Legal News

In this issue: Employment Tribunals Horizon scanning Brexit, retained EU law and assimilated law Employment contract Benefits Prohibited conduct protection at work Diversity and gender pay Maternity, parents and carers Coronavirus ( COVID-19) Data protection and employee information Individual rights arising from union membership Confidentiality, duties and restriction: enforcement ESG and sustainability: employment issues New and updated content Daily and weekly news alerts Dates for your diary Trackers New Q& As Employment Tribunals HMCTS reform project—further update for ET professional representatives ( May 2024) HM Courts & Tribunals Service has circulated a letter from Senior Project Manager, Michael Nuna, sent on behalf of Mark Lewis, Employment Tribunals Service Manager. It sets out key details regarding the My HMCTS portal to be used by claimant...

Anderson v CAE Crewing Services Ltd [2024] EAT 78 On 22 May 2024, the EAT issued a judgment holding that the lower tribunal had wrongly concluded CAE Crewing Services bore no liability for the actions of two doctors who examined flight attendant Jessica Anderson for a fit-to-fly certificate. Judge James Tayler found the Employment Tribunal had misapplied the law by framing the question as whether the doctors conducting the fitness-to-fly examinations were agents of the employer. Having reached a non-liability finding, the tribunal then gave reasoning on Anderson’s substantive disability discrimination claims that was incomplete and inadequate, he said. The judgment records that in January 2019 Anderson entered into a contract with CAE Crewing Services, a business that supplies airlines with cabin crew. Members are expected to hold fit-to-fly certificates issued by aviation medical examiners. An examiner assessed Anderson in December 2018; she also has a heart...

Payone Gmb H v Logo [2024] EWHC 981 ( KB) What are the practical implications of this case? This decision draws attention to the considerations a court will assess when deciding if material mentioned at a hearing should be treated as being in the public domain and no longer protected by duties of confidence or related restraints. In this matter, the judge held that the documents had not become public and continued to attract confidentiality; however, the court underlined that the assessment is inherently one of fact and degree. The judgment further recorded that, if information has entered the public sphere, the court will not stand in the way of circulation, since doing so would lack any legitimate purpose. Parties engaged in litigation should therefore keep this ruling in view when selecting which documents and information to mention in, and place within the court...

HMCTS: Employment Tribunal Reform Project— Urgent update for ET professional representatives ( May 2024). What are the practical implications of this development? This update from HMCTS, dated 24 May 2024, points practitioners to a You Tube tutorial outlining the revised My HMCTS digital process. From 30 May 2024, professional users (ie solicitors, barristers, advocates and regulated professional representatives with a Companies House number) are required to issue claims through the My HMCTS portal for Scotland, Leeds, Midlands East, South West England, and any of the three London offices. Those professional users (ie solicitors, barristers, advocates and regulated professional representatives with a Companies House number) who have not yet created a My HMCTS profile should register without delay, as activation of an account may take up to five days. In due course, when the online service is launched for the remaining locations,...

Nearly a dozen regulatory measures for the industry have been paused as the civil service enters the pre-election purdah period. Although the two main parties appear broadly aligned on many pensions policy questions, differences persist, and voices across the sector are urging concrete manifesto commitments. “ A key uncertainty concerns the destiny of the recently overhauled pensions tax regime, alongside several other unresolved ideas, including the Chancellor’s Mansion House package,” noted Helen Ball, a partner at law firm Sacker & Partners LLP. “ At present, it is far from certain how many will make it through the formation of a new government.” Mansion House Over the past year the pensions landscape has shifted markedly and visibly, driven by a strong political impetus, most notably, for retirement savings vehicles to channel more capital into growth assets such as start-ups and...

What are the practical implications of this announcement? The General Election is set for six weeks’ time, on 4 July 2024. Party manifestos will follow shortly. Employment law practitioners should stay abreast of the principal parties’ pledges so potential directions of travel are anticipated. We will publish further materials on employment-related manifesto details as these are released. To monitor the latest status of legislation and codes of practice, see Legislation tracker— Employment and Employment horizon scanner—dates for your diary, which will be updated on an ongoing basis as more information becomes available. What is the pre-election period? Following Prime Minister Rishi Sunak’s announcement on 22 May 2024 that a General Election will take place on 4 July 2024: Parliament will be prorogued on 24 May 2024 Dissolution, bringing Parliament to a close, will take place on 30 May 2024 Once Parliament is prorogued, most...

In this issue: TUPE 2006 and European Works Councils ESG and sustainability: employment issues Pensions Prohibited conduct (discrimination etc) Equal pay Whistleblowing Grievances Confidentiality, duties and restrictions: enforcement Financial services and banking: employment issues Employment tribunals Immigration Daily and weekly news alerts Dates for your diary Trackers New Q& As TUPE 2006 and European Works Councils DBT consults on reforming TUPE 2006 and abolishing the legal framework for European Works Councils The Department for Business and Trade has begun consulting on proposed updates to the Transfer of Undertakings ( Protection of Employment) Regulations 2006 and on removing the statutory framework for European Works Councils. The proposed TUPE revisions would clarify that its safeguards apply solely to employees, and would end the requirement to divide employees’ contracts among several new employers when a business transfers to more than one successor. Submissions must be made by 11 July 2024. See: LNB News 16/05/2024 43. ESG and...

What has happened? The Prime Minister ( PM) has confirmed that the next UK general election will take place on 4 July 2024. This is the first such announcement since DCPA 2022 reinstated the Sovereign’s prerogative to dissolve Parliament on the PM’s advice. What follows is guided mainly by parliamentary convention rather than statute. The headline timetable is: 22 May — PM asked the King to dissolve Parliament 22 May — King Charles agreed; the election was announced to the country 23 May — ‘ Wash-up’ period starts 24 May — Parliament prorogued 25 May — Pre-election period of sensitivity begins (formerly ‘purdah’) 30 May — Parliament dissolved 30 May — Pre-election period begins 4 July — General Election What does ‘wash-up’ mean? ‘ Wash-up’ is the stretch between calling a general election and...

Pady & Others (the FDA claimants) v HMRC, Foreign Commonwealth and Development Office and the Home Office [2024] EAT 73 The Employment Appeal Tribunal concluded that permitting the workers to pursue their case afresh, after a separate panel had rejected similar claims by other trade unions concerning the same scheme in 2022, would unfairly subject the government to repeated litigation on the same points. The cohort was known as the FDA claimants because they were represented by the First Division Association, a trade union for civil servants in senior and middle management. They were among several groups that brought claims relating to the Civil Service Compensation Scheme. The claimants contended that the scheme, which introduced a cap on redundancy and exit payments for staff approaching pension age, discriminated against them when compared with their younger colleagues......

Abbey and others v (1) Tesco Stores Ltd, (2) Element and others [2024] EAT 76 Employment Appeal Tribunal Judge Jennifer Eady stated that around 6,000 claimants represented by KP Law Ltd were lawfully refused access to emails, letters and documents exchanged between Tesco and two other claimant groups represented by Leigh Day and Harcus Parker Ltd. The KP cohort comprised predominantly female shop workers. Although the KP-represented workers argued there is ‘no good reason’ to treat them differently from the remaining 41,000 claimants, from whom the Employment Tribunal has selected its sample cases, Judge Eady was not persuaded there was any basis to lift, even in part, the stay affecting the KP claims......

In this issue: Employment tribunals Status and worker categories Protected characteristics Whistleblowing Industrial action Financial services and banking: employment issues Failure to prevent fraud Immigration Daily and weekly news alerts IRLR Highlights— June 2024 Dates for your diary Trackers New Q& As Employment tribunals HMCTS reform project: Update for ET professional representatives ( May 2024) A joint letter from the two Presidents of Employment Tribunals, enclosing an important message from Mark Lewis, Employment Tribunals Service Manager at HM Courts & Tribunals Service ( HMCTS), has been published. It: delivers urgent notice that from 30 May 2024 professional representatives filing an employment tribunal claim online in Scotland, Leeds, Midlands East, South West England or any of the three London offices must use the My HMCTS portal; and sets out dates over the next two...

Groom v Maritime and Coastguard Agency [2024] EAT 71 What are the practical implications of this decision? This ruling confirms that the authorities do not recognise volunteering as a sui generis category, nor do they establish, as a point of law, that a volunteer necessarily renders services outside a contract. A central element in the EAT’s reasoning was the claimant’s entitlement to remuneration, and whether that right subsisted. The tribunal considered that the need to submit a claim, rather than receive automatic disbursement, did not affect the underlying right; it was merely the method by which payment was processed. Moreover, the circumstance that numerous other volunteers chose not to lodge claims was immaterial to whether the entitlement to pay existed, and could not defeat a subsisting entitlement. Practitioners should bear in mind that the terminology applied to the parties’ relationship is not...

Corporate insiders could be spurred to blow the whistle on fraud, corruption and bribery if the financial incentives matched the potential reputational damage caused by informing on their company, SFO Director Nick Ephgrave said in his first hearing before the House of Commons' Justice Committee. In his inaugural appearance before the House of Commons’ Justice Committee, SFO Director Nick Ephgrave suggested that employees might be more willing to report bribery, corruption and fraud if rewards reflected the reputational risks of exposing their employer. He framed it as aligning payments with the potential reputational harm that can follow naming one’s own company, especially where the conduct involves fraud, corruption or bribery. He noted many would-be whistleblowers feel 'caught' between principle and practicality, worrying that careers and livelihoods could be derailed; balancing the wish to reveal wrongdoing with such practical concerns is, he said, a...

Joint letter from Presidents of Employment Tribunals: Employment Tribunals Reform Project— Action required (10 May 2024) HMCTS: Employment Tribunal Reform Project— Urgent update for ET professional users ( May 2024) What are the practical implications of this development? Professional users—namely solicitors, barristers, advocates and regulated professional representatives with a Companies House number—who have not yet enrolled with My HMCTS should do so without delay. From 30 May 2024, any professional representative intending to submit a claim online in the following locations must use My HMCTS: Scotland Leeds Midlands East South West England Any of the three London offices This requirement will apply to all remaining offices in England and Wales as the national roll-out progresses over the next two months. Professional users should note that activating a My HMCTS account can take up to five days... What is the...

The Economic Crime and Corporate Transparency Act 2023 ( ECCTA 2023) Enacted in October 2023, the Economic Crime and Corporate Transparency Act 2023 ( ECCTA 2023) introduces a new requirement for large companies and businesses to establish 'reasonable procedures' to shield themselves from prosecution for a failure to prevent fraud. This closely aligns with the UK's Bribery Act 2010, under which organisations can face charges for not preventing bribery. Junior Home Office minister Andrew Sharpe told the House of Lords, Parliament’s upper chamber, that guidance might arrive within weeks. ' The government......

R ( TTT) v Michaela Community Schools Trust [2024] EWHC 843 ( Admin) What are the practical implications of this case? The ruling concerns a particular school with a secular ethos and an idiosyncratic disciplinary approach—often labelled the ‘strictest school in Britain’—together with a defined policy on prayer rituals that was introduced urgently by the headteacher and subsequently adopted by the governing body. Despite its specific context, the decision provides a valuable examination of the protections afforded by Article 9 of the ECHR, section 19 Eq A 2010 and section 149 Eq A 2010. It further illustrates how the court interrogates a school’s decision-making processes, including its treatment of relevant facts and legal questions. Understanding the court’s analysis will aid lawyers advising any educational institution, employer or service provider who must grapple with which restrictions may lawfully be placed on a pupil, employee or...

In this issue: Equality Employment tribunal equality claims Data protection and employee information Pay, benefits and tax Immigration Employment law in Northern Ireland Daily and weekly news alerts Dates for your diary Trackers New Q& As Equality OU appoints Professor Dame Nicola Dandridge to lead post-employment tribunal review The Open University ( OU) has confirmed it will commission an independent review of the institution following this year’s employment tribunal decision in the case brought by Professor Joanna Phoenix against the OU, alleging harassment and discrimination linked to the expression of her gender‑critical beliefs. The review will be overseen by Professor Dame Nicola Dandridge, former chief executive of the Office for Students, Universities UK, and the Equality Challenge Unit. Work will commence in early May and is expected to take around four months to...

Legal and regulatory developments At present, non-financial misconduct is still not explicitly referenced in the fitness and propriety assessment for those holding a Senior Management Function ( SMF) or a Certification Function ( CF), nor within the broader conduct rules applied more widely to staff and employees across firms. Nonetheless, the FCA has pursued non-financial misconduct cases, despite criticism arising from its action against John Frensham. Heard by the Upper Tribunal in 2024, that case created a benchmark for fitness and propriety assessments, confirming there must be a meaningful link or nexus between the misconduct and the individual’s role in financial services. The FCA’s September 2023 consultation proposed expressly bringing non-financial misconduct into the regulatory framework. In particular: bullying in the workplace is pertinent and relevant to fitness and propriety, and comparable conduct in a person’s private life is also...

In this issue: Status and worker categories Employment tribunal equality claims Whistleblowing Individual rights arising from union membership Confidentiality, duties and restrictions: enforcement Employment tribunals Employment Appeal Tribunal Pensions Lex Talk®Employment: a Lexis®Nexis community Daily and weekly news alerts Dates for your diary Trackers Status and worker categories Food delivery companies to introduce right to work checks for substitute drivers The Home Office has stated that, following discussions with the UK government, Deliveroo, Just Eat and Uber Eats plan to curb misuse of driver account sharing by their drivers. Each platform has agreed to implement new procedures enabling verification that any substitute couriers have permission to work in the UK. All three companies have reiterated plans to roll out checks to confirm substitutes’ legal right to work. Deliveroo has already begun, adding right to work screenings for substitutes at the registration stage earlier this month. See: LNB News 30/04/2024 76. Department for Education updates guidance for employers...

William v Lewisham and Greenwich NHS Trust [2024] EAT 58 What are the practical implications of this decision? The ruling clarifies causation in whistleblowing detriment cases. It confirms that the EAT’s earlier decision in Malik still stands as good law, despite the Supreme Court’s judgment in Jhuti. That is because Jhuti dealt specifically with unfair dismissal, not detriment. Consequently, in detriment claims the enquiry remains on why the decision‑maker acted as they did. There is no need to employ a ‘composite approach’ that blends another person’s motive with the decision‑maker’s act. This is the same test applied in discrimination claims (see CLFIS( UK)). The EAT’s decision is significant in settling this point of principle. Yet it is unlikely to alter practice materially, since the principle in Jhuti is narrow and tightly defined, and the factual patterns in which it would have been engaged (even if...