Employment Law Update with Toni McAlindin - Escape ......Escape Recruitment Services | 01506 461 445 | 0141 410 9111 | 01592 214 400 | 01224 443374 | Sept 2013 Employment Law Update

Escape Recruitment Services | 01506 461 445 | 0141 410 9111 | 01592 214 400 | 01224 443374 | Sept 2013

Employment Law Update with Toni McAlindin Escape Recruitment Services

Founded in 2000 Escape are focussed on providing high quality and effective recruitment solutions for the Scottish, UK and International job market. Through market diversification, team development and growth over the last 12 years we now operate from four bases across Scotland: Livingston, Glasgow, Kirkcaldy and Aberdeen. As we have grown we have ensured our recruiters are experienced, technically knowledgeable in their specialised industry and can offer practical and effective advice to both recruiting organisations and candidates looking for new job opportunities. An overview of the areas in which we recruit are shown below. For more information on how we can support you and your business please contact our teams on: 01506 461 445 | 0141 410 9111 | 01592 214 400 | 01224 443374 [email protected] www.go-escape.com

Escape Recruitment Services – Our Specialisms

Accountancy & Finance

Sales Ledgers | Purchase Ledgers | Credit Control | Payroll | Account Assistants | Assistant Accountants | Finance Analysts | Part Qualified Accountants | Qualified Accountants | Finance Managers | Financial Controllers | Finance Directors | Finance Specialists

Commercial & Administration

Receptionists | General Office Administrators | Data Entry | PAs | Sales Administrators | Office Managers | Purchasing Administrators | Document Controllers | Technical Assistants | Marketing | Digital Marketing | Telesales | Account Managers | Field Sales | Technical Sales

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Design & Development | Process | Electronic | Mechanical | Electrical | Chemical | Production | Commissioning | Inspection | Supply Chain | Facilities | Project | CAPEX | Packaging | Asset Integrity | Metallurgy & Materials | New Product Introduction (NPI) | Control & Instrumentation Design | Scientific | Quality | H&S |

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HR Directors | HR Managers | HR Business Partners | HR Advisors | HR Officers | HR Assistants | HR Administrators | HR Generalists | Reward | Job Analysts | Recruiters and Employee Relations | L&D Managers | L&D Advisors | Soft Skill Trainers | Technical Trainers | Assessors & Verifiers

Information Technology

Software Development | Software Engineering | Programme/Project Management | Business/System Analysis | Pre/Post Sales | System Design | System Support | IT Manager/Director

Occupational Health

Occupational Health Physicians | Occupational Health Advisors | Occupational Health Nurses | Screening Nurses | Smoking Cessation Advisors | Medical | Case Managers | Registered General Nurses | Registered Mental Nurses | Occupational Hygienists

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Combustion Engineers | Carbon Capture Engineers | Corrosion Engineers | Electrical Control & Design Engineers | Engineers - CFD | Quality | HSE | Steam/Gas Turbine Engineers | Biomass/Fuel Chemistry | Proposals/Commercial Engineers/Managers | Research & Development Metallurgists | Offshore Operations/Renewables

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Mechanical/Electrical Fitters | Welders (coded and semi-skilled) | Platers/Fabricators | Pipefitters | Riggers | Slingers | Crane Operators | Industrial Painters | Machinists | Quality Inspectors | Outfitters | Stores | Material Controllers | E&I | Document Control | Sheet Metal Workers | Labourers | Forklift Operators

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Employment Law Update with Toni McAlindin September 2013

Toni McAlindin CCIPD, BA, LLM Toni is a qualified barrister and human resources practitioner with almost 30 years’ hands-on experience in advising, training and applying employment law to organisations. Toni has practical experience having worked with the Health Service, the Civil Service, the Welcome Foundation as well as Scottish & Newcastle and has the ability to make a sometimes very dry subject interesting and relevant. Toni’s technical expertise is unsurpassed and is delivered with a great deal of understanding of the practicalities of managing a business.

www.tonimcalindin.co.uk [email protected] 0131 621 8956

Legislation update August/September 2013

Caste discrimination The Government has published Caste legislation introduction – programme and timetable which sets out the process for introducing caste legislation as required by the duty in s.9(5) of the Equality Act 2010. Caste will be included within the definition of race. Work on caste discrimination by the Equality and Human Rights Commission will start shortly and last three to six months. The work will include discussions with individuals and groups with an interest in caste discrimination. In February or March 2014 a public consultation will set out the Government’s proposals for caste discrimination legislation as provided for in s.9. This will include proposals for how caste should be defined. Consultation will last until summer 2014 after which there will be targeted sector-specific engagement with groups needing familiarity with the new legislation.

Tribunal changes update On the 29

th July 2014 new tribunal rules came into force and fees were introduced. There is a new ET1 and new

ET3 form. From 29th

July 2013 the new forms should be used. A new online submission service also started on that date. A Presidential Practice Direction on Issuing Claims has been published in relation to England and Wales. A further one has been issued for Scotland. They set out the methods of issuing claims from the 29

th July 2013 ie

online (the preferred method), by post in certain instances, by hand to certain offices. A number of leaflets has been produced including Employment Tribunal Fees for Individuals, Employment Tribunal Fees for Groups and Multiples, Employment Appeal Tribunal Fees, ET and EAT fees. A reminder

A claimant is required to pay a fee to issue a claim and a further fee if the claim proceeds to a final hearing;

Both parties to the claim are liable to pay a fee for making specified applications;

The fee payable depends on whether the claim is a type A or type B claim which depends on the nature of the claim;

The appellant in EAT proceedings is required to pay a fee for lodging an appeal and a further fee if the matter proceeds to a disposal hearing;

Different rules apply where there are multiple claims ie they are cheaper;

The Ministry of Justice has confirmed that equal pay claims are category A and not B (ie they are cheaper).

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Changes to the Acas pre-claim conciliation scheme The Enterprise and Regulatory Reform Act 2013 introduces mandatory early conciliation for the first time to be used before a claim is issued. The Government hopes this will reduce the number of cases proceeding to tribunal. Acas already provide voluntary pre-claim conciliation and are very successful but the number of cases dealt with is a small proportion of the overall number partly because of the strict time limits within which claims must be issued. Under the new scheme claimants must send certain information to Acas before lodging a tribunal claim. A conciliation officer will try and promote a settlement. If this does not happen for any one of a number of reasons ie neither party wants to conciliate or only one does or conciliation fails, a certificate will be issued which allows the claimant to proceed with a claim. The claimant is not required to identify all of the issues complained of on any of the documentation. The Government believes that the complaints will become apparent during the conciliation process. Either party can refuse to engage in the process of conciliation with no sanction. Therefore it is not true to say that conciliation is mandatory only completing the original form is mandatory.

Commencement date for employee shareholders Regulation 2 of The Growth and Infrastructure Act 2013 (Commencement No 3 and Savings) Order 2013

has been made providing that the new section 205A of the Employment Rights Act 1996 on employee shareholders comes into force on 1

st September 2013.

Disclosure and Barring Service The Disclosure and Barring Service (replaced the Criminal Records Bureau in England) launched a new update service in June 2013. Job applicants will pay £13 per annum in exchange for which prospective employers can carry out a free update search to check their disclosure certificates remain valid and up to date. This is cheaper and quicker but it will be a cost to an employee.

TUPE It appears that the changes to TUPE are likely to be published in September to come into force in January 2014. These will include changes to service provision, employee liability notification, changes to ETO reasons, allowing TUPE consultation to satisfy collective redundancy obligations, allowing microbusinesses to inform and consult directly with employees and closing a pensions loophole.

Update on fees On 9

th July 2013 the Court of Session refused to grant an interim interdict in the judicial review application

brought by Fox and Partners against the introduction of tribunal fees. The full judicial review hearing is expected to be heard in October as is the judicial review brought in England by Unison.


Caselaw August 2013

1 Definition of disability – number of cases. In Glass v Promotion Line Ltd an employment tribunal

decided that an individual with severe eczema was disabled. In making its decision it took into account the length of time it took Ms Glass to get ready in the morning. She had to apply cream and wait for it to sink in. In Wheeldon v Marstons plc a chef with a severe nut allergy was held to be disabled. He was unable

to carry out his job as a chef as he could not come into contact with nuts during cooking. He argued that his employer had failed to make reasonable adjustments by finding other work for him. In an earlier case (Archibald v Fife Council) the employee argued that a reasonable adjustment would be to provide alternative work without the claimant having to go through a competitive interview ie the disabled person had first right to the job (provided it was suitable and the person was suitable for the job). In Wade v Sheffield Hallam University there was a reorganisation at the university and the claimant’s job was deleted. She applied for a new post in 2006 but was unsuccessful on two essential criteria. In 2008 the same job vacancy arose and she was again rejected. The question for the court was whether the employer breached the DDA 1995 by requiring that she go through a competitive interview process rather than automatically appointing her to the new role. The court referred to the Archibald case where the House of Lords held that disapplying a competitive interview process can be a reasonable adjustment. However in this case the EAT held that on the facts

there was no breach of the duty to make reasonable adjustments because she could not meet the essential criteria for the role (unlike Archibald who could do the jobs applied for). In Foster v Cardiff University the claimant was a lecturer who suffered from chronic fatigue syndrome. Duties were distributed between lecturers using a points-based system. Points were awarded to each task depending on how demanding the task was rather than how long it would take to complete. The university implemented a number of temporary measures to assist the claimant in managing her workload. One of these was to allocate fewer points than average to her. In 2010 the university increased everyone’s’ points including the claimant. However she was still given fewer points than other lecturers. They were lowered yet further after discussion. However despite this she went off work again and did not return. She suffered from anxiety and stress which made her condition worse. The EAT held that she was disabled. It was not necessary to look at what caused the condition ie the stress and anxiety but only the effect ie the chronic fatigue syndrome. This opened the door to looking at reasonable adjustments.

2 Breach of trust and confidence leading to dismissal. In Woodhouse v West North West Homes

Leeds Ltd the claimant had brought 7 employment tribunal claims and lodged 10 claims of race discrimination against his employer. None of these succeeded and were found to be empty allegations without any proper evidence or grounds for suspicion. The employer carried out a proper investigation each time. Shortly before his seventh claim he told his manager he had lost faith in the organisation and was only staying to fight his case. After some discussion the employer indicated that as the employee had lost trust and confidence in him the employer did not see grounds for a sustainable working relationship in the future. As a result Mr Woodhouse made a further tribunal claim for victimisation. The tribunal held that this was not victimisation but a reasonable response to any employee who brought countless grievances and claims without merit. He had pursued all of his grievances to the second or third stage of the employer’s policy and refused to accept when these were dismissed. The tribunal also held there was no discrimination as any employee who had brought so many grievances would have been treated the same. On the other hand the EAT held that he had been dismissed for carrying out a protected act ie taking his grievances to a tribunal. The employer admitted that he had been dismissed for constantly raising grievances of race discrimination which had all been held to be unfounded. The grievances were brought in good faith. Had they been brought in bad faith they would not have been protected.


3 Anti-Semitic views not philosophical belief. In Arya v London Borough of Waltham Forest an

employment tribunal held that the Equality Act does not protect a claimant who believes that “the Jewish religion’s professed belief in Jews being “God’s chosen people” is at odds with a meritocratic and multicultural society.” Mr A lost his job as a primary school teacher after allegations of pushing and shouting at a child; making sexist and racist comments about colleagues in letters to the NUT and indicating anti-Semitic views to a colleague in a text message and email. He brought various claims including one that he was discriminated against on the grounds of his philosophical belief (above). Before the claim could proceed the tribunal had to decide whether this constituted a philosophical belief under the act. Mr A was against organised religion in general but had particular issues with the Jewish religion and believed there is a Jewish conspiracy in wider society. He made an analogy between the Jewish people and the Vulcans in Star Trek and believed that his computer had been hacked and that a storyline which he stored had been used in a Star Trek episode. The tribunal held that his beliefs were genuinely held, was a belief and not just an opinion and affected his way of life and attained a certain level of cogency, seriousness, cohesion and importance. However the tribunal had difficulty in finding that his views were worthy of respect in a democratic society and not incompatible with human dignity and/or conflict with the fundamental rights of others. They concluded that his views could not be a philosophical belief as they are founded on prejudice and negativity about the Jewish religion. He can hold these views but his freedom to express them is limited to protect the rights and freedoms of others.

4 Conflict of protected characteristics. Yet another case where a Christian hotelier falls foul of the

Equality Act. In Black & anor v Wilkinson the hotelier refused to allow a homosexual couple who were not in a civil partnership to stay in her bed and breakfast on the basis that her religious beliefs would only tolerate the sharing of double bedrooms by monogamous heterosexual married couples. This was held to be direct and indirect discrimination. The latter on the grounds that the policy put homosexual couples at a disadvantage on the grounds of their sexual orientation when compared with heterosexual couples. The hotelier could not justify her treatment on the grounds of her religious beliefs as the proportionality exercise would have been on the claimants’ side. Priority is only given to religious beliefs in narrow circumstances and the hotelier had failed to show that she would suffer damage if she were not to be allowed to refuse rooms to homosexual couples.

5 Age discrimination issues. In Roberts v Cash Zone (Camberley) Ltd and another Mr Cullen

interviewed Ms Roberts who was 18 and had been recommended to him as a good worker. He had concerns about her lack of experience. These were held to be legitimate concerns based on his belief that an inexperienced recruit might have difficulty in dealing with potentially distressed customers (a loans company). He was persuaded to give her a chance and recruited her. Ms Roberts was trained by Ms Peters who communicated by Word documents which were often rude and contained swearing. She accepted that she had on occasion referred to Ms Roberts as “kid” a “stroppy kid” and a “stroppy little teenager” and had compared her dealings with Ms Roberts with her own experience of living with her teenage stepchildren. Ms Roberts was eventually dismissed for incapability and brought an age discrimination case. The tribunal found that the comments made did amount to harassment on the ground of age. The word teenager was factually correct in relation to Ms Roberts but it was used to express a subjective value judgement. The word “kid” had a judgmental use. The comments were therefore judgemental and based on age. In Hetherington v London Borough of Brent Mrs Hetherington, a teacher in her 60s, was an “early-years leader” until 2008 when she was moved to teaching other years. Two months after she moved an Ofsted report made some criticisms of early-years teaching at the school. The school was then placed in a scheme to improve teaching standards which caused industrial unrest. Ms Lisbon was brought in as a consultant in 2010. She initially worked with the headteacher and eventually replaced him. In February 2010 Mrs Hetherington’s teaching had been rated as good but the ratings soon dropped significantly.


Evidence heard by the tribunal included that shortly after her good rating an anonymous report assessed her as inadequate and this resulted in a letter from the head teacher indicating that if her performance did not improve she would be moved to the competency procedure. She was told she should resign in dignity. This led to a one day strike at the school. Ms Lisbon and the head teacher discussed this and suggested that Mrs Hetherington might move years and leave if she could not cope with the move. Further criticisms were made including a heated discussion. This led to Mrs Hetherington going off sick and resigning. The tribunal accepted that the head teacher had presented Mrs H as a problem to be dealt with and together with Ms Lisbon had conspired to force her out. The criticisms of Mrs H were remarkable given her years of teaching without adverse comment. Another older teacher had received negative ratings from Ms Lisbon and had resigned. The tribunal held that it was no coincidence that no other teachers’ performances were found to be unsatisfactory. A text message from Ms Lisbon to the head teacher had indicated that pay issues would be easier if these two older teachers left ie they cost too much. The tribunal concluded that the parties had attempted to save money by getting rid of the oldest teachers who were more expensive. In Engel v Transport and Environment Committee of London Councils a tribunal held that a decision not to renew a parking adjudicator’s appointment beyond his 70

th birthday was age

discriminatory because the committee which made the decision failed to provide evidence objectively justifying its choice of 70 as an appropriate and reasonably necessary retirement age for adjudicators.

6 Post-employment victimisation. It appears that there is a drafting error in the Equality Act 2010 as

section 108(7) excludes from its scope victimisation occurring after an employment relationship has ended. This does not comply with EU law and was addressed in two recent cases. In Rowstock Ltd and another v Jessemey and Equality & Human Rights Commission Mr J was dismissed when he reached 65 as his employer did not want to employ those over 65. He complained of unfair dismissal and age discrimination. Subsequently his employer gave a very poor reference about him to an employment agency. He pursued an additional claim of victimisation. He won his first two claims but the tribunal held that s.108 (7) did not provide a remedy for post employment victimisation. He appealed to the EAT. The Equality and Human Rights Commission intervened to argue that s.108 cannot have been intended by Parliament to remove protection against post-employment victimisation. An earlier case had led to a change in the law prior to the Equality Act 2010 which was lost when the later act was implemented. In addition the case of Coote v Granada Hospitality Ltd heard by the ECJ held that member states were required to introduce the necessary measures to ensure protection for workers whose employer refuses to provide a reference as a reaction to proceedings brought by the employee to enforce equal treatment. The EAT agreed that the Equality Act was intended to implement existing law and to reflect the Coote judgement and indicated that was clearly intended but it is not what was stated. Although the court is obliged to take a purposive approach to construing statutes to enable them to be read compatibly with anti-discrimination provisions, the judicial role is not geared to amendment of primary statutes. The courts cannot repeal, delete or contradict the language of the offending statute. The statute was clear even if it might have been a drafting error. However in Onu v Akwiwu and another the President of the EAT took the view that s.108(7) does not prevent a post-employment victimisation claim because the decision in Rhys-Harper v Relaxion Group plc made it clear that the concept of employment could be extended to cover former employees. This conflict can only be resolved by the Court of Appeal.

7 Race discrimination for applicant who applied twice for work under different names. In Kpakio v Virgin Atlantic Airways Ltd Mr K applied for a job as a Virgin Atlantic customer service adviser twice in October 2012. The first time he used his own name, completing the application form and submitting a CV. He stated that he is a black African. The second time he used the name “Craig Owen” completing the application form with different information and a false CV. He stated White British as his ethnic origin. His first application form was rejected but the second was put to the next level of recruitment a telephone interview which was unsuccessful. Mr Kpakio claimed direct race discrimination arguing that the decision not to progress the first application was due to race.


The question for the tribunal was why Mrs Day who dealt with the first application did not progress with the application not why Mrs Williams who dealt with the second application did. The tribunal accepted the evidence that Mrs Day did not have access to the monitoring form which indicated that Mr Kpakio was a black African. She did not know the name was African and could not recall reading the name. She had five minutes to look at each application and decide whether it met the essential criteria. There were about 1,200 applications. The tribunal found that the first application did not meet the published criteria for the job. The second application indicated experience in live chat which impressed the employer and led to an interview. This was not because of race in either application but the applications were different with the second meeting the published criteria.

8 Injury to feelings for being excluded from voluntary severance scheme whilst on a career break. In HM Land Registry v McGlue the employer set up a voluntary severance scheme but decided to

exclude all those who were on a career break but did not pass on this information. Mrs McGlue applied for voluntary severance even though she was on a career break following maternity leave but could return at any time on short notice. Mrs McGlue was misled into thinking that her application was progressing. She was turned down. Her grievance took 7 months to resolve before it was dismissed. She succeeded in her claim for indirect sex discrimination and was awarded compensation for injury to feelings of £12,000 and aggravated damages of £5,000. The employer appealed arguing that the sums were too high. The EAT found that the award was at the midpoint of the middle range of Vento damages and would not be interfered with. However aggravated damages were not appropriate. They should be awarded if the act is done in an exceptionally upsetting way or for a bad motive or was aggravated by subsequent conduct. This was not the case here.

9 Financial penalty for leaving employer early. It is not unusual for employers to pay for training,

relocation expenses etc with a proviso that the employee refund some or all of the monies paid out if the employee leaves early. Provided this is not a penalty forcing an employee to stay with an employer the courts will usually enforce such clauses. In Webb and another v Thomas Cook Airlines Ltd the pilots

signed a cadet loan agreement paying Thomas Cook £60,000 as a loan repayable in monthly instalments at £12,000 per annum. This was to cover disruption caused by pilots leaving employment. The pilots forfeited the right to be repaid the remainder of the loan if they left within seven years. There was an exception for redundancy. In 2011 rumours began to circulate that TCA would have to make redundancies and two pilots applied for jobs elsewhere. They would have preferred to stay where they were but there was considerable uncertainty. They were offered and accepted voluntary redundancy. TCA believed it did not have to pay back the remainder of the loan. The tribunal held that the reason they were leaving was redundancy albeit voluntary. Any search for other jobs was due to rumours of job losses. The airline had no permanent suitable alternative jobs. They were therefore entitled to repayment of the outstanding balance of their loans.

10 Bonus pool contractually binding. In Attrill and ors v Dresdner Kleinworth Ltd and anor the Court

of Appeal held that once the bank announced a guaranteed minimum bonus pool of 400 million euros to be shared out on a discretionary basis according to individual performance, this was a legally binding obligation to determine bonuses by reference to that pool. It had been intended to be binding when made and required no individual acceptance by employees. It met the conditions for a unilateral variation of contract. The bank separated its investment from its commercial arm which led to uncertainty. To stop employees leaving it made a promise to allocate 400 million euros to the bonus pool. Later the bank sought to write to employees seeking to reduce the bonus if there were additional material deviations to revenue and earnings. The following year the bank was taken over. After the Lehman Brothers collapse the bank decided to reduce the bonus by 90%. The court agreed that the original letters and briefings were contractually binding.


11 Whether a term is contractual and included within the contract of employment. In George v Ministry of Justice the Court of Appeal had to consider whether a term in a collective agreement

providing that prison officers would be compensated for additional hours worked with time off in lieu as soon as operationally possible and within a maximum of five weeks, had been incorporated expressly or impliedly into the officers’ contracts of employment. A collective agreement is presumed not to be legally enforceable. However it can be enforceable by terms being incorporated into the contract of employment. Often the contract will expressly state that one or more terms are incorporated. Occasionally the court may infer that the parties intended to incorporate the terms. However the term must be “apt” for inclusion. Earlier cases have held that terms which are inapt are those that govern the relationship between the employer and the union rather than the employer and the individual. In this case G argued that his employer had breached his contract by not providing TOIL (time off in lieu) within a five week period. The county court judge said there was no express term incorporating this into the individual’s contract. He was prepared to hold that there was a custom and practice of paying TOIL and that this was contractual but was not prepared to hold that it was contractual to ensure it was given within five weeks. G appealed to the Court of Appeal. A standard letter of appointment referred to a Handbook but noted that clauses were not generally part of the contract of employment. There was therefore no express term and even if there was a custom and practice, evidence noted that the timescales were not regularly enforced and this was fatal to an argument on custom and practice. The judge went on to consider whether the term was “apt” for incorporation and intended to be legally enforceable by an individual employee. He held there was nothing in the documentation to show such an intention. The agreement was no more than a stepping stone towards the creation of a “single” agreed code of principles on working practice.

12 Non-renewal of fixed term contracts. In Sellers v Buckinghamshire Healthcare NHS Trust Dr

Sellars was a consultant anaesthetist with an NHS trust until his retirement in September 2007. In October of that year he entered into a fixed-term contract that was extended on a number of occasions. On each occasion he was made aware of the date on which the relevant extension would come to an end. Several consultants worked under a similar arrangement as the trust was having difficulty securing permanent recruits. In February 2011 the trust began recruiting permanent anaesthetists. All of the fixed-term consultants were aware of this and by November 2011 five permanent anaesthetists had been recruited. Dr Sellars was informed in early December 2011 that his fixed-term contract would not be renewed when it expired at the end of the month. He claimed unfair dismissal. The tribunal was satisfied that the dismissal was because of the Trust’s service requirements and was for “some other substantial reason” ie the need to recruit full-time anaesthetists. Once they had engaged five new anaesthetists they no longer needed to continue to employ Dr Sellars. Recruiting permanent anaesthetists resulted in substantial savings and made good business sense. The dismissal was fair. In Bowes v University of Surrey a similar situation arose in a University. From October 2010 Mr Bowes was employed as an associate tutor under a series of fixed-term contracts. Associate tutors are engaged only on fixed-term contracts, often at short notice and for one academic term or year at a time. They are used to fill in gaps in the timetable and can do work that cannot be allocated to permanent staff. By the 2012/13 academic year much of his work was run by permanent staff. His fixed-term contract was not renewed. He claimed unfair dismissal. His fixed-term contracts clearly set out their duration. His contract was not renewed because the gaps he had covered had been filled by returning or newly recruited staff. It was accepted that in these difficult financial times the university was not going to pay a fee for his services when it could give the work to permanent staff at no extra costs. They also wanted to maintain consistency of delivery and quality. The tribunal noted that the Acas code of practice on disciplinary and grievance procedures does not apply to the non-renewal of fixed-term contracts. A dismissal procedure is not required because dismissal automatically follows the expiry of a fixed-term contract and its non-renewal. He lost his case. Note that a tribunal may not always hold that a dismissal procedure is not required eg if the reason for non-renewal is performance or attendance or misconduct or redundancy for example. See the case following.


In Tansell v Henley College Coventry the EAT held that a tribunal erred in dismissing a fixed-term employee’s claim for unfair dismissal on the basis that the expiry of the fixed term was the reason for dismissal. A tribunal must make a clear finding on the reason for dismissal. T was one of the college’s sessional staff employed on a fixed-term contract for the duration of the academic year. In 2010 he was issued with a final written warning for inappropriate behaviour. In June of that year the college notified the recognised trade union that it proposed to dismiss as redundant all 103 sessional staff. T was not therefore re-engaged the following academic year. T claimed unfair dismissal. The college argued that dismissal was by reason of redundancy. The tribunal held that the reason for dismissal was the expiry of the fixed term contract. T argued the tribunal had not identified the reason for dismissal. The expiry of a fixed-term contract is a dismissal but it is not a reason for dismissal. There has to be one of five fair reasons for dismissal. The EAT agreed that the tribunal had not met its statutory obligation to identify the reason for dismissal. The expiry of the contract was the dismissal itself not the reason for it. If the reason was redundancy that had to be stated clearly.

13 Compromise agreements - clearly stating excluded claims. In Shekhar Dooma Shetty v Al

Rushaid Petroleum Investment Co Mr Shetty was the chief financial controller for a group of companies under the control of Sheikh Abdullah Al-Rushaid of Saudi Arabia. He signed a release document in 2009 which was similar in purpose and effect to a compromise agreement in UK law. It contained the words “I hereby confirm that I have received all my salaries, holiday pay and termination award in full and final settlement of all my dues from ARPIC and I have no claim whatever against the company or any individuals or associated companies”. He then issued a claim in the High Court for a contractual bonus. The company said his claim was compromised by the release document. He claimed he had made a hand-written amendment to the document reserving his right to the bonus and relied on the fact that the bonus had not been specifically excluded. The High Court disagreed holding that the wording in the release documents covered the bonus. However had the release document clearly mentioned the bonus the case could not have been brought at all. It is worth remembering this when drafting settlement agreements or it may be wiser to use the template provided by the Government.

14 Settlements and tax. In Barden v Commodities Research Unit International the claimant and

defendants had reached a settlement. As part of the Compromise agreement they agreed to pay a settlement sum of £1.35 million to the claimant but the agreement was silent as to whether this was gross or net of income tax. The Chancery Division explored the legislative framework surrounding taxation of payments made in connection with termination of employment. The judge concluded that the reasonable observer would have concluded that the settlement sum would be paid net of tax. No employee expects to receive gross salary each month and in arguing the contrary position in respect of a termination payment Mr Barden was advancing a “commercial absurdity.”

15 Selection for redundancy whilst on parental leave. The CJEU in Riezniece v Zemkopibas Ministrija has considered whether in selecting for redundancy an employer can assess workers who have been off work on parental leave on different criteria to those not on leave. The CJEU has stated that since a considerably higher number of women than men take parental leave it can be discriminatory to assess such workers on criteria less favourable than applying to those not taking parental leave. Criteria must be absolutely identical to those applying to those in active service. The implementation of the criteria should not involve the physical presence of workers. In the present case Ms Riezniece was selected for redundancy whilst on parental leave. Other employees not on parental leave were assessed on the basis of their most recent performance evaluation. She had been on leave for 18 months and was assessed on the basis of her last appraisal before she went on leave. The appraisal contained different criteria. She was offered and accepted an alternative role which was abolished three months later. She argued that it was discriminatory to assess those on parental leave on the basis of different principles to those at work and that she had been prevented from returning to work in an equivalent role as her employer knew the new role was soon to be abolished.


Whilst an employer is not prohibited from assessing employees on the basis of their last period of actual work, the selection exercise must not discriminate against those on parental leave and identical selection criteria must be applied to all employees. Equally an employer may not deny employees their right to return to an equivalent or similar job by offering them a post which the employer knows is due to be abolished.

16 Redundancy and bumping. Employees often find it hard to believe that they can be made redundant

when the specific job they do still exists. You often hear individuals talking of being interviewed for their own job. This was explored in Contract Bottling Ltd v Cave. The claimants worked in the accounts department. A group of staff with diverse functions were put in what the tribunal called “a rather surprising pool” with the lowest scoring four staff made redundant regardless of job function. Remaining staff filled gaps but that meant some staff retraining to do some of the posts eg a warehouse manager in accounting. A tribunal held this was not a redundancy. However the EAT disagreed and held that this was a form of bumping. They applied the two-stage test laid down in the lead case of Murray v Foyle Meats. In the first stage there has to be a “diminution in the requirement of the business for work of a particular kind”. In this case there was such a diminution

even though it covered several types of work. Secondly that was the reason the individuals were dismissed. For other reasons it was an unfair dismissal but it was a redundancy. There was no reason why in wanting to reduce by four, a number of different job types could be included and the four poorest performers chosen. This would mean reshuffling the pack of those remaining and in some cases retraining. This is allowed. However the dismissal was unfair because of the way they had gone about assessing individuals which was largely subjective.

17 Covert surveillance and unfair dismissal. In our technological era it is not surprising that both

employers and employees use video, telephone and other such mechanisms. Should they be allowed to do so? In City and County of Swansea v Gayle Mr G was dismissed after his employer covertly obtained video evidence showing him, on five occasions, at a sports centre while he was being paid to work. The video was taken at a public place of somebody in a public place. The EAT held that fraudsters can have no reasonable expectation that their conduct is entitled to privacy. When the employee was on his employer’s time, he had no reasonable expectation that he could keep private from his employer where he was or what he was doing. There was therefore no breach of his Article 8 right of privacy.

18 100 per cent of time providing services to one client but no TUPE transfer. The case of Ceva

Freight UK Limited v Seawell Limited has now been heard by the Court of Session which has upheld the EAT judgement. Ceva provided services to Seawell who then in-sourced those services. Mr Moffat spent 100% of his time on the services. Other employees of Ceva spent part of their time providing the same services but other time providing services to other clients. The court confirmed that where activities are carried out by the collaboration of a number of employees who are not organised as a grouping having as their principal purpose the carrying out of the activities

for the client, it is not legitimate to isolate one of that number on the basis that the employee devoted all his time to assisting in the collaborative effort. The Court agreed with the comments in the Eddie Stobart Ltd v Moreman case that the concept of an organised grouping implies that there be an element of conscious organisation by the employer of his employees into a grouping (a team) which has as its principal purpose the carrying out de facto of the activities in issues.

19 Static or dynamic clauses under TUPE. The European Court of Justice has finally given its judgement in Alemo-Herron v Parkwood Leisure Ltd and unusually has not followed the judgement of the Advocate General which will be a relief to most employers


These cases concern mainly public sector transfers where clauses in an employment contract (negotiated with a trade union) are linked to negotiations with a third party. For instance a local authority negotiating with a union but via a third party such as a Joint Negotiating Body. In the NHS this would have previously been with the Whitley Council. When part of the organisation is Tuped over (often to the private sector), the new employer has to recognise the union (unless there are exceptions) and accept the collective agreement. The question remained as to whether the new employer was still bound by the third party negotiations. In previous UK cases the courts had held that such clauses are dynamic in nature so that the new employer has to abide by the third party negotiations even though he or she had no part in these negotiations. However in Werhof (an earlier referral to the European Court), the Court held that such clauses are static and oblige the new employer to follow the collective agreement as it is rather than any future changes agreed by the third parties. It was argued that it was permissible for the UK to use the dynamic interpretation under the principle that a Member State can grant rights more favourable than EU law. The European Court disagreed as it undermines the balance between the interests of the transferee in its capacity as employer and those of its employees. An employer must have the right to conduct a business and assert its interests effectively in a contractual process to which it is parties.

20 The right to be accompanied at disciplinary or grievance hearings. The Employment Relations Act

1999 provides that an individual has a right to be accompanied to a discipline or grievance procedure by a companion. S 10(3) lists the categories of companion permitted which includes a trade union official or another of the employer’s workers. In Toal v GB Oils Ltd the employer refused to allow the employee to choose a trade union official. The

employee then chose a work companion. A tribunal held that this was a breach of the regulations but that the employee had waived the breach by choosing another companion. The EAT disagreed. The right to a companion is limited only to the categories in the act and within that may be whoever the worker wishes. The EAT rejected the guidance at paragraph 36 of the ACAS Code of Practice relating to the “reasonableness” of the choice of companion. Reasonableness related to the request but not to the choice of companion. The act does not require that the choice of companion be reasonable and there is no standard by which reasonableness could be judged. The judge reminded the parties that a code cannot interpret the law but only provide guidance. Equally individuals cannot waive a statutory right.

21 Acas code and some other substantial reason. Ever since the Acas code on discipline and

grievance was rewritten, there has been doubt as to whether it applies to dismissals for some other substantial reason. It clearly does not apply to redundancy or the ending of a fixed term contract but SOSR was less clear. This has now been partially resolved in the case of Lund v St Edmund’s School, Canterbury in the affirmative. Mr Lund was a teacher who was dismissed without notice. Prior to his dismissal he had expressed dissatisfaction with his computer which he eventually dismantled. He also refused to allow a consultant who had been engaged to report on his class to observe him teaching. He went off sick with stress and on return was suspended on full pay. He was invited to a meeting informing him he was dismissed because of a breakdown of trust and confidence caused by his erratic and sometimes irresponsible behaviour. Dismissal was held to be unfair but no uplift was awarded for failure to follow the Acas code (an uplift of up to 25% is awarded for failure to follow the code). The tribunal held the reason for dismissal was SOSR and since the code was silent on whether the uplift applied to SOSR they would not apply it. On appeal the EAT held that Mr Lund’s contribution to his dismissal was not a valid reason to refuse an uplift. The uplift was to penalise an employer for not following the code. The tribunal had erred in its approach by finding that an uplift did not apply to an SOSR dismissal. The code applies where disciplinary proceedings are, or ought to be, invoked against an employee. As his conduct had been called into question and it was possible his conduct could lead to dismissal, the disciplinary procedure should have been invoked.


This case was distinguished from Ezsias v North Glamorgan NHS Trust as in that case the trust did not at any point consider dismissing Mr Ezsias for conduct that had caused a breakdown in working relationships therefore the Acas code did not apply. In other words straight SOSR may not invoke an uplift but SOSR where disciplinary proceedings ought to have been invoked it will be. In other words this is still a difficult area to define.

22 Sickness absence and holiday pay. In the absence of more news from the Government on the

implementation of its proposals on carry over of holidays due to long term sickness we have to rely on continuing caselaw. In Sood Enterprises v Healy Mr H was off work sick for a year and a half when he

resigned. A question arose as to how much holiday should have been paid on termination. The EAT held that unlike ordinary annual leave provided for by Regulation 13 of the Working Time Regulations 1998, additional annual leave, provided by Regulation 13A cannot be carried over unless there is an agreement in place between the parties which there was not. Therefore only four weeks transfers and not the additional 1.6 or any other contractual leave unless there is an agreement to the contrary. This is consistent with recent judgements of the CJEU.

23 Police disclosure of unproven allegations breached Article 8 of the European Convention on Human Rights. There are many jobs when an individual will be subject to an enhanced criminal record

check in particular jobs dealing with children or vulnerable adults. There have been several controversial cases on such checks as the police have a wide power to decide what is included in such information. This can include allegations made against someone where there has been no prosecution. Part of the police duties under s.113B(4) of the Police Act 1997, the ECRC (Enhanced Criminal Record Certificate) requires the Chief Constable of every relevant police force to provide any information to the CRB which he or she “reasonably believes to be relevant and in his or her opinion ought to be included in the certificate. This can appear unfair to an individual and there have been a number of reported case and even a Panorama investigation where allegations were spurious or made by individuals who could not be closely questioned (mentally ill patients, children etc). However the legislation was passed in the aftermath of the Dunblane massacre and the Huntly murders and so the courts have tended to allow such allegations to remain on file. Not so in R (on the application of A) v Chief Constable of Kent Constabulary. In this case a number of allegations were made against an experienced nurse working in a nursing home for vulnerable elderly residents. She was dismissed but was reinstated on appeal when no evidence supported the allegations. She was upset and resigned. The allegations were referred to the police and the Independent Safeguarding Authority (ISA) and the Nursing and Midwifery Council. The ISA decided it was not appropriate to include the nurse on the lists of persons unsuitable to work with children or vulnerable adults. She was acquitted of any criminal liability. The NMC’s investigation found insufficient evidence. All in all these appeared to be malicious allegations and there was no evidence found by any of the above bodies against her. Despite this, in response to a request for an enhanced disclosure for a future job, Kent constabulary disclosed the allegations. She was refused employment. Mrs Justice Lang in the High Court stated that the law required that Chief Constable must consider whether any interference with an individual’s private life can be justified. Where competing rights are an issue neither right takes precedence over the other. In this case the police argued that it was not about competing rights as the obligation to protect the vulnerable overrode individual rights. The judge disagreed and held that the police did have to justify. Whilst there is a positive duty on the UK to take measures to protect individuals but it has discretion as to how to give effect to that duty. A Chief Constable must take into account a number of factors in deciding whether to include information in a disclosure. What was key was credibility/reliability. The decision-maker here did not consider all of the factors. There was a great deal to demonstrate that the allegations were untrue. Consideration had been given to the risk to the vulnerable over fairness to the individual.

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