What happens if an employment relationship ends within the initial 6 week ‘honeymoon period’?

You know when something is so awful, it’s good? Well, that describes my relationship with the Channel 4 show Married at First Sight at the moment. I know it’s car crash TV and edited to within an inch of its life (with cheesy dramatic music at regular intervals) but I can’t seem to stop watching it.

Put simply, Married at First Sight is a ‘dating’ show where six individuals are married to a stranger who they literally meet for the first time at the altar. They don’t know their future spouse’s full name or even see a picture of them beforehand. This means they must buy the dress/suit and ring on their own and then meet their partner for the first time in front of their family and friends at the altar with the accompanying vicar. Each couple are then given 6 weeks (with the TV crew continuing to trail them at every turn) to have the wedding party, go on honeymoon, rent a house together and see if their lives can fit together. At the end of that ridiculously short period, they then decide whether to stay married or seek a divorce. Cue romance, tears, fights and one woman with a fear of dogs freaking out at having to live with her new husband’s two hyperactive dogs…

Why am I talking about this? Well, it happens to be a useful link to a regular employment law issue – namely, what happens if an employee/employer ‘divorces’ (i.e. leaves) the other within the 6 week ‘honeymoon’ (or not-so-honeymoon) period.


Voluntary overtime included within holiday pay: freely given time isn’t free!

The Employment Appeal Tribunal (EAT), the Tribunal which hears appeals from the regular Employment Tribunal, has recently confirmed that regular payments for overtime incurred voluntarily by employees should be taken into account when calculating an employee’s allowance of 20 days of holiday pay (this is the statutory minimum amount of holiday leave outside of the 8 days usually allowed for bank holidays). This was in a case called Dudley Metropolitan Borough Council v Willetts.


This follows the well-publicised case of Bear Scotland v Fulton in 2014 which stated that overtime should be factored into holiday pay calculations (mainly by averaging payments over a defined period of time  and ‘bumping up’ employee’s holiday pay accordingly).


However, there have been arguments that there should be a distinction between mandatory overtime and voluntary overtime. Just for clarity, when I say ‘voluntary’ overtime, I mean overtime that an employee isn’t contractually obliged to perform (i.e. I don’t mean unpaid overtime).  You can see both sides on this one – from one point of view, employees have no choice but to accept mandatory overtime and therefore only that should increase holiday pay amounts, whereas on the other hand, employees will still be working overtime whether voluntary or mandatory and shouldn’t they therefore be rewarded for their voluntary act?


On this occasion, the EAT has come down on the side of employees and concluded that, as long as the voluntary overtime is ‘regular’ enough, it should be used within holiday pay calculations.  This is because ‘regular’ payments will constitute ‘normal pay’ for the purposes of holiday pay calculations.  Naturally, the phrases in quotation marks are still prone to argument and a lot depends on the individual facts.


So, what does this mean going forward for employees?  Well, it suggests that employees on a voluntary rota (or similar) who are called to work voluntary overtime are entitled to an increase in their holiday pay in respect of that voluntary overtime.


Let’s take the case of six employees: Monica, Rachel, Phoebe, Joey, Ross and Chandler (yes, as you probably suspected, this is the cast of FRIENDS).


The end of employment tribunal fees

In a surprise judgment handed down on 26 July the Supreme Court unanimously decided that charging claimants to bring employment tribunal claims was unlawful and the fees scheme (introduced in 2013) was quashed. The Government promptly acknowledged that it accepted the judgment and wasted no time in confirming that the fees have been scrapped. The Law Society Gazette described the judgment as a humiliation for the Government.

Commentators have described the judgment as being constitutionally significant, since it addresses the question of what is meant by “access to justice”. As such its ramifications could extend well beyond the relatively narrow issue of employment tribunal fees. In his lead judgment (which distinguished legal commentator Joshua Rozenberg described as “terrific”) Lord Reed began by recognising that relationships between employers and employees are “generally characterised by an imbalance of economic power”. He noted that tribunals “are designed to deal with issues which are often of modest financial value, or of no financial value at all, but are nonetheless of social importance”.

In 2011, the Government proposed the introduction of fees on the basis that (1) this would transfer some of the cost of the system from the general taxpayer to its users, (2) it could encourage early settlements and (3) that it would help to weed out weak and vexatious claims.

What happened following their introduction was “a dramatic and persistent fall in the number of claims brought in ETs…of the order of 66-70%”.

Lord Reed first considered whether the fees order was unlawful under English law. At paragraphs 66 to 85 of the judgment, headed “The constitutional right of access to the courts” he sets out a compelling analysis of what is meant by the rule of law and how it is inextricably linked with access to justice. He is concerned that these concepts may have become lost in favour of an ideological view that “…the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the “users” who appear before them, and that the provision of those services is of value only to the users themselves and to those who are remunerated for their participation in the proceedings”. His response is firm and clear:


“Overpromoted” practice manager constructively dismissed following bullying by “brusque and blunt” doctor

As I have pointed out over many years. pursuing a claim for constructive unfair dismissal can be a risky course of action because, for the former employee, it brings with it the added burden of having to demonstrate that the employer’s conduct was so unsatisfactory that it established a fundamental breach of a term of the contract of employment, sufficient for the employee to be entitled to treat the breach as operating to terminate the contract. If there is no fundamental breach then there has been no dismissal, hence, there can be no unfair dismissal.

In the case of Williams v Meddygfa Rhydbach Surgery and Doctors Morris, Haque and Smits, Mrs Williams was the practice manager of a rural surgery operated in partnership by the named doctors. She had commenced work in September 1986 as a receptionist and in 1996 was promoted to practice manager at the Botwnog Pwllheli Surgery. According to the judgment, from 2014 the practice found itself in “challenging circumstances”, both financially and in terms of “difficult interpersonal relationships” between admin and clerical staff on one side and the partners on the other. Numerous complaints were raised and ten members of staff identified Dr Smits’ manner as causing distress. He was described as being “direct, brusque and blunt in his manner”. he was also described as “aggressive” and “irascible”. Employment Judge Ryan found that his management style was “at least robust and was often overbearing and, to the Claimant at least, intimidating”. Accordingly, he found that Mrs Williams’ perception that Dr Smits bullied, harassed and intimidated her was “genuine and reasonable”.

The partners had a generally low opinion of Mrs Wiliams. They thought that she was perhaps promoted beyond her ability and that she was in effect working “at the level of a glorified receptionist”. She was not pro-active or enthusiastic as a manager and she had caused concern when she overpaid a caretaker £12,000.

In June 2014 she was called into a meeting during which her performance was criticised. She was surprised and upset and was told that she was to be subjected to performance management. However, she was not offered training or professional management guidance. She was not set targets or issued with any explicit warnings.

In late 2014 Mrs Williams asked whether she could be made redundant. Her request was refused because the partners were concerned that they might not be able to find a replacement.

A practice manager, Deborah Kalaji, was brought in to conduct a “root and branch review of the practice concentrating on managerial improvement”. By this stage Dr Smits acknowledged that Mrs Williams might claim constructive dismissal.


TUPE and “pre-pack” administrations

So-called “pre-pack” (or back to back) administrations are controversial because they often leave behind them a trail of destruction as far as creditors, and particularly unsecured creditors, are concerned.

They typically arise in situations where a company is in serious financial (generally cash flow) difficulties and provide a way for the business to survive, albeit (or at least it should be the case) in the hands of different owners. they are often used for management buy-outs.

Although such arrangements tend to favour secured lenders such as banks, the same cannot be said for unsecured (e.g. trade) creditors, who can often be left with a measly dividend of as little as 2 or 3p in the £. They are therefore often seen as unfair but, in fact and as long as the procedure is not grossly exploited, they are consistent with the Cork Report of 1982 which did much to shape modern insolvency law and practice and which has at its heart the promotion of a “rescue culture”.

But what about the employees? Does TUPE come to the rescue? For years, there was uncertainty, as the result of a number of conflicting judgments. In 2012 the Court of Appeal, in Key2Law (Surrey) LLP v De’Antiquis (Key2) held that the exemption from TUPE that can arise in other insolvencies (such as liquidations) does not apply to administrations because their objective (even if it is in the short term) is to secure the survival of the business as a going concern. Consequently, all employees will transfer to the buyer in the usual manner (although there is some relaxation of the rules taking into account the insolvency, such as limited contract variations).

The Court of Justice of the European Union has now weighed in on the matter in its decision (on a referral from the Netherlands) in the case of Federatie Nederlandse Vakvereniging and others v Smallsteps BV.


European Court of Justice gives OPINION on unpaid and untaken holidays

Does a worker’s holiday entitlement continue to accrue into successive years if they do not take their annual leave because their employer will not pay them for these holidays?

The Advocate General at the European Court of Justice (ECJ) has answered ‘yes’ to this question, in a non-binding opinion.

In the case of King v The Sash Window Workshop Ltd, the Claimant, Mr King (who was a self-employed salesperson), brought an Employment Tribunal (ET) claim against the Respondent, The Sash Window Workshop, on the basis that he felt he was owed monies for annual leave that he had accrued, but not taken.  In addition, the Claimant sought compensation for annual leave that he had taken, but not been paid for during the 13 years he had been working for the Respondent – his claim for holiday pay therefore amounted to over £27,000.00.  It is of note that the contract under which Mr King was employed, provided no right to paid annual leave and that this contract was terminated in 2012, on his 65th birthday.  The Claimant also submitted a claim for age discrimination.

The claim was initially heard by the ET in August 2013.  It was ruled at first instance that Mr King was to be deemed a worker for the purposes of the Working Time Regulations 1998, and also that his discrimination claim was well founded.

The Respondent subsequently appealed against the decision of the ET in respect of the holiday pay aspect of the claim, the Employment Appeal Tribunal (EAT) allowing the appeal and remitting the holiday claim back to the ET.  Mr King then submitted an appeal to the Court of Appeal who referred the case to the European Court of Justice (ECJ).

ECJ Advocate General Evgeni Tanchev, stated that employers had to provide “adequate facilities to workers” to enable them to take their paid annual leave.  Tanchev further stated:

“A worker, like Mr King, may rely on [EU law] to secure payment in lieu of untaken leave, when no facility has been made available by the employer, for exercise of the right to paid annual leave … Upon termination of the employment relationship a worker is entitled to an allowance in lieu of paid annual leave that has not been taken up.

“I appreciate that the answers to the questions referred I am here proposing would require employers rather than workers to take all the necessary steps to ascertain whether they are bound to create an adequate facility for the exercise of the right to paid annual leave, whether those steps be the taking of legal advice, consultation with relevant unions or seeking counsel from Member State bodies that are responsible for the enforcement of labour law.

“If an employer does not take such action, it will risk having to make a payment in lieu of unpaid leave on termination of the employment relationship. However, this would be in keeping with guaranteeing the effet utile of the right to paid annual leave, a fundamental right of substantive normative weight in Member State law, EU law, and international law, and would also be consistent with the practical reality, recognised in the Court’s case-law, of the worker’s position as the weaker party in the relationship.”


Do employees have to disclose their intention to compete?

In the case of MPT Group Ltd v Peel and others [2017] EWHC 1222 (Ch), the High Court was asked to decide whether employees were under a duty to disclose their intention to compete to their employer.

The facts of the case were that Mr Peel and Mr Birtwistle were employed by MPT Group Ltd (a company that produces and supplies machinery, parts and equipment to the mattress industry) in management positions.  The employees resigned from their positions on the same date, Mr Peel giving the reason for his resignation as wanting to work from home and spend more time with his family, and Mr Birtwistle advising he had been offered a position doing ‘panel wiring’.  They denied that they were leaving to form a partnership/start up their own business in competition with MPT.

Both Peel and Birtwistle were subject to extensive confidentiality clauses and restrictive covenants within their contracts of employment, to the extent that they were prohibited from soliciting or even dealing with customers with whom they had personal contact, for six months.

After the relevant period had expired however, Peel and Birtwistle incorporated MattressTek Ltd, a company that was in direct competition with MPT, and began selling complex mattress machines.  It further transpired that prior to leaving MPT, both men had copied a large amount of company data which included client and supplier databases, price and discount lists, sales quotations and orders, machinery drawings and manuals, and other documentation crucial to MPT’s business.

MPT sought an injunction against the men based on the misuse of confidential information, breach of restrictive covenants, and also upon a breach of the duty to answer questions truthfully.  In particular they sought an interim injunction prohibiting Peel, Birtwistle and MattressTek from soliciting, dealing or contracting with MPT’s customer and suppliers, and an unlimited injunction preventing them from disclosing or using MPT’s confidential information.


Providing information about sickness absence in a reference ruled as discriminatory

Mr Paul Mefful began working as a volunteer at Southwark CAB in 2000. In 2003 he was employed as a general adviser and in 2004 he was promoted to senior adviser at Merton and Lambeth CAB following a competitive selection process. In May 2004 he became a specialist services manager. In (what was then) a Legal Services Commission audit report in 2006 the LSC contract with the CAB, for which Mr Mefful was responsible, was found to be “outstanding in quality and performance”.

He was absent from work from November 2009 to January 2010 due to grief and a stress reaction after he and his partner lost a baby. In 2012 he suffered severe and constant shoulder pain as well as total hearing loss in one ear, tinnitus and vertigo. An employment tribunal determined that these conditions meant that he was suffering from a disability within the meaning set out in the Equality Act 2010. He took 63 days off work between April and July 2012. In August of the same year he was made redundant.

Mr Mefful brought claims of unfair dismissal (upheld) and disability discrimination (continuing) but the judgment I am reporting here concerns separate proceedings relating to the provision of a reference by the CAB to a prospective employer. At the time the CAB had guidance concerning the provision of a reference which included the following:
“Any reference provided by the Bureau for an employee should be well researched and avoid unfounded opinions. If negative, it should not refer to matters not previously raised directly with the employee. If asked to speculate on suitability, it should be cautious and where necessary use a disclaimer. It should aim to offer a balanced view without being too glowing or too damning unless wholly merited.”
In May 2015 Mr Mefful applied for the post of Welfare Benefits Advisor at One Housing Group Limited. He was interviewed on 3 June and offered the post on 4 June, subject to a satisfactory reference. He was contacted by One Housing on 12 June because they wanted him to commence employment as soon as possible. At the time Mr Mefful was engaged in his separate employment tribunal claim and it turned out that the provision of the reference had been stalled because, in the words of Ms Harris, a former Chair of Trustees and a member of the strategy group, in an email sent to a colleague on 26 June, she described the reference application as being “very problematic”. She noted that “…the way that he has conducted himself in the [unfair dismissal and disability discrimination] litigation has been totally dishonest”.

Although denied by each of them when giving evidence, the tribunal found that Ms Harris and Ms James, CEO of the CAB, had consulted in detail about the reference. It was eventually completed by Ms James on 29 June. Sickness absences had been filled out in the form. In answer to a question about whether the CAB would re-employ Mr Mefful, the answer given was “no”.


Unfair dismissal resulting from demotion to do “officey things”

Zena Dickenson worked for 21 years at Easington Lane Primary School. From 2009 she was employed as the School Business Manager. She was responsible for a £1.2 million budget and she had 15 employees reporting directly to her.

In 2015 it became apparent that there would be an overspend and reduced income for reasons including shortfalls in the ‘pupil premium’ income and income from ‘early years’. She was approached by a clerk/receptionist, Kellie Todd, who wanted to know what her prospects were. Mrs Dickenson said that she could not be guaranteed additional hours in the future and there was a possibility that there would be redundancies. Ms Todd reported to a senior teacher, Hannah Wardle, that she was upset as a result of the conversation with Mrs Dickenson. Hannah Wardle in turn reported the matter to head teacher, Sarah Nordstrom, who commenced an investigation. The school’s HR adviser, Paula Barclay, interviewed Hannah Wardle, Kellie Todd and others and prepared draft witness statements for them. She advised Sarah Nordstrom as follows:
“I would start with

“There are some rumours in the school that there is going to be redundancies next year – what you know about this? and let her speak.

“If her response is she doesn’t know anything about it probe a little by asking if she denies having any conversations with colleagues about redundancy, reducing hours etc.

“Then ask her how this risk has not been brought to your attention and why it has not been reported on in the recent Finance meetings.

“If you believe the explanation about the budget stacks up you may choose not to suspend her. However, I think we both agree that she has stepped outside of her remit as Business Manager and SMT in divulging this information to colleagues. Therefore you can tell her you have concerns about this and an investigation will take place but you could do this with her still at work. However, unless she comes up with some plausible explanation which eliminate your concerns about funds the prudent approach would be to suspend her to allow a full and fair investigation to take place.

“Explain to her that this is not disciplinary action and that she will be paid while she is off. She will receive a letter confirming the position and she should not speak to anyone about this.”
Mrs Dickenson was duly suspended on 9 December 2015 to investigate allegations that she had a discussion with a colleague about the risk of redundancies when this had not been discussed by the senior leadership team and that, despite having the discussion she had not raised financial concerns with the senior leadership team. After a couple of false starts a disciplinary hearing took place on 26 February 2016. It was agreed that her suspension would be lifted. On attending work the following Monday she found that her security pass had been disabled. She was told not to go into the office but to wait in reception. The head teacher informed her that a performance improvement plan was to be put in place. She would no longer have any line management responsibilities and she would have to work in the main office at reception updating the school’s database until the plan was put in place.

Mrs Dickenson became distressed and said that she would like to be considered for redundancy. She was taken home and remained off sick until she resigned.

In the meantime Paula Barclay sent her two letters, one asking her to attend a formal absence review meeting and the other asking her to attend a protected conversation meeting. Mrs Dickenson did not attend the meetings. However there were negotiations via her union rep which led to a proposed termination date and settlement figure. After obtaining legal advice a revised offer was made on her behalf which the employer was not prepared to meet.

On 26 April she wrote and submitted a letter of resignation, providing the requisite three months’ notice. She set out various grounds on which she considered that both she and her position had been undermined. In particular she noted that Mr Trotter, the deputy head and occasional acting head, had effectively demoted her to the position of receptionist and that she had been told by him to do “officey things”.


Deliveroo makes changes to contracts for UK Couriers

Following on from my colleague Martin Malone’s article back in March, takeaway delivery Company Deliveroo have now removed the clause in their self-employed courier’s contracts (or ‘supplier agreements’), which stated that the couriers would not be permitted to challenge their self-employed status at an Employment Tribunal.

New contracts (which are now just four pages long) have been distributed to the couriers,  and confirm that they can work for other businesses and no longer need to provide two weeks’ notice to terminate their contract with Deliveroo.

Dan Warne, Deliveroo UK MD, provided the couriers with a letter by way of further explanation, which stated the following:

“We know that many riders work with other companies as well as Deliveroo, including our competitors. That is fine with us: as an independent contractor you are free to work with whoever you choose and wear whatever kit you want.

“There continues to be no requirement to wear Deliveroo branded kit while you work with us, but please make sure that whatever you wear while riding means that you are safe and visible to other road users.

“This new simple supplier agreement for riders makes it easier than ever to work with Deliveroo. It makes clear that our riders are able to log in to work with us whenever they want – allowing them to fit their work around their life rather than their life around their work.”

The changes have been made following criticism from the House of Commons Work and Pensions Committee, who advised that companies such as Deliveroo, Amazon and Uber, deprived workers of their rights with the wording of the contracts previously utilised.

The distribution of the new contracts also came less than a day after the leak of Labour’s draft manifesto, which contained a proposal for the ‘gig economy’ to assume workers are employees unless proven to the contrary.