Thanks to  Naomi Cunningham  of Outer Temple Chambers for preparing this case summary If a contractual entitlement to enhanced redundancy pay is determined by reference to a statutory scheme that discriminates on grounds of age, does that give the...

Thanks to Rosalie Snocken of Old Square Chambers for preparing this case summary. Can a court intervene to restrain an employer from requiring an employee to face a charge of potential gross misconduct at a disciplinary hearing if the conduct...

A programming bug appears to have arisen with the online ET1 form. On the first main page of the form (screenshot below), the online system is insisting, wrongly, that the required information is not completed - and is not letting users progress to the next...

Thanks to Lisa Joyce of DTM Legal LLP for preparing this case summary Does an equal pay claim have to establish either direct or indirect discrimination? Not always, if the reasons provided by the employer for inequality of pay are not accepted...

The Department for Business, Innovation and Skills has published its  seventh statement of new regulation . This states that the  Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2013...

Thanks to Ed McFarlane of Deminos HR for preparing this case summary Was the EAT correct to hold in Toal v GB Oils Ltd that a worker's right to be accompanied at a disciplinary or grievance hearing under section 10  Employment...

Thanks to  Sian McKinley  of Cloisters for preparing this case summary Do the  Agency Workers Regulations 2010  apply to agency workers placed with an end user indefinitely? No, holds the EAT in  Moran v (1) Ideal Cleaning Services...

Thanks to Barnaby Large of No.18 Barristers Chambers for preparing this case summary. Is a person who is unequivocally classified in his written contract as being in business on his own account incapable of being a worker for the purposes of...

Thanks to Joanna Cowie of SA Law for preparing this case summary Can an employer rely only on an Occupational Health Report when deciding whether an employee is disabled? No, held the Court of Appeal in  Gallop v Newport City Council . An...

Thanks to  Neil Addison  of New Bailey Chambers for preparing this case summary Was an employment tribunal justified in concluding that a belief that Christians should not work on a Sunday was not a 'core' part of Christianity? No, held...

Thanks to  James Medhurst , Trainee Solicitor, of Slater & Gordon Lawyers for preparing this case summary Should commission be taken into account when calculating holiday pay? Yes, according to the opinion of Advocate-General Bot in the CJEU...

Thanks to  Bonike Erinle  of Farrar’s Building for preparing this case summary What is the critical question to be decided in dismissals on grounds of ill-health? "Whether any reasonable employer would have waited longer before...

Thanks to James English of Samuel Phillips solicitors for preparing this case summary Could an ordained minister of the Church of England be an employee or a worker? Possibly, held the EAT, in  Sharpe v The Worcester Diocesan Board of...

Thanks to Lucy Boyle of 12 King’s Bench Walk Chambers for preparing this case summary The Government has published its  response  to the Consultation on the administration of Shared Parental Leave and Pay . The policy is being...

Thanks to Joanna Cowie of SA Law for preparing this case summary In response to a steady flow of scandals and allegations of 'gagging' across the public and private sectors, the Whistleblowing Commission yesterday published its...

Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Did Christian hotel owners (the Appellants) Mr & Mrs Bull unlawfully discriminate against civil partners Hall and Preddy by refusing to let them share a double bed on the...

Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary. If an employee's solicitor informs her of her dismissal a day before the employee reads a dismissal letter, is the effective date of termination the date that the...

Thanks to  Sophia Berry  of Littleton Chambers for preparing this case summary Is an individual who provides services to an end user through a limited company protected by the Equality Act 2010? No, holds the EAT in  Halawi v World Duty...

Thanks to  Adam Turner  of Berwin Leighton Pasiner for giving permission to reproduce this.   Berwin Leighton Paisner have produced a first-rate timeline of past and forthcoming employment law changes.  Not much else to say - you can...

Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary What is the meaning of the "single specific event or task of short term duration" exception to service provision change TUPE transfers? The...

Thanks to  Paul Smith  of Broadway House Chambers for preparing this case summary Can a tribunal consider whether a repayment clause is an unlawful penalty?  Yes, holds the EAT in  Cleeve Link Ltd v Bryla . The employer had paid...

Thanks to  James Bickford Smith  of Littleton Chambers for preparing this case summary Is a company administrator able to make dismissals for economic, technical or organisational reasons (ETO) and then sell the business on without passing TUPE...

Thanks to  Naomi Cunningham  of Outer Temple Chambers for preparing this case summary Do they also serve who only sleep? Yes (sometimes), said the EAT in  Whittlestone v BJP Home Support Ltd . W was a care worker. She was paid £6.35...

Thanks to Lisa Joyce of DTM Legal LLP for preparing this case summary If a Claimant asserts that he did not have mental capability to bring a claim in time, does a tribunal have jurisdiction to hear a claim brought as soon as the Claimant was able...

Thanks to James English of Samuel Phillips solicitors for preparing this case summary Can a legal expense insurer insist that the insured use its panel lawyers? No, held the CJEU in  Sneller -v- DAS , an important case strengthening an...

Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Can an employee claim income tax relief on legal costs (and an adverse costs award) arising from his employment tribunal claim? No, held the First Tier Tribunal Tax Chamber,...

Thanks to Craig Gordon of HR Bullets, who has given permission to reproduce a summary he prepared on his  website .   In light of BIS-sponsored research showing that over half of those awarded a tribunal pay out don’t actually receive what...

Following  consultation on changes  to the Transfer of Undertakings (Protection of Employment) Regulations 2006, the government has now published draft regulations to implement its proposed amendments.   These are intended to be laid...

Thanks to Lucy Boyle of 12 King’s Bench Walk Chambers for preparing this case summary Does making Jobseeker's Allowance conditional on work or work-related activity constitute forced labour contrary to article 4 of the European...

Thanks to Joanna Cowie of SA Law for preparing this case summary Did an employer breach its duty to make reasonable adjustments by only offering a disabled employee reduced hours for a fixed period? No, says the Employment Appeal Tribunal in ...

Thanks to  Paul Smith  of Broadway House Chambers for preparing this case summary If diplomatic immunity prevents an employee from obtaining redress through an employment tribunal, does this breach the employee's rights under Article 6 of the...

The Employment Appeal Tribunal has published  its decision  giving the Secretary of State leave to appeal in USDAW v Woolworths, on the definition of "establishment" for the purposes of collective redundancy consultation. As noted in an...

Thanks to  Rad Kohanzad  of Serjeants’ Inn Chambers for preparing this case summary The EAT in  Plymouth City Council v White  has reminded tribunals about the correct approach to take in considering an application for the...

Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary When an employee states that "I have no alternative but to resign my position", are these words ambiguous? No, says the EAT in  Secretary of...

Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary A restrictive covenant prohibited an ex-employee from approaching his former employer's customers to solicit business from them for six months post-termination, if the...

Thanks to Lisa Joyce of DTM Legal LLP for preparing this case summary Can an employer consider a potentially redundant candidate for an alternative role fairly, if one candidate is aware of the full job description but the other is not?  ...

Thanks to Tamar Burton of Cloisters Chambers for preparing this case summary In deciding if there had been less favourable treatment in an age discrimination claim, was the employment tribunal correct to take into account differences between a Claimant and...

Thanks to Miranda de Savorgnani of Outer Temple Chambers for preparing this case summary In order to successfully bring a claim for constructive dismissal, must the contractual breach by the employer be the principal reason for the employee's...

Thanks to  Sarah Fitzpatrick  of Collingwood Legal for preparing this case summary Did an employment tribunal make an error in law when it determined that a low level of control exercised over workers precluded their being an employment...

Thanks to Joanna Cowie of SA Law for preparing this case summary Can the common law doctrine of frustration be applied to end a disabled employee's employment contract? Yes, providing the duty to make reasonable adjustments has not been...

Thanks to  Will Young  of Outer Temple Chambers for preparing this case summary What is the correct approach for a tribunal to take in relation to an application for costs or wasted costs? It must be fair (with both sides having full...

Section 16 of the  Enterprise and Regulatory Reform Act 2013  empowers tribunals to impose financial penalties on employers where they breach a worker's rights and there are "aggravating features".  The penalty will be 50% of any...

Number 10 Downing Street has announced that the new Minister of State for Employment is to be Conservative MP Esther McVey (promoted from being minister for disabled people).  She replaces Mark Hoban MP, who in turn replaced Chris Grayling in September...

Thanks to  Rad Kohanzad  of Serjeants’ Inn Chambers for preparing this case summary Is it outside the scope of reasonable adjustments to require an employer to fund private medical treatment? No, says the EAT in  Croft Vets v Butcher ....

It is being reported that, this morning, the Court of Session in Scotland stayed the judicial review proceedings brought by Fox & Partners against employment tribunal fees for six months, on the basis it raised the same issues as the judicial review...

Thanks to James English of Samuel Phillips solicitors for preparing this case summary Can work which was anticipated and regularly provided, but not contractually guaranteed, be part of a service provision change? Yes, says the EAT, in ...

Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary Was stopping permanent health insurance benefits once an employee turned 55 age discrimination? Yes, says an employment tribunal in  Whitham v Capita...

Thanks to Lucy Boyle of 12 King’s Bench Walk Chambers for preparing this case summary Is an intended mother in a surrogacy arrangement entitled to maternity leave? Yes, according to the opinion of Advocate-General Kokott in  Case...

Thanks to  Keira Gore  of Outer Temple Chambers for preparing this case summary Where a Respondent has failed to make a reasonable adjustment, can a Claimant’s subsequent resignation break the chain of causation in respect of future loss of...

Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary Can an act of indirect discrimination be 'cured' by an internal appeal? Yes, holds the EAT in  Little v Richmond Pharmacology Ltd  on the particular facts of...

Thanks to John Cook of SAS Daniels LLP for preparing this case summary Can a member state make provision to exclude an employed father of a child from entitlement to maternity leave and maternity benefit where the mother is not employed? Yes,...

Thanks to Vanessa James of SA Law for preparing this case summary The Court of Appeal in the case of  Devon Primary Care Trust v Redman  addressed the test for whether an employee was being reasonable in refusing what would appear to be...

Thanks to  Paul Smith  of Broadway House Chambers for preparing this case summary Where mistakes have been made in discharging the reverse burden of proof in discrimination cases, must an employer provide a further explanation beyond that? No,...

Thanks to  Michael Reed , Employment Legal Officer at the Free Representation Unit, for preparing this case summary Some more information on employment tribunal fees. 1. The judicial review challenge to the legality of tribunal fees brought by Unison...

Here are a few little things from last week, none of which warrant a bulletin in their own right... 1. The House of Commons held a  debate  (see from column 1246) on employment rights, covering many of the recent changes to employment law. ...

hanks to  Rad Kohanzad  of Serjeants’ Inn Chambers for preparing this case summary Despite no express finding of dishonesty, was it perverse to make an award of costs because a Claimant had behaved unreasonably in making a large number of...

Thanks to Joanna Cowie of SA Law for preparing this case summary Can a single employee be an 'organised grouping' whose 'principal purpose' is the activity to transfer under a TUPE service provision changeover? Yes,...

Thanks to  Paul Smith  of Broadway House Chambers for preparing this case summary Where an employer has breached the  Data Protection Act 1998 in respect of an employee, are damages for 'distress' to be assessed in the same way...

Under the  Equality Act 2010  an employer can be vicariously liable for harassment by a third party (such as a customer or a contractor) if (a) that third party had harassed an employee on at least two previous occasions; and (b) the employer had...

Thanks to  Rad Kohanzad  of Serjeants’ Inn Chambers for preparing this case summary Is the General and Healthcare Workers Union ('GAHWU'), whose purpose includes representing employees at internal disciplinary hearings, a trade...

The MOJ has published its  Response to its recent consultation paper on Fee Remissions for the Courts and Tribunals . The government intends to introduce a single fees and remission system across all courts and tribunals.  In order to qualify for...

The government has published its  Response to its Consultation on TUPE . The summary below of what the government is not changing is probably as important as what itis changing. The main changes which the government is proceeding with...

Thanks to  Michael Reed , Employment Legal Officer at the Free Representation Unit, for preparing this case summary Can a tribunal strike out a case when a fair hearing is impossible, because of delay caused by the tribunal not serving the ET1 for...

The government has produced  guidance on employee shareholder status , which came into force yesterday (1st September 2013). An interesting point is that the government states: "If an employee shareholder sells their shares, their employment...

[Just 28 of 220 places left on the fourth and final London Employment Law MasterClass this coming Tuesday - see details] According to an article in  Personnel Today , the government's proposed changes to TUPE are now likely to be published...

 Thanks to  Practical Law  for giving permission to reproduce their website summary (follow them on Twitter) On 15 August 2013, HMRC updated its Share and Assets Valuation Manual (SVM) to take account of the implementation of employee...

I don't normally distribute this kind of thing, but Leigh Day have produced a first-rate guide toStarting a Claim in the Employment Tribunal which is well worth reading. It explains, very practically, how to start a claim, how to deal with fees,...

 Thanks to  Sheryn Omeri  of Cloisters for preparing this case summary How should the pension of fee paid (ie part-time) judicial officers be calculated? According to a number of straightforward principles, holds the employment tribunal in...

 Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary What is the difference between dismissal and mutually agreed termination? The EAT has given a good example on the facts in  Francis v Pertemps...

 Thanks to Rosa Dickinson of St Philips Chambers for preparing this case summary Does a finding of gross misconduct automatically mean that dismissal is within the band of reasonable responses? No, according to the EAT in ...

 Thanks to Joanna Cowie of SA Law for preparing this case summary Could post termination conduct affect the assessment of a compensatory award for unfair dismissal? Yes, according to the EAT in  Cumbria County Council v Bates . The...

Acas is warning employers of companies claiming to be part of and/or acting on behalf of Acas. They typically offer initial advice, which they don't charge for, but then ask people to sign up to a long-term, often expensive contract for employment and/or...

Thanks to  Sarah Russell  of Slater & Gordon for preparing this case summary Is copying your employer's Sage database and using it in the employment of a competitor actionable as a breach of confidence? Yes, if the information it contains...

On 9th July 2013, the Court of Session  refused to grant an interim interdict  in the judicial review application brought by Fox & Partners against the introduction of tribunal fees. The full judgment of Lord Bannatyne, setting out his reasons...

The Information Commissioner has published a  Code of Practice  on how to deal with subject access requests for personal information from individuals under the Data Protection Act 1988. It provides guidance for data controllers on how to respond...

The Office of Tax Simplification has produced an interim report which, amongst other things, considers section 401 of the Income Tax (Earnings and Pensions Act) 2003, which provides that termination payments are subject to tax insofar as they exceed...

Last month, we sent out details of the  statutory instrument  amending the EAT Rules. An amended version of the Rules  is now available. The EAT has now updated its Practice Direction, amended to cover fees and other matters. It is...

Thanks to  Paul Smith  of Broadway House Chambers for preparing this case summary In the context of making reasonable adjustments, what approach should be taken by employers in respect of employees whose disability interacts with other ailments? ...

The 'made' version of  The Unfair Dismissal (Variation of the Limit of Compensatory Award) Order 2013  has been published. It limits the compensatory award in most types of unfair dismissal cases at 52 weeks' pay or £74,200,...

 Thanks to Miranda de Savorgnani of Outer Temple Chambers for preparing this case summary Can a vicarious liability claim be struck out despite the fact-sensitive nature of such claims? Emphatically yes, according to the Court of Appeal...

 Thanks to  Jahad Rahman  of Rahman Lowe Solicitors for preparing this case summary Can previous enhanced redundancy payments become contractually binding through custom and practice? Possibly, says the Court of Appeal in  Shumba &...

Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary How should judges sitting alone approach unfair dismissal cases? HHJ McMullen QC (sitting alone in the EAT) considered this question in  Mitchell v St...

  Thanks to  Neil Addison  of New Bailey Chambers for preparing this case summary Is a tribunal justified in striking out a case where a Claimant is ill due to stress allegedly caused by the employer's bullying. Yes, says the Court...

 Thanks to  Sian McKinley  of Cloisters for preparing this case summary Can the estate of an employee who was dismissed, and died shortly after, bring a claim for the loss of a death in service benefit which he had enjoyed whilst in...

  Thanks to Vanessa James of SA Law for preparing this case summary A solid decision in the case of  Sud v London Borough of Ealing , demonstrates the Court of Appeal's commitment to supporting lower tribunals in strident costs...

  Thanks to  Rad Kohanzad  of Serjeants’ Inn Chambers for preparing this case summary Is the improper action of placing undue pressure on a witness to produce a witness statement during proceedings subject to judicial proceedings...

Just a quickie. The 'made' version of  The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013  is now available....

  Thanks to  Michael Reed , Employment Legal Officer at the Free Representation Unit for preparing this case summary Is an exchange of letters, without a detailed agreement, sufficient to settle a claim? It was in  Newbury v Sun...

A brief update on today's events involving tribunal fees. 1.   Fees (apparently) came into force for claims issued on or after today.  I say 'apparently' because nobody in the employment law community has yet seen the...

The  Presidential Practice Direction on Issuing Claims  has been published.  It applies to England and Wales only. It sets out the methods of issuing claims from Monday, 29th July, namely:-   - online (the preferred method) - by post...

The new ET1 and  ET3  forms have been published, to be used from Monday 29th July 2013.  The existing forms will be invalid from that date, and any ET1/ET3 submitted on the existing form will be rejected....

  Thanks to  Caroline Field  of Fox for preparing this case summary. NOTE:  Five final places released for London Employment Law MasterClassthis coming Monday - booking closes 3pm today. Can a company require its former CEO...

  Thanks to  Keira Gore  of Outer Temple Chambers for preparing this case summary Can a Claimant in a sexual harassment case succeed where the Respondent has not had an opportunity to cross-examine them about their allegations? ...

This email contains important updates about the tribunal fee regime, which begins on Monday 29th July 2013. 1.  The Ministry of Justice has, this afternoon, issued various leaflets.  They are Employment Tribunal Fees for...

  Thanks to  Rad Kohanzad  of Serjeants’ Inn Chambers for preparing this case summary Can additional annual leave be carried forward in the absence of an agreement between the parties? The EAT in  Sood Enterprises v Healy...

Regulation 2 of  The Growth and Infrastructure Act 2013 (Commencement No. 3 and Savings) Order 2013  has been made, providing that the new section 205A of the Employment Rights Act 1996 on employee shareholders comes into force on 1st...

The new employment tribunal fees regime arrives in a week, on Monday, 29th July 2013. If you are planning to issue any Claim Forms before then, in order to avoid your client(s) paying fees, the Ministry of Justice has announced the latest time it will...

  Thanks to David Campion of Garden Court North Chambers, for preparing this case summary Was it correct to strike out a personal injury claim, arising from an employee's removal from work premises, as the claim fell within...

 Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary. In Alemo-Herron v Parkwood Leisure Ltd the European Court has delivered its long awaited judgment in the litigation concerning whether...

Thanks to  Claire Darwin  of Matrix Chambers for preparing this case summary. The 1993 EAT Rules have been amended in the  Employment Appeal Tribunal (Amendment) Rules 2013 , ahead of the introduction of the government's new fee regime...

Thanks to  Vanessa Latham  of Berrymans Lace Mawer for preparing this case summary. This is a good example of an employer being granted injunctive relief where its former employees have gone into competition with it, having taken steps to compete...

The Ministry of Justice has published its  Employment Tribunal and Employment Appeal Tribunal Fees Stakeholder Factsheet , which summarises the new employment tribunal fees regime coming into force on 29th July 2013.  For a reminder of the current...

Jo Swinson, the Parliamentary Under-Secretary of State for Employment Relations and Consumer Affairs, has issued a written ministerial statement announcing the following:-   - changing the cap on the unfair dismissal award to the lower of...

Further to yesterday's emails on tribunal fees, here is a fuller update. The (Scottish) Court of Session declined to grant an interim interdict, given the Lord Chancellor's undertaking that any tribunal fees paid after 29th July will be repaid if,...

The Court of Session has refused to grant an interim interdict (injunction) prohibiting employment tribunal fees.  In the absence of an appeal, or the English courts taking a different approach in the judicial review application brought by UNISON, fees...

More details are now in of this morning's Judicial Review hearing in the Court of Session. The Judge refused to grant an interim interdict, based upon the balance of convenience, given - his view there was a strong prima facie case to go to a full...

Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary If a worker ‘reasonably’ requests to be accompanied by a companion at a disciplinary or grievance hearing under s.10 Employment Relations Act 1999, does the request...

Thanks to  Bonike Erinle  of Farrar’s Building for preparing this case summary Is a Christian hotelier's decision to restrict the offer of double bedrooms in a small, family-run bed and breakfast to married couples unlawful? Yes, as...

Confidential pre-termination negotiations, contained in s14 of the Enterprise and Regulatory Reform Act 2013, are coming into force on 29th July (see  commencement order ). Also coming into force on 29th July is the re-naming of 'compromise...

Readers of this bulletin will know the government  consulted on TUPE reform earlier this year.  A response, along with draft Regulations to amend TUPE, was expected this week.  However, it is being  reported  that the...

As reported  yesterday , the Court of Session in Scotland held an initial hearing this morning on a judicial review application challenging the legality of tribunal fees (due to come into force 29th July 2013). The Court has expedited the full hearing,...

Thanks to Vanessa James of SA Law for preparing this case summary. Does an employer breach its duty to make reasonable adjustments by requiring a disabled employee to undergo a competitive interview process? Possibly, but not in the case of ...

Last week, we reported  UNISON's judicial review challenge  to the tribunal fee system. It looks like they may have been beaten to the starting line.  Fox and Partners in Scotland have lodged a petition for judicial review,...

We've all heard about it, and the transcript is now available.  The full title of the case is quite long, but everyone knows it as the USDAW v Woolworths case. The Employment Appeal Tribunal holds that there should be a purposive...

Thanks to  Paul Smith  of Broadway House Chambers for preparing this case summary Where a Compromise Agreement is silent as to whether a settlement sum is to be paid gross or net of income tax, how should the term be construed for tax purposes? ...

Thanks to  Catriona Stirling  of Cloisters for preparing this case summary Where an employment tribunal makes orders for compensation in tort against Respondents jointly (or jointly and severally), does it have the power to apportion liability...

Thanks to  Will Young  of Outer Temple Chambers for preparing this case summary In Equal Pay cases, does the requirement that the comparators be "in the same employment" as the Claimants mean that there has to be some possibility...

Thanks to Claire Scott of  Burness Paull & Williamsons LLP  for preparing this case summary Does an employee who spends all of his time providing services to a customer transfer under regulation 3(1)(b) of TUPE when other employees also...

Thanks to  Vanessa Latham  of Berrymans Lace Mawer for preparing this case summary When selecting for redundancy, can an employer assess workers who have been off work on parental leave on different criteria to those who have not been on leave? ...

Thanks to Will Young of Outer Temple Chambers for preparing this case summary Can a discrimination claim be struck out for a wilful failure on the part of a Claimant to comply with tribunal orders? Not unless consideration has been given to...

UNISON has announced that it is applying to the High Court to judicially review the government's decision to introduce fees in employment tribunals. It is unclear from its  press release  whether the application has yet been lodged. The main...

Thanks to Peter Taheri of 5 Essex Court for preparing this case summary Does the employer breach an employee's Article 8 rights by using evidence from covert surveillance to dismiss him? Certainly not on these facts, held the EAT in ...

Thanks to  Vanessa Latham  of Berrymans Lace Mawer for preparing this case summary Can the employment tribunal order costs on an indemnity basis against an ex-employee without considering the impact of such an order on the Claimant, or...

Here's something a bit lighter than normal... Yesterday's Afternoon Drama on Radio 4 was a dramatised employment tribunal hearing, with an ex-police officer claiming unfair selection for redundancy on grounds of her gender.  The first five...

The draft  The Unfair Dismissal (Variation of the Limit of Compensatory Award) Order 2013  has been laid before parliament. It limits the compensatory award in an unfair dismissal case to the lower of £74,200 or 52 weeks' pay. The exact...

Thanks to  Will Young , barrister at Outer Temple Chambers, for preparing this case summary. What is the test for whether an 'unless order' has been complied with? The EAT has held that 'substantial compliance' with an unless order was...

Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary May an employee be dismissed for redundancy where the employee's own job remains, but the needs of the business for different kinds of employee reduces? Yes, held the EAT...

Two developments to report. First, BIS has published an updated  indicative timetable  of the planned commencement dates under the  Enterprise and Regulatory Reform Act 2013 .  Don't read it - it's impenetrable.  Instead,...

Thanks to  Daniel Tivadar  of 3 Hare Court for preparing this case summary. Can an employment tribunal make a costs award that the paying party cannot afford to pay?  Yes, held the EAT in  Vaughan v London Borough of Lewisham . The...

New legislation enabling confidential pre-termination settlement agreements, contained in the new  s111A of the Employment Rights Act 1996 , is expected to come into force during the summer. In broad terms, employers and employees will be allowed to...

The facts of this case are interesting and many employers will have some sympathy for the employers in this situation.  The ratio - that victimisation claims don't require a comparator - doesn't really give the true picture.  Here are the...

This is the third email containing information about the confirmed commencement dates in the  Enterprise and Regulatory Reform Act 2013. These are some minor reforms which come into force on  25th June 2013 .   - all hearings in the...

The  The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013   have been published.  They arise from the fundamental review of employment tribunals, carried out by Underhill LJ (then Underhill J) last year. Here are...

We previously told you about the commencement dates for  whistleblowing changes  and the  introduction of tribunal fees .  Here's the next in our series of emails about commencement dates. The provisions relating to  financial...

Thanks to PLC Employment for sending me a copy of the employment tribunal's written reasons Remember Mr Seldon?  He was a partner with Clarkson Wright & Jakes, a well-respected firm of solicitors.  He brought a claim of age...

In a letter to stakeholders issued this morning, HM Courts & Tribunal Service have announced that the date for the implementation of fees into the employment tribunals (ET) and Employment Appeal Tribunal (EAT) will be  Monday 29th July...

On  25th June 2013 , most of the provisions relating to  whistleblowing  come into force (in particular, sections 17, 18 and 20).  They are important, because if the principal reason for a dismissal is that a worker made a protected...

The Disclosure and Barring Service (which replaced the Criminal Records Bureau at the end of last year) is launching its new Update Service on 17th June 2013. Previously called a 'Portable DBS/CRB check', job applicants will pay a fee of...

Thanks to  Jahad Rahman  of Rahman Lowe Solicitors for preparing this case summary. Did a decision by the Chief Adjudicator of the Traffic Parking Tribunal not to allocate cases to a Parking Adjudicator amount to a detriment for...

Thanks to  Michael Reed , Employment Legal Officer at the Free Representation Unit, for preparing this case summary. Can an employee be liable for breach of confidence if they start a new business with others who, without the first employee knowing...

Thanks to  Keira Gore  of Outer Temple Chambers for preparing this case summary. Where a claimant alleges misconduct against a respondent and its staff, do those allegations render it impractical for the respondent to re-engage the claimant in a...

Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary. Did a former employee transfer under TUPE if, at the time of transfer, an appeal against her prior dismissal was pending? No, says the EAT, on the facts in...

Thanks to  Paul Smith  of Broadway House Chambers for preparing this case summary. No principle of law here, but an interesting example of a restrictive covenant case -  Romero Insurance Brokers v Templeton  in the High Court. The...

Thanks to  Naomi Cunningham  of Outer Temple Chambers for preparing this case summary. Was a methodist minister an employee for the purposes of unfair dismissal protection? No, says the Supreme Court (Baroness Hale dissenting), allowing the...

Thanks to  Paul Smith  of Broadway House Chambers for preparing this case summary. When assessing protective awards, should an Employment Tribunal's focus be upon compensating the employee or punishing the employer? Punishing the employer,...

Thanks to Laura Samuel of  Berrymans Lace Mawer  for preparing this case summary Is it reasonable to expect an insolvent employer to continue to trade for 90 days, so that it can inform and consult in accordance with its obligations under s.188...

Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary. Does the increase in compensation due to a breach of the ACAS Code of Practice apply to "some other substantial reason" dismissals? Yes,...

The final text of the  Enterprise and Regulatory Reform Act 2013  has been published, coming in at a mere 292 pages. Sections 7-24, and Schedule 2, are the ones which are relevant to employment practitioners....

Thanks to  Laurie Anstis  of Boyes Turner for giving me permission to reproduce his blogpost . The government has just issued its  background briefing  on the 2013 Queen’s Speech. Of interest to employment lawyers and HR...

[Thanks to  Daniel Tivadar  of 3 Hare Court for preparing this case summary] Can a claim be brought for post-employment victimisation under the Equality Act 2010?  Yes, says the EAT (Langstaff P) in  Onu v Akwiku , disagreeing with...

[Thanks to  Keira Gore  of Outer Temple Chambers for preparing this case summary] Does continuity of employment start from the date upon which an employee undertakes activities for an employer or, where later, the date upon which the...

[Thanks to Jonathan Moffat of Outer Temple Chambers for preparing this case summary] Does Article 45 TFEU (freedom of movement for workers) preclude legislation of a federated entity of a Member State which requires all employers whose...

[Thanks to IDS for this information] As part of its drive to encourage employee ownership (different from employee shareholder status), the Department for Business, Innovation and Skills has published  draft Model Documentation for an Employee Owned...

[Thanks to Naomi Cunningham of Outer Temple Chambers for preparing this case summary] Where termination of a fixed term contract was permitted provided the employer paid the employee’s salary for the unexpired portion of the term, was that...

[Thanks to  Sarah Fitzpatrick  of Collingwood Legal for preparing this case summary] In  Ladrick Lemonious v Church Commissioners , the EAT reviewed the correct approach to reducing awards for unfair dismissal for contributory...

[Thanks to James English of Samuel Phillips solicitors for preparing this case summary] In  Dresdner Kleinwort Limited & Commerzbank AG v Attrill & Ors , the Court of Appeal considered an employer's discretion to refuse to pay...

The  Employment Tribuals and the Employment Appeal Tribunal Fees Order 2013  is now available to view. It's fairly short; it simply sets out the level of fees and includes information about remission in Schedule 3.  Three points to...

[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] Do pension contributions amount to 'wages' for the purpose of an unlawful deductions claim?  No, says the EAT in  Somerset County...

[Thanks to  Michael Reed  Employment Legal Officer at the Free Representation Unit for preparing this case summary] When considering reversing the burden of proof in discrimination cases, can statements made by someone not legally responsible for...

[Thanks to  Paul Smith  of Broadway House Chambers for preparing this case summary] If only part of a business is subject to a transfer, does the obligation to inform and consult under Regulation 13 of TUPE extend to employees working in the...

Yesterday, BIS issued a  press release  saying that the rules for " simplifying the procedures and costs of deciding tribunal cases " will come into force on 25th June 2013.  According to an email I have received this...

BIS has issued a  press release  containing commencement dates for some of the changes introduced by the  Enterprise and Regulatory Reform Act 2013, which received Royal Assent yesterday.  On  25 June 2013  the following will...

Yesterday (24 April), the government introduced yet a further concession into the  Growth and Infrastructure Bill  and, last night, the House of Lords voted to accept the clause (having rejected it twice).  Employee Shareholders will...

Employee Shareholder Status - an Update Last night, the House of Lords voted for the second time to reject the proposed Employee Shareholder status set out in the G rowth and Infrastructure Bill  (by 260-191).  Under this scheme, which...

In February 2013, the Supreme Court held that fee-paid judges are entitled to a judicial pension - see  here . The Lord Chancellor has now  announced a moratorium  on such cases.  This means that potential Claimants who are approaching...

[Thanks to Miranda de Savorgnani of Outer Temple Chambers for preparing this case summary] Does an employment tribunal have territorial jurisdiction over an unfair dismissal claim of an employee who lives and works outside Great Britain? Only...

[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] How should tribunals approach injury to feelings and aggravated damages in discrimination cases? The principles were discussed by the EAT in  HM Land...

[Thanks to  Paul Smith  of Broadway House Chambers for preparing this case summary] In considering whether a person is disabled, should the focus be upon the cause of the person's symptoms or upon their effect? Their effect, says the EAT...

[Thanks to  Paul Smith  of Broadway House Chambers for preparing this case summary] If a Claimant has instructed advisers to act for him but failed to present his claim for unfair dismissal in time, can he successfully argue that it was not...

The Ministry of Justice has announced the appointment of Mr Justice Underhill, the past president of the Employment Appeal Tribunal, as a Lord Justice of Appeal.  Congratulations to him from the employment law community. The list of ten appointees, and...

[Thanks to  Nathaniel Caiden  for preparing this case summary] Can a party to an appeal from the EAT to the Court of Appeal successfully apply (before the final hearing of the appeal) for the usual cost consequences not to apply? Yes, says...

[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] Should a claim for interim relief be decided on the balance of probabilities as to whether a Claimant will ultimately succeed in showing that dismissal was on a prohibited...

[Thanks to Michael Rubenstein for notifying the employment law community about this news via Twitter] The House of Lords has voted (by 232 to 178) to strike down clause 27 of the  Growth and Infrastructure Bill , which is the clause introducing the...

The Chancellor of the Exchequer, George Osborne, has announced in today's budget an important development with regard to employee shareholders. Part of the definition of 'employee shareholder' in the forthcoming new s205A Employment Rights Act...

The Department for Business Innovation and Skills has announced a new implementation timetable for the major employment law reforms, many of which had originally been intended to come into force in April 2013. Coming into force in  summer 2013 :...

[Thanks to James English of Samuel Phillips solicitors for preparing this case summary] Is a limited liability partnership a 'company' for the purposes of the Equal Pay Act? Yes, says the EAT in  Fox Cross & Others v Glasgow City...

[Thanks to Laura Samuel of  Berrymans Lace Mawer  for preparing this case summary] Do the judicial doctrines of  res judicata and abuse of process  apply to internal disciplinary proceedings? No, says the Court of Appeal...

[Thanks to  Liane Atkin  of Collingwood Legal for preparing this case summary] Is it fair to carry out a redundancy selection exercise where employee capability is assessed entirely on the basis of competency tests? Not necessarily, says the EAT...

[Thanks to  Michael Reed  Employment Legal Officer at the Free Representation Unit for preparing this case summary] Was a history of consultation between an employer and a trade union sufficient to show that the union had been recognised for the...

[Thanks to  Jahad Rahman  of Rahman Lowe Solicitors for preparing this case summary] Can an employment tribunal refuse to admit covert recordings? No, says the EAT in  Vaughan v London Borough of Lewisham and Others . In support of a...

[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] The Department for Business Innovation & Skills (BIS) has published a new report in its Employment Relations Research series:   Employer Perceptions...

The Master of the Rolls, Lord Dyson MR, has issued  Practice Guidance: Terminology for Litigants in Person .  It provides that the term 'Self-Represented Litigant' should no longer be used in courts. The correct nomenclature, going forward,...

[Thanks to  Sian McKinley  of Cloisters for preparing this case summary] Does unfavourable treatment on the grounds of vulnerability for reasons including immigration status constitute race discrimination? No, says the EAT in  Taiwo v...

[Thanks to  Paul Smith  of Broadway House Chambers for preparing this case summary] Does the Equality Act 2010 provide a cause of action or remedy in respect of post-termination victimisation? No, says the EAT in  Rowstock Ltd v Jessemey . ...

[Thanks to  Daniel Tivadar  of 3 Hare Court for preparing this case summary] Can collective agreements in themselves justify prima facie indirect discrimination under the Equal Pay Directive? No, says the CJEU in  Kenny v Minister for...

The  Enterprise and Regulatory Reform Bill  has begun the  report stage  in the House of Lords this week. One of the amendments proposed during the debate is the extension of whistleblowing protection to jobseekers (by extending the...

[Thanks to  Vanessa Latham  of Berrymans Lace Mawer for preparing this case summary] Is it reasonable to dismiss an employee at the behest of a third party, without considering whether the request is justified? No, says the EAT in  Bancroft...

[Thanks to  Michael Reed  Employment Legal Officer at the Free Representation Unit for preparing this case summary] Can an employer's reliance on a written warning be challenged in an unfair dismissal claim? Only if it was issued in bad faith...

Don't get too excited.  The government has issued a  consultation paper  seeking views on the proposed  The Transfer of Employment (Pension Protection) (Amendment) Regulations 2013. The draft Regulations clear up an ambiguity in the...

The government has announced further amendments to the Enterprise and Regulatory Reform Bill, to stengthen the protection available to whistleblowers.  The amendments will:-   make employers vicariously liable for detriments by one worker towards...

[Thanks to  Naomi Cunningham  of Outer Temple Chambers for preparing this case summary] When, in an unfair dismissal case, should an employment tribunal concern itself with the appropriateness of a final warning preceding the dismissal? When...

[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] Can a Claimant rely on a protected disclosure made after the termination of a working relationship to bring a 'whistleblowing' claim? Yes, says the EAT in ...

[Thanks to  Daniel Tivadar  of 3 Hare Court for preparing this case summary] Is it contrary to the Acquired Rights Directive 2001 for transferee employers to be bound by collective negotiations after the date of transfer under TUPE? No, as long...

[Thanks to  Laurie Anstis  of Boyes Turner for preparing this case summary] The government has put forward a  series of amendments  to the Enterprise and Regulatory Reform Bill, which is currently making its way through Parliament. The...

Following the European Court of Human Rights' judgements last month in  Eweida & others , the Equality & Human Rights Commission has, today, published new guidance on Religion and Belief in the Workplace. It's packed full of...

[Thanks to  Saul Margo  of Outer Temple Chambers for preparing this case summary] Did the question 'What's happened to the fucking Pope?', shouted in a pressured newsroom, amount to harassment on grounds of religion of a Catholic...

[Thanks to  Andrew Smith  of Matrix Chambers for preparing this case summary] Does a  Polkey  assessment require the application of a 'review' or 'predictive' based approach? The latter, says the EAT in  Hill v...

[Thanks to Jonathan Moffat of Outer Temple Chambers for preparing this case summary] Can a claim be dismissed for abuse of process when it is brought on the same facts as an earlier claim that has been withdrawn but not dismissed? Yes, according...

[Thanks to Georgina Hirsch of Devereux Chambers for preparing this case summary] Does the letter of UK trade union recognition law comply with Article 11 of the European Convention on Human Rights? No, says the Central Arbitration Committee...

[Thanks to  Neil Addison  of Palmyra Chambers for preparing this case summary] Can a Claimant in discrimination proceedings treat a witness statement from the Respondent as breaching trust and confidence, and thus justifying resignation and...

Acas has launched a  consultation on a new Code of Practice on Settlement Agreements . The Government is introducing new legislation which will mean that any offers or discussions about settlement agreements cannot be used as evidence in an unfair...

[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] If a Civil Service voluntary severance scheme pays older leavers more than younger leavers, is that unlawful direct discrimination on grounds of age? No, says the EAT...

[Thanks to Jessica Denton, Legal Assistant to  Gerard McDermott QC  for preparing this case summary] Are part-time judges entitled to judicial pensions on their retirement? Yes, says the Supreme Court, in the long-running battle...

The Department for Business, Innovation and Skills has published the draft  The Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013 . The draft Regulations shorten the consultation period for proposals to make more than 100...

[Thanks to  Emma Price  of Temple Garden Chambers for preparing this case summary] Can an employment tribunal apportion a compensation award between Respondents when the damage is indivisible?  No, says the Court of Appeal in  London...

[Thanks to  Sarah Fitzpatrick  of Collingwood Legal for preparing this case summary] Do courts have the ability to intervene in disciplinary disputes between employers and employees? Yes, said the Court of Appeal in  West London Mental...

[Thanks to  Naomi Cunningham  of Outer Temple Chambers for preparing this case summary] Is an employment tribunal entitled to refuse a Claimant's application for adjournment supported by unchallenged medical evidence? Yes, says the Court of...

[Thanks to James English of Samuel Phillips solicitors for preparing this case summary] Does an employer have to exercise actual day-to-day control over an employee for there to be an employment relationship?  No, says the EAT, in ...

[Thanks to  Laurie Anstis  of Boyes Turner for preparing this case summary] Does legal advice privilege (in England and Wales) extend beyond the traditional legal professions of solicitor, barrister and chartered legal executive (and their foreign...

[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] Can liability for enhanced redundancy payments arise from a policy in an employee handbook? Yes, says the EAT, on the facts in  Allen v TRW Systems . ...

The Department for Business, Innovation & Skills has announced / confirmed it is:- 1.    imposing a cap on the unfair dismissal compensatory award of twelve months' pay (and still capped at the current limit, if twelve months' pay is...

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary] When, after an internal appeal against dismissal, a lesser penalty was imposed, did that expunge the earlier dismissal? No, says the EAT in  Piper v...

[Thanks to Simon McCrossan, squatter at New Walk Chambers, for preparing this case summary] Did a tribunal commit an error of law by deciding it was not just and equitable to extend time for a race discrimination claim presented one day beyond the...

[Thanks to  Sarah Russell , solicitor at Russell, Jones and Walker, part of Slater & Gordon Lawyers, for preparing this case summary] Does UK law provide sufficient protection against discrimination for employees who wish to manifest their...

[Thanks to James English of Samuel Phillips solicitors for preparing this case summary] Did an employee have a contractual right to job evaluation based on a collective agreement? No, says the EAT in  Simpson v Hackney & Others . The...

Is it discriminatory to require a Christian care worker to work on a Sunday?  Not here, held the EAT in  Mba v The Mayor & Burgesses of the London Borough of Merton . Ms Mba worked in a home providing residential care to disabled children...

[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] When assessing whether an employee is disabled should a tribunal concentrate on those activities which the employee cannot do rather than those which he can...

[Thanks to John Cook of SAS Daniels LLP for preparing this case summary] Can an employee be reinstated where the tribunal has made a  Polkey  deduction? Yes, says the President of the EAT in  Arriva London v Eleftheriou . The...

[Thanks to  Dr John McMullen  of Wrigleys Solicitors LLP for preparing this case summary] Can the reason for dismissal be redundancy, even though the employer had issues about the employee's capability or conduct? Yes, says the EAT on the...

[Thanks to Simon McCrossan, squatter at New Walk Chambers, for preparing this case summary] Is it within the range of reasonable responses for an employer to refuse to undertake further investigations which would support the account of an employee...

[Thanks to Ed McFarlane of  Deminos HR  for preparing this case summary] If an employment contract is wrongfully repudiated, does the termination take effect automatically - the 'automatic theory' - or when the other party accepts the...

[Thanks to  Jahad Rahman  of Rahman Lowe Solicitors for preparing this case summary] Is a lap-dancer an employee? No, says the Court of Appeal in  Stringfellow Restaurants Ltd v Quashie . Ms Quashie was a lap-dancer at Stringfellows. She...