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Employment Newsletter Spring 2017

1. An introduction from Hari Menon 2. British Gas Trading V Lock- an article by Lucy Bairstow 3. Policing the lunch break at Lloyd's of London- an article by Claire Millns 4. Pimlico Plumbers and Charlie Mullins V Gary Smith- an article by Tim Wilkinson <hr /><hr />  <img src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/05eb09f2-290c-4023-a1c6-1e3626ae2ed9.jpg" width="180" height="213" />   We welcome Spring with a customarily interesting mixed bag of articles from members of our Employment Team. Lucy Bairstow explains the consequences for the calculation of holiday pay following the decision of the Court of Appeal in Lock v British Gas and the refusal of permission to appeal by the Supreme Court. Claire Millns considers the working hours alcohol ban imposed by Lloyds of London and explores the law on drug and alcohol testing in the workplace. The recent and well publicised decision of the Court of Appeal in Pimlico Plumbers v Smith, yet another authority on the distinction between a worker and a self-employed contractor, is commented on by Tim Wilkinson. There is enough space here for me to mention one timely development. This is the judgment of the Court of Appeal, handed down on 15th March 2017- O'Brien v Bolton St Catherine's Academy [2017] EWCA Civ 145. It is an object lesson for employers in getting their tackle in order when dismissing someone for ill health. The claimant was a teacher who was dismissed on ill-health grounds. In the ET she succeeded in establishing that her dismissal was unfair and also that it amounted to discrimination under s.15 of the Equality Act 2010. The employer's appeal was allowed by the EAT. The claimant then appealed successfully to the Court of Appeal. The claimant had been off sick following an assault by a pupil. By the time of her dismissal she had been absent from work for over a year. She had adduced evidence at the internal appeal stage which ostensibly indicated that she was fit to return to work. The appeal panel was not convinced by this evidence and upheld the dismissal. It did not seek further medical opinion to confirm or refute the claimant's evidence as to her fitness to work. The ET took the view that the appeal panel should have obtained expert evidence on the issue of whether the claimant was fit to return to work and the additional time it would have taken for this step would have made no material difference to the employer. In the proceedings, the employer relied heavily (as it had to) on the statutory defence in s.15. The ET was unimpressed by what it regarded as the employer's scant evidence on this point, as it was with the fact that the employer had not really addressed the issues going to the substance of the statutory defence in the internal dismissal hearing and subsequent internal appeal. The ET accordingly held that the claimant's dismissal was disproportionate in the context of s.15 and also unfair. The majority in the CA saw nothing wrong with the ET's approach, especially since the EAT had not allowed the appeal on any ground relating to perversity. This was a 2:1 decision of the CA and it is difficult not to have some considerable sympathy for the employer. There is a powerful dissent from Davis LJ who described the claimant's evidence as to her fitness as "demonstrably half-baked "and the ET's decision as "unacceptably purist". That aside, this case emphasises the importance of employers anticipating a potential s.15 / unfair dismissal claim when dismissing an employee for ill health and addressing any points that may be relevant to the statutory defence in the internal process. Running, or being seen to run, the statutory defence for the first time in the ET, may cause it to ring hollow. The other point to take from this case is that it is unsafe to reject an employee's assertion that he or she is fit to return to work without subjecting it to expert scrutiny. There are two other features of the case worth mentioning. First, the CA emphasised that where there is an initial decision to dismiss, followed by an appeal which upholds the dismissal and where the dismissal is impugned as being discriminatory, an examination of the s.15 statutory defence should focus on the composite decision and not just on the initial decision or internal appeal. Secondly, whilst acknowledging the different tests for unfair dismissal and s.15 discrimination, the majority accepted that a s.15 justification defence for a dismissal which fails as being disproportionate can properly also be considered as failing the test for reasonableness of a dismissal under s.98(4) of the Employment Rights Act 1996. Underhill LJ (delivering the leading majority judgment) observed that "The law is complicated enough without parties and tribunals having routinely to judge the dismissal of such an employee by one standard for the purpose of an unfair dismissal claim and by a different standard for the purpose of discrimination law."   <a href="/barristers/hari-menon/">Hari Menon</a>, March 2017. <hr /> <img src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/cb823b83-9e35-4d9e-bc8b-2ff0ca12b66f.jpg" width="180" height="213" /> British Gas Trading Ltd v Lock: British Gas refused leave to appeal by the Supreme Court in the long-running, pivotal case concerning Holiday pay and Commission payments. It was announced on 28th February 2017, that the Supreme Court has refused permission for British Gas to appeal against the Court of Appeal's decision in the case of British Gas Trading Limited v Mr Z. J. Lock (1) Secretary of State of Business, Innovation and Skills (2) [2016] EWCA Civ 983. As practitioners will be aware, calculating holiday pay has become more complex over recent years. As a result of the EAT decision in Bear Scotland Limited v Fulton and another [2015] ICR 221, the calculation of statutory holiday pay should now include contractual, non-guaranteed overtime (that is, overtime that the employer can require the employee to work, but has no duty to offer) and, although not considered as yet at appeal level, there have also been some cases in which Tribunals have decided that voluntary overtime should be included. Now, with the Supreme Court's decision effectively ending the judicial process for British Gas, the calculation should include a representative element of results-based commission normally earned. This will result in significant pay-outs, not least for those whose claims have already been lodged and stayed pending the outcome of this case. It is also likely that many employers will look to review their holiday pay arrangements and also consider their exposure to potential historic liability. However, with the Court of Appeal having been careful to confine its decision to the facts of the instant appeal, there remain unanswered questions and it seems that the uncertainty and complexity, not just surrounding the question of quantification but other related questions, will continue, cases will need to be scrutinised on their own facts and we may well see similar litigation continue. Further and looking further forward, there are some who have commented that the decisions in Lock and Bear will in any event have to be treated with caution, post Brexit. Background to Lock: Mr Lock was employed by British Gas as a salesman. He had statutorily defined "normal working hours" and his remuneration package included basic salary plus commission based on the number and type of contracts he had negotiated (and which had "gone live"). His remuneration did not vary with the amount of work done during his "normal working hours", rather the payment and amount of commission was based on the outcome of his work. When he took holiday, he only received basic pay and this was significantly less than his normal pay. It was argued that this presented a disincentive to take annual leave. Mr Lock, backed by UNISON, originally brought his claim before the ET in April 2012 as the lead claimant for a very large number of claims. The case was referred to the CJEU in November 2012. In light of the CJEU's decision; namely that, as a matter of EU law, Article 7 required commission payments of the type earned by Mr Lock to be taken into account in the calculation of holiday pay, the matter was remitted back to the ET for determination on whether domestic law, in the form of the WTR, could be read consistently with EU law and if not whether words could and should be added in interpreting those regulations so that the calculation of a week's pay was in conformity with EU law. This was, of course, necessary if Mr Lock was to succeed in his claim against British Gas. The ET found that it was possible to read words into the WTR (Regulation 16(3)) in order to overcome the incompatibility between EU law and domestic law. British Gas challenged the approach of the ET but the EAT agreed with the ET. British Gas then appealed to the Court of Appeal. In October 2016, the Court of Appeal confirmed the EAT's decision, affirming the finding that the ET had not erred in reading words into the WTR to make domestic legislation consistent with EU law. However, the Court of Appeal did stress that its judgement was confined to Mr Lock's case. Further, there having been discussion as to whether the form of wording that the ET's judgement implied into the WTR was appropriate, the Court of Appeal agreed that the wording was expressed too widely and favoured an appropriate amendment to the ET's judgement, more clearly confining it to the circumstances of Mr Lock's case; namely just to contractual results-based commission. Implications: The confirmation brought about by this ruling has been awaited by Mr Lock and "others" for almost 5 years. Whilst it means that they will benefit, there remains unanswered questions both in respect of their own claims and in respect of other, similar holiday pay claims. The decisions of the CJEU, the ET, the EAT and the Court of Appeal have all concerned the issue of interpretation of domestic law. Although the Court of Appeal noted the agreement that the requirement to include commission payments in holiday pay applies only to the basic EU right to 4 weeks holiday and that the holiday pay should be calculated by reference to Mr Lock's average remuneration over the 12 weeks before the calculation date, Mr Lock's losses are yet to be quantified and it is likely that the case will return to the ET to determine the appropriate level of compensation. Further, considering the fact that there are employees working across a range of sectors under comparable arrangements, it seems likely there will be debate as to which types of commission need to be included, the precise calculation and implementation in practice. In addressing the discussion that had taken place during the course of arguments relating to different types of cases raising other questions, the Court of Appeal stated that its judgment was not intended to answer such questions. It therefore remains uncertain as to how the conforming interpretation might apply, for example, to a salaried banker who receives a single, large, results-based annual bonus. The Court of Appeal recognised that there may well be a question as to what his/her "normal remuneration" is and how, if at all, the calculation ought to reflect his/her bonus. Similarly, for the worker who only becomes entitled to commission at a certain point when a certain level of turnover etc. is reached and thus does not receive commission for some months of the year. The Court of Appeal also recognised the fact that the reference period may differ in different cases. Some have also warned that the decision, based on the WTD, could be at risk if the UK opts for a hard Brexit. The argument runs that the government could introduce new legislation to exclude commission from holiday pay and Tribunals would not face scrutiny from Europe. It seems to the author though that this is speculation and it should be assumed, for present purposes, that the decision will stand. The government were supportive of Mr Lock in the appeals. Assuming the decision will stand, and notwithstanding the uncertainty which remains over the calculation of holiday pay, it does appear likely that it will have wider implications for employers operating commission schemes or that regularly make other payments in addition to basic salary which are intrinsic to the job, who may need to review whether they need to alter their practices, in terms of holiday pay, but also to consider whether they may be exposed to claims for under-paid holiday pay. <a href="/barristers/lucy-bairstow/">Lucy Bairstow</a>, March 2017. <hr />   <img src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/64d78c44-8940-4348-b7d3-8e72d345c222.jpg" width="180" height="213" />  Policing the lunch break at Lloyd's of London; swapping one headache for another?  "The London market historically had a reputation for daytime drinking, but that has been changing and Lloyd's has a duty to be a responsible employer, and provide a healthy working environment. The policy we've introduced aligns us with many firms in the market.Drinking alcohol affects individuals differently. A zero limit is therefore simpler, more consistent and in line with the modern, global and high performance culture that we want to embrace." This quote comes directly from a bold new policy introduced by Lloyd's of London in February this year to eradicate lunch time drinking by its staff. The policy prohibits staff from drinking alcohol between the hours of 9.00am to 5.00pm, Monday to Friday, and so, for Lloyd's workers at least, it is goodbye to the boozy lunch, the lunch time pint or the midday glass of celebratory champagne. It is understood that the ban has been introduced in response to the high level of alcohol-related grievance and disciplinary issues and it is no doubt hoped by Lloydâ€™s that the number of such incidents will reduce as a result of the ban. However, while the policy may eliminate one post lunch headache, will it simply create another for anyone tasked with policing it? If an employee is suspected of drinking alcohol in breach of the policy, it seems that there are two main options open to Lloyd's in response: 1. Turning a blind eye. This may be the simplest option where there are suspected minor breaches of the policy. The obvious danger of such an approach is to make the ban largely meaningless. In addition, those who are subjected to disciplinary action for breach of the policy may justifiably complain they have been treated unfairly because of inconsistent treatment. 2. Commencing an investigation with a view to potential disciplinary action for misconduct. If the employer decides to dismiss the employee for gross misconduct, unless the member of staff has admitting to drinking alcohol in breach of the policy, there may be some difficulty in gathering sufficient evidence to satisfy the three limb test commonly considered when determining the fairness or otherwise of a misconduct dismissal as set out in British Home Stores Ltd v Burchell [1979] IRLR 379. Most obviously, there are two forms evidence might take. The first would be in the form of statements from colleagues who witnessed the consumption of alcohol. However, colleagues may not be willing to provide such statements, especially if to do so might incriminate them, and asking for statements may have an adverse effect on workplace morale. The second would be in the form of results from alcohol testing on the relevant employee. Can the employer require an employee to submit to alcohol testing? Such testing is less common, and thus may be harder to justify, in an office environment, where an employee is not using dangerous machinery or engaging in work which may harm others. If the employer wishes to test employees for alcohol, its request to do so must be reasonable and proportionate in the circumstances. The Information Commissioner's Employment Practices Code considers the importance of explaining the reasons for the presence of a drug or alcohol policy in a staff handbook and the consequences for workers of breaching the policy. It is also good practice to set out the form the testing will take and how tests results will be used. If the request to test is reasonable and proportionate, and the employee refuses to submit to testing, that refusal may amount to misconduct, for failing to follow a reasonable and lawful instruction, and itself result in disciplinary action. Whether that refusal would constitute misconduct will depend on a range of factors, such the reason for testing, the method proposed, the reasons the employee is being asked to undergo testing and the reasons the employee may have for refusing. Even if an employer has carried out testing in accordance with a fair policy, it may still encounter difficulties in showing that the tests results are reliable. A case concerning the suspected use of cocaine at work, First Bristol Ltd v Bailes UKEAT/0526/13 demonstrates that a positive result may still be open to challenge because of other relevant factors. In Bailes these included the fact that the employee was handling bank notes likely to be contaminated with cocaine and that he had commissioned his own hair strand test which proved negative. While these factors are clearly case specific, one can imagine a number of factors which an employee may raise in response to a positive alcohol test in order to challenge its reliability or explain a positive result. For example, in 2014, London tube driver Alex McGuigan was dismissed for testing positive to a random alcohol breathalyser test which he alleged showed a false positive caused by his diabetes and/or faulty testing equipment. Mr McGuigan's grievance does not appear to have progressed to an employment tribunal but such was the strength of feeling against his dismissal that the RMT union drivers backed strike action over it. That is clearly an outcome any sensible employer will wish to avoid. A ban on alcohol consumption in office hours may seem reasonable. However, practical and legal difficulties can arise in enforcing the policy (especially if low-level non-compliance is widespread and the related policies and procedures are not properly drawn up and publicised). Further, the policy may have an adverse effect on employee morale and even the way in which employees and others perceive the employer. For these reasons, an employer may wish to consider carefully the introduction of a no alcohol policy, especially one which applies to office workers. No doubt some Lloyd's employees will benefit from the new policy in one way or another, whether they want to or not. The policy may reduce grievances and disciplinary action and may even improve performance. It is to be hoped it does all of those things and that it does not simply leave Lloyd's with a different set of grievances and disciplinary actions to deal with, and thus a headache it was never expecting. <a href="/barristers/claire-millns/">Claire Millns</a>, March 2017. <hr />   <img src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/9e37ac45-85ca-450c-ba23-f73dbf9a3214.jpg" width="180" height="213" />  In February 2017 the evolving case law concerning the so-called "gig economy"was supplemented by the Court of Appeal in the much publicised Pimlico Plumbers Limited (1) Charlie Mullins (2) v Gary Smith [2017] EWCA Civ 51. Although more a re-emphasis of previous considerations than ground-breaking dicta, this judgment nevertheless adds considerable weight to the growing number of first instance decisions in which those caught up in the gig economy have been held to be "workers" rather than "self employed contractors".   The gig economy is characterised by supposed short-term contracts and typically involves individuals who are portrayed to clients as employees but internally characterised as self-employed contractors. In Mr Smith's case, he had carried out plumbing work for Pimlico between 2005 and 2011. Of significance were two consecutive agreements, one in 2005 and one in 2009. The 2005 agreement referred to Mr Smith as a "sub-contracted employee" and contained a number of clauses seemingly contrary to him being self-employed. In contrast, the 2009 agreement specifically referred to the Claimant as a "self-employed operative" and contained clauses such as "For the avoidance of doubt, the Company shall be under no obligation to offer you work and you shall be under no obligation to accept such work from the Company "and [he would] "promptly correct, free of charge, any errors in your work". The Claimant was required to submit invoices and provide his own tools. The Employment Tribunal's decision that the Claimant was not an employee was upheld by the Employment Appeal Tribunal. That decision was not appealed and accordingly the Court Appeal was only concerned with the distinction between "worker"and "self-employed contractor". The ET had found, and the EAT had confirmed, that the Claimant was a worker. In essence, the two main questions for the Court of Appeal concerned a) the right of substitution; and b) the nature of the relationship. As to substitution, paragraph 84 of the judgment is illuminating. Essentially, an unfettered right to substitute is consistent with self-employed status, whereas the effect of a conditional right to substitute will depend upon the conditionality. Examples are given: a right to substitute, subject only to the need to show equivalent qualifications, is inconsistent with personal performance; to the contrary, if a right of substitution only applies where the contractor is unable to carry out the work or, importantly in this case, the right is subject to approval of someone who has absolute discretion to refuse, such rights would generally be consistent with personal performance. Notwithstanding a general practice of Pimlico's operatives to substitute in other Pimlico operatives, the 2009 agreement could not be read as incorporating an unfettered right to do so (it tended to be when they had a more lucrative job available) (paragraph 88) and there was no scope for implying an unfettered contractual right to substitute (paragraph 89). As to the nature of the relationship between the parties, the Court of Appeal reminded itself that there "is no single touchstone", such as a relationship of subordination. However, subordination can be one of several relevant factors, including the existence or otherwise of obligations during breaks in work engagements (umbrella contracts). In Mr Smith's case, the ET was entitled to find that he was obliged to work a normal 40-hour week (paragraph 109), and a lack of obligation to take on any one task was therefore not inconsistent with being a worker (paragraph 113). He was also required to use a van with the Pimlico logo and use a mobile phone issued by Pimlico. Having stood back and asked whether Pimlico could be considered the principal, and Mr Smith the subordinate, the ET was entitled to conclude that Mr Smith was a worker for the purposes of section 230 of the Employment Rights Act 1996. As with all such cases, it was necessary for the courts to examine not only the terms of the contract but the reality of the situation in practice. Perhaps unusually when read in light of recent decisions on the gig economy, the considerations here were more in relation to the nature of the rights under the written agreement than with whether the written contracts accurately reflected the true relationship. However, what does seem clear is that the courts are willing to accept that gig-economy operatives are workers, notwithstanding how they are characterised within the relevant contracts. Pimlico v Smith follows the recent first instance decisions in Aslam and Others v Uber BV and Others (2202551/2015) and Dewhurst v City Sprint UK Ltd [ET2202512/2016]. As Sir Terence Etherton MR made clear in paragraph 94, deciding upon the status of a claimant involves an evaluative exercise. These issues are therefore likely to rumble on, notwithstanding an apparent trend towards worker status. For various reasons an appeal in Aslam v Uber is much anticipated. <a href="/barristers/tim-wilkinson/">Tim Wilkinson</a>, March 2017.

Court denies pre-LASPO costs as litigation work had not started.

Court denies pre-LASPO costs as litigation work had not started. Parklane Plowden barrister, Steven Turner, was recently instructed by DWF to appear at the County Court at York on behalf of the Defendant. Choudhury v Markerstudy 12th January 2017 The case related to a claimant firm who signed up a client days before the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) came in to effect. The victim was involved in a road traffic accident, just two weeks before the start of the new civil justice rules. When they claim was issued in July 2014, the claimant accepted the sum of £1,150 in full and final settlement of his claim. Defendant firm, DWF disputed this figure and requested a detailed assessment of costs. Irwin Mitchell submitted that legal work had started before 1 April 2013 and sought to rely on a collective conditional fee arrangement (CCFA) entered into with DWF, contending it provided a valid pre-LASPO retainer. DWF did not dispute that if litigation services had been provided then the retainer would be valid. However, it argued the litigation friend had entered into a post-LASPO agreement, with litigation services provided from 4 April 2013. District Judge Wildsmith ruled that no litigation services were provided before the end of March 2013, and in turn the CCFA was unenforceable. The claimants bill was assessed as nil and Irwin Mitchell were ordered to pay the defendant’s costs of £3,000 plus VAT. Follow this link to read the full article, featured in the Law Society Gazette <a href="https://www.lawgazette.co.uk/law/court-denies-pre-laspo-costs-as-litigation-work-had-not-started/5060098.article">https://www.lawgazette.co.uk/law/court-denies-pre-laspo-costs-as-litigation-work-had-not-started/5060098.article</a> Steven Turner acted for Markerstudy and was instructed by DWF.

Good News for Business Rate Payers: the Supreme Court decision in S J & J Monk v Newbigin (VO), 1st March 2017

If you are renovating or converting commercial property, do you still have to pay business rates whilst that work is being undertaken? That was the question for the Supreme Court in SJ & J Monk v Newbigin.  Until recently, the long standing practice of the Valuation Office had been to give buildings undergoing reconstruction a nominal rateable value of £1, but that all changed with the Court of Appeal decision in Newbigin.  The effect of the Court of Appeal’s judgment was that unless the property was incapable of being economically returned to its former state, it would remain at its original rateable value, and business rates would continue to be payable even though it could not be used at all during the course of redevelopment.  A factory being converted to flats, for example, would continue to be rated as if it could be occupied as a factory, despite the fact that it was not intended that it ever be used a factory again. However, in a landmark ruling on 1st March 2017, the Supreme Court overturned the decision of the Court of Appeal, and restored the previous long-settled practice of distinguishing between properties that are in disrepair or being repaired, from those where the works go beyond repair.  Whilst the former must still be rated as if they are in a state of reasonable repair; the later should be given a nominal rateable value on the grounds that for the duration of the work they are not capable of beneficial occupation. For a fuller summary of the decision by David Reade QC and Dominic Bayne, who appeared in the Supreme Court on behalf of the successful appellant, <a href="/uploads/documents/Decision of the Supreme Court in S J & J Monk v Newbigin.pdf">please follow this link.</a>

Employment Newsletter Autumn 2016

In This Edition: <ol> <li><a href="https://us5.admin.mailchimp.com/campaigns/wizard/neapolitan?id=984629#One" target="_blank" rel="noopener noreferrer" data-cke-saved-href="#One">A </a>message from Dominic Bayne</li> <li>Dominic Bayne considers in Lee v McArthur</li> <li>Bryony Clayton considers if A headscarf ban is unlawful </li> <li>Paul Sangha considers Judicial assessment in ET Proceedings</li> <li>Robert Dunn examines the case of Aslam and others -v- Uber B.V and others [2016]</li> </ol> <hr /> <img class="cke_anchor" title="Anchor" src="image/gif;base64,R0lGODlhAQABAPABAP///wAAACH5BAEKAAAALAAAAAABAAEAAAICRAEAOw==" alt="Anchor" align="" data-cke-realelement="%3Ca%20data-cke-saved-name%3D%22One%22%20name%3D%22One%22%3E%3C%2Fa%3E" data-cke-real-node-type="1" data-cke-real-element-type="anchor" />1. A Message from Dominic Bayne <img style="margin: 0px;width: 180px;height: 213px" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/dcbd83e9-c1af-4506-83da-e55bc5015b81.jpg" width="180" height="213" align="none" data-cke-saved-src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/dcbd83e9-c1af-4506-83da-e55bc5015b81.jpg" /> In the manner of London buses, you wait for months for an employment law related news story to hit the headlines; and then 3 come along at once.  You might have missed it behind the froth over the High Court decision on Brexit, but this week, the TUC published a report on the decline in the number of employment tribunal claims in recent years.  According to their figures, the number of claim for unfair dismissal have fallen by 73% since 2013; and discrimination claims have fallen by well over 50%.  Overall the number of claims per month is down from 16,000 to 7,000.  Their conclusion: ‘Thousands of workers are being priced out of challenging discrimination or unfair dismissal’ by tribunal fees which need to be scraped.  Really?  One wonders what has taken them so long.  And it was only last week that we got the long awaited decision that ‘Uber’ taxi drivers were not self employed, but were ‘workers’ with all the rights that that entails.  Although Uber, represented by Parklane Plowden’s own David Reade QC, have lost round 1, given the enormous consequences for their business model and the ‘gig’ economy as a whole, it seems likely to go further.  It is an interesting decision, running to 128 paragraphs, but for those of you without the time or the inclination to pour over it, our pupil barrister, Robert Dunn, has produced a summary for our website which can be found here. Also last week, the Northern Ireland Court of Appeal held that Ashers bakery had discriminated against a homosexual man for refusing to bake him a cake which was decorated in support of gay marriage.  As a decision it has been almost universally criticised in the media as an attack on freedom of expression and freedom of speech; although that may be more to do with the fact that those are values which journalists hold very dear, and less to do with the difficult question of where the line between direct and indirect discrimination should be drawn.  For my own personal perspective, my article appears below. Meanwhile, the long running battle over the wearing of religious apparel seems no closer to being resolved, with 2 decisions from the EJCU expected before the end of the year.  In her article ‘Is a headscarf ban unlawful?’, Bryony Clayton examines the conflicting decisions of the Advocates General in each case, and advises employers on how to navigate this difficult minefield. And finally, for those of you whose practices have been hit hard by the decline in tribunal cases, or who are worried about how Employment Judges are filling their time these days, last month’s proposal by Brian Doyle (President of the Employment Tribunals) to introduce a new scheme for early neutral evaluation of employment cases by judicial assessment might be further cause for concern.  In his article on the subject, however, Paul Sangha explains the proposal, and why it is an initiative we should welcome. We welcome feedback and any topics requests for future e-newsletters. Please feel free to tweet us <a style="color: #007fff" href="https://twitter.com/ParklanePlowden" target="_blank" rel="noopener noreferrer" data-cke-saved-href="https://twitter.com/ParklanePlowden">@parklaneplowden</a> or email us at <a style="color: #007fff" href="mailto:events@parklaneplowden.co.uk?subject=PI%20Newsletter%20-%20Edition%205" target="_blank" rel="noopener noreferrer" data-cke-saved-href="mailto:events@parklaneplowden.co.uk?subject=PI%20Newsletter%20-%20Edition%205">events@parklaneplowden.co.uk</a>. <hr />   <a name="Two" data-cke-saved-name="Two"></a>2.  Dominic Bayne considers in Lee v McArthur the Court of Appeal of Northern Ireland held that a Christian bakery had directly discriminated against a homosexual man by refusing to bake a cake decorated with a slogan supporting gay marriage.  <img style="margin: 0px;width: 180px;height: 213px" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/dcbd83e9-c1af-4506-83da-e55bc5015b81.jpg" width="180" height="213" align="none" data-cke-saved-src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/dcbd83e9-c1af-4506-83da-e55bc5015b81.jpg" /> In Lee v McArthur the Court of Appeal of Northern Ireland held that a Christian bakery had directly discriminated against a homosexual man by refusing to bake a cake decorated with a slogan supporting gay marriage.  Was that an inevitable conclusion following the Supreme Court decision in Bull v Hall; or has it further extended the reach of direct discrimination into areas where it does not belong? It is not often that my pre-teenage boys express any kind of interest in what I actually do when I go out to work every day, still less that they initiate a discussion on sexual orientation discrimination; but they had heard about last week’s Court of Appeal verdict in the Ashers Bakery case on ‘Capital Radio’, and it seemed to catch their imagination.  They could not understand why a couple who did not believe in same sex marriage should be required to bake a cake which supported exactly that, particularly when it went against their religious beliefs.  They innocently wondered, in an interesting echo of Morgan LCJ’s judgment, ‘does that mean a Sunderland supporter would have to bake a black and white striped cake in support of Newcastle?’  They are in good company.  The prominent gay rights activist, Peter Tatchell, who had originally been in support of the customer in the Ashers dispute, came out strongly and in typically strident terms against the Court of Appeal’s judgment.  He considers it a backward step in terms of freedom of expression; and wondered whether, by the same logic, a Muslim owned bakery should be required to bake an edible image of the profit Mohammed; or whether a Jewish owned  bakery must print a slogan denying the holocaust.  <a href="/uploads/documents/dominic-%20intro%201.pdf" target="_blank" rel="noopener noreferrer" data-cke-saved-href="https://www.parklaneplowden.co.uk/uploads/documents/dominic- intro 1.pdf">To read the rest of the article, please follow this link.</a> <hr /> <a name="Three" data-cke-saved-name="Three"></a>3. Is a headscarf ban unlawful?    <img style="margin: 0px;width: 180px;height: 213px" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/1fcaa5d1-71a0-4492-a8e3-cb0ea4ab8ab9.jpg" width="180" height="213" align="none" data-cke-saved-src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/1fcaa5d1-71a0-4492-a8e3-cb0ea4ab8ab9.jpg" /> The wearing of apparel associated with particular religious beliefs has been the subject of high profile litigation for several years. Practitioners will undoubtedly remember the well publicised case of Eweida and others v UK (ECHR) in which it was held that in failing to protect Ms Eweida’s desire to manifest her religion by wearing a visible cross at work the UK breached her human rights. It was determined that a fair balance had not been struck between Ms Eweida’s desire to manifest her religious belief and the employer’s wish to project a certain corporate image and led to British Airways changing its dress code.   Prior to this in Azmi v Kirklees Metropolitan Borough Council [2007] IRLR 484 the Employment Appeal Tribunal held that the employer did not unlawfully discriminate against a teaching support worker by refusing to allow her to wear a veil in the classroom. The employer’s actions did prima facie constitute indirect discrimination but this was found to be justified on the basis that full and effective communication between adult and pupil could not be maintained. <a href="/uploads/documents/bryony-%202.pdf" target="_blank" rel="noopener noreferrer" data-cke-saved-href="https://www.parklaneplowden.co.uk/uploads/documents/bryony- 2.pdf">To read the rest of the article, please follow this link.</a> <hr />  4. Judicial Assessment in ET proceedings <img style="margin: 0px;width: 180px;height: 213px" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/07b0fb85-8709-4940-87a2-9933eea97a55.jpg" width="180" height="213" align="none" data-cke-saved-src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/07b0fb85-8709-4940-87a2-9933eea97a55.jpg" /> Employment Tribunals will now offer parties the option of Judicial Assessment of cases at an early stage in proceedings. This is an impartial, confidential assessment of the strengths and weaknesses of the parties’ respective claims, allegations and contentions, without full consideration of any evidence, by an Employment Judge. See the Protocol on Judicial Assessments, issued on the 3rd October 2016 issued by the President of the Employment Tribunals.   Parties will be able to indicate their interest in a box on the case management agenda form. A Judicial Assessment will only take place if all parties agree. There is no presumption that an Employment Judge will offer Judicial Assessment and there will be cases where it is inappropriate, as it will not meet the intended effect of promoting settlement, e.g. where a party expresses a view that the case cannot be settled. <a href="/uploads/documents/Paul-%203.pdf" target="_blank" rel="noopener noreferrer" data-cke-saved-href="https://www.parklaneplowden.co.uk/uploads/documents/Paul- 3.pdf">To read the rest of the article, please follow this link. </a> <hr /> <img class="cke_anchor" title="Anchor" src="image/gif;base64,R0lGODlhAQABAPABAP///wAAACH5BAEKAAAALAAAAAABAAEAAAICRAEAOw==" alt="Anchor" align="" data-cke-realelement="%3Ca%20id%3D%225.%22%20data-cke-saved-name%3D%225.%22%20name%3D%225.%22%3E%3C%2Fa%3E" data-cke-real-node-type="1" data-cke-real-element-type="anchor" /> 5. Robert Dunn examines the case of Aslam and others v Uber B.V and others [2016] (unreported) in which the London Central Employment Tribunal, at First Instance, held that 19 current and former Uber drivers were ‘workers’, not ‘self-employed contractors’.  Robert Dunn examines the case of Aslam and others v Uber B.V and others [2016] (unreported) in which the London Central Employment Tribunal, at First Instance, held that 19 current and former Uber drivers were ‘workers’, not ‘self-employed contractors’.   David Reade QC of Chambers was instructed on behalf of the Respondents.   THE ISSUE   Were Uber cab drivers defined as ‘workers’ or ‘self-employed’, for the purpose of ascertaining their entitlement to certain employment rights available under domestic law?   THE LAW  Section 230 of the Employment Rights Act 1996 states that:   “(1) In this Act “worker” … means an individual who has entered into or works under…:  (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; and any reference to a worker’s contract shall be construed accordingly. “   This definition is copied word for word into section 54 of the National Minimum Wage Act 1999 and Regulation 2 of the Working Time Regulations 1998. It is the gateway that the Uber drivers had to pass through in order to prove entitlement to whistleblowing protection, holiday pay, the minimum wage, and controls on working time.  <a href="/uploads/documents/Robert-%204.pdf" target="_blank" rel="noopener noreferrer" data-cke-saved-href="https://www.parklaneplowden.co.uk/uploads/documents/Robert- 4.pdf">To Read the rest of this article, please follow this link. </a>

Employment Newsletter Summer 2016

<table id="templateContainer" style="width: 600px" border="0" cellspacing="0" cellpadding="0"> <tbody> <tr> <td style="border-collapse: collapse" align="center" valign="top"> <table id="templateBody" style="width: 600px;background-color: #f8f8f8" border="0" cellspacing="0" cellpadding="40"> <tbody> <tr> <td style="padding-bottom: 20px;border-collapse: collapse" align="center" valign="top"> <table style="width: 100%" border="0" cellspacing="0" cellpadding="0"> <tbody> <tr> <td class="bodyContent" style="text-align: left;color: #43404d;line-height: 150%;font-family: 'Helvetica Neue', Arial;font-size: 16px;border-collapse: collapse" colspan="3" valign="top"> <h1 class="null" style="margin: 0px 0px 10px;text-align: center;color: #000000;line-height: 100%;letter-spacing: normal;padding-bottom: 0px;font-family: 'Helvetica Neue', Arial;font-size: 24px;font-weight: normal">Employment Newsletter Summer 2016</h1> </td> </tr> <tr> <td class="bodyContent" style="text-align: left;color: #43404d;line-height: 150%;padding-top: 40px;padding-bottom: 20px;font-family: 'Helvetica Neue', Arial;font-size: 16px;border-collapse: collapse" colspan="3" valign="top"> <h2 style="margin: 0px 0px 10px;text-align: left;color: #3f3a38;line-height: 100%;letter-spacing: normal;font-family: 'Helvetica Neue', Arial;font-size: 24px;font-weight: normal"> In This Edition:</h2> <ol> <li><a style="color: #ed5e29;font-weight: normal;text-decoration: underline" href="http://us5.campaign-archive2.com/?u=144b218d797e92c5750fd17ed&id=1c9725e41b#One" target="_self" rel="noopener">A Message from Employment Law specialist Seamus Sweeney.</a></li> <li><a style="color: #ed5e29;font-weight: normal;text-decoration: underline" href="http://us5.campaign-archive2.com/?u=144b218d797e92c5750fd17ed&id=1c9725e41b#Two" target="_blank" rel="noopener noreferrer">Brexit: is it simply a case of "keep calm and carry on?"- Adrian Maitra</a></li> <li><a style="color: #ed5e29;font-weight: normal;text-decoration: underline" href="http://us5.campaign-archive2.com/?u=144b218d797e92c5750fd17ed&id=1c9725e41b#Three" target="_blank" rel="noopener noreferrer">Discrimination on grounds of migrant status not unlawful discrimination: absence of protection?- Andrew Sugarman and Sophie Firth</a></li> <li><a style="color: #ed5e29;font-weight: normal;text-decoration: underline" href="http://us5.campaign-archive2.com/?u=144b218d797e92c5750fd17ed&id=1c9725e41b#Four" target="_blank" rel="noopener noreferrer">Causation in Claims Under s15 equality act 2010- Nicola Twine</a></li> </ol> <hr /> <a id="One" style="color: #ed5e29;font-weight: normal;text-decoration: underline" name="One"></a> <img style="margin: 0px;border: 0px currentColor;width: 180px;height: 213px;line-height: 100%;text-decoration: none" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/d1dc353a-5123-43a9-9e4f-9fa4f9f4aa41.jpg" alt="" width="180" height="213" align="none" />  ‘In consequence of’, ‘because of’, ‘related to’ – phrases which when spoken in everyday conversation cause us no difficulties whatsoever. However, when they are used in legislation (often in close proximity of each other within the same statutory provision) they are prone to cause much judicial head-scratching – as evidenced by the difference in approach taken at EAT level in respect of s15 EA claims. Andrew Sugarman and Sophie Firth’s lucid article makes life easier for all of us by dissecting and clarifying the respective arguments. Nicola Twine’s article also examines issues of causation in the case of s13 direct discrimination in the context of the well known case of Taiwo, in which the SC confirmed that ‘nationality’ cannot be equated with ‘immigration status’. Nicola interestingly points out that there has been growing pressure to get Parliament to strengthen the legal protections available to migrant workers. However, given recent events it will undoubtedly be a question of ‘watch this space’. The issue of migrant workers leads nicely on to our third article in this summer newsletter: ‘Brexit’, in which Adrian Maitra summarises the process under Article 50 and gazes into the employment lawyers’ crystal ball to find that it is clouded in mist. And as we all need some light relief in a time of immense change I leave you with my favourite Brexit joke: ‘An Englishman, a Scotsman and an Irishman walk into a bar. The Englishman wanted to go so they all had to leave’ Enjoy the summer or what there is of it. <a style="color: #ed5e29;font-weight: normal;text-decoration: underline" href="/barristers/seamus-sweeney/" target="_blank" rel="noopener noreferrer">Seamus Sweeney</a> Parklane Plowden Chambers<hr /> <a id="Two" style="color: #ed5e29;font-weight: normal;text-decoration: underline" name="Two"></a> <img style="margin: 0px;border: 0px currentColor;width: 180px;height: 213px;line-height: 100%;text-decoration: none" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/8149dbda-97cb-461f-acac-c5bbdc241e78.jpg" alt="" width="180" height="213" align="none" /> We are starting to come to terms with the fall out from recent seismic events (Iceland, really?). Of course, I am actually referring to the other – less imminent – exit from europe; the  small matter of the European Union (EU) referendum and the UK’s decision to exit - or should I say “Brexit” - the EU.  As recent political and financial events have shown, the UK faces signifcant challenges over the next few weeks, months and years. To adopt a TUPE-ism, the potential legal, economic, social and ecomomic implications of Brexit are considerable, yet largely uncertain.   What does the referendum result mean? For all the claims from certain leave circles that the vote to leave on 23rd June 2016 would signify the UK’s “Independence Day” (i.e. we are no longer subject to EU rules and laws), we are some way off that reality, if at all. The result is advisory, nothing more. It has no legal effect. Nothing will happen before the – now infamous – Article 50 is triggered, which (as I comment on below) is not necessarily straightforward, or happening any time soon.   What is the political position? Before we can assess the impact on domestic law and in particular, the employment law implications of Brexit, we need to consider the future political landscape. We need to understand what the UK government is likely to achieve in its Brexit negotiations with the EU, which will form the platform for our future trading relationship with the EU and the impact of EU law. <a style="color: #ed5e29;font-weight: normal;text-decoration: underline" href="/uploads/documents/ama-%20summer%20newsletter%20article.pdf" target="_blank" rel="noopener noreferrer">To read the full article please follow this link </a>    <a style="color: #ed5e29;font-weight: normal;text-decoration: underline" href="/barristers/adrian-maitra/" target="_blank" rel="noopener noreferrer">Adrian Maitra</a>  Parklane Plowden Chambers <hr /> <h2 style="margin: 0px 0px 10px;text-align: left;color: #3f3a38;line-height: 24px;letter-spacing: normal;font-family: 'Helvetica Neue', Arial;font-size: 24px;font-weight: normal"><a id="Three" style="color: #ed5e29;font-weight: normal;text-decoration: underline" name="Three"></a></h2> <img style="margin: 0px;border: 0px currentColor;width: 180px;height: 213px;line-height: 100%;text-decoration: none" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/787ebcd6-256a-44f7-a11c-f1b892851192.jpg" alt="" width="180" height="213" align="none" /> <h2 style="margin: 0px 0px 10px;text-align: left;color: #3f3a38;line-height: 100%;letter-spacing: normal;font-family: 'Helvetica Neue', Arial;font-size: 24px;font-weight: normal">In Taiwo v Olaigbe & Anr, Onu v Akwiwu & Anr  [2016] UKSC 31 the Supreme Court recently dismissed the appeals of two Nigerian Nationals who claimed they had been unlawfully discriminated against because of their status. The protection afforded to the vulnerable migrant workers is limited and does not permit redress from incidents of abuse that might result due to status in the employment tribunal. Given the high number of domestic migrant workers in the UK, with around 17,000 domestic visas being issued each year, according to the Home Office, this is a real issue.   <a style="color: #ed5e29;font-weight: normal;text-decoration: underline" href="/uploads/documents/nt-%20summer%20newsletter%20article.pdf" target="_blank" rel="noopener noreferrer">To read the rest of the article please follow this link</a> <a style="color: #ed5e29;font-weight: normal;text-decoration: underline" href="/barristers/nicola-twine/" target="_blank" rel="noopener noreferrer">Nicola Twine</a>  Parklane Plowden Chambers </h2>  <hr /> <h2 style="margin: 0px 0px 10px;text-align: left;color: #3f3a38;line-height: 24px;letter-spacing: normal;font-family: 'Helvetica Neue', Arial;font-size: 24px;font-weight: normal"><a id="Four" style="color: #ed5e29;font-weight: normal;text-decoration: underline" name="Four"></a></h2> <h2 style="margin: 0px 0px 10px;text-align: left;color: #3f3a38;line-height: 100%;letter-spacing: normal;font-family: 'Helvetica Neue', Arial;font-size: 24px;font-weight: normal"> <img style="margin: 0px;border: 0px currentColor;width: 180px;height: 213px;line-height: 100%;text-decoration: none" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/ac856644-def2-4a2c-9ac6-6141a74a1b9f.jpg" alt="" width="180" height="213" align="none" /></h2> Background Under s15(1) of the Equality Act 2010 (“EA 2010”), an act of discrimination occurs if A treats B unfavourably because of something arising in consequence of B’s disability (assuming no objective justification under s15(2)).   It is sometimes suggested that s15 restores the law to the position that existed under s3A(1) of the Disability Discrimination Act 1995 (“DDA”), before that section was robbed of its potency by the House of Lords in London Borough of Lewisham v Malcolm [2008] UKHL 4. Section 3A(1) of the DDA prohibited less favourable treatment for a reason which relates to the disabled person’s disability.   That analysis is a little too crude and underestimates the change brought about by the different wording of the EA 2010. Whilst it is true to say that in most cases s15 “does much the same job” as the old s3A(1) (per Underhill P in IPC Media Limited v Millar[2013] IRLR 70), it is not the same test and arguably can lead to different results. <h2 style="margin: 0px 0px 10px;text-align: left;color: #3f3a38;line-height: 100%;letter-spacing: normal;font-family: 'Helvetica Neue', Arial;font-size: 24px;font-weight: normal"> <a style="color: #ed5e29;font-weight: normal;text-decoration: underline" href="/uploads/documents/as2-%20summer%20newsletter%20article%2020116.pdf" target="_blank" rel="noopener noreferrer">to view the full article please follow this link</a> <a style="color: #ed5e29;font-weight: normal;text-decoration: underline" href="/barristers/andrew-sugarman/" target="_blank" rel="noopener noreferrer">Andrew Sugarman</a> and Sophie Firth Parklane Plowden Chambers</h2>  <hr /></td> </tr> </tbody> </table> </td> </tr> </tbody> </table> </td> </tr> <tr> <td style="border-collapse: collapse" align="center" valign="top"> <table id="templateFooter" style="width: 600px;border-bottom-color: #a6bfc9;border-bottom-width: 10px;border-bottom-style: solid;background-color: #f8f8f8" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td style="padding-right: 40px;padding-left: 40px;border-collapse: collapse" align="center" valign="top"> <table style="width: 100%" border="0" cellspacing="0" cellpadding="0"> <tbody> <tr> <td class="footerContent" style="text-align: center;color: #3f3a38;line-height: 150%;padding-top: 10px;padding-bottom: 20px;font-family: 'Helvetica Neue', Arial;font-size: 12px;border-bottom-color: #666666;border-bottom-width: 1px;border-bottom-style: solid;border-collapse: collapse" valign="top"><a style="color: #eb4102;font-weight: normal;text-decoration: underline" href="https://www.twitter.com/ParklanePlowden/">Follow on Twitter</a> | <a style="color: #eb4102;font-weight: normal;text-decoration: underline" href="http://us5.campaign-archive2.com/?u=144b218d797e92c5750fd17ed&id=1c9725e41b">Friend on Facebook</a> | <a style="color: #eb4102;font-weight: normal;text-decoration: underline" href="http://us5.forward-to-friend.com/forward?u=144b218d797e92c5750fd17ed&id=1c9725e41b&e=[UNIQID]">Forward to Friend</a> </td> </tr> <tr> <td class="footerContent" style="text-align: center;color: #3f3a38;line-height: 150%;padding-top: 20px;font-family: 'Helvetica Neue', Arial;font-size: 12px;border-collapse: collapse" valign="top">Copyright © 2016 Parklane Plowden Chambers, All rights reserved.</td> </tr> </tbody> </table> </td> </tr> </tbody> </table> </td> </tr> </tbody> </table>

Just and Equitable Extensions of Time

Just and Equitable Extensions of Time  Miller and others v MoJ  Thompson v MoJ In Miller and others v The Ministry of Justice and Thompson v Ministry of Justice & Department for Communities and Local Government [2016] UKEAT 0003_15_1503 the Employment Appeal Tribunal considered whether it was just and equitable to extend the 3 month primary limitation period for the benefit of many part-time judicial office holders whose claims against the Ministry of Justice under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 were found to be out of time by Employment Judge Macmillan. Appeals against the findings on the primary limitation period had already been dismissed by the Court of Appeal.   Laing J in EAT reaffirmed the well known passage in Robertson v Bexley Community Centre [2003] EWCA Civ 576 that whilst the discretion to extend time is a wide one (paras 23 and 24), time limits are to be observed strictly and there is no presumption that time will be extended: the exercise of the discretion is still the exception rather than the rule (para 25). The EAT rejected the submission of Robin Allen QC on behalf of the Miller claimants that Chief Constable of Lincolnshire v Caston[2010] EWCA Civ 1298 had “corrected” or overruled para 25 of Robertson, such as to loosen the test.   Laing J also reflected on the “balance of prejudice”, which is usually very relevant in an application to extend time. She rejected the contention that it was an error of law not to expressly balance the relative prejudice to the parties: it is for the ET to decide which potentially relevant factors are in fact relevant. The prejudice to a Respondent of losing a limitation defence is “customarily relevant” to the exercise of this discretion. She went on, citing DCA v Jones[2007] EWCA Civ 894:  It is obvious that if there is forensic prejudice to a Respondent, that will be “crucially relevant” in the exercise of the discretion, telling against an extension of time. It may well be decisive. But, as Mr Bourne put it in his oral submissions in the second appeal, the converse does not follow. In other words, if there is no forensic prejudice to the Respondent, that is (a) not decisive in favour of an extension, and (b), depending on the ET's assessment of the facts, may well not be relevant at all. It will very much depend on the way in which the ET sees the facts; and the facts are for the ET. I do not read the decision of the EAT in DPP v Marshall [1998] ICR 518(and in particular paras 527H-528G, which were relied on by Mr Allen and Mr Sugarman) as contradicting this approach; but if it does, I bear in mind that the observations relied on are from the EAT, and pre-date DCA v Jones.  The passage in DPP v Marshall which was relied upon included the following :  The industrial tribunal must balance all the factors which are relevant, including, importantly and perhaps crucially, whether it is now possible to have a fair trial of the issues raised by the complaint.  Thus, Laing J rowed back from the idea that a particularly important factor was whether the delay had put in jeopardy the possibility of a fair trial and, in turn, whether the respondent was caused any prejudice beyond the mere loss of a limitation defence.  In these cases, it was not in issue that the claims would have been stayed had they been issued in time. Indeed, the MoJ had issued a Moratorium on fresh claims shortly after time expired for some claimants. Further, many of the claimants would have succeeded but for the time point. The EAT was not persuaded that the Employment Judge had failed to take those features properly into account nor that they were sufficiently powerful to mean he had erred in law by not extending time.     In Mr Thompson’s case, the fact he was told by solicitors at a point when his claim was in time that “on balance” he did not need to bring a claim, was not treated as an exculpatory factor in his favour. Rather, it was thought that advice ought to have alerted him that the position was doubtful and he was taking a risk by not bringing a claim in time.  The judgment illustrates that even in cases where a respondent can show no forensic or evidential prejudice and a claimant can show that he is being deprived of an otherwise meritorious claim, an extension of time will not necessarily be granted. It remains the exception rather than the rule.   A copy of the judgment can be found here: <a href="http://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKEAT/2016/0004_15_1503.html&query=(miller)+AND+(thompson)">http://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKEAT/2016/0004_15_1503.html&query=(miller)+AND+(thompson)</a>     Andrew Sugarman represented Mr Thompson.

Employment Newsletter Spring 2016

Introduction <img class="CToWUd" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/d1dc353a-5123-43a9-9e4f-9fa4f9f4aa41.jpg" alt="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/d1dc353a-5123-43a9-9e4f-9fa4f9f4aa41.jpg" width="180" height="213" /> Welcome all to this, our first employment newsletter of 2016. In this Spring edition our contributors: 1. Roger Quickfall- Whistleblowing: protected disclosures 2. Sarah Brewis- Let them eat cake? 3. Andrew Webster- Barbulescu -v- Romania [2016] IRLR 235 4. Richard Ryan- TUPE Service Provision Changes have highlighted four recent cases ranging from TUPE to whistle-blowing, sexual orientation discrimination and human rights in the workplace (respect for private life).  I hope you find the articles useful. I for one will always think of Beyonce when regaling tribunals on the suybject of Schmidt v Spar-und Leihkasse Der Früheren Amter Bordesholm, Kiel und Cronshagen. Aside from case law developments, the most important legislative intervention of late must be the introduction from April 2016 of the National Living Wage in the case of workers aged 25 and over. For those in that category the national minimum wage must be at least the NLA of £7.20 an hour.  You may have seen a recent Times article ‘no such thing as a free lunch for Café Nero staff’ in which the high street coffee shop is said to have written to staff to withdraw their hitherto entitlement to a free Panini at lunchtime. The Guardian also published an article around the same time indicating that several other high street chains are reported to be looking at removing certain benefits from employment packages to militate against rising wage bills. Whatever the truth of the particular examples, it highlights the fact that well-intended socio-economic legislation (or cynical welfare-saving legislation - according to which version you prefer as being the underlying rationale behind the introduction of the living wage) will always make work for employment lawyers. Inevitably, employers will seek to off-set the increased cost of a new National Living Wage. In doing so they will have to ensure that they do so lawfully (without breach of existing contracts) and consistently with equality legislation and collective labour provisions (e.g. section 188 TULR(C)A). Who knows what potential equal pay implications might arise out of tweaks applied here and there to contractual terms! Only time will tell.  For those interested, you can access the revised BIS document ‘Calculating the National Minimum Wage’ by clicking on the link below. Alternatively, you could download Single Ladies and refresh your understanding of TUPE the Richard Ryan way. The choice is yours. <a style="color: #1155cc" href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/514897/BIS-16-144-nmw-calculating-the-national-minimum-wage.pdf" target="_blank" rel="noopener noreferrer">https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/514897/BIS-16-144-nmw-calculating-the-national-minimum-wage.pdf</a> Seamus Sweeney Parklane Plowden Chambers   <div class="MsoNormal" style="margin: 0px;text-align: center;line-height: 19.2px" align="center"><hr align="center" size="2" width="100%" /></div>   1. Whistleblowing: Protected disclosures: a change of emphasis <img class="CToWUd" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/fde6b343-6edb-4b46-ae9e-bdbe5bbedb8a.jpg" alt="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/fde6b343-6edb-4b46-ae9e-bdbe5bbedb8a.jpg" width="180" height="213" border="0" /> Employment lawyers know well that a disclosure needs to be ‘protected’ in order for a worker to be able to rely on it for the purposes of a claim for compensation for the consequences of any detriment suffered as a result. It is also well known that a protected disclosure is a qualifying disclosure (s.43A Employment Rights Act 1996 (“ERA”)).  To qualify the disclosure needs, in the reasonable belief of the worker making the disclosure, to show one of the matters set out at s.43B ERA.  Such matters relate to the commission of a criminal offence, a breach of a legal obligation, a miscarriage of justice, a danger to health and safety and so on.  The disclosure also needs to be made to one of the persons named in the subsequent sections.  So far, so uncontroversial. However, the nature of the disclosure itself (facts rather than allegations) was thought to be settled until recently when Langstaff P handed down judgment in the case of Kilraine v London Borough of Wandsworth UKEAT/0260/15/JOJ, 26/1/16, unreported (“Kilraine”). Since Cavendish Munro Professional Risks Management Limited v Geduld [2010] IRLR 38, EAT (“Cavendish”), the nature of the disclosure has been taken to be the disclosure of information rather than merely the disclosure of anallegation.  The difference between the making of an allegation and the disclosure of information was illustrated by the EAT at paragraph 24 of Cavendish: “Further, the ordinary meaning of giving 'information' is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating 'information' would be 'The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around'. Contrasted with that would be a statement that 'you are not complying with Health and Safety requirements'. In our view this would be an allegation not information.” For several years since the judgement was handed down in 2009, this distinction has regularly been relied on to encourage employment tribunals to ask themselves whether the disclosure conveys facts or whether it merely makes allegations. It now appears that it is wrong to approach the issue on an ‘either or’ basis. <a style="color: #1155cc" href="/uploads/documents/RQ-%20newsletter%20ss16.pdf" target="_blank" rel="noopener noreferrer">To read the rest of the article please follow this link (link opens a new tab)</a> <div class="MsoNormal" style="margin: 0px;text-align: center;line-height: 19.2px" align="center"><hr align="center" size="2" width="100%" /></div> 2. Let them eat cake? The ongoing battle between the right to hold religious beliefs and protections against sexual orientation discrimination <img class="CToWUd" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/71d999ca-9c29-454c-8564-1ce888cd3031.jpg" alt="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/71d999ca-9c29-454c-8564-1ce888cd3031.jpg" width="180" height="213" border="0" /> This Spring will see a number of interesting developments. The likely relegation of at least one of our local football teams, the disappointment of an early England exit out of the Euros 2016, but also the much anticipated appeal in the case of Lee v Ashers Baking Co Limited & Anor [2015] NICty 2, which is now due to be heard on 9th May 2016. Mr Lee was a gay man who believed in the right to same-sex marriage and who ordered a cake from Ashers Bakery with the slogan ‘Support Gay Marriage’. The bakery refused to fulfil the order on the basis that it would compromise their Christian beliefs. Mr Lee subsequently successfully brought a claim in a Northern Ireland County Court claiming both direct and indirect discrimination on the grounds of sexual orientation and religious belief. District Judge Brownlie, who heard the case, highlighted that there were competing rights under the European Convention on Human Rights. On one hand, the bakery owners’ rights under Article 9 to manifest their religion without unjustified limitation and on the other hand the right of Mr Lee to enjoy his right under Article 8 to respect for his private life without unjustified discrimination on grounds of his sexual orientation. The Judge pointed out that both sexual orientation and religion are ‘highly protected’ rights under the ECHR. Critics of the judgment have suggested that Judge Brownlie’s judgment in some way suggests that gay rights take precedence over religious rights, although as her judgment made clear, if the plaintiff had been a gay man and the defendants, as Christians, wanted him to bake a cake with the words ‘support heterosexual marriage’, the plaintiff would have been required to do so, since otherwise he would be discriminating against the defendants. Although the bakery argued that under Article 10, they could not be compelled to support gay marriage, the Judge concluded that what the bakery had been asked to do did not require them to support, promote or endorse any viewpoint. Although the appeal had been due to be heard in February, this has now been adjourned until May 2016 following a last minute request by Attorney General John Larkin QC to make representations regarding a potential conflict between Northern Ireland’s equality legislation and European human rights law. Whilst the Equality Act 2010 does not extend to Northern Ireland, many argue that the Ashers Baking case falls on all fours with the Supreme Court decision in Bull v Hall [2013] UKSC 73. In that case, Mr and Mrs Bull were devout Christians who ran a B&B in Cornwall and had a policy of only allowing heterosexual married couples to have double rooms. The Claimants were a homosexual couple in a civil partnership. Mr and Mrs Bull refused to honour a booking of the couple and the couple subsequently brought a claim of sexual orientation discrimination in the County Court. The County Court found that the policy and its enforcement amounted to direct discrimination. Mr and Mrs Bull appealed to the Court of Appeal <a style="color: #1155cc" href="/uploads/documents/SBR-%20newsletter%20ss16.pdf" target="_blank" rel="noopener noreferrer">To read the rest of the article please follow this link (opens a new tab)</a> <div class="MsoNormal" style="margin: 0px;text-align: center;line-height: 19.2px" align="center"><hr align="center" size="2" width="100%" /></div> 3. Barbulescu -v- Romania [2016] IRLR 235: A Snooping Employer's Charter? <img class="CToWUd" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/8da57a58-5a77-4f97-9fce-251136b53c82.jpg" alt="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/8da57a58-5a77-4f97-9fce-251136b53c82.jpg" width="180" height="213" border="0" /> Background   Mr Barbulescu was employed by a private company in Romania as an engineer in charge of sales.  He had an internet instant messaging account at work to enable him to respond to client enquiries.  His employer invited him into a meeting to inform him that his messenger communications had been monitored and that, contrary to the company’s policies (to the effect that employees were “strictly forbidden… to use computers… for personal purposes”), he was suspected of having used the account for personal purposes.  Though he denied this and maintained that the account had been used entirely for professional ends, his employer’s subsequent investigation indicated otherwise.  In particular, it was revealed that he had exchanged messages with his brother and fiancée in relation to matters including his health and sex life.  Needless to say, his services were duly dispensed with.  His challenge to the lawfulness of the dismissal in the Romanian courts was unsuccessful on the grounds that his employer had complied with the relevant dismissal proceedings provided for by Romanian labour law.   Not satisfied with the decision of the Romanian courts, Mr Barbulescu complained to the ECHR that his employer’s decision to terminate his employment was predicated upon information obtained by means of a breach of his Article 8 right (i.e. the right to respect for his private life), a right which he argued the domestic courts had failed to protect.   ECHR Decision   The ECHR found that Mr Barbulescu’s Article 8 right had not been infringed and dismissed his application.  In reaching that conclusion it considered whether a fair balance had been struck by the domestic courts, having regard to their margin of appreciation, between Mr Barbulescu’s right to respect for his private life and his employer’s interests (Article 8, of course, being a qualified right).  The factors considered by the court in reaching its decision included the following: the monitoring took place within the scope of the employer’s disciplinary framework; the communications had taken place within working hours; the employer accessed the messages after Mr Barbulescu had proffered assurances that his communications were all of a professional nature; whilst there was no suggestion that Mr Barbulescu’s actions had caused actual damage to his employer, it was not unreasonable for his employer to wish to ensure that only professional tasks were being completed within working hours; and the employer’s monitoring had been limited in scope and proportionate (notably only messenger communications had been examined- other documents and data had not been scrutinised). <a style="color: #1155cc" href="/uploads/documents/AJW-%20newsletter%20ss16.pdf" target="_blank" rel="noopener noreferrer">To read the rest of the article please follow this link (link opens a new tab)</a> <div class="MsoNormal" style="margin: 0px;text-align: center;line-height: 19.2px" align="center"><hr align="center" size="2" width="100%" /></div> <h3 style="margin-right: 0cm;margin-bottom: 7.5pt;margin-left: 0cm">4. TUPE Service Provision Changes: the transfer of part of an activity and the plurality of organised groupings</h3> <img class="CToWUd" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/88562065-f4ff-4d63-8eae-902deb1c1bae.jpg" alt="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/88562065-f4ff-4d63-8eae-902deb1c1bae.jpg" width="180" height="213" border="0" /> Arch Initiatives -v- Greater Manchester West Mental Health NHS Foundation Trust & Others (2016) EAT/0267/15/RN (the Arch case) The new President of the EAT, The Honorouble Mrs Justice Simler DBE, has clarified the scope of the Service Provision Change (SPC) regulations within TUPE, in a judgment delivered in January 2016 but only recently published on the EAT and Bailii websites (March 2016). It confirms the general understanding that the transfer of all activities is not required for TUPE to apply and, furthermore, that activities may be split along functional lines, as well as quantitative lines. It also confirms that there is scope for a single person to constitute a SPC, even where that person is part of a wider service/activity which is itself split up upon the transfer (and therefore the single person transfers, potentially alongside other organised groupings or indeed multi-organised groupings, to the same transferee). This case will be of interest to all solicitors who advise businesses which operate contracts for services either as an end user (client) or contractor (service provider) particularly in the context of the public sector and the reconfiguration of contracts on a re-tendering, where it is sometimes particularly difficult to identify transferring staff (if any). It will be of equal interest to the private sector, because the case has general application. Background The putative transferor was the Trust and the putative transferee was Arch; the latter disputed that TUPE applied as alleged. The service provided by the Trust to the client (Bolton Council) was the management and provision of drug and alcohol treatment services in the Bolton area, under a number of contracts requiring it to deliver combined case management and ‘treatment’ interventions using nurses, doctors, and substance misuse practitioners, amongst others. It was a sophisticated service and, with the ever-changing epidemiology of drug and alcohol misuse, over the years different ways of carrying out assessment and treatment were adopted. Increasingly, the focus was on promoting recovery, rather than maintenance. The nine Claimants included eight who worked within the Trust’s “drug team” (CDT) and one Claimant (Mrs Aulton) who worked within the Trust’s “alcohol team” (CAT). The service operated by Arch following the transfer, which was known at the time as Lot 1, or the Single Point of Access and Assessment (SPAA) was, in effect, a “case management” service where users were to be assessed and referred for treatment. Lots 2, 3, 4 and 5 involved the various forms of treatment for users (called “interventions”) and the other third party, Lifeline, accepted that TUPE applied to these Lots, so those carrying out the treatment would transfer to them. Therefore, the service was, with effect from 1 January 2013, split into 5 Lots. In simple terms, Lot 1 would be the “planners and controllers” assessing the users, while Lots 2 – 5 would be the “doers” involved only in treatment. Lot 1 became the most controversial Lot, as Arch alleged that no TUPE transfer took place because, primarily: <ol start="1" type="1"> <li class="MsoNormal" style="margin: 0px 0px 0px 15px;color: #43404d;line-height: 19.2px">The activities of SPAA were not fundamentally or essentially the same; it was a “pure” and sole case management with no treatment aspects to that service, which did not exist before. Arch also argued that the focus on “recovery” was new.</li> <li class="MsoNormal" style="margin: 0px 0px 0px 15px;color: #43404d;line-height: 19.2px">There was no “organised grouping” and in particular no dedicated teams working as organised groups with clear and structured line reports.</li> </ol> The original tribunal rejected the above grounds, amongst others. It found that although SPAA was in some respects a “new” service, the activities were fundamentally or essentially the same. Whilst there were four main differences, those differences did not undermine this conclusion. In addition, the Claimants constituted two organised groupings; eight of the Claimants were organised into a grouping of (drugs team) “case managers” and the other (Mrs Aulton) formed an organised grouping of one, as a Team Manager of the alcohol team. It was a matter of design rather than happenstance that she carried out this role. All were assigned to their respective grouping, despite Arch suggesting otherwise. The decision of the EAT  <a style="color: #1155cc" href="/uploads/documents/RR-%20newsletter%20ss16.pdf" target="_blank" rel="noopener noreferrer">To read the rest of the article please follow this link (opens a new tab)</a> <div class="MsoNormal" style="margin: 0px;text-align: center;line-height: 19.2px" align="center"><hr align="center" size="2" width="100%" /></div> Dates for the diary! For all of Parklane Plowden's upcoming events and seminars please visit: <a style="color: #1155cc" href="/events/" target="_blank" rel="noopener noreferrer">https://www.parklaneplowden.co.uk/events/</a> <a style="color: #1155cc" href="/seminars/" target="_blank" rel="noopener noreferrer">https://www.parklaneplowden.co.uk/seminars/</a> We hope to see you there!

Richard Ryan appears in the Employment Appeal Tribunal in the latest TUPE case on “Service Provision Change” transfers: the transfer of part of an activity and the plurality of organised groupings

31 March 2016 Arch Initiatives -v- Greater Manchester West Mental Health NHS Foundation Trust & Others (2016)EAT/0267/15/RN (the Arch case) The new President of the EAT, The Honorouble Mrs Justice Simler DBE, has clarified the scope of the Service Provision Change (SPC) regulations within TUPE, in a judgment delivered in January 2016 but only recently published on the EAT and Bailii websites (March 2016). It confirms the general understanding that the transfer of all activities is not required for TUPE to apply and, furthermore, that activities may be split along functional lines, as well as quantitative lines. It also confirms that there is scope for a single person to constitute a SPC, even where that person is part of a wider service/activity which is itself split up upon the transfer (and therefore the single person transfers, potentially alongside other organised groupings or indeed multi organised groupings). This case will be of interest to all solicitors who advise businesses which operate contracts for services either as an end user (client) or contractor (service provider) particularly in the context of the public sector and the reconfiguration of contracts on a re-tendering, where it is sometimes particularly difficult to identify transferring staff (if any). It will be of equal interest to the private sector, because the case has general application. The full judgment can be found on the Bailii website: [LINK] <a href="http://www.bailii.org/uk/cases/UKEAT/2016/0267_15_2101.html">http://www.bailii.org/uk/cases/UKEAT/2016/0267_15_2101.html</a> Richard Ryan represented one of the successful respondents at the EAT (and the lead Claimant at the original tribunal), Mrs Aulton, on behalf of the Royal College of Nursing.  The EAT judgment is relatively long and detailed (28 pages) but a full analysis will be provided by Richard in the next PLP Employment newsletter.

A Clash of heads – article by specialist sports law barrister, Craig Moore

<h1>Concussion in Sport</h1> <h1>Where are we Heading?</h1>  <img src="http://www.claimsmag.co.uk/wp-content/uploads/2016/01/CONCUSSION-1-702x336.jpg" alt="CONCUSSION (1)" /> About the author: Craig Moore is nationally recognised for his expertise in Sport Law and is recommended in the Chambers & Partners Guide to the Bar. He is a Specialist Member of the Football Association's Judicial Panel and handles cases for governing bodies, clubs and individual sportspeople in cycling, rugby union and football. A version of this full article was published in the <a href="http://www.claimsmag.co.uk/2016/01/concussion-in-sport/5619">Claims Magazine</a> (December 2015, Issue 22). Intro: For many years there has been a passive acceptance within the sporting world of concussive injuries and their consequences. However, with the new FA guidelines providing strict rules on the management of concussion, it now means that head injuries are a firm fixture in the minds of all those involved in sport. Parklane Plowden barrister, Craig Moore, explores the change in culture towards concussion injuries, discusses the key features of the guidelines, as well as the difficulties surrounding diagnosis and the long term impact that such an injury can have on players. Bert Trautmans heroics during the 1956 FA Cup Final have acquired legendary, almost mythical, status in football folklore. Despite sustaining concussion and a broken neck during a collision with an opposing player, Trautmann continued to play as goalkeeper for the final 15 minutes of the game and made further saves which helped Manchester City to win the Cup. The fact that he had dislocated five vertebrae and risked further catastrophic, potentially fatal, injury by continuing to play was not identified until several days later. The fact that Trautmann was a German living and working in austere post-war Britain has added to the mystique surrounding the story.  Bravery and selfless commitment to a cause are human qualities that we understandably admire. Our admiration is almost always blind to nationality or ethnicity. It has, though, contributed significantly to a failure to identify sooner the dangers of head injuries in sport. Together with an ignorance of the significant risks associated with brain trauma, it created an inertia within certain sports, including football, which persisted for over 50 years following the Trautmann Cup Final. For most of that period, a culture of passive acceptance of concussive injuries and their consequences existed amongst players, managers, coaches, medical staff, owners and governing bodies alike. As recently as November 2013, the Tottenham Hotspur goalkeeper, Hugo Lloris, was allowed to continue playing after sustaining a head injury following a collision with an opposing striker. Lloris appeared to lose consciousness - although the Club subsequently disputed this. He was attended by the club doctor and club physiotherapist on the pitch. A stretcher was brought on and Tottenhan's reserve goalkeeper - an option unheard of in Trautmann's day - was ready to replace him. As Lloris was being led to the touchline he resisted and said that he wanted to carry on. Tottenham's Coach at the time, AndrÃ© Villas Boas, directed Lloris to return to his goal and to continue. The Everton striker with whom he had collided had to be replaced as a result of the injury to his knee which he sustained when it made contact with the head of Lloris.  Just as Trautmann was over half a century earlier, Lloris was lauded as a hero by commentators and supporters alike. Unlike Trautmann, though, controversy soon ensued over the decision to allow Lloris to continue to play, demonstrating at least an increased awareness of the risks associated with concussion, if not its practical implementation. Although Tottenham claimed that tests carried out after the match showed that he had been fit to continue playing, FIFA's Chief Medical Officer was insistent that Lloris should have been withdrawn. Robust statements, critical of the decision to allow a player to continue playing after losing consciousness were also issued by the head injury charity, Headway, and by both the Professional Footballers Association and FifPro (the domestic and global unions respectively for professional footballers).  New guidelines and rules were introduced by The FA for the 2014/15 season for the management of concussion and head injuries in football. They followed a review by its Medical Committee which was undertaken in 2013. The guidelines set out the procedures and processes that should follow a suspected head injury and how players should be re-introduced to competitive football over time via a return to play™ rules. The key features are these: All players must now undergo pre-season baseline cognitive training to detect any risk that may exist through previous injury. Any player who has suffered two or more episodes of head injury must go through mandatory detailed psychometric testing. If there is a confirmed or suspected period of loss of consciousness, the player must be removed from the field of play and not be allowed to return. Where no loss of consciousness is apparent, an on-field or touchline assessment will take place. Where there has been a head injury, but no loss of consciousness, an on-field or touchline assessment will take place using the Pocket Concussion Recognition Tool which should be a standard item of any pitch-side medical kit. The decision whether the player is removed from the field should be made by the attending doctor. If the player has been removed from the field of play because of a suspected or confirmed concussion, they should be monitored until deemed fit and able to leave the venue. If in doubt, further opinion from local hospital services should be sought via the accident and emergency department. If allowed home, the player should not be allowed to drive, and should not be left alone, but with a responsible adult who is instructed that should there be any deterioration in the player's condition, urgent medical attention must be sought. If there is no medical attendant present, and if there is any suspicion of concussion, the player must be removed from the field of play and not allowed to return. In such a case, medical advice should be sought from the accident and emergency department of a hospital. Concussion is a brain injury which should be followed by a period of both physical and mental rest for at least 24 hours after the injury. Neuropsychological testing should be carried out every 48 hours after the injury until return to play, and show a gradual return to baseline. Clinical assessment should be made daily, with a minimum return to play period of six days. It often takes longer. The player should be examined and receive the all-clear from the club medical officer before returning to play. Each of the return to play steps must be passed before progressing to the next. Any recurrence or persistence of concussion symptoms such as headache, feeling in a fog, disturbed or blurred vision, sleep disturbance or unusual emotional behaviour are signs that the player should return to the previous step. FA Premier League Rules were also amended for the 2014/15 season to establish that the decision of the team doctor is final when assessing whether a player who has sustained a head injury is, or is not, fit to continue playing or training. The PL rules also require the presence of a member of a club's medical team to look after players with a head injury that leave the field of play.  Those developments drew on the recommendations that were made at the 4th International Conference on Concussion in Sport in 2012, published in 2013.[1] A panel of neurological experts - the so-called Zurich Group -  defined concussion as a complex pathophysiological process affecting the brain, induced by biomechanical forces. A less clinically-based definition that a lay-person would understand more readily was provided by World Rugby, the governing body for international rugby:  A traumatic brain injury resulting in a disturbance of brain function ... common symptoms being headache, dizziness, memory disturbance or balance problems. The chronic and longterm effects of concussion are still not fully understood. Repeated insults (like heading a football) is believed to be a major risk factor, and an early return to play has been implicated in poorer outcomes.  The first and foremost difficulty is how to diagnose a concussive injury. Indeed, criticism has been made of the definition of concussion as a brain injury within the Zurich Guidelines. Its detractors are of the view that concussive syndrome does not have to involve the brain.[2] This, they argue, has led to a lack of diagnostic specificity, management strategies that are not evidence-based, and rehabilitation goals that are not realistically attainable. The difficulty surrounding diagnosis of a concussive head injury is underlined by the fact that symptoms can vary, are mostly non-specific, and may evolve over the course of a number of days, perhaps longer. As yet, there is no single objective test that is capable of being carried out and a diagnosis relies heavily upon a clinical assessment. The Zurich Group recommended the use of the Standard Concussion Assessment Tool, a checklist of tests to be used by a medical practitioner where concussion is suspected. Ultimately, though, the checklist is just that: a checklist, and a diagnosis requires a clinical judgment to be made. There are also problematic ethical issues bound up in all of this. Firstly, there is a patient's right to choose or refuse treatment. When a player is removed from the field of play, often against his will, the effects of a suspected concussion are unlikely to be fully known. The giving of informed consent to treatment is another difficulty in the context of someone who has suffered concussion. Thirdly, and from the doctor™s standpoint, there is a potential conflict of interest between serving the best interests of the injured player, but also the club paying his or her wages. The latter issue can be partly addressed by the presence of an independent doctor who has the authority to remove any player who is suspected of having suffered concussion. But if an independent opinion is absent, as it so often is, a conflict will exist, even if it is only the appearance of conflict.  The delayed reaction in this country to a recognition of the risks of head trauma in sport can be contrasted with the position in the US where recurrent insults have for some time been associated with a progressive deterioration in brain function. Perhaps, not surprisingly, litigation (or the threat of it) has acted as a catalyst for a greater understanding of the risks and, crucially, change. A lawsuit brought in 2011 involving more than 4,500 former NFL players alleged that the governing body of the sport knew, or ought to have known, that players who sustain repetitive head injuries are at risk of suffering a constellation of neurological and psychological conditions, including: <ul> <li>Early onset of Alzheimer's Disease;</li> <li>Dementia; </li> <li>Depression; </li> <li>Deficits in cognitive functioning; </li> <li>Reduced processing speed, attention and reasoning; </li> <li>Loss of memory; </li> <li>Sleeplessness; </li> <li>Mood swings; </li> <li>Personality changes; and </li> <li>Chronic Traumatic Encephalopathy (CTE).</li> </ul>   CTE, a progressive degenerative disease of the brain found commonly in boxers, is arguably the most damaging longterm effect of brain injury and was diagnosed in a number of cases. Symptoms of CTE include memory loss and mood swings.  The likely traumatic effect of repeated, fast-moving and violent helmet-to-helmet insults is not difficult to imagine. A number of former NFL players had committed suicide, including Ray Easterling, the former Atlanta Falcons player in whose name the lawsuit was filed. The claims against the NFL were subject to a lengthy mediation process which culminated in a $765 million (Â£490 million) settlement, but which Easterling and other former players did not live to see. This week, the United States Soccer Federation unveiled a series of safety initiatives directed at head injuries in the sport at youth level. The principal measure is a policy that sets strict limits on youth players heading the ball. It will prohibit players aged 10 and below from heading the ball at all, and reduce the number of headers that those aged between 11 and 13 will be able to make during practice. The new guidelines resolve a proposed class-action lawsuit filed against the governing Federation, and others (including FIFA), in 2014. The claims alleged negligence in treating an monitoring head injuries, but no financial compensation was sought, only rule changes.  In this country, Jeff Astle, the former West Bromwich Albion and England Footballer developed degenerative brain disease linked to his repeated heading of a football. During his playing days in the 1960's, footballs were much heavier when wet than modern footballs are. At the time of his untimely death in 2002, aged just 59, Astle did not know that he had ever been a footballer, let alone remember the winning goal that he had scored in the 1968 FA Cup Final. Tellingly, an examination of his brain tissue identified CTE, not Alzheimer's Disease, as the cause of his condition. Around the time of Astle's death, The FA and The PFA commissioned a study to analyse the effects of heading a football over a 10-year period, but no conclusions were reached because all of the young players who were selected for the sample group failed to make the professional grade and dropped out of the game shortly afterwards. There is currently no reliable evidence to show that modern footballs, dry or wet, are any safer to head repeatedly than their predecessors.  The proposed changes that have just been announced by US Soccer also include amendments to substitution rules to improve protection for players who suffer suspected concussive injuries. Current international rules allow for three substitutions per game during senior level games. There is no provision for temporary substitutions to enable a player with a suspected head injury to be properly examined and, if judged by a doctor to be fit to do so, to then return to the game in place of the temporary substitute. In the absence of an independent doctor, temporary substitutions for a suspected head injury would reduce the pressure on managers and medical staff when making a decision at a critical stage of a game and which may affect its outcome. If a player is judged to be fit enough to return to the field of play, an irreversible decision to substitute him will not have been made. Alternatively, if he is not fit to continue, a permanent substitution can take place.  There is a risk of temporary substitutions being abused, enabling a short-term strategic switch to be made. A fitter player, in the same or a different position, could come on for a short period of time during a critical phase of a match. Such occurrences, though, would hopefully be rare. Although a player might feign injury of his own initiative, for a staged temporary substitution to work effectively at least two people would have to be involved in the deception, conceivably more. The risk of such a sham arrangement being exposed and the likely severe disciplinary consequences that would follow are likely to deter all but the most brazen and reckless from contemplating it.  The greater risk, it is suggested, is one that has already been identified, namely that of players who suffer concussion not wanting to leave the field of play, and presenting themselves in a way that will give them the best chance of remaining on the pitch. Both Codes of Rugby have embraced the Zurich Guidelines. During the recent Rugby Union World Cup, players suspected of concussion were temporarily withdrawn to undergo cognitive, balance and memory testing. By comment consent, Dan Biggar was the outstanding Welsh player in the competition. His clear reluctance to be withdrawn during the closing stages of Wales quarter-final match against South Africa, following a blow to the head, demonstrates that even temporary substitutions will not always be consensual. At elite level, where an independent medical practitioner is in attendance, his or her clinical judgment should prevail. Most sport, however, does not have that luxury, especially games played at amateur level where there will invariably be no qualified medical practitioner present. The default position set out in The FA guidelines should apply in those circumstances: even if there is a suspicion of concussion, supervised attendance at an accident and emergency department is required. If nothing else, the assimilation of the Zurich Guidelines into the Rules and Regulations of major sports governing bodies means that a standard has been set against which any alleged failure to comply is capable of being measured. The test will be whether that standard will be put into practice, or whether it will take litigation arising out of a concussive injury to focus minds.  As far as scientific developments are concerned, it is anticipated that an objective diagnostic tool for assessing head injuries will become available in the foreseeable future. A research study currently being conducted at Sheffield Hallam University is seeking to identify the changes that occur to the structure of the eye during a concussive episode. Retinal scanners, which are already in routine use, provide information about nerve fibres, blood vessels, and the eye's ability to discern colour. It is anticipated that a portable retina scanner would be used to examine an injured player's eye following a suspected concussion. The data collected would then be compared with healthy readings, facilitating an independent and speedy clinical assessment by the touchline. If and when such a tool becomes available, the initial difficulties in diagnosis referred to above will hopefully be reduced, if not removed altogether. The efficacy of strategies for managing head injuries, and whether rehabilitation goals are attainable, are likely to remain controversial subjects. There must also be a significant cultural shift in our perception of players who insist on playing after sustaining a head injury. Heroism is an epithet that is entirely apt in other fields of endeavour, but with respect to the late, great Bill Shankly he was wrong: football is not a matter of life and death, let alone more important than that. Instead, we should applaud players like Trautmann and Lloriss for leaving the pitch, not for staying on.    [1] Consensus Statement on Concussion in Sport, 4th International Conference on Concussion in Sport held in Zurich, November 2012: BR J Sports Med 2013; 47:5 250-258 [2] â€&tilde;Time to Re-think the Zurich Guidelines?â€™: A Critique on the Consensus Statement on Concussion in Sport: The 4th International Conference on Concussion in Sport, Held in Zurich, November 2012; Clinical Journal of Sport Medicine, March 2014, Volume 24, Issue 2, pp93-95. This note has been prepared by Craig Moore. Chambers & Partners 2016 (Sports Law) Ranked Nationally Handles cases for governing bodies, clubs and individual sportspeople in cycling, rugby union and football. He is regularly engaged on both contentious and non-contentious matters and has recently advised sports clients on insurance and personal injury claims. Chambers and Partners 2015 Acts for sports governing bodies and individuals on commercial matters, including sponsorship and insurance. He works with clients from a broad range of sports, including cycling, football, rugby and extreme sports. Chambers and Partners 2014 He has advised and acted for sports organisations on commercial disputes. He has also acted for individual sportsmen and women in disciplinary and integrity cases in swimming, rowing and football.

Employment Newsletter Winter 2015/2016

<h2 style="color: #3f3a38;font-family: 'Helvetica Neue', Arial;font-size: 24px;font-weight: normal;line-height: 24px;margin: 0px 0px 10px">In This Edition:</h2> <ol style="color: #43404d;font-family: 'Helvetica Neue', Arial;font-size: 16px;line-height: 24px"> <li><a href="#One">A Message from Employment Law specialist Hari Menon.</a></li> <li><a href="#Two">An article by Hari Menon - Spring Cleaning Before the New Year.</a></li> <li><a href="#Three">ACAS Early Conciliation - by Anna Datta</a></li> <li><a href="#Four">Surviving Spouses' Pensions Restricted</a></li> <li><a href="#Five">Date for your Diary - 15th January 2016 - Employment Grandstand</a></li> </ol> <hr style="color: #43404d;font-family: 'Helvetica Neue', Arial;font-size: 16px;line-height: 24px" /> <a name="One"></a> <img style="height: 213px;line-height: 16px;color: #43404d;font-family: 'Helvetica Neue', Arial;font-size: 16px;margin: 0px;width: 180px" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/05eb09f2-290c-4023-a1c6-1e3626ae2ed9.jpg" alt="" width="180" height="213" align="none" data-cke-saved-src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/05eb09f2-290c-4023-a1c6-1e3626ae2ed9.jpg" /> A message from Employment Law specialist Hari Menon Welcome to this, the last edition of our Chambers Employment Newsletter for 2015. It seems only yesterday that we ushered in the last New Year, but almost another 52 weeks have drawn, almost imperceptibly, to a close. As they say, time flies when you’re having fun. This quarter opened with the publication of the evidence to the MoJ of the President of the Employment Tribunals and all Regional Employment Judges in England & Wales, authored by the President, Judge Brian Doyle. To deploy a euphemistic expression much loved of spin doctors and their political overlords, “it makes interesting reading”. The tenor of the submissions of Judge Doyle and his brethren was set early on in para.6 of 30 a paragraph document: “We start from the proposition that the introduction of fees has not been successful in achieving the original objectives of transferring a proportion of the costs from the taxpayer to those who use the Tribunal where they can afford to do so; encouraging parties to seek alternative ways of resolving their disputes; and maintaining access to justice.”. Here are some further “interesting” observations in the submissions: 1.         The net income generated by fees has failed to achieve the proportion of Employment Tribunal running costs which was set by the last government. 2.         There is little evidence that the introduction of fees may have encouraged parties to resolve their dispute by means other than proceedings.  3.         Six out of 10 claimants who submitted a claim for early conciliation did not have their claims resolved and did not then present a claim, thus tending to show that claimants were being discourage from pursuing claims because of the fees payable. 4.         The fees payable by respondents have not resulted in a greater willingness to embark on judicial mediation.  5.         The fee remission system has not moderated the adverse impact on access to justice. One is tempted to ask those champions of the downtrodden who dreamt up the pressing need to charge fees - so what was it all for, boys? As if we didn’t know from the start. In the midst of generally sombre statistics for claims issued in the Employment Tribunal since fees were introduced at the end of July 2013, there appears a small chink of light in the latest figures published by the MoJ this month which shows a 4% increase in single claimant claims for July to September compared with the same period in 2014. There was an even greater increase in multiple claims but the figures here are skewed by 2 especially large multiples which accounted for about 50% of the total number of claims. Looking forward, I have the pleasure to announce our Grandstand Employment Seminar in Leeds on 15th January 2016. The flyers for this are on their way or have already landed in your Inboxes. It consists of workshops and talks by some accomplished speakers (i.e. all of them, including yours truly) and a particularly distinguished guest speaker in the person of retired Employment Judge Michael Malone, who will be especially well known to all those Equal Pay groupies out there. He will be speaking on a topic concerned with that very area of employment law. Please consult our flyer for further details. See you anon or better still, at our Grandstand event in January. In the meantime, here’s to the doubtless, well-earned rest, if your loved ones will let you have one. I also come bearing Seasons Greetings for a Merry X’mas and the New Year from all of us in the Employment Team and our ever resourceful clerks.   <a href="/barristers/hari-menon/" target="_blank" rel="noopener noreferrer" data-cke-saved-href="https://www.parklaneplowden.co.uk/barristers/hari-menon/">Hari Menon</a>, Parklane Plowden Employment Team: <a href="mailto:hari.menon@parklaneplowden.co.uk" data-cke-saved-href="mailto:hari.menon@parklaneplowden.co.uk">hari.menon@parklaneplowden.co.uk</a> We welcome feedback and any topics requests for future e-newsletters. Please feel free to tweet us <a href="https://twitter.com/ParklanePlowden" target="_blank" rel="noopener noreferrer" data-cke-saved-href="https://twitter.com/ParklanePlowden">@parklaneplowden</a> or email us at <a href="mailto:events@parklaneplowden.co.uk?subject=PI%20Newsletter%20-%20Edition%205" target="_blank" rel="noopener noreferrer" data-cke-saved-href="mailto:events@parklaneplowden.co.uk?subject=PI%20Newsletter%20-%20Edition%205">events@parklaneplowden.co.uk</a>. <hr style="color: #43404d;font-family: 'Helvetica Neue', Arial;font-size: 16px;line-height: 24px" /> <a name="Two"></a> <img style="height: 213px;line-height: 12px;font-size: 12px;color: #3f3a38;margin: 0px;width: 180px" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/05eb09f2-290c-4023-a1c6-1e3626ae2ed9.jpg" alt="" width="180" height="213" align="none" data-cke-saved-src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/05eb09f2-290c-4023-a1c6-1e3626ae2ed9.jpg" /> Spring Cleaning Before the New Year Griffiths v Secretary of State for Work & Pensions Court of Appeal 10th December 2015 [2015] EWCA Civ 1265   Here is a judgment from the reliable Elias LJ to usher in 2016. It tidies away a troublesome decision of the EAT, almost 5 years earlier to the day, in Ashton v Royal Bank of Scotland [2011] ICR 632, a case under the Disability Discrimination Act 1995.   The problem with Ashton was that it effectively gave the green light to the appearance of equality at the expense of making reasonable adjustments. Elias LJ identified the two principal errors in Ashton. The first was formulating as the correct PCP a policy adopted by the employer which contained a discretion to make allowances for a disability. The defect in this formulation was that a policy could, by definition, never be discriminatory since it always contained a discretion. That would be so even if the discretion was not exercised. Secondly, according to the EAT in Ashton the correct comparator in a claim for failure to make reasonable adjustments was someone who was in the same relevant circumstances as the claimant but without the same disability. Elias LJ pointed out that the apparent sameness in treatment was not an antidote to a failure to make reasonable adjustments. If the disadvantage bit harden on the disabled claimant, or if his disability made it more likely that he would suffer the disadvantage that would render the employer guilty of a failure to make reasonable adjustments. The relevant question under s.20 of the Equality Act 2010 was whether the PCP put the disabled person at a substantial disadvantage compared to a person without that disability.   Moreover, the comparator test utilised in Ashton was taken from the decision of the House of Lords in Lewisham Borough Council v Malcolm a case concerning disability related discrimination under the 1995 Act. Malcolm had effectively been overruled by s.15 of the Equality Act 2010 as was observed by the Court of Appeal in Aylott v Stockon on Tees Borough Council [2010] ICR 1278 in July 2010. It is a little surprising therefore, that the EAT was not referred to Aylott in either Ashton or in Griffiths, with the EAT in the latter case relying on its earlier decision in the former. Whatever the reasons for this, Ashton has enjoyed a thoroughly underserved longevity and it is quite right that it has now been put in the boot of the car and taken to the tip. <a href="/barristers/hari-menon/" target="_blank" rel="noopener noreferrer" data-cke-saved-href="https://www.parklaneplowden.co.uk/barristers/hari-menon/">Hari Menon</a>, Parklane Plowden Employment Team: <a href="mailto:hari.menon@parklaneplowden.co.uk" data-cke-saved-href="mailto:hari.menon@parklaneplowden.co.uk">hari.menon@parklaneplowden.co.uk</a> <hr style="color: #43404d;font-family: 'Helvetica Neue', Arial;font-size: 16px;line-height: 24px" /> <h2 style="color: #3f3a38;font-family: 'Helvetica Neue', Arial;font-size: 24px;font-weight: normal;line-height: 24px;margin: 0px 0px 10px"><a name="Three"></a></h2> <img style="height: 213px;text-decoration: none;margin: 0px;width: 180px" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/072b0bb0-ca4d-478b-91c4-39495dfe4a7a.jpg" alt="" width="180" height="213" align="none" data-cke-saved-src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/072b0bb0-ca4d-478b-91c4-39495dfe4a7a.jpg" /> <h2 style="color: #3f3a38;font-family: 'Helvetica Neue', Arial;font-size: 24px;font-weight: normal;line-height: 24px;margin: 0px 0px 10px">ACAS Early Conciliation – a new pitfall for Claimants?</h2>   <div style="color: #43404d;font-family: 'Helvetica Neue', Arial;font-size: 16px;line-height: 24px;text-align: justify">The requirement to go through ACAS Early Conciliation was introduced on 6th April 2014. Since then, the case law has suggested that Tribunals will interpret the section of the 18A Employment Tribunals Act 1996 strictly.   In the case of Cranwell v Cullen[1], the Claimant felt that due to the nature of the allegations, early conciliation was doomed to failure.  As a consequence, the Claimant purported to be ‘exempt’ from conciliation, despite the fact that none of the limited number of exemptions actually applied to her claim. The Employment Tribunal (ET) rejected the Claimant’s claim on the basis that she had failed to comply with section 18A.   The Employment Appeal Tribunal (EAT) were ‘sympathetic’ to the Claimant’s position, but interpreted section 18A strictly and dismissed the appeal. It was held that, whilst there is no obligation to participate in conciliation, there was a requirement to submit the claim to ACAS before proceedings could be launched.   The rules were applied equally stringently in the case of Sterling v United Learning Trust[2], where the EAT rejected an appeal on the basis that the early conciliation number had been incorrectly entered on the claim form. Again, the EAT sympathized with the Claimant’s situation but was unwilling to allow the appeal.   By contrast, in the case of Science Warehouse Limited v Mills[3] the EAT rejected the Respondent’s appeal. At a Preliminary Hearing the Claimant had applied to add a new cause of action (a victimization claim), which post-dated the ET1.  The Respondent objected solely on the basis that the Claimant had not undergone the ACAS early conciliation process in respect of the new cause of action.  The ET allowed the amendment and the Respondent appealed.   The EAT dismissed the appeal and found that section 18A only applied to a prospective Claimant.  In the EAT’s opinion, it was a matter for the ET, using their general case management powers, whether to allow an existing Claimant to add an additional claim to existing proceedings.     Discussion   The case law is clear, section 18A should be interpreted by the ET strictly. To some extent, the ET’s approach may even seem to be draconian in nature.   From a Claimant’s perspective, it is a clear reminder to follow the process and ensure that claim forms are lodged well within time to avoid any issues, such as in Sterling v United Learning Trust.   In contrast, Respondents are well advised to check claim forms thoroughly for any failings in the ACAS early conciliation process. The case of Science Warehouse Limited v Mills demonstrates however that the literal interpretation of section 18A is a two way street. <a href="/barristers/anna-datta/" target="_blank" rel="noopener noreferrer" data-cke-saved-href="https://www.parklaneplowden.co.uk/barristers/anna-datta/">Anna Datta</a>, Parklane Plowden Employment Team - <a href="mailto:anna.datta@parklaneplowden.co.uk" data-cke-saved-href="mailto:anna.datta@parklaneplowden.co.uk">anna.datta@parklaneplowden.co.uk</a></div> <div style="color: #43404d;font-family: 'Helvetica Neue', Arial;font-size: 16px;line-height: 24px"> <div id="ftn1"> </div> </div> <hr style="color: #43404d;font-family: 'Helvetica Neue', Arial;font-size: 16px;line-height: 24px" /> <h2 style="color: #3f3a38;font-family: 'Helvetica Neue', Arial;font-size: 24px;font-weight: normal;line-height: 24px;margin: 0px 0px 10px"><a name="Four"></a></h2> <h2 style="color: #3f3a38;font-family: 'Helvetica Neue', Arial;font-size: 24px;font-weight: normal;line-height: 24px;margin: 0px 0px 10px"> <img style="height: 213px;margin: 0px;width: 180px" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/9e37ac45-85ca-450c-ba23-f73dbf9a3214.jpg" alt="" width="180" height="213" align="none" data-cke-saved-src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/9e37ac45-85ca-450c-ba23-f73dbf9a3214.jpg" /> </h2> <h2 style="color: #3f3a38;font-family: 'Helvetica Neue', Arial;font-size: 24px;font-weight: normal;line-height: 24px;margin: 0px 0px 10px"> Surviving Spouses' Pensions Restricted</h2> In the joined appeal of Dermod O’Brien v Ministry of Justice and Mr John P. Walker v Innospec & Ors [2015] EWCA Civ 1000 the Court of Appeal has considered the impact of the Part Time Workers Directive (97/81/EC) (“PTWD”) and The Equality Act 2010 (“the Act”) upon pension claims.  Of the two appeals, the latter is of most significance for the average employee (the first case concerned a Recorder). <div style="color: #43404d;font-family: 'Helvetica Neue', Arial;font-size: 16px;line-height: 24px;text-align: justify">Mr Walker lived with his male partner from 1993 onwards.  They registered a civil partnership in January 2006 and subsequently married.  Mr Walker claimed that he was entitled to require his pension fund to pay a surviving spouse’s pension to his husband, should the situation arise.  He retired from Innospec on 31 March 2003.   Schedule 9, paragraph 18 of the Act states that, in relation to sexual orientation, the Act is not contravened if a person deprives another of access to a benefit, facility or service and the right to the same accrued before 5 December 2005 (the day on which section 1 of the Civil Partnership Act 2004 came into force).   Similarly, it is not a contravention of the Act if the benefit that is withheld is otherwise payable in respect of periods of service before 5 December 2005.    On its face, therefore, the Act makes the position abundantly clear; even though he is now married, Mr Walker could not require a survivor pension to be paid in respect of any periods of service pre-5 December 2005 (in this case all of his service).  The Employment Tribunal disagreed but the EAT reversed the decision.   On behalf of Mr Walker, it was argued that the act of discrimination was the refusal of the pension trustees to confirm his partner would be entitled to the pension, and that this act took place after the relevant date.  The Court of Appeal rejected that argument; the trustees cannot be expected to confer a benefit on Mr Walker to which he was not entitled, and at the time of earning that entitlement the discriminatory treatment was in fact lawful.  Legal certainty requires his entitlement to be judged by reference to EU law applicable at the time.   It was also argued on behalf of Mr Walker that the Act is incompatible with the Framework Directive (2000/78/EC), which established a general framework for combating discrimination.  In rejecting this submission, the Court of Appeal agreed with the EAT: legislating that treatment (such as that complained of) is unlawful does not have the retrospective effect of rendering unlawful any treatment that, at the time, would have been considered lawful.   Finally, it was argued that the Act, being incompatible with the Framework Directive, had to be read in such a way as to be compatible.  Clearly this question did not require an answer, given the Court of Appeal’s finding (above) that the Act is not incompatible.  For the sake of completeness, the Court of Appeal said that the express provision within the Act to preclude a claim such as this meant that it could not be read another way (to do so would be to make new law) or be disapplied.    Accordingly, whilst Mr Walker’s position may on the face of it appear a just one, objectively his valiant attempts to navigate around the Act’s express provision, and around legal certainty, could not and did not succeed.  <a href="/barristers/tim-wilkinson/" target="_blank" rel="noopener noreferrer" data-cke-saved-href="https://www.parklaneplowden.co.uk/barristers/tim-wilkinson/">Tim Wilkinson,</a> Parklane Plowden Employment Team  <a href="mailto:tim.wilkinson@parklaneplowden.co.uk" target="_blank" rel="noopener noreferrer" data-cke-saved-href="mailto:tim.wilkinson@parklaneplowden.co.uk">tim.wilkinson@parklaneplowden.co.uk</a> <hr /></div>  <a name="Five"></a> <h2 class="null" style="color: #3f3a38;font-family: 'Helvetica Neue', Arial;font-size: 24px;font-weight: normal;line-height: 24px;margin: 0px 0px 10px">Dates for Diaries: 15th January 2016 - Grandstand Employment Conference - Leeds</h2> <div style="color: #43404d;font-family: 'Helvetica Neue', Arial;font-size: 16px;line-height: 24px;text-align: justify">Please join us for what will be an interesting and exciting afternoon of discussion and learning on focussed employment law topics of use to all practitioners. We will consider many of the recent legal developments in discrimination, whistleblowing and equal pay. We are especially delighted to welcome EJ Michael Malone as our guest speaker. Michael retired from the bench last year to the disappointment of those who had the privilege of appearing before him. Much admired for his knowledge, fairness and good humour he has over a decade of experience as an employment judge, lawyer and contributor to employment law publications In addition to this, he will be giving us an enlightening and informative view from the Bench on how to impress (and not to impress) employment tribunals</div> <a href="/grandstand-employment-conference/s55/" target="_blank" rel="noopener noreferrer">Click here to book your place</a>

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