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December 2016 Review
Welcome to 2017, beginning with our round up of employment law news from the last month.

This month's reports include examples of bad behaviour by lawyers, a discussion about the imminent introduction of the publication of all employment tribunal decisions online (save for those that are subjected to reporting restrictions) and case reports concerning a Church of England priest in a same sex marriage who wanted to work in the NHS and a case which provides the reminder that can never be provided too often that no matter how bad the conduct of an employee appears, there is still the need to apply correct procedures diligently.

So what is 2017 likely to bring? From an employment law perspective Brexit will not bring the "bonfire of red tape" that some have been calling for. That is because of the stated intention of the Government to bring all EU Directives and related rights within domestic legislation before considering whether any should go. In other words, "move on, nothing to see here", at least for the next few years. Notable changes which are coming into effect include the apprenticeship levy and gender pay gap reporting for larger employers, restrictions on tax savings for those benefiting under salary sacrifice schemes, restraints on public sector exit payments (to deal with the "merry-go-round" of moving from one highly paid job to another, but each time with a pay off) and trade union ballot changes which will introduce a combined 50% minimum turnout and majority vote threshold for industrial action and a requirement for 40% of all eligible voters to support industrial action in sectors considered to provide important public services.

If you have time please check out our blog and Twitter feed for frequent employment law news of particular interest to SMEs. You can also find out about our subscription services on our website.

Kind regards,

Martin Malone
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This month's news
John Burnand  
Bad behaviour by lawyers
by Martin Malone
Last month I reported the very serious consequences of a Christmas party that got well out of hand and resulted in life changing injuries. Subsequently, reports have emerged of misbehaviour by lawyers which have had serious consequences, including the likely curtailment of successful careers.

Legal Cheek has reported that John Burnand (pictured), a partner in city firm Winckworth Sherwood, resigned after acknowledging that his behaviour was "not acceptable". It is alleged that he drunkenly groped a number of female employees at a Christmas party at the upmarket Skylon restaurant on 8 December. He is reported to have drunk "far too much" and after the groping incidents he was "escorted out" of the building.

Prior to his resignation Mr Burnand had posted what Legal Cheek describes as "a grovelling apology" in which he stated that he had attended "a business development event prior to the party and had drunk more than [he] should on the day". He continued:
I am very sorry for offending so many by my conduct. I know that this is not acceptable behaviour and must never happen again. You may rest assured that it never will.

...I hope that you will forgive my conduct on the night, on my assurance that there will be no recurrence and I hope that it did not spoil what I believe was otherwise a very good evening.
Within 24 hours he had resigned. With reference to last month's discussion about vicarious liability (in this context the potential liability of an employer to its employees for the actions of the partner) it will be interesting to see whether any claims for sex discrimination against Mr Burnand and Winckworth Sherwood follow. Perhaps the firm will take the view that settling claims against those subjected to Mr Burnand's inappropriate behaviour is the preferred course of action. Mr Burnand still appears as a partner at Winckworth Sherwood in the Legal 500.

The incident follows a notice from The Bar Tribunals and Adjudication Service that a Birmingham barrister, John Randall, made sexual advances to an unnamed woman in a bar by repeatedly touching and strolling her thigh without consent. He was fined £2000.

Meanwhile, details have emerged of the conviction of an in-house lawyer with City firm Schroders for racially aggravated and sexual assault. Alastair Main attended a rowing club dinner where he poured beer over a woman's head and called her "an Australian slut" when she refused to hug him. He then proceeded to follow her into the ladies' toilets, where he smacked her on her backside five times.


Bournemouth and Christchurch NHS Trust  
Another reminder of the need to apply correct procedures
by Martin Malone
The judgment of the Employment Appeal Tribunal in the case of Mrs B Tykocki v Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust concerns the standards to be applied when carrying out a disciplinary investigation and whether failure to follow procedures can of itself render a dismissal as unfair.

Mrs Barbara Tykocki worked for the Trust as a Healthcare Assistant from August 1989 until she was summarily dismissed for misconduct on 15 September 2014. The dismissal resulted from an incident during a night shift on 3-4 February 2014. A patient complained that Mrs Tykocki had been abusive to her and had effectively assaulted her when she asked for morphine to manage her pain. The patient alleged that Mrs Tykocki had put her hand over her face and told her to shut up. Mrs Tykocki, having denied the allegations, was suspended pending an investigation. The investigation noted two similar previous complaints from patients about Mrs Tykocki and concluded that the latest event had probably occurred as described by the patient. A disciplinary hearing followed on 12 August during which Mrs Tykocki's union representative suggested that the patient might have been hallucinating. The hearing was adjourned to allow for further investigations in this regard. It was reconvened on 3 September by which time the patient had confirmed her earlier statement. A decision was made to dismiss Mrs Tykocki and this was confirmed to her in a letter sent on 15 September. An appeal against the decision to dismiss was unsuccessful.

Mrs Tykocki presented a complaint of unfair dismissal and the tribunal accepted that the incident on 3 February was the basis for her dismissal, was related to conduct and that is was potentially fair.

The tribunal then considered whether the Trust had carried out a reasonable investigation. It concluded that the enquiries made were adequate, that failure to provide all relevant documents to Mrs Tykocki and her representative this was an innocent error and the documents merely confirmed what was apparent from those that were disclosed. It also determined that the Trust was entitled to conclude, following investigations, that there was no evidence that the patient was hallucinating. The tribunal had reasonable grounds for its belief that there had been misconduct and the decision to dismiss was within the range of reasonable responses available to a reasonable employer. Mrs Tykocki appealed.


Church of England  
Is same-sex marriage a bar to a clergyman taking an NHS post?
by Martin Malone
In 2014 the Reverend Canon J C Pemberton married his long term partner, of the same sex, pursuant to the Marriage (Same Sex Couples) Act 2013. Reverend Pemberton had been ordained as a Church of England priest in 1982. In 2007 he resigned his parish and separated from his wife. They were subsequently divorced. He took up an appointment as a Community Chaplain in 2008. In due course he became the Deputy Senior Chaplain and Deputy Bereavement Services Manager for United Lincolnshire Hospitals NHS Trust. He met his now husband in 2008 and by the autumn of 2008 they were living together.

According to NHS practice, Church of England priests are not appointed as chaplains without a licence from the Church, normally in the form of authorisation from the Bishop of the Diocese. He was issued with an Extra Parochial Ministry Licence (EPML) nby the Suffragan Bishop of Grantham and a Permission to Officiate (PTO) by the Bishop of Southwell and Nottingham.

In July 2013 Reverend Pemberton and his partner became engaged and on 12 April 2014 they were married. The wedding attracted press interest, including from the Mail on Sunday. Coverage from the same paper on 22 June 2014 asserted that "the first clergyman to enter into a gay marriage in defiance of the Church of England [had] been 'sacked' by his bishop". Prior to his marriage the Bishop of Lincoln had written to and met with Reverend Pemberton. In March he wrote to Reverend Pemberton and stated:
... it would not be appropriate conduct for someone in holy orders to enter into a same sex marriage ... Like every clergyperson, at your ordination you undertook to 'accept and minister the discipline of this Church, and respect authority duly exercised within it ...
Following the marriage he issued a rebuke to Reverend Pemberton because he had:
... chosen to marry, knowing that for an ordained priest to enter into a same-sex marriage is contrary to the teachings of the Church of England and the clear, recent statement of the House of Bishops...[which was]...inconsistent with your ordination vows and your canonical duty to live in accordance with the teachings of the Church of England.
In May 2014 Reverend Pemberton applied for a salaried post at Sherwood Forest NHS Trust. He was offered the job, subject to the usual requirement to obtain C of E consent. Instead of granting permission, in early June 2014 the Bishop of Southwell and Nottingham revoked his PTO. The job description issued by the NHS Trust included a "requirement to meet the requirements of the Church of England...in the provision of a chaplaincy service throughout the Trust". It was also a requirement for the post holder to have "authorisation by the relevant faith community". On 7 July the Bishop refused to grant the required EPML, explaining that:
In its pastoral guidance on same sex marriage, the Church of England House of Bishops reaffirmed that a same-sex marriage is inconsistent with the Church's teaching on marriage. Entering into such a marriage involves the cleric acting in a way which is inconsistent with both his or her ordination vows and the canonical duty of all clergy to model the Church's teaching in their lives. As Canon Pemberton recently contracted such a marriage, I revoked his Permission to Officiate in the Diocese of Southwell and Nottingham.

In the light of this, it would be inconsistent if I were to issue a licence to Canon Pemberton at this time.
By letter dated 30 July the Bishop confirmed that, without an EPML, Reverend Pemberton would not be able to officiate as a Priest of the Church within the Trust.

Reverend Pemberton commenced employment tribunal proceedings against the Bishop in September 2014, alleging that there had been unlawful direct discrimination because of sexual orientation and/or marital status and/or unlawful harassment related to sexual orientation.


employment tribunal judgment  
Publication of employment tribunal decisions
by Martin Malone
A little publicised but potentially very significant development in the field of employment law in 2017 will be the introduction of the routine publication of employment tribunal judgments. As matters stand, anyone (other than the parties and their representatives) who wants to search for or browse first instance decisions in the Employment Tribunal has to attend in person at the Bury St Edmunds office for English and Welsh decisions or Glasgow for Scottish decisions. Copies of specific decisions can be ordered but at a cost £10 and £5 each for additional decision placed with the same order. Decisions of the Northern Ireland Industrial Tribunals and Fair Employment Tribunals have been available online for some time.

Last June HM Courts and Tribunals Service announced that new employment tribunal decisions will be publicly available online from autumn 2016, subsequently put back to early 2017.

As many readers will know, employment tribunal decisions are not binding on subsequent tribunals so why is this news potentially very significant? Well, it's primarily to do with reputation management. Years ago it would be quite usual to see local court reporters attending employment tribunals and their reports on cases would frequently appear on a page in a local paper devoted to employment and other judgments. However, the regional press has suffered huge financial cutbacks in recent years and the days of reporters attending tribunals as a matter of routine have long gone. Generally, cases are not reported unless they come to the attention of journalists as a result of contact from the parties or their representatives. For example, unions often issue press releases about cases they have backed in order to demonstrate successful outcomes for their members. Barristers' chambers also publish details of successful cases, but these are overwhelmingly appeal hearings which are already available online, for example through the EAT online service and BAILII.

The new online employment tribunals decisions service will be an easy and free resource for accessing newsworthy content without the need to send someone to a tribunal. We can therefore expect to see a notable increase in the number of cases reported. Of course, online publication increases the chance of case reports being picked up by mainstream and national websites, with syndicated content (authorised or not) at the heart of many news websites.

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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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Martin Malone
Martin Malone
Martin is a Partner in the Firm and splits his time between employment law and practice administration. He has over 25 years' experience dealing with a wide range of employment disputes.

He combines his experience in employment law with insolvency, intellectual property and company/partnership disputes.
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