EMPLOYMENT LAW

HANDOUT
2022/23
 Faculty of Business and Law

ANGLIA LAW SCHOOL

LLB(Hons)

MOD000048: Employment Law

Books in the library:

 Pitt Employment Law (online)


 Lockton Employment Law (online and recommended reading)

 Lewis and Sargeant Employment Law (online)

 Taylor and Emir Employment Law

 Smith and Wood Employment Law

 Cabrelli Employment Law (online)

Phillips and Scott Employment law (online)

 Week 1 – Introduction, Tribunals, employers and employees

READING for week 1

Pitt Ch 1 and 3

Lockton Chapters 1 and 2; particularly pp 3-21

Taylor and Emir 1, 2, 3, 19, 30

Lewis and Sargeant 1, 4

Smith and Wood 1, 2

For an introduction to the gig economy which we will consider in the workshop:

Uber Supreme Court July 2021

2017 review of UK employment laws The Taylor Review

Guardian news and views on the gig economy

1. What is employment law?

‘The law governing labour relations is one of the centrally important branches
of the law – the legal basis on which the very large majority of people earn
their living.’ Khan-Freund Labour and the Law

Universal Declaration of Human Rights Article 23

Manages a fundamental conflict of interest in capitalist societies – Be familiar

with the concepts of laissez faire, pluralism, and legal abstentionism

Globalisation and the International Labour Organisation (www.ilo.org)

Contract of service ie employment contract, distinguished from

contract for services ie self employed. (see below)

Different tax regimes – employee has PAYE deducted by employer.

 Statutory and contractual rights.

From the 1970s disputes came to be handled in employment tribunals (originally

called industrial tribunals). Now most disputes are heard in the employment
tribunal though breach of contract claims can also be heard in the County
Court/High Court.

2. Impact of European law

Most of the law we shall consider is either common law or UK statute law
Consider the impact of EU law

3. Human rights and Employment

Are any employment rights human rights?

Consider the Human Rights Act 1998 – Forced or compulsory labour,
discrimination, peaceful assembly and association, fair hearings, private and
family life and freedom of expression

4. UK employment law
Most legislation is of recent origin – traditionally the law governing the
employment contract relation has been contract law.

Increase in parliamentary activity since the 1960s

Primarily to combat the inequity of the contract of employment, ‘an act of
submission, in its operation it is a condition of subordination, however much
the submission and the subordination may be concealed by that
indispensable figment of the legal mind known as the “contract of
employment”’ Khan-Freund

Employment law is political. How might the neo-liberalist perspective differ

from the pluralist perspective? See eg Family friendly working

The major legislation

Equality Act 2010

Employment Rights Act 1996 (ERA).

TUPE 2006 protects employees on a transfer of a business/service provision

change.

Immigration Asylum and Nationality Act 2006 imposes civil penalties on

employers who do not make appropriate checks that an employee has the
 right to work in the UK, and criminal penalties for knowingly employing
someone who does not have the right to work in the UK.

5. Contemporary issues in employment law

Recent and upcoming employment law changes

Is the full-time, indefinite duration, fully-pensionable job for life a realistic

expectation?

The rise of fixed-term appointments, temporary jobs, agency work and

temporary jobs.

The disappearance of the 9-5 working day, Monday to Friday working week,
fixed job specifications, regular wages job for life, work/life balance.

6. Exercise

Shortly we shall attempt to define such concepts as employers, employees

and workers. Before then however, let us consider the rights and obligations
imposed by UK employment law on employers and employees. Can we draw
up a working list? Try to distinguish those laws that benefit employers and
those that benefit employees. What rights and obligations do UK employment
laws cover and what is left to the parties to ‘negotiate’?

7. Employment Tribunals
The Donovan Report (1968) Cmnd 3623
The Employment Tribunal and the Employment Appeals Tribunal

Accessibility, speed, informality and expense

Access to justice and Employment Tribunal fees

https://www.gov.uk/government/publications/employment-tribunal-procedure-
rules

Fees https://www.lawgazette.co.uk/law/employment-tribunal-cases-
withdrawn-over-off-putting-fees/5055534.article

Tribunals Service part of Ministry of Justice

Tribunal Chairmen known as Employment Judges
Claimants and Respondents

Constitution
  3 members
 Chaired by the Employment Judge, a solicitor or barrister of 5 years’
standing and two lay members.
 The lay members have an equal vote and could outvote the Judge.
 Parties may appear in person or be represented by another – for
example a union representative, friend, or legal advisor.
 Lay members appointed by Secretary of State BEIS from employers’
and employees’ associations respectively.
 If parties consent can be heard by Judge and only one lay member.
 Some cases may be heard by a Judge sitting alone 29 Tribunal
venues. Central Office of Employment Tribunals at Bury St Edmunds.
Nearest ETs are Bury St Edmunds and in Docklands.

Jurisdiction and time limits

3 months except for redundancy

Relevant procedures - ACAS

ACAS Code of Practice – Disciplinary and grievance procedures.

 No longer automatically unfair dismissal where correct procedure not followed

 No longer a requirement to raise a grievance about a non-dismissal claim
before bringing a claim but still advisable to avoid reduction in compensation;
now compulsory to notify ACAS pre issuing a claim to effect ACAS Early
Conciliation
 ET can vary award by up to 25% either way where ACAS Code breached on
either side

Starting a claim and responding to a claim

 Claim form (ET1)
A person wishing to bring a claim (‘the claimant’) commences
proceedings in the employment tribunal by presenting a Claim Form to
the appropriate tribunal office (must contact ACAS first Making a claim
to an employment tribunal - Acas
.
The claim:
 Must be made on form ET1;
Case Management

The ‘overriding objective’ (Rule 2):

 Ensuring parties are on an equal footing;

 Dealing with case in ways which are proportionate to the complexity
and importance of the issues;
 Ensuring the case is dealt with fairly and expeditiously; and
 Saving expense.

The ET can give directions on the provision of:

 additional information (further particulars),

 disclosure and inspection of documents;
 attendance of witnesses,
 written answers to specific questions,
 exchange of witness evidence
 who is to prepare the bundle for the hearing.

Case Management Discussions – CMDs may be held to deal with these

issues.

May also be conducted by telephone.

 Tribunal Decisions

May give oral decision immediately, followed by written reasons. Decision may be
reserved to a later date e.g. in complex cases.

Decision formally recorded at Central Office of Employment Tribunals. Awards

are enforced by the County Court. Now formally referred to as Judgments.

Can ask for a review of the tribunal decision in limited circumstances.

Appeals

On a point of law to Employment Appeals Tribunal (subject to preliminary sifting

by Judge). No appeals on questions of fact.

Settlement

1) ACAS conciliated settlement - mediation

OR
2) Compromise Agreement
WORKSHOP MATERIALS TO ACCOMPANY LECTURE 1
In the workshops on this module the intention is to have small group discussions
between the tutor and students on materials covered in the lecture.
For this first workshop we will explore how the world of work is changing and is very
different for young people today leaving school or University and looking for a job,
than it was for previous generations. There are two main reasons for this, (1) the
global rise of neo-liberal economics and the free market mixed economy, and (2)
new technology.
Consider what is meant by this for discussion at the workshop.
When (1) and (2) collide the effect is typically the rise of a new relationship between
business and worker which is captured by the phrase the ‘gig economy’. Read an
introduction to the gig economy here.
In this week’s workshop we shall discuss what the gig economy is, and why it makes
so much difference to workers’ rights, a theme which will be taken forward onto
weeks 2 and 3 of the module.
We will also discuss:
 To what extent are the rules of Employment tribunals either the
same or different to the rules of civil procedure which are covered in
the ARU module Civil Litigation;
 The role of ACAS; read here and explain the role ACAS plays in
resolving disputes between employers and employees

WEEK 2

Reading Lockton pp 27-50

Employees, workers and the self-employed
The difference between a contract of service and a contract for services

“In this Act ‘employee’ means an individual who has entered into or works
under….a contract of employment” Employment Rights Act 1996, s230(1) A
rather circular definition!

Why is it necessary to distinguish between employees and the self-

employed?

Is employment a unified concept or can you be self-employed for employment

law purposes and an employee for other legal purposes such as tax or
vicarious liability?

The control test

The mutuality of obligations test

Economic reality test

Ready Mixed Concrete Ltd v Min. of Pensions (1968) 2 QB 497

The triangular problem of agency work

James v Greenwich Borough Council [2008] ILLR 302

The Agency Workers Regulations 2010 is not the solution

Should we abandon the concept of employment?

The use of the term ‘worker’ rather than ‘employee’ see National Minimum
Wage Act 1998 and the Working Time Regulations 1998

Identifying an employee
Legal status, not the label is important. Be careful of terms like ‘casual staff’ and
‘temps’. Reason it is important is because employees have more statutory rights.

Definition in ERA 1996 s230 (1) – an employee is someone who works under a
contract of employment.

Can be express or implied, if express – oral or in writing.

What is a contract of employment?

Tests
Ready Mixed Concrete Ltd v Minister of Pensions [1968] 1 All ER 433

To be an ‘employee’, the minimum requirements (“irreducible minimum”) are:

1. Mutuality of obligation

ie the obligation by the employer to give work in return for pay and the
obligation by the employee to do the work. If eg the employee can turn work
down then there may be no mutuality of obligation. If there is some sort of
retainer then there may be enough of an obligation to give work by the
employer even if no work in fact allocated.

2. Personal service/non delegation

ie the employee cannot send a substitute but must do the work him/herself.

Express and Echo Publications Ltd v Tanton [1999] IRLR 367

Note the position where there is a ‘fettered’ power to send a substitute and
note the position where the documents between the parties do not represent
the reality of the obligations – the reality can ‘trump’ what is written down:
 Belcher v Autoclenz [2011] UKSC 41

3. Control
ie the employer controls (a) how (b) when and (c) where the employee does
the work. Look at whether there is a contractual right to control rather than
actual day to day control: White & Todd v Troutbeck SA [2013] UK EAT
0177/12. In this case the employees were caretakers/managers for absentee
owners who visited their estate once or twice a year; there were no fixed
hours. The EAT decided they were employees although the employer did not
have day to day control – there was still a contractual a right to control and
many employees decide how their work is done.

Other factors: if any one of the above is absent, can’t be contract of

employment. However, even if all present, not necessarily an employee as
then need to apply other factors such as:

- how payment is made

- tax and NICs deducted?
- tools and equipment provided?
- Is there sick pay and holiday pay?

etc

Once the ‘irreducible minimum’ factors are satisfied, the employment tribunal/ court
will go on to assess these extra factors and weigh up if overall the individual is an
employee.

Quashie v Stringfellows Restaurant Ltd [2013] IRLR 99, CA

Employer of lapdancers found not to be under any obligations to pay the dancers at
all – in fact the dancers paid a fee to the club to be allowed the opportunity to earn
fees from clients, which they negotiated direct with the clients. They were not
employees as they took the economic risk themselves.

Workers (compare with self employed contractors and employees)

Intermediate category between employee and those engaged in their own business
ie the self employed. Note Belcher v Autoclez (see above) about the situation where
the written documents do not reflect the reality of what was agreed – it may be
possible to argue that the written terms should be disregarded as being inconsistent
with the true agreement between the parties. This is not the same thing as saying
you look at what happens in practice though what happens may shed light on what
the parties have in reality agreed.

Definition in ERA 1996, s230 (3) – element of personal performance, ‘employer’ is

not a client or customer.

Workers do not have all statutory rights of employees, but benefit from National
Minimum Wage (NMW) legislation, Working Time Regulations 1998 (WTR),
protection against unlawful deduction from wages and discrimination protection.
Major difference is that they do not have protection against unfair dismissal or the
right to a statutory redundancy payment if they are made redundant, or ‘family
friendly’ rights.

WTR rights: 5.6 weeks paid holiday per year (includes public holidays).
Difference between workers and independent contractors - the former has obligation
“to do or perform personally any work or services for another party to the contract…”
(ERA 1996 s 230 and NMWA 1998 and WTR1998); the other party to the contract is
not a client or customer.

An example of the self employed is a person who does work as a sole trader for
customers eg a tradesman like a plumber.

Cotswold Developments Construction Ltd v Williams [2006] IRLR 181:

‘whether the purported worker actively markets his services as an independent

person to the world in general … or whether he is recruited by the principal to work
for that principal as an integral part of the principal’s operations’ Langstaff J

Test: does the individual market his services to public generally (not a worker) or is
he integrated into business of principal (worker)?

Workers though not employees are subordinate to person for whom they work and
hence in need of protection.

Leading case: James v Redcats (Brands) Ltd [2007] ILLR 296.

EAT suggested a “dominant purpose” test: if the dominant feature of the

arrangement was that the person was to provide personal service then, even if the
prerequisites of employment were missing, the person was likely to be a worker.

If, for example, the dominant feature of the contract is a particular outcome or
objective and the obligation to provide personal service is an incidental or secondary
consideration – it will lie in the business field and the person concerned will not be a
worker

The Hospital Medical Group v Westwood [2012] EWCA Civ 1005

GP carrying out hair restoration surgery on Saturdays found to be a worker but not
an employee. He could not delegate the work and he had to do the work personally
himself. The HMG were not his client or customer and he was integrated into the
organisation.

Clyde & Co LLP v Bates van Winkelhof [2012] EWCA Civ 1207

Supreme Court overturned CA ruling that an equity partner was not a worker and
that a partnership relationship lacks the necessary relationship of service and
control.

Pimlico Plumbers Ltd and another v Smith [2018] UKSC 29

Supreme Court Decision

Pimlico holiday pay claim ET 2019 (Guardian)

WORKSHOP MATERIALS TO ACCOMPANY LECTURE 2

In lecture 2 we have considered the law on the difference between a (limb ‘b’) worker
and an employee.
To promote discussion at this workshop, here are some questions for you to
consider in advance of the session:
 Why do the courts refer to ‘limb b’ workers?
 What is the significance of Ready Mixed Concrete Ltd v Min. of
Pensions (1968) 2 QB 497?
 What is the significance of Belcher v Autoclenz [2011] UKSC 41?
 Read the Supreme Court ruling of 2021 in Uber and discuss its
importance
 Consider page 9 of the Taylor report and share your views on the
seven recommendations.
WEEK 3 Agency workers and recap of worker status

Reading Lockton Parts 1 and 2

Agency workers

Do they have an employer and if so, who is it?

Consider the situation of an individual with a contract with an agency who agrees to
place the individual with one of the agency’s clients, under a contract between the
agency and that client (the ‘end user’).

 Normally no contract at all between “end user” and worker

 Dacas v Brook Street Bureau [2004] IRLR 358 and Cable and Wireless
v Muscat [2006] IRLR 354 gave rise to the argument being run that
there could be an implied employment contract between the individual
and the end user.
 James v London Borough of Greenwich [2008] EWCA Civ 35: a
contract can only be implied between the worker and client /end user
where it is necessary to do so. Factors:
 Mrs James not obliged to consider any assignment offered to
her by agency
 Council’s disciplinary code did not apply to her; not entitled to
sick pay
 Changed agency and got paid more
 3 service years in total; treated like a permanent member of staff
on the rota; off sick and when she returned had been replaced
 Second contract between LBG and employment agency
 Mrs James argued there was an implied contract between her
and LBG; business efficacy; she accepted there had been no
offer and acceptance but gradual integration into workforce
 Mrs James gave evidence that Council controlled her working
conditions
 Held:
  ET’s decision upheld by the C of A – there was no
employment contract with LBG
 Mere passage of time not sufficient to create contract
 Issue: was it necessary to infer a contract where there
are express written contracts between the parties which
adequately explain the relationships.
 Mutuality of obligations argument a blind alley; where no
contract existed; irrelevant to consider what type of
contract if a contract didn’t exist in the first place; it is not
enough to show the relationship looks like
employer/employee.
 Consequence may be that individual is not an employee
of anybody and therefore has no remedy if eg dismissed.
 Dacas effectively distinguished on its facts
 Lord Justice Mummery: “Labels are not a substitute for
legal analysis of the evidence”.

Tilson v Alstrom Transport [2010] EWCA 1038 is authority for the proposition that a
significant degree of integration of an agency worker into an organisation is
consistent with an agency relationship in which there is no contract between worker
and end user.
The Court of Appeal also held that:

 the need to apply to a line manager before taking annual leave is not sufficient
to justify the implication of a contract;
 there is no need to imply a contract between the agency worker and end user
where there has been a breach of a clause of the contract between the
agency and a third party providing services to the end user that relates to the
agency worker;
 where the parties would have acted in exactly the same way if there had been
no contract, that is fatal to the implication of a contract, The Aramis [1989] 1
Lloyd's Re 213 applied and, on the facts, the agency worker had declined to
enter into a contractual working relationship with the end user;
  the contract between the supplier of Mr Tilsom and the end user could not be
attacked as a ‘sham’ as the contract represented the intentions of the parties.

Directive 2008/104/EC on Temporary Agency Work (the Agency Workers Directive)

The Directive came into force on 1st October 2011 by way of the Agency Workers
Regulations 2010.

 After 12 weeks in a given job, an agency worker will be entitled to equal

treatment to employees employed directly by the employer where they have
been placed.
 Applies to agency workers who have an employment contract with the agency
or another type of contract to perform work personally.
 Only equal treatment to the basic working and employment conditions that
would apply to the worker concerned if s/he had been recruited directly by that
undertaking to occupy the same job in relation to pay (but not long terms
benefits such as pension) and working time including paid holiday, working
hours.
Importance of the distinction between employee and worker
NB It is not possible to contact out of statutory rights unless using a Compromise
Agreement under ERA 1996, s203.

Employee

Unfair Dismissal (1 year’s continuous employment qualification; 2 years if started on

or after 6 April 2012)

 Redundancy payment (2 years continuous employment

qualification)
 Written particulars of terms of employment
 Statutory minimum notice
 Maternity/paternity/parental and time off rights
 Statutory Sick Pay (SSP)
 Safe place of work
 Written reasons for dismissal
 No unlawful discrimination
 Benefit of all contractual entitlements
 WTR rights (including max working week; min holiday)
 NMW; Tomlinson-Blake v Royal Mencap Society; Rampersad and
another (t/a Clifton House Residential Home) v Shand (Supreme Court)
  No unlawful deductions from wages
 Protection under TUPE
Worker

Working Time Regs rights (including max working week; min holiday)

 National Minimum Wage; paid annual leave

 No unlawful deductions from wages
 Benefit of all contractual entitlements
 No unlawful discrimination
WORKSHOP MATERIALS TO ACCOMPANY LECTURE 3
Prepare submissions for the following:
 What are the differences between the employment law rights of employees
and limb b workers?
 What is the significance of the words in ERA s 230 ‘whose status is not by
virtue of the contract that of a client or customer of any profession or business
undertaking carried on by the individual’?
 Consider the case of James v London Borough of Greenwich. What was the
significance of this case?
 What is the significance of the Agency Workers Regulations 2010?
Week 4: THE CONTRACT OF EMPLOYMENT – FORMULATION, CONTENT AND
TERMINATION

Reading

Pitt Ch 4; 8: pp 273-303
Smith and Wood 3, 6
Lewis and Sargeant 2,3, 5, 11
Taylor and Emir 7,8, 9
Lockton 3, 8

1. Review your contract law notes (if you haven’t destroyed them!)

2. Is the relationship between an employer and employee really a

contractual one?
Where is the agreement?
Where does the bargaining power lie?
Are you entering into employment by taking a job or are you signing up to a
place in the business hierarchy?
Are you being offered employment by the employer or another employee? (is
this the true meaning of subservience?)
‘The simple characterization of employment as a contract fails to grasp the
nature of the social relations involved’ Hugh Collins Market Power,
Bureaucratic Power and the Contract of employment (1986) 15 ILJ 1, 3

3. How else might the relationship be construed?

A category sui generis?
A status relationship?
Note S1. ERA 1996 – The Section 1 Statement. See the dictum of Browne-
Wilkinson J in System Floors (UK) Ltd v Daniel 1982 ICR 54. Is the statement
really what the parties agreed? (in fact there are a considerable number of
factors with which an employee would not agree)
Should the relationship be statute-based (as it is in some other countries)?

4. Of what is the contract of employment constituted?

The fallacy of the ‘written contract’
Express terms
Implied terms
Collective bargaining
Statutory terms
Judicially implied terms

5. Judicially implied terms (duties of the employer)

a) To provide work
 b) To take care of employees

c) Duty to take care when giving references

Spring v Guardian Assurance plc [1994] ICR 596
On the basis of negligent misstatement
McKie v Swindon College [2011] EWHC 469

d) Respect

e) Mutual Trust and confidence

Bournemouth University Higher Education Corporation v Buckland [2010]

EWCA Civ 121

6. Judicially implied terms (duties of the employee)

a) Obedience

b) Duty of Care
Breach of this duty may give employer a right of indemnity
Lister v. Romford Ice & Cold Storage Co Ltd 1957 I ALL ER 215

c) Fidelity
Faccenda Chicken Ltd v. Fowler 1986 ICR 297: IRLR 69

7 Termination and contract theory

In conceptual terms, how can a contract be terminated?

If an employer purports to terminate the employment contract of an employee,

can the employee refuse to accept and sue the employer for breach?

Why would an employer seek to terminate an employee’s contract by means

other than dismissal?

Establishing wrongful dismissal

Remember, as long as the employer does not breach the contract of employment
when dismissing, the dismissal cannot be wrongful. This, in effect, means that the
employer can dismiss for any reason and employees can only bring an action for
wrongful dismissal where the employer has given insufficient notice or when he
has failed to follow contractual procedures. Even then the court may still hold that
the decision to dismiss was not wrongful if the employee has committed an act of
gross misconduct.
 8 Termination without dismissal - Death or Dissolution of the Enterprise
Cross-refer this with the later sessions about redundancies and transfers of
undertakings.

9 Termination without dismissal - Frustration

Law Reform (Frustrated Contracts) Act 1943.

a) Imprisonment

b) Illness

10 Termination without dismissal - Expiry of Fixed Term Contracts

11 Termination without dismissal - Mutual Consent.

12 Dismissal by Notice
ERA 1996 s.86
Salary in lieu of notice

13 Summary Dismissal
Summary dismissal (ie without notice) will, prima facie, constitute a breach of
contract as will termination of a fixed term contract prior to its expiry. However an
employee who commits gross misconduct can be summarily dismissed. The
misconduct must go the root of the contract and thus constitute a repudiatory act
by the employee.

Constructive Dismissal

ERA 1996 ss 95(1)(c) and 136(1)(c); dismissal if “the employee terminates the
contract under which he is employed (with or without notice) in circumstances in
which he is entitled to terminate it without notice by reason of the employer’s
conduct”

 Breach of an express term

1. Reduction of pay; Cantor Fitzgerald International v Callaghan and Others

[1999] IRLR 234 CA

2. Job description; Land Securities Trillium Ltd v Thornley [2005] IRLR 765 EAT

Other examples?
  Breach of an implied term (mutual trust and confidence); repudiatory

Stanley Cole Ltd v Sheridan [2003] IRLR 52; unjustified final warning

Greenhof v Barnsley Met BC [2006] IRLR 98 EAT; serious breach of duty

to make reasonable adjustments

Bournemouth University Higher Education Corporation v Buckland

[2010] EWCA Civ 121

McBride v Falkirk FC (UKEAT/0058/10)

Final straw Abbey National plc v Robinson [2000] All ER (D) 1884

Resignation? Weathersfield v Sargeant [1999] IRLR 94; employee left

without giving reason

WORKSHOP MATERIALS TO ACCOMPANY LECTURE 4

This week in the workshop we shall discuss the assessment and consolidate our
learning from lecture 4.

1. The Assessment.
As you are now aware this module is assessed by debates that take place on
Canvas. Here are the details:

a) There are three debates, each of which take place over a two-week
period.
b) You are free to post your contributions at any time during that period.
c) You are required to write approximately 1000 words for each of the three
debates.
d) You may wish to post more than one contribution to each debate (to
ensure you are debating). Do not post more than two, and only post two if
you have not referenced a peer’s post in your own post.
e) Marks are rewarded for the quality of your research, your analytical and
critical skills and by putting your arguments into the context of the debate.
f) You will receive a mark for each debate (three marks in total).
 g) Your grade for this module with be the average mark of your best two
debates

2. How to post a message

In the formative take the opportunity to try out Canvas. Make sure you can
post a message and read someone else’s message. Here are a few tips for
when you start the assessment:
a) Always keep a copy of the messages you post
b) If you compose your message in Word, check that the message has
been pasted accurately on to Canvas.
c) Be respectful in your submissions. By all means be critical but do so in
a constructive manner.

3. Formative assessment

Because you may be new to this mode of assessment it is important you engage
with the formative assessment. Each of you should attempt to make a 250 word
contribution. A good post consists of establishing your response to the topic,
incorporating the views of others and evaluating your own position accordingly. Your
tutor will read your contributions and provide feedback.

Further questions for discussion in Worksop 4:

 What terms are in a Section 1 statement? Make a list

 What is the difference between constructive and wrongful dismissal?

 What might frustrate a contract of employment? And what would be the

effect on the contract if this happened? Can you think of any problems
arising under the Equality Act 2010 where an employer argues contract
frustration?

 What is summary dismissal and when is it justified?

 What are in your view the key implied obligations of an employer to an

employee and vice-versa?
 Week 5 – DISMISSAL OVERVIEW, WRONGFUL DISMISSAL AND UNFAIR
DISMISSAL

Reading

Pitt Ch 4; 8: p 300 to end, Ch9

Smith and Wood 7, 8
Lewis and Sargeant 12, 13, 14, 15
Taylor and Emir 4, 5
Lockton 9, 10

1. Overview
Why would an employee bring a dismissal claim?
The distinction between dismissal rights and job security
What is the difference between wrongful and unfair dismissal?
Is wrongful dismissal still useful? For whom?

2. Establishing wrongful dismissal

Remember, as long as the employer does not breach the contract of employment
when dismissing, the dismissal cannot be wrongful. This, in effect, means that the
employer can dismiss for any reason and employees can only bring an action for
wrongful dismissal where the employer has given insufficient notice or when he has
failed to follow contractual procedures. Even then the court may still hold that the
decision to dismiss was not wrongful if the employee has committed an act of gross
misconduct.

3. Remedies – reinstatement or re-engagement

a) The Rule Against Enforcement

b) Specific Performance and Injunctions

Injunctions may be available to restrain a dismissal in breach of contractual
procedures. However there may be problems re employee's non-acceptance of
employer's breach

• Clarke v Price (1819) 2 Wills Ch 157; no injunctive relief to enforce a contract

for personal services
• Warren v Mendy [1989] 1 WLR 853; Frank Warren’s ex parte injunction to
restrain fellow boxing agent Ambrose Mendy from dealing with boxer Nigel
Benn who was under an exclusive contract with Warren overturned-
restraining a breach might effectively compel Benn to personal service to
Warren.
• Nike European Operations Netherlands BV v Tomas Rosicky [2007] EWHC
1967 (Ch); injunctive relief granted preventing player breaching sponsorship
agreement by wearing Puma (allowed to wear unbranded boots)
 • Crystal Palace v Steve Bruce [2002] ISLR SLR 81; Court awarded injunctive
relief to uphold 3 month garden leave clause

https://www.matrixlaw.co.uk/wp-content/uploads/
2016/03/09_02_2015_05_01_14_Injunctive-Relief-for-Employees-vF.pdf

4. Remedies - damages

Malik v Bank of Credit and Commerce International SA. [1997] IRLR 462

Lord Nicholls

The contrary argument of principle is that since the purpose of the trust and confidence
term is to preserve the employment relationship and to enable that relationship to
prosper and continue, the losses recoverable for breach should be confined to those
flowing from the premature termination of the relationship. Thus, a breach of the term should
not be regarded as giving rise to recoverable losses beyond those I have described as
premature termination losses. In this way, the measure of damages would be
commensurate with, and not go beyond, the scope of the protection the trust and
confidence term is intended to provide for the employee.
This is an unacceptably narrow evaluation of the trust and confidence term. Employers
may be under no common law obligation, through the medium of an implied contractual
term of general application, to take steps to improve their employees' future job
prospects. But failure to improve is one thing, positively to damage is another.
Employment, and job prospects, are matters of vital concern to most people. Jobs of all
descriptions are less secure than formerly, people change jobs more frequently, and the
job market is not always buoyant. Everyone knows this. An employment contract creates
a close personal relationship, where there is often a disparity of power between the
parties. Frequently the employee is vulnerable. Although the underlying purpose of the
trust and confidence term is to protect the employment relationship, there can be nothing
unfairly onerous or unreasonable in requiring an employer who breaches the trust and
confidence term to be liable if he thereby causes continuing financial loss of a nature that
was reasonably foreseeable. Employers must take care not to damage their employees'
future employment prospects, by harsh and oppressive behaviour or by any other form of
conduct which is unacceptable today as falling below the standards set by the implied
trust and confidence term.

5. Unfair dismissal: Presenting a Claim in Time

a) The EDT.
ss.97 & 145 ERA 1996 A complaint of unfair dismissal must be presented to an
employment tribunal before the three months beginning with the effective date of
termination. This limit is observed strictly

b) The Three Month Limit

Under s.111(2) ERA 1996 a tribunal may hear a claim if it considers that it was not
reasonably practicable for the complaint to be presented within 3 months. 'Not
reasonably practicable' has been interpreted quite strictly so that eg the applicant
cannot argue he did not know his rights or that he was badly advised.

John Lewis Partnership v Chairman (UKEAT/0079/11): claimant awaiting outcome of

internal appeal

6. Unfair dismissal: Continuity of Employment

This is regulated by ss.210-219 ERA and the norm is that an employee will acquire
unfair dismissal rights after two years of continuous employment have been
completed. Providing the contract continues to exist, weeks count even although no
work is actually done at all. In other words, weeks of absence through e.g. holiday,
sickness or lay-off will still count providing the contract is not terminated. However, a
break in the continuation of the contract will break continuity, and a re-employed
employee will have to start from scratch. Under s.213(3) ERA there are four
exceptional circumstances whereby weeks may be counted even although the
employee has not worked and the contract has ceased to exist.

These are:

a) up to 26 weeks absence through sickness or injury

b) up to 26 weeks absence through pregnancy or confinement

c) a temporary cessation of work

7. Unfair dismissal: The requirement of a dismissal

Dismissal is defined by s.95 ERA 1996 as:

a) any termination by the employer with or without notice.

Sandhu v Jan de Rijk Transport Ltd [2007] EWCA Civ 430 Employee
summoned to meeting and told he would be dismissed and agreed severance terms
whereby he resigned

b) Expiry of a fixed term contract which is not renewed.

c) Employee terminates the contract, with or without notice, in circumstances

such that he is entitled to terminate by reason of the employer's conduct
(constructive dismissal).
McBride v Falkirk FC (UKEATS/0058/10)
Overview: Dismissals - Acas

UNFAIR DISMISSAL

1. The Reason for the Dismissal

Under s.98(1)(a) ERA 1996 the burden is on the employer to show the real reason
for the dismissal.. Under s.98(1)&(2) ERA the following reasons are prima facie fair:

a) incapability or lack of suitable qualifications

b) misconduct

c) redundancy

d) employment contravenes a statutory restriction or duty.

e) Some other substantial reason justifying dismissal

2.

Under s.98(4) ERA the dismissal will be fair if, in accordance with equity and the
substantial merits of the case, the employer can be regarded as having acted
reasonably. In determining this question the tribunal must take into account the
relevant circumstances including the size and administrative resources of the
employer's undertaking.

a) The Range of reasonable responses test

Iceland Frozen Foods Ltd v Jones [1982] IRLR 439
EAT held;
 Start with words of s 98(4)
  Assess reasonablenessof employer’s decision not whether ET
considers it fair
 ET must not substitute its decision as to right course for that of
the employer
 In many cases there is a band of reasonable responses
 Was the dismissal within this band?

London Ambulance Services NHS Trust v Small [2009] IRLR 563

a) Reasonable procedure

In determining whether an employer has acted reasonably as required by s.98(4) the

employer, in the past, would normally have to show he had followed relevant parts of
the model procedure contained in the ACAS Code of Practice.
ACAS Code of Practice on Disciplinary and Grievance Procedures
 A failure will not make dismissal automatically unfair but ET can adjust
awards by up to 25%
 Does not apply to redundancy and fixed terms
 No longer a requirement for Grievance Procedure, but 25% discretion
in award
 Claimant employee must commence grievance before constructive
dismissal claim or face reduction of up to 25% in compensation
 Anyone bringing a claim to an ET must make an Early Conciliation
notice to ACAS

Capability: DB Schenker Rail (UK) Ltd v Doolan (UKEATS/0053/09): conflict in

medical evidence; was dismissal within range of reasonable responses.
The EAT said that the Tribunal required to address 3 questions: whether the
respondent genuinely believed in their stated reason, whether it was a reason
reached after a reasonable investigation and whether they had reasonable grounds
on which to conclude as they did.

Conduct: Burchell Home Stores v Burchell [1978] IRLR 379

 Genuine belief in guilt
 Reasonable grounds on which to base that belief
 Employer carried out reasonable investigation

Redundancy; Rolls Royce v Unite the Union [2008] EWHC 2420

Morgan v WRU (UKEAT/0314/10)

Illegality: Connolly v Whitestone (UKEAT/0445/10)

SOSR
Slade & Others v TNT UK Ltd (UKEAT/0113/11) (employees’ contracts terminated,
and offered new contract without bonus payment.

 Breakdown of trust and confidence

 Pay cut; was it reasonable to dismiss;

3. Remedies for unfair dismissal

a) Re-instatement or re-engagement
ss.114-116 ERA

Employer successfully appealed reinstatement as mutual trust and confidence

no longer present Central and NW London NHS Trust v Ambimbola
(UKEAT/0542/08);

b) The basic award

This will normally be equivalent to the applicant's entitlement to a statutory

redundancy payment and is calculated on the basis of the applicant’s age, length of
service and gross week’s pay. >22; 41 and over
Maximum weekly wage £571/week from April 6th 2022

s.122 ERA The basic award can be reduced on the following grounds:

i) the amount of any redundancy payment received;

 ii) contributory fault

iii) the applicant has refused an offer of re-instatement by the employer

c compensatory award
maximum £89,493 on the 6th April 2022

This award is compensatory in nature and in accordance with s.123(1) ERA shall be
an amount which the tribunal considers just and equitable with regard to the loss
caused to the employee by the dismissal. Under s.123 tribunals can make a nil
compensatory award where the dismissal was found to be unfair, in accordance with
Polkey, solely on a procedural basis where in practice following a proper procedure
would have made no difference to the outcome. For the heads of loss see Norton
Tool Co Ltd v Tewson 1972 ICR 501; 1973 1 ALL ER 183. The award can reduced
on ground of contributory fault - s.123(6), or applicant's failure to mitigate loss -
s.123(4).

4. Redundancy: Competing policies

Capital markets – the need to be competitive
Employment security – the interests of employees
Social costs – the cost to society
Regulatory impact – the degree to which the law can balance the interests

6. Redundancy qualification
a) Must be an employee
b) 2 years continuous service
c) Must be a dismissal

7. The two statutory definitions of redundancy

a) Business closes
1. Cessation of business s139(1)(a) ERA
See Transfer of Undertakings
2. Place of business closes
Courtaulds Northern Spinning Ltd v Sibson [1988] ICR 451
High Table Ltd v Horst [1998] ICR 409
 b) Employer’s requirement for employees to carry out work of a
particular kind have ceased or diminished (Surplus Labour)
Murray & anor v Foyle Meats Ltd [1999] ICR 827

8. Unreasonable refusal of suitable alternative employment

a) Alternative employment. Under s.141 ERA the employee loses the
right to a redundancy payment if s/he unreasonably refuses an offer of suitable
alternative employment.
b) Suitable Alternative Employment. This must be ascertained through
an objective comparison between the two jobs.
c) Unreasonable Refusal. This relates to subjective factors inter alia
family commitments.
d) Trial period. Under s.138 ERA these provisions continue to apply
during a four week statutory trial period.

9. Claiming a redundancy payment

a) A claim to a tribunal must be presented within SIX months

from the effective date of termination.
b) The amount of statutory redundancy pay is based on age, length of
service and week’s pay. The maximum service which can be counted is 20 years. A
week’s pay is subject to the current statutory maximum. The employee is entitled to:
1½ weeks' pay for each COMPLETE year of service after reaching the age of 41;
one week’s pay for each complete year between the ages of 22-40 inclusive; and
half a week’s pay for each complete year between the ages of 18 and 21 inclusive.
c) Note the availability of statutory funds. ERA s166

10. Consultation

a) s188 TULRCA 1992 applies when the employer is proposing to dismiss R v

British Coal ex p Vardy [1993] ICR 720
b) If a trade union is recognised it should be the conduit for information and
consultation s188(1B) TULRCA 1992
c) If there is representation the employer is required to notify all employees
s188(7B) TULRCA 1992
d) There is no need to consult if fewer than 20 employees are dismissed in a
90 day period s195 TULRCA 1992

11. Business reorganisations and redundancies

Note that although a business re-organisation may alter the contractual basis upon
which the job is done, this will not normally constitute a redundancy and thus the
employee will not be entitled to a redundancy payment.

12. Redundancies and unfair dismissals

a) Employer’ motive irrelevant.

b) Breach and unfair dismissal

Despite the fact that it is the employer who has broken the contract the
dismissal will be upheld as fair if the employer can show that he has
acted reasonably.

c) Unfair redundancy

1. Unfair Selection Process

Rolls Royce v Unite the Union [2008] EWHC 2420

2) Failure to warn or consult

Polkey v A.E. Dayton Services Ltd

3) Failure to consider redeployment

Morgan v WRU (UKEAT/0314/10)
WORKSHOP ON LECTURE 5

In lecture 5 we have looked at the law on unfair dismissal and redundancy.

To guide our discussion of these topics think about the following questions:
 What is the difference between wrongful and unfair dismissal?
 What are the requirements for bringing an unfair dismissal claim?
 What is the significance of the ACAS Code of Practice on Disciplinary and
Grievance Procedures
 When can a redundancy be an unfair dismissal?
 What is the ‘range of reasonable responses test’ and why is it criticised?
 Read a digest of the case of Northbay Pelagic v Anderson and consider its
relevance.
 WEEK 6: TRANSFER OF UNDERTAKINGS AND DISCRIMINATION OVERVIEW

Pitt Ch 2, 9
Smith and Wood 4, 8
Lewis and Sargeant 6, 7, 17
Taylor and Emir Part III, ch 23
Lockton 5, 6

A – TRANSFER OF UNDERTAKINGS

1. TUPE Daniel Barnett's TUPE module 2020

And here

And here

a) Normal method of transfer - Transfer of shares

b) Common law position
1. Change of employer amounts to a termination of contract
2. Employee could not be forced to transfer

c) Overlap with redundancy

1. If the new employer was prepared to take on the employee, the
employee would lose the right to a redundancy payment.
2. If the employer was not prepared to take on the employee, the
employee was entitled to a redundancy payment

2 Transfer of undertakings (Protection of Employment) Regulations 2006

a) Regulation 4
1. On transfer, the contracts of employment of the transferor are
automatically transferred to the transferee
2. If the employee objects, there is no automatic transfer, however there
is no dismissal in these circumstances

b) When does the transfer take place?

3 What is the transfer of an undertaking? Ss1&2 of the Transfer of

Undertakings (Protection of Employment) Regulations 2006. Note the
importance of the term ‘economic entity’ given in s.2

Relevant Transfer
 Business transfer
 Service provision change
B DISCRIMINATION OVERVIEW

https://www.equalityhumanrights.com/en

1. Overview of anti-discrimination laws

a) The protected characteristics - Chapter 1 Equality Act 2010

b) Covers harassment and victimisation

c) Exists in direct and indirect forms

d) Allows for ‘justification’ for all types of indirect discrimination and

direct age discrimination

e) Includes specific provisions on pay under the S65 Eq A 2010

f) Workers as well as employees have discrimination protection. Also

job applicants, contract workers (eg workers supplied by an agency),
office holders and trade union members.

2. Sources
a. Relevance of EHRC Codes of Practice – statutory guidance which an
employment tribunal will expect an employer to follow and which an
employment tribunal must take into account.
b. New Codes issued in April 2011 on Employment and on Equal Pay
(available on ECHR website)
c. Relevant legislation is Equality Act 2010, the employment provisions of
which mostly came into force on 1 st October 2010 and some further
employment provisions came into force in April 2011.
d. Note that the Act also covers discrimination in other fields eg in the
provision of goods and services.
 e. The Equality Act 2010 covers most heads of discrimination but also
relevant are the Part-time Workers (Prevention of Less Favourable
Treatment) Regulations 2000 and the Fixed-term Employees (Prevention
of Less Favourable Treatment) Regulations 2002.
f. Much of anti discrimination law comes from EU directives so EU case law
will be relevant eg

 Equal Treatment Directive 1976 (sex , age )

 Equal Treatment in Employment and Occupation Directive 2000 (sexual
orientation and religion)

3. Protected characteristics

 Sex; #MeToo movement; £4 million sexual discrimination claim

against BNP Paribas investment bank
 Marital/civil partner status (ie protects those who are married/ in a
civil partnership not those who are single);
 Pregnancy and maternity (plus a period after giving birth);
 Gender reassignment (before, during and after);
 Race (includes colour, nationality, ethnic origin);
 Religion or belief (or lack of religion or belief; includes philosophical
beliefs);
 Sexual orientation (same sex, opposite sex or orientation to either
sex); Lee v Ashers Baking Company SC 2019
declared inadmissible ECHR January 2022
 Age (young or old) See here for 2019 interview Philipp Schofield
with 89 year old secretary unfairly dismissed for not being computer
literate
 Disability (or past disability)
  Equal Pay (as between men and women) all under the Equality
Act 2010 Asda Stores v Brierley UKSC 2021 10
 Fixed term employees FTE Regulations 2002
 Trade union membership protection from detriment ERA 1996 and
TUL(C)RA 1992
 Part time workers. PTW Regulations 2000

4. Forms of discrimination

a. Direct discrimination s 13 (NB some differences re age and disability

– see below)

 Less favourable treatment on the grounds of a protected

characteristic – cannot be justified (unless age). eg dismissal
because disabled; not recruited because from an ethnic
minority.

 Covers discrimination by association and perception eg

employee dismissed because her brother is gay

 Actual or hypothetical comparators except pregnancy/ maternity

leave – no need for a comparator as unique condition (

 Motive irrelevant

 Discriminator’s characteristics irrelevant eg can’t argue no race

discrimination by a Greek manager against a Greek employee,
just because the manager is also Greek.

 Burden of proof (s136) - shifts to the EMPLOYER if there are

facts from which an employment tribunal COULD find that there
had been unlawful discrimination, the tribunal must make a
finding of discrimination UNLESS the employer shows that it did
not breach the Equality Act.
b. Indirect discrimination s 19 (NB some differences re age and
disability – see below)

 Application of a provision, criteria or practice (PCP) by an employer to

everyone, but which puts those with a particular characteristic at a
particular disadvantage and cannot be justified as a proportionate
means of achieving a legitimate aim (ie employer must objectively
justify the PCP – indirect discrimination can be justified) Proportionality
means weighing up the discriminatory effect against the advantage to
the employer of having it. Could the same outcome be achieved in a
less discriminatory way? Cost alone is insufficient – Cross v BA [2005]
IRLR 423 – but may be one of several factors.ie claimant must show a
detriment to the group the claimant falls within eg a requirement that all
employees work full-time may disadvantage employees who can only
work part-time who tend to be female – the requirement to work full
time would need to be objectively justified.

 a requirement that all employees work overtime on Friday evenings

may disadvantage Jewish employees who for religious reasons need to
leave early on Fridays – the requirement to work late on Fridays would
need to be objectively justified eg because the business needs the
work done at that time and the employer cannot re-organise when the
work is done.

 Burden of proof - see above. In indirect discrimination this means that

once the employee can show the PCP shows a disadvantage to a
particular group, the burden shifts to the employer to show it doesn’t.

 Uniform policies – employers need to be aware of the need to

accommodate reasonable requests eg discreet religious symbols –
Eweida, Ladele, Chaplin and MacFarlane [2013] ECHR 37. At ECHR
level, the court found that BA had breached her Article 9 rights to
freedom of religion as her request to wear a cross was reasonable and
did not detract from BA’s image.
c. Harassment s 26 (NB not marriage/civil partnership or pregnancy/
maternity – use direct discrimination claim)

 Unwanted conduct related to a protected characteristic by A to B

which has the purpose OR effect of violating B’s dignity OR creating an
intimidating, hostile, degrading, humiliating or offensive environment for
B. Or C could claim harassment if a witness to the harassment of B, if it
creates the offensive etc environment for them too.

 Association and perception is included – the victim does not have to

have the protected characteristic. Eg employee harassed about being
gay even though his colleagues knew he wasn’t gay. ( English v
Thomas Sanderson Blinds [2009] IRLR 206).

Coleman v Attridge Law (2008); discrimination by association

 Also covers sexual harassment – conduct of a sexual nature which has

the effect of creating the intimidating etc environment.

 Submitting to or rejecting sexual harassment - less favourable

treatment as a result of that also covered.

 Purpose or effect – if intended harassment (ie purpose), the victim’s

perspective is not relevant (‘she’s over-reacting’); if not intended but
the effect is the intimidating etc environment, then consider whether the
behaviour should reasonably be considered as having that effect,
including taking into account the victim’s perspective.

 Liability for third party harassment - Employer will be liable, under s 26,
if fails to take reasonably practicable steps to prevent the harassment
by another.

d. Victimisation s27

 A victimises B if subjects B to a detriment because B has (or A believes

B has) has (a) brought a claim under the Act, (b) given evidence or
 information in connection with such a claim, (c) done anything else
under the Act or (d) made an allegation of discrimination under the Act.

 Victimisation therefore protects employees who have brought

discrimination claims or made allegations of discrimination. It also
protects eg colleagues who appear as a witness in a discrimination
claim.

Age discrimination

Age as a protected characteristic can be a specific age or belonging to an age

range ie falling within an age group.

The big difference with direct and indirect age discrimination is that BOTH can
potentially be justified, unlike other forms where only indirect discrimination
can potentially be justified by the employer . Employer must show that the
behaviour was a proportionate means of achieving a legitimate aim.
Retirements at any age must therefore be objectively justified.

Examples could include:

 Health welfare and safety

 Employment planning

 Training requirements

 Encouraging and rewarding loyalty

 The need for a reasonable period before retirement

 Recruiting or retraining older people

Justification of direct discrimination:

Bloxham v Freshfields (ET/2205086/06)

Seldon v Clarkson Wright Supreme Court 24 April 2012

Prof P Ewart v The Chancellor, Master and Scholars of the University of Oxford;

Case number 3324911/2017

Justification of indirect discrimination:

 Rolls Royce v Unite [2009] IRLR 576

Some exemptions specifically for age discrimination:

 Service related benefits – benefits based on service up to 5 years are

exempt – after 5 years, need to justify.

 NMW

 Length of service criteria for statutory redundancy payments and the basic
award for unfair dismissal.

 Job candidates very close to employer’s normal retirement age – within 6

months

 Pensions exceptions

Disability

Who is disabled? s6

 Physical or mental impairment - exceptions

 Which has an adverse effect on the ability to carry out normal day to
day activities – medical evidence Kapadia v LB Lambeth [2000] IRLR
699; effect not cause.

 Which effect is substantial – more than minor or trivial

 Which is long term ie has lasted for at least 12 months, is likely to last
at least 12 months or likely to last for the rest of the person’s life

EHRC Code of Practice on Employment into force 2011.

Certain conditions automatically covered from the date of diagnosis eg cancer ,

HIV/AIDS, MS.

Progressive conditions which are likely to have substantial impairment in the

future are covered.

Substantial effects likely to recur – treated as having substantial impact.

Covers past disabilities and perceived disabilities and associative discrimination.

Disregard effects of treatment (exceptions glasses, contact lenses)

Focus on what the person can’t do rather than on what they can – Adremi v
London and SE Railway [2012] ETA 0316

Types of discrimination

As above but two further types below.

Also note:

Direct – work occupational requirements

Direct – compare with non disabled person OR someone with a different disability

Pre-employment health questions

Failure to make reasonable adjustments s 20-21

 Where a disabled person is placed at a substantial disadvantage in

comparison with a non-disabled person.

 PCP putting the employee at a disadvantage (eg working hours,

application of the employer’s policies or procedures) OR physical feature
(eg need wheelchair access or more space around desk) OR the provision
of an auxiliary aid (eg need employer to get special chair or keyboard)

 Onus on employer

 Medical evidence and consult with employee

 Employer’s knowledge of the disability

Code of Practice – take into account

 the extent to which taking the step would prevent the effect in question;
 the extent to which it is practicable for the employer to take the step;
  financial and other costs of the adjustment and the extent of any disruption
caused;
 the extent of the employer’s financial and other resources;
 the availability to the employer of financial or other assistance
 size and type of the employer

Discrimination arising from disability s15

 Discrimination because of something arising in consequence of disability

 Justification defence available

 Eg dismissed because took long term sick leave

 Employer must know of the disability

Indirect discrimination s19

 No need for employer knowledge of the individual’s disability

 Same disability only

 Possible overlap with discrimination arising from disability or failure to

make reasonable adjustments?

Procedure in Discrimination cases

 Time limits – 3 months –

 Raise a grievance/appeal to avoid compensation reduction
 Questionnaire procedure NOW repealed
 Use of case management discussions/directions hearings to narrow
issues

Remedies for Discrimination

Compensation broadly same principles for each of statutory rights

 Statutory tort of discrimination

No requirement to show loss reasonably foreseeable
  No reduction for contributory fault
 Claimant must try and mitigate loss
 Financial losses as with UD compensation
 No cap on award
 Compensation for personal injury can be awarded as part of discrimination
compensation
 Award for injury to feelings. Award should be compensatory not punitive.
 Vento v Chief Constable of West Yorkshire [2003] IRLR 102

New Vento bands from 6 April 2022

 a lower band of £990 to £9,900 (less serious cases);
 a middle band of £9,900 to £29,600 (cases that do not merit an award in the
upper band); and.
 an upper band of £29,600 to £49,300 (the most serious cases), with the most
exceptional cases capable of exceeding £49,300.

 Aggravated damages permissible in exceptional cases including where

response to claim merits it
 Normal practice to make majority of award against employer with a smaller
award against colleague (where appropriate)
 Interest can be awarded by the ET in discrimination claims

WORKSHOP ON LECTURE 6

For our final workshop we are going to look at one of the assessed debates from a
previous year:
 ‘Ideally, discrimination ought to be an easy concept’ is the opening phrase of
Lady Hale’s judgment in the Supreme Court in Essop v Home Office and
Naeem v Secretary of State for Justice [2017] UKSC 27. Discuss, with
reasons, whether Lady Hale’s judgment succeeds in making the law on
discrimination an easier concept.

A hot topic today is transgender issues. Read about the Bell decision in High Court
in December 2020 upheld in the Court of Appeal

Please also look at the 2022 Maya Forstater case