REUTERS | Pilar Olivares

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 in the public interest”.

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Uplifts: where to next?

Following Pereira de Souza v Vinci Construction (UK) Ltd [2017] 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 applied to injury to feelings awards in whistleblowing claims. Continue reading

REUTERS | Eddie Keogh

After the recent landmark Supreme Court judgement on ET fees, which confirmed the importance of access to justice, we have seen reams of commentary on the possible implications and expected outcomes for claimants and respondents, and their lawyers.

What about the in-house perspective?

At BT we conduct our employment tribunal claims in-house, including all advocacy. Our in-house team therefore has a unique take on the impact of the introduction of ET fees in 2013 and their subsequent withdrawal, both in terms of the number of claims received and the way they were conducted.

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In Green v London Borough of Barking & Dagenham UKEAT/0157/16, the EAT held there should be no modification to the application of section 98(4) of the Employment Rights Act 1996 (ERA 1996), which tests the fairness of the dismissal, in the case of redundancy where existing employees must compete for a reduced number of new roles within the same organisation.


The claimant was one of three employees in a team performing broadly similar roles at the same level. In October 2012, the respondent proposed a restructure of the team. This involved the deletion of the three posts and the creation of two posts for which the existing three jobholders would compete by way of a written test and interview. As the lowest scoring candidate, the claimant was not offered a new role and was selected for redundancy. The claimant appealed against her redundancy, but the respondent refused to hear her appeal on the basis that it was not a redundancy selection but an assimilation process and as such there was no right of appeal on that issue.

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REUTERS | Jim Young

Employment tribunals. In a momentous decision, the Supreme Court declared that employment tribunal and EAT fees are unlawful under domestic and EU Law. The Court quashed the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893) on the basis that it prevents access to justice. The effect is that all fees paid since 29 July 2013 will be reimbursed by the government and fees are no longer payable for future claims. The government has accepted the ruling and is putting in place systems for reimbursing all fees paid to date.

In two contrasting decisions, the EAT considered whether a difference in the respondent’s name on the EC certificate and the claim form was a “minor error” with the result that the claim could proceed. The EAT upheld an employment tribunal’s decision to reject an ET1 where the respondent’s name substantially differed to that on the EC certificate.  However, in a case with essentially the same facts, a differently constituted EAT held that incorrectly naming the respondent on the EC certificate was a “minor error” which should have been overlooked.

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REUTERS | Russell Cheyne

Many Scottish employment lawyers advise on employment law in England & Wales, and many English practitioners deal with cases north of the border. The majority of employment laws are based on UK-wide legislation so provided that the representative is aware of the areas of differences, especially when it comes to tribunal procedure, this doesn’t pose too much of a problem. However, certain issues and areas of law, particularly those based on the common law, have a distinct Scottish perspective and can pose a real risk for English lawyers dipping their toes into an unfamiliar jurisdiction. One of these risk areas is the enforcement of restrictive covenants.

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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 see once the dust of battle has subsided was far from clear to the combatants when they took up arms. We do not therefore attach undue weight to the fact that at the end of a skilful cross-examination on the last day of the hearing the employee was forced to concede that in the circumstances as they had emerged the employers had acted reasonably in dismissing him.” (E. T. Marler Ltd v Robertson [1974] ICR 72.) Continue reading


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 traditionally understood that this application of the CPR to ET procedure was limited to the assessment of the level of costs, as opposed to the separate question of whether costs should be ordered at all. As reflected in the CPR, “costs follow the event” in the civil courts.  In contrast, the ET has a limited costs jurisdiction, which depends on the existence of improper or unreasonable conduct and the exercise of discretion in the presence of such conduct as to whether to award costs. Continue reading

REUTERS | Lucy Nicholson

The Taylor Review of Modern Working Practices has unsurprisingly elicited a range of views. Some believe it is a missed opportunity for radical change, while others bemoan a worker-friendly approach that will stifle much-needed innovation in a post-Brexit economy. There are also many who think it has struck the right note. My own perspective lies somewhere in the middle. Continue reading

REUTERS | Faisal Mahmood

It’s commonly observed that equal pay legislation has been in place for over 40 years but a significant gender pay gap stubbornly persists. One of the likely reasons for this is that equal value claims are dauntingly complex, long-running and expensive. While claimants in most employment tribunal litigation can expect a result comfortably inside 12 months, equal pay litigation can go on (and therefore have to be continuously funded) for years. Some of the high-profile claims against Asda, for example, started in 2008 and there is no end in sight, even at employment tribunal level, after which subsequent escalating appeals seem inevitable. Continue reading