REUTERS | Denis Balibouse

Deciding whether to provide discovery of a given document can be one of the most challenging aspects of dealing with a tribunal or court claim. This is particularly so where the document raises issues of confidentiality. Refusing to disclose a document, or series of documents, can result in an application for specific disclosure. The over-arching test to be applied in determining such an application is whether an order for disclosure is necessary for fairly disposing of the proceedings. A judge considering such an application is exercising a discretion. Accordingly, to successfully challenge it on appeal, it must “exceed the generous ambit within which reasonable disagreement is possible” (Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343). Continue reading


Five women are taking the UK to the European Court of Human Rights alleging sex discrimination, due to their ineligibility to stand for by-elections in the House of Lords because of their gender. All but one of the 92 current hereditary peers are men. The list of 210 hereditary peers willing to be considered on the register of hereditary peers (for by-election) includes just one woman, Baroness Dacre. This is pretty astonishing less favourable treatment on the grounds of gender, or a marked disparate impact if considered in indirect sex discrimination terms. Continue reading

REUTERS | Ali Jarekji

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 all concerned to keep discrimination proceedings within reasonable bounds by concentrating on the most serious and the more recent allegations.” (Hendricks v Commissioner of Police [2003] IRLR 96, Mummery LJ.)

As we will see, that initial comment led to some employment judges taking increasingly drastic (and in some cases draconian) case management decisions. The EAT’s decision in Tarn v Hughes UKEAT/0064/18DM has made such interventions much less likely. This blog considers what has happened since Hendricks, the impact of Tarn, and what respondents can do now to try and limit unwieldy discrimination claims. Continue reading

REUTERS | Sergio Moraes

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) [2018] EWCA Civ 1641, the Court of Appeal has rejected this position, holding that only the time when such workers are awake for the purpose of carrying out their duties will count for NMW calculations. This will come as a relief to organisations in the social care sector, as the prospect of paying arrears as well as increased future costs had threatened to tip an underfunded sector into crisis. However, Unison has sought leave to appeal to the Supreme Court. Continue reading

REUTERS | David W Cerny

The Court of Session in Scotland has ruled in AA v Secretary of State for Business, Energy and Industrial Strategy [2018] CSOH 54 that employment tribunal claimants can seek interim protection from the civil courts while their claims for compensation are still pending. Claimants can apply for “diligence on the dependence”, to freeze a respondent’s assets, so that those assets can be used to satisfy any eventual tribunal award. The typical form of diligence on the dependence is by means of arrestment of an opponent’s bank accounts. This remedy is available where the opponent is in dire financial straits, or where there is a substantial risk that the opponent will disperse their assets. Continue reading

REUTERS | David Gray

Private landlords and letting agents frequently advertise their properties stating that they will not rent to housing benefit tenants (for some outdated reason, still often referred to as “DSS” tenants).

This causes real difficulties to such tenants whose housing choices are restricted.

This blog considers the legality of such refusals under Part 3 of the Equality Act 2010 (EqA 2010) which deals with discrimination, harassment and victimisation in the context of services and public functions. Continue reading

REUTERS | Francois Lenoir

The government White Paper on the future relationship between the UK and the EU, published last week, mostly evades the issue of the future of skilled EU workers.

The White Paper proposes “reciprocal provisions on intra-corporate transfers … based on existing arrangements with non-EU countries.” The only problem with this proposal is that there are no reciprocal arrangements with non-EU countries on intra-corporate transfers. Sponsorship of skilled workers under the points-based system (PBS) is the existing arrangement for intra-corporate transfers. The sponsorship regime is not an arrangement that has been agreed with non-EU countries. So what does the wording in the White Paper mean? Continue reading

REUTERS | Thomson Reuters

The Data Protection Act 2018 (DPA 2018) contains three provisions that allow an employer to resist subject access requests (SARs) from employees.

Confidential references become more confidential

The Data Protection Act 1998, under the heading “Confidential references given by the data controller“, stated that personal data were exempt from the right of access:

“if they consist of a reference given or to be given in confidence by the data controller for the purposes of … employment, or prospective … employment, of the data subject” (emphasis added) (paragraph 1, Schedule 7). Continue reading

REUTERS | Reuters

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 on whether the claim should be brought at all.
  • Deficiencies in the pleadings.

The importance of undertaking a rigorous analysis of a whistleblowing complaint at an early stage of the litigation is under appreciated. Whistleblowing claims are often deployed as an “add-on” for claims of ordinary unfair dismissal for high earning individuals, so as to raise the spectre of a large award during negotiations. However, if the claimant and his or her advisers have not satisfied themselves that the whistleblowing claim is at least sustainable, it is a dangerous game. Employment tribunals are alert to cynical whistleblowing complaints and, once pleaded, a weak whistleblowing claim will suffer one of two fates: withdrawal by the claimant at a later stage or dismissal by the tribunal at a preliminary or final hearing. Both outcomes carry possible costs consequences. Continue reading