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Cultural Differences: No Excuse for Unacceptable Conduct

<a href="https://www.parklaneplowden.co.uk/our-barristers/isabella-brunton/">Isabella Brunton</a> appeared for Long Clawson Dairy, the Respondent, in Mr W Falfus v Long Clawson Dairy Limited (6004179/2024), instructed by Knights plc.  Background  Mr Falfus, a Polish national, was employed by the Respondent as a Production Operative from 26 May 2015. On 29 February 2024, an 18-year-old female employee complained that Mr Falfus had followed her into the ladies’ toilets and made suggestive comments. Ms Lave, a Production Manager from the Respondent, was a partial witness to the incident and made a contemporaneous statement on the same day. Following a disciplinary hearing held over two dates, 21 March 2024 and 28 March 2024, Mr Falfus was summarily dismissed on grounds of gross misconduct. He appealed the decision, however following an appeal hearing on 10 April 2024 the dismissal decision was upheld.  ET Findings  At the tribunal hearing Mr Falfus was assisted by a Polish translator. He identified a number of particular objections to the dismissal process that he said made it unfair [10]. One, was that there should have been training on how to behave because of cultural differences.  EJ Adkinson concluded that Ms Tisserand (chair of the disciplinary hearing) and Mr Kettle (chair of the appeal hearing) held an honest belief that Mr Falfus was guilty of misconduct, namely sexual harassment, which was therefore so severe to amount to gross misconduct [39.1]. EJ Adkinson also concluded that there was a reasonable and fair investigation and that the decision to dismiss summarily was within the “range of reasonable responses” open to the employer [39.4].  The judge also dealt specifically with Mr Falfus’ argument about the need to be trained on cultural differences and behaviour. On this, he concluded the following [40]:  “Training has its place. It may in some situations, with some workforce profiles and in some industries be necessary. I do not accept however that a reasonable employer would have been expected to have to train (in this case) men not to go into the (in this case) ladies’ toilets with a woman and then made suggestive comments. Firstly, it is plain that this was the ladies’ toilets – there is a sign on the door – and he had no business going in there. Secondly, there was no evidence that in Polish culture it is acceptable in the workplace toilets for a man to enter the ladies’ toilets, let alone to make the suggestive remarks that he did. Thirdly there is no evidence to believe that this is one of those borderline cases where there is a difference in culture that would not be apparent to a foreign worker working in the U.K. that this was unacceptable. There are things one may need to be told about differences – this was not one of them.”  This case clearly highlights the limitations of arguments regarding cultural differences in conduct dismissals and acts as a reminder that training is not required to address acts which are blatantly unacceptable.

When a Sigh Becomes a Legal Issue: The Implications of Non-Verbal Discrimination

In a striking reminder of the constant evolution of workplace dynamics under equality law, a UK Employment Tribunal ruled that non-verbal expressions such as sighing or exhaling in frustration at a colleague could amount to workplace harassment and/or discrimination. This decision highlights the growing recognition of the impact of subtle, often-overlooked behaviours, particularly in cases involving employees with disabilities.  The judgment of <a href="https://assets.publishing.service.gov.uk/media/6826e7a8a4c1a40fde4e6487/Mr_Robert_Watson_-vs-_Roke_Manor_Research_Limited_-_1405658.2023_-_Judgment.pdf">Robert Watson v Roke Manor Research Limited</a> was published last week, concerning a software engineer with ADHD. The Tribunal heard that his project manager repeatedly sighed and made exaggerated exhalations directed at him, which were interpreted as expressing irritation or disapproval. The Claimant was also criticised for his timekeeping and focus issues, both of which were linked to his ADHD, and endured demeaning comments such as being called a “net detriment” as well as subjected to further disparaging remarks about his condition, before ultimately being dismissed. This led to the Claimant experiencing anxiety and stress.  Legal Findings  The Claimant succeeded in the following claims:  <ol class="wp-block-list"> <li>Discrimination arising from disability (section 15 Equality Act 2010)</li>  <li>Failure to make reasonable adjustments (section 20 and 21)</li>  <li>Harassment related to disability (section 26)</li> </ol>  Employment Judge Rayner found in favour of the Claimant, concluding that the Respondent’s cumulative failures in their legal duties amounted to unlawful treatment. She remarked that even subtle behaviours can carry serious weight, stating: “Reactions from others, verbally or as a gesture, can have a damning effect on self-esteem and anxiety.” [167]  The Respondent argued that the manager’s behaviour was caused by significant work-related stress and pressure, and they were unaware of the Claimant’s ADHD diagnosis until after his sick leave. The Tribunal was unconvinced of this, and although acknowledged that the manager’s stress was a “genuine source of pressure and frustration” [634] following the Claimant’s performance issues, the Judge concluded it did “not excuse [his] behaviour or treatment of the Claimant.”  Moreover, The Tribunal criticised the Respondent for missing multiple opportunities to constructively intervene, having failed to investigate the underlying causes of the Claimant’s performance issues or provide support before and after his diagnosis through implementing measures to address the issues: “Had the Respondent taken steps to identify adjustments required for the Claimant at an earlier stage and provided both him and the project lead with necessary support it is entirely possible that [his manager] would not have himself suffered with such work pressure and it is possible therefore that this discrimination would have been avoided.” [634]  Commentary: A Shift in the Legal Landscape  This decision has far-reaching implications for employers by establishing that harassment and/or discriminatory conduct is not limited to overtly hostile remarks or discriminatory policies; it can also manifest through tone, gestures, and body language. In environments where neurodivergent employees may already feel under pressure to mask or compensate for their differences, subtle non-verbal cues from colleagues or managers can have a disproportionate impact.  The ruling expands the definition of harassment to include non-verbal expressions that can be perceived as offensive or creating a hostile work environment. Employers are now expected to be more aware of subtle behaviours and their impact on employees with protected characteristics. This may be through additional training to recognise how their conduct, including body language, can be perceived, as well as proactively assess whether performance concerns may stem from unaddressed disabilities. This coincides with new <a href="https://www.acas.org.uk/neurodiversity-at-work/making-your-organisation-neuroinclusive">ACAS guidance about making the workplace more neuroinclusive</a>. The ruling reinforces that building an inclusive workplace means creating an environment where all employees feel respected, supported, and free from hostility, however subtle its expression.  The Claimant’s compensation is to be determined at a future hearing.

Claire Millns Succeeds in the EAT

The Employment Appeal Tribunal (EAT) in Handa v The Station Hotel (Newcastle) Ltd & Ors [2025] EAT 62 provided significant guidance on the interpretation of “agent” under section 47B(1A)(b) of the Employment Rights Act 1996 (ERA).  Background  Mr. Neeraj Handa, a former director and employee of The Station Hotel (Newcastle) Ltd (‘SH’), was dismissed following internal disciplinary proceedings. Mr Handa alleged that his dismissal was because he made protected disclosures about financial improprieties within SH. Two independent external HR consultants were joined as Fourth and Fifth Respondent. The Fourth Respondent (represented by Claire Millns) carried out a grievance investigation into complaints made about Mr Handa’s conduct by his colleagues. The Fourth Respondent made recommendations that SH uphold some of those grievances and consider a disciplinary hearing. SH accepted the Fourth respondent’s recommendations. Mr Handa later attended a disciplinary hearing overseen by the Fifth Respondent, who made recommendations to dismiss Mr Handa, which were followed by SH. Mr. Handa contended that both the Fourth and Fifth Respondent acted as agents of the company and were thus personally liable under section 47B(1A)(b) ERA for subjecting him to detriment due to his whistleblowing.  Tribunal and EAT Findings  The Fourth and Fifth respondents successfully applied to strike out the claims against both, with the tribunal finding that there were no reasonable prospects of success of Mr Handa establishing that either were agents acting on behalf of the employer. Mr. Handa appealed this decision.  The EAT upheld the Tribunal’s decision, providing the following clarifications:  <ul class="wp-block-list"> <li>Definition of “Agent”: While the term “agent” in employment legislation refers to the common law concept of agency, its application must consider the employment context and the dynamic nature of employment relationships.</li>  <li>Significant Aspect of Employment Relationship: The EAT emphasised that for an individual to be considered an agent under section 47B(1A)(b), their services must relate to a significant aspect of the employment relationship. However, merely performing tasks on behalf of an employer does not automatically confer agency status.</li>  <li>Authority and Control: The consultants operated within the confines of their contractual obligations, providing recommendations without decision-making authority. There was no evidence that the employer controlled their processes or that they acted under the employer's direction in a manner that would implicate them in the dismissal decision.</li> </ul>  Implications  This case underscores the importance of clearly delineating the roles and responsibilities of external HR consultants. Employers should ensure that contractual agreements specify the scope of authority granted to consultants to prevent ambiguity regarding decision-making powers. Additionally, maintaining thorough records of consultants’ roles and the decision-making processes may safeguard against potential liability claims.  While the EAT acknowledged that external consultants could, in principle, be considered agents, the specific circumstances of their engagement and the nature of their authority are critical factors in determining liability under whistleblowing provisions.  The full judgment is available here:  <a href="https://assets.publishing.service.gov.uk/media/68149063a87f19ba7b3a828c/Mr_Neeraj_Handa_v_The_Station_Hotel__Newcastle__Ltd_and_Others__2025__EAT_62.pdf" target="_blank" rel="noreferrer noopener">https://assets.publishing.service.gov.uk/media/68149063a87f19ba7b3a828c/ Mr_Neeraj_Handa_v_The_Station_Hotel__Newcastle__Ltd_and_Others__2025__EAT_62.pdf</a>  <a href="https://www.linkedin.com/in/claire-millns-2572baa4/" target="_blank" rel="noreferrer noopener">Claire Millns</a> appeared for the Fourth Respondent, instructed by <a href="https://uk.markel.com/law" target="_blank" rel="noreferrer noopener">Markel Law</a>.

Hari Menon Represents Claimant Awarded Over £399,000 in Six Year Whistleblowing Claim

McNICHOLAS v CARE AND LEARNING ALLIANCE & CALA STAFFBANK  The claimant, LM, brought a claim in September 2018 against R1 and its subsidiary, R2, alleging that she had been subject to whistleblowing detriment by both these former employers and that R2 had dismissed her unfairly for whistleblowing. LM claimed her treatment was because she had made protected disclosures concerning the care of autistic children at a nursery in a school she worked. The ET, sitting in Inverness, upheld LM’s claim. It found that the disclosures were protected under s.43B(1)(b) of the Employment Rights Act 1996 and that the school had proceeded to retaliate against her by asserting that the disclosures were false and that LM was “emotionally abusing” a child in her care and her family. This theme was then taken up by the respondents in subjecting LM to detriment, which included R1 forcing her to resign, and by R2 unfairly dismissing her. The ET found that one of the main detriments was the respondents referring LM to her regulatory body, the General Teaching Council for Scotland (GTCS), alleging “emotional abuse” of a child in her care. It found that the referral was not made in good faith but to discredit LM in order to pacify a major client, the Council which ran the school.  At the remedies hearing, ML contended that she was unable to work in the teaching profession because of the outstanding referral and also because her treatment by the respondents had caused her psychiatric injury. In its judgment on remedy in November 2021, the ET awarded LM just over £42,000. Its reasoning was that the decision of the GTCS, an independent statutory body, to take up the referral against LM, was a novus actus interveniens which broke the chain of causation. Accordingly, the respondents’ liability for LM’s loss stopped at the point when the GTCS decided proceed with the referral in February 2019.  On the sift, the EAT gave permission for the entirety of the Grounds of Appeal to proceed to a hearing. The appeal was allowed in full by Lord Fairley, sitting at the EAT in Edinburgh<a href="#_ftn1" id="_ftnref1">[1]</a>. The Judge found that the ET erred in law. On the ET’s own findings, the referral was malicious. LM’s loss fell within the test for causation, which was of a natural and reasonable consequence of the wrongful act, being the referral to the GTCS by R1 and R2.  In a judgment of the ET delivered on 31st March 2025 following the remitted remedies hearing, LM was awarded just over £399,000, including interest and the grossing up element for tax. This was just shy of 10x the original award. Most of this was against R1 and R2 jointly. It included amounts for past and future loss of earnings, solatium of £16,000 for psychiatric injury, Vento award of £20,000, LM’s legal expenses of the liability hearing of £20,000 and a further amount for her legal expenses of the proceedings before the GTCS and related Judicial Review proceedings in the Court of Session.  <hr class="wp-block-separator has-alpha-channel-opacity"/>  <a href="#_ftnref1" id="_ftn1">[1]</a> [2023] EAT 127 also reported in <a href="https://uk.practicallaw.thomsonreuters.com/Document/I45F40FA0AEF411EEB68FCCC69A13F35F/View/FullText.html?navigationPath=Search%2Fv1%2Fresults%2Fnavigation%2Fi0a93936a00000196d3aa57ceab487c31%3Fppcid%3Dd9c81a967a504d1783815a84c5bec4b8%26Nav%3DUK-CASES%26fragmentIdentifier%3DIEEF720405DDE11EE90CBF8AC6F33084C%26parentRank%3D0%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=66b2b6e2c95bc875339cac848db51994&list=UK-CASES&rank=1&sessionScopeId=1712841fb0ac7ef508fd86cc44182cefb56adc5d28776bf26869ec4e165ed215&ppcid=d9c81a967a504d1783815a84c5bec4b8&originationContext=Search%20Result&transitionType=SearchItem&contextData=(sc.Search)&comp=wluk">[2024] I.C.R. 45</a>, [2023] I.R.L.R. 975

15th July 2025 | PLP Employment Grandstand Seminar

Join our specialist barristers at the PLP Employment Grandstand Seminar, Calculating Justice - Employment Remedies Masterclass to be held at the Hilton, Leeds City on Tuesday 15th July 2025.  The price per delegate is £50.00 + VAT to include lunch, refreshments and networking drinks reception.  Registration is at 12:45, lunch and refreshments will be served from 13.00, with speakers starting at 14:00. Guests will then be welcome to join us for networking and a drinks reception following the talk.  Programme  12:45 - 13:00: Registration 13:00 - 14:00: Lunch 14:00 - 14:45: <a href="https://www.parklaneplowden.co.uk/our-barristers/david-reade-kc/">David Reade KC</a> - The interrelationship between claims in the Tribunal and the Civil Courts 14:45 - 15:30: <a href="https://www.parklaneplowden.co.uk/our-barristers/claire-millns/">Claire Millns</a> - From Distress to Damages: Injury to Feelings, Personal Injury, and Aggravated damages 15:30 - 15:45: Coffee break 15:45 - 16:30: <a href="https://www.parklaneplowden.co.uk/our-barristers/sophie-firth/">Sophie Firth</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/robert-dunn/">Robert Dunn</a> - From Verdict to Value: Practical Considerations for Remedy Hearingss 16:30 - 17:15: <a href="https://www.parklaneplowden.co.uk/our-barristers/andrew-sugarman/">Andrew Sugarman</a> - Pension Loss Demystified: Principles, Pitfalls and Practicalities. 17:15 - 17:45: Q&A with all speakers 17:45 - 19:00: Networking  If you would like to join us, please contact <a href="mailto:emma.frazer@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">Emma Frazer</a> to reserve your place.

Interest Adds Up: Main v SpaDental Ltd [2024] EAT 200

Facts  The Appellant, a dentist, worked for the Respondent company, SpaDental Ltd, for several years. He claimed unpaid holiday pay on the basis that he was a ‘worker’ under section 230(3) Employment Rights Act 1996 (“ERA”).  After litigating the issue from 2019 to 2022, it was established that he was indeed a worker for the purposes of section 230(3). A remedy hearing was listed. This case note is on the 2024 EAT hearing, which was an appeal concerning issues on remedy only.  The claim largely concerned holiday pay. The claim was made as one for unlawful deductions from wages under section 23 of the ERA.   Relevant Law  The main legal framework engaged was the Working Time Regulations 1998 (“WTR”).  Regulation 13 of the WTR sets out a worker’s entitlement to annual leave. This includes payment in lieu of untaken leave where the worker’s employment is terminated.  Regulation 16 deals with payment in respect of periods of leave.  Regulation 30 outlines remedy in the form of compensation. It gives an employment tribunal discretion to award an amount which is just and equitable – regulation 30(4).  Article 6 of the Equal Treatment Directive 76/207/EEC was also relevant. It does not impose a limit to the reimbursement of loss and damage sustained by a person, nor is there an exclusion of an award of interest to compensate for the loss sustained.   Issues  There were two issues to be considered:  <ol class="wp-block-list"> <li>Did the claim vest in the trustee in bankruptcy?</li>  <li>Was the Appellant entitled to interest on the holiday pay owed by the Respondent?</li> </ol>  The remaining issues were agreed. It was also agreed that EU law applied as the facts of the case occurred before the UK left the EU.    Focus is on the second ground of interest.   Submissions  On the second ground, the Appellant argued that interest was an essential component of compensation and the principles of effectiveness and equivalence applied. It was also submitted that policy reasons were a crucial consideration:  “Were it not so, employers would have a financial incentive for non-compliance with the WTR even if they might eventually be ordered to pay the holiday pay, and could gain a competitive advantage from non-compliance.”  at [75].  The Respondent argued that the principle of equivalence was irrelevant because the domestic provisions on interest in civil court cases are discretionary. The respondent accepted that the employment judge was entitled to consider the parties’ interactions, the passage of time and regulation 30.   Outcome  The EAT held that:  <ol class="wp-block-list"> <li>The first issue was correctly decided at first instance – the Claimant’s claim brought against the Respondent to provide him with paid leave was a proprietary claim which vested in his trustee in bankruptcy.</li>  <li>The employment tribunal at first instance erred in its refusal to award any “interest-like” compensation.</li> </ol>  The interest in this case involved substantial figures. It added £42,082 on top of the original award of £83,573, calculated at 8% running from the mid-point of each leave year. The rate of interest was accepted as post-judgment interest.  EU law was not necessary to be considered and the principle of equivalence “does not add anything of significance to the present case” at [87].   Analysis on Interest Issue  This case is important for two main reasons:  <ol class="wp-block-list"> <li>It clarifies (or perhaps expands) the discretion of the employment tribunal to award interest on compensation under the WTR.</li>  <li>It sets out clear factors that the employment tribunal should consider.</li> </ol>  Firstly, the employment tribunal does not have an express power to award interest accruing before judgment on compensation or other sums under the Working Time Regulations or Employment Rights Act. It is accepted that interest is granted for sex discrimination and equal pay awards following Marshall v Southampton and SW Hampshire AHA (No 2) [1994]. Here, the ECJ held that to not award interest would be contrary to Article 6 Equal Treatment Directive. Interest is now pursuant to the Industrial Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. The 1996 Regulations apply to awards under the Equal Pay Act 1970, as well as awards resulting from successful sex, race and disability discrimination claims.  The judgment is significant because it may open the door to awards of interest on compensatory awards for other claims, like unfair dismissal. It was decided that the wording of Regulation 30 of the Working Time Regulations was wide enough to grant a compensatory award that includes interest or an “interest-like” payment. Therefore, it is possible that other tribunals will decide they have discretion to award interest in other cases too. Where the award is substantial or the time passed is significant, the interest can amount to a generous sum. It is therefore a crucial consideration in remedy hearings.  Secondly, Bourne J outlined 5 distinct factors at paragraph 62 to be considered when awarding interest in a Working Time Regulation case:  <ol class="wp-block-list"> <li>Regulation 30(4)</li>  <li>What is just and equitable</li>  <li>The nature of the company’s default</li>  <li>Any loss sustained by the Claimant</li>  <li>Significance of the sums involved</li> </ol>  Interest will not be awarded automatically following this case. It was not clear whether these are five strict criteria to be followed each and every time. It was also not established if all 5 factors are required for interest to be awarded.  Therefore, both parties should assess whether some, if any, factors are satisfied and assess this on a reasonable basis.  Marshall was the clear influence in this appeal. The Court in Marshall explained that “full compensation” for “loss and damage” includes the factor of reduction in value by effluxion of time. Bourne J in Main indicated at paragraph 86 that this “factor must be brought into account”. This is useful in practice in support of an argument that the 5 factors above are not exhaustive. In practice, parties should bear in mind the passage of time and how this will impact the final sum awarded. A common-sense approach is implicitly endorsed.  This case reminds practitioners to bear in mind interest on compensation in remedy hearings. Whether representing claimant or respondent, it may amount to a significant sum. The Tribunal is yet to establish any hard and fast rules, so this discretion and flexibility may be a useful advantage where relevant.  The full judgment can be found <a href="https://assets.publishing.service.gov.uk/media/676945103229e84d9bbde9f0/Mr_James_Main_v_SpaDental_Ltd_and_Timothy_Alexander_Close__In_His_Capacity_as_Trustee_in_Bankruptcy_of_Mr_Main___2024__EAT_200.pdf" target="_blank" rel="noreferrer noopener">here</a>.

Attorney General’s Regional Panel

Parklane Plowden are pleased to announce that three of our members have been appointed to the Attorney General’s Regional Panel.  <a href="https://www.parklaneplowden.co.uk/our-barristers/bronia-hartley/" target="_blank" rel="noreferrer noopener">Bronia Hartley</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/richard-ryan/" target="_blank" rel="noreferrer noopener">Richard Ryan</a> have been appointed as Regional B Panel counsel from the 1st of March 2025 for a period of five years.  <a href="https://www.parklaneplowden.co.uk/our-barristers/may-martin/" target="_blank" rel="noreferrer noopener">May Martin</a> has been appointed as Regional C Panel counsel from the 1st of March 2025 for a period of five years.  The government relies on the Panels for advice and representation and seeks candidates of the highest quality. Competition for places is fierce.  We’d like to congratulate Bronia, Richard and May on their appointments.   If you would like to get in touch with our clerking team, you can do so via <a href="mailto:clerks@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">clerks@parklaneplowden.co.uk</a>.

Employment Law Update: Unreasonable Failure and Fire and Rehire Penalties

Today, on 20 January 2025, the first of the 2025 employment law reforms are coming into force. Penalties have been tightened for fire and rehire where there has been an unreasonable failure to follow the statutory Code of Practice on Dismissal and Re-Engagement.  What is fire-and-rehire?  Most commonly, fire-and-rehire is where employers serve notice on staff to terminate their current contracts, then re-hire them immediately on new terms and conditions. Employers may need to use fire and rehire when making changes to the employment contract. They may try to agree a change to the contract with the employee first and the employee refuses. The employer would then use fire and rehire as a last resort to secure the changes made without having the employee’s agreement to vary the contract. It is a unilateral variation of employment contract. Notice is necessary for dismissal. Some employers treat fire-and-rehire as giving notice of the changes to the employment. However, unless there is an explicitly clear clause permitting fire and rehire, then the re-engagement under the new contract may create issues.  The main issue is potential unfair dismissal claims. The employee may refuse to be re-engaged on the new terms. Alternatively, the employee may accept re-engagement but claim unfair dismissal from their old contract, even if they are re-employed by the same employer – Hogg v Dover College [1990] ICR 39.  Other issues arise where 20 or more employees are involved in changes to their employment contracts without the employer consulting with trade unions or elected worker representatives. The employer will be in breach of s.188 TULRCA 1992 – GMB v Man Truck & Bus (UK) Ltd [2000] IRLR 636. A failure to comply with s.188 may require employers to make a protected award of 90 days’ pay to employees.  Implied terms that employers will not use fire-and-rehire may be found, depending on the facts of the case – USDAW v Tesco Stores Ltd [2024] UKSC 28. The implied term in USDAW v Tesco was that Tesco could not dismiss employees for the purpose of removing the right to retained pay. Retained pay was ‘an individual contractual entitlement’, agreed to be ‘permanent’, ‘for life’ and ‘guaranteed’. An injunction restrained Tesco from dismissing any Affected Employee for reasons related to the removal or diminution of retained pay, directly or indirectly. This was a significant consequence for Tesco, albeit on a specific set of circumstances.  What is the Code of Practice on Dismissal and Re-engagement?  It is a formal code which will be considered by the Tribunal, often in unfair dismissal claims. A breach of the code will be admissible in evidence and shall be considered by the Tribunal where it is relevant (S.207 TULRCA 1992, effect of failure to comply with Code).  The code has 2 main provisions on fire and rehire:  <ol class="wp-block-list"> <li>The tactic should only be used as a last resort</li>  <li>The procedural pre-requisites must be followed by employers first before using it.</li> </ol>  Employers should not threaten dismissal if that is not their intention, nor if they seek to coerce employees to sign new terms and conditions.  The necessary procedural requirements are to:  <ol class="wp-block-list"> <li>Consult for as long as reasonably possible</li>  <li>Contact ACAS at an early stage before raising a matter with employees</li>  <li>If employees don’t agree, consider feedback</li>  <li>Review changes to assess if necessary.</li> </ol>  The code can be found here: <a href="https://www.gov.uk/government/publications/dismissal-and-re-engagement-code-of-practice">https://www.gov.uk/government/publications/dismissal-and-re-engagement-code-of-practice</a>.     What are the new changes to the Code?  The Code came into force in July 2024, as a proposal from the former Conservative government. The new Labour government intend to outlaw fire-and-rehire.   The changes have been incited by <a href="https://www.legislation.gov.uk/uksi/2024/1272/contents/made">The Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment of Schedule A2) Order 2024</a>.  Article 2 of the Order includes section 189 (failure to follow consultation requirements) to the list of tribunal jurisdictions to which section 207A applies.  The new provisions do not outlaw the tactic but have made penalties harsher with a 25% uplift on protective awards where s.188 applies. The intention is to encourage dialogue between employers and employees to explore options before unilateral dismissal and re-hiring on new terms.  Penalties will be issued for unreasonable failure to follow the statutory Code of Practice on Dismissal and Re-Engagement.  What is unreasonable failure?  The code is engaged as soon as the prospect of dismissal and re-engagement is raised. There is no distinct definition within the code, but it is likely to include the following actions:  <ul class="wp-block-list"> <li>Not engaging in open dialogue with employees or representatives</li>  <li>Not doing so in ample time</li>  <li>Not doing so in a transparent way</li>  <li>Not exploring alternatives before fire-and-rehire</li>  <li>Failure to follow collective consultation requirements under s.189 TULR(C)A 1992</li>  <li>No consideration to the number of employees concerned to determine collective redundancy obligations apply when seeking to change terms and conditions</li> </ul>  The Tribunal will assess ‘reasonableness’ by balancing the employee’s interests against the actions of the employer. It will likely be assessed in context.    However, it is not entirely clear what will constitute an unreasonable failure and it may cause potential problems for employees or employers attempting to prove a failure to comply with the code.   What are the penalties?  For an employer, the employment tribunal may increase any award it makes to the employee by no more than 25% where:  <ul class="wp-block-list"> <li>Section 207A of TULRCA applies</li>  <li>There is a relevant code of practice that applies</li>  <li>The employer has unreasonably failed to comply with it</li> </ul>  When only firing and rehiring one person, employees will only get the 25% increase. However, where more than 20 people are affected and the employer does not consult properly, the 90-day protective award may be ordered.  Employers may be ordered to pay the employee a protective award of up to 90 days’ gross pay and up to 25% of the same per affected employee where:  <ul class="wp-block-list"> <li>Section 188 of TULRCA applies</li>  <li>There is a relevant code of practice that applies</li>  <li>The employer has unreasonably failed to comply with it</li> </ul>  The tribunal has discretion to increase the protective award.  For an employee, their award will be reduced by up to 25% if the employee or their representatives have unreasonably failed to follow the Code of Practice.  Example:  Employee’s gross daily rate of pay is £100.  Employer breaches Code of Practice and s.188 applies, so the employee’s compensation will be £9000 (£100 x 90 days), as well as 25% of that £9000.  Outlook  While the lack of clarification brings a degree of uncertainty, this is the first change in employment law in 2025. The changes mark a turning point – employees are receiving greater protection.    This Order has a significant interplay with other government changes. The Employment Rights Bill proposes to bring more redundancy situations within the ambit of collective consultation by removing the concept of ‘establishment’. The proposed number of redundancies must be calculated on business wide level and not site-by-site if more than 20 redundancies are proposed. The protective awards may also be increased from 90 to 180 days, or higher.  Therefore, with this being the first of the 2025 employment law reforms from the Labour government, employers should take caution in their actions, check they are done in accordance with legislation, statutory codes of conducts and regulations and note the change of direction that legislation appears to be taking to protect employees’ interests.

Interim Relief: How Employers Can Reclaim the Narrative

<a href="https://www.parklaneplowden.co.uk/our-barristers/robert-allen/" target="_blank" rel="noreferrer noopener">Robert Allen</a>, employment and commercial barrister, considers the mechanism of interim relief, why dismissed employees should proceed with caution, and how employers can turn an application against them into a strategic asset.  Interim relief (IR) gives the tribunal the power to compel the employer to reinstate, re-engage or continue to pay a dismissed employee pending the outcome of a final hearing. Given the current pressures within the tribunal system and growing backlog, this interlocutory remedy has the potential to become increasingly valuable to claimants.  The statutory test  IR is only available to employees in limited circumstances. The right to apply is provided for by section 128 Employment Rights Act (ERA) 1996:  ‘An employee who presents a complaint to an employment tribunal that he has been unfairly dismissed and –  That the reason (or if more than one the principal reason) for the dismissal is one of those specified in –  Section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A or  Paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992,…  May apply to the tribunal for interim relief.’  For an employer, having (rightly or wrongly) decided to dismiss an employee, being required to maintain the terms of a contract for however long it takes for litigation to run its course<a id="_ftnref1" href="#_ftn1">[1]</a> is, on any measure, draconian. Consequently, the IR bar is set purposefully high. That is not altogether obvious, however. On the face of the wording of the statute, one may be deceived. Section 129 ERA 1996 provides:  ‘This section applies where, on hearing an employee’s application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find the reason (or if more than one the principal reason) for the dismissal to be one of those specified…’  (Emphasis added)  My ‘likely’ is not necessarily as likely as yours. The statute offers little by way of assistance.  Guidance from caselaw  Caselaw has – to a degree – clarified matters. The word ‘likely’ is to be construed as meaning the employee has a ‘pretty good chance’ of success at the final hearing.<a id="_ftnref2" href="#_ftn2">[2]</a> But what does a ‘pretty good chance’ mean? According to Mr Justice Underhill, a ‘pretty good chance’ ostensibly means ‘a significantly higher degree of likelihood than just more likely than not.’<a id="_ftnref3" href="#_ftn3">[3]</a> The then President went on to state: ‘in this context ‘likely’ does not mean simply ‘more likely than not’ – that is at least 51% - but connotes a significantly higher degree of likelihood.’  In short, it’s no easy task to prove.  Application  By illustration, take one of the more common routes to IR: an automatic unfair dismissal by operation of section 103A ERA 1996. In such a case, IR can only be ordered where the tribunal is satisfied that it is likely on hearing the evidence at a final hearing that the reason (or principal reason) for the dismissal was that the employee made a protected disclosure. It falls to the applicant to establish the necessary level of likelihood in relation to each and every distinct element of the claim.<a id="_ftnref4" href="#_ftn4">[4]</a>  So, to succeed, the applicant must establish that it is likely that the tribunal at a final hearing would find that:  <ol class="wp-block-list"> <li>they made a disclosure;</li>  <li>they believed that the disclosure tended to show one or more of the matters listed in section 43B(1) ERA 1996;</li>  <li>that belief was reasonable;</li>  <li>the disclosure was made in the public interest;</li>  <li>the disclosure was the sole or principal cause of dismissal;</li> </ol>  As for that final limb, in the absence of qualifying service on the part of the employee, it falls to them to prove the causative link to dismissal.<a id="_ftnref5" href="#_ftn5">[5]</a> Only employees with two or more years of continuous service shift the burden to their employer to show they were not dismissed with the sole or principal reason being the disclosure.  Procedure  Pre-hearing  IR applications are exempt from the usual requirement<a id="_ftnref6" href="#_ftn6">[6]</a> to conciliate before passing go. Time limits are tight: claimants must apply within seven days of the date of dismissal and there is no latitude for an extension.<a id="_ftnref7" href="#_ftn7">[7]</a> A hearing will be listed promptly thereafter. The issue shall be determined ‘as soon as is practicable’.<a id="_ftnref8" href="#_ftn8">[8]</a> Employers will have at least seven days’ notice of a hearing, but seldom more.<a id="_ftnref9" href="#_ftn9">[9]</a>  Though an IR hearing will be a matter of days away by the time an employer is put on notice, parties should nonetheless attempt to cooperate to agree bundle contents. The bundle should be restricted to what is necessary; less is more. A bundle running to hundreds of pages is rarely indicative of a successful IR application. Parties can, and should, make appropriate use of witness statements. And the value of a concise skeleton argument drawing it all together cannot be underestimated.  At the hearing  Even when statements have been provided, expect the judge to hear submissions alone. Rule 94<a id="_ftnref10" href="#_ftn10">[10]</a> provides that the tribunal ‘must not hear oral evidence unless it directs otherwise’. Any request to hear oral evidence would have to be founded on an exceptional reason. If you are seeking the tribunal to hear evidence, be ready to justify why this irregular step is necessary in the circumstances. Is there a point that can only be made orally?  If so, why has it not been set out in a witness statement? If there is a point of challenge, why is it just to challenge it now? If you are resisting such a request made by the other side, emphasise that the task at an IR hearing is to take each party’s case at its evidential height. Moreover, point to the overriding objective<a id="_ftnref11" href="#_ftn11">[11]</a> in light of the risk that hearing evidence at an interlocutory stage may well prejudice evidence at a final hearing.  Tactical considerations  Applying - eager enthusiasm may prove ephemeral  No claimant presents an ET1 without some initial level of confidence in the outcome. But when pursuing IR, such early confidence must be particularly well-placed. IR, for all it can subject the respondent to early pressure (and cost), has the potential to backfire.  First, there is no disclosure process. Not only do employees have to prove each element of the legal test to the required standard; they must do so based upon the documentation they have available to them at the time of applying. Whereas many cases can evolve based upon disclosure identifying key evidential vulnerabilities, IR will turn simply upon what the employee is able to point to from their own records, combined with anything the employer elects to cite for themselves (and the latter is unlikely to be helpful). Even taking the very first stage of a section 103A ERA 1996 dismissal - the employee will need to be ready to point to clear evidence of the precise circumstances of the disclosure they purport to have made. This can be far from straightforward, even with disclosure.  Second, whilst it may be tempting to put early pressure on the employer by making them face an IR application, it must be borne in mind that if IR is successfully resisted, it could be followed swiftly by an application on the employer’s part for costs.  Responding – turning an obstacle into an asset  Whilst facing an application for interim relief can seem daunting, requiring prompt tribunal attendance and early incurrence of costs, it can also present an opportunity for the respondent to make early headway in turning the momentum of the litigation in their favour.  The key to defeating IR applications is to properly apply the test. Limb by limb, submissions can be raised to demonstrate why the applicant does not come up to proof. The bar is high, and each limb presents its own evidential obstacles. In approaching this exercise, the respondent has the tactical benefit of using contemporaneous documents which favour their position, without having to disclose that which could be more damaging.  Where an IR application is successfully opposed, various opportunities present themselves. Principally, the employer has shifted the momentum in their favour. The IR hearing provides an initial forum for submissions explaining why the claim is not as strong as was believed by the other side. If a judge agrees with those submissions, confidence in the prospects of the claim is inevitably diminished – providing scope for settlement or withdrawal.  Having seen off IR, an employer can, in certain cases, use the hearing to go further. For one, the decision to pursue IR at all may have been unreasonable in the circumstances, such that the door is open to pursue costs. If, for instance, an employer is able to justify why the application fails to come up to proof by some margin on each and every aspect, the tribunal may be minded to make a costs order – particularly so if it is persuaded the tribunal’s time has been wasted in the process. Equally, provided IR was sought within a claim that had been presented following conciliation<a id="_ftnref12" href="#_ftn12">[12]</a>, there would be nothing stopping the respondent from applying for a deposit order at the hearing if the evidence tended to suggest its prospects were sufficiently low.  Summary  Dismissed employees should proceed with care when weighing up the benefits and risks of IR. After all, a prepared employer could utilise an application against them for their own benefit, demonstrating unforeseen weaknesses in the claim and pursuing costs for the tactical misstep. ‘As the ancient Romans said, festina lente.’<a id="_ftnref13" href="#_ftn13">[13]</a>  Robert was recently instructed to respond to an interim relief application. Having successfully resisted it; he went on to obtain a costs order in favour of his client. If you wish to instruct a member of our employment team to help navigate an interim relief application, please contact our clerking team.  <hr class="wp-block-separator has-alpha-channel-opacity"/>  <a href="#_ftnref1" id="_ftn1">[1]</a> A period which is increasingly measured in years rather than months  <a href="#_ftnref2" id="_ftn2">[2]</a> Taplin v. C Shippam [1978] IRLR 450 EAT  <a href="#_ftnref3" id="_ftn3">[3]</a> Ministry of Justice v. Sarfraz [2011] IRLR 562 EAT  <a id="_ftn4" href="#_ftnref4">[4]</a> Hancock v. Ter-Berg [2020] ICR 570  <a href="#_ftnref5" id="_ftn5">[5]</a> Smith v. Hayle Town Council [1978] ICR 996, CA  <a href="#_ftnref6" id="_ftn6">[6]</a> Under s.18A Employment Tribunals Act 1996  <a href="#_ftnref7" id="_ftn7">[7]</a> See s.128 (2) ERA 1996 and s.161 (2) Trade Union and Labour Relations (Consolidation) Act (TULR(C)A) 1992  <a href="#_ftnref8" id="_ftn8">[8]</a> S.128 (3) ERA 1996 and s.162 (1) TULR(C)A 1992  <a href="#_ftnref9" id="_ftn9">[9]</a> S.128 (4) and s.162 (2) ibid  <a href="#_ftnref10" id="_ftn10">[10]</a> Employment Tribunal Procedure Rules 2024, SI 2024/1155  <a href="#_ftnref11" id="_ftn11">[11]</a> Now found at Rule 3, ibid  <a href="#_ftnref12" id="_ftn12">[12]</a> This would be rare, given the narrow time limits and IR’s exemption from the early conciliation requirement  <a href="#_ftnref13" id="_ftn13">[13]</a> In the words of Iolanthe’s Lord Chancellor.

May Martin Successfully Defends Disability Discrimination Claim in the Employment Tribunal

May Martin has successfully defended Gateshead Health NHS Foundation Trust against a claim for disability discrimination following a five-day hearing in the Newcastle Employment Tribunal.  The Claimant brought claims of failure to make reasonable adjustments and s.15 ‘discrimination because of something arising’. The issues in the case centred around the Trust’s proposed return-to-work plan for the Claimant.  The Claimant, who had been away from her substantive post as a midwife for a significant period, contended that the proposed plan was punitive and put her at a disadvantage because it required her to rotate around various midwifery departments.  The Trust contended that the return-to-work plan was supportive and was reasonable given, amongst other things, the period of absence from clinical duties and the need for the Trust to assure itself of the Claimant’s competence and safety.  The Tribunal dismissed the Claimant’s claims. It found that the Claimant was not placed at a disadvantage by the proposed return-to-work plan. It also found that the Trust had acted proportionately in pursuance of its legitimate aims of (1) ensuring operational efficiency; (2) ensuring the needs of the service could be met; and (3) ensuring the health, safety, and welfare of its staff and patients.  May was instructed by Gabriella Jobling of Capsticks solicitors.

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