Legal News

Employment Rights ( Increase of Limits) Order 2024, SI 2024/213 What are the updates?...

PSN Recruitment Ltd (trading as Cosmopolitan) v Ludley and Greenscape Specialist Recruitment Ltd [2023] EWHC 3153 ( IPEC)) What are the practical implications of this case? This judgment strengthens established principles on confidentiality and the law of confidence, and clarifies how protected confidential material should be assessed and categorised. Whilst it cannot be presumed that any client database is automatically confidential, a significant line of authority indicates that lists containing active and target client contact details typically satisfy the requirements for confidence, and this ruling now further endorses that stance. The decision also highlights the need for parties to provide full cooperation to the court and to avoid obstructive conduct, reflected both in the approach to the damages award and, more broadly, in Her Honour Judge Clarke’s remarks on the defendant’s behaviour and conduct throughout. In particular, Ludley’s destruction of evidence and his breach of the duty owed to...

In this issue: Pay Tax Prohibited conduct (discrimination etc) Equality of terms (equal pay) Data protection and employee information Individual rights arising from union membership Banking and financial services: employment issues Issues arising on termination Unfair dismissal Employment Tribunals Daily and weekly news alerts Dates for your diary Trackers New Q& As Pay DBT names and shames 524 employers failing to pay minimum wage The Department for Business and Trade ( DBT) has publicly identified more than 500 firms for failing to pay the national minimum wage to upwards of 172,000 workers. Employers in breach must return nearly £16m to make good these underpayments. This is the twentieth roster released by the government since the 2013 launch of the scheme that publicly ‘names and shames’ employers who do not meet minimum wage...

Barnard v Hampshire and Isle of Wight Fire and Rescue Authority [2024] EAT 12 What are the practical implications of this judgment? This decision confirms that a contractual obligation on employees to remain prepared for an operational post (eg by keeping fit and completing the required training) can amount to a genuine material factor, providing a defence to an equal pay claim. That point was, however, scarcely disputed. The contested question was the significance of evidence showing that the relevant comparators had not stayed wholly ready for such an operational role. The EAT stated that the central enquiry is whether the obligation is authentic rather than a ‘dead letter’—that is, whether it remains in force, and has not been abandoned or suspended—and whether it contributes to the pay gap. It ruled that if a comparator is no longer adhering to the...

Shivani Mathur v HMRC [2024] UKUT 38 ( TCC) On 23 April 2015, Deutsche Bank AG ( DB) reached a negotiated resolution with the New York State Department of Financial Services concerning manipulation of interbank offered rates. As a consequence, DB was required to end the employment of several individuals. On 30 April 2015, Ms Mathur was dismissed by her employer, DB Group Services ( UK) Limited (the Employer), a company within the DB group (the Termination). Ms Mathur brought Employment Tribunal ( ET) claims against the Employer, DB, and others, alleging: harassment related to sex under the Equality Act 2010 ( Eq A 2010); direct sex discrimination under the Eq A 2010; victimisation under the Eq A 2010; whistleblowing detriments under the Employment Rights Act 1996 ( ERA 1996); and unfair dismissal under the ERA 1996. In May 2016, after a preliminary hearing but ahead of any full hearing, Ms Mathur and the...

Z v Commerzbank and others [2024] EAT 11 What are the practical implications of this judgment? Practitioners advising on matters involving allegations of a sexual offence should take note of this decision, and in particular its reading of SO( A) A 1992, s 1(1), which imposes a lifelong bar on publication of material likely to lead members of the public to identify the alleged victim of certain sexual offences. The EAT ruled that, for the SO( A) A 1992 protection to arise, there must be a formal allegation within the context of potential criminal proceedings where a charge for the relevant sexual offence could be pursued (e.g. a complaint to the police). Consequently, raising such an allegation in employment tribunal proceedings alone (as occurred here) does not secure that...

Under parliamentary rules, proposed laws are generally expected to gain approval within 12 months from the day they are lodged in Parliament, and additional time must be secured through extensions. The long-postponed Bill was first released on 8 March 2023 and was carried forward to the next session of Parliament on 17 April 2023. Since that debut, it has undergone several amendments along the way. As the Bill again approached its lapse date, the government then on 7 February 2024......

In this issue: Employment Tribunals Status and worker categories Tax Protected characteristics Data protection and employee information Industrial action ESG and sustainability: employment issues Financial services and banking: employment issues Immigration Daily and weekly news alerts Dates for your diary Trackers New Q& As Employment Tribunals What enquiries should be made by a tribunal before it makes a deposit order? In Carryl v Governing Body of Manford Primary School [2023] EAT 167, the Employment Appeal Tribunal held that, when determining the level of a deposit order, an employment judge should establish the payer’s income and expenditure to understand their disposable income over the relevant timeframe. The judge should make targeted enquiries about the person’s actual weekly or monthly net pay, factoring in deductions such as tax, National Insurance, pensions and other regular...

Carryl v Governing Body of Manford Primary School [2023] EAT 167 What are the practical implications of this judgment? If an employment tribunal proposes to impose a deposit order on the basis that a claim or response has scant reasonable prospects of success, it is required to make sensible enquiries into the paying party’s means to meet the deposit. The judgment clarifies the methodology tribunals should adopt when considering such orders, and, as a result, indicates avenues on which representatives may effectively challenge a deposit order on appeal......

In this issue: Ethnicity pay gap Working Time Employment Tribunals Status and worker categories Prohibited conduct (discrimination etc) Tax Pensions Data protection and employee information Daily and weekly news alerts IRLR Highlights— March 2024 Dates for your diary Trackers New Q& A Ethnicity pay gap The Market Standards Trend Report— Ethnicity pay gap 2023, produced by the Lexis Nexis Market Insights team with the Lexis+® UK Employment team, Lewis Silkin, Spktral, and Marriott Statistical Consulting, reviews how FTSE 250 organisations tackled voluntary ethnicity pay gap disclosures and flags recurring traps and obstacles in ethnicity pay gap reporting. See News Analysis: Market Standards Trend Report— Ethnicity pay gap 2023. Working Time Video analysis— Irregular hours and part-year workers: what is changing for holiday entitlement and pay? In the concluding, third part of our series on the grey...

To watch the video of their conversation, click here now. A fuller written summary of the issues explored and analysed, with onward links to our related materials, appears immediately below. See also Practice Note: Statutory paid holiday—irregular hours workers and part-year workers. For the first and the second instalments in our series, see: Video analysis— Should annual bonuses be included when calculating holiday pay? and Video analysis— Paid holiday entitlement for irregular hours and part-year workers: who falls within the definitions? What is the background to the changes? The Employment Rights ( Amendment, Revocation and Transitional Provision) Regulations 2023 ( Amendment Regulations 2023), SI 2023/1426, modified the Working Time Regulations 1998 ( WTR 1998), SI 1998/1833, to bring in (among other things) distinct rules for working out both holiday entitlement and pay for leave years starting on or after 1 April 2024 for: ...

Miller v University of Bristol ( ET/1400780/2022) At the Bristol Employment Tribunal on 5 February 2024, it was determined that former University of Bristol political sociology professor David Miller’s anti‑ Zionist stance constitutes a belief meriting respect within a democratic society. Judge Rohan Pirani further concluded that the university’s choice to dismiss Miller was a disproportionate response to concerns about safeguarding its reputation amid criticism of his remarks. Emphasising academic freedom, Judge Pirani stated that a university should anticipate and withstand scrutiny and reputational turbulence arising when academics lawfully express and explore ideas connected to their scholarship and fields of expertise. According to the judgment, Miller served as a professor of political sociology from September 2018 until his dismissal in October 2021, which followed a surge of complaints regarding anti‑ Zionist comments he made earlier that year......

Fees for employment claims were scrapped in 2017 after the Supreme Court found they impeded access to justice and concluded the regime failed on affordability, proportionality and simplicity. Yet, nearly seven years on, the UK government is consulting on fresh proposals requiring workers to pay to lodge claims, reviving an approach many assumed was finished. Rachel Ward, managing associate at Lewis Silkin LLP, said the move 'came out of the blue', though it is no surprise ministers want to relieve pressure on a 'very pressured tribunal system'. ' Charges might prompt people to assess the strength of their claim more carefully before issuing, and could weed out those spurious claims with no realistic prospect anyway,' Ward noted. ' Alternatively, as the consultation suggests, they anticipate greater settlement via Acas rather than progression to a full hearing.' The...

Sean Pong Tyres v Moore [2024] EAT 1 What are the practical implications of this judgment? This judgment addresses a novel issue about the reach of the Transfer of Undertakings ( Protection of Employment) Regulations 2006 ( TUPE 2006) where an employee brings a claim under the Equality Act 2010 ( Eq A 2010) for harassment against their employer, and, after the acts complained of, there is a TUPE transfer. Under that transfer, the alleged individual employee perpetrator — potentially answerable to the claimant under Eq A 2010, s 110(1) — moves to the new employer (the transferee), yet the claimant’s own employment does not transfer. The practical takeaway for practitioners is the tribunal’s conclusion that the transferor employer’s primary liability to its employee for that harassment does not pass to the transferee employer if the claimant’s employment fails to transfer for reasons that are not...

What does the Market Standards Trend Report cover? This Market Standards Trend Report looks at voluntary disclosure of ethnicity pay gaps, analysing how reporting on ethnicity pay gaps has been approached by a sample of 245 FTSE 350 companies......

Al Sadeq v Dechert LLP and others [2024] EWCA Civ 28 What are the practical implications of this case? This judgment is must-read material for practitioners dependent on LPP, acting as a stark reminder of the dangers of misapprehending its limits. It is especially pertinent to those undertaking disclosure where LPP is claimed but attacked via the iniquity exception. It supplies not merely a thorough treatment of the governing principles and authorities, but also hands-on direction on the proper conduct of a disclosure review—and, if required, its litigation—when wrongdoing is said to be in play. Accordingly, it serves as both warning and roadmap for practitioners managing privilege disputes in complex disclosure, clarifying expectations, recommended steps, and approaches where alleged wrongdoing is in issue. What was the background? From 2010 to 2014, the claimant, Mr Al Sadeq, served first as a senior lawyer and...

Fasano v (1) Reckitt Benckiser Group Plc (2) Reckitt Benckiser Health Ltd [2024] EAT 7 What are the practical implications of this judgment? This decision makes plain that Eq A 2010, s 109 allows no room for a ‘purposive’ interpretation, even where that leads to the undesirable result that a claimant has no remedy for discriminatory treatment. The EAT affirmed the employment tribunal’s rejection of an indirect age discrimination claim brought by a retired employee who was denied payment under a long-term incentive plan ( LTIP) after the employer’s parent company changed the rules to promote staff retention. That said, the EAT found the tribunal’s approach to agency under Eq A 2010, s 109 to be perverse and unsustainable. On orthodox common law principles, there was no sound footing for the tribunal’s conclusion that the parent company was acting as the employer’s agent so as to fix the...

To watch the video of their discussion, click here. A fuller written summary of the issues examined, with onward links to related materials, appears below. See also Practice Note: Statutory paid holiday—irregular hours workers and part-year workers. For the first instalment in our series, see: Video analysis— Should annual bonuses be included when calculating holiday pay? What is the background to the changes? The Employment Rights ( Amendment, Revocation and Transitional Provision) Regulations 2023 ( Amendment Regulations 2023), SI 2023/1426, amended the Working Time Regulations 1998 ( WTR 1998), SI 1998/1833, introducing, among other matters, new rules for calculating holiday entitlement and pay for leave years starting on or after 1 April 2024 for: irregular hours workers part-year workers Government guidance has been issued to sit alongside these reforms. The key driver for the amendments was to counter the effect of the Supreme Court’s decision in Harpur Trust v...

Employment Appeal Tribunal judgment Employment Appeal Tribunal Judge Naomi Ellenbogen determined, in a judgment issued on 22 January 2024, that the claimant, referred to only as R Moon, benefited from workers’ rights in her position as an Associate Hospital Manager at Lancashire and South Cumbria NHS Foundation Trust, as Parliament did not exclude her from worker status when framing the statute governing her appointment... Judge Ellenbogen explained that Parliament’s purpose in drafting the relevant provision of the Mental Health Act 1983—which has the consequence that officers or employees of a trust cannot be appointed as Associate Hospital Managers, because they cannot exercise the necessary powers of a mental health review panel—does not, in itself, address the parties’ intentions when entering into an overarching contract or a series of individual contracts. She added that nothing in section 23(6) of the Mental Health Act prevents an...

In this issue: Working time Employment tribunals Pay Tax Prohibited conduct (discrimination etc) Whistleblowing Industrial action Corporate governance ESG and sustainability: employment issues Immigration Daily and weekly news alerts Dates for your diary Trackers New Q& As Working time Video analysis— Paid holiday entitlement for irregular hours and part-year workers: who falls within the definitions? In the second instalment of our series examining grey areas stemming from the recent statutory reforms on holiday entitlement and pay, Cathy Hoar, solicitor, and Sarah Watson, barrister, from the Lexis+® UK Employment team, consider the new statutory classifications of irregular hours and part-year workers for holiday years commencing on or after 1 April 2024. Alongside the video, there is a comprehensive written summary and explanation. See News Analysis: Video analysis— Paid holiday...