The document provides a summary of recent employment law developments in the UK, including legislation, cases, and future proposals. It outlines changes from the Enterprise and Regulatory Reform Act 2013 regarding conciliation, whistleblowing protection, tribunal procedures, and the Equality Act. It also summarizes several cases related to employment status, volunteers, disciplinary investigations, and discrimination. The document concludes with an overview of upcoming proposed legislation.

1. Employment Law Update: A round-up of
the most recent developments
Stephen Jenkins, Partner &
Kate Miles, Associate
Tuesday 21st May 2013

2. Introduction
• Legislation update
• Case law round-up
• Employment Status
• Volunteers
• Disciplinary Investigations
• Discrimination

3. Enterprise and Regulatory Reform Act
• Final version of the Act was published on 2 May
2013
• Mandatory period of ACAS conciliation (section 7)
• Extension of limitation periods during conciliation
(section 8)
• Disapplication of UD qualifying period if reason for
dismissal is/relates to employee’s political
opinions or affiliations (section 13)

4. Enterprise and Regulatory Reform Act
• Certain pre-termination negotiations inadmissible
(Section 14)
“pre-termination negotiations” means any offer made
or discussions held, before the termination of the
employment in question, with a view to it being
terminated on terms agreed between the employer
and the employee. Section 111A (2) ERA
• Power to impose financial penalty on employers
(section 16)

5. Enterprise and Regulatory Reform Act
• Changes to whistleblowing
• Definition of “protected disclosure” in
whistleblowing context restricted to those “in the
public interest” (section 17)
• Removal of requirement that disclosure is in “good
faith”, but power for tribunal to reduce any award
by up to 25% if not in good faith (section 18)
• Extended to include protection from detriment by
co-worker or agent of employer (section 19)

6. Enterprise and Regulatory Reform Act
• Changes to Tribunal Procedure
• Extension of power to order a deposit for part of a
claim or response (section 21(1))
• Power for the Tribunal to award costs and
expenses to Litigants in Person (section 21(2))
• N.B. new Tribunal rules are due this summer
• Compromise Agreements to be renamed
“Settlement Agreements” (section 23)

7. Enterprise and Regulatory Reform Act
• Changes to Equality Act 2010
• Removal of third party harassment (section 65)
• Abolition of discrimination questionnaires (section
66)
• Power to make an Order introducing concept of
“caste discrimination” as an aspect of race
discrimination (section 97)

8. Enterprise and Regulatory Reform Act
• First tranche of changes come into force on 25
June 2013
• Most other provisions are planned to either
come into effect in October 2013 or April 2014

9. Future developments
• Children and Families Bill
• statutory rights to leave and pay for parents and
adopters
• time off work for ante-natal care
• the right to request flexible working
• Fees in the Employment Tribunal: July 2013
• Issue fee (between £160 and £250); and
• Hearing fee (between £230 and £950)

10. Future developments
• Proposed changes to TUPE
• Repeal of Service Provision Change provisions
• Relaxation of restriction on changing terms and
conditions after a TUPE transfer
• Due to take effect October 2013

11. Queen’s Speech 2013
• National Insurance Contributions Bill: will
introduce an “Employment Allowance”
• Deregulation Bill: will repeal the employment
tribunal’s power to make wider recommendations
in discrimination cases and make changes to
encourage the use of apprenticeships
• Immigration Bill: threatens tougher penalties for
employers who employ workers who do not have
the right to work in the UK

12. Case Law Round-Up

13. Case Law Round-Up
• Employment Status & Volunteers
• Disciplinary Investigations & Dismissal
• Discrimination

14. Employment Status
• Does it matter?
• Employee? Unfair dismissal, redundancy
• Worker? Minimum wage, annual leave
• Volunteer? Discrimination?
• Case Law & Legislation
• Definition of “employee” in Employment Rights Act 1996
• Body of cases assist to determine whether “employee”
• Control, Integration, Personal Service and Mutuality
of obligation
• Also legislative provisions defining “workers”

15. Employment Status - Workers
• Equality Act 2010, s83(2)(a):
“Employment” means employment under a contract
of employment, a contract of apprenticeship or a
contract personally to do work …”
• Similar provisions in
• Working Time Regulations 1999, reg 2
• Agency Workers Regulations reg 2, reg 3(2)
• National Minimum Wage Act 1998, s 54(3)

16. Employment Status
• Drake v Ipsos Mori UK Ltd [2012] UKEAT/0604/11
• D worked for IM as Market Researcher on an
“assignment by assignment” basis from 2005 to 2010
• No written contract (of employment or otherwise)
• Told no obligation on him to accept work and no
obligation on IM to provide work
• Expressly told he was a worker rather than an
employee
• Given a Handbook stating once he accepted a job it was
a “verbal contract” and he was expected to complete it
within a deadline and according to certain

17. Employment Status
• Drake v Ipsos Mori UK Ltd [2012] UKEAT/0604/11
• IM removed D from its panel and he claimed UD
• D claimed each individual assignment was a contract of
employment, and there was an “umbrella contract”
linking the assignments
• D argued that he was bound to complete each
assignment once he had accepted it
• ET rejected the claim and D appealed to the EAT
• EAT upheld appeal – sufficient mutuality whilst
undertaking each assignment

18. Employment Status
• Hospital Medical Group v Westwood [2012] EWCA
Civ 1005
• GP providing hair restoration services through HM Group
• Agreement referring to W as “the Surgeon” and
described him as a “self-employed contractor”
• W could refuse assignments. No control by the employer
• Claimed unlawful deductions from wages and holiday pay
• He was NOT an employee, but he WAS a worker
• W was an integral part of HMG’s undertaking when
providing services

19. Employment Status
• Stringfellow Restaurants Ltd v Quashie [2012] EWCA
Civ 1735
• Q worked intermittently as dancer at S for 18 months
• Q was paid by customers and paid a fee to S
• Q claimed unfair dismissal when she was told that she
would no longer be permitted to work at the clubs
• Tribunal found that she was not an employee, so could
not claim unfair dismissal: there was no mutuality of
obligation
• EAT disagreed – she had been an employee and there
were mutual obligations during each night she worked

20. Employment Status
• Stringfellow Restaurants Ltd v Quashie [2012] EWCA
Civ 1735
• The CA held that Q was not an employee
• There was no obligation for S to pay Q - she took the
economic risk
• She negotiated her own fees and only received money
that had come from customers
• Terms of the contract stated that she was “self-
employed” and she paid her own tax

21. Employment Status
• Knight v Fairway & Kenwood Car Service Ltd
UKEAT/0075/12
• Agreement described K as “self-employed”
• Could work “as and when” he liked
• Was an “umbrella contract”, but it was not an
employment contract
• K did not have an obligation to perform a minimum
amount of work

22. Volunteers
• X v Mid Sussex Citizens Advice Bureau & Others
[2012] UKSC 59
• X was a volunteer adviser at CAB working 4-5 hours a wk
• She signed a Volunteer Agreement that stated "binding
in honour only … and not a contract of employment or
legally binding“
• CAB asked her to cease working, and she tried to bring a
claim under the Disability Discrimination Act
• The ET held that they did not have jurisdiction to hear
the claim. This was upheld by the EAT and CA as she was
not “in employment”

23. Volunteers
• X v Mid Sussex Citizens Advice Bureau & Otrs
[2012] UKSC 59
• X appealed to the Supreme Court
• Supreme Court dismissed her appeal
• She had no contract with the CAB nor did she fall
within the definition of an “office-holder”
• Clear from history of the European Framework
Directive that it was not intended that Article 3(1)
(a) should encompass voluntary work
• However, the Court appeared to accept that some
volunteers may fall within the definition

24. Unpaid Interns
• Government referral of 100 companies for
investigation by HM Revenue and Customs after
suggestion they might be breaking the law
through their use of unpaid interns
• Private Members’ Bill: The Internships
(Advertising and Regulation) Bill 2012-13 – failed
to progress

25. Disciplinary Investigations & Dismissal
• Stuart v London City Airport UKEAT0273/12
• S was a Ground Services Agent at LCA with a clean
record
• S picked up a number of items in the duty-free
shop and left the shop boundary to talk to a
colleague without paying
• S was apprehended for stealing, which he denied
saying he thought he was still in the shop area

26. Disciplinary Investigations & Dismissal
• Stuart v London City Airport UKEAT0273/12
• LCA did not review CCTV footage, nor interview
other witnesses
• LCA summarily dismissed S for dishonest conduct
and breach of trust
• S claimed unfair dismissal
• ET held that the investigation carried out was
reasonable, and it was fair for LCA to dismiss S

27. Disciplinary Investigations & Dismissal
• Stuart v London City Airport UKEAT0273/12
• S appealed to the EAT & the EAT allowed the
appeal
• Serious allegations of dishonesty required careful
examination
• “Exculpatory” evidence should be investigated
(i.e. evidence that could clear the employee)
• This meant that decision could not be founded on
a reasonable belief formed after a reasonable
investigation

28. Discrimination
• CJEU decision: Accept v Consiliul National pentru
Combaterea Discriminarii - comments by
associated third party
• Statements made by someone not legally
responsible for an organisation can still be taken
into consideration for reversing the burden of
proof

29. Discrimination
• Balancing Competing Rights: Eweida v UK;Chaplin
v UK; Ladele v UK and McFarlane v UK
• Religious Symbols
• Right to conscience and religious freedom against
the rights of others

30. Cardiff Derby Nottingham
Thank You

31. Contact Details
Stephen Jenkins
DD : 029 2039 1730
stephen.jenkins@geldards.com
Kate Miles
DD : 029 2039 1709
kate.miles@geldards.com