REUTERS | Ali Hashisho

Does an employer directly discriminate against its employee because of his or her age by ceasing PHI payments prior to the employee reaching the greater of age 65 or their state pension age?

The employment tribunal (ET) in Whitham v Capita Insurance Services Ltd ET/2505448/12 answered this question with an emphatic yes. However, the EAT in Smith v Gartner UK Ltd UKEAT/0279/15/LA has seemingly given a different impression. The point was not properly ventilated in Smith v Gartner and, further still, the EAT’s discussion in respect of a claim under section 39(2) of the Equality Act 2010 (EqA 2010) is strictly obiter. The law is therefore in a state of flux and an appellate decision is required to settle the issue.

This blog is limited to the question of direct age discrimination. Be aware that such cases frequently lead to other arguments such as unlawful deduction from wages and indirect discrimination. Continue reading

REUTERS | Thomson Reuters

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 by the employment tribunal. In fact, background context is key, and a culture of “banter” can, in the right circumstances, help to explain potentially discriminatory conduct and protect an employer from a discrimination claim. Such was the outcome at both first-instance and appeal to HHJ Stacey in Evans v Xactly Corporation Ltd UKEAT/0128/18. Continue reading

REUTERS | Yuriko Nakao

In Timis v Osipov [2018] EWCA Civ 2321, the Court of Appeal confirmed that employees who have been dismissed for making a protected disclosure can bring a claim against an individual co-worker for the detriment of dismissal, and a claim for vicarious liability against the employer, in addition to an unfair dismissal claim. 

While it is difficult to argue against the Court of Appeal’s reasoning, the decision creates some anomalies, and will raise interesting tactical questions for claimants and respondents alike.  Continue reading

REUTERS | Shamil Zhumatov

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. It will now be easier for the employer to assert privilege over employees’ witness statements and other documents generated in an investigation. Continue reading

REUTERS | John Kolesidis

Look no further than this press release from BEIS on 1 October 2018 to gauge the government’s enthusiasm for highlighting that it has been thinking about policy and issues other than Brexit over the last couple of years:

“The government has announced plans to ensure that tips left for workers will go to them in full. While most employers act in good faith, in some sectors evidence points towards poor tipping practices, including excessive deductions being made from tips left by customers. New legislation, to be introduced at the earliest opportunity, will set out that tips must go to the workers providing the service.”

Continue reading

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