The Parental Bereavement (Pay and Leave) Bill, introduced by Kevin Hollinrake MP, will give a day-one right to parental bereavement leave for any employed parent who loses a child under the age of 18. This right will supplement other rights to time off already granted to employees in law.
Employees with a minimum of 26 weeks’ continuous service will be eligible for statutory parental bereavement pay, for which employers will be able to reclaim some or all of the cost.
The bill received a second reading in Parliament on 20 October, with the aim of it becoming law in 2020. The proposals first emerged in the Conservative party manifesto earlier this year.
There is currently no legal requirement for employers to provide paid time off for grieving parents, although many do. Under the Employment Rights Act, employees have a day-one right to take a “reasonable” amount of unpaid time off work to deal with an emergency involving a dependant, which could include making arrangements following the death of a dependant.
Announcing the new bill’s publication, Margot James, business minister, said: “We want parents to feel properly supported by their employer when they go through the deeply distressing ordeal of losing a child. That’s why Government is backing this bill which goes significantly further than most other countries in providing this kind of workplace right for employees.”
Hollinrake added: “Sadly I have had constituents who have gone through this dreadful experience and while some parents prefer to carry on working, others need time off.
“This new law will give employed parents a legal right to two weeks’ paid leave, giving them that all-important time and space away from work to grieve at such a desperately sad time.”
Debbie Kerslake, chief executive of Cruse Bereavement Care, added: “It is vital that at such a distressing time those who are bereaved can take time away from work.”
Ben Willmott, head of public policy for the CIPD, said: “Our research shows many employers already offer their staff paid bereavement leave. This new law will build on this so all bereaved parents of children under the age of 18 will have the reassurance of knowing they don’t have to worry about work while they grieve for loved ones in the immediate aftermath of such a tragedy.

In a previous reported judgment in the case of Barbulescu v Romania where the European Court of Human Rights (ECtHR) found that an employer’s potential breach of an employee’s privacy was justified when it monitored an employee’s Yahoo Messenger account. Unusually there was an appeal within the ECtHR to the Grand Chamber and that decision has been reversed.
The case relates to a Romanian engineer whose employer asked him to set up a Yahoo Messenger account for work purposes. The employer had a strict rule in place confirming that it was forbidden to use computers for personal purposes. It should be noted that there was no reference to monitoring emails or computer use. In July 2007 the company monitored Mr Barbulescu’s Yahoo Messenger account and found that he was using it for private messages with his fiancé and his brother. The contents of the messages were both professional and personal and some related to Mr Barbulescu’s sex life and his health. When initially asked about his use of the Messenger account Mr Barbulescu claimed he abided by the company rules. However, he was subsequently presented with a 45 page transcript of private messages that the company had obtained by monitoring his account following which the company terminated his employment.
The ECtHR initially found that Article 8 of the European Convention on Human Rights (respect to private and family life) was engaged but that the Romanian courts were entitled to examine the private communications to determine whether the dismissal of Mr Barbulescu was justified.
Appeal to the Grand Chamber of the ECtHR
The Grand Chamber found that Mr Barbulescu had a right to privacy in the workplace and that he should have been warned in advance that his emails were being monitored – “it does not appear that the applicant was informed in advance of the extent and nature of his employer’s monitoring activities, or of the possibility that the employer might have access to the actual contents of his communications”. On this basis the Chamber found that the Romanian national courts had failed to protect Mr Barbulescu’s right to privacy.
When considering the expectation of privacy which an employee may have, the Grand Chamber confirmed that an employer’s policy cannot reduce private social life to zero.
Following the initial ECtHR judgment the tabloids jumped on the decision reporting employers’ right to spy on their employees. This was not the case and even when the previous judgment stood, it was still a question of reasonableness and proportionality to the business interest being protected.
With the reversal of the decision employers will have to be even more diligent and ensure that any monitoring of computer use and emails is justified. Employers will have to review contractual provisions and IT policies to ensure they clearly stipulate what personal use is acceptable and what monitoring could be carried out and for what purpose. Employees should be well informed of the level of privacy they can expect. The key message is still proportionality; although the case serves as a useful reminder for employers and employees, the law remains the same.

The Supreme Court has allowed the appeal by Unison, holding that the Employment Tribunals and the Employment Appeal Tribunals Fees Order 2013 (which led to a 70% reduction in claims) is unlawful and will be quashed.

In the main judgment, the Supreme Court noted a contrast between the level of fees in the tribunal, and the small claims court (where it is very much cheaper to bring a claim for a small sum of money). Lord Reed emphasised the importance of the rule of law, and that specific statutory rights granted by Parliament may not be reduced by statutory instrument from a minister. He relied on the fact that employment tribunal cases are important for society as a whole, not just the individuals involved. If the Fees Order prevents access to justice, it will be ultra vires.

And the Supreme Court held that the Fees Order DOES effectively prevent access to justice (at paras 90-98). It also held that the Fees Order imposed unjustified limitations on the ability to enforce EU rights (ie those claims based on EU law), and was thus unlawful under EU law.

Baroness Hale gave a separate, short, judgment on the indirect discrimination aspects of the fees regime. She concluded that it was indirectly discriminatory to charge higher fees for type ‘B’ claims (which include discrimination claims) than type ‘A’ claims.


First, it is unlikely the fees regime will be abolished entirely. It is probable that the government will issue a consultation paper and then bring in a new fees regime, with fees at a lower level and/or involving a fee payable by the employer when the employer lodges its ET3.

Second, the Employment Tribunals Service has its work cut out. Thought will need to be given to an immediate rewriting of the tribunal rules, and a reprogramming of the online Claim Form system.

Third, the Supreme Court made it clear that all fees paid between 2013 and now will have to be refunded by the Lord Chancellor’s Department (and the Lord Chancellor has agreed to do so). This is easier said than done – many successful claims will have had fees ordered to be paid by the Respondent, and there will probably need to be a manual trawl of all decided cases.

Fourth, what about all those people who chose not to bring a claim because of the fees? Will tribunals be amenable to the argument that it was not reasonably practicable to bring a claim when a Claimant was significantly impeded from doing so by an unlawful fees regime? Or that following today’s decision it is just and equitable to extend time for bringing a claim?

This months briefing note attempts to answer some of the tricky issues that can arise when employees raise grievances.
Q1: Who should deal with a grievance?
This will depend on what your grievance policy says about who will deal with grievances, who the grievance is about, the seriousness and complexity of the issues raised and whether the matter can be dealt with formally or informally. In many cases the employee’s line manager will deal with the grievance, with support from HR. If the grievance involves or is about the line manager, someone else should deal with it.
In complex cases you may need to appoint a separate investigator to carry out an investigation and prepare a report to be considered by the grievance hearer. In simple cases the grievance hearer can do the investigation, with support from HR. There are often benefits to appointing a grievance hearer who is outside of the employee’s team or department, as that person is more likely to be objective.
You should always tell the employee at the start of the grievance process who the grievance hearer will be. This enables them to raise any objections if, for example, they believe the grievance hearer is not sufficiently independent. If they do object to your choice of grievance hearer, consider whether it would be appropriate to change the grievance hearer, and provide reasons to the employee whatever your decision is.
In all cases the employee should have the right to appeal to a more senior and independent manager if they are not happy with the decision of the grievance hearer.
Q2: An employee has raised a formal grievance. We think it would be better dealt with informally. Can we suggest this?
Yes you can. You can’t force an employee to deal with a grievance informally however – if they insist that it is dealt with formally, you must do so.
When deciding whether to suggest that the grievance is dealt with informally, the main consideration is the type and seriousness of the complaint.
For example, it would be appropriate to suggest adopting an informal approach if an employee has been offended by an off-hand or stupid comment made by another member of staff, as an informal word with the employee in question may resolve the matter. It would not, however, be appropriate to suggest an informal approach if the relationship between the parties has broken down, or if the grievance raises serious issues such as bullying or harassment. In more serious cases a detailed and thorough investigation should be carried out and the employee should be invited to a formal grievance hearing.
Many issues can be dealt with informally even before a formal grievance is raised through the use of preventative measures such as:
• Regular communication between colleagues – and in particular regular 121 meetings between employees and their managers, which give staff the opportunity to raise any concerns they may have quickly and informally.
• Encouraging open dialogue and feedback between colleagues.
• Publicising your policies on grievances and on resolving disputes in the workplace, so that employees are aware of them and know what to do if they are worried or upset about something.
• Making it clear in the grievance procedure that informal resolution should be considered before raising a formal grievance.
• Responding to any informal verbal grievances appropriately with a considered and balanced response. You should keep a written record of the response (such as a note on the HR file, or an email to the employee confirming what you have told them) in case there is any suggestion at a later stage that you have not responded.
• Involving employees or their representatives when producing/updating the written grievance procedure.
• Training managers in how to recognise and deal with grievance situations effectively.
If a formal grievance has been raised, or it is more appropriate to deal with a grievance under your formal policy you could consider using workplace mediation as an alternative form of dispute resolution. This can be a much more effective way of resolving conflicts and helping to rebuild relationships, as it focuses on the future and working together, rather than on who is right and who is wrong.
Q3: We have carried out an investigation into the employee’s grievance. Do we have to provide the employee with copies of our investigation notes?
No, but it is good practice to do so. The notes will have to be disclosed if there is a subsequent tribunal claim, and may also have to be sent in response to a subject access request. It is good practice to assume that any notes or other documents gathered or prepared during the investigation may be seen by the employee in the future, and to provide them to the employee. It is quite common for employees who are disgruntled with the outcome of their grievance to make a request under the Data Protection Act to obtain copies of information held about them in the expectation that these will reveal something relevant. If you receive such a request, you will have to disclose all documents relevant to the investigation (in so far as they identify the employee) unless you can rely on one of the exceptions.
Generally, you can only refuse to disclose these documents if they contain information about another employee or information about a third party that is confidential (unless that employee or third party has consented to the disclosure). Even so, you should consider redacting (blocking out parts of the document that are confidential) or editing the documents to conceal the personal details of others before refusing to provide documents.
Q4: What should we do if an employee’s grievance repeats issues raised in an earlier grievance?
Explain that the issues have already been considered as part of the earlier grievance, and that you will not ‘re-open’ the earlier grievance. You are under no obligation to hear the same grievance from the same employee more than once. You are entitled to treat the outcome of the original grievance as final unless the employee successfully appeals the decision, the new grievance relates to a different issue or new evidence has come to light.
You should not jump to conclusions, even if on initial reading it appears that the grievance covers the same issues as an earlier grievance. It is sensible to speak to the employee to find out what has prompted their further grievance and find out whether a new issue has arisen or new evidence is now available. If this is the case, you should invite the employee to another grievance hearing and investigate as normal.
If there are no new issues or evidence, explain to the employee that the issues they have raised have already been dealt with as part of the earlier grievance and that you will not be investigating again. It may be best to explain this to the employee face to face, and follow up in writing.
Q5: Do we have to deal with a grievance raised by an employee who has now left our employment?
In most cases – no. Before making a decision as to whether to deal with the grievance consider the risks and benefits of doing so. The factors that you may want to take into account in deciding whether to deal with the grievance include:-
• Whether the employee was still employed when they raised the grievance (if they were there is a stronger case for dealing with it).
• Is the employee likely to bring a claim?
• The nature of the grievance.
• Are the issues ones that need investigating to protect other employees and your organisation?
If the complaint is of bullying or discrimination and you think there may be some merit in it, consider investigating so that you can then use the findings of the grievance investigation in disciplinary action against the person complained about.
Q6: We are taking an employee through a performance management process and have issued her with a written notice. She has raised a grievance and is alleging that the manager is treating her unfairly. How should we proceed?
It is not uncommon for this to happen and you have a number of options open to you:
• Deal with the grievance separately;
• Temporarily suspend the performance management process to deal with the grievance; or
• Deal with the grievance and the performance management together.
If the grievance is unrelated to the performance management process, is straight-forward and the facts are not in dispute, deal with the grievance separately to the performance management process without suspending the performance management process. This should avoid delays to both processes.
Temporarily suspending the performance management process will give you time to properly investigate and consider the merits of the grievance. It will also mean that the outcome of the grievance will be entirely separate from the performance management process. The downside however is that the poor performance is likely to continue whilst the grievance is investigated, and employees may come to see raising a grievance as a ‘defence’ against performance management.
If the grievance is related to the way in which the employee has been performance managed it is often sensible to deal with both issues at the same time. This might arise, for example, where the employee argues that their line manager is being “too hard”, bullying them or is not providing them with adequate support to improve. In this situation, the employer should hold a meeting and allow the employee to set out the grounds for the grievance as part of the performance management process.
Whichever approach you take, make sure that you do properly investigate and deal with the complaint and have a written record of having done so.
Q7: Over the last two years an employee has raised a number of grievances against different members of staff. None have been upheld. Can we warn her that if she raises any further grievances without foundation she may be dismissed?
Possibly, but we would not recommend doing so unless you have taken legal advice, as this can be extremely risky.
Raising unfounded grievances can be treated as a disciplinary issue if the employee has acted dishonestly or maliciously. Proving that someone has acted dishonestly or maliciously is difficult. Often, employees genuinely believe what they are complaining about, and it is ‘their truth’ – in which case disciplinary action would be inappropriate. If, however, you have concluded (based on evidence) that an employee raised a grievance purely as an act of retaliation against a manager that the employee disliked, this would be dishonest and malicious and could be dealt with as a disciplinary issue.
Very few cases are this cut and dried. Often employees will raise issues in good faith (in the sense that they genuinely believe that they have been treated unfairly) and provided they have done so, you will not normally be able to discipline them simply because they raise further complaints.
That said, it does not mean that you have to put up with this indefinitely. A good starting point would be to suggest workplace mediation in the hope that the underlying issues or tensions causing the complaints can be dealt with. If this is unsuccessful, or the employee refuses to engage with it you may be able to discipline him/her if they then raise further unsubstantiated grievances. You will have to show that the trust and confidence between you and the employee had broken down to such an extent that you can no longer continue to employ him/her. Before dismissing you will need to follow a fair procedure which will usually mean that you must warn them first that they may be dismissed if they do not change their behaviour.
You must be particularly careful if the grievances raised by the employee are about alleged discrimination as the employee may be able to successfully argue that their dismissal is an act of victimisation (which is a separate category of discrimination) or the allegations raised amount to a protected disclosure (whistle-blowing).

What is overtime?
An employee’s Contract of Employment will specify what the employee’s working hours are. If an employee works more than these hours, this will normally be considered overtime.
Can Employers force an employee to work overtime?
Employees will only be required to work overtime if their Contract of Employment clearly specifies this. If there is not such provision in the contract, it can only be added via consultation with the employee and their subsequent consent.
In accordance with the Working Time Regulations, employees cannot work more than an average of 48 hours per week. The average is worked out over a 17 week reference period. When calculating average hours, time taken as statutory annual leave or sick leave does not count.
The employee can opt out of this working week limit by agreeing to this in writing. In many cases, employers have a specific clause in the contract which says the employee agrees to opt out of this 48-hour working time limit and they may choose to terminate this agreement to opt out of the working time limit by giving notice in writing. This notice must be at least seven days, but cannot be more than three months.
Remember there are different rules in place for young workers – someone over the compulsory school age, but still under the age of 18. They are normally not permitted to work more than 8 hours a day and 40 hours per week.
Do Employers need to pay employees for overtime?
Employers are under no obligation to pay workers for overtime, but the employer must ensure that the employee’s average pay for all the hours they have worked does not dip below the relevant minimum wage. However, having said this, a sensible employer will want to encourage an employee to work overtime and this can only really be done by paying them more to do it.
If the employee is paid overtime, this should be clearly set out in the Contract of Employment, stating overtime rates of pay and how these are calculated.
In some cases, employers may decide to allow time off in lieu of any overtime worked.

Employers may find themselves considering relocating employees for a variety of reasons. It could be the employer is relocating its business or opening another site.
Whatever the reasoning, Employers need to tread carefully as they have certain obligations and employees have certain rights that need to be considered.
Mobility clauses
In the employee’s Contract of Employment, there may be a clause which allows the employer to move the employee to another place. This is known as a mobility clause.
If there is an express mobility clause, the employee will be required to move to the new premises or workplace, subject to the employer exercising its discretion under that clause reasonably. What is considered ‘reasonable’ is not defined in any legislation, but for example, it would not be ‘reasonable’ to move an employee from London to Manchester and only give them 24 hours’ notice.
No mobility clause
If the employee’s contract does not contain a mobility clause, the employee is under no obligation to move.
If they do not wish to move, the employer may try and discuss different options with them. Depending on what move the employer is proposing, it may mean the employee has a longer or more expensive commute. It may require the employee to move house and worry about the upheaval of moving their family. The employer is required to explain the reasons for the move and consider if there are any ways to relieve the burden, for example, are there any possibilities that the employee could work from home or can the employee work from another site?
The employer could also consider a trial relocation period. This would give the employee the opportunity to go to the new location for a few weeks and see how s/he feels about a permanent move.
Unless the employer agrees to do so, there is no duty on the employer to pay compensation for relocating. However, these types of incentives could be critical when it comes to convincing staff to relocate. The employer is such circumstances would be well advised to weigh up the costs of losing valuable members of staff with key skills and experience and the cost of hiring new members of staff to replace them.
If the employee is adamant that s/he does not wish to move, a redundancy situation may arise as their job at their current workplace no longer exists.
The employee cannot unreasonably refuse any suitable alternative employment options. What is reasonable would depend on the circumstances. For instance, if the location is close and easy to get to and does not significantly disrupt the employee’s family situation, it may be unreasonable for the employee to refuse. Eligible employees may lose their redundancy pay if they unreasonably refuse.
All in all this is a tricky subject but the above summary highlights the main issues to be considered. As always, good legal advice on the subject is always the best solution for both employers and employees alike should they find themselves in these situations.

In Aslam and ors v Uber BV and ors, the London Central Employment Tribunal has held that drivers engaged by Uber are not self-employed contractors, but fall squarely within the legal definition of ‘worker’ under S.230(3)(b) of the Employment Rights Act 1996 (and equivalent definitions in the Working Time Regulations 1998 and the National Minimum Wage Act 1998) with the result that they are legally entitled to the national minimum wage, paid annual leave, and whistleblower protection. The tribunal’s judgment sets out a scathing critique of Uber’s submissions that it is a technology platform as opposed to a transport provider and that its drivers are self-employed contractors offering their services to passengers via the Uber app. In the tribunal’s view, any driver who has the app switched on, is within the territory in which he or she is authorised to work, and is able and willing to accept assignments is – for so long as those conditions are satisfied – working for Uber under a worker contract.

The tribunal highlighted that Uber runs an enterprise whose central function is the carrying of people in cars from one point to another and that it operates in part through a company that is regulated as a private hire vehicle operator, but that it resorts in its documentation to ‘fictions’, such as fake invoices that it generates on behalf of its drivers but that are never sent to passengers, and ‘twisted language’ in its contracts with drivers. The tribunal considered that the ‘remarkable lengths’ to which Uber had gone to compel agreement with its legal analysis merited ‘a degree of scepticism’. Moreover, the tribunal noted that in other correspondence, for example in submissions to the Greater London Authority Transport Scrutiny Committee, Uber had boasted of providing job opportunities and potentially generating tens of thousands of jobs in the UK, and paying its drivers on a commission basis. The tribunal also agreed with the findings of the North California District Court, in a similar case brought by Uber drivers in California, that ‘Uber does not simply sell software; it sells rides.’

In the tribunal’s view, the case put forward by Uber did not correspond with the practical reality. The notion that Uber in London was a mosaic of 30,000 small businesses linked by a common platform was ‘faintly ridiculous’. Save for a few individuals who operate more than one vehicle on their Uber account, each such business consisted of an individual with a car seeking to make a living by driving it. In addition, Uber’s case was dependent on the assertion in its terms and conditions that the driver enters into a contract with each passenger to provide the transportation service – but this would be absurd, since neither party knows the identity of the other, the route is set by Uber and the price is calculated by and paid to Uber. The tribunal therefore considered that the driver/passenger contract was a pure fiction.

With regard to the nature of the relationship between Uber and its drivers, the tribunal noted in particular that: the terms for passengers contradict themselves insofar as they state that Uber is the drivers’ agent but at the same time asserts ’sole and absolute discretion’ to accept or decline bookings; Uber interviews and recruits drivers; Uber controls key information as to the passenger’s identity and intended destination and does not share this with drivers; Uber requires drivers to accept and/or not to cancel trips and enforces this requirement by logging off drivers who breach it; Uber sets the default route for each trip and the driver may face deductions from his or her fare if he or she departs from it; Uber fixes the fare and the driver cannot agree a higher sum with the passenger; Uber imposes conditions on drivers, instructing them on how to do their work and controlling them in the performance of their duties; Uber subjects drivers through its rating system to what is effectively a performance management/disciplinary procedure; Uber determines issues about rebates for passengers, sometimes without involving the driver affected; Uber used to operate a scheme guaranteeing minimum earnings for new drivers; Uber accepts the risk of loss, for example where a passenger soils a vehicle or in the case of fraud, which if the drivers were genuinely in business on their own account would fall on them; Uber handles passenger complaints; and Uber reserves the right unilaterally to amend drivers’ terms.

The tribunal concluded that the wording of S.230(3)(b) ERA was fully applicable to the drivers in the instant case and that the guidance in the principal authorities favoured its view, rather than that put forward by Uber. It considered that the problem stemmed from the unequal bargaining positions of the parties, noting that many Uber drivers do not have English as a first language and will not be accustomed to interpreting ‘dense legal documents couched in impenetrable prose’, which the tribunal considered simply misrepresented the true rights and obligations on both sides. However, the tribunal noted that nothing in its reasoning should be taken as doubting that Uber could have devised a business model that did not involve it employing drivers; it was simply that Uber’s chosen model failed to achieve that aim.

Uber has confirmed that it will be seeking to appeal the decision. In the humble opinion of Mr. Hallen, it is unlikely that Uber will win the appeal no matter how much money it throws at its no doubt expensive legal team!

In Barbulescu v Romania, the European Court of Human Rights has held that there was no violation of an employee’s right under Article 8 of the European Convention on Human Rights (the right to respect for private and family life, the home and correspondence) in circumstances where an employee had been dismissed for using the company’s internet for personal purposes during working hours. While the employee’s Article 8 right had been engaged, the employer’s monitoring of his communications pursuant to workplace rules and regulations had been reasonable in the context of disciplinary proceedings, and the Romanian courts had acted appropriately in balancing the employee’s rights against the interests of his employer.

B, a Romanian national, was employed by a private company as an engineer in charge of sales. At his employer’s request, he created a Yahoo Messenger account for the purpose of responding to clients’ enquiries. On 13 July 2007 the employer informed B that his Yahoo Messenger communications had been monitored from 5 to 13 July 2007 and that the records showed that he had used the internet for personal purposes, contrary to internal regulations. When B denied this, he was presented with a transcript of messages he had exchanged with, among others, his fiancée and his brother, some of which related to personal matters such as his health and sex life. B’s employment was terminated on 1 August 2007 for breach of the company’s regulations.

B contended that his employer had violated his right to correspondence protected by the Romanian Constitution and had breached the Criminal Code. The Romanian County Court dismissed his complaint on the grounds that his employer had complied with the Labour Code provisions on disciplinary proceedings and that B had been duly informed of the employer’s regulations prohibiting use of company resources for personal purposes. Following an unsuccessful appeal, B applied to the European Court of Human Rights contending that the employer’s conduct had disproportionately infringed his Article 8 rights.

The Court accepted that Article 8 was engaged on the facts of the case, the employer having accessed B’s Messenger account and used the transcripts of his communications as evidence in the domestic litigation. However, it held – by a majority – that there had been no violation of Article 8. It stated that although the purpose of Article 8 is essentially to protect an individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference. The Court had to examine whether Romania, in the context of its positive obligations under Article 8, had struck a fair balance between B’s right to respect for his private life and correspondence and his employer’s interests. In the Court’s view, it was not unreasonable for B’s employer to seek to verify that employees were completing their professional tasks during working hours. Furthermore, B’s employer had accessed his messaging account in the belief that it contained client-related communications only. B had been able to raise his arguments relating to the alleged breach of his Article 8 right before the domestic courts, which had duly examined his arguments and found that his employer had acted in accordance with the Romanian Labour Code’s provisions on disciplinary proceedings. B’s disciplinary breach – namely, his use of company resources for personal purposes – had been established, and it was clear from the domestic court judgments that they had used the transcript of B’s communications only to the extent that it proved that breach. The ECHR accordingly concluded that the domestic courts had struck a fair balance between B’s rights under Article 8 and the interests of the employer.

The lesson to be learned here is that Employers in England and Wales can dismiss for breach of their own internal internet procedures after taking disciplinary action against an employee for private communications where it finds that there has been a breach of its procedures. It may be difficult for an employee to win a claim for unfair dismissal in such circumstances.

In Science Warehouse Ltd v Mills, the EAT has held that a claimant was not required to go through the early conciliation (EC) procedure in respect of a victimisation claim that she wished to add, by way of amendment, to her existing claim of pregnancy/maternity discrimination as part of the subsequent Employment Tribunal claim. The amendment of existing proceedings is a matter for the tribunal’s case management powers and the tribunal is not required to refuse to add a claim in respect of which the EC procedure has not been observed.

M was employed by SW Ltd from April 2013 until she resigned, during her maternity leave, on 9 March 2015. On 28 January 2015 she had submitted details of prospective claims of sex and pregnancy/maternity discrimination under Ss.13 and 18 of the Equality Act 2010 to Acas. She received an EC certificate on 27 February and on 8 April she presented the tribunal claim. SW Ltd’s response to that claim included an allegation that M would have been investigated for misconduct had she not resigned. M wished to bring an additional claim of victimisation, under S.27 EqA, based on this allegation. She made an application to amend her claim to include this ground. SW Ltd objected to the amendment solely on the basis that M had not complied with the EC procedure in relation to the additional claim. The tribunal dismissed that objection and allowed the victimisation claim to be added. SW Ltd appealed to the EAT.

The EAT dismissed the appeal. HHJ Eady QC, sitting alone, noted that the power to allow a new claim to be added by way of amendment is a matter of judicial discretion, to which no time limit formally applies. As for the EC procedure, S.18A of the Employment Tribunals Act 1996 requires that it is complied with in relation to any ‘matter’, rather than any ’cause of action’ or ‘claim’. HHJ Eady QC rejected SW Ltd’s argument that ‘matter’ had to be read as referring to the claim in question. A broader interpretation was required, in order to avoid the EC rules giving rise to disputes and satellite litigation as to whether proper notification had been given of each and every possible claim subsequently made to the tribunal. Although amendments to an existing claim are not listed in S.18A(7) as a category of exception to the EC rules, this is because amendment is a matter for the tribunal’s case management powers in respect of which no specific exemption is needed.

HHJ Eady QC went on to reject SW Ltd’s contention that this broad interpretation would undermine the objective of the EC procedure by allowing new claims to be accrued without conciliation. Amendments are only permissible if allowed by the tribunal. If the tribunal refuses permission then the claimant might become a prospective claimant in respect of the new matter, within S.18A ETA, and so might have to invoke the EC procedure. If the amendment is permitted, however, the EC process does not arise. Accordingly, the tribunal in the present case was not bound to decline to add the new claim, which could not have been the subject of the original EC process. Had the subsequent claim been entirely unrelated to the existing proceedings then the tribunal might have refused to admit it, but that decision would be informed by a variety of factors, not merely the fact that no EC process could have been engaged in.

The lesson to be drawn from this case is that the EC procedure may cover the substantive claims that an employee intends to bring against in employer in the tribunal but other claims may be added later at the discretion of the tribunal. This may be another good reason why employers may want to settle early especially where the case is likely to be complex.

In EAD Solicitors LLP and ors v Abrams, the EAT has held that a limited company can bring a claim of direct discrimination under the Equality Act 2010. The EAT rejected the argument that protection from discrimination under the Act is limited to individuals. Case law has established that an individual may complain of discriminatory treatment based on the protected characteristic of another person and there is no reason why this logic should not extend to companies.

A was a member of EAD, a limited liability partnership (LLP). As he approached retirement, he set up a limited company, of which he was the sole director. This company replaced A as a member of the LLP and took the profit share that A would have received had he continued, in return for which it supplied services to the LLP. Although the parties expected that A would usually provide these services through the company there was no obligation on him personally to do so, and he had no ongoing contractual relationship with the LLP. The LLP later became concerned about A providing services to it beyond the date at which he would ordinarily have retired. It objected to the limited company continuing as an LLP member. A considered that this gave rise to direct age discrimination and sought to bring a claim under the EqA. He presented a claim naming himself as first claimant and the company as second claimant.

An employment judge considered, as a preliminary issue, whether the limited company could bring a claim on the basis that had suffered detrimental treatment because of A’s age. The judge considered that the company was entitled to bring such a claim and so directed that the claim should proceed. The LLP appealed to the EAT. It argued, among other things, that since only individuals can have the protected characteristics listed in the EqA, only individuals are protected from discrimination.

Mr Justice Langstaff, President of the EAT, dismissed the appeal. He pointed out that the EqA does not deal with individuals on the basis of their protected characteristics but identifies discrimination as treatment caused by a protected characteristic or related to it. This is well established by case law, such as the EAT’s decision in EBR Attridge Law LLP v Coleman on ‘associative’ discrimination. Thus, any person, natural or legal, may suffer detrimental treatment and if the treatment is suffered because of an individual’s protected characteristic then it is potentially covered by the Act. Langstaff P also referred to the Interpretation Act 1978, which makes clear that the word ‘person’, when used in legislation, includes ‘a body of persons corporate or incorporate’ unless the contrary intention appears. No such contrary intention could be discerned in the EqA. Indeed, while S.27(4) EqA provides that only an individual may suffer victimisation, this is a specific exception which reinforces the view that, in general, the Act’s use of the word ‘person’ includes a corporation. The employment judge was therefore right to allow the claim to proceed. As to the long term impact of this case, it remains to be seen how far reaching the it will be. In your commenter’s view, it is likely that the long term impact will be small with the majority of claims under the EqA being made by individual employees rather than companies.

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