Employment Law Bulletin March 2013


The latest figures from the Office for National Statistics show that we are working longer retiring later. This may not come as much of a surprise to employers, or indeed many employees.

 One significant aspect of this latest ONS report on the labour market and retirement is the distinction it highlights between the roles of men and women in later life.

 Around two thirds of men who have passed their statutory pension age are said to be employed in high-skilled jobs; they are managers, directors, senior officials. Around the same proportion of women are estimated to be working in lower-skilled jobs like cleaning and administration.

 It will be interesting to see whether this disparity will reduce over time as we all end up working longer.



Post-employment Whistleblowing

Onyango v Berkeley Solicitors

Mr Onyango made a protected disclosure (a.k.a. a whistleblowing disclosure’) after leaving his job at a firm of solicitors. When he was then investigated by the Solicitors Regulation Authority following allegations of forgery and dishonesty, he claimed that the allegations had been made because of his protected disclosure.

 The employment tribunal held that because he had made the disclosure after his employment had ended, and not during it, he was not covered by whistleblowing laws and his claim could not be heard.

 The Employment Appeal Tribunal (EAT) overturned that decision. Whistleblowing protection is not limited to disclosures made during the relevant employment, the EAT said. So tribunals can hear claims that relate to alleged detriments suffered because of protected disclosures made after employment ends.



Government Takes Another Look at Bill

As the Enterprise and Regulatory Reform Bill continues to travel through Parliament, the Government is reshaping some of the provisions.

 Unfair dismissal qualifying period

The unfair dismissal qualifying period has been amended to reflect the European Court of Human Rights’ decision in Redfearn v UK. Where the principal reason for dismissal is, or relates to, the employee’s political opinions or affiliation, the two-year qualifying period will not apply.

Protected disclosures

The government has removed the requirement for a disclosure to be made in ‘good faith’ in order to attract whistleblowing protected, although compensation can be reduced by up to a quarter if the disclosure is in bad faith.

Whistleblowing protection

An employer will become vicariously liable for a detriment caused by one worker to another who had made a protected disclosure. But employers who have taken all reasonable steps to prevent the detriment would have a defence.

Ability to pay

The Bill now says that where tribunals impose financial penalties on employers they must have regard to an employer’s ability to pay.



Enhanced Redundancy for Older Workers

Lockwood v DWP

Ms Lockwood took voluntary redundancy from her administrator’s role at the Department for Work and Pensions.

She received £10,900 after nearly 8 years’ service. She was 26. Had she been over 35 with the same level of service she would have received £17,700 more. This, she claimed, was discriminatory.

The tribunal found against her. On appeal, the DWP argued that it was not right to compare Ms Lockwood’s age group with over 35s. Older workers find it more difficult to get a new job, and the enhanced redundancy terms reflected this.

The Employment Appeal Tribunal accepted that argument. It held that even if it were right to compare the two age groups and if Ms Lockwood had been treated less favourably, the treatment was objectively justified. The DWP was giving older workers a financial cushion and it was in the public interest to do so. The enhanced voluntary redundancy pay for that age group was a proportionate means of achieving a legitimate aim.

 This case serves as a useful reminder of the importance of objective justification in age discrimination claims.



Discrimination Guidance

While the decision in Eweida & Others did much to clarify religion and belief discrimination, it was felt in some quarters that some official guidance on religion and belief in the workplace was required.

The Equality & Human Rights Commission has now provided such guidance, which is available here.

The guidance is well worth a look and of course we are always happy to address any queries you may have.




Judicial Proceedings Immunity 

Singh v Reading Borough Council

Ms Singh was a head teacher employed by the Council. While still working at her school, she brought a claim alleging that parents, staff and governors had pursued a campaign of race discrimination, harassment and victimisation against her.

In the lead-up to the tribunal hearing, the Council served a witness statement from the Clerk to the Governing Body. This sparked a new element to Ms Singh’s claim; she believed that the statement contained lies and that improper pressure had been put on the Clerk to make it. This was all part of the race discrimination campaign, she argued, and was the last straw. Ms Singh resigned and added constructive dismissal to her claim.

The question for the Employment Appeal Tribunal (EAT) was whether or not documents produced while preparing a case for hearing are protected by judicial proceedings immunity. If the Clerk’s witness statement were privileged then Ms Singh could not use it in support of her constructive dismissal claim.

The EAT held that immunity applied. This protects not only witnesses who are giving evidence, but also the parties preparing their case, the EAT said. So even if undue pressure is put on a witness to produce a statement, or to give false evidence, that action cannot be used to found another claim.


Question Mark Over Representative’s Capacity

Drysdale v Department of Transport

Mr Drysdale was represented by his wife at his two-day unfair dismissal hearing.

 During the second day it became clear that more time was needed. When Mrs Drysdale discovered that it would be four months before the case would be listed again, she became upset. She said that she wanted to withdraw the claim, which she confirmed when asked by the judge.

The case was dismissed and an order for costs made against Mr Drysdale. He later appealed, arguing that his wife did not have capacity to withdraw his claim. The tribunal, he said, should have checked that Mrs Drysdale was in a good state of health and was authorised to withdraw the claim. He also argued that he should have been given the chance to make submissions before the tribunal made a costs order.

The Employment Appeal Tribunal dismissed the appeal. There was no duty to enquire into Mrs Drysdale’s health or into her authority. There didn’t need to be a written application to withdraw the claim. And on the question of costs, as Mr and Mrs Drysdale had chosen to leave the hearing while the application for costs was being made, the tribunal did not have a duty to give them a further opportunity to put their points across.


And Finally…

Heafield v Times Newspapers

It’s not often that we’re forced to reduce expletives to black and white. But this case report just wouldn’t be the same without it.

Mr Heafield was a sub-editor at the Times. He was also a practising Roman Catholic, although his colleagues didn’t know this. In 2010 the paper was running stories about alleged child abuse in the Catholic Church. It seemed that things were getting pretty tense in the newsroom. A print deadline loomed and Mr Heafield’s manager, chasing a delayed article (known to those in the newsroom as “the Pope”), shouted, “What’s happened to the f***** Pope?”.

 Three days later, Mr Heafield complained that he was offended by the comment. He resigned and brought various claims including harassment against the Times based on the comment.

 The tribunal held that the conduct was unwanted, but it was unreasonable of Mr Heafield to have experienced the environment as adverse. The comment had not been made in order to violate Mr Heafield’s dignity, nor to create a hostile or offensive environment. In the context of the newsroom environment at that time, it was ‘trivial or transitory’. The manager was asking where the story was and, under pressure, he swore. It was unreasonable to interpret this as insulting a religion.

 The decision was upheld on appeal.