This employment bulletin from May 2010 summarizes several recent employment law cases: 1) A solicitor lost claims for unfair dismissal and sex discrimination related to her pregnancy, as documents showed performance issues predated her disclosure. 2) An employment tribunal found that retiring football assistant referees at age 48 constituted age discrimination, as the employer could not justify that specific age. 3) The new UK government planned to phase out the default retirement age of 65, which was outlined in the Conservative-Liberal Democrat coalition agreement.

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EMPLOYMENT BULLETIN
MAY 2010
CONTENTS:
• Sex discrimination: dismissal not pregnancy based;
• Age discrimination: retirement age of 48 not justified;
• Default retirement age
• Dismissal: previous incident can be taken into account;
• Businesses report increase in whistleblowing measures;
• Drinking on duty: clear policies needed;
• TUPE: exemption applies where company was in liquidation;
• Disciplinary hearing: right to legal representation;
• Age discrimination: £180,000 compensation awarded;
• Dismissal: “could be dismissed” not actual dismissal;
• Dismissal: adequate investigation required;
• Disability: not for an employer to assert a disability;
• Constructive dismissal: claims successful after years of unwanted conduct;
• National identity cards to be scrapped;
• Discipline: discretion to postpone disciplinary proceedings pending police investigation;
• Vicarious liability: liability for wrongful acts of employees;
• Parental leave: carrying forward of holidays;
• Changing bonus schemes;
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. Sex discrimination: dismissal not pregnancy based
A solicitor has lost her claim for unfair dismissal and sex discrimination on the grounds of her
pregnancy, based on allegations that there was an “old boys club” culture at the firm, and
there had been an instance of sexual harassment where she was slapped on the bottom by
a senior managing partner. The tribunal dismissed her claims on the basis that the
documents they were shown made it abundantly clear that the writing had been on the wall
for her at a much earlier stage – well before she had made her disclosure. In relation to the
alleged instance of sexual harassment, it had been noted that she had laughed it off at the
time. The case is a clear reminder to employers that when they are not happy with an
employee’s performance or conduct they should start a documentary trail at the earliest
possible opportunity in order to justify the true reasons for a dismissal in the event that
matters reached that stage.
Age discrimination: retirement age of 48 not justified
An employment tribunal has decided that a retirement age of 48 for football assistant
referees was direct age discrimination that could not be justified as a proportionate means of
achieving the legitimate aim of creating career progression opportunities. There were no
alternative means of achieving the employer’s aim that were less discriminatory, and the
employer was not able to explain why it applied a retirement age of 48 rather than any other
age. This case highlights the difficulties in justifying retirement below the current national
retirement default age of 65.
Default retirement age
The Conservative and Liberal Democrat Coalition Agreement provided some clues as to the
future development of employment law under the new Government. One of the key areas
affecting employment law is the current default retirement age of 65. In their manifestos, the
Conservatives promised to review how to abolish the default retirement age, while the
Liberal Democrats wanted to see it scrapped. Given this shared objective, it comes as no
surprise that the Agreement records that the default retirement age will be phased out.
However, it is silent as to any timetable for change and it is expected that such timing will be
hotly contested. The Agreement also outlines the impact on public sector employment
through the proposed deficit reduction, together with bringing forward detailed proposals for
both manifesto commitments to restricting banker’s bonuses.
Dismissal: previous incident can be taken into account
The EAT has held that when deciding whether to dismiss for gross misconduct, an employer
was entitled to take into account a previous similar incident for which no formal warning had
been given. The employee was an administrator in a school for children with social and
emotional difficulties and in May 2007 had been verbally told not to intervene when teaching
staff were restraining a difficult child. No further formal discussion or disciplinary action took
place regarding the incident but there was a similar incident some months later which
resulted in her dismissal for gross misconduct. In reaching its decision to dismiss, the
school took into account that because of what had been said to her at the incident in May,
the employee knew that she was not to interfere when the October incident occurred. The
EAT held that the first incident was part of the relevant background to the later incident for
which the employee was dismissed. This reminds employers that all relevant circumstances
to an incident should be taken into account when considering whether to dismiss. However,
note that such incidents must relate to a similar type of conduct and that incidents for which
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 warning has already been issued cannot be redetermined, although where a warning has
previously been given, this can of course be taken into account.
Businesses report increase in whistleblowing measures
The latest International Business Report survey from Ground Thompson UK LLP has found
that over half of UK businesses are now equipped with measures enabling whilstleblowers to
report suspect activities in their workplace. The survey found that 54% of the 500 privately
owned businesses it questioned had implemented hotlines, a 35% increase from last year.
In addition, the survey found that 49% of the businesses questioned employ specialist fraud
detectors, a 12% increased from the previous year.
Drinking on duty: clear policies needed
The importance of clear policies has been illustrated by a case involving a shandy drinking
caretaker. The employee had been employed for nearly three years by a company which
owned and managed student accommodation. One afternoon he decided to spend his
break in the nearest local hostilitary, where he ordered himself a lager shandy. This led to
disciplinary proceedings against him which culminated in a letter stating “you consumed
alcohol during work time and unfortunately that is deemed as an act of gross misconduct, so
I am sorry to say that we are going to have to say goodbye to you”. The tribunal held that
the employee was unaware that he was in breach of the company’s policy by consuming
alcohol at a break time and that the company’s policy on alcohol was “unclear and
confusing”. The employee was awarded almost £13,000 in compensation providing a stark
reminder to employers of the importance of having clear policies in place.
TUPE: exemption applies where company was in liquidation
Even where a company opted (under pressure from a prospective buyer) to go into
liquidation, specifically to avoid the TUPE regulations, nonetheless this was not a sham, or
improper, provided the aim was to liquidate that company’s assets. Administration “rather
than liquidation,” if being conducted with that aim, will also fall within the definition of
“analogous insolvency proceedings” where the TUPE exemption will apply.
Disciplinary hearing: right to legal representation
Case law has determined that an individual employed by a public body has the right to be
legally represented at a disciplinary hearing where their employability in their profession is at
stake. In a recent case an individual working for a private body failed to obtain a declaration
that she may be permitted legal representation at her disciplinary hearing because the
matter was essentially a private law employment case with a standalone disciplinary issue
as to whether she had breached the terms of her employment. As a result, she was not
entitled to have legal representation but in accordance with the ACAS code was entitled to
bring a trade union representative or a fellow colleague, unless the employer agreed
otherwise.
Age discrimination: £180,000 compensation awarded
An NHS manager has been awarded damages in respect of her successful age
discrimination and victimisation claims while working for Leeds teaching hospitals NHS trust.
She was awarded £29,500 for injury to feelings (compensation for the age discrimination
element), £5,000 aggravated damages (for the high handed, insulting and malicious way the
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. Trust had dealt with her when she pursued her grievances about age discrimination and for
the conduct of the tribunal proceedings) and a further £147,000 for loss of income and
pension. The case highlights the size of compensation that can be awarded in age
discrimination cases, particularly where employees can provide evidence of their reduced
prospects in obtaining future employment because of their age.
Dismissal: “could be dismissed” not actual dismissal
Under the Employment Rights Act, an employee is dismissed if their contract is terminated
by their employer. In a recent case the EAT ruled that when an employee was sent off site
(at the clients request) and was then considered (unsuccessfully) for alternative roles within
the company, and was not being paid in the meantime (it being an accepted common
concept in the security industry that no work means no pay), he had not been dismissed.
There was no effective date of termination – all that had happened was that he was warned
that he could be dismissed if no alternative roles could be found for him within the company.
On a separate note, however the EAT was concerned that the employee was alleging a
repudiatory breach by the employer. It was noted that removal from site, stopping pay and
the alleged harassment and discrimination on the grounds of race, were capable to amount
to a breach of the implied term of trust and confidence but this had not been an argument
that had been put forward by the employee at the tribunal.
Dismissal: adequate investigation required
When assessing the reasonableness of an investigation into misconduct with serious
consequences for an employee, the Court of Appeal has approved established principles
that the employment tribunal should take into account the gravities of the consequences on
the employee, where these are serious, the investigator must be “even handed” in looking
for evidence in the accused favour as well as evidence against them. An employer faced
with a conflict of evidence does not always have to decide that it “believes” one person and
not another. It could decide that the difference is merely one of perception, and that both
parties are telling the truth as they see it. Alternatively, it could decide that the conflict
cannot be resolved, in which case the accused employee must be given the benefit of the
doubt. The case concerned a nurse from the Philippines, whose dismissal had serious
consequences for her on the basis that the matter was reported to the police (although she
was acquitted) but she was also lost her right to remain the UK. The allegations against her
were that she had abused a patient in a number of ways, but the investigation was found to
be inadequate and her dismissal therefore unfair. Of particular concern, the investigator had
not made any notes of the interview with a witness and colleague, but had preferred their
evidence on the basis that they felt she was more convincing than the employee and had no
reason to lie. It was also noted that they had not in any way thought to question the
reliability of her evidence, some elements of which the tribunal found should have warranted
further enquiry before the dismissal (for example she had stated that the claimant had
looked through a window to see if she was being observed, whereas the investigating
manager admitted at the tribunal hearing that this would not have been possible because the
blinds would have been closed). The case is a reminder to employers that an adequate
investigation into gross misconduct is essential, particularly where there are likely to be
serious consequences for the employee.
Disability: not for an employer to assert a disability
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. After an employee had lost the sight in one eye, her manager had referred to her “disability”
and changed her duties. This was despite the fact that the employee did not consider
herself to be disabled and no medical evidence had been obtained or considered to support
the employer’s conclusion. In changing her duties, the employee considered this to be a
detriment and resigned, claiming constructive dismissal and disability discrimination, both of
which were successful. The employee’s concession that she was not disabled had been
made in a clear and detailed way on several occasions and was an informed decision as she
had previously been advised by both a solicitor and the CAB. However, note that direct
discrimination and harassment based upon a person’s perception of another’s disability will
be covered if/when the Equality Act 2010 comes into force this October.
Constructive dismissal: claims successful after years of unwanted conduct
It is well established law that to bring a claim for constructive dismissal there has been
unacceptable conduct by the employer, which breaches the implied contractual term of trust
and confidence, which is so serious that it goes to the root of the contract, entitling the
employee to resign with immediate effect and claim constructive dismissal. One of the
striking features of a recent case was the considerable length of time (between one and five
years) that the employees had put up with the “intolerable” conduct before resigning.
However, the fact that the employees had put up with the conduct and even initiated talk of a
sexual nature as a copying strategy to the sexual harassment they had been subjected to,
did not mean the conduct was not “unwanted” and their claims for sexual harassment and
constructive dismissal were successful following years of this unwanted conduct. The case
reminds employers of their obligation to address without delays complaints received by
employees with a view to knocking them on the head and resolving the situation at the
earliest opportunity.
National identity cards to be scrapped
The Government introduced the identity documents bill on 26 May 2010. The bill makes
provision for the cancellation of the UK national identity card, the identification card for EU
nationals and the destruction of the national identity register. However, the identity card for
foreign nationals (biometric resident’s permits) is to be retained.
Discipline: employer’s discretion to postpone disciplinary proceedings pending
police investigation
A recent case has shown that an employer has a wide discretion as to whether to postpone
internal disciplinary proceedings when there is an ongoing police investigation into the same
allegations. The case concerned a prison officer who was accused of orchestrating violence
among prisoners and planting drugs on them. The internal investigation was started in April
2006 but the employee was not dismissed until over a year later. He claimed unfair
dismissal and initially won, essentially because the tribunal considered that the delay in
dismissing him was “lengthy and unacceptable”. However, the Prison Service won on
appeal on the basis that the EAT considered that a decision maker forming a view on
whether disciplinary proceedings should be continued alongside a criminal investigation has
a wide discretion.
Vicarious liability: liability for wrongful acts of employees
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

6. Until the late 1990’s the basic test for deciding whether an employer should be held liable for
the wrongful act of an employee was to consider whether the employee had used an
unauthorised method to do a job he was authorised to do (in which case the employer would
be vicariously liable) or whether the employee was simply doing something which was
unauthorised (in which case the employer would not be vicariously liable). In 2001 the
House of Lords ruled that the correct test was to concentrate on the connection between the
nature of the employment and the particular wrong and to ask whether, looking at the matter
in the round, it was just and equitable for the employer to be liable. Following this ruling, in
recent years the tendency has been towards more liberal protection of the parties. However,
a recent Scottish case has shown that in spite of this tendency there are limits. The court
held that the employer was not liable for a wrongful act of the employee even though it was
done in the workplace, during working hours, because it was “an unrelated and independent
venture of the employees own: a personal matter, rather than a matter connected with his
authorised duties). The case involved a female worker who was grabbed by the hair by a
male colleague and was injured when her head was pulled right back. However, based on
the above comments of the court, she lost her claim and her appeal too.
Parental leave: carrying forward of holidays
Last months bulletin reported on a European decision which held that workers moving from
full-time to part-time work should not suffer a reduction in their right to be paid their full
annual leave that had accumulated before they changed to part-time status. A further
European decision has now also suggested that UK workers on parental leave at the end of
the holiday year should be able to carry over the untaken holiday entitlement that they
accrued before their parental leave started, if they do not have sufficient time to take it
before the end of the employers current holiday year.
Changing bonus schemes
Employers who attempt to dress up what is intended to be a purely discretionary bonus in
the language of entitlement are likely to be caught out, as the reservation of discretion must
be absolutely clear. A bonus scheme set out a formula applicable to a 2008 bonus, but went
on to reserve the right to change the formula linked bonus arrangement at any time. The
Court of Appeal ruled that this wording simply allowed the employer to use a different
formula in future years, not to change the formula set for 2008. The employer had also
sought to change the employee’s terms and conditions, including removing the bonus, and
had asked the employee to sign to indicate his acceptance. Because the change had no
immediate impact on the employee and the employee had not signed as requested there
was nothing to suggest that his continued work amounted to a deemed acceptance. This
highlights the importance of following up a response from the employee where they have
been asked to agree changes to terms.
Disclaimer: the information contained in this Bulletin is only intended as summary
guidance. No liability is taken for reliance upon it, without seeking further assistance
and advice.
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