Continuity of employment

Lipinski v Ebbsfleet Autospray Centre Ltd

Mr Lipinski's relationship with Ebbsfleet could best be described as on/off. It went like this:

• started work in October 2006
• dismissed in July 2008
• re-engaged in December 2008
• dismissed in March 2010 (and brought an unfair dismissal claim)
• started working for another employer
• reinstated by Ebbsfleet in July 2010 (and dropped his claim)
• dismissed in May 2011 (and brought a claim).

Disjointed, yes. But how continuous was his service? To be able to claim unfair dismissal after the 2011 dismissal, he'd need to have been continuously employed for at least one year.

The Employment Appeal Tribunal said that he had been because of regulations which are in place to preserve continuity in certain, specific, circumstances. These are where:

• the employee has been dismissed;
• they have presented a complaint about that dismissal; and
• as a consequence of that complaint, the employee is reinstated or re-engaged.

The employment tribunal will now decide if Mr Lipinski satisfied all three of these. If he didn't, he could be facing another dismissal - of his case. But there's always the chance of an appeal

Pack more into holiday pay?

Neal v Freightliner Limited

An employment tribunal has potentially broadened the scope of statutory holiday pay.

In Neal v Freightliner it held that a freight worker was entitled to have his voluntary overtime taken into account when his employer calculated his holiday pay. The overtime work was closely connected to the contractual duties.

What does this mean for employers? Well, it's worth thinking about taking workers' overtime and shift premium payments into account when calculating holiday pay. But until the Neal case is heard by a higher court (the Employment Appeal Tribunal would be the next port of call) it creates yet another grey area for employers and for other tribunals which are not bound to follow the decision.

Claim against colleague after settlement

Hurst v Kelly

Employers quite rightly expect settlement agreements to draw a line under employment issues between them and their departing employees. But do they put an end to claims against colleagues too? Not necessarily, as the Employment Appeal Tribunal (EAT) pointed out in Hurst v Kelly.

The employee signed a compromise agreement preventing her from bringing any claims against her employer arising out of her employment or its termination. She subsequently brought a sexual harassment claim against her line manager. The employment tribunal held that it wasn't able to hear the claim because the former employer hadn't been named as a party.

But the EAT held that that didn't matter. Where victimisation in the course of employment is alleged, a claim can be brought against a former colleague without having to include the employer in the proceedings.

The case highlights that that wording of any settlement agreement really does set the boundaries and employers need to negotiate the best possible terms - perhaps protecting remaining staff from future claims, perhaps not.

No carry-over of additional leave

Sood Enterprises v Healy

Last year, the Court of Appeal decided that workers could carry over their Working Time Directive (WTD) holiday entitlement of four weeks. But it didn't go on to deal with what should happen to the additional 1.6 weeks' leave provided to UK workers under the Working Time Regulations (WTR).

That was the question for the Employment Appeal Tribunal (EAT) in this case. Mr Healy was off work for almost a year after suffering a stroke, although his leave spanned two leave years. When he resigned he wasn't paid for the leave which he'd been unable to take because of sickness, and brought an unlawful deduction from wages claim.

Mr Healy won his case and the tribunal ordered the employer to pay him more than the four weeks' leave entitlement under the WTD (dipping into the extra 1.6 weeks). But the EAT held that that was wrong - without a relevant agreement between Mr Healy and his employer, he could not be paid in lieu of all or any of the additional 1.6 weeks under the WTR.

So here's some clarity for UK employers. Where a worker is on long-term sick leave then unless you've agreed otherwise they are only entitled to carry over up to four (and not 5.6) weeks' leave

Dismissal versus mutual termination

Francis v Pertemps Recruitment

Mr Francis was employed by the agency, Pertemps. He was no longer needed by the agency's client and was given two options: either two weeks' notice plus redundancy pay, or two weeks' notice with Pertemps looking for new work for him.

He chose the first, and Pertemps wrote to him confirming his "formal notice of redundancy". He was told that he had the right to "appeal against the decision to terminate [his] employment".

Was this a dismissal or, as Pertemps argued, a mutually agreed termination? It was a dismissal, said the Employment Appeal Tribunal. Even though Mr Francis had been given choices about the terms of his departure, both options involved him being given notice. The language used by Pertemps pointed to this being an employer's termination.

A warning then that what may seem consensual (wholly or partly) will not necessarily be judged to be. What was the trigger? How were terms agreed? What language was used? These could all be important factors in any termination, particularly if an unfair dismissal claim happens to follow.

Disability and other ailments

Commissioners for HMRC v Whiteley

Disability raises all sorts of complex workplace issues, and the Employment Appeal Tribunal (EAT) has just taken a look at one of these. What should an employer do when an employee is absent because of a combination of their disability and other ailments?

Ms Whiteley had asthma. It was a disability made worse by respiratory infections which made her absent from work. HMRC's sickness policy said that an employee who was off work through illness for 10 days or more could be disciplined. Ms Whiteley challenged that policy, saying that it put her at a disadvantage and that HMRC had failed to make reasonable adjustments.

So what should an employer do when disability interacts with other ailments? The EAT has given some guidance, and it involves taking one of two courses of action. Either:

• carefully consider (with expert evidence) the periods of absence, and try to analyse which were because of the disability and which were not; or
  
• use proper information to work out what sort of periods of absence the employee would reasonably be expected to take over the course of an average year because of their disability.

Nobody is suggesting that either is an easy task, but get this right and you'll have done the reasonable thing.

Gross misconduct and dismissal

Brito-Babapulle v Ealing Hospital NHS Trust

An employee guilty of gross misconduct is usually dismissed, and more often than not that's the correct action for the employer to take. But dismissal shouldn't be an automatic consequence; an employer should always look carefully at whether it would be a fair sanction.

That was the reminder issued by the Employment Appeal Tribunal (EAT) in Brito-Babapulle v Ealing Hospital NHS Trust. It wasn't inevitable that a hospital consultant who had been treating private patients while on sick leave from the NHS would be dismissed, the EAT said. She may have been guilty of gross misconduct but was it reasonable to dismiss her in light of all the mitigating circumstances? An employment tribunal will now decide.

Surveillance not a breach of human rights

County and Borough of Swansea v Gayle

The Employment Appeal Tribunal (EAT) was asked to decide if covert surveillance that captured an employee's misconduct was a breach of privacy, and if he had been unfairly dismissed.

Mr Gayle worked for Swansea Council. He was suspected of playing squash when he should have been at work, and so the Council used a private investigator to film him. The recording was used in evidence against Mr Gayle and he was dismissed.

He brought an unfair dismissal claim, also arguing that the Council had breached Article 8 of the European Convention on Human Rights - the right to respect for private and family life. The EAT found against him. The dismissal was fair. Employers are entitled to know where their employees are and what they are doing while they are being paid. There had been no breach of Article 8 either; Mr Gayle had been filmed in a public place and therefore should not have expected privacy.

As tempting as it may be to leap into action that will catch employees red-handed, don't. Carefully weigh up the pros and cons of commissioning and using this sort of surveillance. In Mr Gayle's case where the misconduct amounted to a type of fraud, it was found to have been justified - but it won't always be.

The new grey(ish) whistleblowing test

The new whistleblowing provisions are in. As of 25th June the law is clearer about the circumstances in which whistleblowers are protected from dismissal or mistreatment in the workplace.

We'd love to say things are now black and white but, as so often the case, there are a few shades of grey.

Here are some of the main points:

• to trigger whistleblowing protection, the employee must reasonably believe that their disclosure is in the public interest.
• 'public interest' isn't defined, but will not normally cover whistleblowing about a breach of the employee's own employment contract. That sort of complaint should be raised as a grievance.
• disclosures do not have to be made in good faith - they will be protected even if motivated by spite or money.
• protection now extends to actions against the whistleblower by another employee. It used to the case that only the employer's actions mattered. Now, a whistleblower can bring a tribunal claim stemming from a detriment, or bullying or harassment brought about by a colleague.

Talk to us about updating your whistleblowing policy to take account of the changes.

'Stroppy little teenager' remark was harassment

Roberts v Cash Zone

An employment tribunal has decided that an 18 year-old was harassed on grounds of her age when her employer made various comments about her during performance meetings.

Cash Zone described her as a 'kid', a 'stroppy kid' and a 'stroppy little teenager'. While the tribunal concluded that 'teenager' was an accurate description, it was held to have been used in a pejorative, rather than factual, sense.

Ms Roberts was awarded £2,000 in compensation. The amount can be put down to there having been a series of intentionally critical comments, as opposed to a one-off remark.

The reality of this case is that 'teenager' can conjure up plenty of stereotypical connotations. Could it have been found to have been an innocent and non-discriminatory reference to a person's age? A mere description? When prefixed with 'stroppy' and 'little' then probably not.

Unfair to dismiss for ill-founded complaints

Woodhouse v North West Homes Leeds Ltd

Mr Woodhouse raised ten grievances and brought eight tribunal claims against his employer over a four-year period. They all alleged race discrimination and almost all were found to be without merit.

His employer eventually dismissed him, believing that he had lost trust and confidence in the company. A tribunal claim followed in which Mr Woodhouse alleged that he had been dismissed for doing 'protected acts'. (Making a claim under, or alleging a breach of, the Equality Act can amount to a protected act. Dismissing someone because they have carried out a protected act amounts to victimisation.)

The tribunal found for the employer. There had been no victimisation. The employer hadn't treated Mr Woodhouse less favourably because of his race; any other employee who had raised a similar number of ill-founded complaints would also have been dismissed. The dismissal had been for 'some other substantial reason' (trust and confidence) and not because of protected acts.

However, the Employment Appeal Tribunal (EAT) decided otherwise. Even where an employee raises grievances which are not made out, they are protected from being victimised (as long as the grievances were raised in good faith). The question is whether or not the employee had been dismissed because he had complained of discrimination, which Mr Woodhouse had. But if the grievances had been made in bad faith then things would have been different; they wouldn't have amounted to protected acts and there couldn't be victimisation.

So where an employee raises a discrimination-based grievance (or series of grievances), don't just focus on their validity. If the employee really does believe that they had been mistreated, and they don't have an ulterior motive, then dismissing them - or taking any detrimental action against them - is likely to be victimisation.

Talk with us about dealing with employees who raise multiple complaints to avoid bigger headaches down the line.

Investigations where crime alleged

Miller v William Hill

Q: What is a reasonable investigation?
A: It depends.

Reasonableness is all about context, and that includes consequences. Where an employer is investigating misconduct involving possible criminal activity, it should take extra care. That's because of the serious effects that these sorts of dismissals can have on employees - damage to their reputation and on their ability to work in the future, for example. So it's reasonable to investigate those things which could exonerate the employee, as well as those pointing to their guilt.

That's what the Employment Appeal Tribunal (EAT) held in Miller v William Hill. Ms Miller was the deputy manager of a betting shop. She was suspected of having taken money which should have been returned to customers whose bets were void. She claimed to have made the refunds, but her explanations didn't fit with CCTV footage. The employer didn't believe her and she was dismissed.

Was the tribunal right to find that the dismissal was fair? The EAT said not. One of Ms Miller's main arguments on appeal was that William Hill should have looked at the entire CCTV footage (to see if there was evidence backing up her defence) and not just the few segments the internal audit department had identified as indicating guilt. The EAT agreed with her. It would not have taken long, and it wouldn't have been costly, for the company to have done that. Its failure meant that the investigation was not as thorough as the circumstances warranted, and was therefore unfair.

Compromise Agreements Abolished

An accurate headline - also completely misleading. 'Compromise agreements' were renamed 'settlement agreements' with effect from 29th July 2013.

You don't need to do anything, although it's sensible to change the title at the top of any standard agreements you use.

The government has also introduced something called a 'confidential pre-termination discussion'. Despite the complex name, it's a simple concept. From the end of this month, employers are allowed to open discussions with employees about exit packages without that, of itself, carrying the (small) risk of the employee going on to claim constructive dismissal.

Tribunals can no longer be told about such conversations in an unfair or constructive dismissal claim (although, arguably, this protection was already available where there was an existing dispute). However, they can be told about such conversations in other types of claim, such as discrimination (for example, if a pregnant woman alleged she'd been approached with an exit package because she was pregnant). They can also be told about such conversations if the employer has engaged in improper conduct, or placed undue pressure on them to accept the offer. It's a nice headline grabber for the government, to show how business-friendly it is, but it doesn't really change much in practice.

Where did the time go?

Otigba v Consensa Care

Show us a grown-up who wouldn't fancy being ten years younger and we'll show you a fibber.

Ms Otigba gave a false date of birth on her job application. Her employer didn't find out about this until it made some routine background checks during her first month of employment. Her Criminal Records Bureau data highlighted discrepancies and she was suspended while the company carried out some more investigations. It looked at her passport, birth certificate, accountancy certificate, driving licence and even her LinkedIn profile. These revealed a series of inconsistencies - she appeared to have two ages and two surnames.

Ms Otigba was dismissed and brought a wrongful dismissal claim for her notice pay (she didn't have enough service to bring an unfair dismissal claim). She lost; the tribunal held that the employer had gone about everything properly. Trust was important, particularly as Ms Otigba's position involved handling money belonging to vulnerable adults. She had breached this trust by trying to deliberately disguise a lost decade in her life, although the tribunal didn't speculate about the reason behind this.

The employer here went to great lengths to check the situation out properly and, crucially, didn't jump to conclusions. Remember that in cases like this, even where an employee has a short period of continuous employment, a fair procedure wins in the end.

FINANCIAL PENALTIES FOR EMPLOYERS

At some point in the next year, although the date is not yet clear, provisions come into force which will allow tribunals to fine employers for the way they breached workers' rights.

It's all about "aggravating factors". This term has yet to be defined, but we can take it for now that it means what it says: the breach was made worse by something the employer did or didn't do. How much will a guilty employer have to pay? Between £100 and £5,000 depending on the circumstances. Pay within 21 days and the fine is halved.

Lawyers are already poised to thrash out the meaning of "aggravating factors" and it will take a few years before caselaw makes it clear as to what qualifies and what doesn't. But we think reasonable employers are unlikely to experience problems.

CONSULTING ON REDUNDANCY WHEN INSOLVENT

AEI Cables v GMB Businesses with money troubles can't escape onerous duties. They must balance the need to reduce outgoings quickly with their legal responsibilities.

Consulting with staff in the lead-up to redundancy is one of the basics of employment law. But this takes time, as AEI Cables discovered when it needed to reduce its head count by more than 120 people. The business had been advised by its accountants that unless it cut costs, there was a risk of trading while insolvent (cue directors' liability and potential criminal penalties for fraudulent trading). So AEI made all 124 employees redundant straight away.

Those employees claimed that AEI had breached its duty to consult. They won and were each given awards of 90 days' pay, which was the maximum allowed. The company appealed and the Employment Appeal Tribunal (EAT) reduced the 90-day awards to 60 days. It was not reasonable, the EAT said, to expect an insolvent employer to carry on trading for 90 days while it informed and consulted with employees. Protective awards are not meant to penalise employers but to encourage them to consult. In AEI's case, some consultation could and should have taken place, despite the urgency of the situation.

Here the company's financial circumstances helped reduce its burden to consult, but this case makes clear that doing away with consultation altogether is a risky strategy.

A NEW WAY OF CHECKING EMPLOYEES

From 17 June 2013, employers could have cheaper, quicker access to criminal records information.

The Disclosure and Barring Service (an amalgamation of the Criminal Records Bureau and the Independent Safeguarding Authority) is launching a new Update Service which will allow prospective employers to check that a job applicant's DBS certificates are still valid and up-to-date.

The flipside of this is that the financial burden of these updates falls with job applicants who are set to pick up the £13-a-year fee for the system. A heavy price to pay? If it means they get the job then maybe not.

IT'S A PHILOSHOPHICAL BELIEF, HONEST

Hawkins v Universal Utilities

A tribunal has held that believing that lies should never be told is a philosophical belief, attracting protection against discrimination under the Equality Act.

Mr Hawkins was a telesales agent. He claimed that he was dismissed because he refused to lie to customers. Lying was contrary to his Christian beliefs, he said. The tribunal held that the actual reason for his dismissal was his inadequate performance. He hadn't produced evidence of being told to lie.

Although his claim failed, others might succeed. Truthfulness is an important and significant aspect of human life and isn't a value unique to Christianity. It can amount to a philosophical belief and, in the right circumstances, could be the basis of a successful claim.

IT'S ALL CHANGE IN JUNE

This month brings with it some important employment law changes.

Political belief dismissals
From 25 June an employee who is dismissed because of their political opinions or affiliation will no longer need two years' continuous service to bring an unfair dismissal claim.

Whistleblowing
Dismissals stemming from a protected disclosure (otherwise known as whistleblowing) sidestep two important employment law requirements:

1. The two-year qualifying period for unfair dismissal; and
2. The cap on compensation.

From 25 June, workers will only be protected by the whistleblowing laws if they "reasonably believe" that the disclosures they make are in the public interest. (Note that the disclosure doesn't have to be in the public interest; the worker just has to believe that it is.) While "public interest" hasn't yet been defined, it seems safe to say that it will be something that affects more than just one person. So a worker who tries to argue that a disclosure they made about their own employment contract, for example, will probably not be protected.

What about the intention behind the disclosure? Workers who make a disclosure out of spite, rather than to right a wrong, will from 25 June also be given whistleblowing protection. But their compensation could be reduced by up to 25% if the tribunal thinks that the disclosure was made in bad faith.

RE-ENGAGEMENT AFTER DISMISSAL

Oasis Community Learning v Wolff

Once a dismissal has happened the employment relationship is usually over. But where the dismissal was unfair, a tribunal could order the employer to take the employee on again.

That what's happened in this case. The question for the Employment Appeal Tribunal (EAT) was whether re-engagement was the right remedy where the employee had made serious allegations against colleagues and his employer.

Mr Wolff was a teacher who worked for Oasis, an organisation which helps turn failing schools around. He was dismissed for his confrontational style with pupils, and brought an unfair dismissal claim. In the lead-up to that hearing he alleged that staff had fabricated evidence. He won his unfair dismissal case and the tribunal ordered re-engagement at another of the employer's sites.

Oasis argued that Mr Wolff's actions towards colleagues meant that re-engagement was not appropriate; the relationship between Mr Wolff and Oasis had broken down irreparably. The EAT didn't agree. It held that where an employee has made serious allegations against colleagues and managers at one workplace, that will not have such an impact on his relationship with colleagues and managers at a different workplace.

So if you part company with an employee on bad terms, don't assume that you won't be forced back together later on.

Surprise!

Esparon v Roucou and another

Surprises come in all shapes and sizes. For Ms Esparon and Mr Frederick, it was an unexpected demand for £220,000.

Ms Roucou claimed to have been employed by the couple, and she brought a number of complaints against them. No defence was filed and the tribunal issued default judgment, awarding her compensation of just over £220k. Shortly after, Ms Esparon and Mr Stephenson received a letter from Ms Roucou's solicitor telling them that enforcement proceedings were to begin. That, the couple claimed, was the first they had heard of the claim. As it turned out, the tribunal paperwork had been sent to the wrong address.

An application to have the default judgment reviewed was refused because it was out of time and it wouldn't be just and equitable to extend time. The couple appealed, successfully. The Employment Appeal Tribunal (EAT) held that it was arguable that: (a) there was a good explanation for the failure to lodge the ET3 (it having been sent to the wrong address); (b) the couple had a good answer to the claim - they said they never employed Ms Roucou; and, (c) the balance of prejudice lay with the respondents.

These factors, the EAT said, were all relevant and the tribunal had misdirected itself by not considering them. So the case will be defended after all.

Early Retirement Scheme becomes Unstuck

HM Land Registry v McGlue

HM Land Registry (HMLR) was offering its workforce early retirement. Ms McGlue expressed interest in this but, because she was on a career break at the time, she was turned down. (Managers had decided between themselves that employees who were on a career break and who were not due to return before a set date should be excluded from consideration.)

Ms McGlue claimed indirect sex discrimination. She said that a provision, criterion or practice had applied to her as part of a group which was excluded from being considered for early retirement. That criterion disadvantaged her.

The tribunal upheld her claim and awarded her £71,000 in compensation, which was the amount she would have had under early retirement. She was also awarded £12,000 for injury to feelings and £5,000 for aggravated damages.

HMLR appealed the remedy decision, arguing that Ms McGlue had suffered no financial loss because she had continued to be employed by HMLR. Ms McGlue's response was that, had she taken early retirement, she would have found a similarly paid job and so would have had the benefit both of an ongoing salary and the early retirement sum.

The Employment Appeal Tribunal (EAT) rejected HMLR's appeal; the tribunal was right to award the compensatory and injury to feelings awards. But the EAT reduced Ms McGlue's aggravated damages award by £5,000 because there was no basis for it.

Solicitor's Mistake is no Excuse

El Kholy v Rentokil

After Mr El Kholy had been dismissed from work on 4 October 2011, he instructed a solicitor to help him appeal the decision. He was told on 6 January 2012 that his appeal had been rejected. On 23 January 2012 a second solicitor lodged his tribunal claim. This was too late, because the normal time limit for unfair dismissal claims is three months from dismissal. The tribunal refused to extend time because Mr El Kholy had not established that it wasn't 'reasonably practicable' to have presented his claim in time.

The Employment Appeal Tribunal rejected Mr El Khloy's appeal. Even where a solicitor's mistake leads to a claim being presented out of time, that doesn't mean that it was not reasonably practicable to have presented it in time. He was free to sue his solicitor for negligence, but he had lost the right to sue his employer.

Third Party Pressure to Dismiss

Bancroft v Interserve

It's long been the case that where a third party - a client, supplier or customer, for example - requires an employer to dismiss an employee, this can be potentially fair as "some other substantial reason". But does an employer have to be satisfied that the request is justified? Not always, but it is a factor, says the Employment Appeal Tribunal (EAT).

Mr Bancroft was employed by Interserve as a chef at a bail hostel which was contracted to provide catering services to the Home Office. The contract allowed the Home Office to require the removal of contractor staff without giving reasons.

Mr Bancroft had a difficult relationship with his manager who eventually wrote to the Home Office requesting that Mr Bancroft be dismissed. The Home Office replied asking for a permanent solution to be put in place and Mr Bancroft was suspended.

Interserve didn't try to persuade the Home Office to change its mind but it did offer Mr Bancroft another job, which he rejected. He was eventually dismissed and claimed unfair dismissal.

The tribunal found against him; Interserve had done everything it reasonably could. But the EAT disagreed. Injustice to the employee, and the extent of that injustice, is an important factor in the fairness of a dismissal. The tribunal should have taken into account the fact that Interserve had not considered the difficult relationship between Mr Bancroft and his manager.

The case was sent back to the tribunal to make all findings of fact and to then decide whether the dismissal was fair or not.

Employee Shareholders

Employee shareholders (previously called 'employee owners') were announced by George Osborne in the 2012 autumn budget as a new type of employment status. At its most basic, in exchange for being awarded at least £2,000-worth of shares in the employer, the employee would give up a bundle of employment rights, including the right to claim (most types of) unfair dismissal and the right to a redundancy payment.

Branded by some as unworkable, unnecessary and unwanted, the future of employee shareholder status looked uncertain when the House of Lords rejected it in two consecutive votes. Late last month, the legislation was passed in a watered-down form. We'll give you more information in a future bulletin, but it's looking like employee shareholder status may not be that attractive for employers after all.

Relying on Secret Recordings

Vaughan v London Borough of Lewisham

Ms Vaughan brought various claims against her employer. She wanted to rely on 39 hours of covert recordings she had made of contacts and meetings - including disciplinary hearings - between her and the Council. She claimed that the recordings would prove that the employer's notes were inaccurate, although she didn't go into more detail.

The tribunal refused to allow this evidence. The tapes would first need to be independently transcribed and that would have a disproportionate effect on costs, the tribunal said.

The Employment Appeal Tribunal (EAT) held that the tribunal had been right not to allow the evidence because Ms Vaughan had not established its relevance. The tribunal did not have anything to go on; Ms Vaughan hadn't been specific about what the tapes revealed.

But the EAT went on to be a little critical of the Judge's reasoning and to make some useful points.

First, recordings needn't necessarily be independently transcribed before a decision on admissibility can be made. As a first step Ms Vaughan should have given the Council her own transcript, along with the tapes and the Council could then have decided whether or not to dispute the accuracy.

Second, the fact that these recordings were covert was distasteful but doesn't mean they were inadmissible. If Ms Vaughan were to now make a more focussed application identifying parts of the recordings to be admitted in evidence then the outcome could be different. That second bite of the cherry would be allowed if in the interests of justice.

DISMISSAL SPRUNG ON DIFFICULT MANAGER

JJ Food Service v Kefil

No management style is identical, but there are certainly types.

Mr Kefil was said to have an "over-authoritarian manner". Members of staff complained about his behaviour and he was eventually called to a disciplinary hearing and dismissed.

Mr Kefil won his unfair dismissal case, primarily because he hadn't been warned that he might be dismissed. He had received an informal warning but, crucially, he had not been told what might happen if things didn't improve. Coupled with the fact that Mr Kefil had not received any management training that, said the Employment Appeal Tribunal, justified the tribunal's finding of unfair dismissal.

The case is a reminder that all employees, whoever they are and whatever their style, have a right to know where they stand when it comes to disciplinary issues. It's no good assuming that a person can read between the lines, or even that they can see their own faults. Clarity - and training - is everything.

SOSR AND THE ACAS CODE

Lund v St Edmunds School

Employers should never be too far away from their copy of the Acas Code of Practice on Disciplinary and Grievance Procedures.

Apply the Code whenever there's a disciplinary or grievance issue at work, and even in some situations which the Code isn't expressly said to cover - "some other substantial reason" dismissals, for example. That's the message from the Employment Appeal Tribunal (EAT) which has considered the Code's wider application. It's important, because if an employer fails to comply with the Acas Code, then compensation can be increased by up to 25%.

The case involved Mr Lund who was dismissed after the school he worked in lost confidence in him. He'd had problems using computer equipment and was said to have alienated his colleagues and affected morale. A tribunal found that his dismissal was for "some other substantial reason", but it was procedurally unfair because Mr Lund hadn't been warned that he might be dismissed, nor had he had a chance to appeal. It was also substantively unfair because the school hadn't properly addressed the problems Mr Lund was having with the computer system.

Questions for the EAT were: did the Acas Code apply to a "some other substantial reason" dismissal, and was the tribunal right not to increase Mr Lund's compensation to reflect the school's breach of it? The answers were yes, and no.

Even though Mr Lund wasn't dismissed for conduct - which would clearly have required compliance with the Code - it was his conduct which had led to the school contemplating a ("some other substantial reason") dismissal, and so the Code should have been followed. Because the school had failed to do this, Mr Lund's compensation should have been increased.

POST-EMPLOYMENT VICTIMISATION UNLAWFUL - OR IS IT?

Onu v Akwiwu

The Employment Appeal Tribunal (EAT) has decided that the Equality Act 2010 covers victimisation that happens after employment has ended. Except it had already recently decided that the Equality Act 2010 doesn't cover victimisation that happens after employment has ended.

It had been the position that employees were only protected from victimisation during the course of employment. Then along came Ms Onu's case, turning the tables. So now things are less certain, and it looks as though the Court of Appeal will decide if this latest decision that post-employment victimisation is covered too is the right approach.

Ms Onu was a migrant domestic worker who brought various tribunal claims against her employer. One of these was for race victimisation that she said had taken place a few months after her employment had ended (the employer was alleged to have telephoned Ms Onu's sister making threats that stemmed from the tribunal claims Ms Onu had brought).

The EAT said it would be wrong if Ms Onu was not protected by equality law. But this conflicted with a previous decision of the EAT just two months earlier, where a different judge decided that equality law did not cover victimisation that took place after employment had ended. So the law is unclear and everyone is going off to the Court of Appeal in the hope of clarity.

Our advice? It's simple really: don't treat employees or former employees badly (whether they've brought a claim against you or not).

YOU SAY POTATO, I SAY DISCRIMINATION

Durrani v London Borough of Ealing

Discrimination can mean different things. To a HR professional, or a lawyer, it normally means less favourable treatment on grounds of a protected characteristic. To an employee, it can be a catch-all phrase covering any kind of treatment they think is unfair. "You're discriminating against me", from a disaffected employee, might be a formal allegation of discrimination - but it might not be.

So when an employee sent in a grievance complaining of bullying and harassment, and mentioning 'discrimination' (which was later clarified as discrimination in the sense of being used as a scapegoat but not on grounds of race), this was not regarded by the Employment Appeal Tribunal as a proper allegation of discrimination within the equality laws. Therefore it could not form the basis of a victimisation claim when he was dismissed two weeks later.

INFERRING DISCRIMINATION

Accept v Consiliul National pentru Combaterea Discriminarii

Another case, another football club (spot the trend?). A prominent figure in Steaua football club in Romania said that he would see the club closed down before it accepted a gay football player on the team.

He didn't have any direct authority over recruitment or other matters relating to the club, but he was closely associated with its management. That, said the Court of Justice of the European Union (previously called the ECJ), was enough to give rise to a presumption that the club's refusal to appoint a gay player was because of his sexual orientation. The player was therefore guaranteed to win a discrimination claim unless the club could prove a credible (and non-discriminatory) reason for not taking him on.

Remember that public statements made by senior people in your organisation, or those closely associated with it, can have far-reaching consequences. In this case, a throwaway comment by a manager meant that the club became vulnerable to discrimination claims.

WATCH OUT FOR THOSE LONG NOTICE PERIODS

Hennigh Berg v Blackburn Rovers Football Club

Football players and company directors are notorious for having long notice periods. When the new manager of Blackburn Rovers accepted his new job, in November 2012, his contract said he would be employed until June 2015 - nearly three years. It also said that if he was dismissed earlier, he would be paid his salary until June 2015.

Less than two months later, he was dismissed. He sued for the rest of his salary, a measly £2.25 million. Blackburn Rovers argued that he was not entitled to the salary as a fixed sum, and he had to give credit for anything else he earned between 2012 and 2015. The High Court said that the contract was plain - the club had agreed to pay any salary which would have fallen due, and Mr Berg was awarded £2.25m for about six weeks work.

The lesson? Make sure your termination clauses are well drafted. It is rarely advantageous to have long fixed term contracts; standard notice periods are almost always better.

Growth and Infrastructure Act 2013 and the Enterprise and Regulatory Reform Act 2013

The government has passed two major pieces of legislation, the Growth and Infrastructure Act 2013 and the Enterprise and Regulatory Reform Act 2013, each of which have considerable impact on employers. The changes are expected to come into force, at various intervals, over the next twelve months. They include:-

• introducing compulsory conciliation via Acas before an employee can start an employment tribunal claim. The parties cannot be forced to participate in the conciliation, but unless the employee has contacted Acas and asked to conciliate, they won't be allowed to bring a claim.
• introducing fees to start an employment tribunal claim. For all but the smallest claims, it will cost £250 to start the claim, with a further £950 payable by the employee when a hearing date is set. Beware - any employer who loses will probably be ordered to refund those fees as well as pay compensation.
• penalties of up to £5,000 for employers who have breached employment rights, where there are aggravating factors (halved if paid within 21 days).
• creating a new category of worker, known as 'employee shareholders'. In exchange for giving at least £2,000-worth of shares to the employee, a company can require prospective employees to give up some employment rights (including the right to claim most types of unfair dismissal, and the right to a redundancy payment). With various limitations, existing employees can also be asked to become employee shareholders.
• bringing down the cap on the compensatory award for unfair dismissal - either limiting such awards to one year's salary for the employee, or to the current limit of £74,200. This is likely to be reviewed again in the future.
• introducing confidential pre-termination discussions, enabling employers and employees to have frank discussions about ending employment without fear of being held to account by a tribunal.
• various changes to whistleblowing legislation, in general making it harder for employees to claim, but removing the rule that the whistleblower must make their disclosure in good faith.

We'll cover these in more detail in forthcoming bulletins, as and when they come into force.

The Quashing of Ms Quashie's Status - Stringfellows Restaurants v Quashie

Cast your mind back to last summer when Ms Quashie, a lapdancer at Stringfellows, was found by the Employment Appeal Tribunal to be an employee.

The club exercised a sufficient degree of control over her, for instance by requiring her to work certain regular days every month, to comply with a dress code and to perform a number of free dances.

Well, now that's all changed. The Court of Appeal has decided that Ms Quashie is not an employee after all. Crucial to this decision was the way in which Ms Quashie was paid. She negotiated her own fees with clients and the risk of being out of pocket on a particular night was hers alone.

It would be unusual, the Court of Appeal said, for there to be an employment contract where the worker takes the economic risk and is paid exclusively by third parties.

Defining Disability - Aderemi v London & South East Railway

Mr Aderemi was an assistant at a railway station in London. His job required him to stand for long periods - about nine hours - at a time. This affected his back. He was assessed by an occupational health doctor who concluded that his mobility was significantly restricted, he was in a lot of discomfort and was unlikely to be able to return to his job in the foreseeable future.

Mr Aderemi was dismissed for capability and claimed unfair dismissal and disability discrimination.

The question of whether or not Mr Aderemi was disabled reached the Employment Appeal Tribunal (EAT) after the original tribunal found against him on that point. The tribunal had held that his impairment did not have a substantial, adverse effect on his ability to carry out normal day-to-day activities and so he wasn't disabled. In reaching that decision, the tribunal concentrated on the things Mr Aderemi could still do.

The EAT held that the tribunal had looked at this the wrong way round. Rather than taking into account what Mr Aderemi could do, it ought to have considered the things he couldn't do. These included bending, lifting and standing around for 30-minute periods, all of which may have brought him within the definition of disabled.

The case was sent back to the tribunal to be re-heard.

ECHR Rules on Religious Discrimination - Eweida & Others v UK

This much anticipated decision of the European Court of Human Rights has made it clear that religious views can be held in the workplace, but do not automatically rank above the rights of others.

Up for consideration was a selection of discrimination cases which questioned whether UK law goes far enough to protect employees who express their religious beliefs at work.

Ms Eweida worked for British Airways and wanted to wear a visible cross necklace to work, in breach of British Airway's uniform policy. Ms Chaplin was a nurse who, too, wanted to wear a cross to work. Then there was Ms Ladele, a registrar who refused to perform civil partnership ceremonies. And Mr McFarlane, a Relate counsellor who said that he might object to providing sexual counselling for same-sex couples.

Eweida
The ECHR held that the UK courts had placed too much weight on British Airway's desire to project a certain image. The cross worn by Ms Eweida was discreet, and there was no evidence that other clothing such as turbans and hijabs had a negative effect on BA's brand. So the UK had breached its obligations under Article 9 of the European Convention on Human Rights (the right to freedom of thought, conscious and religion). BA's need to protect its image gave way to Ms Eweida's right to the reasonable expression of her religious belief.

Ms ChaplinIn Ms Chaplin's case the health and safety reasons for asking her to remove her cross outweighed the religious rights. There was no breach of Article 9.

Ms Ladele and Mr McFarlaneThe ECHR found against these two. The rights of the registrar and the counsellor did not trump the rights of others not to be discriminated against on grounds of sexual orientation. An employee who tries to opt-out of duties that do not align with their religious beliefs can not expect their employer to compromise equal opportunities policies by going along with this.

On the back of Ms Eweida's success, employers should now look closely at their dress codes and related image considerations and ask whether these could discriminate against religious groups? If the answer is yes, are they justified?

Dismissal Wiped Out By Lesser Sanction? - Piper v Maidstone & Tunbridge NHS Trust

The Reverend Piper (RP) was an employee of the trust where he worked as a chaplain. He was dismissed for gross misconduct but, on appeal, the sanction was reduced to a final warning, demotion and a transfer to a different hospital.

RP wrote to the Trust rejecting its offer of re-engagement because of the 'severe financial and psychological penalties' he felt it would impose on him. He brought a claim for unfair dismissal which the Trust defended on the basis that there was no dismissal.

The tribunal found for the Trust. No dismissal meant no unfair dismissal claim. But the Employment Appeal Tribunal took a different view. The Trust's internal appeal procedure required an employee's consent to a lesser penalty. As RP had not agreed to his dismissal being replaced by the warning, demotion and transfer, his dismissal stood and his unfair dismissal claim could now proceed.

Handbook Terms Contractual - Allen v TRW Systems

The redundancy policy in TRW's employee handbook provided for enhanced payments. The terms had been agreed with TRW's works council and were repeated several times in letters issued to the workforce.

The issue was whether the enhanced redundancy terms were contractual, binding TRW and forcing it to pay these more favourable settlements.

The tribunal held not. The terms had not been incorporated into employment contracts because they were not referred to in the written statement of terms. But the Employment Tribunal (EAT) thought otherwise and overturned that decision. The tribunal should have taken account of the works council agreement, the express promise in the employee handbook and the assurances repeated in letters to employees. It was fair for the employees to have had a reasonable expectation of receiving the enhanced terms, the EAT said.

The case has been sent to a different tribunal to decide again.

New Unfair Dismissal and Redundancy Limits

It's time to get used to a new set of figures. The annual rise in the unfair dismissal basic award and statutory redundancy payment took effect from the beginning of this month.

So dismissals that happen(ed) on or after 1st February 2013 could attract these maximum amounts:

A week's pay - £450
Statutory redundancy/basic award - £13,500
Unfair dismissal compensatory award - £74,200
Combined unfair dismissal award - £87,700

But remember that the government is introducing an overall cap on the compensatory award for unfair dismissal of one year's pay. No firm date has been announced, but it is likely to take effect from the summer.

Absent Employer Still in Control - White & Todd v Troutbeck SA

Mr White and Ms Todd worked as caretakers/managers of a house and small farm estate part-owned, but rarely visited, by Troutbeck.

Their contract had no fixed hours, although it contained several references to 'employment'. When the company terminated the arrangement Mr White and Ms Todd claimed unfair dismissal, relying on an employment contract. The question was: were they employees (and so entitled to claim) or workers?

The company argued that it did not have day-to-day control over Mr White and Ms Todd and so that went against there being an employer-employee relationship. The original tribunal agreed, finding in Troutbeck's favour.

But that decision was overturned on appeal. The Employment Appeal Tribunal decided that a lack of day-to-day control is not conclusive. The test of whether or not someone is an employee is about the entire relationship, starting with the written agreement. The key question is whether the 'employer' had a contractual right of control? It is not simply about who is in charge of the daily work.

A useful reminder to all businesses using self-employed contractors to make their written agreements clear on workers' status.

A busy year ahead

The planned changes to employment law are gathering pace with some fresh announcements from the Department for Business, Innovation and Skills:

• from this summer the compensatory award for unfair dismissal will be capped at one year's pay, or the current limit of £74,200 (whichever is lower);
  
• TUPE will be amended, perhaps most significantly to remove service provision changes from the definition of a transfer. This will lead to fewer contracting out situations being TUPE transfers, but with the unwelcome side effect of increased litigation to decide when TUPE applies;
  
• Acas early conciliation will be introduced from April 2014;
  
• a new Health and Work Assessment and Advisory Service will be introduced in 2014. Its role will include providing state-funded occupational health testing for employees who are off sick for more than four weeks.

As busy employment law years go, we think this could be up there. So stay tuned.

EMPLOYER ESCAPES WITH £98 LIABILITY - Smith v Trafford Housing Trust

Mr Smith was a housing manager employed by the Trust. He posted comments on his Facebook page setting out his objections to gay marriage in church. The Trust suspended him, eventually finding him guilty of gross misconduct. The sanction would have been dismissal but because of his service recorded he was demoted to a non-managerial role at a much reduced salary. He brought a tribunal claim, arguing that the demotion and pay cut breached his contract.

Mr Smith won, in principle at least. The High Court held that the demotion amounted to dismissal. Mr Smith's original contract had come to an end and he had agreed to work under a new, lesser paid, contract with the Trust. The Court held that he should be awarded damages for wrongful dismissal, calculated as the difference between his earnings in the two jobs for the three month notice period. That was despite Mr Smith having argued for a more substantial sum based on longer-term performance of his contract. Had he chosen to resign and claim unfair dismissal, rather than work on under protest and opt for wrongful dismissal, his damages would have been higher again.

In its judgment, the court made some important points about Facebook cases. Employers should ask themselves whether a reasonable reader of an employee's Facebook page would rationally conclude that postings were made on the employer's behalf. In Mr Smith's case, views were also expressed on sport, food and cars - clearly not for work purposes. The Court also emphasised the importance of free speech and of the need to look carefully at the views that are expressed and the manner in which they are conveyed before embarking on disciplinary action.

On the subject of the damages award, the Judge said that it leaves 'an uncomfortable feeling that justice has not been done to [Mr Smith] in the circumstances'.

LEGAL REPRESENTATION AT INTERNAL APPEAL - Ministry of Justice v Parry

Ms Parry was an office-holder, employed as a District Probate Registrar. She was dismissed for gross misconduct. Before her appeal hearing, she asked to be represented by her solicitor. This request was declined and her solicitor sent detailed submissions in support of Ms Parry's case which were considered by the employer. The appeal officer upheld the dismissal decision and an unfair dismissal case was launched.

The tribunal found in Ms Parry's favour. Part of the reason was that she had been denied legal representation - a point which the Employment Appeal Tribunal (EAT) went on to look at in some depth. It is not automatically unfair for an employer to refuse to allow an employee to have their solicitor present at an internal appeal hearing, the EAT said.

However, in exceptional cases where dismissal would prevent a person from working in their chosen profession (as in the case of a Registrar) then Article 6 of the European Convention on Human Rights - the right to a fair trial - kicks in to guarantee a right of legal representation at a disciplinary hearing. There is a contractual right to dismiss, the EAT acknowledged, but it must be recognised that this could affect an employee's broader civil rights.

In Ms Parry's case, there wasn't enough evidence to show whether or not Article 6 applied and so the case was sent to a fresh tribunal for a complete rehearing.

ACCUMULATED WARNINGS AND DISMISSAL - Wincanton Group v Stone

Mr Stone was a lorry driver whose employment record was tainted by a written warning for misconduct (refusing to obey a reasonable management instruction relating to a policy change). He was in the process of challenging the basis on which that warning had been issued but, in the meantime, was dismissed after being involved in a serious driving accident. That second act of misconduct, by itself, might not have led to dismissal but the employer said that the balance was tipped by the first warning.

The tribunal found that his dismissal was unfair. The first warning was for different sort of conduct to the second incident and so should not have been taken into account. The tribunal was critical of the company for having issued the first warning at all; Mr Stone hadn't been guilty of misconduct, it held.

Wincanton appealed, arguing that the tribunal was wrong to have looked behind the first warning and to have substituted its view. The Employment Appeal Tribunal upheld the appeal and set out guidance for tribunals to follow in these types of cases.

The first step is to make sure that the earlier warning is valid. If it is then the tribunal:

• should take into account that fact that that warning has been issued;
• should take into account any proceedings that may affect the validity of that warning;
• must not go behind a warning by holding, for example, that it should not have been issued. It is acceptable to take into account the factual circumstances giving rise to the warning;
• may take into account the employer's consistency of treatment of employees.
  

REASONABLE ADJUSTMENTS AND THE PCP - Rider v Leeds City Council

Ms Rider was a nursery officer at a children's centre. She suffered from severe asthma and a painful and debilitating spinal condition which affected her mobility.

She complained to her employer that her working environment made her condition worse and was seconded to another job where she worked for two years without any difficulty. The Council told her many times that at the end of the secondment she would have to go back to her original job. Ms Rider claimed that that requirement put her at a substantial disadvantage compared with colleagues who didn't have her disability. She was eventually dismissed for capability, never having returned to the original post. She was not offered a different role, nor were reasonable adjustments considered.

Ms Rider's claim hinged on whether the Council had failed in its duty to make reasonable adjustments to enable her to return to work after the secondment ended. For that duty to have arisen, the employer had to have applied a provision, criterion or practice ('PCP') which put her at a substantial disadvantage.

The tribunal held that the employer had not applied a PCP because Ms Rider had not actually gone back to her original job. That decision was overturned on appeal. The Employment Appeal Tribunal held that where an employer tells an employee that they must return to a post, without reasonable adjustments or alternative roles being accounted for, the employer is applying a PCP. If that PCP places the disabled employee at a substantial disadvantage compared with a person who is not disabled, there is a duty to make reasonable adjustments.

DUTY OF FIDELITY TURNS GOOD LEAVER BAD - Imam-Sadeque v BlueBay

Mr Imam-Sadeque ('Mr I-S') was a senior investment manager at BlueBay. He decided to leave and join a start-up asset management company ('Goodridge'), so resigned and began working his six months' notice. The resignation was significant; as Mr I-S had chosen to leave he would normally be classed as a 'Bad Leaver' and would not be entitled to the value of his shares - a healthy £1.7m.

He was put on garden leave and a compromise agreement was negotiated. It provided that, as long as Mr I-S complied with the terms of the compromise agreement and his employment contract, he would be classed as a 'Good Leaver' and could benefit from £1.7m.

BlueBay then discovered that Mr I-S (while still a BlueBay employee) had been helping to set up Goodridge as a competitor, had disclosed information, and had poached a BlueBay employee. BlueBay withheld the £1.7m, relying on a repudiatory breach of contract. Mr I-S brought a High Court claim for breach of contract by BlueBay in refusing to pay out.

The Court found for BlueBay. Mr I-S had broken his side of the deal and had breached his duty of fidelity. He had therefore forfeited his chance of achieving 'Good Leaver' status. The Court rejected the argument that the condition in the compromise agreement relating to the forfeiture of rights was a penalty clause. Rather, it offered Mr I-S access to rights to which he would not otherwise be entitled. The Court also noted that the agreement had been struck between parties with similar bargaining positions who had had the benefit of legal advice.

EMPLOYER BOUND BY MISTAKEN JOB OFFER - The Partners of Haxby Practice v Collen

Ms Collen applied for a job as a practice nurse. The salary wasn't revealed in the advert or during interview. She was offered the job by telephone and told that her pay would be £22,427. A letter confirming the terms would follow.

The letter (the written offer) set out a salary of £30,762. Ms Collen didn't query it, later explaining that in her excitement the original figure hadn't registered with her. When she started the job she was told that there had been a mistake and the salary was in fact £22,427. There were unsuccessful attempts at reaching a compromise and her employment terminated one month into the job. She brought a claim based on the higher salary.

The tribunal found in her favour and held that the employer was bound by the higher annual salary. This decision was upheld on appeal. The parties had agreed during the initial telephone call that they would only be bound once the written offer had been sent and accepted. And even if the offer made by telephone was effective, it had been superseded by the written offer and Ms Collen's acceptance of that.

It's worth noting that, had she accepted the written offer knowing that the figure it contained was a mistake, the outcome would have been different.

CONTINUING ACTS AND TIME LIMITS - Okoro & Okenwa v Taylor Woodrow

The two claimants were contract workers. They had been banned from working on the principal's sites and claimed race discrimination.

But they issued their claims at tribunal more than three months after the last time on which they were refused entry to the site. In ordinary terms that would be out of time - but they claimed that the discriminatory act was a continuing one and so time had not stopped running. They lost at tribunal and appealed to the Employment Appeal Tribunal (EAT).

The EAT upheld the tribunal's decision. There was no continuing act; the ban was a one-off decision. At the Court of Appeal it was argued that, even though the relationship between the men and the party that imposed the ban had come to an end, there was a continuing regime. That couldn't be the case, the Court of Appeal held. The ban was the equivalent of an employer dismissing an employee. It was a one-off act.

So the floodgates remain closed, for now at least, on these sorts of agency worker claims being brought long after the imposition of a ban.