notarising documents

Good practice vital for employers in managing tribunal claims

notarising_documentsIn July, the Supreme Court ruled that employment tribunal claim fees were unlawful, and now it’s been confirmed that an ex-employee has been granted an extension of time to pursue their out-of-date unfair dismissal claim, on the basis that the original action was dropped due to the fees.

In giving the go-ahead for an extension in the case of Dhami v Tesco Stores Ltd, the claimant could show they had lodged the original claim within the three-month time limit and the fees were an important reason for not proceeding.  It is likely that many more out-of-date claims will be put forward, and, as a result, employers may find themselves firefighting situations that were considered closed.

The Supreme Court ruling in July in R (on the application of UNISON) v Lord Chancellor put an end to the requirement for a fee to be paid on submitting a claim, known as the issue fee, and another a few weeks before the hearing.  Introduced in 2013, the cost was more than £1,000 for complex claims, and the number of tribunal claims dropped by two-thirds as a result.

The public service union UNISON brought the case, arguing that the fees undermined the fundamental principle of access to justice for all, and that it was discriminatory as women generally earn less and so were likely to find it harder to pay. The Supreme Court agreed, saying it was unlawful under both domestic and EU law, and the fees were abolished with immediate effect, and  payments made under the scheme are to be refunded.

Commentators and employer groups were quick to predict a steep increase in claims back to previous levels, arguing that with no financial risk involved, employees will be more likely to make a claim, whether legitimate or bogus.

Said employment law expert, Sharon Matchwick of Hertford town solicitors Breeze & Wyles:  “For now, employers who focus on best practice and knowing their responsibilities will be better placed to manage any such claims.  This is the time to identify any potential claims that may be made, and having reviewed the circumstances take steps to avoid such things recurring.  Demonstrating a positive attitude to any Employment Tribunal will stand a business in good stead.”

She added: “It’s more important than ever to have a positive working environment, as well as complying with the many laws applying in the workplace. It’s good for business, as well as minimising the risk of claims.

“If you do find yourself facing a claim, then think about maximising mediation efforts, and using ACAS Early Conciliation as an opportunity to resolve things swiftly. Equally, if having investigated the claim and having tried to resolve the matter by conciliation, you believe that the employee is just trying it on because they have nothing to lose, it may be worth being bullish and going for costs, a deposit order or applying to strike out proceedings.”

If you want to know any more, feel free to contact our Business Services Department on 01992 558411


R (on the application of UNISON) v Lord Chancellor

Dhami v Tesco Stores Ltd

Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Employment of Illegal Workers results in Director Disqualification

This is the next in the series of my blog for the Director’s Friend.


In a recent press release the Insolvency Service (‘IS’) show that they are targeting insolvent companies that have been employing illegal workers and where the fines levied by the Home Office were not paid. According to the press release 11 directors from separate companies were disqualified for employing a total of 39 illegal workers across various geographic locations in England.

Following visits from Home Office Immigration officers, during which the illegal worker breaches were discovered, the companies were issued with penalty notices ranging from £10,000 to £15,000 per worker, which remain unpaid. Across the companies talked about in the press release these unpaid fines totalled £450,000.

All 11 of the directors were directors of the companies and were in office at the time of the Home Office visit.


Cheryl Lambert, the Chief Investigator at the IS is quoted to have said:

‘Employing illegal workers is not a victimless crime. These directors sought an unfair advantage over their competitors by employing people under the radar who were not entitled to work legally in the UK.

If a company is found to be employing illegal workers and not carrying out the checks they are required to by law, then the Insolvency Service will take action to remove the directors from the market place, regardless of whether the company is in Liquidation or not.

This action is a warning to other employers to seriously consider their duties and obligations.’


A further warning is contained in the press release in circumstances where the company is still active and not subject to insolvency proceedings where the Insolvency Service and the Home Office are working very closely together.


An employer can be sent to jail for 5 years and pay an unlimited fine if they’re found guilty of employing someone whom they knew or had ‘reasonable cause to believe’ didn’t have the right to work in the UK. If that is a director of a company, then they could also be disqualified from being a company director in any event by the criminal court.

In addition, a civil penalty could be levied in the sum of £20,000 for each illegal worker employed.

So, employing someone who does not have the legal right to work in the UK could be very expensive, result in a prosecution and a director disqualification. In addition, a confiscation order could follow!


These kind of civil director disqualifications seem in my experience to be on the increase where the theme is that the company employs illegal workers, is caught by the Home Office and fined. The fine is not paid and the company is placed into formal insolvency. It would appear that it is as a consequence of the Home Office and the Insolvency Service working together to target these cases.


If you are faced with a claim for director disqualification by the IS please talk to me today. That is in order to protect your position without delay. The earlier that you speak with me as a specialist director disqualification defence solicitor the more that I can help. Why not call me today on 01992 558 411 and speak to me without obligation, pressure or cost. I am a game keeper turned poacher.

If you are happy to instruct me my firm and I are happy to talk to you about fixed fees or staged fees that are agreed with you in advance of any work being carried out or we can liaise with your insurers. Your work will be carried out by me or others under my close supervision. I am happy to come to you to take instructions. My firm is based in London and Hertfordshire, here in the UK.


Finally, is you advisor a practising solicitor (and thus insured to advise you – check with the SRA) and if so is your solicitor a full member of the Insolvency Lawyers Association (‘ILA’) (ask them). Membership of the ILA is a public mark from insolvency peers that your representative has the requisite knowledge, skill and experience to advise you. I am both. Accept no substitutes.

Until the next time...


Complex challenges for employers in the year ahead

Constant changes and increasing complexity have helped make employment law a frontline challenge for business and this year looks set to continue the trend. 

The first weeks of January saw Maggie Dewhurst, a bike courier with City Sprint, winning her case to be treated as a worker, rather than a self-employed contractor. The high-profile case follows hard on the heels of the similar ruling given late last year in the action brought by Uber drivers, which the company has said it will appeal.

A worker may be entitled to certain rights such as the national living wage, paid holiday and sick leave, where a contractor would not.  An employee may also be a ‘worker’, but with extra employment rights and responsibilities.

“The decision in the case of Maggie Dewhurst vs City Sprint will apply only to her personally, but it puts such working practices under the spotlight, especially in the so-called ‘gig economy’, where people are employed by companies on a job-by-job basis,” explained Brendan O’Brien head of Business Services and Managing Director at Breeze & Wyles Solicitors Limited.  “But the issues involved can equally apply in many other sectors where companies may be trying to optimise their staffing, if they do not realise the distinctions between an employee, a worker and a self-employed contractor. A number of cases are now working their way through the courts and I expect we’ll see this topic in the headlines throughout 2017.”

Alongside, the Government is moving to crack down on unscrupulous employers to stamp out exploitation in the workplace, after several companies hit the headlines for poor practices in recent months, including reports that workers at Sports Direct were receiving less than the national minimum wage and being subjected to humiliating working practices.  The new Labour Market Enforcement body will take the lead in this, headed by Prof Sir David Metcalf, a founder of the Low Pay Commission.

Together with other employment legislation already announced for introduction this year, bringing further significant changes and new requirements, businesses need to make sure they are up to date with their practices and terms of employment.  The up and coming legislation includes:

Gender pay gap reporting:   The Equality Act 2010 (Gender Pay Gap Information) Regulations are set to come into force on 6 April 2017 meaning all private sector organisations with at least 250 employees must publish details of their gender pay gap, for both basic pay and any bonus payments.  The first reporting will be due no later than 4 April 2018, and annually after that.  This could be a raw topic for supermarket employer Asda who recently lost an equal pay claim brought by women workers, who claimed their work was equal to male warehouse workers.  In the preliminary judgement, the women won their case but Asda are expected to appeal.

Apprentice levy:  Also due on 6 April is the annual apprenticeship levy, under the Finance Act 2016 (part 6).  In a Robin Hood style approach, the levy must be paid by all private and public sector employers in the UK with a pay bill of £3m and above. It will be charged at the rate of 0.5% on their total pay bill, with an annual allowance of £15,000.00 to offset against the levy payment. The income will be used to fund a new system of post-16 apprenticeships, which will be available to those employers falling below the £3m threshold.

Salary sacrifice schemes:  As announced in the Autumn Statement, the Finance Bill 2017 will set out changes to the tax status of salary sacrifice benefits with effect from April 2017.  The changes will see an end to the tax saving benefits of most salary sacrifice schemes, which will become subject to the same taxation as cash income. Any arrangements in place before 6 April 2017 will be protected for one year, or four years in the case of cars, accommodation or school fees.  The extension will apply until the arrangement ends, is renewed or otherwise modified.  Remaining exempt from tax will be pensions and related advice, cycle-to-work and ultra-low emission cars.

Tax-free childcare:  Also retaining its taxation benefits will be existing employer-supported childcare voucher schemes.  These can remain open to new entrants until April 2018 with childcare vouchers and all associated tax savings available for the life of the scheme.  However, the Government is expected to launch a new, alternative tax-free childcare scheme, which will allow working families satisfying a minimum/maximum income requirement to claim 20% of childcare costs for children under 12, or under 17 where children have a disability, capped at £2,000 per year.  The two schemes can run in tandem, but once a new scheme has been established no new employees will be allowed to join an old-style childcare voucher scheme and still receive the tax benefits.

Holiday pay:  An appeal by British Gas to the Supreme Court will challenge last year’s ruling by the Court of Appeal that holiday pay should be ‘normal pay’ and include contractual results-based commission. The appeal is expected to be heard in March 2017 but in the meantime the ruling stands and employers need to look at irregular payments made to employees and establish which are to be included within ‘normal’ pay and so be included in any calculation for holiday pay.

He added: “The complexity around holiday pay calculations means employers are likely to need advice to get it right.  It’s just one example of how employment law continues to pose challenges for business, and the year ahead is certainly no exception.  It’s important to get ahead of the deadlines and make sure you’re addressing the changes across all aspects of the business.

“And while European law is behind some of the upcoming legislation or court rulings, it cannot be ignored on the basis that we are starting the process of withdrawing from the European Union, whatever style of Brexit is adopted by the Government.  For now, everything stands.”


Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues

Regulation 2 (1) of the Working Time Regulations 1998

Dewhurst v City Sprint

Mr Y Aslam, Mr J Farrar and Others -V- Uber

Lock v British Gas

Brierley v Asda Stores Limited

The Equality Act 2010 (Gender Pay Gap Information) Regulations

How employers can say no, without saying a word...

As the countdown to the festive season gets underway, employers juggling the pre-Christmas workload need to ensure workers are enabled to take their rest breaks.

The warning comes after an employer was found to have failed to take the necessary steps to facilitate rest breaks – despite the employee not having made any specific request.

The case was brought by an employee who was running a roadside traffic management system.  He argued that he had been denied his legal entitlement to rest breaks under the Working Time Regulations 1998.

The job with Abellio London Ltd involved regulating bus services to match road traffic conditions. Mr Grange, the employee, had a working day of 8.5 hours, including a half-hour lunch break.  When it proved difficult for him to take a break, because of the nature of the job, his employer changed his working day to 8 hours.  The idea was that he would work without a break, but finish half an hour earlier.

All workers are entitled to a 20-minute rest break after six hours of working under the Working Time Regulations, and if the entitlement is breached then an employee can make a claim if the employer ‘has refused to permit him’ to exercise the right. The key question, which took Mr Grange’s case to appeal, was whether an employee could make such a claim when he had not actively requested the break, and so had not received a direct refusal from the employer.

Although the Employment Tribunal first held that there had to be an actual refusal of a request, the Appeal Tribunal held that workers should be positively enabled to take breaks by the employer.

In making the decision, the Employment Appeal Tribunal highlighted that minimum rest periods are essential for the protection of health and safety and said there should be no distinction between entitlements and obligations.

Said Brendan O'Brien, Solicitor, Director and employment expert with Hertford solicitors Breeze & Wyles: “The important thing to take away from this is that employers should not wait for rest breaks to be requested, instead they must be proactive in making sure that working arrangements enable workers to take those breaks.  Otherwise, where the arrangement of the working day makes it difficult or prevents workers from taking a break, this may be taken as a denial of a right.”

He added: “It’s important to have a clear policy, and to make sure that everyone in the company knows and understands how to take their break.  This is particularly relevant to employers in sectors where employees often work long shifts and it is difficult to stop and take a break, such as social care, where continuity of care is vital.  But it is equally important that all employers take it into account at busy periods, such as the run up to the Christmas holiday, and make sure that workers can take the required rest breaks, even if they choose not to."

If you are in a similar situation and would like to discuss this further, call Brendan O'Brien on 01992 558411 or email

Grange v Abellio London Ltd [2016] UKEAT/0130/16/DA

Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Keeping the company cool when temperatures soar

The world is on track for the hottest year since records began according to NASA, and scorching temperatures look to set to return to the UK with 30°C forecasts for late August.

For those heading to work, rather than the seaside, they may be asking employers ‘how hot is too hot?’ in their working environment, or wondering whether delayed or cancelled trains mean they can take the day off.

The benchmark often given is that people work best in temperatures between 16°C and 24°C, but in the UK there is no fixed minimum or maximum temperature requirement for the workplace.   Instead, the Health & Safety Executive say that it should be ‘reasonable’.  Defining whether a temperature is reasonable will depend on the type of work and workplace.  It means that an office where workers are generally sitting down will need to be warmer than a factory where strenuous manual labour is going on.  Similarly, a food cold store or a bakery will each take temperatures to extremes that wouldn’t be reasonable in other environments, and may require protective clothing.

Explained Donna Bromyard, employment Solicitor with Hertford solicitors Breeze & Wyles Solicitors Ltd :  “For any company that doesn’t have a clear policy on extreme weather, which covers everything from summer heatwaves to winter snowstorms, this hot spell is another prompt to undertake risk management in this area. What comes out of that will determine any special provisions that may be needed.

“What’s important is having a clear policy that everyone knows about and then being consistent in how it is applied. It doesn’t necessarily have to be exactly the same for everyone, as some groups may need special treatment, but it needs to be fair.”

Getting to work

Generally, hot weather shouldn't be a reason to avoid travelling to work, but public transport does occasionally grind to a halt in extreme temperatures and it’s worth having a policy in place so that staff know what they should do if cancellations are expected or delays happen.   As with working conditions, for some groups of workers it may be appropriate to make special provisions.

Special cases

Special consideration should be made for anyone who may experience greater problems in extreme temperatures because of medical or other conditions.  If someone is pregnant or on medication, they may need more frequent rest breaks and be given a personal solution, such as a portable fan or air cooling unit, if there is no fixed air conditioning.  Similarly, those working under direct sunlight, or in specialist protective clothing, may need special consideration, as working outside without adequate protection may increase the risk of skin cancer and working in heavy protective clothing could increase the risk of dehydration.

Encourage wellbeing

It’s important to avoid dehydration in hot weather, so it’s a good idea to make sure there is easy access to drinking water and encourage staff to swap their morning coffee for a cool drink.   The average recommended daily water intake of 2 litres for women and 2.5 litres for men should be increased during heatwaves.  It’s also worth reminding everyone to avoid heavy meals and to stay out of the midday sun, both of which can lead to health issues, such as plummeting blood pressure or sun stroke.

Mood management

And finally, it’s worth making sure that managers watch out for tempers that rise together with the temperature.  The connection between hotter than average weather and higher levels of aggression is generally acknowledged, even if the reason why it happens is still up for debate, with physiological and psychological reasons in the mix.  At the other extreme, high temperatures can mean a loss of concentration and increased tiredness, making workers more likely to put themselves or others at risk.

She added: “Also, for companies with a strict dress policy, it may be worth considering offering a dress-down option during hot weather.  It doesn’t have to mean you end up with a beach code, but could make a major difference to comfort levels for staff, which will have a direct impact on the dynamics in the workplace.”

The Chartered Institute of Building Services Engineers recommends the following temperatures for different working areas:

  • Heavy work in factories: 13°C
  • Light work in factories: 16°C
  • Hospital wards and shops: 18°C
  • Offices and dining rooms: 20°C


Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues.


Clamp down for employers who call a spade a shovel

Ride hailing app Uber has won attention for revolutionising the taxi business worldwide, but is now grabbing headlines for different reasons, following legal action by drivers claiming workers’ rights.

The GMB Union brought the action on behalf of a group of Uber drivers, who are described as self-employed ‘partners’ by Uber. The action argues that as Uber pays the drivers and effectively controls charging rates and the route taken, they owe the same responsibility as any employer does to its workers, including the minimum wage, paid leave and making sure drivers take rest breaks.  If successful, Uber could be forced to compensate drivers for past payments, as well as future.

Anything Uber-related attracts attention, following its meteoric worldwide growth, but the problem highlighted is one that UK companies need to consider as they seek efficiencies in staffing.

Many organisations do not recognise that even where someone is not an employee, they may still be categorised as a ‘worker’ and be entitled to certain rights such as the minimum wage and paid holiday. Employees are also ‘workers’, but with extra employment rights and responsibilities.

To tackle the problem, the Government has launched an online tool to help employers and individuals to identify their status.

The definition of a worker in the Working Time Regulations 1998 is someone who works under a contract of employment, or any other express or implied contract, to provide work or services personally for a reward and who cannot send someone else to carry out the task. There are some exceptions on sub-contracting of work, and also where services are provided by an individual through a limited company, however, it means that many casual, freelance or self-employed workers may be treated as workers. In one case that reached the Employment Appeal Tribunal, a self-employed joiner working exclusively for a firm of building contractors, was found to be a worker, despite providing his own hand-tools and paying his own tax and national insurance.

Similarly, many think that calling someone an intern will confer a special status, but it’s much more likely they too will be a ‘worker’ or an employee. So, what counts when deciding whether an intern is due to be paid?

  • If someone is acting as a shadow, watching someone at work, and not undertaking anything on their own that could be seen to be of benefit to the company, they are not likely to be a worker
  • If they can come and go as they please, and are not required to do a certain amount of work, they may not be classified as a worker. A shorter term placement is also likely to support this.
  • If they are a student and undertaking work experience of less than a year as part of a UK-based further or higher education course, they are exempt from the national minimum wage, although the Government is encouraging all employers to pay interns irrespectively.
  • Voluntary workers may not be entitled to the minimum wage if they’re working for a charity, voluntary organisation, associated fund-raising body or a statutory body and they receive only limited benefits such as travel or lunch expenses

Said Donna Bromyard, solicitor of Breeze & Wyles Solicitors Ltd:  “When employers come up with different ways of contracting for services and staffing to make efficiencies, it’s not necessarily a bad thing for workers, who may themselves be seeking greater flexibility, for example, but both sides need to be clear.  What’s important is recognising that the way that the company and an individual interact will determine the outcome on employment status, rather than simply the title that’s given to someone.”

She added: “It’s a complex area, and even something that seems clear-cut may not prove to be so – such as a case where someone working through an agency has been able to satisfy the conditions for employed status. If it reaches an employment tribunal, they will be looking at the intentions of both sides, as well as whether a person provides their own equipment, has some form of financial risk or is integrated into the business.”


Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues

Regulation 2 (1) of the Working Time Regulations 1998

Torith Ltd v Flynn  [2002] UKEAT 0017_02_2111

Brook Street Bureau (UK) Ltd v Dacas [2004] EWCA Civ 217

How companies get caught in the slave trade

The recent conviction of a UK business owner for a human trafficking offence has been a wake-up call to big businesses to carefully monitor their supply chain, if they are to avoid being connected to slave labour unwittingly.

But with the requirements of the Modern Slavery Act 2015 now in force, companies of every size need to check out where they stand, even if they are a small supplier much further down the supply chain.

With the new regulations now enforceable for any business with a financial year ending on or after 31st March 2016, many smaller companies may have checked the headline criteria and assumed they are not going to be affected by the Act, as the requirements apply only to organisations which carry on business in the UK with a global turnover of more than £36million, including subsidiaries.

Those companies that fit the criteria must provide a statement of the steps they are taking to ensure that no forced labour or human trafficking is taking place in any part of their business or supply chain. The slavery and human trafficking statement must be published on their website, with a prominent link on their homepage.

And the catch for smaller companies lies in where they sit in any such supply chain, many of which may be complex, as they are likely to find more questions being asked from the top of the supply chain. The result could be pressure on smaller companies to undertake detailed supply chain auditing themselves, in order to satisfy the demands of those larger companies.

In the case of the recent conviction, the owner of UK bed-making business Kozee Sleep was convicted of conspiracy to traffic by Leeds Crown Court and sentenced to 27 months in prison. Mohammed Rafiq’s trial followed the conviction of two Hungarian gangmasters who were found guilty of supplying Kozee Sleep’s UK factories with slave labour.  They had promised Hungarian nationals good wages and housing, but instead the workers found themselves held in squalid conditions, not allowed to travel and made to work up to 16 hours a day, seven days a week, for less than £2 per day.   Kozee Sleep’s beds were being supplied to a number of leading high street retailers, who had set out their ethical trading requirements, which Kozee Sleep failed to meet.

According to the Anti-Slavery Commissioner, this is not an isolated incident and many other cases are expected to go to trial. Another, involving Lithuanian workers experiencing inhuman working and living conditions, involved a poultry farm which is in the supply chain of well-known brand Happy Egg.

In the introduction to the corporate guidelines for the Act, Home Secretary Theresa May says: “Modern slavery is a heinous crime that affects communities and individuals across the globe. Organisations with significant resources and purchasing power are in a unique and very strong position to influence global supply chains. It is not acceptable for organisations to ignore the issue because it is difficult or complex.”

If a business fails to produce a slavery and human trafficking statement for a particular financial year, the Secretary of State may seek an injunction through the High Court requiring them to comply. If they still do not comply, they will be in contempt of a court order, punishable by an unlimited fine.

Said company law specialist, Donna Bromyard, Solicitor of Hertford-based solicitors Breeze & Wyles Solicitors Ltd: “Following the introduction of the Modern Slavery Act 2015, there is going to be increasingly close attention on how global businesses are tackling potential slave labour in the supply chain.  For the £36 million plus companies, there needs to be clear responsibility for compliance with the Act, with due diligence to identify potential risk of contravention of the Act in any part of the supply chain.”

She added: “At first glance, slavery may seem a million miles away from your business, but unfortunately that is not the case, and directors, and buyers in particular, should keep the topic in mind as they trade, whatever their company size.”

Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues.





Avoiding the worst sort of hangover from the Christmas party

‘Tis the season to be merry, so it’s time for the annual Christmas party; but for many employers it’s often more fraught than fun, as wherever and whenever the event takes place, it’s still an extension of the working environment. 

Whether the party is at a venue or informally in the office after hours, guidelines need to be in place and employers have a duty to safeguard staff welfare, so setting boundaries of what is acceptable behaviour, and highlighting that misconduct will result in the usual disciplinary procedures, needs to be set out before the event.

Alcohol consumption needs to be managed, as employees may become uninhibited after consuming too much alcohol.  Christmas party meltdown was behind a recent case that reached the Employment Appeal Tribunal (EAT), but another big issue for the employer in this case was that the two employees involved in a fracas were given apparently different treatment in the disciplinary procedures that followed.

The EAT decision in the case of MBNA Ltd v Jones involved an employee who was dismissed for punching a colleague at a work event, whereas the colleague was given only a final written warning for sending threatening texts to him after the work event had finished.

Said Maria Koureas-Jones, employment expert with Hertford solicitors Breeze & Wyles Solicitors Ltd: “Although the appeal found for the employers, saying they had acted reasonably in their decision to dismiss Mr Jones, despite the other employee receiving only a warning, the cost and disruption of protracted tribunal hearings is enough to remind companies of the importance of not taking short cuts where violence is involved and to make a thorough investigation.

“Any difference in treatment must be justifiable, have a clear distinction, and should take into account previous conduct and provocation.”

Another Christmas party risk, once tongues are loosened by drink, is sexual harassment and unwanted advances, which could make an employer liable for not providing adequate protection for an employee.  It’s another area that should be covered by a strong policy and clear attitude at management level.

And if there’s a zero tolerance policy towards alcohol in the workplace, managers need to give guidelines on what will be acceptable at the office party or other team get-togethers, particularly if it’s during the working day.

The party also brings in diversity issues, as the workforce may have different cultural or religious beliefs that affect their view on the Christian festival, and no one should be put under pressure to take part in Christmas-related events.

Added: “It may feel like party-pooping to send a set of instructions along with the invitation, but it’s the best way to avoid a lasting hangover that upsets everyone.  Some simple ways to keep things under control include reinforcing the message that it’s an extension of the workplace and that the standard of behaviour expected is just the same as at work.  It’s also worth making this a time to update staff on their equality obligations, to be sure they understand what could constitute harassment and making clear that it is unacceptable.

“It’s a safeguard for the company if you do such training and record that it’s taken place, alongside making sure your disciplinary policies are quite clear about what constitutes acceptable behaviour, and making sure they are applied consistently.”


This is not legal advice; it is intended to provide information of general interest about current legal issues.


Courts move towards higher tariffs on health and safety breaches

Two high profile health and safety court rulings have caught the headlines this month, but the penalties imposed reflect the expected shift towards higher tariffs and businesses need to sit up and take notice say experts.  

First, fashion retailer Hugo Boss UK Limited was fined £1.2 million with costs of nearly £47,000 following a prosecution relating to a fatal incident at one of the brand’s outlets in June 2013, when a small child died after a free-standing mirror fell on him.

Then, Oscar's Wine Bar in South Yorkshire was fined £100,000 and ordered to pay £40,000 in costs after a barman gave a potentially lethal liquid nitrogen cocktail to a teenage girl, resulting in her having her stomach removed.

Under the existing 2010 sentencing guidelines, concerns have been expressed around the inexperience and inconsistency of magistrates and judges leading to fines being imposed that are too low relative to the harm caused, culpability and means.   As a result, following recent consultation, it’s expected that the Sentencing Council will soon publish guidelines that take account of these factors.

Courts would first consider harm and culpability factors so as to categorise the seriousness of the offence. This would be put together with the financial standing of the company, with organisations banded from micro to large, to produce a predicted compensation figure.

Said Brendan O’Brien Company expert with Breeze & Wyles Solicitors Limited: “These are both tragic cases, for which no amount of compensation could replace the loss of life or health, but the level of fine is much higher than generally seen in the past, and it seems that the courts are acting in the spirit and ethos of the expected new guidelines, even though nothing has been published yet.”

He added: “Businesses need to sit up and take notice.  No one wants to be responsible for such accidents, and the best way to avoid that is by making sure that health and safety systems are not just in place, but properly managed and regularly reviewed.  Employees need to have safety at the forefront of their daily activities, and be aware of how it helps to protect both fellow workers and customers.

“If the employee manual and employment contracts aren’t clear, then now is the time to review them. Having really robust health and safety policies, regularly reviewed and properly carried out in practice, will go a long way towards providing a defence against any criminal liability, and may provide a defence or at least mitigation against a negligence claim.”


Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues.



Employment Law Newsletter May 2013

May 2013
Dear Employer
Finally, some progress has been made on the proposed new system of employees being given shares in return for giving up some of their employment rights. The scheme has not yet been finalised but, as seen in our “What’s in the Pipeline” section, some further adjustments have been made. For some employers it could be the answer to their prayers; for others it may not bode so well. If you require any advice on this or any other employment issue, then please do not hesitate to contact us: details are at the end of this letter.
If you have any comments or suggestions on this newsletter, please email
Kind regards
The Employment Law Team
Some Recent Cases in Employment Law
A recent case has held that where an insolvent company transferred part of its business and closed the other part, the employees of the closed part were not “affected employees” of the transfer and so were not entitled to be informed and consulted under TUPE consultation. In such a situation, the employees are “affected” by the closure of their part of the business, not by the transfer. Even if the closure is indirectly the result of the transfer, that does not mean that employees are “affected” by the transfer within the meaning of the TUPE Regulations. [I Lab Facilities Ltd v Metcalfe and Others]
In a Spanish case, which has ramifications for employers in other European countries, the European Court of Justice (ECJ) has held that homophobic comments made in public by persons strongly associated with an employer, which suggested the existence of a homophobic recruitment policy, are capable of establishing a “prima facie case of discrimination” against the employer – even if the person who made the comments is not legally capable of binding the employer in recruitment matters. The fact that the employer may not have clearly distanced itself from the comments is a factor which a national court may take into account in deciding whether or not the claimant has established that there is a case – and also in deciding whether or not the employer has rebutted that case.
In brief summary, B owned shares in a Romanian football club. It was public knowledge that he played an important behind-the-scenes role but was not capable of binding the club in employment-related matters, such as recruiting staff. B gave an interview to a journalist concerning the possible transfer of a professional footballer, X, to the club. The journalist suggested X was homosexual; in response, B made a number of homophobic comments, including that he would prefer to hire a player for the junior team than a homosexual. In the event, X was not transferred to the club. AA, a non-governmental organisation which promotes and protects gay and transsexual rights, lodged a complaint against B and the football club before the National Council for Combatting Discrimination, claiming that they had directly discriminated on the grounds of sexual orientation. It claimed that B had taken on board the journalist’s suppositions that X was homosexual and prevented the footballer being taken on by the club. The Council rejected the claim against the club on the basis that the club could not be responsible for these comments because B did not have the legal capacity to bind the club or represent it in recruitment matters. The organisation (AA) appealed to the Romanian Court of Appeal which referred it to the European Court of Justice.
To establish a discrimination claim (of any kind), a claimant has to establish that there are facts from which discrimination can be inferred – i.e. a “prima facie” case. Here, the ECJ held that these comments were capable of establishing a prima facie case if the comments came from a person who plays an important role in the management of that employer, even if that person is not legally capable of binding the employer in any employment related matters. Also, the fact that the employer has not clearly distanced itself from the comments is a factor which a national court may take into account in deciding whether or not the claimant has established a prima facie case.
The ECJ also held that in order to rebut a prima facie case of sexual orientation discrimination, the employer would not need to prove that persons of a particular sexual orientation have been recruited in the past. However, an employer could rebut the prima facie case by, for example, showing that it had clearly distanced itself from the public statements and by pointing to the existence of a recruitment policy aimed at ensuring compliance with the principle of equal treatment. [Asociatia ACCEPT v Consiliul National pentru Combaterea Discriminarii]
Sometimes, redundancy can disguise dismissal for poor performance. A recent EAT (Employment Appeal Tribunal) decision highlights the tension between the two. Mr M threatened to leave, so his employer recruited another Practice Manager. The new recruit proved to be more capable. Mr M did not resign, at which point the medical practice had two Managers but only needed one. Mr M was made redundant and his more capable replacement retained. The EAT accepted that Mr M’s dismissal was due to redundancy and not, as might seem, a disguised performance dismissal. But his dismissal was held to be unfair, as it had been pre-determined and consultation was a sham. However, his compensation was reduced by 100% because his selection was inevitable given his shortcomings.
Employers should note that the case does not give employers the green light to hire an employee alongside a poor performer in order to make the poor performer redundant. The employer here had not recruited the second employee with that in mind or because Mr M was under-performing. However, it shows that there is scope to establish a redundancy if an employer recruits extra staff (who may turn out to be more capable) and is then faced with more employees than it needs. [Malekout v Ahmed & Others (t/as the Medical Centre)]
What’s in the pipeline
Regular subscribers will recall that the new Employee Shareholders proposals were announced in October 2012. The idea was to give companies flexibility as to how to hire their staff and help their companies grow. The proposals were aimed at the small-to-medium fast-growing companies. The idea is that employees should be given the opportunity to give up some of their employment rights in return for shares in the company. Originally, it was called Employee Owner Status but that has now been changed to Employee Shareholder Status. The shares to be allotted to the employee must have a minimum value of £2000. There is no minimum value on the shares that can be given to employee shareholders but the exemption from Capital Gains Tax will only apply to shares having a value of up to £50,000 on acquisition.
The scheme has not been finalized yet but here is an up-date.
The House of Lords has approved some amendments to the Employee Shareholders Scheme:
1. A company which is wanting to use the scheme must give an individual a written statement of the particulars of the status of employee shareholder, specifying the employment rights he or she will give up and detailing the rights, restrictions and other conditions attached to the shares and will say, e.g. whether the shares have any voting or dividend rights, whether they can be bought back or redeemed etc. This written statement of employee shareholder particulars will be in addition to the statement that employees are already entitled to have under the Employment Rights Act (i.e. setting out their terms and conditions)
2. An individual, once he or she has received the written statement of particulars, must be given independent advice as to the terms and effect of entering into the scheme. Unless independent advice is received, and the individual has been given seven days to consider the advice, the agreement will have no effect in removing his or employment rights. Acceptance of an employee-shareholder contract within that seven-day period will also have no legal effect. Under the revised scheme, even if the individual decides not to take up the job, the company will be required to meet the “reasonable costs” of the advice.
The scheme is not without criticism, e.g. the impact the proposals will have on industrial relations and the trust between employee and employer; also, that the employee shareholder status could be manipulated to facilitate tax avoidance or benefit senior employees only; also, many small companies may not be in a position to offer employee shareholder status at all, as £2000-worth of shares may be a significant percentage of the share capital.
The proposals may be seen as a good thing for senior employees who may be less concerned about the loss of unfair and redundancy rights. Also, they may be willing to acquire more than the minimum £2000-worth of shares and incur the up-front tax charge.
The Employer Traps and Other Tips
The fact that a person is recruited for a fixed term does not prevent them being a proper employee. A fixed term contract ends either on the expiry of the fixed term; on the completion of a particular task; or on a specified event. Remember that fixed-termers are entitled to basic employment rights, e.g. the national minimum wage, paid holiday, protection against discrimination etc. A fixed-termer who works for more than one month must also be given a written statement of terms and conditions of employment. If you treat your fixed-term employee less favourably than his or her comparator (another employee who is doing the same or broadly similar work), then you can be in breach of the statutory regulations protecting fixed-termers. For example, they must be allowed the same access for training and promotion as permanent employees and should not be selected for redundancy just because they are fixed term. You must inform fixed-termers about permanent employment opportunities. It is only possible for an employer to treat a fixed-termer less favourably if it can be “objectively justified”.
If you have an employee who has health issues you should make further enquiries to establish whether their problem amounts to a physical or mental impairment so as to render them disabled under the Equality Act 2010. Failure to make enquiries and to take appropriate steps to make adjustment would render you liable for discrimination. Reasonable adjustments can include making adjustments to premises, altering hours of working or training, arranging for an outside agency to give assistance (for which the employer is not usually liable). Be aware that the Code of Practice now says that employers must “do all that they can reasonably be expected to do” to find out whether an employee has a disability, which indicates that reasonable enquiries should be made (although not at the interview stage except to ascertain whether reasonable adjustments can be made to enable them to attend the interview). Disability discrimination is a very tricky area so it is always better to take advice if unsure. If in doubt, shout.
The Spanish case referred to in this newsletter shows that an employee could get you, the employer, into trouble unwittingly or without you having done anything wrong. If you do find yourself being accused of discrimination, of whatever kind, one of the first things that an Employment Tribunal would want to see is an Equal Opportunities Policy in place showing (at the very least) that you as the employer are aware of these issues and take steps to prevent discrimination happening.
Other news from Breeze and Wyles
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