Welcome to the latest issue of the Steptoe & Johnson UK Employment Law Update.

These Employment Law Updates are aimed at providing information on recent developments and what the regulatory changes mean for you in practice, in managing workplace issues on a proactive basis.

To achieve our objectives and to continuously improve the Updates, we would be pleased to receive feedback from you. Please e-mail any comments or suggestions which you may have relating to the Updates to employmentgroup@steptoe.com. We look forward to hearing from you.

Legislation Changes

1. The Recast Brussels Regulation

Regulation (EU) 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (the “Recast Brussels Regulation”) regulates jurisdiction and the recognition and enforcement of judgments between EU member states (but not currently Denmark). The Recast Brussels Regulation applies to legal proceedings, and judgments given in proceedings, issued on or after 10 January 2015.

The 2001 Brussels Regulation continues to apply to judgments given in proceedings issued before10 January 2015.

The Recast Brussels Regulation makes some changes to the jurisdiction rules applying to employment contracts. These include:

  • allowing an employee to sue an employer not domiciled in an EU member state in the court of an EU member state where (or from where) the employee habitually works, or the place where the business that engaged the employee is situated.
  • allowing an employee to sue an employer domiciled in an EU member state in the courts of the place where the employee habitually works has been widened to allow the employer to be sued in the courts for the place where, or from where, the employee habitually works.
  • where proceedings are against a number of employers domiciled in various EU member states, they may all be sued in the one court where any of them is domiciled, provided that the claims are so closely connected that it is expedient to hear and determine them together in the one court, to avoid the risk of irreconcilable judgments.

Key Point: The employment rules in the 2001 Brussels Regulation do not generally apply to claims against employers not domiciled in a EU member state. However, the rules of the Recast Brussels Regulation may now apply to a non-EU employer, where that employer has a branch or establishment in an EU member state, and the dispute arises out of the operations of that branch or establishment.

2. Family Friendly Regulations

As we have previously reported, various Regulations relating to family-friendly rights have been made. These include:

  • The Maternity and Parental Leave etc. (Amendment) Regulations 2014 (SI 2014/3221), which extend the existing parental leave regime to parents of children aged between five and 18. This right will be available from 5 April 2015.
  • The Paternity and Adoption Leave (Amendment) (No. 2) Regulations 2014 (SI 2014/3206), which extend the current rights to adoption leave contained in the Paternity and Adoption Leave Regulations 2002 to individuals fostering a child under the "Fostering for Adoption" scheme. This right will be available from 5 April 2015.
  • Three sets of Regulations, which purport to include couples who are adopting a child from outside the UK in the right to shared parental leave and pay: Employment Rights Act 1996 (Application of Sections 75G and 75H to Adoptions from Overseas) Regulations 2014 (SI 2014/3091); Shared Parental Leave and Paternity and Adoption Leave (Adoptions from Overseas) Regulations 2014 (2014/3092) and the Statutory Shared Parental Pay (Adoption from Overseas) Regulations 2014 (2014/3093). This right will be available from 5 April 2015.

Key Point: Employers should be updating their adoption and parental leave polices to take into account these changes.

3. Shared Parental Leave

As we have previously reported, on 1 December 2014, legislation came into force that will give effect to the new shared parental leave regime. The new regime applies to employees in England, Scotland and Wales whose babies are due, or due to be placed for adoption with them, on or after 5 April 2015. Additional paternity leave will cease to exist, but compulsory maternity leave of two weeks (or four weeks for certain workers) will be retained. Eligible parents/adopters will be able to share all or part of the remaining maternity or adoption leave and pay as shared parental leave and pay.

Key Point: If they have not done so already, employers should be thinking about finalising new shared parental leave policies and making consequential amendments to their current maternity, paternity, ordinary parental leave and adoption policies.

4. Consultation on the Working Time Directive

The EU Commission has issued a consultation on the Working Time Directive, with possible options for reform. The consultation includes whether:

  • compensatory rest should be granted immediately, or within two to four days.
  • the 48 hour reference period should be extended.
  • the autonomous worker exemption should be clarified or narrowed or widened.
  • the opt-out should be abolished and/or stricter conditions introduced.

The consultation closes on 15 March 2015 and the impact assessment is expected during 2015.

5. Personal Service Companies – Record Keeping Returns

On 13 March 2014, HMRC published a summary of responses to its consultation on onshore employment intermediaries and false self-employment. In this, the government confirmed that the proposed changes were to proceed from 6 April 2014 (under the Finance Bill 2014 and Regulations) although the record-keeping, returns and penalties provisions will apply from 6 April 2015 (with the first return due by 5 August 2015).

6. Regulations introduce two-year limitation period for retrospective holiday pay and other wage claims

Recently the Employment Appeal Tribunal (EAT), in Bear Scotland and others, held that non-guaranteed compulsory overtime (overtime which workers are required to work but which employers are not obliged to offer) must be taken into account when calculating holiday pay for the 20 days (four weeks) of statutory annual leave required by the Working Time Directive.

Failure by employers to account for such overtime, and other payments which are “intrinsically linked to the performance of the employee’s tasks” (e.g commission) in the calculation of holiday pay, could amount to an unlawful deduction from wages for the purpose of the Employment Rights Act 1996 (ERA 1996), provided that an employee makes such a claim to the employment tribunal, generally within three months of that ‘unlawful deduction’ (underpaid holiday pay) taking place.

Furthermore, employees could argue that that there has been a “series of deductions” for the purpose of the ERA 1996, if a period of less than three months has elapsed between each ‘unlawful deduction’. However, there will be a break in the chain of any "series of deductions" where a period of more than three months has elapsed between each ‘unlawful deduction’.

In light of the above, the government announced that it was setting up a "taskforce", led by Vince Cable MP, to assess how the impact of the Bear Scotland and others decision on businesses could be limited.

On 18 December 2014, the government announced that it has laid draft regulations (The Deduction from Wages (Limitation) Regulations 2014 (SI 2014/3322) before Parliament to amend the ERA 1996 to impose a two-year limitation on certain unlawful deductions from wages claims. The Department for Business, Innovation and Skills (BIS) noted that it was ‘taking action to protect UK business from the potentially damaging impact of large backdated claims’ following the Bear Scotland and othersdecision by introducing a cap of two years on such claims for unlawful deductions from wages.

Key Point: The changes apply to claims made on or after 1 July 2015, but workers can still make claims under the existing regime for the next six months which will act as a transition period before the new rules come into force.

Recent Cases

1. Mis-use of Social Media

Game Retail Limited v Laws UKEAT/0188/14/DA

Can an employer fairly dismiss an employee for tweeting offensive and abusive tweets during their non-working time where colleagues and customers may have seen the tweets? Yes, potentially.

Mr Laws was employed by Game Retail Limited (Game) as a Risk and Loss Prevention Investigator. He had responsibility for over 100 Game stores. In July 2012, Mr Laws opened a personal Twitter account. Whilst his account did not specifically identify him as working for Game, he followed the Twitter accounts of a number of Game stores in order to monitor their activity.

In July 2013, a Game Store Manager notified a Regional Manager that Mr Laws had been posting allegedly offensive and abusive tweets. Game conducted a disciplinary investigation, found that Mr Laws was guilty of gross misconduct and summarily dismissed him. Mr Laws brought a claim for unfair dismissal.

The employment tribunal judge held that Mr Laws had been unfairly dismissed. He considered that the tweets were posted for personal use and it had not been established that any member of the public or employee of Game had either had access to Mr Law’s tweets or associated him with Game. In addition, the judge considered that Game’s disciplinary policy did not explicitly state that inappropriate use of social media, during an employee’s non-working private time, could be treated as gross misconduct. The employment tribunal judge considered that Game’s decision to dismiss Mr Laws was outside the range of reasonable responses available to it.

Game subsequently appealed to the EAT. The EAT found that the stores which followed Mr Laws, or whom he had followed, would have seen his tweets and, potentially, customers may have seen them too. Whilst there was a balance to be found regarding an employer’s need to protect its reputation and an employee’s right of freedom of expression, the employment tribunal judge had not properly considered whether or not Mr Law’s use of Twitter was truly private. At least one employee of Game had already seen the tweets and reported them. The employment tribunal judge had been mistaken to substitute his view for that of a reasonable employer and had reached conclusions that were either inconsistent, failed to take into account relevant matters or were “simply perverse”.

The EAT remitted the case to be heard by a different employment tribunal judge. The EAT emphasised that the facts of any particular case will always be paramount when determining whether or not an employer’s decision falls within the range of reasonable responses available to it.

Key point: Employers should have clear, well-considered social media policies and ensure that any policies they do have are communicated to employees effectively. Where appropriate, this may involve the provision of training to staff. This case is also a reminder that judges should be wary of substituting their own view for that of a reasonable employer. Whilst different employers may inevitably arrive at different decisions, this does not mean that their decisions will necessarily fall outside the range of reasonable responses.

2. Disability and Obesity

Kaltoft v Municipality of Billund Case C-354/13

Is obesity in itself a disability? No, held the Court of Justice of the European Union (“CJEU”), but any impairment resulting from an employee’s obesity might be.

Mr Kaltoft, who is Danish, weighs over 160 kg and has a Body Mass Index (BMI) of 54. This means that he is classified with “severe, extreme or morbid obesity” under the World Health Organisation classification. He claimed, in the Danish court, that he was dismissed from his employment as a child-minder because he was obese. He claimed that this amounted to unlawful discrimination. The Danish court made a reference to the CJEU, which sought clarification regarding whether or not obesity was a disability.

The CJEU concluded that clinical obesity may constitute a disability. It also noted that “…the concept of ‘disability’ within the meaning of the Directive 2000/78 does not depend on the extent to which the person may or may not have contributed to the onset of his disability.” This means that a self-inflicted impairment can constitute a disability. The CJEU did not stipulate that a particular BMI was needed in order for obesity to qualify as a disability. The focus instead, it said, should be on any impairment resulting from obesity (e.g. lack of mobility). In addition, the CJEU did not place any onus on employees taking steps (e.g. attempting to lose weight) in order to perform their work. As a result, there is some uncertainty regarding the extent to which employers can require employees to attempt to lose weight.

Key point: Obesity in itself is not a disability, but the impairments which result from an employee being overweight could give rise to a disability. In this sense, the judgment is not surprising and simply restates the legal position as it was understood in the UK. Employers must, however, remember that the impairments resulting from an employee’s condition, such as obesity, may amount to a disability even if the impairments are self-inflicted.

3. Depression and Anxiety as a Disability

Saad v University Hospital Southampton NHS Trust and another UKEAT/0184/14/DM

Depressive and general anxiety disorder not necessarily a disability.

Mr Saad was a specialist registrar in cardiothoracic surgery. He suffered from a depressive and general anxiety disorder. He was employed under a series of fixed term contracts with the NHS Trust, the last of which expired in September 2012. This contract was not renewed and Mr Saad contended that he was disabled.

Whilst Mr Saad’s disorder could be an impairment under the Equality Act 2010, the employment tribunal found that Mr Saad’s impairment did not have a substantial adverse, nor a long-term effect, on his ability to carry out normal day-to-day activities as required by the Equality Act 2010.

Mr Saad appealed to the Employment Appeal Tribunal EAT. The EAT also found that Mr Saad’s impairment did not have a substantial adverse effect on Mr Saad’s ability to carry out normal day-to-day activities. In particular, it found that the employment tribunal had correctly considered the effects of Mr Saad’s impairment on his work environment including his ability to concentrate, communicate with colleagues and access the work place.

In addition, the employment tribunal had not misdirected itself as to the meaning of "long-term" as it had considered the fact that adverse effects could be long-term even if they fluctuated over time – something common to depressive and general anxiety disorders.

Key point: A person has a disability if he or she has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. The different limbs of the test must be satisfied and it is not enough for an employee to simply point towards the fact that they have an impairment.

4. Reasonable Adjustments in the Workplace

Dyer v London Ambulance NHS Trust UKEAT/0500/13

Would a ban on aerosols and perfume in the workplace amount to a reasonable adjustment? No.

Mrs Dyer (“D”) was employed by London Ambulance NHS Trust (the “Trust”) to answer 999 calls in a control room, to which other employees had access. In 2006, D developed a severe reaction to an aerosol body spray. Further episodes occurred in 2008 and 2009, and her last episode resulted in a near-death experience. She went off work from March 2009, but did not return. The Trust obtained medical advice from a leading expert, but concluded that no reasonable adjustment could be made in the circumstances and dismissed D on the grounds of capability in June 2011.

D brought unsuccessful claims in the employment tribunal for unfair dismissal and disability discrimination. The provision, criterion or practice (“PCP”) she identified that the Trust was undertaking was the practice of allowing people to spray cosmetic products and wear perfume in communal working areas. D argued that the Trust should have made a reasonable adjustment to this PCP by implementing an aerosol and perfume-free policy to take into account her disability.

The EAT dismissed D’s appeal, holding that the employment tribunal had been entitled to conclude that there was no reasonable adjustment that could have been made. The EAT agreed with the employment tribunal that a policy of no perfume or aerosols may have been achievable in a smaller working environment, but not in the context of the Trust.

Key Point: This is a very fact specific case regarding what amounts to a reasonable adjustment in the circumstances. It would be very rare that an employer could not make any reasonable adjustment for a disabled employee, but this case emphasises that the reasonableness of such adjustments (and the likelihood of them working) may depend on the size and nature of the workplace in question.

5. Restrictive Covenants

Re-use Collections Limited v Sendall and another [2014] EWHC 3852 (QB)

Are restrictive covenants binding without a benefit to the individual? No, held the High Court.

Mr Sendall had been a director of a family-owned glass recycling company until its takeover by Re-use Collections Limited (“Re-use”). He did not have a written employment contract. However, in October 2012, Re-use issued him with a contract containing restrictive covenants. Mr Sendall signed the contract in February 2013, but subsequently resigned from his employment in March 2013.

Re-use, who suspected Mr Sendall of approaching its customers with a view to encouraging them to move their business to a competitor company established by Mr Sendall’s two sons (and possibly him), tried to enforce the restrictive covenants against him. Mr Sendall’s two sons had both worked for Re-use previously and resigned. In addition, Mr Sendall’s wife had a 52% shareholding in the competitor company.

The High Court found that Mr Sendall was a “wholly unreliable witness”, but did not uphold the restrictive covenants. It concluded that Mr Sendall had not received any “real monetary or other benefit” in exchange for signing up to the restrictive covenants.

Even though Mr Sendall had, apparently, received a pay rise in January 2013 and bonus at a similar time, the judge found that there was no evidence that either the pay rise or the bonus were conditional on him signing the new contract including the restrictive covenants. In addition, the High Court did not accept that Mr Sendall’s continued employment represented a benefit because there was no evidence that his employment would have been terminated if he refused to sign the new contract.

The High Court also held that a 12 month restriction on setting up in competition with Re-use was too wide to be reasonable, as were some of the other restrictions of six months.

Key point: Employers will not be able to rely on restrictive covenants if there is no consideration for them. Where an existing employee is asked to sign up to new restrictive covenants, they must be provided with some benefit. It should be made plain that the benefit is conditional on the restrictive covenants being agreed by the employee. As always, careful thought must be given to what legitimate business interests the employer is trying to protect and any restrictive covenants must be drafted carefully. Their duration should be no longer than is reasonably necessary to protect the legitimate business interests identified by the employer.

Finally, it is good practice to revisit restrictive covenants on a regular basis. Employees may be promoted or change roles, and covenants that were once appropriate may not remain appropriate. Revisiting restrictive covenants also presents an opportunity to potentially remedy any flaws in respect of the original covenants.

6. Employment Status

Pimlico Plumbers v Smith UKEAT/0495/12/DM

An individual engaged under a contract which describes him as an independent contractor potentially can be an employee.

Pimlico Plumbers (Pimlico) was a full service plumbing and maintenance company. It engaged 125 “contractors”, including Mr Smith. The terms of Mr Smith’s agreement with Pimlico described him as being an “independent contractor” and “in business on his own account”. He was required to provide his own tools and submit invoices in order to be paid. He could choose his particular working hours and reject certain jobs. In addition, Pimlico was under no obligation to provide work if there was none available.

The contractors were, however, held out to the public as being an integral part of Pimlico’s workforce. The contractors had to wear Pimlico uniforms, drive vans with Pimlico’s logo and could only be contacted by customers through Pimlico. Contracts and estimates were issued in the name of Pimlico and any payments were made to Pimlico.

Mr Smith brought claims for unfair dismissal, wrongful dismissal, entitlement to pay during medical suspension and failure to provide particulars of employment. In order to bring these claims, he needed to have employment status.

The EAT upheld the original employment tribunal’s decision that Mr Smith was not an employee. It found that the tribunal was correct to have regard to the financial risk assumed by Mr Smith, his degree of autonomy and the fact that both parties acted as if he was self-employed. It agreed, however, that Mr Smith was a “worker” because it was envisaged that he would provide personal service.

Key point: Proving employment status is not easy. However, a court or tribunal will always have regard to what has happened in practice and what was intended by the parties. An elaborate attempt by a business to sidestep employment laws, no matter how well-crafted any commercial agreement, will fall down if an individual is, in practice, treated like an employee.

7. Director’s Duties

Eurasian Natural Resources Corporation Ltd v Judge [2014] EWHC 3556 (QB)

It was not breach of contract, statute or fiduciary duty that a non-executive company director failed to deliver up confidential information provided to him by the company after termination of his directorship.

The Director (“D”) was a non-executive director of Eurasian Natural Resources Corporate Limited (the “Company”) from 2007. D’s director's service agreement provided that all information acquired during his appointment was confidential. However, it did not include any express term requiring D to deliver up confidential documents upon termination.

Believing that D had been responsible for disclosing confidential information to the press, the Company required D to undertake to deliver up confidential information and company property. D refused to give these undertakings and his directorship was terminated.

The High Court held there were no grounds for finding that D was subject to any express or implied duty to deliver up confidential documents after termination of his directorship. Had it been the "obvious but unexpressed intention of the parties", the court would have expected it to be incorporated into the contract. Moreover, the court had been shown no legal authority, code of practice, guidance or other evidence that would suggest that such a requirement was standard practice for directorships.

Key Point: In the context of non-executive directorships, unless an agreement expressly states what is to happen with confidential information when a director leaves, there is no duty (express or implied) to deliver up confidential information to a company on termination. Companies should therefore review their contracts and service agreements to ensure they are suitably protected.

8. Holiday entitlement

The Sash Window Workshop Ltd and another v King UKEAT/0057/14

Workers should be entitled to carry over untaken holiday from one holiday year to the next where they have been prevented from taking such leave due to ‘reasons beyond their control’

Mr King (“K”) worked for the Sash Window Workshop Ltd (SWW) as a commission-only salesman from June 1999 until October 2012. SWW terminated K’s contract when he reached 65. K was never paid by SWW for holidays or sickness absence.

K brought claims in the employment tribunal for age discrimination and 24 weeks’ unpaid holiday pay under the Working Time Regulations 1998 (“WTR 1998”).

The employment tribunal held that K was entitled to bring a claim for unpaid holiday pay under the WTR 1998, including pay in lieu of untaken leave that had accrued in previous years. In awarding this sum, the employment tribunal relied on the Court of Appeal's decision in NHS Leeds v Larner [2012] IRLR 825 which confirmed that where a worker's engagement is terminated, and he has accrued holiday during a previous leave year which he was unable to take due to sickness, the employer must make a payment in lieu of the untaken leave. The tribunal noted that Larner referred to sick leave, but saw no difference between being unable to take paid leave due to sickness, and being refused paid leave "as would have been the position in this case had the Claimant asked for it”.

SWW appealed to the EAT that K was not unable to take annual leave. He was not prevented by circumstances beyond his control from doing so, and so the principle in Larner should not apply.

In the absence of any findings of fact to support the conclusion that K had been prevented by reasons beyond his control from taking annual leave, the EAT held that the employment tribunal was not entitled to conclude that K was entitled to a payment in lieu of untaken holiday (as interpreted inLarner).

The EAT remitted the case back to the employment tribunal for reconsideration of the facts. If K was not prevented from taking holiday during the relevant leave years, then his entitlement to leave would be lost and so his entitlement to pay would also be lost.

Key Point: This decision leaves open the possibility of an employee who has been unable or unwilling to take annual leave in previous leave years, due to reasons beyond his control, to have a right to a payment on termination of his employment in lieu of that untaken leave entitlement.

In Larner, this was only stated to apply to cases where the employee was unable to take their annual leave in previous leave years due to sickness. However, the EAT's comments suggest that there may be an expansion to the Larner principle in respect of employees who are unable or unwilling to take their holiday entitlement due to reasons beyond their control.

Employers should review whether their employees/workers are using their full holiday entitlement, and if not what the reasons are for this.

9. Redundancy and Maternity Leave

Sefton Borough Council v Wainwright UKEAT/0168/14

The failure to offer an alternative role to an employee selected for redundancy while she was on maternity leave prior to dismissal was automatically unfair but not discriminatory

Mrs Wainwright (“W”) was employed by Sefton Borough Council (the “Council”) and was on maternity leave when her role was made redundant. A new role was created but offered to her collegue.

W brought claims in the employment tribunal for:

  • breach of Regulation 10 of the Maternity and Parental Leave Regulations 1999, which requires employers to offer a “suitable available vacancy” to women being made redundant whilst on maternity leave (failure to comply results in an automatically unfair dismissal); and
  • direct discrimination under Section 18 of the Equality Act 2010.

W won her unfair dismissal claim but lost her direct discrimination claim. The employment tribunal had not asked the reason why W had been treated the way she was. It followed that the employment tribunal was incorrect in assuming that a breach of Regulation 10 inherently equated to a form of discrimination.

Key Point: Breach of Regulation 10 of the Maternity and Parental Leave Regulations 1999 will amount to automatically unfair dismissal, but will not necessarily amount to a discriminatory act. Whether or not there is discrimination will depend on the facts of the case.

This is significant as compensation for unfair dismissal is capped, but there is no limit on the amount that can be awarded in discrimination cases. Despite the fact that the law does not afford a pregnant woman or a woman on maternity leave absolute protection, employers should consider restructurings that involve a pregnant woman or a woman on maternity leave very carefully. In particular, they must offer a woman on maternity leave any alternative employment that is both suitable and appropriate for her to do in the circumstances, without the need to apply or go through a competitive process alongside other employees.

10. TUPE – Organised Grouping of Employees on a Service Provision Change

London Borough of Hillingdon v Gormanley & Ors (Transfer of Undertakings: Entity) [2014] UKEAT 0169-14-1912

Robert Gormanley Limited (“RG”) was a firm employing, amongst others, three members of the same family. RG carried out painting and decorating work for the housing stock operated by the London Borough of Hillingdon. On 21 November 2012, Hillingdon told RG that it was not going to be given any more work and took the service back in house. On 23 November 2012, Hillingdon wrote to RG to state that TUPE did not apply. Two of the claimants continued to work for RG for six months after the Hillingdon contract had been lost, but were unsuccessful in finding work.

The judge at the preliminary hearing held that “TUPE applied to the service provision change which took place on 21 November 2014 from the First Respondent [RG Ltd] to the Second Respondent [Hillingdon]” and that the employees in question were assigned to an organised grouping of employees working within RG on behalf of Hillingdon. This position was affirmed by the judge at the employment tribunal hearing, who awarded compensation for unfair dismissal to each of the three claimants and held that Hillingdon failed in its duties under Regulation 13 of TUPE to inform and consult. Hillingdon appealed to the EAT.

The EAT overturned the decision of the employment tribunal which had found that TUPE applied and that the employees were assigned to an organised grouping. The employment tribunal had failed to take into account of the CJEU decision in Botzen v Rotterdamsche Droogdok Maatschappij BV [1985] ICR 519, which requires consideration of the contractual duties of employees and their role in the organisational framework of the transferor.

The employment tribunal had not considered whether, had there been other work (as there had been in the past), these employees would have undertaken work for other clients or whether they were principally engaged to work on the Hillingdon contract.

The ruling that the employees were assigned to the Hillingdon contract was set aside and the matter was remitted to a fresh tribunal hearing.

Key Point: When contemplating service provision changes, it is important to consider the way in which an organisation is structured and the individuals’ roles within it in order to determine whether he or she is assigned to an organised grouping of employees. One piece of evidence will be the contracts of employment, which may inform a decision regarding whether the individuals’ duties are confined to certain activities for certain clients (suggesting assignment to an organised grouping) or whether the duties are more general in nature (suggesting no assignment to an organised grouping). However, regard will always be had to how employees are organised in practice and the intention behind any organisation.

11. Unfair Dismissal – Mental Health

Burdett v Aviva Employment Services Ltd [2014] UKEAT 0439-13-1411

An employer was found not to have acted fairly in dismissing a mentally ill employee for gross misconduct after he had sexually assaulted two female colleagues.

Mr Burdett ("B") was employed by Aviva Employment Services Ltd ("Aviva"). In September 2007, he was admitted to hospital and was prescribed antidepressants and antipsychotic medication. In November 2007, B was referred to Aviva’s Occupational Health ("OH") who confirmed that he suffered from a depressive illness.

In 2010, on medical advice, B discontinued his antipsychotic medication. He then decided to discontinue his antidepressants, without seeking medical advice.

In April 2011, whilst at work, B sexually assaulted two female fellow employees and threatened to assault a security guard. On leaving the premises, he assaulted a female member of the public and attempted to assault a further woman. He was arrested and detained under the Mental Health Act. He was made the subject of a mental health treatment requirement for three years, under which he would have to submit to treatment and a care plan was drawn up, under which B would receive monthly injections of his antipsychotic medication and would be supervised daily in terms of taking his antidepressants. Before commencing disciplinary proceedings, Aviva obtained a medical report from OH and from B's specialist. OH advised Aviva that it could not be guaranteed that B would take his medication in future.

The disciplinary hearing manager concluded that "the medical regime could not provide 100% guarantee that [B] would not commit further inappropriate actions towards colleagues, a risk [he] was not prepared to take”. He considered that the only sanction, given the gross misconduct was admitted by B, was dismissal.

The EAT did not accept that Aviva had reasonable grounds for the belief that B had committed acts of gross misconduct. Gross misconduct requires culpability on the part of the employee. What had to be considered was whether B had committed the misconduct wilfully or in a grossly negligent way.

With regard to objective justification for disability related discrimination, the EAT concluded that the employment tribunal's reasons did not show that the employment tribunal had considered the alternative of home-working in the context of future risk or otherwise considered alternative means available to Aviva.

Key Point: Gross misconduct requires culpability on the part of the employee. It is important that employers take all mitigating circumstances into account, such as an employee’s mental health, when dealing with cases of gross misconduct. It is also not safe to assume that dismissal should automatically arise in all cases of gross misconduct and employers should consider all reasonable alternatives before deciding to dismiss.

12. Unfair Dismissal – Gross Misconduct

Brito-Babapulle v Ealing Hospital NHS Trust [2014] EWCA Civ 1626

Dismissal does not inevitably fall within the range of reasonable responses following a finding of gross misconduct.

Ms Brito-Babapulle (“BB”) was employed as a consultant haematologist at Ealing Hospital (the “Hospital”). Her contract permitted her to hold sessions with private patients. Despite being told not to see patients whilst off sick, the Hospital believed that she was doing so and initiated disciplinary proceedings, telling BB that the allegation was potentially one of gross misconduct which could lead to dismissal.

BB was summarily dismissed after the disciplinary panel found, on the basis of the investigation, that she had worked in private practice while certificated sick from the NHS and receiving sick pay and that this "constituted fraud which could be considered as gross misconduct" (emphasis added). BB brought an unfair dismissal claim.

The original employment tribunal held that "Once gross misconduct is found, dismissal must always fall within the range of reasonable responses and it is not for this tribunal to substitute any sanctions we might have imposed or whether we would have dismissed the Claimant in these circumstances.

BB appealed, claiming that the tribunal had failed to address the reason for the dismissal being fraud.

The case reached the Court of Appeal, which made two key findings:

  • The label of “fraud” or “dishonesty” was immaterial to the finding of misconduct. BB had been dismissed for working in private practice whilst on paid sick leave, there was a genuine belief that the misconduct had occurred and there was reasonable grounds for that belief.
  • That claiming sick pay whilst working elsewhere is regarded as very serious by employers and any substantiated case almost certainly will lead to dismissal. However, this is not an inevitable conclusion.

Key Point: Whilst the label of fraud did not affect the finding of misconduct in this case, employers should be wary of using inflammatory language to describe conduct as it may compel an employee to persist with litigation to “clear their name”. Finally, whilst cases will always turn on their particular facts, where an employee claims sick pay whilst working in another capacity, that may justify a dismissal. However, dismissal will not always fall within the range of reasonable responses in cases of gross misconduct and employers should take into account all mitigating circumstances (length of service, previous conduct etc) before deciding to dismiss and the facts in question.

13. Variations to employment contract terms

Wess v Science Museum Group UKEAT/0120/14/DM

If an employee fails to object to a contract variation, and continues to work for a period of nine years, they will have impliedly accepted the contract variation.

Ms Wess was employed by the Science Museum Group from 1979. In 2003, following a restructuring exercise and re-grading of her role to Curator, she was offered a new employment contract, which reduced her notice entitlement from six months to 12 weeks. Ms Wess did not sign the new employment contract, but did not explicitly object to the new notice period. She did, however, object to the re-grading and title of her role, which led to it becoming the role of Senior Curator.

In December 2010, Ms Wess raised complaints of bullying going back to 2004, but said that she did not wish to raise a formal grievance at that time. However, she subsequently raised formaI grievances in 2011, which were not upheld. In 2011, Ms Wess also received an unsatisfactory appraisal and was put on a performance improvement plan. In the same year, the Science Museum Group launched a “change programme”. The result of the “change programme” was that Ms Wess’s employment terminated by reason of redundancy in November 2012. Ms Wess brought claims for unfair and wrongful dismissal – the wrongful dismissal claim being based on Ms Wess’s assertion that she was entitled to six months’ notice.

Both the employment tribunal and the EAT held that Ms Wess had impliedly accepted the new employment contract issued to her in 2003, including the change to her notice entitlement. Whilst she had successfully objected to her re-grading and job title, she did not object to the change to her notice entitlement and continued to work to the new contract without further objection. The EAT noted that Ms Wess had a trade union role and was someone who could have been expected to know the details of the terms and conditions of her employment and could have raised any objections. She did not object to the change to her notice entitlement.

Key point: Tribunals do not view favourably the unilateral imposition of new terms and conditions of employment by employers. Nevertheless, it is still for employees to object to any changes imposed upon them. If employees do not object, and continue to work under the new terms and conditions of employment imposed upon them, they risk impliedly accepting the changes.

14. Tribunal Procedure

Contract Bottling Ltd v Cave and another UKEAT/0100/14

Can the Employment Appeal Tribunal (“EAT”) overturn an employment tribunal assessment of a Polkey deduction on the basis of lack of reasoning given by the employment tribunal?Yes.

If a tribunal decides that an employee has been unfairly dismissed, it will award such compensation as is just and equitable in all the circumstances, having regard to the loss sustained by the employee in consequence of the employer's actions (Section 123(1), Employment Rights Act 1996). Having assessed an employee's loss, tribunals may make a reduction in the compensatory award (a Polkey deduction) to reflect the possibility that there would have been a fair dismissal in any event.

Contract Bottling Ltd (CBL) became insolvent and undertook a redundancy exercise. Unusually, CBL decided to put its 10 administrative staff into the same selection pool, regardless of their different functions. The employees were then compared using a single selection matrix with a view to dismissing four staff and keeping the others, whatever their function had been, and retraining them as necessary.

Two employees brought claims for unfair dismissal, which were upheld by the employment tribunal. The employment tribunal initially found that no Polkey deduction was justified.

On appeal, the EAT found that there was evidence to suggest a chance of dismissal, such as the obvious need to reduce the overall number of administrative staff with four out of 10 staff actually being dismissed. The EAT found that the employment tribunal’s reasoning on the Polkey issue was insufficient and the case was remitted back to a fresh tribunal. On remission, the employment tribunal ruled that a 20% Polkey deduction was appropriate to reduce the compensatory awards of each employee.

CBL appealed again to the EAT, who found that the employment tribunal had again failed to provide adequate reasons and had simply "plucked a figure in the air" to form the basis of the Polkey deduction. On invitation from both parties, the EAT then made its own assessment of the applicable deduction.

The EAT noted that taking a mathematical approach, and ignoring any evidence, each member of the administrative staff had a 4/10 chance of being selected for redundancy, and so a 40% reduction would be appropriate. However, this figure had to be reduced to take account of the possibility that the offers made to the employees would have been effective in saving their jobs.

The above factors led the EAT to conclude that the best way of resolving the chances of fair dismissals would be to make a Polkey deduction of 33% in each case.

Key Point: This is a useful case, as it demonstrates clearly the factors the tribunal will take into account when assessing a Polkey deduction.

15. National Minimum Wage

Commissioners for HM Revenue and Customs v Lorne Stewart plc UKEAT/0250/14

Deductions from a final salary payment to repay the cost of a training course should be ignored when calculating whether the National Minimum Wage had been paid.

When deciding whether a worker has received the National Minimum Wage (“NMW”), the relevant sum is their average hourly rate, taking into account the wages earned over the relevant pay reference period divided by the hours worked. In making that calculation, the following payments and deductions in the relevant pay reference period will be taken into account:

  • gross pay before deductions for income tax and NICs - less
  • payments and deductions that reduce the NMW.

Regulation 33(a) of the National Minimum Wage Regulations 1999 (SI 1999/584) (“NMW Regulations”) provides that "any deduction in respect of conduct of the worker, or any other event, in respect of which he (whether together with any other workers or not) is contractually liable" (emphasis added) should also be excluded from the NMW calculation.

Miss Brade (“B”) worked for Lorne Stewart plc (“LS”) and signed an agreement whereby she agreed to repay all or part of the costs of a training course if she left LS within two years of attending the course. The agreement authorised LS to make such deductions from B’s final salary payment. B resigned before the two year period had expired, and LS made a deduction from her final salary payment.

HMRC argued that, since Regulation 33(a) is an exception to the NMW legislation and open to abuse, it should be construed narrowly. Therefore, "conduct" should mean "misconduct" and that "any other event" must mean something like misconduct, for example, bad workmanship or negligence.

The EAT agreed that "conduct" infers misconduct, but the words "any other event" should be interpreted as having some relationship to conduct for which the worker is responsible, but does not necessarily amount to misconduct. For example, a voluntary resignation would come within the concept of "any other event", but not a dismissal forced on a worker for redundancy for which the worker is not responsible.

As B resigned voluntarily, LS were entitled to deduct the money due back in respect of the course without infringing the NMW legislation.

Key Point: The focus of the EAT’s reasoning regarding why the deduction could be ignored for the purposes of the NMW was who had responsibility for the employment relationship ending (i.e. B’s voluntary resignation) not because the agreement permitted LS to make deductions. Employers may wish to review their contracts of employment in respect of the position of recovery on training costs on termination of employment.

16. Whistleblowing - Time Limit for Detriment Claims

McKinney v London Borough of Newham UKEAT/0501/13/LA

Does the time limit for bringing a whistleblowing complaint start from the date of the alleged detriment or the date an employee becomes aware of the detriment?

It is the date of the alleged detriment, regardless of whether or not the employee is aware of the detriment at the time.

Mr McKinney was employed in the council’s finance department from 1985 until the termination of his employment in 2012. Whilst still employed by the council, he brought a claim alleging detrimental treatment short of dismissal on the grounds that he had made protected disclosures (i.e. he had “blown the whistle” on his employer). He brought a second claim, following the termination of his employment, for constructive unfair dismissal. Both claims were defended by the council and subsequently combined.

The principal issue before the employment tribunal was to determine when the three month limitation period began to run for the purposes of Mr McKinney’s whistleblowing complaint. Was it (i) when the council had reached its final outcome in respect of Mr McKinney’s grievance on 8 October 2011 or (ii) when Mr McKinney had received the council’s outcome letter on 14 October 2011? Mr McKinney submitted his whistleblowing complaint to the employment tribunal on 11 January 2011, so his claim would have been out of time if the limitation period began to run from 8 October 2011. The employment tribunal concluded that his claim was out of time as 8 October 2011 was the relevant date. Mr McKinney appealed.

The EAT, having analysed the relevant case law, concluded that “…a clear thread is now emerging which points towards the counter-intuitive position that time begins to run against the claimant relying on a detriment, both under the Employment Rights Act and the Equality Act, whether or not he is aware that a detriment has been suffered.” It therefore held “without enthusiasm” that the employment tribunal judge was right to conclude that the limitation period began to run from the date of the council’s final grievance decision on 8 October 2011. Mr McKinney’s whistleblowing claim was therefore out of time.

Key Point: For the purposes of bringing a whistleblowing claim, the limitation period will start running from the date an alleged detriment is suffered by a potential claimant, whether or not they are aware of it. In cases where any detriment is not immediately obvious to an employee, they may be out of time by the time they bring any claim.

17. Whistleblowing – Territorial Scope

Smania v Standard Chartered Bank UKEAT/0181/14

An employment tribunal did not have jurisdiction to hear a whistleblowing claim brought by an Italian banker, living and working in Singapore, whose only connection to the UK was that it was the base of the bank’s head office.

The Claimant lived and worked in Singapore as a banker for Standard Chartered Bank (the “Bank”). His contract was subject to Singaporean law. The Claimant made allegations of financial malpractice against the Bank and was subsequently dismissed. The Claimant then attempted to bring a detriment on the ground of making a protected disclosure claim (whistleblowing claim), in the UK employment tribunal.

Applying the test in Ravat v Halliburton Manufacturing and Services Ltd [2012] UKSC 1 (a case concerning ordinary unfair dismissal), the Employment Appeal Tribunal (“EAT”) noted that in cases where the employee’s place of work is not Great Britain, the correct question is whether the connection with Great Britain is sufficiently strong that the employment tribunal should hear the claim (the “Ravat Principle”).

The EAT held that the Ravat Principle was not confined to ordinary unfair dismissal cases and could equally apply to whistleblowing provisions of the Employment Rights Act 1996.

Key Point: This case reaffirms the position that for claimants whose place of work is not in Great Britain, their connection to Great Britain needs to be sufficiently strong before a tribunal will hear their case. Compare this case to Lodge v Dignity & Choice in Dying below.

18. Unfair Dismissal and Whistleblowing – Territorial Scope

Lodge v Dignity & Choice in Dying UKEAT/0252/14

An employment tribunal did have jurisdiction to hear an unfair dismissal and whistleblowing claim brought by an Australian national who continued to work remotely for the Respondent, having left its London office to return to Australia.

The Claimant was an Australian national who worked for the Respondent at its Oxford Street office, and remotely from her home in London, as Head of Finance. After her mother became seriously ill the Claimant moved back to Melbourne, Australia, but continued to work remotely for the Respondent.

The Claimant later resigned and brought claims for constructive unfair dismissal and whistleblowing in the English employment tribunal. Despite noting that, “the Claimant’s employment was clearly connected with Great Britain”, the employment tribunal refused to hear her claims on jurisdiction grounds. The Claimant appealed.

The EAT reversed the decision of the employment tribunal noting that the Respondent had not disputed the Claimant’s contention that she could not bring a claim in Australia; that the Respondent had handled the Claimant’s grievance in London; and all work done by the Respondent from her Melbourne base was for the benefit of the Respondent in London. The case will now proceed to a hearing on the merits.

Key Point: Despite no longer physically working in Great Britain, the fact that the Claimant was working for the Respondent, albeit on a virtual basis, was no barrier to bringing her claims in the English employment tribunal, as she continued to work for the Respondent’s benefit and had a clear connection to Great Britain.

19. Trade Unions – Delay in Implementing Action Over Ballot

Westminster Kingsway College v University and College Union (unreported)

Can strike action by a union take effect where there has been a substantial interruption between the original ballot/strike action and the one proposed? No.

In late 2013, the University and College Union (“UCU”) did not accept a pay increase offered by Westminster Kingsway College (the “College”) and balloted its members for strike action. A one-day strike took place in December 2013, with no further strikes taking place regarding that pay dispute.

Pay negotiations for 2014/15 began in March 2014, although UCU noted that the 2013/14 dispute had not been resolved. UCU called for a strike in September 2014 (to take place on 14 October 2014) following the breakdown in these pay negotiations. UCU sought to rely on the same ballot protection it had obtained after the one day strike in December 2013.

The College applied for an interim injunction to prevent the strike going ahead.

The High Court granted the injunction and held that "what was authorised by ballot can cease to be authorised if industrial action is effectively discontinued”.

The High Court held that the proposed strike action in October 2014 was not a continuation of the action from December 2013 as there had been a substantial interruption between the two events.

Key Point: Any strike action by a trade union has to be supported by a valid, up to date ballot. The period of validity of a ballot is usually four weeks and, where there is a series of rolling strikes, the first strike has to take place within four weeks of the ballot. Therefore, the longer the period of time between ballot and strike action, without any specific reason for the delay, the more likely a new ballot will be required.

20. Judicial review of tribunal fee regime rejected

R (Unison) v Lord Chancellor and another [2014] EWHC 218 (Admin)

On 17 December 2014, the High Court rejected UNISON’s second application for the judicial review of the introduction of fees to bring tribunal claims, introduced on 29 July 2013.

UNISON had produced statistics to show a substantial fall in the number of tribunal claims following the introduction of the fees. UNISON claimed that the introduction of the fees, amongst other things, constituted unlawful discrimination.

The High Court, however, rejected the application, noting that there was a lack of evidence that any particular individual had suffered a detriment by being unable to bring a claim. Despite this, the High Court granted UNISON permission to appeal the decision.

21. Hearing on whether holiday pay include commission

Lock v British Gas Trading Limited and others (C-539/12)

On 22 May 2014, the Court of Justice of the European Union (“CJEU”) held that holiday pay must include commission where that is part of remuneration. The case has been remitted to the employment tribunal to consider whether domestic legislation can be interpreted in line with the CJEU's decision and, if so, the level of holiday pay to which the claimant was entitled. This is due to take place on 4 February 2015.

Key Point: It is very unlikely that the employment tribunal will fail to find that Mr Lock’s holiday pay should not have included his commission. What will be interesting, however, is how the tribunal determines that Mr Lock’s holiday pay should be calculated, particularly in respect of any reference period.

22. Judgment to be given in the “Woolworths case” – collective redundancy consultation

USDAW v Ethel Austin Ltd (in administration) and another UKEAT/0547/12 (European case reference: USDAW and Wilson v WW Realisation 1 Ltd (in liquidation), Ethel Austin Ltd and BIS C-80/14 (the "Woolworths case"))

The Woolworths case changed the legal landscape in relation to collective consultation when there are redundancies of 20 or more employees, as the EAT held that the words “one establishment” in TULRCA 1992 should be disregarded. This meant that employees working in Woolworths stores where fewer than 20 employees were employed had the right to be consulted and could claim protective awards for failure to consult.

The Court of Justice of the European Union (“CJEU”) considered the case in November 2014. The opinion of the Advocate General is due on 5 February 2015, with the CJEU’s final decision due shortly after that.

Other News

1. HMRC consultation on restricting tax relief for travel expenses of temporary employees

There are currently 1.7 million people undertaking temporary work in the UK (6.5% of all employees). Some of these workers are on an overarching contract of employment (“OAC”), a legitimate form of contract to place temporary workers on multiple separate work placements with end user clients (often at different locations) but on terms and conditions of a single permanent employee.

Generally tax and NICs relief is not available for the travel and subsistence expenses incurred by employees on travel between their home and normal place of work. However, an employee can get tax and NICs relief if they travel to a “temporary workplace” to perform “a task of limited duration”.

The government has noted that some agencies that use OACs take the arrangements one step further and reimburse travel and subsistence expenses in return for deduction in salary, effectively swapping pay that would subject to tax and NICs for reimbursed expenses that are not. It is reported that this practice costs the exchequer £400m a year.

On 16 December 2014 HMRC launched a consultation on options for restricting such tax relief via OACs, which includes an option for treating all workplaces of the end user client as the temporary worker’s ‘permanent workplace’. The consultation is open until 10 February 2015 and responses will be considered as part of any future government action.

2. Agency workers research – pay between assignment survey

The Agency Workers Regulations, amongst other things, entitle agency workers to equal treatment with regard to the same basic working conditions, including pay and annual leave with directly recruited employees, after 12 weeks with the same hirer. However, there is a derogation from this if the agency offers the worker a permanent contract of employment that pays the agency worker between assignments (known as the “Swedish Derogation”).

In December 2014, following a survey of members of the Recruitment Employment Confederation, the Department for Business Innovation & Skills (“BIS”) published a report on the use of ‘pay between assignment’ (“PBA”) by agencies.

Whilst there were only 129 responses out of a membership of over 3,000, the BIS report found that:

  • 67% did not find work for individuals employed on a PBA arrangement.
  • agencies listed a number of reasons why they do not use workers on PBA arrangements - common concerns were that the client had not requested the use of PBA and the affordability of such arrangements.
  • 50% found that there was just one week between assignments of temporary workers on PBA arrangements.

3. BIS calculator for leave and pay when having a child

On 17 December 2014, the BIS published an online calculator to help prospective parents work out what their leave and pay entitlements are when having a child. Its aim is to assist prospective parents find out:

  • if they can get maternity, paternity or shared parental leave, and
  • how much pay they can get if they take leave.

A link to the calculator is here.

On 29 December 2014, the BIS updated its “Shared parental leave and pay: employers' technical guide” to include additional Q&As on early births and the interaction between shared parental leave and pay and sick leave.

A link to the updated guidance is here.

4. Amended Home Office employer’s guide on right to work checks

In December 2014, the Home Office amended its guidance on employer right to work checks. These amendments include:

  • Where the Residence Card, Permanent Residence Card, Accession Residence Card or Derivative Residence Card held by a non EEA national is endorsed on that non EEA migrant’s passport, that passport may be current or expired. However, the Residence Card, Permanent Residence Card, Accession Residence Card or Derivative Residence Card itself must be current and the employer must still check that both documents belong to the worker.
  • Clarification of the work placement rules for international students. A tier 4 student is only permitted to undertake a work placement when it is an integral and assessed part of the course. A work placement is separate from any employment that a student may be permitted to undertake while they are following the course of study.
  • Updated guidance in respect of Transfer of Undertakings (Protection of Employment) Regulations (“TUPE”) regarding transfers and changes to the constitution of corporate employers. An explanation of why a transferee under a TUPE transfer should perform the right to work check and why a right to work check is not necessary when there is only a change in the legal constitution of the organisation e.g. from a private limited company to a public limited company.

5. TUC report reveals zero hours contract workers earn significantly less than permanent employees

On 15 December 2014 the TUC published the findings of its report “The Decent Jobs Deficit: The Human Cost of Zero-Hours Working and Casual Labour”. The report highlights that:

  • the average weekly earnings for zero-hours workers are £188.00, compared to £479.00 for permanent workers.
  • zero-hours workers are five times more likely not to qualify for statutory sick pay than permanent workers as a result of their lower level of take home pay.
  • women on zero-hours contracts earn £32 a week less, on average, than men employed on the same kind of contracts.
  • only 23% of zero-hours workers work over 35 hours a week, compared to 60% of other employees.

6. New company car fuel rates

From 1 December 2014 HMRC has published new advisory fuel rates for company cars. The rates are to be used only where employers either reimburse employees for business travel in their company cars, or require employees to repay the cost of fuel used for private travel.

A link to the new fuel rates is here.

7. New scheme to tackle age discrimination in the workplace

On 23 December 2014, the Department for Work and Pensions announced that, from April 2015, a new ‘older workers’ champion scheme will be introduced across the UK aimed at helping jobseekers aged over 50 back to work. It is reported that:

  • 25% of women and 16.6% men who reach state pension age have not worked since they were 55, and
  • 47% of all unemployed people between the ages of 50 and 64 have been out of work for a year or more.

It is intended that the scheme will offer work support with a career review, digital support and contact with small and medium sized business with vacancies to fill. The government considers that there could be significant economic benefits of increasing the employment of older workers.

This ties in with a recent CBI/Accenture Employment Trends Survey 2014, which found that 23% of the 323 senior executives surveyed noted that they were uncertain about how best to manage the retirement of older employees, following the abolition of the default retirement age.

8. The Conservatives election pledge to ban trade union strikes that have low ballot turnouts

The Transport Secretary, Patrick McLoughlin, has announced that, under a future Conservative government, public sector workers in health, fire services, education and transport will be unable to go on strike without the support of 40 per cent of those entitled to vote. Currently, a strike is valid if it is backed by a simple majority of those balloted.

Writing in the Telegraph, Mr McLoughlin cited a one-day bus driver strike in London, in which he said that the industrial action was being taken with the backing of just 16 per cent of the RMT trade union's members. Mr McLoughlin confirmed that the proposed crackdown on industrial action, which will be included in the Conservative party election manifesto, was in order to stop union bosses holding Britain “to ransom”. The Conservatives have also proposed:

  • lifting a ban on the use of agency workers during industrial action, enabling schools to draft in supply teachers instead of closing.
  • introducing a 50 per cent minimum turnout threshold for all strike ballots.
  • measures to end "rolling mandates" so that strikes cannot be called on the basis of ballots conducted years before.

Commenting on the proposals, Unison general secretary Dave Prentis noted that "These measures would make it virtually impossible for anyone in the public sector to go on strike…”. However, CBI deputy director general Katja Hall welcomed the proposals, commenting that "The introduction of a threshold is an important - but fair - step to rebalance the interests of employers, employees, the public and the rights of trade unions…

9. ACAS Code of Practice on Disciplinary and Grievance Procedures – Revised

ACAS has revised its Code of Practice on Disciplinary and Grievance Procedures (the “Code”), following the case of Toal v GB Oils Limited, regarding the right to be accompanied at disciplinary and grievance hearings.

The Code has been changed to make it clear that employers are not entitled to reject a worker’s choice of companion if that companion is “a fellow worker, a trade union representative, or an official employed by a trade union” and the request itself is made in a reasonable manner.

The Code now also makes it clear that it is a matter of good practice only (and not a legal requirement) that “a worker may choose to be accompanied by a companion who is suitable, willing and available on site rather than someone from a geographically remote location”.

The revised Code is currently before Parliament awaiting final approval and a link to the revised Code is here.