The pandemic has resulted in an increasing number of respondents missing the 28-day deadline to provide a response to a claim presented in the Employment Tribunal (ET), as required by rule 16(1) of the Employment Tribunals Rules of Procedure 2013 (ET Rules). Delays in the postal service, the closure of some workplaces and a significant … Continue reading Missing the deadline for a response: what steps should a respondent take?
In PJSC Tatneft v Bogolyubov and others  EWHC 2437 (Comm), Moulder J confirmed that legal advice privilege covers communications with an in-house legal team, despite the fact that under Russian law in-house legal teams are not classified as advocates and therefore communication with in-house lawyers is not confidential. Where foreign lawyers are concerned, the … Continue reading Legal advice is privileged no matter where it’s from
In his opinion in VL v Szpital Kliniczny im. dra J. Babińskiego, Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie (Case C-16/19) EU:C:2020:479, Advocate General Pitruzzella concludes that, where an employer treats two groups of disabled people differently on the basis of an apparently neutral criterion, there may be a breach of the principle of equal … Continue reading VL and indirect discrimination
It seems that every week since the end of March has been marked by a further update to the government’s guidance regarding the Coronavirus Job Retention Scheme (CJRS). The scheme was announced on 20 March 2020 and the first guidance as to how it would operate published on 26 March 2020. Yet it was a … Continue reading Guidance on the Coronavirus Job Retention Scheme: what is its legal effect?
Over the last four months or so, we have all become rather more familiar than we would have liked with COVID-19 (or coronavirus, as it is better known), with a return to masks on the Underground (retro from the SARS virus (2003) and swine flu (2009)), suspicious glances at anyone with a cough and endless … Continue reading Coronavirus (COVID-19): key employment law issues
This is the question which the employment tribunal has recently grappled with in Forstater v CGD Europe and others. Ms Forstater was a researcher who worked for the think tank CGD. She claimed that her contract was not renewed because of views she expressed on social media and elsewhere regarding transgender persons and proposed changes … Continue reading Does a belief that sex is biologically immutable amount to a philosophical belief protected by the Equality Act 2010?
In 2017/2018, HMRC identified a record £15.6 million in national minimum wage (NMW) underpayment. More than 200,000 workers were found to have been underpaid, the highest number since the NMW came into force in 1999. Employers were fined £14 million, also a record amount, and more than three times the previous year‘s figure. With the … Continue reading Directors beware
Claimants and respondents in the employment tribunal should always think carefully before applying for the tribunal to use its power under rule 32 to order the attendance of a witness to give evidence. While it can be a powerful course of action, there is a significant risk that such a witness will be hostile and … Continue reading Applications for witness orders: opportunities to respond
Introduction and substance of the claim In Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE (Case C-55/18) EU:C:2019:402, a group action was brought by a number of trade unions. The aim of the claimants was to obtain a declaration of the existence of an obligation on Deutsche Bank SAE to set up … Continue reading Confederación Sindical de Comisiones Obreras (CCOO) v Deutsche Bank SAE: practical implications and recording working time
In The Mayor & Burgesses of the London Borough of Lambeth v Simone Agoreyo  EWCA Civ 322, the Court of Appeal confirmed that suspension of an employee is to be treated like any other alleged breach of the implied term of mutual trust and confidence: the question is whether the employer’s conduct, without reasonable … Continue reading Reasonable and proper cause for suspension
At the end of 2018, the government announced the Good Work Plan, which develops its response to the Taylor Review. It describes the plan as “the biggest package of workplace reforms for over 20 years”. This blog considers some of the more eye-catching proposals aimed at tackling “one-sided flexibility” in the working relationship, including the … Continue reading The Good Work Plan: what next for employment law?
There are some phrases which make an employment lawyer’s heart sink, and pride of place amongst them undoubtedly goes to “but it was just office banter”. Usually a signal that something offensive has indeed gone on within the workplace, it might be thought that short shrift is likely to be given to such a defence … Continue reading Office banter: a dangerous path to tread?
Until recently, a series of EAT decisions stretching back more than a decade appeared to establish that some sleep-in workers were entitled to be paid the national minimum wage (NMW) for every hour of their shift, including hours when they were asleep. In Royal Mencap Society v Tomlinson-Blake (Care England intervening)  EWCA Civ 1641, … Continue reading Sleeping on the job? Court of Appeal overturns EAT on national minimum wage for sleep-in workers
Those interested in the tests for employment status continue to be rewarded by the stream of gig economy cases working their way upwards from the Employment Tribunal (ET), through the Employment Appeal Tribunal (EAT) and beyond. In parallel, the Tax Chamber of the First-tier Tribunal (FTT) has been grappling with the issue of employment status … Continue reading Expectations as obligations: woolly thinking on mutuality of obligation
Employment tribunal claims dealing with the issue of personal liability are being considered with increasing frequency. Claimants often only consider such claims due to concerns over the possible insolvency or dissolution of a former employer. In this situation the opportunity to pursue a claim against an individual may be the only means to obtain a … Continue reading Personal liability: indirect discrimination and Maclay
Last month’s revelations about the Presidents Club fundraising dinner, at which female hostesses were reportedly harassed by male guests, has raised questions about the third party harassment provisions under the Equality Act 2010 (EqA 2010). While the relevant provisions were repealed from 1 October 2013, there has been some suggestion that they should be re-enacted. … Continue reading The Presidents Club scandal and third party harassment
2017 has seen a series of cases concerning limb (b) worker status arising from the ‘gig economy’. Putative workers have claimed entitlements to be paid the minimum wage, holiday pay and so on, on the basis that they meet the definition of a ‘limb (b)’ worker, viz. a person working under a contract “whereby the … Continue reading Substitution and worker status
A recent series of cases before the EAT have highlighted the complexities faced by respondents when determining whether to challenge the ET’s jurisdiction where a claimant has failed to comply with the EC requirements.
The Court of Appeal has considered the meaning of the words “in the public interest”, which were added to whistleblowing legislation by the Enterprise and Regulatory Reform Act 2013. While guidance was provided to employment tribunals, it is clear that a fluid approach should be adopted in considering what is meant by “a reasonable belief … Continue reading Whistleblowing protection: a fluid approach
Following Pereira de Souza v Vinci Construction (UK) Ltd  EWCA Civ 879, it is clear that the Simmons v Castle uplift of 10% should be applied to awards of compensation for injury to feelings in discrimination claims in the employment tribunal. In this blog we consider whether the Simmons v Castle uplift should be … Continue reading Uplifts: where to next?
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
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  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
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
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?
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?
Recent EAT decisions involving healthcare professionals demonstrate tensions in the interpretation of the extended definition of “worker” for the purposes of whistleblowing protection.
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?
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.
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
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  ICR 391 HL (discrimination) and Ezsias v North Glamorgan NHS Trust  ICR 1126, CA (whistleblowing). But is this really the case in practice?
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
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.
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?
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?
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