore, the Chief Executive announced a guaranteed minimum bonus pool of 400m euros. Days after that sale in unrelated circumstances Lehman Brothers collapsed. With a fear of another collapse, Commerzebank wanted to find out how it could get out of the “guaranteed minimum bonus pool” which had just been announced.

To try to limit any payout the bank introduced a 'material adverse change' (MAC) clause by way of bonus letters, stating that the bonuses would be adjusted if revenue suffered. Bonus payments were not made.

The bankers argued the bank had made a contractually binding arrangement with the bonus pool and needed to pay up and the introduction of the MAC was in breach of trust and confidence.

The Court of Appeal had to decide – was the initial bonus pool arrangement a legally binding obligation and if so did the introduction of the MAC breach trust and confidence.

The clause in the handbook the bank was relying upon to say the initial bonus pool was not contractually binding, as the clause below had not been followed to introduce the bonus pool, reads:

The Company reserves the right to vary the terms and conditions described in this handbook and the terms and conditions of your employment generally. Such changes can only be made by a member of the Human Resource Department and must be communicated to you in writing. When the change affects a group of employees, notification may be by display on notice boards or Company Intranet."

As this was a group change the bankers argued notification on the Company intranet of a bonus pool effected a change. The fact it did not involve HR directly and no letters were sent to each banker personally did not matter.   The Court of Appeal agreed and it decided the introduction of the MAC was a breach of trust and confidence.

In any situation where the outcome of a change is a reduced payment or even no payment to an employee you need to ensure  what you are doing and how you are doing it complies with a standard change clause you may have in each individual contract/handbook or bonus scheme. If you do not have such a clause then you should consider introducing one which works form a practical perspective within your organisation.

Hennigh Berg v Blackburn Rovers Football Club & Athletic plc.

In this case the football club, Blackburn Rovers entered into a fixed term contract with Berg. A clause in that contract stated that if the contract was ended early by Blackburn it would continue to make the payments until the end of the fixed term. Blackburn Rovers obviously did not get the desired football results and so inevitably the fixed term was ended early and Blackburn stopped paying Berg. Berg argued this was in breach of the fixed term contract and Blackburn argued the clause that said it had to continue paying him was not enforceable as it was too harsh; it was a penalty clause. The court did not agree with the football club and said the clause was contractually binding and it had to pay for the balance of the fixed term.

Be careful what you agree to at a time when entering a new contract. That contract is usually only ever read again when the employee leaves. Enter into a contract knowing how much you want to pay if it all goes wrong.


April 25 2013

It looks like the Employee shareholder status will become law later this year (part of the Growth and Infrastructure Bill). Yesterday the House of Lords accepted the concessions to the rules for this new arrangement.

The rules set out below cover the situation when an employer offers an employee shares (from 2 to 50,000) in the company and in return the employee forgoes his/her right to claim unfair dismissal and the right to request flexible working.

·         The employee must be allowed to take independent legal advice on the arrangement and that advice paid for by the employer;

·          a seven day 'cooling off' period is imposed during which an employee can pull out of the arrangement;

  • employers must provide a written statement with full details about the shares and the rights they carry;
  • any jobseeker who refuses an offer with employee shareholder status will not forfeit their social security benefits;
  • the first £2,000 of shares will not attract income tax;
  • existing workers will be protected from suffering a detriment if they refuse to switch to an employee-shareholder arrangement.

Bearing in mind an employee attains unfair dismissal rights after 2 years’ service, an employer may not want to offer shares to an employee in those first two years especially if the employer does not believe the employee is interested in flexible working.  Commercially, it may be creating a monetary liability for the company where ordinarily under normal employment laws, none existed.

If you do decide this is an arrangement that would suit your business the agreement for the allocation of shares will have to be drafted securely to ensure there is a water tight “buy back” of those shares if the employee leaves the company, for whatever reason. This is particularly the case to determine what price is to be paid for those shares.  Also, whilst an employer will not have to give a reason or follow a particular n employee may have on termination. When thinking through the idea one issue that came to mind was it could limit allegations of stress which now commonly arise when a performance improvement plan is put in place or a disciplinary, as such procedures will not be needed for an employee who has contracted out of their unfair dismissal rights by taking the shares instead.

I will let you know when this is actual law, so when the Growth and Infrastructure Bill becomes an Act.

April 23 2013


Employee Shareholder status

This is the new concept of employment favoured by the coalition government and to be introduced sometime this year. The employee agrees to forgo certain employment rights in return for shares. The legislation for this concept is on a “yo yo” of a journey through Parliament and the House of Lords. Parliament always giving it the go ahead and the House of Lords knocking it back. Last night saw the latest knock back by the House of Lords, rejecting the concept of Employee Shareholders. Let’s see what happens next…..


What falls under the definition of disability?

A Danish case, referred to the European Court, required a review of the meaning of disability in a situation where the employee could work, but not full time work. The law in Denmark provides that if an employee has 120 days off sick in a year they can be dismissed with 1 months’ notice with no further claims. This was challenged and the employer argued as the only thing this Danish employee could not do was work full time, it was not a disability.

The European Court said the protection was not intended to be limited to disabilities that are congenital or result from accidents. ‘Disability’ also covers curable or incurable illnesses resulting in long term physical, mental or psychological impairments which may hinder full and effective participation in professional life on an equal basis with other workers.

The ability to work to a limited extent does not prevent someone from being covered by the concept of ‘disability’.

The European Court was also asked to decide whether the 120 days sick leave rule was acceptable in light of the protection afforded to an employee with a disability. It stated if the employer had failed to make reasonable adjustments and the employee was off and then dismissed, relying upon the 120 day rule it would be in violation of protection afforded to an employee with a disability but it could imagine a case where relying on this rule was not a violation if the rule was to cover a legitimate aim and it did so in the particular case considered.


One point to keep in mind is a legal obligation to make a reasonable adjustment is only triggered when the employer has actual knowledge of the disability or ought to have known the employee has a disability.


Victimisation claims.

As an employer you may receive a grievance in which an employee states they are being victimised and/or bullied and harassed. Unless the employee can link these allegations to a protected characteristic: age, sex, race, disability etc as set out in the Equality Act 2010 the employee will not be able to pursue the victimisation claim and can only rely on the other claims in an employment tribunal if the employee asserts it amounts to constructive dismissal. This notion was reaffirmed in Durrani v London Borough of Ealing last week.


This is why it is important to clarify in any grievance process the actual grievance and the employee’s thoughts on why something is happening as described.



There are three interesting updates this week, each summarised below.  

Walker v Sita Information Networking Computing Limited March, 2013 EAT

Mr Walker worked for Sita Computing. He is 21.5 stone in weight. He commenced a claim in the employment tribunal relying upon the Disability Discrimination Act (now the Equality Act 2010).  His employer did not challenge the fact Mr Walker’s evidence that he could not undertake significant day to day activities. But said there was no underlying mental or pathological condition. The Employment Tribunal decided Mr Walker did not have a disability as the cause of his inability to do day to day activities was not because of a physical or mental impairment.  Mr Walker appealed this decision to the Employment Appeal Tribunal. The employer did not appear at the EAT hearing. The EAT held the cause of the inability to undertake day to day activities was the wrong test when deciding if someone has a disability (although the absence of an obvious cause might have evidential significance in an appropriate case if the genuineness of the symptoms was put in issue). The EAT therefore, decided in this case Mr Walker was disabled and relied heavily upon the Guidance notes on disability produced by the government.

 The Guidance states at paragraph 8: 

  1. It is not necessary to consider how an impairment is caused even if the cause is a consequence of a condition which is excluded; eg  liver disease, as a result of alcohol dependency would count as an impairment although alcoholism itself is expressly excluded from the scope of the definition of disability.
  2. Another specific example; a woman with obesity which gives rise to impairments such as mobility restrictions and breathing difficulties. Where she is unable to walk more than 50 yards without having to rest it is that effect that needs to be considered rather than the underlying obesity to decide if there is a disability, or not.

HM Land Registry v McGlue March, 2013 EAT  

HMLR had a voluntary severance package which was a lucrative payment to those employees who volunteered to leave employment when a request for volunteers was made.

Ms McGlue was excluded from that voluntary scheme as the scheme excluded anyone on a career break who was not due to return until after March 2010. Ms.McGlue had been on a career break since March 2008. The break was approved for up to five years but she would be entitled to return to work at any time upon giving reasonable notice. This meant she was excluded from the voluntary scheme. She raised a grievance, which was rejected, and an appeal, which was also rejected. She then complained to a tribunal of indirect sex discrimination, among other things.

The Employment tribunal awarded her £12,000 in respect of injury to feelings; £5,000 in aggravated damages; and compensation for economic loss of £72,000 (the full voluntary severance payment) even though Ms. McGlue retained her right to return to work.

The reason HMLR appealed the claim to the EAT is to reduce the compensation payment amongst other things.  This  figure was the sum Ms. McGlue would have received had she been able to apply for voluntary severance. HMLR argued why should she get this amount as she remained in employment – there had been no severance and so the voluntary severance scheme had not been triggered.  
The EAT rejected this argument and did not change the compensation, to the full severance payment that she would have received, with no deduction to reflect the fact that although she remained in post (she retained the right to go back to her job after her career break) her evidence was that, had she been accepted under the voluntary scheme, she would have taken the payment and found equally well-remunerated work elsewhere, and so there was no basis on which to offset any financial benefit she might have had by remaining in employment with HMLR.

The EAT  said the starting point for assessing financial loss was that, had Ms. McGlue not been discriminated against, she would have been accepted into the voluntary severance scheme and would have been £72,000 better off.  Her unchallenged evidence before the tribunal was that she would have sought, and found, equivalent work elsewhere, had she taken voluntary severance and so would have had similar earnings as well as the voluntary package. If she would have earned less in other work than she would for HMLR then, to the extent that there was a difference, it would be capable of being offset against the benefit that she would have had by accepting the severance payment. But on the present facts, there was no basis on which to offset against the £72,000 any supposed financial benefit.

The EAT also rejected HMLR’s appeal against the amount of the injury to feelings award but allowed its appeal against the award of aggravated damages, holding that there was no basis for such an award.


Employee Shareholders

As you know for the Autumn of 2013 the government has proposed legislation to allow for a type of employment known as employee shareholders – employees who accept shares in their company in return for waiving some employment rights - last week the House of Lords narrowly voted against this piece of draft legislation – so it might not come to fruition after all.


Christou and anor v London Borough of Haringey, 12 March 2013 Court of Appeal.  

The case

Two social workers had been through a disciplinary process and each given a written warning for their involvement in the baby P case.

After the court hearing for baby P the disciplinary process was started afresh against the same two social workers and this time the two social workers were dismissed. The two claimed unfair dismissal.

At the Employment Tribunal the dismissals were found to be fair even though initially the two social workers had been given a written warning and then for the same offence they were dismissed. There is a doctrine in English law which states you cannot be tried for the same offence twice (res judicata) . The social workers said that was happening here and so it was unfair. The Employment Tribunal disagreed with the social workers and said there were times under a disciplinary policy that the process could be started afresh and their case was one of those times.

The EAT agreed with the Employment Tribunal and upheld that the dismissals were fair. The social workers appealed to the Court of Appeal. The Court of Appeal rejected their appeal and agreed with the ET and EAT on the basis that the exercise of disciplinary power by an employer is not a form of adjudication and so res judicata was not applicable and so an employer could hear disciplinary proceedings afresh. If there is a proper and sufficient justification for reopening a disciplinary process and the fact that the allegations of misconduct were very serious and involved risk to the public, the new management at the Council was entitled to take a different view of the gravity of the conduct.

What can you do?

When drafting your disciplinary policy, add in a paragraph about the Company’s ability to reopen disciplinary proceedings and/or to start proceedings afresh, even where a disciplinary sanction has already been given, if there is new evidence or there is justification for doing so.     

Mental Health care (UK) V Biluan and another, 11 March EAT  

The case

An employer undertook a redundancy exercise. They identified pools of employees and applied a selection process using selection criteria comprising disciplinary and absence records and a competency assessment. It was an HR driven and scored by HR. In the vast majority of cases it was the competency score which was decisive. The manager of the employees in the pool for selection gave evidence to say he was surprised by the competency results and that several employees who had been selected for redundancy were good employees.
The Employment Tribunal decided the dismissals were unfair because capability had been assessed mainly on the competency assessments and had taken no account of prior performance and there had been no input from the actual managers working with the employees. The employer appealed to the EAT arguing that the tribunal had substituted its own view. The EAT accepted the employer had taken care over the process but chose an 'elaborate and HR driven method' depriving it of the benefit of input from managers and others who knew the staff in question. Importantly for employers they commented that whilst it is desirable to seek to avoid subjectivity and bias, this goal can come at "too high a price". The EAT decided the dismissals were unfair.

What can you do?

This is a perfect example of an employer believing an elaborate process equals a fair process. So much effort had gone into it, however, the employer was forgetting the reason for following a process is to ensure the one followed took into account the view of those who know (the line manager) rather than as a mere technical exercise. I appreciate a managers view can be challenged as subjective but if it is sanity checked by another and/or against appraisal ratings that were done when redundancy was not in consideration, it is still the best process for a potentially fair selection exercise.

Vaughan v London Borough of Lewisham and others

The case

An employee took 39 hours' worth of covert recordings using a dictaphone of contacts between herself and her managers and colleagues and wanted to use these in a discrimination claim. She claimed that the recordings would show that official notes made by the Respondents were inaccurate or wrong. The Employment Judge refused the application.
The EAT agreed with the ET judge but whilst the EAT acknowledged the practice of covert recordings is "very distasteful", such recordings are not inadmissible simply because the way in which they were taken. In this case the reason why they were not allowed was because it was not possible to form any view on the relevance and so the admissibility of the recordings due to the way the employee had presented them to the ET.  
However, the EAT said when there are covert recordings part of the recordings could be potentially relevant and admissible and if a more focused application, supported by transcripts of the recordings from the sections the employee wanted to rely upon, together with an explanation of why they are relevant, had been made an employee might get a different result and those recordings might be allowed in evidence.

What can you do?

In your disciplinary policy state categorically that the employee and/or the Company cannot record any of the proceedings either covertly or otherwise and that a note will be taken of the meetings and sent to the employee for agreement, after each meeting.


March 6, 2013

A case heard in the EAT has revealed there is no protection against victimisation if you are an ex employee.

Section 108 (7) Equality Act 2010 states clearly victimisation protection did not apply where an employment relationship had ended.

In the case Rowstock Ltd v Jessemeyan employee was dismissed when he reached the age of 65. He claimed unfair dismissal and age discrimination. He was then provided with an unfavourable reference, as a result of the claims he had made so the ex employee started a claim for victimisation too. He was not allowed to pursue the claim for victimisation due to Section 108 (7). The only way round this is for parliament to intervene and pass legislation to change the impact of Section 108 (7).


28 February 2013

Bancroft v Interserve

The Employment Appeal Tribunal (“EAT”) gave its judgment today on a case involving dismissal at the behest of a third party.

What steps does an employer have to take if its client states it does not want the employer’s employee providing services to it any longer and wants someone else instead? The EAT said employer must show it has taken all steps to seek to mitigate the injustice caused to the employee by his removal at the behest of the third party client. This included making an effort to persuade the client to take the employee back and taking steps to redeploy the employee.

In this case the employer had investigated the reason why the client did not want the employee on their contract and the employer issued a fist and final written warning but concluded it did not have enough to dismiss. If having investigated it did have enough to dismiss then the third party client request coincides with the employer position and could be a potentially fair dismissal. If the issue is not one that the employer would rely upon to dismiss an employee that will trigger the steps an employer must take to mitigate the hardship cased to the employee by his removal from a contract.

There will often be a conflict in this type of case between on the one hand the commercial contract with the client which may allow a client to veto an employee working on its contract and on the other hand the steps an employer must now take on behalf of its employee if the client relies on its favourable commercial clause.

Practical steps to consider are:

review commercial contracts to build in a right for the employer to make representations to the client if the client exercises its right to veto an employee on its contract; and/or

  • make sure on each occasion a client states it does not want an employee the investigation into that situation (where it results in no disciplinary action or action short of dismissal) includes as part of that process a step to try and persuade the client to take the employee back; and/or
  • make sure you have opportunities to redeploy employees, if the issue is not a dismissible offence, and the employees contracts are flexible enough to allow for redeployment with other clients in other locations.  


February 27, 2013

DWP are consulting on the treatment of pensions in a transfer situation. The consultation ends on 5 April 2013. If you want to read though the proposals and participate in the consultation exercise please go to



26 February 2013

Davies v Sandwell, 26 February 2013

After 4 weeks in tribunal an employee lost her claim of unfair dismissal. She appealed to the Employment Appeal Tribunal and the decision was given today. The employee had a live final written warning on her file and the last warning for misconduct then led to her dismissal. The employee argued the employer could not rely on the final written warning as it had been unfair and that then made the dismissal unfair. The Tribunal decided the employer had issued that final written warning in good faith, and that it was not manifestly inappropriate to issue it and that there was evidence to sustain it.Therefore the employer could rely upon it. This was despite the employee having appealed the final written warning and that appeal not taking place over time.

This reinforces a staged disciplinary approach which leads to dismissal can be effective as long as the warnings are given in good faith, and it is not manifestly inappropriate to issue each warning and that there was evidence to sustain them.

Always remember at the end of any warning for misconduct that you state any repetition of this misconduct or any other act or ommission amounting to misconduct can lead to further disciplinary action.


Gagging clauses

14 February 2013

You will have heard on the news this morning talk of gagging clauses and the NHS and compromise agreements. The story revolved around a senior manager who had signed a compromise agreement under which he was paid a 6 figure settlement pay out and in return he signed a compromise agreement that he says prevented him from making any comments about his dismissal. His dismissal was due to his priority; patient care and the Trusts priority; budgets.

In most compromise agreements there is a “gagging clause”.

The Executive/Employee agrees that s/he has not and will not at any time disclose whether directly or indirectly to the employees of the Company or any Associated Company or to any other person (save for his professional advisors and spouse and provided that disclosure is only made in circumstances where such disclosure is and will continue to be confidential and the Executive/Employee is entirely satisfied that the disclosure will be kept confidential by such persons and to any person to whom disclosure may be required by law) the terms and circumstances surrounding this Agreement including any details regarding the negotiations leading to this Agreement and all and any events leading up to the termination of her/his employment. 

However, in your compromise agreement you may also have the clause

Nothing in this Agreement shall be taken to prevent the Executive/Employee from making a protected disclosure as defined by the Public Interests Disclosure Act 1998.

An alternative or additional clause could read

As at the date of signing this Agreement the Executive/Employee is not aware of any matter which would constitute a protected disclosure as defined by the Public Interests Disclosure Act 1998 and s/he has been given the opportunity prior to leaving the Company to make any such disclosure.  

So that you have peace of mind that if you are including a sum in the settlement figure for the Executive/ Employee to keep quiet about the terms and fact and surroundings leading up to the settlement you will not have wasted that amount if indeed the employee does blow the whistle after having received the settlement money.