Covert recordings and the unauthorised storing of confidential information by employees
An employee is not permitted to take and keep their employer’s information for the purposes of bringing a claim against their employer. If an employee does so, their employer will ordinarily be entitled to an injunction for the return of such information. This blog looks at some of the case law and considers how employees … Continue reading Covert recordings and the unauthorised storing of confidential information by employees
Uber: form, substance and judicial intervention
The long running saga of whether Uber drivers are workers has been decided in the Court of Appeal and a split court has granted permission to appeal. This blog analyses the differing approaches in the Court of Appeal and the arguments that are likely to be advanced before the Supreme Court.
Privilege in internal investigations
Internal investigations are increasingly being conducted by companies not only on regulatory grounds but also in response to employment issues such as whistleblowing and discrimination allegations. In SFO v ENRC [2018] EWCA Civ 2006, the Court of Appeal has significantly widened the scope of legal professional privilege in the context of an internal company investigation. … Continue reading Privilege in internal investigations
Limiting discrimination claims: what happens now?
There are real difficulties for everyone involved (including the tribunal) in dealing with diffuse claims of discrimination, which indiscriminately allege various different types of discrimination, harassment and victimisation, and take a scatter gun approach to the facts underlying such claims. Such difficulties led the Court of Appeal to say that “Attempts must be made by … Continue reading Limiting discrimination claims: what happens now?
Analysing and pleading whistleblowing claims following the Court of Appeal’s decision in Kilraine
As most employment lawyers will testify, whistleblowing claims are easy to allege, but hard to prove and even harder to win. Much of this difficulty stems from the fact that, in my experience, whistleblowing claims are often not properly analysed prior to lodging the ET1. This results in: A failure to make an informed decision … Continue reading Analysing and pleading whistleblowing claims following the Court of Appeal’s decision in Kilraine
Witness contact: how not to handle it
It is common in litigation for a witness to be in “purdah” during a break in their evidence. The witness is warned not to discuss their evidence with anyone during any such break. While this is usually observed, Chidzoy v BBC UKEAT/0097/17 shows what can happen when it is not.
Legal advice privilege and HR advisers
The decision of the employment tribunal in Lingard v Leading Learners ET/2401985/17 will impact on assertions of legal advice privilege (LAP) in the context of HR consultants employed by a law firm. In this blog, Nicholas Siddall (who acted for the claimant) analyses the decision and its implications.
Under his eye: covert investigations and the employee’s right to privacy
Two recent decisions of the European Court of Human Rights (ECtHR) have considered how the privacy rights of employees can be protected during covert disciplinary investigations. Here we explain those cases and the guidance that can be taken from them.
The Problem of Iago: Bringing or defending a tainted information whistleblowing claim
In my last blog post, I considered the cases of Royal Mail Ltd v Jhuti [2017] EWCA Civ 1632 and International Petroleum Ltd v Osipov [2017] UKEAT/0058/17 and the difficulties faced by both claimants and respondents in ‘tainted information’, or ‘Iago’, cases, where employers are manipulated into dismissing employees by their co-workers . In this … Continue reading The Problem of Iago: Bringing or defending a tainted information whistleblowing claim
The Problem of Iago: Whistleblowing and Tainted Information
‘Tainted information’, or ‘Iago’, cases, in which employers are manipulated into dismissing employees by their co-workers, have thrown up difficult questions for Tribunals in both whistleblowing and discrimination claims. The latest guidance has been given in two recent cases: Royal Mail Ltd v Jhuti [2017] EWCA Civ 1632 and International Petroleum Ltd v Osipov [2017] … Continue reading The Problem of Iago: Whistleblowing and Tainted Information
Voluntary overtime and holiday pay: the sting in the zero hours tail
Under section 221-224 of the Employment Rights Act 1996 (ERA 1996) the amount an employee receives in contractual holiday pay will depend on whether they have “normal working hours” or not under their contract. Under the Working Time Regulations 1998 (SI 1998/1833) (WTR) the rate of holiday pay is expressed as requiring the same as … Continue reading Voluntary overtime and holiday pay: the sting in the zero hours tail
When should the merits of a case be assessed for costs purposes?
As long ago as 1974 a benevolent approach to the assessment of the merits of a case was adopted in the Employment Tribunal (ET). Sir High Griffiths sitting in the NIRC, when addressing an application for costs, stated the following: “Ordinary experience of life frequently teaches us that that which is plain for all to … Continue reading When should the merits of a case be assessed for costs purposes?
Employment Tribunal Costs: The Increased Relevance of the CPR?
The Employment Tribunal Rules (ET Rules) and the CPR The amount of a costs order in the employment tribunal (ET) can be made subject to detailed assessment, to be carried out (either by the ET or by a county court) in accordance with the Civil Procedure Rules 1998 (CPR) (rule 78, ET Rules). It was … Continue reading Employment Tribunal Costs: The Increased Relevance of the CPR?
Clocks and compliance: recalculating time limits for early conciliation
If there is something that employment lawyers can be sure of in the uncertain world of employment law, it is that attempts to prescribe dispute resolution procedures only generate further dispute. That was the fate that befell the statutory disciplinary and grievance procedures that were unceremoniously axed in 2009. The Acas early conciliation (EC) procedures … Continue reading Clocks and compliance: recalculating time limits for early conciliation
Perceived and alleged disability: who does the Equality Act protect and how?
Peninsula Business Services Limited v Baker is an interesting case in its exploration of the interface between perceived, attributed, associative and alleged discrimination and how they fit into the framework of the Equality Act. The case Mr Baker was not (or at least was not found to be) disabled. He had, however, told the Respondent … Continue reading Perceived and alleged disability: who does the Equality Act protect and how?
Approaching deposit orders after H v Ishmail
Deposit orders can be a useful tool for respondents facing unmeritorious claims. This is particularly true for discrimination or whistleblowing claims, which are notoriously difficult to get struck out. A separate deposit order can be made in respect of each allegation in a claim, not just each claim, and this can be useful where the claims … Continue reading Approaching deposit orders after H v Ishmail
Judicial assessments: more new clothes for the emperor?
On 3 October 2016, the President of the Employment Tribunals, Judge Brian Doyle, issued presidential guidance on a newly introduced process of “judicial assessment“. Are such assessments likely to add anything to the employment lawyer’s toolkit for resolving disputes? Or are they likely to become another footnote in the history of tribunal practice, initially heralded … Continue reading Judicial assessments: more new clothes for the emperor?
Has the Employment Tribunal now lost the power to ever reject an abusive claim form?
A recent decision of the EAT has removed entirely the ability under the Employment Tribunal Rules for an employment judge to reject an ET1 that cannot sensibly be responded to before a respondent is required to file an ET3. Where does that leave respondents?
The treatment of migrant workers: a patchwork of protection
June was a bumper month in the developing field of claims concerning vulnerable migrant workers who are badly treated by their employers. English law offers a patchwork quilt of contractual and statutory protections. One of the challenges for advisers and representatives is identifying the most appropriate causes of action for the treatment received.
Requests for further information: help or hindrance?
Inadequate pleadings are a common occurrence in employment tribunals. Problems can range from cases consisting of the barest generalities to documents containing such a morass of detail that it is difficult to know what the claim is really about.
Late Early Conciliation: conflicting tribunal decisions
Can a claimant provide an Early Conciliation (EC) number after a claim has been issued? That question is under consideration in Ahmed v Arearose Limited UKEAT/0314/15 (which has been remitted to an employment tribunal by the EAT).
The Future of Employment Tribunals: a need for change?
Dodge the tumbleweed blowing down the corridors, enter any Employment Tribunal (ET) waiting room and you will almost certainly see at least one employment lawyer sitting, staring at the dregs in their polystyrene cup looking to see whether the tealeaves will reveal if and when ET litigation will rise again, or whether the end of … Continue reading The Future of Employment Tribunals: a need for change?
The implications of the Court of Appeal’s decision in Griffiths on disability-related absence claims
Disability-related sickness absence is a perennial source of anxiety for employment lawyers, managers, human resources professionals, trade union representatives and employees. What does the law require when an employee is thrust into absence management procedures by virtue of absences caused by a disabling condition? How much leeway should be requested or granted? How should such a … Continue reading The implications of the Court of Appeal’s decision in Griffiths on disability-related absence claims
Provisions, criteria and practices
PCPs seem to strike fear in the heart of even the most seasoned employment practitioner. “Producing Complete Panic” would be more apt.
A stricter approach to pleadings and amendments in the employment tribunal?
Many of those who have spent years litigating in the employment tribunals will be as familiar as I am with complaints from clients that the tribunals are “kangaroo courts”. This article is not the forum to dispute (or confirm) that generalised complaint. However, whether or not you have heard (or made) such complaints, it is … Continue reading A stricter approach to pleadings and amendments in the employment tribunal?
Alternatives to the employment tribunal: taking a bespoke approach
In the post-fees era, there is anecdotal evidence of a couple of emergent trends in employment tribunal litigation. Firstly, there is speculation that some hearings are being listed for longer than they would have been in the pre-fees era. Secondly, reductions in the number of panel members due to funding cuts may now be leading … Continue reading Alternatives to the employment tribunal: taking a bespoke approach
Extending time because of early conciliation
“Mr Anderson, you’re obviously out of time!” Not a line from “The Matrix”, but a treasured memory from a recent appearance in the East London employment tribunal. This is just one example of times when I have had to fight over the proper application of the extension of time provisions where there has been early … Continue reading Extending time because of early conciliation
Handling the press at employment tribunal hearings
Most, though not all, hearings which take place at the employment tribunal are open to the public. Accordingly, a member of the press is entitled to sit in and observe such proceedings in the same way as any other member of the public. A party’s first contact with the press may not be the more … Continue reading Handling the press at employment tribunal hearings
Last minute reductions to hearing time: planning for the unexpected
It was recently common for tribunals to tell the parties the afternoon before the first day of a final hearing that the hearing would not go ahead because there were insufficient judicial resources. Alternatively, the parties (and their witnesses) would arrive on the first day and have to wait until later that day to find … Continue reading Last minute reductions to hearing time: planning for the unexpected
Telephone hearings: pitfalls and preparation
Since the introduction of the 2013 Rules of Procedure I have found that employment tribunals are more prepared to conduct hearings by electronic communication; in particular by telephone. This extends not just to case management (for which telephone hearings have always been a frequent occurrence) but also to the determination of preliminary issues. There have … Continue reading Telephone hearings: pitfalls and preparation
Costs awards in the tribunal: the importance of a well-drafted costs warning letter
My recent experience in employment tribunals up and down the country has reinforced the importance of a well-drafted costs warning letter in persuading a tribunal to award costs to the winning party. I have found employment judges particularly receptive to costs applications where a costs warning letter: Clearly sets out the factual basis for the … Continue reading Costs awards in the tribunal: the importance of a well-drafted costs warning letter
Strike-outs and preliminary hearings
Following the introduction of the new ET Rules, my recent experience of the London South employment tribunal is that they have developed a practice of sending out certain pro forma letters in advance of a preliminary hearing. There appear to be two types of pro forma letter: The first notifies the parties that the forthcoming … Continue reading Strike-outs and preliminary hearings
