The newsletter provides updates on recent employment law cases and issues. Key points include: 1) An article examines when the effective date of termination occurs, using a recent case to illustrate that resignation takes effect immediately unless agreed otherwise. 2) Another article discusses a case where emails raising safety concerns about driving in snowy conditions were considered a protected disclosure for whistleblowing purposes. 3) An overview is given of significant legal changes expected in 2014, including key cases on collective redundancy consultation and shared parental leave.

1. BHW Employment Law
Newsletter
Winter 2013

2. Welcome to the Winter 2013 edition of the
BHW Employment Law Newsletter.
Why is it important for employers
and employees to be clear on the
effective date of termination? Our
article on page 3 considers the
legal implications in getting this
wrong.
Can emails raising concerns about
the dangers of driving in snowy
conditions amount to a qualifying
disclosure? Our article on page 4
focuses on a recent case.
Page 5 considers how far employers
need to go to accomodate their
employees religious beliefs.
What happens to your employee’s
LinkedIn account when they leave?
Page 6 looks at a recent High Court
decision.
2014 looks set to bring in significant
legal changes/decisions. An overview
is set out at page 7.
We look at the most common issues
raised at a Disciplinary Hearing at
page 8.
Finally, if you have any questions
relating to the articles featured in the
Newsletter or would like advice on a
particular query you may have, please
do not hesitate to contact me to
discuss further.
Laura Allanson
Head of Employment
0116 281 6237
laura@bhwsolicitors.com
Inside this issue
The effective date
of termination 3
Could the concern of
an employer about their
employees driving in
the snow amount to a
‘qualifying disclosure’? 4
How far do employers
need to accommodate
their employees
religious beliefs? 5
When is it reasonable to
refuse suitable alternative
work in a redundancy
situation 5
Former employee
ordered to give
employer log-in details
of LinkedIn account 6
Significant changes/
decisions expected
in 2014 7
The most common
issues raised at a
Disciplinary Hearing 8
BHW Employment Law
Newsletter
2
Editor Laura Allanson. Articles produced by Laura Allanson and Claire Bell.
Laura Allanson is an Associate Solicitor and
heads up the Employment department.
She has over 11 years’ experience of dealing with
contentious and non-contentious employment
matters. Laura joined BHW after 10 years with the
National Farmers Union (NFU) and has a wealth of
agricultural and horticultural knowledge. Laura has
a real ability to ensure that her client’s problems are
resolved in a cost-effective and timely manner.
Claire Bell is a Solicitor in the Dispute
Resolution and Employment departments
and is involved with varied employment
and dispute resolution work.
Claire completed a 13 month secondment with
the Amateur Swimming Association and gained
extensive experience of sports law during her
time there.

3. 3
The effective date of termination
When an employee says that they have no alternative but to
resign, it is unclear when the employment relationship comes
to an end given the “heat of the moment” resignation.
The effective date of termination is
crucial as it will determine whether or
not the ex-employee has the requisite
service to bring a claim for unfair
dismissal, whether or not a claim is
brought in time in the Employment
Tribunal and for calculating the basic
award in an unfair dismissal claim.
The recent case of Secretary of State
for Justice v Hibbert explored this
point.
Further to Mrs Hibbert’s grievances
not being upheld by her employer, on
the 29th June 2012, she wrote to her
employer stating the following:
“I am of the view that there has
been a fundamental breach of
my employment contract by my
employer and I have no alternative
but to resign from my position”. The
employer attempted to persuade her
not to resign and gave her five days
to review her decision.
Mrs Hibbert’s resignation was
accepted by her employer on the
11th July 2012, but also informed
her that she was required to give four
weeks’ notice and therefore her last
working day was the 27th July 2012.
Mrs Hibbert subsequently lodged
an unfair dismissal claim which was
more than 3 months from her letter of
the 29th June 2012 but it was within
three months of the 27th July 2012.
The Employment Tribunal considered
whether her claim was lodged in
time. Mrs Hibbert argued that her
employment terminated on 27th July
2012.
The Employment Tribunal ruled that
her resignation took effect from the
27th July 2012, they also stated that
her letter was “unambiguous as to
resignation, but not as to the date on
which the termination of the contract
should take effect or as to whether
any notice was given or the date on
which it would expire”.
The Employment Appeal Tribunal
ruled differently that the wording was
in fact unambiguous. There was no
question of Mrs Hibbert resigning
in the heat of the moment or being
pressured to do so, therefore her
employment terminated on the 29th
June 2012 and therefore her claim
was out of time.
The case demonstrates the
importance of the date of the
resignation being certain and
therefore when the employee resigns,
then the working relationship also
ends.
Previous cases have shown that
the employer should check the
employee’s real intention and may
wish to agree a resignation date.
In cases where the employee is
determined to resign, then the
effective date of termination will
be the date the resignation was
provided.
If there is any doubt of the
employee’s intention then a cooling
off period of a day or two is advised.
A resignation in the heat of the
moment may not actually amount to
a resignation.

4. 4
The Employment Appeal Tribunal (EAT) has upheld a tribunal decision
that three e-mails raising concerns about the dangers of driving in
snowy conditions amounted to a qualifying disclosure for the purposes
of the whistleblowing provisions of the Employment Rights Act 1996.
The EAT has held in the case of
Norbrook Laboratories (GB) Ltd v
Shaw that a manager’s concerns
about employees driving in snowy
conditions could amount to a
‘qualifying disclosure’ about health
and safety for the purpose of
whistleblowing protection, despite
being expressed in three separate
e-mails to two different recipients.
S managed a sales team whose work
included driving to customers and
potential customers to obtain sales.
The winter of 2010 was particularly
severe and members of S’s team
raised concerns with him about
driving to appointments in the snow.
S e-mailed NL Ltd’s health and safety
manager asking whether the company
had a policy concerning driving in the
snow and whether it had done a risk
assessment. When S received replies
in the negative to both questions he
sent a follow-up e-mail to the same
manager asking for formal guidance,
stating that his team was under a lot
of pressure to keep on the roads and
that it was dangerous. Several days
later, following queries from his team,
S e-mailed a member of NL Ltd’s
HR department asking whether they
would be paid if they were unable to
attend appointments because of the
snow. In the same e-mail, S said that
he had driven on the roads himself,
knew how dangerous they could
be, and that he had a duty of care
towards his team.
S sought to rely on these e-mails as a
‘qualifying disclosure’ for the purpose
of claims that he subsequently
brought under Ss.47B and 103A of
the Employment Rights Act 1996
alleging that he had been subjected to
a detriment and ‘automatically’ unfairly
dismissed on the grounds of making
a protected disclosure. To qualify
for these purposes, a disclosure of
information is ‘protected’ if it tends
to show any of the matters set out in
S.43B(1), which include that a person
has failed, is failing or is likely to fail
to comply with any legal obligation to
which he or she is subject (S.43B(1)
(b)) and that the health or safety of an
individual has been, is being or is likely
to be endangered (S.43B(1)(d)).
At a pre-hearing review, an
employment judge concluded that
S’s communications taken as a whole
were capable of amounting to a
qualifying disclosure within S.43B(1)
(d) ERA. Although S was to some
extent expressing an opinion, the
judge concluded that S was also
informing his employer that the road
conditions were so dangerous that
the health and safety of his team was
being placed at risk. Consequently,
his claims of detriment and automatic
unfair dismissal could proceed. NL Ltd
appealed.
The Employment Appeal Tribunal
(EAT) upheld the employment judge’s
decision that the three e-mails
taken together could amount to
a qualifying disclosure within the
meaning of S.43B(1) ERA even
though they were not sent to the
same individual or department, and
taken separately each e-mail was not
such a disclosure. The EAT referred
to a previous case of Goode v Marks
and Spencer plc which was authority
that an earlier communication can
be read together with a later one as
‘embedded’ in it, rendering the later
communication a protected disclosure
even if, taken on its own, the later
communication would not fall within
S.43B(1). It was clear in S’s last
e-mail that he was referring to earlier
communications and its recipient
could have been in no doubt that
these had been about the danger of
driving conditions to his team.
Furthermore, in drawing attention to
the danger posed to his sales team
of driving in snowy conditions, S
was not just expressing an opinion
or making an allegation, which
case law has established do not
amount to qualifying disclosures. It
was unnecessary for S to provide
additional information as to which
territories or members of his team
were affected. In fact, in the EAT’s
view, it was unsurprising that S had
given no more specific information
since the weather conditions would no
doubt change from time to time and
from area to area.
Since the qualifying disclosure that
S relied upon fell within S.43B(1)
(d), there was no need to consider
whether it also amounted to a breach
of a legal obligation so as to fall within
S.43B(1)(b). S’s claims could proceed
to a full hearing.
It is advisable for employers to have a
policy on adverse weather to ensure
that it has exercised its duty of care.
The Employment Appeal Tribunal (EAT) has upheld a tribunal decision
E-mail correspondence taken as a whole
amounted to a qualifying disclosure

5. 5
How far do employers need to accommodate
their employee’s religious beliefs?
Many will recall the recent media coverage concerning Marks & Spencer’s (M&S) policy of
allowing their members of staff to refuse to service customers who are trying to buy pork or
alcohol. This generated much comment.
M&S have indicated that in the event an employee’s religious
beliefs restrict their ability to handle food or drink, then M&S
will work closely with the particular employee, to make sure
that they are placed in a suitable role. Unfortunately, on the
occasion which made the headlines this was not the case.
What does the law say?
Equality legislation states that employers must not indirectly
discriminate against employees by applying a policy or
practice that applies to all employees regardless of their
religion or belief but the effect of disadvantaging employees
of a particular religion or belief, unless the employer can
demonstrate justification for the policy or practice.
The Tribunal and Courts would need to determine:
1. Whether or not an objection to handle certain goods were
“intimately” linked to the religion or belief and;
2. The policy in question would disadvantage the employee
and others who shared his or her religious belief.
If the answer to both of the questions is yes, then they
would then need to consider whether or not the employer
could be justified in their actions.
The test would be whether or not there was a real business
need (legitimate business aim). In this case that the
supermarket’s customers should be able to purchase all
their groceries from each checkout without having to wait,
and whether or not the policy is proportionate to that aim.
This will require a balancing act between the needs of the
employer and the discriminatory effect of the policy. Each
case would depend on its facts.
Employers are always advised to have a policy to consider
employee requests and accommodate them as far as is
practical.
When is it reasonable to refuse suitable
alternative work in a redundancy situation?
The Court of Appeal case of
Readman v Devon Primary Care
Trust, has recently addressed the
test for whether an employee is
considered to be acting reasonably
if they refuse what appears to be
suitable alternative employment.
The Court of Appeal decided that the
matter should be remitted back to the
Employment Tribunal on the basis that
the test is not to “import” the band
of reasonable response test which
applies in unfair dismissal cases, but
whether the employee in their particular
situation, acted reasonably in refusing
the offer of employment.
The Employment Appeal Tribunal (EAT)
had previously found that the employee
in this case had not unreasonably
refused an offer of suitable alternative
employment and was therefore entitled
to receive their statutory redundancy
payment.
This case involved a nurse employed by
a NHS Trust since 1976. The employee
nurse was employed as a community
modern matron responsible for around
120 staff. Following an amalgamation
of services, the employee nurse found
that she was at risk of redundancy.
There were three offers made to the
employee nurse of alternative work,
two were at a lower grade and one at
the same grade based at the hospital
where the employee nurse’s office was
based. The employee nurse decided
to reject this offer on the basis that her
career path and qualifications were in
community nursing.
The employee nurse did eventually
commence employment in one of the
roles on a lower band but subsequently
received a job offer for a position in
Vancouver, Canada and therefore
terminated her employment during her
trial period.
The employee nurse brought a claim
in the Employment Tribunal (ET) for
payment of her statutory redundancy
payment. The ET found in favour of the
employer in that the offer made was of
suitable alternative employment, which
had been unreasonably refused by the
employee nurse.
The employee nurse appealed to the
EAT which found that the ET had not
considered the employee’s reason
behind her decision that she had
no desire to work back in a hospital
environment and that this was therefore
a justifiable reason for the refusal. The
EAT found that the decision to refuse
the offer had been within the band of
reasonable responses. The employer
appealed.
This case will be of concern to those
employers where there is an incentive to
redundancy over redeployment, such as
the NHS, local government or situations
where long service exists. This decision
supports the trend that employees
who have fairly subjective grounds
for refusing alternative employment
following restructures in particularly the
NHS and local government meaning
that these situations are potentially more
expensive and challenging than first
thought.
5

6. 6
Former employee ordered to give employer
log-in details of LinkedIn account
The High Court has
ordered that a former
employee hand over the
details of their LinkedIn
account which they set up
during their employment,
despite the account also
being used for personal
purposes.
Whitmar Publications Ltd v
Gamage and others
Three long-term senior employees of
a publishing company resigned from
their senior positions on 7th January
2013, stating their intention to set up
a competing company.
After their departure, it emerged
that in fact the competing company
had been established during their
previous employment.
The three employees had allegedly
while still employed by Whitmar
solicited or attempted to solicit
client’s and staff, used confidential
information, used LinkedIn groups
that were managed on behalf of
Whitmar in attempts to market the
new company and take circulation
lists and customer databases when
they left.
When one of the employees was
questioned regarding the use of the
LinkedIn groups, they claimed that
they were her own personal hobby.
She refused to reveal the username
and password to Whitmar and
continued her use of the account
post resignation.
The High Court upheld Whitmar’s
application for an injunction, pending
a full trial of the issues, as they found
strong evidence that active steps
had been taken by their former
employees for over a year before
their resignations.
The High Court also ruled that the
information that had been removed
by Whitmar was sufficient to provide
the new company with a competitive
advantage.
Following reviewing the use of the
LinkedIn account, the High Court
ordered that the employee should
deliver up the details that would
enable Whitmar to access and
amend the database.
The Court concluded that the
LinkedIn account was the property
of Whitmar and the log-in details
should be passed to it as they allow
ownership of the account.

7. 7
Significant legal changes / decisions
expected in 2014
There are a number of very important employment
law cases pending on the following:
1. Collective redundancy consultation
As a result of a decision of the Employment Appeal
Tribunal, an employer that is proposing 20 or more
redundancies across the whole organisation within
a period of 90 days or less will have collective
consultation obligations. This matter will now be put
before the Court of Appeal.
2. Calculation of holiday pay
The Employment Tribunal referred to the ECJ a
number of questions on the relationship between
holiday pay and commission, including whether or
not “normal pay” when calculating pay for annual
leave should include those contractual payment
which are received through commission.
3. Post - employment victimisation
Two separate Employment Appeal Tribunal cases
have arrived at different decisions regarding
whether or not the wording of the Equality Act 2010
covers victimisation that occurs after the end of
employment. The Court of Appeal will decide which
decision is right.
4. Maternity rights for mothers in a surrogacy
arrangement
As UK Law stands, mothers in a surrogacy
arrangement do not have the same employment
rights as conventional mothers, although the
government has said that they will look to amend
domestic maternity laws to take in account
surrogacy.
5. Discrimination against civil partners in
pensions
The Employment Tribunal held that the Equality Act
2010 failed to provide the necessary protection
under EU law for a couple in a civil partnership who
were denied accrual of benefits to which married
couples were entitled to under a pension scheme.
The EAT is currently considering whether this
decision is correct.
6. Disability discrimination
A Danish court has referred to the ECJ various
questions about whether or not obesity is covered
by EU legislation, including whether or not obesity
can be deemed to be a disability under the Equal
Treatment Framework Directive.
Keep looking out for these decisions and their
implications in future issues of our Employment
Newsletters.
Legislation update

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The most common issues
raised at a Disciplinary Hearing
XpertHR asked employers over a two year period how frequently
each of the following issues were the subject of disciplinary action.
The Respondents in the
survey could answer “never”,
“occasionally” or “frequently”.
The research looked at the
procedures of 166 employers.
In the two years that were
examined, the organisations
surveyed handled 5,145
instances of disciplinary action.
The results are as follows:
Disciplinary
Offence
Frequently Occasionally Never
General
Misconduct
43% 50% 7%
Poor Performance/
Capability
87% 13%
Poor Timekeeping 16% 59% 25%
Unauthorised
absence
70% 30%
Misuse of email,
internet or social
media
4% 58% 38%
Bullying and
Harassment
3% 53% 44%
Theft or Fraud 7% 40% 53%
Health and Safety 7% 42% 51%
Violence 0% 27% 73%
Substance misuse 1% 25% 74%
Discrimination 0% 19% 81%