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June 2016 Review
Welcome to our June newsletter

This month we have reports from Katharine Kelly concerning the likely impact of Brexit on employment law and whether employees can claim injury to feelings resulting from a breach of the Working Time Regulations.

Susan Stafford deals with different aspects of the termination of employment by considering whether the privilege that covers "protected conversations" can be waived and whether a constructive dismissal claim can succeed even if exit discussions are ongoing. That case concerns Leeds United FC who have been no strangers to employment claims in recent months, as reported in previous newsletters,

No-one could realistically claim that it has been a quiet month in politics! Although it is too early to have a clear view about what Brexit is likely to bring to employment law, Katharine Kelly's article helpfully points out that the changes are unlikely to be as dramatic as might have been thought. Potentially more significant for employment law is the Conservative leadership contest. Andrea Leadsom has been widely reported as saying that she would like to aboish all employment rights for micro businesses, including unfair dismissal, protection from discrimination and maternity rights. She has also made clear her determination to "wage war on political correctness". She is likely to be strongly supported by constituency associations so it is to be hoped that she does not turn out to be, as one Conservative MP has described her "Sarah Palin without the brains"! We will see. Kind regards,
Martin Malone
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May 2016

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This month's news
What are the likely implications of Brexit on UK Employment Law/HR practices?
by Katharine Kelly
Employers may not be aware that much of the current legislation in place to protect employee rights actually derives from the European Union - for example, working time regulations, rights of the employees on a business transfer (TUPE) and family leave rights to name but a few. Indeed some Politicians for the 'Leave Campaign' will no doubt have argued that such laws were inhibitive to British businesses and produced too many rules and regulations having a negative effect on both time and profits.

What is likely to happen?

In reality it is doubtful that the UK Government would look to repeal any employment law which implements minimum EU requirements, the reason being that many of these laws simply complement existing UK law (equal pay rights for example). In addition, much of our existing employment law simply reflects good/acceptable practice in business (or indeed life generally!) such as the right not to be discriminated against on the grounds of sex, age, disability etc. Furthermore some UK Laws actually go above and beyond the minimum requirements of EU legislation - in respect of holidays for example, the EU Working Time Directive 2003/88/EC only requires EU Member States to provide for a minimum of 20 days' annual leave for employees, whilst the UK statutory minimum leave entitlement is actually 28 days inclusive of normal bank and public holidays.

As a final point it is worth noting that despite a (potential) Brexit, the UK will still need to maintain strong trading relations with Europe. If the UK is a member of the EEA (European Economic Area) it would be required to remain subject to many aspects of EU employment law.

In light of the above, whilst in my view the majority of employment law legislation will not be repealed or significantly changed, the UK Government may look to alter some employment law that UK businesses have struggled with. The following are areas that may be most susceptible to change:


Sleeping employees
Can workers claim injury to feelings for a breach of the Working Time Regulations 1998?
by Katharine Kelly
This question was recently considered by The Employment Appeal Tribunal (EAT) in the case of Santos Gomes v Higher Level Care Ltd UKEAT/0017/16.

The Facts

The Claimant, Miss Santos Gomes was successful in proving that her employer, Higher Level Care Ltd, had failed in their duty to provide her with 20 minute rest breaks as required by the Working Time Regulations 1998 (WTR). or this element of the claim she was awarded compensation for her financial loss in the amount of £1,220. The Employment Tribunal however refused to entertain a further compensation claim for injury to feelings.

The Claimant brought an appeal to the EAT on the basis that Regulation 30(4) did not prevent an award for injury to feelings being made, compensation for injury to feelings was not restricted to discrimination laws, and the WTR did not provide an adequate remedy for this as is required by EU Law.

The Law

Regulation 12 of the WTR states that a worker is entitled to a minimum rest break of 20 minutes when working for more than 6 hours per day. Subsequently a worker is permitted to bring a complaint against their employer for a breach of these entitlements. When in such occasions an ET finds in favour of the Claimant, a declaration must be made in this regard and an award of compensation can be made.

The WTR state only that any compensation awarded should be what the ET considers to be 'just and equitable' taking into account all of the circumstances and the employers default in refusing to allow the worker to exercise their right (Reg 30(4)(a)) and any subsequent loss sustained by that worker attributable to the matters complained of (Reg 30(4)(b)). Whilst compensation for injury to feelings is available in some types of employment law claims (mostly for discrimination), you cannot claim such compensation for breach of contract or indeed unfair dismissal claims.

The decision of the Employment Appeal Tribunal:


Can the privilege that covers protected conversations under section 111A ERA be waived?
by Susan Stafford
No, held the Employment Appeal Tribunal in Faithorn Farrell Timms LLP v Bailey, giving the first appellate judgment on protected conversations.

Protected conversations are a mechanism whereby employers can enter into discussions concerning the proposed termination of an employee's employment where there is no existing 'dispute' (i.e. that there are no ongoing formal disciplinary/capability issues). The pre-termination conversations and terms of settlement are protected in so far as they cannot be used as evidence in any subsequent employment tribunal claim for unfair dismissal. Protected conversations which are covered by section 111A of the ERA 1999 were implemented in July 2013 and have sought to bridge the gap to allow employees to enter into conversations with a view to agreeing the exit of an employee where there is no previous dispute. It is of course common ground that employers have always been able to rely upon without prejudice "privileged" communications, however this will only apply in the event of a genuine attempt to resolve an existing dispute. The aforementioned case demonstrates the difficulties an employer may encounter when there is an overlap between the without prejudice and section 111A rules.

The Claimant complained of constructive unfair dismissal and indirect sex discrimination in part as a result of the discussions she had initiated for the agreed termination of her employment. She referred to the protected conversation in both her grievance and ET1 (claim form) as did the Respondent when providing a response. It was not until the preparation of the full merits hearing that the Respondent sought to challenge the admissibility of evidence under both section 111A ERA and the without prejudice rules. The Tribunal ruled that the material in question was generally admissible, subject to redaction of specific references to any offer.

The Respondent appealed and the Claimant cross appealed on the basis that the Tribunal had failed to deal with the Claimant's contentions that the Respondent could not rely on the without privilege or section 111A material given its improper behaviour and had ruled that in any event the parties had waived their privilege.

The Employment Appeal Tribunal (EAT) drew a distinction between the without prejudice rules and section 111A and noted most importantly that common law without prejudice rules will only apply when there is a dispute between the parties.


Nigel Gibbs
Exit discussions are no bar to a constructive dismissal claim
by Susan Stafford
As you may be aware constructive dismissal occurs when an employee terminates their employment in response to their employee's treatment of them. The employee has to show that they have resigned in response to fundamental breach of contract by the employer. The Employment Rights Act essentially say that if the employee terminates their contract in circumstances which they are entitled to do so without notice because of the employer's conduct that termination constitutes a dismissal.

In the case of Gibbs v Leeds United FC the Court was required to determine liability for breach of contract, considering whether Leeds United FC was in breach of its contract with the Claimant, whether that breach was repudiatory and whether, when the Claimant resigned, he did so at least in partly as a result of that breach.

The Claimant (here photographed when at Tottenham) had worked as an assistant manager at Leeds United Football Club. When the head coach was dismissed it was expected that, as is usually the case, the Claimant would also be dismissed despite working under the terms of a fixed term contract which was due to expire in June 2016.

Following the departure of the head coach the claimant did enter into discussions concerning the early termination of his employment however the Chairman made clear that he wanted him to remain at the club. The Claimant returned to work as requested although discussions continued with the club in an attempt to negotiate the early termination of his contract. During this period the Claimant was not assigned work which fell within his contract to do, although he turned up ready and willing to do it. He complained and said that he had been left with nothing to do and expressed that he was unhappy about this situation. However subsequently on the 23 June he received an email from the club secretary, Graham Bean, which read as follows:


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Designed from the ground up and provided only by Canter Levin & Berg Solicitors, we act for organisations nationwide. Our unique proposition has always been to deliver a prompt, efficient, and personal service to our subscribers through the provision of direct access to our specialist employment solicitors.

Our team is made up of qualified legal professionals who ensure that your business is being guided and supported by the latest and most efficient employment law resources at all times.
Katharine Kelly
Katharine Kelly
Katharine specialises in making sure that employers have all their employment law and HR requirements in place and up to date. Her pleasant manner is combined with her knowledge of employment law issues from a legal perspective so that she makes sure that employers have maximum protection and immediate support in connection with all problems which they may encounter on a day to day basis. Katharine is "on call" to deal with her clients in a way which her clients really appreciate. She will always take the next step to make sure that problems are solved quickly, efficiently and professionally.
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Sean Carty
Sean Carty
Sean joined the Employment Department of Canter Levin & Berg in December 2007. He has experience in all areas of employment law though specialises in Employment Tribunal litigation. Sean has particular expertise in dealing with complex discrimination matters, business reorganisation and redundancy, and unfair dismissal. He also deals with company disputes, breach of contract claims and injunctions, including claims relating to breaches of restrictive covenants.
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Susan Stafford
Susan qualified as an Associate Solicitor in January 2016 and works within the Employment Law Department. She deals in all aspects of employment law but particularly specialises in advising employers from a variety of industry sectors on all aspects of employment law and human resources issues, ranging from drafting company documentation through to dismissal
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