1. EMPLOYMENT BULLETIN
APRIL 2010
CONTENTS:
• Discipline: Injunction granted to prevent NHS from disciplining consultant;
• Discipline: Conducting disciplinary before a grievance appeal not unfair;
• Constructive dismissal: Objective test and “curing” the breach;
• TUPE: Changing service provisions;
• Volcanic ash absences;
• Age discrimination: Requirement to hold a law degree not age discrimination;
• Holidays: Moving from full-time to part-time employment status;
• DDA: What amounts to a reasonable adjustment;
• Date of termination;
• Race discrimination: Employer not liable for abuse by agency worker;
• Post employment obligations;
• Constructive dismissal: Breach by employee;
• Contempt of court;
Margaret-Anne Trench – Solicitor
20 Green Lane, Lower Kingswood, Surrey, KT20 6TB
T: 01737 833850 M: 07900 490070
Regulated by the Solicitors Regulation Authority (SRA No: 469453)
Member of the Employment Lawyers Association
VAT registration number: 941 1724 41
www.barrco.org.uk

2. Discipline: injunction granted to prevent NHS from disciplining consultant
Where an employer has failed to follow a contractual disciplinary procedure, an employer’s
remedy for breach of contract will usually be limited to loss of earnings for the period of time
it would have taken to operate the procedure correctly. Previous attempts have been made
unsuccessfully by employees to seek injunctions in relation to breach of disciplinary
procedure, both while employment was continuing and once employment had ended.
However, in a recent case, an employee has been successful in obtaining, firstly an
injunction to prevent an NHS Trust from suspending her, and subsequently, successful in
obtaining an injunction to prevent her employer from disciplining her, in breach of a complex
disciplinary procedure. Notably, the cases to date in this area have concerned public
authorities, reflecting the fact that their contractual disciplinary procedures are more complex
and likely to make them vulnerable to this kind of claim for breach of contract. This case is a
reminder to employers to ensure that any disciplinary procedure is non-contractual or if it is
already contractual then it is followed when disciplining employees.
Discipline: conducting disciplinary before a grievance appeal not unfair
When employees raise a grievance during disciplinary proceedings, it is normally considered
best practise to adjourn the disciplinary hearing and deal with the grievance first. The
employees in the current case did submit a grievance which was not upheld. They refused
to implement their employers request to reduce additional staffing hours, arguing that their
employer had to hear their grievance appeal first. However the employer proceeded with a
disciplinary hearing, which the employees refused to attend and dismissed them in their
absence. The Employment Appeal Tribunal held that it had not been necessary for the
employer to complete the entire grievance procedure (including appeal) before conducting
the disciplinary hearing. It held that only in the rarest of cases would a dismissal be unfair
where the employer proceeded with a disciplinary process before hearing a grievance
appeal. Such cases might include where there was some clear evidence of unfairness or
prejudice to the employee. This was not the case in the current matter, particularly given the
fact that if the employees had attended the disciplinary hearing, they could have raised the
points they intended to raise at the forthcoming grievance appeal.
Constructive dismissal: objective test and “curing” the breach
The Court of Appeal have confirmed that the correct test when an employer is alleged to
have committed a fundamental breach of contract is an objective test and should not be
assessed by reference to a range of reasonable responses tests (which has limited
application only to ordinary unfair dismissal cases). In addition, an employer cannot “cure” a
breach whilst the employee is considering whether or not to accept it as an act of
constructive dismissal. That said, in practise, if an employer does uphold a grievance,
admitting that a breach has occurred, and then takes steps to remedy that breach, in many
circumstances this will appease the employee and prevent them from resigning and claiming
constructive dismissal.
TUPE: Changing Service Provisions
Margaret-Anne Trench – Solicitor
20 Green Lane, Lower Kingswood, Surrey, KT20 6TB
T: 01737 833850 M: 07900 490070
Regulated by the Solicitors Regulation Authority (SRA No: 469453)
Member of the Employment Lawyers Association
VAT registration number: 941 1724 41
www.barrco.org.uk

3. A recent case addressed the question as to whether the employment contracts of some
employees automatically transferred by operation of the law under the service provision
change provisions where some of the work was not transferred. The case involved a firm of
solicitors who provided dedicated staff to look after the affairs of one particular client. That
client moved its instructions in relation to new work to a different firm of solicitors but
continued to use the original firm to complete work in progress. It was held in those
circumstances that the employment contracts of the dedicated staff were not automatically
transferred to the new law firm because they were required to remain with the original firm in
order to complete the work in progress.
Volcanic ash absences
Over recent weeks many employers have been faced with the dilemma of what to do in
practical terms when staff are unable to come to work effectively through no fault of their
own. Whilst this recently has been the case in relation to flight disruptions due to the clouds
of volcanic ash, there are a number of other situations, such as the travel chaos during the
big freeze or flight cancellations due to terror threats or other acts of god, where employers
will be faced with the same dilemma. Ultimately it is the employee who is responsible for
getting to work and if they have failed to turn up for work due to a cancelled or delayed flight
they have no automatic right to be paid (unless their contract of employment states
otherwise). However, in taking this strict approach, employers may wish to balance this
against potential negative consequences such as a reduction in staff morale. In such
circumstances, employers may choose to take a more flexible approach by agreeing to allow
the employees to take the leave from their annual leave entitlement, treat the time off as
special paid leave or pay the employee as normal, provided that they make up the lost time
over the coming weeks. Another possibility, where possible, is that employers may also
wish to consider requesting that employees work remotely by using hotel or airport business
facilities or via their blackberrys or laptops. In order to be prepared for any similar issues in
the future, employers may therefore consider developing a Catch All Policy, dealing with no
fault absences from work which gives clear guidance for staff and sets expectations for all
parties at the outset.
Age discrimination: requirement to hold a law degree not age discrimination
In an important age discrimination case, the Court of Appeal has upheld that the introduction
and application by the employer of a law degree requirement for career progression to the
top level of its career structure had not put the employee and others in his age group (60-65)
at a particular disadvantage. The employee had been unwilling to undertake the
qualification because of his age (he was 61 and due to retire at 65 so would not have had
time to complete the degree before his retirement) and argued that the law degree
requirement constituted indirect age discrimination. The Court of Appeal confirmed that the
barrier to the employee’s career progression was not one of age as there was no age
restriction for taking the degree but was one of retirement before being able to obtain the
qualification for appointment. The same result would have applied to anyone else of a
different age who left the job before obtaining their degree. Interestingly the Court noted that
the employee did not argue that those in his age group would find it harder to meet the
requirement as they were less likely to have a law degree, or that it was in fact more difficult
for a person in his age group to obtain a law degree. Thus these arguments remain open to
Margaret-Anne Trench – Solicitor
20 Green Lane, Lower Kingswood, Surrey, KT20 6TB
T: 01737 833850 M: 07900 490070
Regulated by the Solicitors Regulation Authority (SRA No: 469453)
Member of the Employment Lawyers Association
VAT registration number: 941 1724 41
www.barrco.org.uk

4. employees in similar situations in the future and could produce a different outcome
depending on the circumstances.
Holidays: moving from full-time to part-time employment status
In what seems to be dealing with an obvious point, the European Court of Justice has held
that a reduction of working hours when moving from full-time to part-time employment does
not reduce the right to annual leave that the worker has accumulated during the period of
full-time employment. During the time they worked full-time they are still entitled to their full-
time entitlement which is only reduced upon commencing part-time hours.
DDA: what amounts to a reasonable adjustment?
What is a reasonable adjustment under the DDA depends on the facts of each case.
However, this particular case demonstrated that an employer who completely fails to even
consider and discuss adjustments, before simply terminating an employees employment on
the grounds of medical retirement, is likely to face a very difficult task explaining itself to an
employment tribunal. The swapping over of a disabled post holder with another post holder
within the same organisation, to avoid dismissal or medical retirement, can be a reasonable
adjustment. This is what had been proposed by the employee in question, but was simply
ignored by her employer allowing the tribunal to find that there had been discrimination
through the failure to make reasonable adjustments.
Date of termination:
The High Court has held that an employer must expressly state it is summarily terminating
an employee’s contract under a PILON clause. It held that the employee’s employment
contract did not terminate on the date his employer made a payment in lieu of notice silently
to him. The contract continued until the date the employer unequivocally communicated its
decision to exercise its contractual right to summarily terminate by making a payment in lieu
of notice.
Race discrimination: employer not liable for abuse by agency worker
The EAT has held that a tribunal was wrong to hold an employer liable for the racial abuse
suffered by its employees at the hands of an agency worker. The facts did not support a
finding either that the worker was an employee for whose actions the employer could be
held liable, or that the employer had knowingly aided the workers actions.
Post employment obligations
Last month I reported on a case involving a number of brokers who had moved to work for a
competitor in breach of restrictive covenants and their ongoing duties. Other important
points coming out of the decision are:
1. Contractual provisions requiring employees to report to their employer any approach
by a competitor are enforceable;
Margaret-Anne Trench – Solicitor
20 Green Lane, Lower Kingswood, Surrey, KT20 6TB
T: 01737 833850 M: 07900 490070
Regulated by the Solicitors Regulation Authority (SRA No: 469453)
Member of the Employment Lawyers Association
VAT registration number: 941 1724 41
www.barrco.org.uk

5. 2. A senior manager has a duty to report a proposed poaching raid of his team by a
competitor and to follow his employer’s instructions to prevent the raid;
3. It is a breach of duty for an employee to disclose information to a competitor to
assist the competitor to poach the employees, even if that information is not
confidential.
Constructive dismissal: breach by employee
A recent case held that an employee could not claim constructive dismissal if he himself had
committed a repudiatory breach of contract before his employer had breached his contract of
employment entitling him to resign. The High Court has now held that this decision was
wrong: such a claim is possible, although the employee’s prior conduct will be relevant in
considering whether the employer has sufficiently damaged trust and confidence to support
the constructive dismissal claim.
Contempt of court
Although this recent case concerned a former employee it would also be relevant to any
evidence given by a company in legal proceedings. The High Court sentenced the former
employee to three years imprisonment, suspended for 18 months, for contempt of court.
The employee was dismissed for carrying on personal account trading in breach of both
company policy and FSA requirements. When a routine forensic examination of his
computer suggested that large amounts of confidential data had been uploaded to various
internet accounts, the employer applied for a Search and Seize Order which was endorsed
with a penal notice. The employee accepted that he breached the order, he lied to the
search party about whether he had confidential information, he lied about the content of the
uploads and failed to reveal at least one computer hard drive containing back-up material.
He had also committed purgery when he swore an Affidavit that he had complied with the
order, knowing that to be untrue.
and finally….
A retired art teacher has lost his claim that he was a victim of disability discrimination
because he is bald!
Homer has been referred to in English cases many times but such allusions previously only
referred to the ancient Greek poet. However, for the first time a British lawyer has citied
Homer Simpson in court. The client had pleaded guilty to a firearms offence, having been
caught with a million-volt Taser gun which he had fired at his own chest “to test it”. To
mitigate the offence, the lawyer told the court: “There have been scenes in The Simpsons
when Homer has given himself electric shocks and leapt in the air screaming with his tongue
hanging out. This was a bit like that”!
Disclaimer
The information contained in this Bulletin is only intended as summary guidance. No liability
is taken for reliance upon it, without seeking further advice and assistance.
Margaret-Anne Trench – Solicitor
20 Green Lane, Lower Kingswood, Surrey, KT20 6TB
T: 01737 833850 M: 07900 490070
Regulated by the Solicitors Regulation Authority (SRA No: 469453)
Member of the Employment Lawyers Association
VAT registration number: 941 1724 41
www.barrco.org.uk