Posts from Devereux

Lapsed disciplinary warnings and dismissal: a new approach

Everyone knows that it is always impermissible to take a lapsed warning into account when deciding whether to dismiss an employee. According to both the Court of Appeal and the Employment Appeal Tribunal, “everyone” is wrong. As set out in Stratford v Auto Trail VR Ltd UKEAT/0116/16, the position is actually far more nuanced than … Continue reading Lapsed disciplinary warnings and dismissal: a new approach

Court of Appeal clarifies scope of whistleblowing protection

The Court of Appeal has recently clarified the scope of whistleblowing protection provided by Part IVA of the Employment Rights Act (ERA) 1996 in Day v Health Education England & others [2017] EWCA Civ 329. Whistleblowing protection is afforded to employees and workers, and an extended definition of worker set out under section 43K ERA … Continue reading Court of Appeal clarifies scope of whistleblowing protection

Industrial action and employees’ journeys to work: implications for employers

The recent rejection by train drivers of the deal offered to end the long running industrial action affecting Southern rail raises the spectre of further strikes and additional disruption to many people’s journeys to work. There have been reports of businesses closing and employees losing jobs, as well as suggestions that industrial action may spread … Continue reading Industrial action and employees’ journeys to work: implications for employers

Publication of Employment Tribunal judgments: what next for employers?

Last week, the Ministry of Justice (‘MOJ’) formally launched its website of Employment Tribunal (‘ET’) decisions. Presently, the website contains around 140 past decisions from 2015 onwards. Future ET decisions handed down in England, Wales and Scotland will be uploaded onto the website. This post considers what impact the publication of decisions may have upon … Continue reading Publication of Employment Tribunal judgments: what next for employers?

Anonymity: a right to privacy in the employment tribunal?

Claimants and respondents in employment tribunal litigation are frequently concerned about details of their cases being public, or worse, being reported by the press. Employment tribunals have a discretionary power to make an order preventing or restricting the public disclosure of any aspect of proceedings (rule 50(1), Employment Tribunal Rules of Procedure 2013). In making … Continue reading Anonymity: a right to privacy in the employment tribunal?

Agency workers blowing the whistle: time to revisit the scope of protection?

Recent EAT decisions involving healthcare professionals demonstrate tensions in the interpretation of the extended definition of “worker” for the purposes of whistleblowing protection.

Setting the agenda – what’s the issue?

After the ET1 and ET3 are filed, the employment tribunal will require parties to attend a preliminary hearing to determine the issues in the claim. The notice of hearing states that the parties should submit an Agenda to the tribunal in advance of the hearing, but that in any event, parties are permitted to make … Continue reading Setting the agenda – what’s the issue?

How to restrain a vexatious employment tribunal litigant

Vexatious litigants in the employment tribunal can be an expensive and time-consuming problem for respondents. The employment tribunals’ powers to restrain such vexatious litigants are limited. This is particularly the case in discrimination proceedings where the threshold for strike-out is very high.

No prospects? Deposit orders in discrimination and whistleblowing cases

In my last blog post I looked at the tribunal’s power of strike out and debunked the myth that strike-out is never appropriate in discrimination and whistleblowing claims. There will, however, be cases that the tribunal may not be minded to strike out, but in which it will be willing to make a deposit order … Continue reading No prospects? Deposit orders in discrimination and whistleblowing cases

No prospects? Strike out in discrimination and whistleblowing cases

Respondents are often perturbed, and claimants buoyed, by the tribunal’s seeming reluctance to strike out discrimination and whistleblowing cases, based on the decisions of appellate courts in Anyanwu v South Bank University [2001] ICR 391 HL (discrimination) and Ezsias v North Glamorgan NHS Trust [2007] ICR 1126, CA (whistleblowing). But is this really the case in practice?

Dealing with whistleblowing claims: tips for in-house lawyers

In recent years, there has been considerable government intervention in whistleblowing. Responding to the perception that whistleblowing legislation was being exploited as a means of avoiding the compensatory cap for unfair dismissal claims, the government introduced a requirement that a disclosure is not protected unless it is reasonably believed to be made in the public … Continue reading Dealing with whistleblowing claims: tips for in-house lawyers

Early conciliation: a practical approach

The Acas early conciliation (EC) regime has been in place for approximately 18 months so this is a good moment to pause and reflect on how the regime has affected employment tribunal (ET) litigation. The comments below are based on my own experiences and those shared with me anecdotally by my instructing solicitors.

Disciplinary investigations: when is HR advice appropriate?

In the widely reported case of Ramphal v Department for Transport UKEAT/0352/14, the Employment Appeal Tribunal (EAT) upheld a finding of unfair dismissal due to the inappropriate level of interference in the dismissal process by an HR manager. The EAT’s judgment included a table showing the extent of changes made to various drafts of an … Continue reading Disciplinary investigations: when is HR advice appropriate?

Dropbox: an acceptable method of serving documents on the EAT?

How can an appeal be lodged by email to the EAT if the attachments exceed the email size limit the EAT will accept? Will an appeal be properly constituted if a link is provided to a Dropbox location where the required attachments can be accessed?

Excluding documents from the bundle

The employment tribunal routinely makes case management orders directing that the parties agree the contents of the bundle to be produced for trial. However, on occasion, disputes arise between parties as to which documents should be included in the bundle. Frequently, the source of the dispute is an unrepresented claimant’s insistence that extensive documentation of … Continue reading Excluding documents from the bundle