DALLIMORE HelenHEATON BENTo coincide with World Mental Health Day, which was on October 10, ACAS have published new guidance to promote positive mental health in the workplace.  Helen Dallimore, senior associate and Ben Heaton, trainee solicitor and in our employment team take a closer look.

Tags: Employment and Pensions2017


DALLIMORE HelenTo help you quickly keep up to date with employment law, we summarise the key developments arising from cases, guidance, legislation and consultations for this month.

If you would like to discuss any of the points raised, please get in touch with Helen Dallimore, senior associate, or with your usual contact in the Foot Anstey employment team.


In the courts…recent case law developments

Tribunal wrong to find dismissal unfair because investigation was too thorough

The EAT in NHS 24 v Pillar held that a tribunal had erred in finding a misconduct dismissal unfair because the investigation considered previous incidents that had not been treated as disciplinary issues.

P was employed by NHS 24 as a Nurse Practitioner who would take telephone calls from members of the public and triage them by asking a series of questions. She was dismissed for gross misconduct following an incident wherein she failed to ask the appropriate questions and referred a patient who had suffered a heart attack to an out of hours GP. She had previously been responsible for two other incidents, in August 2010 and in July 2012, but neither of these were treated as disciplinary issues. P was dismissed and brought a claim for unfair dismissal. An employment tribunal held that the decision to include these incidents made the dismissal procedurally unfair. NHS 24 appealed to the EAT.

The EAT applying the standard test for misconduct dismissals (known as the Burchell test) held that it was "inconsistent and perverse" of the tribunal to find that relevant material should have been excluded from the report. Unless it could be said clearly that the earlier incidents should never have been a factor to dismiss, there was no rational basis to exclude them from the report. The material was held relevant enough to be included despite not being treated as disciplinary matters.

Is suspension a neutral act?

In line with previous case law, the High Court in Agoreyo v London Borough of Lambeth has confirmed that suspension of employment is not always a neutral action.

Mrs A was a teacher at a primary school in Lambeth. Allegations were made against Mrs A that she had used unreasonable force on one of her pupils on three occasions (over November and December 2012). She was suspended as a result of this and in the letter of suspension it stated that "The suspension was a neutral action and is not a disciplinary sanction. The purpose of the suspension is to allow the investigation to be conducted thoroughly". Mrs A then resigned. Eventually, the police decided that there were no basis for criminal proceedings and she was not barred from teaching.

Mrs A challenged the lawfulness of her suspension on the basis it breached the implied duty of trust and confidence owed by an employer to their employee. The High Court allowed her appeal (as the County Court held that the school was "bound" to suspend her) as the suspension was held to be a 'knee-jerk' reaction. Greater care and consideration should have been taken to ensure the true purpose of the suspension was ascertained, and whether there was any other suitable alternative. This case is a great reminder that suspending employees for alleged misconduct should never be a default position and suspension should only be used after a reasoned and considered approach.

Claims brought by embassy staff not excluded by state immunity

The Supreme Court held in its unanimous judgment in Benkharbouche v Secretarty of State for Foreign Commonwealth Affairs & Anor that sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 could not protect embassies from Employment Tribunal claims brought by domestic staff in the UK.

The Supreme Court held that there is no basis in customary international law to apply state immunity in an employment claim where the acts were private, or private in nature. Further, to deny the employee access to a court or remedy was incompatible with Article 6 of the European Convention on Human Rights.

This decision has since been reaffirmed by the Supreme Court in the case of Reyes v Al-Malki.

Employment Law Updates…Legislation and Guidance

Modern Slavery Update

The Modern Slavery Act 2015 requires all large business to produce an annual statement setting out the steps they have taken to prevent modern slavery in both their business and supply chains. For more information please see our previous article. Whilst these transparency statements are effective, it is widely considered that, on their own, they are not enough.

In further response to this and in a growing effort to tackle modern slavery the government have now produced a practical guide to transparency in supply chains. 

Whilst much of the guidance remains unchanged, this latest update encourages smaller organisations to produce statements even where they are not required to by legislation. The guidance also places strong emphasis on continuity of statements and access to historical statements. Finally, there is added importance on key performance indicators and how potential investors can use them to gauge a company's effectiveness in ensuring that there are no forms of modern slavery in any parts of their business.

First stage implementation of Employment Tribunal Refunds

Ministers have committed the government to refunding those who had paid employment tribunal fees following a Supreme Court judgment. This widely anticipated action is a result of the decision in the Unison case and a detailed breakdown of this decision can be found in our previous article here.

Up to 1,000 people will now be individually contacted and given the chance to complete an application form in anticipation of the full scheme being opened up in a few weeks' time. As well as being refunded any original fees paid, successful applicants will be paid interest of 0.5%.

It is estimated that the opening phase of the refund scheme will last around 4 weeks and that the total cost of the tribunal refund scheme will cost around £33 million in total.

New leave allowance for grieving parents

Legislation has been proposed which will entitle parents to two weeks' leave if they lose a child. The Parental Bereavement (Pay and Leave) Bill will allow employees/ parents who lose a child under the age of 18 to apply for up to two weeks' paid leave from their employer.

Those employees who have 26 weeks' continuous service will also benefit from statutory parental bereavement pay, the cost of which employers will be able to recover from the government. Smaller firms are likely to be able to recoup the full cost whilst larger firms will recoup around 90%.

The government confirmed that the bill goes significantly further than most other countries in providing this kind of workplace right employees.

The bill was scheduled to have its second reading on 20 October, with the ambition of it becoming law in 2020.

ACAS publishes new guidance on mental health

On World Mental Health day (October 10th) ACAS have published a new guidance booklet entitled "Promoting Positive Mental Health in the Workplace".

This has been supplemented by two smaller online guides entitled "Dealing with Stress in the Workplace" and "Managing Staff Experiencing Mental Ill Health

We have also prepared an article on mental health in the work place.

In the news

Theresa May assures EU nationals of status in UK post-Brexit

In the wake of Brexit negotiations, Theresa May has further assured EU citizens that the process to remain in the UK will be "streamlined" and the cost kept as "low as possible".

In a Facebook post, May highlighted the importance of EU citizens who pay into the UK system and that simple, transparent criteria will be applied when applying to remain in the UK. The cost of doing this will be no more than the "cost of a UK passport".

In our July bulletin, we highlighted a number of key questions and provided guidance on what business and employers should do in light of these proposed changes post-Brexit. 

Independent report published on FA race discrimination case

An independent report, published by barrister Katharine Newton, has found that ex-England Women's football coach Mark Sampson did use racist language when speaking with players Eniola Aluko and Drew Spence but was "not a racist".

The report further detailed that Sampson had difficulty judging boundaries around "banter" but did not subject Aluko or Spence to "a course of bullying". Aluko and FA bosses faced questions from MPs on 18th October and there are now calls for senior FA officials to resign amid poor handling of the matter. Sampson's lawyers have also intimated that he is considering bringing a claim for unfair dismissal against the FA.

The handling of this very sensitive matter again serves as a reminder as to how serious alleged discrimination based on race (or any other protected characteristics) should be taken by employers, and the importance of transparency.

To learn more on employment law, please contact Helen Dallimore, senior associate on +44 (0)1392 685289 or email helen.dallimore@footanstey.com

Tags: Employment and Pensions2017

Young Tim


Tim Young, legal director in our corporate team, summarises the Government's proposals for corporate governance reform in connection with executive pay; strengthening the voice of wider stakeholders in the boardroom; and introducing a set of corporate governance principles for large privately-owned businesses.

Tags: Employment and Pensions2017

clark heidistirk sharee


Since the Supreme Court surprise judgement rendering tribunal fees unlawful, we have had many questions around the practical impact of the decision.  Heidi Clarke and Sharee Stirk, both trainee chartered legal executives in our employment team, respond to some FAQs to help clarify the position for employers.

Tags: Employment and Pensions2017



To help you quickly keep up to date with employment law, we summarise the key developments arising from cases, guidance, legislation and consultations for this month.

If you would like to discuss any of the points raised, please get in touch with Helen Dallimore, senior associate, or with your usual contact in the Foot Anstey employment team.

Tags: Employment and Pensions2017


COLLINGS JamesA recent EAT decision has provided further confirmation that when voluntary overtime is made with sufficient regularity it will be "normal remuneration" and will need to be reflected in holiday pay. James Collings, partner, looks at the case and highlights the key points to take away. 

Tags: Employment and Pensions2017



The Supreme Court has ruled that employment tribunal fees are unlawful in the long running UNISON case.  James Collings looks at the case and considers what this means in practice for employers.

Tags: Employment and Pensions2017



The High Court was recently asked to consider whether a senior executive on garden leave was able to object to the transfer of his employment under TUPE and terminate his garden leave where there had been a share acquisition and subsequent integration process. Claire Holland, senior associate, considers the case and its practical implications.

Tags: Employment and Pensions2017



DALLIMORE HelenNick Davies, and Helen Dallimore, senior associate in our employment team, summarise and comments on the much anticipated Taylor review which considers how employment practices need to change to keep pace with modern business models. Launched at the end of 2016 (and subsequently published on 11 July 2017), the Taylor Review of Modern Working Practices  states that it is based on a single overriding ambition that all work in the UK economy should be fair and decent with realistic scope for development and fulfilment. As well as making recommendations the review highlights some challenges for the labour market ahead which are likely to resonate with many employers.

Tags: Employment and Pensions2017


Proposed deal for EU citizens post Brexit As stated in our last bulletin, Theresa May has now outlined a proposed deal for EU citizens, which may impact on many employers' EU staff.  Whilst this is still subject to change and negotiations, see our summary of the proposals and a 10 key Q and A fact sheet.  We have also prepared an extra question for employers: What should businesses do now?