Employment Archives - Page 2 of 6

Expertise

Our Expertise

Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat.

Parklane Plowden Chambers Appoints Senior Practice Director

Parklane Plowden Chambers has appointed Paul Clarke as senior practice director for civil and employment.  Paul's addition completes our new management structure. Paul is pictured above with (L) Senior Practice Director Stephen Render who heads our chancery and commercial and family teams, and (R) Martin Beanland, Head of Service & Finance Director.  Paul joins from Kings Chambers, where he clerked for almost 30 years and was most recently responsible for the employment, personal injury, clinical negligence, sports law and court of protection practices.  As senior practice director, Paul is working with the heads of the civil and employment teams alongside individual members to identify and implement business growth strategies. Paul’s wealth of experience will enhance the set’s clerking team and help them continue to deliver high levels of service and support to clients.  In its 2025 rankings, barristers’ directory, Chambers & Partners, placed Parklane Plowden as Band 1 across its chancery; clinical negligence; employment; and personal injury practice areas. Additionally, the set was ranked Band 2 for inquests and inquiries.  Commenting on his new appointment, Paul said: “I am delighted to be taking on this new role and joining such an established and prestigious set of chambers.  “We have an exceptional and well recognised team of barristers working closely with highly regarded and experienced support staff. This is a potent combination as we look to continue providing high level advice, advocacy and client care.  “The North Eastern circuit has a thriving legal market, and I am excited to play my part in PLP’s ongoing vision for growth.”  Formed in 2007 following the merger of Parklane Chambers in Leeds and Plowden Chambers in Newcastle, Parklane Plowden is home to 118 members.  Welcoming Paul to PLP, head of chambers, James Murphy, said: “Paul has extensive experience as a leading clerk, and we are pleased he is joining us as a senior practice director.  “At PLP, our civil and employment barristers have an established leading reputation and these practice areas represents a core growth opportunity for our set across the North Eastern Circuit.  “Having Paul on board will be instrumental in achieving this. We look forward to leveraging his leadership and management expertise to ensure high quality services are maintained for our clients as we go from strength to strength.”    Chambers & Partners also placed Parklane Plowden as Band 1, the highest ranking a chambers can achieve, across family and children and Band 2 for family: matrimonial finance.  The 2025 edition of legal directory The Legal 500 ranks Parklane Plowden Chambers as a tier one barristers’ set across five practice areas. These include chancery, probate and tax; clinical negligence; employment; family and children law and personal injury.  In addition, The Legal 500 recommends 79 of the set’s barristers across 11 practice areas.

Pupil Isabella Brunton shares her experience of her first week ‘on her feet’

Monday  My last day of first six. Whilst eagerly anticipating the week to come when my practising certificate kicked in the next day, I made my way to an employment noting brief for an internal ‘SOSR’ disciplinary hearing. As the only instructions pupils are permitted to accept in their first six, noting briefs are a great way to do your own work and meet new people. This instance even meant I was able to witness the meetings prior to a tribunal claim, which usually barristers would not be privy to, so it was an interesting experience.  Tuesday  The first papers in my name started to appear in my inbox. I got to work on employment merits assessments and infant quantum advice documents – having to get used to signing my papers with my own name! I got an early insight into the last minute nature of the profession when my case for the next day settled at 2pm and by 5pm I was receiving new instructions for 10am the next morning. The start of second six is a great time to attend outreach events, as I am experiencing junior practice myself for the first time. On Tuesday evening I joined my colleagues at a networking event for BPP at Newcastle University, where I spoke to a lot of ambitious aspiring barristers.  Wednesday  Following an early (and rainy) drive down to Middlesborough in the morning, I met my opponent and client in my first small claim RTA. On the papers I had not been optimistic about our prospects of defending the claim, but in cross-examination it became clear that there were inconsistencies in the claimant’s account, so I was pleased that the judge awarded a result of split liability. It was a nerve-racking but rewarding first case, and in the afternoon I went back to Chambers to switch my employment law brain on in advance of the next day.  Thursday  I spent the morning in our Leeds Chambers preparing for a mock employment tribunal run by Blacks Solicitors. Acting as counsel for the respondent two days into my second six in front of almost 100 professionals was a unique experience, but I thoroughly enjoyed cross-examining on the topical area of menopausal discrimination and luckily, Sophie Firth was a very fair judge.  Once again I took the opportunity to speak to aspiring barristers, this time at the BPP Leeds offices, where I sat on a panel together with three barristers from various Chambers, talking about life at the Bar. I enjoyed speaking to students about my experiences of the Bar course and pupillage applications.  Friday  The new age of virtual hearings meant that I was able to do my stage 3 telephone hearing from Chambers in the morning. I take great comfort in knowing my colleagues are only on the other side of the wall if I have any queries and thankfully, as my hearing was the first slot of the day, I was still left with plenty of time to work on papers and my cases for next week before enjoying a restful weekend.  I thoroughly enjoyed my first week ‘on my feet’, particularly beginning to develop my own style of cross-examination following six months of observing others. I look forward to building my practice and I am now receiving instructions in employment and civil matters. My pupil supervisors are Amy Rumble and Claire Millns.

Parklane Plowden Chambers ranked as a Band One barristers’ set across five practice areas in the Chambers & Partners 2025 rankings

Parklane Plowden Chambers has been ranked as a Band One set across five practice areas and a Band Two set across two practice areas in the Chambers & Partners 2025 rankings.  Chambers has been listed as Band One, the highest ranking a set can achieve, across the Chancery, Clinical Negligence, Employment, Family: Children and Personal Injury practice areas.  Parklane Plowden is the sole set to be ranked in Band One for both Clinical Negligence and Personal Injury on the North Eastern Circuit.  Additionally, the set has been ranked as a Band Two set for both Family: Matrimonial Finance and Inquests & Public Inquiries.  Individual members received 67 rankings in this year’s edition across: • Chancery • Clinical Negligence • Commercial Dispute Resolution • Employment • Family: Children • Family: Matrimonial Finance • Inquests & Public Inquiries • Personal Injury • Personal Injury: Industrial Disease • Professional Negligence • Real Estate Litigation

Isabella Brunton starts her second six and accepts instructions

Parklane Plowden is pleased to announce that Isabella Brunton has started her second six and is available to take instructions.  Isabella Brunton commenced her specialist civil law pupillage in April 2024 under the supervision of Claire Millns.  To instruct Isabella please contact: <a href="mailto:clerks@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">clerks@parklaneplowden.co.uk</a> or call us on 0113 228 5000.

Parklane Plowden Chambers ranked as a Top Tier barristers’ set across five practice areas in the Legal 500 2025 rankings

Parklane Plowden Chambers has been ranked as a Tier 1 set across five practice areas and a Tier 2 set across two practice areas in The Legal 500 2025 rankings.  Chambers has been listed as Tier 1, the highest ranking a set can achieve, across the chancery, probate and tax; clinical negligence; employment; family and children law and personal injury practice areas.  Parklane Plowden is also the only set to be ranked for both chancery, probate and tax and clinical negligence on the North Eastern circuit.  Additionally, the set has been ranked as Tier 2 for both inquests & inquiries and court of protection & community care.  Individual members received 83 rankings in this year’s edition across:  <ul class="wp-block-list"> <li>Court of Protection and Community Care</li>  <li>Chancery, Probate and Tax</li>  <li>Clinical Negligence</li>  <li>Commercial Litigation</li>  <li>Employment</li>  <li>Family: Children and Domestic Violence</li>  <li>Family: Divorce and Financial Remedy</li>  <li>Personal Injury</li>  <li>Property and Construction</li>  <li>Professional Negligence</li>  <li>Inquests and Inquiries</li> </ul>

Mind the Gaps: EAT Clarifies Constraints in Demonstrating a Continuing Course of Discriminatory Conduct

Worcestershire Health and Care NHS Trust v Angela Allen [2024] EAT 40  The Facts  The Claimant brought a large number of complaints of age and disability discrimination in the Employment Tribunal in January 2020 and March 2022. The Claimant was successful in a small number of those complaints at first instance, where the ET concluded that the dismissal was part of conduct extending over a period that was linked to age discrimination complaints.  Following an appeal and cross-appeal, the EAT (in part) was required to consider whether there was conduct extending over a period.  The Law  The time limits for claims of discrimination are provided by section 123 Equality Act 2010:  123 Time Limits  <ol class="wp-block-list"> <li>Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of- <ul class="wp-block-list"> <li>the period of three months starting with the date of the act to which the complaint relates, or</li>  <li>such other period as the employment tribunal thinks just and equitable.</li> </ul> </li>  <li>...</li>  <li>For the purposes of this section- <ul class="wp-block-list"> <li>conduct extending over a period is to be treated as done at the end of the period;</li> </ul> </li> </ol>  Mummery LJ held in Commissioner of Police of the Metropolis v Hendricks [2002] EWCA Civ 1686, [2003] I.C.R. 530 following prior legislation that:  52. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an extends over a period. They should not be treated as a complete and constricting statement of the indicia of “an act extending over a period”. I agree with the observation made by Sedley LJ, in his decision on the paper application for permission to appeal, that the appeal tribunal allowed itself to be side-tracked by focusing on whether a “policy” could be discerned. Instead, the focus should be on the substance of the complaint that the commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the service were treated less favourably. The question is whether that is “an act extending over a period” as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed.  The Findings  The EAT, presided over by His Honour Judge James Tayler, found that the Employment Tribunal erred in law by concluding that the complaints of discrimination that succeeded constituted conduct extending over a period.  HHJ Tayler rejected the Respondent’s submission that conduct extending over a period (s 123(3)) must as a matter of law all relate to the same protected characteristic. Although he did make it clear that this may be more difficult to establish. Similarly, he held that conduct extending over a period could involve a number of different types of prohibited conduct, such as a mixture of harassment and direct discrimination [13].  The EAT held that it was not enough that incidents were linked, because they all arose in the course of the implementation of a restructuring in the Respondent, and that later events would not have occurred but for the earlier events.  Reference was made to Hendricks, which held that for there to be conduct extending over a period, there must have been an ongoing situation or a continuing state of affairs that was discriminatory.  Following this, the EAT noted that there was a substantial gap between the events in the case, involving different types of prohibited conduct, different protected characteristics, and decisions by different people. Although this in itself did not preclude the possibility of there being conduct extending over a period, the ET would need to clearly identify what the continuing discriminatory conduct was. As this was not identified, the EAT substituted a finding that the complaints that succeeded did not form conduct extending over a period – remitting the decision of whether time should be extended on just and equitable grounds to the ET.  Comment  The judgment provides helpful updated guidance on when conduct may extend over a period under s 123(3) EqA.  It did accept that conduct need not be limited to the same protected characteristic or type of prohibited conduct – which could demonstrate a wider scope for establishing a continuing period in order to bring claims in time. However, the EAT explicitly acknowledged that this may be more difficult to establish.  Principally, the judgment confirmed that even where incidents are linked this is not sufficient to amount to an ‘ongoing situation or a continuing state of affairs’. This was particularly relevant where the incidents involved different people or were largely separated in time.  Tribunals have considerable discretion in determining what is required to establish a continuing discriminatory state of affairs, however, this EAT judgment usefully demonstrated that the scope for these arguments is limited.

Bryony Clayton Appointed Fee-Paid Judge of the First-Tier Tribunal

Chambers are delighted to announce that Bryony Clayton has been appointed as a Fee-paid Judge of the First-Tier Tribunal, assigned to the Health, Education and Social Care Chamber.  Chambers would like to congratulate Bryony on her new appointment.

Fire and Rehire: The Current Law

The UK’s first Statutory Code of Practice<a href="#_ftn1" id="_ftnref1">[1]</a> on dismissal and re-engagement came into force on 18 July 2024, emphasising that the principle of ‘fire and rehire’ should only be used as a last resort. The new Labour Government has indicated an intention to replace this code with a strengthened code of practice to ban these practices entirely. It is expected that this provision will form part of the proposed Employment Rights Bill which is likely to come into force in 2025.  “Dismissal and Re-engagement” occurs when employees do not agree to contractual changes proposed by their employer and the employer dismisses the employee, before either offering to re-engage them or offering to engage other employees, in substantively the same roles, to effect the changes.  The recent Code introduces an obligation for employers to take all reasonable steps to explore alternatives to dismissal and engage in consultation with a view to reaching an agreed outcome with employees.  Under the Code, employers should provide as detailed information regarding proposals as reasonably possible; consider any questions from employees; and engage in meaningful consultation. If there is the intention to opt for Dismissal and Re-engagement, employers should be clear about this to employees and re-examine their proposals before using this as a last resort. Employees should be re-engaged as soon as reasonably practicable and invited to provide feedback about the changes to reduce further conflict.  The Code only applies where the prospect of dismissal and re-engagement of employees was raised with them before 18 July. However, it applies regardless of the number of employees affected and the reasons for seeking to change employees’ terms and conditions.  Whilst failing to follow the Code does not make an organisation liable to proceedings in itself, certain provisions subject employers to legal requirements. Employers should also be aware that it is admissible in evidence in proceedings before a court of tribunal and can result in a tribunal:  <ul class="wp-block-list"> <li>Increasing any award it makes by up to 25%, if the employer has unreasonably failed to comply with the Code; or</li>  <li>Reducing any award by up to 25%, where it is the employee who has unreasonably failed to comply.<a id="_ftnref2" href="#_ftn2">[2]</a></li> </ul>  Although employers should be aware of the newly introduced Code, it is essential to stay up to date with the new Labour Government’s plan. This is likely to restrict fire and rehire to especially limited circumstances, such as where the alternative is bankruptcy or mass redundancy…watch this space for further updates.  <hr class="wp-block-separator has-alpha-channel-opacity"/>  <a id="_ftn1" href="#_ftnref1">[1]</a> <a href="https://assets.publishing.service.gov.uk/media/65d35c10423931826ab7b8a0/draft-statutory-code-of-practice-on-dismissal-and-re-engagement.pdf">https://assets.publishing.service.gov.uk/media/65d35c10423931826ab7b8a0/draft-statutory-code-of-practice-on-dismissal-and-re-engagement.pdf</a>  <a href="#_ftnref2" id="_ftn2">[2]</a> S 207A 1992 Act

Constructive knowledge of Neurodiversity – a reminder of the correct test to be applied

The EAT handed down its judgment in the case of Godfrey v Natwest Markets plc [2024] EAT 81 on 24 May 2024.  The EAT found that the ET had erred in applying a higher test when considering the employer’s constructive knowledge of a former employee’s disability.  The employee’s appeal was nevertheless dismissed in circumstances where the ET had gone on to consider the counterfactual. The ET had been entitled to find that the employee would have refused any investigations and, in turn, the employer could not reasonably have been expected to have knowledge of the employee’s disability.  Background:  The Claimant, Mr Godfrey was employed by the Respondent, Royal Bank of Scotland plc (subsequently NatWest Market plc) from August 2006 until his resignation in January 2011.  Between 2017 and 2019, he applied for a number of vacancies within the Respondent’s ‘Super Sovereign and Agency (SSA) Team’ and was unsuccessful.  He was formally diagnosed with Asperger's syndrome in 2018, although he contended that those who had worked with him would have been fully aware of his communication and social interaction difficulties and thus the Respondent had been aware of the relevant facts of his disability.  He brought claims of direct disability discrimination and discrimination arising from disability arising from the Respondent’s alleged failures to consider him for the relevant vacancies.  The Claimant was found to be a person with a disability by reason of his Asperger’s Syndrome, an autism spectrum condition, following a preliminary hearing in August 2020.  At a further preliminary hearing in February 2021, for the purposes of his s.15 claim, the Claimant asserted that the “something arising” in consequence of his disability was that he ‘needed quiet and space and would not engage in conversation or social interactions in the same way as others.’  The Respondent denied the claim asserting, amongst other grounds, that it had no knowledge of the Claimant’s disability.  A Ltd v Z<a href="#_ftn1" id="_ftnref1">[1]</a>:  Her Honour Judge Eady QC had explained, at paragraph 38 and 39 of A Ltd v Z that:  ‘38. A Respondent will avoid the liability that would have otherwise arise under section 15 EqA if it can show that it did not know, and could not reasonably have been expected to know, of the complainant’s disability. A finding that the Respondent does not have actual knowledge of the disability is thus not the end of the ET’s task; it must then go on to consider whether the Respondent had what (for shorthand) is commonly called “constructive knowledge”; that is whether it could – applying a test of reasonableness – have been expected to know, not necessarily the Claimant’s actual diagnosis, but of the facts that would demonstrate that she had a disability – that she was suffering a physical or mental impairment that had a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities.  39. As to what a Respondent could reasonably have been expected to know, that is a question for the ET to determine. The burden of proof is on the Respondent but the expectation is to be assessed in terms of what was reasonable; that, in turn, will depend on all the circumstances of the case.’  In Godfrey, it was common ground that the legal principles that should inform the ET’s approach to the determination of constructive knowledge were as summarised at paragraph 23 of A Ltd v Z:  (1) There need only be actual or constructive knowledge as to the disability itself, not the causal link between the disability and its consequent effects which led to the unfavourable treatment, see York City Council v Grosset [2018] ICR 1492 CA at paragraph 39.  (2)  The Respondent need not have constructive knowledge of the complainant's diagnosis to satisfy the requirements of section 15(2) ; it is, however, for the employer to show that it was unreasonable for it to be expected to know that a person (a) suffered an impediment to his physical or mental health, or (b) that that impairment had a substantial and (c) long- term effect, see Donelien v Liberata UK Ltd UKEAT/0297/14 at paragraph 5, per Langstaff P, and also see Pnaiser v NHS England & Anor [2016] IRLR 170 EAT at paragraph 69 per Simler J.  (3)  The question of reasonableness is one of fact and evaluation, see Donelien v Liberata UK Ltd [2018] IRLR 535 CA at paragraph 27; nonetheless, such assessments must be adequately and coherently reasoned and must take into account all relevant factors and not take into account those that are irrelevant.  (4)  When assessing the question of constructive knowledge, an employee's representations as to the cause of absence or disability related symptoms can be of importance: (i) because, in asking whether the employee has suffered substantial adverse effect, a reaction to life events may fall short of the definition of disability for EqA purposes (see Herry v Dudley Metropolitan Council [2017] ICR 610 , per His Honour Judge Richardson, citing J v DLA Piper UK LLP [2010] ICR 1052 ), and (ii) because, without knowing the likely cause of a given impairment, " it becomes much more difficult to know whether it may well last for more than 12 months, if it is not [already done so] ", per Langstaff P in Donelien EAT at paragraph 31.  (5)  The approach adopted to answering the question thus posed by section 15(2) is to be informed by the Code , which (relevantly) provides as follows:  "5.14  It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a 'disabled person'.  5.15  An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially."  (6)  It is not incumbent upon an employer to make every enquiry where there is little or no basis for doing so (Ridout v TC Group [1998] IRLR 628; SoS for Work and Pensions v Alam [2010] ICR 665 ).  (7)  Reasonableness, for the purposes of section 15(2) , must entail a balance between the strictures of making enquiries, the likelihood of such enquiries yielding results and the dignity and privacy of the employee, as recognised by the Code .  ET decision:  The ET observed that it had limited evidence of the Claimant’s impairment whilst working for the Respondent:  It noted that the Claimant, in his particulars of claim “describes being confronted with severe challenges when interacting with and communicating with others, particularly where he feels overwhelmed or perceives a hostile environment” (ET paragraph 18).  However, he gave no detail of any such challenges in the workplace whilst employed by the Respondent.  Similarly, the ET noted that in his witness statement, he suggested that he “might be less fun on the desk, at times need space and quiet (especially when considering [his] portfolio) and often took breaks from [his] desk to do so, and would not engage in conservation or social interactions in the same way as others.” (ibid)  Again, however, no detail was added.  The ET observed that ‘While, according to the Code and the principles in A Limited, it is for the Respondent to show that it did not have knowledge rather than for the Claimant to show that it did, the Respondent clearly could not have called everyone who worked with the Claimant between 2006 and 2011. The Claimant needed to give some context for the Respondent to know where to start.’ (ET paragraph 20)  In his claim form, the Claimant had made reference to a manager who had commented that there was a perceived issue with the Claimant’s ability to socially integrate and another manager who had told him that that year’s bonus would have been double if he was easier to converse with. (ET paragraph 21)  He had also referred to an executive assistant who had told him he needed somebody to look after him and that he was strange and further, two peers from the 2006 graduate programme, one of whom had said “the way your brain operates is very strange” and the other had told the Claimant “you are (very) weird.” (ET paragraph 22)  The Claimant had not elaborated on this in his statement, had not named the individuals referred to nor did he put the comments in context.  In his claim form he stated that, although he had only become aware of the impact of his condition since the diagnosis, those who sat around him in the workplace would have been aware of the daily communication and social interaction problem. However, he did not name any of these colleagues.  Whilst, in his oral evidence, the Claimant did name names, he had not referred to these individuals in his witness statement and he had not sought to call them to give evidence.  In his statement, he had stated that the condition led to some colleagues describing him as ‘psychotic’, ‘very strange<a>’</a>, ‘mad’, ‘bizarre’ and ‘extremely odd’ but he had not ascribed these comments to any one person or persons.  The ET did attempt, during the Claimant’s evidence, to elicit some context from him in respect of the specific comments he had referred to in his statement, however the Claimant was only able to provide two examples.  In terms of witness evidence, the Claimant relied on a short, signed witness statement from one of his former managers at the Respondent (having intended to call him). The statement contained no specifics regarding the impairments noted or adjustments made whilst working with the Claimant.  The ET also heard from two witnesses for the Claimant; one a university friend and one a former employee of the Respondent who had not worked with the Claimant whilst they were both employed by the Respondent but had worked with the Claimant subsequently at another company.  Having heard the evidence, the ET considered that the working hours and pressures that the Claimant was subject to at this company were much greater than those at the Respondent and as such it could not be concluded that his behaviour would have been replicated at his earlier employment with the Respondent.  The Respondent’s only witness had worked on the same trading desk as Mr Godfrey between 2008 and 2011 and it was his evidence that the Claimant did not stand out.  The ET also had regard to the documentary evidence that was available from the time of the Claimant’s employment with the Respondent.  The ET found, unanimously, that the Respondent had no actual knowledge of the Claimant’s disability.  In respect of constructive knowledge, the ET found by majority decision that the Respondent could not reasonably have known of the Claimant’s disability.  The ET did, importantly, and in line with A Ltd v Z, go on to ask itself:  ‘52. . . . what the outcome might have been if management or HR personnel at the Respondent had observed the Claimant’s differences, taken more account of them and realised that they might be the result of a mental impairment or autistic spectrum disorder . . ..’  And found, by a majority decision that:  ‘54. . . . there was no factor that would have caused anyone at the Respondent without in-depth training in autistic spectrum disorders to have reached such a conclusion. It would be unreasonable to expect an employer without such training to do so, given that Mr Hammacher, who has known the Claimant for many years and observed him in social situations where his behaviours manifested themselves, and who is medically qualified, not to have done so.’  And  ‘74. . . . There was no ‘trigger event’ while the Claimant worked at the Respondent that would have caused its managers to make the referral, which the majority considers the Claimant would have resisted. The authorities confirm that it is not incumbent on an employer to make every enquiry when there is little or no basis to do so.’  EAT Decision:  Following a rule 3(10) hearing, the Claimant’s appeal proceeded on the single ground that the ET had failed to apply the correct legal test; focusing on the particular diagnosis of his disability rather than the question of the Respondent’s knowledge (actual or constructive) of the relevant factual features of that disability.  For the Claimant, it was argued that the ET had focused on whether the Respondent had knowledge of the Claimant’s diagnosis and not on the salient ingredients of s.6 EqA and had thus applied the wrong test throughout, citing the ET’s references to the diagnosis of the Claimant’s disability within its reasoning:  <ul> <li>ET paragraph 44: ‘. . .this would not be sufficiently unusual, . . . to alert an employer to the fact that an employee is a person with Asperger’s or to make enquiries about an autistic spectrum disorder.’</li>  <li>ET paragraph 45: ‘we do not find that an employee being sensitive would lead an employer to consider that they had Asperger’s . . . it does not lead us to the conclusion that Mr Muscatt found or should have considered the Claimant’s behaviour to be consistent with Asperger’s.’</li>  <li>ET paragraph 54: ‘. . . the majority of the panel concluded that there was no factor that would have caused anyone at the Respondent without in-depth training in autistic spectrum disorders to have reached such a conclusion. . ..’</li>  <li>ET paragraph 66: ‘. . . There is also evidence that Mr Balax really listened to or took in what the Claimant was telling him about his diagnosis. . ..’</li>  <li>ET paragraph 68: ‘. . . On the . . . balance of probabilities however the majority finds that they were not aware of his Asperger’s and nor would it have been reasonable to expect them to be.’</li> </ul>  For the Respondent, it was argued that the ET had reminded itself of the correct test as laid down in A Ltd v Zand had applied it when considering the Claimant’s behaviours and all the evidence that might assist in determining how matters might have appeared to the Respondent.  It was acknowledged that the wording of the ET’s reasoning went ‘a little further than it ought’ (an example being ET paragraph 54 as set out above) but this didn’t detract from the reasoned consideration given elsewhere which focused on knowledge of the factual features rather than knowledge of the disability itself.  Counsel for the Respondent contended that ‘it was of note that there was no evidence before the ET that went to knowledge of impact on day-to-day activities, or long-term nature, or of any impairment being more than merely transient’ (EAT paragraph 44).  It was argued for the Respondent that references to the Claimant’s diagnosis was plainly just a convenient shorthand.  Having noted that the ET had reminded itself of the correct legal test, the Honourable Mrs Justice Eady DBE (P) also noted that:  ‘49. ...Consistent with the legal test it was required to apply, the ET carried out a detailed assessment of all the evidence available to see what would (or should) have been known by the respondent about how the claimant might have been affected by his disability. That its analysis reached back to 2006, notwithstanding that the claimant had no diagnosis of his condition until 2018, supports the view that the ET understood that it was concerned with the respondent’s knowledge (actual of constructive) of the facts constituting the claimant’s disability rather than the particular label that was to be attached to that disability upon its eventual diagnosis’. [additional emphasis added].  Thus Mrs Justice Eady found it tempting to adopt the Respondent’s approach to the passages relied upon by the Claimant ‘. . . as effectively using the diagnosis of the claimant’s disability as a shorthand for a finding that the requisite constituent facts – the existence of a mental impairment, with a non-trivial and long-term impact on the claimant’s ability to carry out normal day-to-day tasks – were not, and could not reasonably have been, known to the respondent. . . . the scope of the enquiry was certainly consistent with a focus on the manifestation (is any) or an impairment . . .’ (EAT paragraph 54).  However, Mrs Justice Eady, went on to find that ‘. . . the reasoning at no stage expressly answers the specific questions the ET was required to determine; namely: whether the respondent had demonstrated that it did not know, and could not reasonably have known, that the claimant suffered a mental impairment, with a non-trivial and long-term impact on the claimant’s ability to carry out normal day-to-day tasks’ (EAT paragraph 55).  ‘the difficulty, however, is that the language used in the majority’s reasoning suggested that it reached that decision by imposing a requirement that the respondent had been put on notice that the claimant might have suffered from an autistic spectrum disorder. Contrary to the legal test it had earlier referenced, the ET majority’s reasoning at (for example) paragraphs 44 and 54 of the decision is focused on whether the respondent might reasonably have been put on notice of the particular medical diagnosis, rather than the question whether it might reasonably have been alerted to the need to make further enquiry about, more generally, the possible effects of some mental impairment.’ (EAT paragraph 59)  Accordingly, and notwithstanding the Respondent’s argument that this was just convenient shorthand, the EAT could not be satisfied, from the language used, that the ET in fact applied to the correct legal test.  However, as the ET had nevertheless gone on to consider the counterfactual; namely, what would have happened if the respondent had attempted to further investigate the cause of the Claimant’s behaviours and had found, on the evidence, that the Claimant would have resisted such attempts, (a finding against which there had been no challenge), the ET was entitled to find that the Respondent could not reasonably have been expected to have knowledge of the Claimant’s disability.  The Claimant’s appeal was therefore dismissed.  Suggested takeaways and practical considerations:  <ul> <li>This decision is, of course, fact sensitive concerning an employee whose interpersonal skills were not considered to fall short of what his employee expected and thus there was no need for it to attempt further investigations into his mental health. Nonetheless, employers need to be alert to the possibility of cases where an employee’s disability is not self-evident and may only become evident in certain situations or in relation to certain duties. Employers need also to be particularly alive to the possibility of cases where the employee themselves is not fully aware of their disability or perhaps may not consider themselves to be ‘disabled.’</li>  <li>The decision should not be read as meaning employers shouldn’t consider their employees behaviours and consider whether further investigations or referrals should be explored.</li>  <li>Whilst, in Godfrey the ET did not go on to consider further the reasons why the Respondent did not invite the Claimant to interview, they observed that its recruitment process was contrary to the Code of Practice and the lack of documented procedures and transparent competencies would likely lead some to believe that it is a protected characteristic which has led to their not being progressed and as such invite claims which may be challenging to defend.</li>  <li>These observations serve as a warning to ensure that recruitment processes, from advertisement to selection for interview, are transparent and clearly documented.</li> </ul>   <hr class="wp-block-separator has-alpha-channel-opacity"/>  <a href="#_ftnref1" id="_ftn1">[1]</a> UKEAT/0273/18/BA

At a glance: How will the general election impact employment law?

We now have the key party manifestos, with varying priority given to proposals on employment law reform and detail to prepare employers. Regardless of which party gains power from 4th July, there are likely to be plenty of changes to look out for.  Labour  Emphasising that it is time for change, in May 2024 the Labour Party published ‘Labour’s Plan to Make Work Pay: Delivering a New Deal for Working People’, promising new legislation within 100 days of entering government.<a href="#_ftn1" id="_ftnref1">[1]</a>  The most significant proposed reforms are:  <ul> <li>Extend the current time limit for raising a claim from three to six months for all claims</li>  <li>Ensure the minimum wage is a real living wage, removing age bands and ensuring the Single Enforcement Body and HMRC can enforce non-compliance</li>  <li>Strengthen statutory sick pay, removing the lower earnings limit</li>  <li>End “one-sided flexibility” by banning ‘zero-hour’ contracts, introducing rights to regular hours based on hours worked on a 12-week reference period</li>  <li>Ending ‘fire and rehire’ practices by reforming the law to provide effective remedies against abuse</li>  <li>Increase day 1 employment rights for all workers, including protection against unfair dismissal, parental leave and sick pay</li>  <li>Create a single status of a worker and a simpler two-part framework for employment status</li>  <li>Strengthen redundancy rights and protections and those for workers subject to TUPE processes</li>  <li>Strengthen protection for whistleblowers, including by updating protection for women who report sexual harassment at work</li>  <li>Strengthen rights and protections for self-employed people</li>  <li>Have a baseline set of family-friendly rights including flexible working and parental rights</li>  <li>Make it unlawful to dismiss a woman who is pregnant for six months after her return, except in specific circumstances</li>  <li>Review the new legislation for unpaid carers’ leave which was introduced in April 2024 and examine the benefits of introducing paid carers’ leave</li>  <li>Introduce the right to bereavement leave for all workers</li>  <li>Bring in the ‘right to switch off’ – following similar models for working from home as are in place in Ireland and Belgium</li>  <li>Regulate AI, introducing surveillance technologies at a minimum to consult with trade unions or elected staff representatives</li>  <li>Implement the ability of employees to lodge collective grievances through ACAS</li>  <li>Introduce Fair Pay Agreements and repeal many anti-strike laws.</li> </ul>  Conservatives  Devoid of a specific section for employment law in the Conservative Party Manifesto, there are a few relevant proposals for new areas of reform:<a href="#_ftn2" id="_ftnref2">[2]</a>  <ul> <li>A bid to protect female-only spaces and competitiveness in sport by changing the definition of ‘sex’ in The Equality Act 2010 to ‘biological sex’</li>  <li>Cut employees’ national insurance to 6% by April 2027</li>  <li>Limit the impact of industrial action by implementing Minimum Service Levels legislation</li>  <li>Overhaul the ‘fit note’ process by moving the responsibility from GPs towards specialist work and health professionals</li>  <li>Abolish national insurance for self-employed people entirely</li>  <li>Retain the two-year qualifying period for unfair dismissal</li>  <li>Reintroduce tribunal fees</li>  <li>Cap the duration of non-compete clauses in employment contracts</li>  <li>Implement the Workers (Predictable Terms and Conditions) Act 2023</li>  <li>Restrict transfer rights under TUPE to employees only.</li> </ul>  Liberal Democrats  In the Liberal Democrats Manifesto ‘For a Fair Deal’, they promise to modernise employment rights to make them fit for the age of the ‘gig economy’, including:<a href="#_ftn3" id="_ftnref3">[3]</a>  <ul> <li>Introduce ‘Adjustment Passports’ to record the adjustments, modifications and equipment disabled people have received, and ensure that Access to Work support and equipment stays with the person if they change job</li>  <li>Increase the minimum wage for people on zero-hour contracts by 20%</li>  <li>A right to request a fixed-hours contract after 12 months for ‘zero-hour’ and agency workers</li>  <li>Shift the burden of proof in employment tribunals regarding employment status from individual to employer</li>  <li>Establish a new ‘dependent contractor’ employment status in between employment and self-employment – with entitlement to basic rights like sick pay, holiday entitlement and minimum earnings levels</li>  <li>Make parental leave and pay, day-one rights</li>  <li>Introduce a new protected characteristic of ‘caring’ under the Equality Act</li>  <li>Require large employers to monitor and publish data on gender, ethnicity, disability, and LGBT+ employment levels, pay gaps and progression and publish five-year aspirational diversity targets</li>  <li>Extend the use of name-blind recruitment processes</li>  <li>Introduce SSP from day one</li>  <li>Remove the lower earnings limit</li> </ul>  to name a few…  Reform UK  Marketed as a ‘Contract’ rather than a party manifesto, Reform UK have set out their proposals for the first 100 days following the general election and thereafter.<a href="#_ftn4" id="_ftnref4">[4]</a> Despite various economic and benefits reforms, there are very few notable employment law proposals and each is broad and lacking in detail:  <ul> <li>Replace the Equality Act 2010</li>  <li>Scrap EU Regulations</li>  <li>Scrap thousands of laws that hold back British business and damage productivity, including employment laws that make it riskier to hire people</li>  <li>Abolish IR35.</li> </ul>  Green Party  In a pledge for ‘Real Hope. Real Change’, the Green Party have pledged a number of significant employment reforms:<a href="#_ftn5" id="_ftnref5">[5]</a>  <ul> <li>Pay-gap protections to be extended to all protected characteristics</li>  <li>Repeal “anti-union” legislation and replace it with a Charter of Workers’ Rights – including a legal obligation for employers to recognise trade unions</li>  <li>£15 per hour national minimum wage for all ages, offsetting costs to small businesses by increasing the Employment Allowance to £10,000</li>  <li>Four-day working week</li>  <li>Day one rights for all – including those on ‘zero-hour’ contracts and working in the ‘gig economy’</li>  <li>Fund the enforcement of rights</li>  <li>Maximum 10:1 pay ratios for all private and public-sector organisations</li>  <li>Equal pay audits for all large and medium-sized companies</li>  <li>Campaign for safe sick pay.</li> </ul>  Although details of the practicality of proposals are absent from the manifestos at this stage, we now have a flavour of what the future of employment law could look like. Current polls suggest Labour will form our new government. Labour’s proposals set out an ambitious agenda to implement significant change at great speed. If Labour manages to achieve its objectives, particularly with respect to the extension of time limits to present a claim and the introduction of day-one rights, this is likely to place even greater pressure on the Employment Tribunal backlog. Whether this is matched by funding for the tribunal system remains to be seen…  <hr class="wp-block-separator has-alpha-channel-opacity"/>  <a href="#_ftnref1" id="_ftn1">[1]</a> <a href="https://labour.org.uk/updates/stories/a-new-deal-for-working-people/#:~:text=Labour's%20plan%20to%20make%20work%20pay%20will%20ensure%20more%20people,resilience%20and%20conditions%20for%20innovation">Labour Party Employment Law Plan</a>  <a href="#_ftnref2" id="_ftn2">[2]</a> <a href="file:///Users/isabellabrunton/Documents/PLP/Conservative%20Party%20Manifesto">Conservative Party Manifesto</a>  <a href="#_ftnref3" id="_ftn3">[3]</a> <a href="file:///Users/isabellabrunton/Documents/PLP/Liberal%20Democrats%20Manifesto">Liberal Democrats Manifesto</a>  <a href="#_ftnref4" id="_ftn4">[4]</a><a href="file:///Users/isabellabrunton/Documents/PLP/Reform's%20'Contract%20with%20you'">Reform's 'Contract with you'</a>  <a href="#_ftnref5" id="_ftn5">[5]</a> <a href="file:///Users/isabellabrunton/Documents/PLP/Green%20Party%20Manifesto">Green Party Manifesto</a>

Latest News

News

7 July 2025

Avaia Williams – Denying Pupil Barrister Entry

Read time: < 1 m

Legal Update

7 July 2025

Leila Benyounes – £1.5 million Settlement in Delay in Diagnosis of Breast Cancer

Read time: < 1 m

Legal Update

2 July 2025

Thompson’s Application for Judicial Review: Considering when a coroner becomes functus officio and when to reconsider anonymity orders

Read time: 5 m

Legal Update

1 July 2025

HQA v Newcastle-upon-Tyne Hospitals NHS Foundation Trust

Read time: 2 m

Cookie	Duration	Description
cookielawinfo-checkbox-analytics	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Analytics".
cookielawinfo-checkbox-functional	11 months	The cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional".
cookielawinfo-checkbox-necessary	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookies is used to store the user consent for the cookies in the category "Necessary".
cookielawinfo-checkbox-others	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Other.
cookielawinfo-checkbox-performance	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Performance".
viewed_cookie_policy	11 months	The cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. It does not store any personal data.

Your Shortlist (0)

Our Expertise

Parklane Plowden Chambers Appoints Senior Practice Director

Pupil Isabella Brunton shares her experience of her first week ‘on her feet’

Parklane Plowden Chambers ranked as a Band One barristers’ set across five practice areas in the Chambers &amp; Partners 2025 rankings

Isabella Brunton starts her second six and accepts instructions

Parklane Plowden Chambers ranked as a Top Tier barristers’ set across five practice areas in the Legal 500 2025 rankings

Mind the Gaps: EAT Clarifies Constraints in Demonstrating a Continuing Course of Discriminatory Conduct

Bryony Clayton Appointed Fee-Paid Judge of the First-Tier Tribunal

Fire and Rehire: The Current Law

Constructive knowledge of Neurodiversity – a reminder of the correct test to be applied

At a glance: How will the general election impact employment law?

Latest News

Avaia Williams – Denying Pupil Barrister Entry

Leila Benyounes – £1.5 million Settlement in Delay in Diagnosis of Breast Cancer

Thompson’s Application for Judicial Review: Considering when a coroner becomes functus officio and when to reconsider anonymity orders

HQA v Newcastle-upon-Tyne Hospitals NHS Foundation Trust

Parklane Plowden Chambers ranked as a Band One barristers’ set across five practice areas in the Chambers & Partners 2025 rankings