Employment Law Handbook Law2407

School of Law
Department of Law & Politics
Employment Law
LAW2407/2408
Module Coordinator in Dubai: Samantha Roberts

AY 2023-24
Duration of the module: 24 weeks
Document Version 1.0

Employment Law LAW2407/2408
Online location of handbook
This handbook can also be accessed via My Learning at: Insert link
Other formats available
This handbook is available in a large print format for students with any disability. If
you would like a large print copy or have other requirements for the handbook,
please contact CampusCentral via our AskMDX service: https://askmdx.mdx.ac.ae
We can supply sections from this publication as:
• a Word document with enlarged type — sent by email
• printed copy with enlarged type
• printed copy on non-white paper
Other formats may be possible. We will do our best to respond promptly. To help us,
please be as specific as you can about the information you require and include
details of your disability.
Disclaimer
The material in this handbook is as accurate as possible at the date of production. You
will be notified of any minor changes promptly. If there are any major changes to the
module, you will be consulted prior to the changes being confirmed. Please check the
version number on the front page of this handbook to ensure that you are using the
most accurate information.
Other documents
Your module handbook should be read and used alongside your programme
handbook and the information available to all students on My Learning and UniHub,
including the Academic Regulations. Your programme handbook can be found on the
My Learning programme page for your course. The Dubai Campus Guide can be
found at https://www.mdx.ac.ae/life-at-university/campus-guide
Module Handbook 2023-24 page. 2

Table of Contents
Table of Contents .................................................................................................................... 3
1. Welcome ............................................................................................................................ 4
2. The module teaching team ............................................................................................. 4
3. Communication with the teaching team........................................................................ 4
4. Module overview............................................................................................................... 6
4.1 Module Narrative ......................................................................................................... 6
4.2 Research Ethics ........................................................................................................... 15
5. Learning resources ........................................................................................................... 16
6. Expectations of studying this module ............................................................................ 19
6.1 Attendance and Engagement ..................................................................................... 19
6.2 Professional behaviour................................................................................................ 20
6.3 Laptops, Mobile phones and other devices ............................................................... 21
6.4 Academic Integrity and Misconduct .......................................................................... 22
6.5 Extenuating circumstances ........................................................................................ 24
6.6 Recording of Lectures................................................................................................. 25
7. Assessment ....................................................................................................................... 26
7.1 Formative assessment ................................................................................................ 26
7.2 Summative assessment ............................................................................................... 26
7.3 Feedback on your assignments .................................................................................. 27
7.4 How is your assignment mark agreed?....................................................................... 28
7.5 Anonymous Marking Assessment Policy <<delete if this does not apply to this
module>> ................................................................................................................... 28
7.6 Reassessment (Re-sit) opportunity ............................................................................. 29
Assessment 1 ........................................................................................................ 30
5. Learning Planner ............................................................................................................ 37
6. University 20-point Scale .............................................................................................. 39

1. Welcome
Welcome to Employment Law. You are here because you have chosen Employment
Law as one of your optional modules. Throughout the next 22 learning weeks we will
be learning the fundamental elements of employment law.
Samantha Roberts - [email protected]
2. The module teaching team

Please see below the details of the teaching team for this module.
Module Coordinator: Samantha Roberts

Room number: Block 15, First Floor
Law Faculty Offices
Email: [email protected]
Office hours: Monday 4:30-6:30pm
Tuesday 12:30-2:30pm
For timings outside of these hours,
please email.
Library Liaison: Abigail Cruz
Room number: Library, Block 15, 3rd Floor
Email: [email protected]
Office hours: By Appointment
3. Communication with the teaching team

You are welcome to reserve an appointment during my office hours for timings that
might suit us both. Please email me your appointment request along with your
inquiry from your university email account. Don’t forget to state your student ID
number and module code and name in your email booking request. If you turn up at
the door unannounced or phone at an unsuitable time, then you are far less likely to
make contact.
I will send urgent messages about the module to you by email and/or the Microsoft
Teams platform, so it is important that you read your university email and check your
MS Teams notifications regularly. I recommend that you check your email and MS
Teams accounts at least three times a week. I will also use these accounts to tell you
about events (guest lectures or academic enrichment sessions, for example) and

career opportunities (employability workshops, internships, job offers and so on) that
will help enhance your learning.
Use your Middlesex email address when contacting members of staff to avoid emails
being caught in University spam filters. Please also always include your full name,
student number, programme name, year of study and module details when
contacting staff.
For all queries that don’t relate to your programme of study (e.g. fees, wellbeing,
accommodation, IT issues, etc.) you should directly contact Campus Central
AskMDX (https://askmdx.mdx.ac.ae/) rather than your module tutors. This will help
ensure you get a response more quickly.
Check the Middlesex Dubai website, UniHub and MDX Central App regularly during
term-time for any other notifications or announcements. Attempt to look for basic
answers to questions (e.g. by using UniHub, Dubai Campus Guide or MDX Central
App) before contacting staff.
Take time to write polite emails (as you would in professional employment) in all
communications with staff. This should include use of a clear subject line to indicate
the subject of your message and previous emails on the conversation thread.
Respond to emails from staff within three working days (i.e. not including weekends,
public holidays or University closure days) and allow staff the same period of time
(three working days) to respond to your queries. Whilst staff may occasionally
choose to respond to emails outside of normal working hours (Monday – Friday, 9am
– 5pm), this should not be expected as standard. If you don’t hear back from a
member of staff within the three working days timeframe, then sending a reminder
email is encouraged, but not sooner. You can also try raising the question with a
different member of staff – e.g. your Campus Programme Leader/Coordinator. You
can find contact details for these members of staff within MDX Central App. If a staff
member is away from work, they may have set up an 'out of office' automated email
that will provide instructions of how you can get your query answered in their
absence – so make sure that you carefully read any such messages.
Contact your Module Coordinator(s) and / or the Campus Programme Leader/

Coordinator if you are absent for any period of time and cannot attend scheduled
teaching.

4. Module overview
4.1 Module Narrative

1. Module code: LAW2407
2. Title: Employment Law
3. Credit points: 30
4. FHEQ level: 5
5. Start term: September
6. Module leader: Professor David Lewis, Hendon campus,

[email protected] 020 8411 5983
7. Accredited by: N/A
8. Module restrictions:
(a) Pre-requisite N/A
(b) Programme restrictions LLB Law 146M200/146M20D/146M20M
LLB Commercial Law 146M293/146M295
LLB Law with Human Rights 146M291
(c) Level restrictions UG level 5
(d) Other restrictions or N/A

requirements
9. Aims:
This module aims to: provide knowledge and understanding of employment and
discrimination law and enable the student to appreciate how legal principles
encountered in other law modules can be applied to these areas; encourage a critical
appreciation of employment and discrimination law and enable students to place the
subject in the context of both their working and non-working lives. Having taken this
module, students will have an appreciation of the role of law in regulating the
employment relationship and countering discrimination.
10. Learning outcomes:
Knowledge
On successful completion of this module, the student will be able to:

1. Demonstrate a critical and detailed understanding of the issues relating to the

formation, variation and termination of contracts of employment and the law relating to
discrimination;
2. Demonstrate comprehensive knowledge of the central principles and theoretical
arguments which inform these areas of law;
3. Evaluate critically the relationship between the law and social, historical, ethical and
cultural context within which it operates.
Skills
4. Demonstrate intellectual and analytical skills in the application of employment and

discrimination laws and to reach both creative and reasoned judgments;
5. Critically analyse issues related to both employment and discrimination and
contextualize the wider political, social and ethical issues and demonstrate cultural
competence;
6. Communicate in writing both coherently and succinctly.
11. Syllabus:
• The foundations and institutions of employment and discrimination law,

including the importance of EU law
• Employment status and non-standard working

• Discrimination law
• Individual and collective sources of terms
• Continuity of employment; transfers of undertakings
• Wages and work/life balance
• Suspension, variation, and breach of contract.
• Termination of employment under common law & statute
• Unfair dismissal and redundancy
12. Learning and teaching strategy:
The skills and knowledge are developed by a programme of lectures and seminars. The
student will also be expected to undertake private study, research and library work.

Lectures
The lectures are one and a half hour in length and take place weekly. They are intended
to inform and to raise ideas as well as to encourage students to reflect on the issues.
They ensure that the students are aware of the relative importance of different aspects
of employment and discrimination law.
Seminars
The seminars are one hour in length and take place weekly. They are intended to be
participative and to stimulate discussion about the application of the law to the issues
raised in the lectures. Students will be set a number of questions for each seminar and
are expected to use them as the basis for their own reading and reflection. Students are
expected to prepare for the seminars through their own private study and to determine
their own strategy for dealing with the issues raised.
Workshops
These will be held fortnightly and will focus on coursework preparation and techniques,
on reinforcing skills development, employability skills and to facilitate guest speakers
where appropriate.
13. Assessment scheme:
(a) Formative assessment scheme
Exercises will be provided in weeks 5 and 18 for students’ self-assessment with outline
answers provided.
b) Summative assessment scheme
Two coursework assignments:
The first piece of coursework will consist of problem questions due in week 12. Students
are required to answer all three questions and will receive individual feedback.

The second piece of coursework consisting of both essay and problem questions will
be due in the April/May assessment period. TStudents must answer one problem and
one essay question.
Task: Coursework 1
Weighting Specification e.g. LO Anonymously Ethics approval

word count / mapped to marked required
duration / no. of
pages
50% Up to 2500 words The ☐ No ☒ No

coursework
will address ☒ Yes ☐ Yes – individual student
learning
outcomes 1 ☐ Yes – group approval
and 4 -6
☐ Yes – whole module
Task: Courswork 2

duration / no. of
pages
50% Up to 2500 words The second ☐ No ☒ No

coursework
all learning
outcomes ☐ Yes – group approval
In order to pass the module, the student will be required to achieve either:
☒ an overall aggregate of grade 16;

☐ an overall aggregate of grade 16 with a minimum of grade 16 in each
assessment component


☐ an overall aggregate of grade 16 with a minimum of grade of 18 in each
Seen examination n/a
Unseen examination n/a
Coursework (no examination) 100%
14. Timetabled examination ☒No ☐

required
15. n/a
16. Learning materials

• Essential
Smith, I, & Baker, A Smith & Wood’s Employment Law,

OUP, 15th Edn, 2021
• Recommended
Collins, H, Ewing, K, McColgan, A, Labour Law
Cambridge 3rd Edn 2019
Adams,Z, Barnard, C, Deakin, S & Fraser Butlin, S,

Deakin and Morris’ Labour Law. Hart. 7 th Edn. 2021
Emir, A Selwyn’s Law of Employment, OUP 21 st

Edn , 2020
1. Module code: LAW2408
2. Title: Employment Law
3. Credit points: 30
4. FHEQ level: 5
5. Start term: September
6. Module leader: Professor David Lewis, Hendon campus,

[email protected] 020 8411 5983

7. Accredited by: N/A
8. Module restrictions:
(e) Pre-requisite N/A
(f) Programme restrictions BA Law 135M300/135M20D/135M20M
BA Law with Foundation Year 135M201
(g) Level restrictions UG level 5
(h) Other restrictions or N/A

requirements
9. Aims:
This module aims to: provide a knowledge and understanding of employment and
discrimination law; to encourage a critical appreciation of employment and discrimination
law and enable students to place the subject in the context of both their working and non-
working lives. Having taken this module, students will have an appreciation of the role of
law in regulating the employment relationship and countering discrimination.
10. Learning outcomes:
Knowledge
1. Demonstrate detailed knowledge of the role of the common law and legislation
relating to the formation, variation and termination of contracts of employment and
discrimination;
2. Identify and evaluate thoroughly the theoretical arguments which inform these areas
of law;
3. Show a comprehensive appreciation of the historical and social context in which

employment operates.
Skills

4. Analyse critically the application of employment and discrimination laws and reach
reasoned judgments;
5. Contextualize the wider historical and social issues related to employment and
discrimination law;
6. Communicate clearly in writing.
11. Syllabus:
• The foundations and institutions of employment and discrimination law,

including the importance of EU law
• Employment status and non-standard working

• Discrimination law
• Individual and collective sources of terms
• Continuity of employment; transfers of undertakings
• Wages and work/life balance
• Suspension, variation, and breach of contract.
• Termination of employment under common law & statute
• Unfair dismissal and redundancy
12. Learning and teaching strategy:
The skills and knowledge are developed by a programme of lectures and seminars. The
student will also be expected to undertake private study, research and library work.
Lectures
The lectures are one and a half hour in length and take place weekly. They are intended
to inform and to raise ideas as well as to encourage students to reflect on the issues.
They ensure that the students are aware of the relative importance of different aspects
of employment and discrimination law.
Seminars
The seminars are one hour in length and take place weekly. They are intended to be
participative and to stimulate discussion about the application of the law to the issues

raised in the lectures. Students will be set a number of questions for each seminar and
are expected to use them as the basis for their own reading and reflection. Students are
expected to prepare for the seminars through their own private study and to determine
their own strategy for dealing with the issues raised.
Workshops
These will be held fortnightly and will focus on coursework preparation and techniques,
on reinforcing skills development, employability skills and to facilitate guest speakers
where appropriate.
13. Assessment scheme:
(b) Formative assessment scheme
Exercises will be provided in weeks 5 and 18 for students’ self-assessment with outline
answers provided.
b)Summative assessment scheme
There are two coursework assignments:
The first piece of coursework will be due in week 12 and will consist of three problem
scenarios. Students must answer all three questions and individual feedback will be
provided.
The second piece of coursework with consist of two essay and two problems questions.
Students must answer one problem and one essay question.The coursework will be
due in the April/May assessment period. .
Task: Coursework 1

duration / no. of
pages

50% 2500 words maximum The ☐ No ☒ No

coursework
learning
outcomes 1, ☐ Yes – group approval
4 and 5
Task: Coursework 2

duration / no. of
pages
50% 2500 words maximum This ☐ No ☒ No

coursework
all learning
outcomes ☐ Yes – group approval
In order to pass the module, the student will be required to achieve either:
☒ an overall aggregate of grade 16;

☐ an overall aggregate of grade 16 with a minimum of grade of 18 in each
Seen examination n/a
Unseen examination n/a
Coursework (no examination) 100%
14. Timetabled examination ☒

required
No ☐
15. Length of exam n/a

16. Learning materials • Essential

Smith, I, & Baker, A Smith & Wood’s Employment Law,
OUP, 15th Edn, 2021
• Recommended
Collins, H, Ewing, K, McColgan, A, Labour Law
Cambridge 3rd Edn 2019
Adams,Z, Barnard, C, Deakin, S & Fraser Butlin, S,

Deakin and Morris’ Labour Law. Hart. 7 th Edn. 2021
Emir, A Selwyn’s Law of Employment, OUP 21 st

Edn , 2020
4.2 Research Ethics

The teaching, learning, assessment and research activities undertaken in this
module have been considered and are not likely to require ethical approval.
• However, please seek advice if undertaking the module entails carrying out any
research activities involving human participants, human data,
animals/animal products, precious artefacts, materials or data systems or
social media. If you submit work that includes data gathered from or about
people, this may be treated as academic misconduct and could lead to fail
grade being awarded.
• Research ethics approval seeks to ensure all research is designed and
undertaken according to certain principles of ethical research. These include:
1. Primary concern must be given to the safety, welfare and dignity of
participants, researchers, colleagues, the environment and the wider
community
2. Consideration of risks should be undertaken before research commences
with the aim of minimising risks to those involved – i.e. human participants
or animal subjects, colleagues, the environment and the wider community,
as well as actual or potential risks to those directly or indirectly affected by
the research.
3. Informed consent should be freely given by participants, and only by a
trained person when collecting or analysing human tissue.
4. Respect for the privacy, confidentiality and anonymity of participants
5. Consideration of the rights of people who may be vulnerable (by virtue of
perceived or actual differences in their age, social status, ethnic origin,
gender, mental capacities, or other such characteristics) who may be less
competent or able to refuse to give consent to participate

6. For participants below the age of 18, parental consent must be obtained
prior to the study.
7. Researchers have a responsibility to the general public and to their
profession; as such they should balance the anticipated benefits of their
research against potential harm, misuse or abuse which must be avoided
8. Researchers must demonstrate the highest standards of ethical conduct
and research integrity. They must work within the limits of their skills,
training and experience, and refrain from exploitation, dishonesty,
plagiarism, infringement of intellectual property rights and the fabrication of
research results. They should declare any actual or potential conflicts of
interest, and where necessary take steps to resolve them.
9. When using human tissues for research, the UK’s Human Tissue Act and
Human Tissue Authority (HTA) requirements must be met. Please contact
the relevant designated person (DP) in your department or the HTA
Designated Individual (DI).
10. Research should not involve any illegal activity, and researchers must
comply with all relevant laws
You can apply for research ethical approval using the Middlesex University Dubai
Ethics Form. The relevant forms, templates and guidance on the approval process can
be obtained from the module folder on UniHub. Your module coordinator can provide
further guidance. Additionally, documents can be found through the following link
https://bit.ly/35Zp7MZ
5. Learning resources
SELECTED BIBLIOGRAPHY
Your online reading lists can be accessed from the My Library area of myUniHub. They
highlight essential and recommended reading for all modules you are registered on.
Recommended
Note: You will have available to you (free of charge) a recommended Kortext book.
The recommended textbook is Smith, I, & Baker, A Smith & Wood’s Employment Law,
OUP, 15th Edn, 2021

Statute book The recommendation is Kidner, R, Blackstone's Statutes on

Employment Law 2023/24 OUP (Oxford University Press) 2022.
http://ukcatalogue.oup.com/category/academic/promotions/he/webmdx14.do
A further selection
Here is a selection of further reading. You do not have to buy any of these books,
all may be borrowed from the library. Some are available in ebook form, as stated
below.
Core text:
Smith, I, & Baker, A Smith & Wood’s Employment Law, OUP, 15th Edn, 2021
Introductory:
Davies, A, Employment Law, 1st edition, Pearson, 2015
Davies, A Perspectives on Labour Law, 2nd edn, Cambridge 2015. The university
library catalogue is currently containing only the first edition (2009) (hard copy and
electronic)
Honeyball S Great debates: Employment Law Palgrave, 2nd edition, 2015. The
university library catalogue is currently containing only the first edition (2011)
Lewis D & Sargeant, M Employment Law: The Essentials (16th edition) CIPD 2022
Standard Textbooks and Materials:
Adams, Z, Barnard, C, Deakin,S, Fraser Butlin, S, Deakin and Morris’ Labour Law. 7th
Ed. Hart. 2021
Cabrelli, D Employment Law in Context: text and materials 3rd edn OUP 2018
Collins, H, Ewing, K, McColgan, A, Labour Law Cambridge 2019
Emir, A Selwyn’s Law of Employment 20th Edn OUP, 2018
Sargeant, M. Discrimination and the Law 2nd ed. Routledge 2018
Specialist Law Reports
Industrial Relations Law Reports (IRLR)
Industrial Cases Reports (ICR)

Recommended journals
**XpertHR – a very useful, frequently updated resource, available online via myUniHub
(go to 'Databases'). XpertHR encompasses the journals formerly known as
Employment Law Bulletin [ELB], Industrial Relations Law Bulletin [IRLB], Employment
Review (ER) and Industrial Relations Services Employment Review (IRSER)].
References to back issues of these journals are included in the bibliographies to the
lecture notes in this handbook. These can be accessed from Xpert HR, searching by
subject..
** Industrial Law Journal (ILJ) (available online only) is the main specialist academic
journal
** Equal Opportunities Review (EOR), available both in hard copy and electronic form
is another very valuable resource, for discrimination law. It includes discrimination law
news, commentary on topical issues, law reports, examination of legislation, case
studies and surveys.
Incomes Data Services (IDS) Briefs, Supplements and Handbooks
Modern Law Review (MLR) and other general law journals will sometimes have
articles on employment law.
Selected websites
The official home of UK legislation: http://www.legislation.gov.uk/.
Useful but use with care because amendments to the statute take a long time to be
incorporated in the Act (though the amendments will be referred to and you will be
able to view them). Lexis Library will publish or at least refer to amendments much
more quickly.
Advisory, Conciliation and Arbitration Service (for codes of practice and new
developments etc): www.ACAS.org.uk
Chartered Institute of Personnel and Development: www.cipd.co.uk
Daniel Barnett (free email updates) https://www.danielbarnett.co.uk/site/mailing-

list/mailing-list-signup/
Department for Work and Pensions:

https://www.gov.uk/government/organisations/department-for-work-pensions
Department for Business, Energy & Industrial Strategy (which in July 2016 replaced

Department for Business Innovation and Skills):

https://www.gov.uk/government/organisations/department-for-business-energy-and-
industrial-strategy
Employment Appeal Tribunal:

https://www.gov.uk/courts-tribunals/employment-appeal-tribunal
Commission for Equality and Human Rights (now known as Equality and Human
Rights Commission): http://www.equalityhumanrights.com/
Court of Justice of the European Union: http://curia.europa.eu/jcms/jcms/Jo2_6999/
European Industrial Relations Observatory (describes industrial relations in the EU):

http://www.eurofound.europa.eu/observatories
The Supreme Court: http://supremecourt.uk/
Industrial Law Society: http://www.industriallawsociety.org.uk/
International Labour Organisation: www.ilo.org
Trades Union Congress: https://www.tuc.org.uk/
University of Kent (links to other law websites): http://www.kent.ac.uk/library/
Daniel Barnett’s Employment Law Mailing List: http://www.danielbarnett.co.uk/
6. Expectations of studying this module

6.1 Attendance and Engagement
The University’s formal regulations about attendance are located in (section C2 in the
‘University Regulations’ section available here: www.mdx.ac.uk/about-us/policies. The
main points are:
You should attend and engage with all scheduled classes and prescribed activities.
Studies have shown that a good student engagement has a positive impact on
performance and therefore is an important factor in helping you to fulfill your academic
potential. In addition, for those who are on student visas, Dubai’s regulatory authorities
require attendance to be monitored.
Your lecturers will maintain attendance records during scheduled teaching sessions
using the MDX Central app. You are expected to follow any guidelines and instructions
provided for proper recording of your attendance for your learning sessions.

The MDXapp (available on iOS and Android) allows students to register their
attendance at timetabled classes with a click of a button. All you need to do is:
1. Connect to the internet using the #mdxDUBAI Wi-Fi network
2. Open your MDXApp
3. Log-in via your Campus User ID (M00xxxxx) and password
4. Ensure that you have given permission to the MDXApp to access your
smartphone’s location and camera settings
5. Find the correct module and timetabled class via the Calendar
6. When the tutor puts up the class QR code, use the scanner provided within the
MDXApp to scan the QR code.
7. You will get an automated notification onscreen within the App saying your
attendance has been recorded
Middlesex University Dubai supports students, enabling them to achieve their full
potential. We provide this support through a number of strategies, all of which provide
our students with a supportive learning environment . Online support material on
MyUniHub is provided as a guide to the content of the class but is no substitute for
interaction with your tutor and classmates. In accordance with University Regulation
C2.1 for taught programmes of study, it is the responsibility of students to attend
scheduled classes and prescribed activities for the modules on which they are
registered.
Further information on engaging with your programme will be available at your

Induction.
If you experience difficulties beyond your control, which prevents you from engaging
with your module, you should notify your tutor and CampusCentral, who may be able
to offer support and guidance.
6.2 Professional behaviour

The programme of study you are undertaking is underpinned by developing
professional behaviour and attitude. You are expected to behave in a professional,
supportive manner to your peers and teachers – and the same applies to your anyone
the University comes in contact with related to your study. The Student Code of
Conduct and Discipline Rules are available here: www.mdx.ac.ae/about-us/university-
regulations/student-conduct-and-discipline-rules.
You must come to sessions prepared and ready to contribute where appropriate.

Please remember that when you are on campus, your University ID should be carried
with you always and you must be able to identify yourself if asked to do so. You must
also comply with community health precautions, and other health and safety protocols.
Please conduct your email communication with fellow students, tutors and all relevant
staff in a formal and courteous manner.
Unacceptable Behaviours in Face-to-Face Interactions

• Aggressive or abusive behaviour, including shouting, bullying behaviour, physical
violence, rudeness, and making threats, inappropriate gestures, or indecent
comments
• Persistently interrupting or disrupting events
• Engaging in antisocial behaviour that impacts others
• Making derogatory or discriminatory remarks about others
• Using offensive language or engaging in personal verbal attacks
• Discussing sensitive matters in public settings
• Making unsupported claims that the University or individual staff have committed
criminal, corrupt, biased or perverse conduct without any evidence
• Demanding that staff set aside or make an exception to University regulations
• Demanding responses within an unreasonable timescale or insisting on seeing
specific staff members when not feasible
• Refusing to accept outcomes or solutions offered or repeatedly seeking further
explanations without new information or evidence
Actions to be taken by the University or Staff

• Highlight the unacceptable behaviour(s) and explain why and what effect it is
having
• Pause or end the discussion or interaction if the unacceptable behaviour remains
persistent
• In serious cases, ask for removal of individuals from University facilities and report
the incident to relevant Dubai authorities
• Restrict personal contact and require communication via email or written channels
and/or through third parties
• Referral to appropriate disciplinary procedures
For more information, refer to the Middlesex University Dubai Regulations:

www.mdx.ac.ae/about-us/university-regulations/
6.3 Laptops, Mobile phones and other devices

There are many advantages of using technology in higher education as long as we
are able to address the associated challenges. You are encouraged to use your

laptops, mobile phones, tablets and other communication devices as part of learning
activities and for some sessions, your tutor may even require them. You must ensure
that your devices do not disrupt your learning or that of other students or your tutors.
Unless you are using technology together with your tutor as part of a learning
activity, all mobile phones and other communication devices must be switched
to silent. Calls, texts and social media activities should be avoided during the taught
session unless agreed with the tutor before the start of the session. Disruptive use of
devices during class can lead to students being asked to leave and face disciplinary
action.
6.4 Academic Integrity and Misconduct

Academic misconduct is a breach of the values of academic integrity. It can occur
when a student cheats in an assessment or attempts to deliberately mislead an
examiner that the work presented is their own when it is not. Academic misconduct is
a corrosive force in the university’s academic life; it jeopardises the quality of education
and devalues the degrees and qualifications of the University. It includes, but is not
limited to, plagiarism, self-plagiarism, commissioning or buying work from a third party
or copying the work of others, and breach of examination rules.
Students who attempt to gain an unfair advantage over others through academic
misconduct will be penalised by sanctions according to the severity of the offence,
which can include exclusion from the University. Taking unfair advantage over other
students in assessment is considered a serious offence by the University. Action will
be taken against any student who contravenes the regulations through negligence,
foolishness or deliberate intent. Academic misconduct takes several forms, in
particular:
Plagiarism – using extensive unacknowledged quotations from, or direct copying

of, another person’s work and presenting it for assessment as if it were your own
effort. This includes the use of third party essay writing services.
Collusion – working with other students (without the tutor’s permission) and
presenting similar or identical work for assessment.
Infringement of Exam Room Rules – Communication with another candidate,

taking notes to your table in the exam room and/or referring to notes during the
examination.
Self-Plagiarism – including any material which is identical or substantially similar

to material that has already been submitted by you for another assessment in the
University or elsewhere.

Purchasing or Commissioning - attempting to purchase or purchasing work for

an assessment including, for example from the internet, or attempting to
commission, or commissioning someone else to complete an assessment. Essay
mills are now illegal entities, and use of them is facilitating an illegal activity.
Unauthorised use of Generative Artificial Intelligence (AI) - You cannot use

Generative AI tools in your assessments unless specified by the module leader.
Where the use of Generative AI is allowed you must provide as a minimum
• Written acknowledgment of the use of generative artificial intelligence, the

extent of use, and how generated materials were used.
• Descriptions of how the information was generated (including the prompts
used).
• Where generated material has not been adapted, citing and referencing
using closest source types in the relevant referencing style (e.g. “artificial
intelligence” or “non-recoverable sources”)
.
Links to the relevant University Regulations and additional support resources can be
found here:
Section F: Academic Integrity and Misconduct:
https://www.mdx.ac.uk/about-us/policies
Referencing & Plagiarism: Suspected of plagiarism?:

http://libguides.mdx.ac.uk/c.php?g=322119&p=2155601
Referencing and avoiding plagiarism:

https://unihub.mdx.ac.uk/study/writing-numeracy/awl-resources/writing
Student Success Essentials (previously called Becoming a successful student)

Course which includes Academic Integrity
Access to course: You will have to log into to MyUniHub and then MyLearning to
access the course
Full details on academic integrity and misconduct and the support available can be
found at Academic Integrity | UniHub (mdx.ac.uk) as well as on the Campus Guide
at www.mdx.ac.ae/life-at-university/campus-guide.
Our Library and Centre for Academic Success (CAS) runs workshops and clinics to
help you learn how to avoid plagiarism and how to reference correctly.To get support
and guidance on academic writing techniques that meet our expectations of Academic
Integrity, please contact a staff member in the Centre for Academic Success
([email protected]).

6.5 Extenuating circumstances

There may be difficult circumstances in your life that affect your ability to meet an
assessment deadline or affect your performance in an assessment. These are known
as Extenuating Circumstances or ‘ECs’. Extenuating Circumstances are exceptional,
seriously adverse and outside of your control.
As a student, it's your responsibility to let the University know about any extenuating
circumstances that have affected your work at the time they occur. You can request a
deferral of assessment to the next assessment period, or your circumstances can be
taken into account by the Programme Assessment Board when making its
progression/finalist decision. If you are requesting a deferral of an assessment, you
should submit an application by the deadline for completion of the assessment. If you
are unable to do this, evidence must be provided which demonstrates the reason for
not being able to meet the deadline, in addition to the evidence for the claim.
Extenuating Circumstances can only be requested for summative assessment, not for
formative assessment. For example, only for assessment that counts towards your
overall module grade.
You MUST provide evidence/supporting statement with any request for extenuating
circumstances to be considered (except in cases of self-certification*) for a deferral to
the next assessment opportunity, or for Extenuating Circumstances to be noted at the
Programme Assessment board.
*Self-certification can only be used when an extenuating circumstance has affected

you for period of 7 days or less, i.e. a short illness that occurs at the point of
assessment submission. You can apply for the following outcomes due to
your Extenuating Circumstances. Please note the outcome of any Extenuating
Circumstances application may be different from what has been requested:
Deferral
Your circumstances have impacted on your ability to sit your exam or complete
and/or submit your assessment. You are requesting an opportunity to sit the
exam or submit the work at the next assessment opportunity
ECs noted for the board only

Your circumstances may have affected your performance on other
assessments for one or more modules and, although you have sat the exam or
submitted the assessments, you wish the Programme Assessment Board to be
aware of this in case there is a borderline decision to be made regarding your
progression/finalist decision.

Deferral & ECs noted for the board

Your circumstances have impacted on your ability to sit your exam or complete
and/or submit your assessment. You are requesting an opportunity to sit the
exam or submit the work at the next assessment opportunity.
There could be progression (i.e. additional year(s) of study), financial (tuition fees and
scholarships) and student visa implications as a result of deferring your assessment.
For information about how to apply for Extenuating Circumstances please see
information available on https://unihub.mdx.ac.uk/study/assessment/extenuating-
circumstances.
6.6 Recording of Lectures

As per section C16 of Middlesex University Regulations unauthorised audio recording,
video recording or photography of lectures, or other forms of learning activities by
students, is prohibited.
Limited recording by students may be permitted under exceptional circumstances only

(for example, for an individual student as a “reasonable adjustment”, within the
meaning of the UK’s Equalities Act), upon explicit permission provided by the tutor and,
where appropriate, by everyone else involved. Permission for recording does not imply
permission for publication (e.g. on Facebook, YouTube, or other Social Media), or
distribution to others. Unauthorised recording of such activities violates the privacy of
persons involved, may infringe on copyrights and intellectual property rights of others
and can be intrusive and disruptive in a learning environment. In all cases, violation
of this regulation will be managed under the student disciplinary procedures.
In addition to a violation of University Regulations, unauthorised recordings may

expose students to other unintended consequences, as per UAE law. The United Arab
Emirates has several laws (for example, Federal Law No. 5 of 2012 on Combatting
Cybercrimes and its amendment by the Federal Law No. 12 of 2016) for the protection
of privacy and reputation and defamation. Some of the acts that could amount to a
criminal offence are:
• possessing on an electronic device a photo taken without the subject’s consent

• posting other people's pictures or videos online or on social media (including
WhatsApp) without their consent
• tagging a person without their consent
• threatening or insulting people online
• spreading information via social media, that is not verified by the official sources
• gossiping about people or maligning them.

Further guidance is available within the University Regulations and via the Quality
Office ([email protected]).
7. Assessment
7.1 Formative assessment
Formative assessment is completed during your year of study and provides the
opportunity to evaluate your progress with your learning. Formative assessments
help show you and us that you are learning and understanding the material covered
in this course and allow us to monitor your progress towards achieving the learning
outcomes for the module. Although formative assessments do not directly contribute
to the overall module mark, they do provide an important opportunity to receive
feedback on your learning.
Opportunities for formative assessment will be provided throughout the academic

year and will be communicated to you in class.
7.2 Summative assessment

Summative assessment is used to check the level of learning at the end of the course.
It is summative because it is based on accumulated learning during the course. The
point is to ensure that students have met the learning outcomes for the course and are
at the appropriate level. It is the summative assessment that determines the grade
that you are awarded for the module.
There are 2 assessment components in this module : Coursework 1 and Coursework 2

The table below specifies the associated deadlines:
Summative Weighting Deadline Feedback

assessment
Coursework 1 50% 31 January 2024, 4pm 15 working days after
Local Time submission
Coursework 2 50% April 2024, TBC June 2024
In order to pass this module, you need to pass all assessment tasks with a
minimum grade of 16 or equivalent.
Before you submit your work for final grading, please ensure that you have accurately
referenced the work. It is your responsibility to check spelling and grammar as all
written assessments will assess technical proficiency in English.

This means accurate and effective spelling, punctuation and grammar. Details of how
it will be assessed will be provided in the marking criteria for each assessment and the
University overall approach can be found within the Grade Criteria Guide in the
University Regulations https://www.mdx.ac.uk/about-us/policies (scroll to university
regulations)
Reasonable adjustments will be made for those students who have a declared
disability/specific learning condition which would affect performance in this area.
If you have submitted a formative or draft assessment, you will receive feedback but
no grade. The comments should inform you about how well you have done or tell you
about the areas for improvement. All assignments should be submitted online unless
specified in the assessment briefs.
Reassessment for this module normally takes place in the following way:
New coursework questions during the July re-sit assessment period.
If students fail the module (fail grades are 17, 18, 19, 20 with an overall mark between
0% and 39%) they are eligible for a re-sit. Students will be re-examined in the
assessed component(s), which they have failed (please note that this can be a
different assessment task). Information on what element to re-sit will be made
available on the module’s myUniHub page approximately two weeks after the module
results have been published on myUniHub. Reassessment will take place in
July/August. Normally you would be entitled to only one reassessment opportunity if
you don’t pass.
Middlesex University is committed to being fair in its approach to assessing student

learning following the UK Quality Code for Higher Education (Quality Code) (2018)
and the UK Quality Code - Advice and Guidance: Assessment (2018) and External
Expertise (2018). The Assessment Fairness guidance, policies and procedures put in
place by Middlesex University is our commitment to ensure fairness in assessment.
Further information is available at https://unihub.mdx.ac.uk/study/assessment/

assessment-regulations-guide
If you have any queries or would like to know more on how this approach has been
applied to modules you are studying please contact your Campus Programme
Coordinator.
7.3 Feedback on your assignments
You will be provided with feedback on all coursework that is helpful and informative,
consistent with aiding the learning and development process. The nature of the
feedback shall be determined at programme level but may take a variety of forms
including: written comments; individual and group tutorial feedback; peer feedback; or
other forms of effective and efficient feedback.

Feedback will normally be provided within 15 WORKING DAYS of the published

coursework component submission date.
7.4 How is your assignment mark agreed?
External Examiners (external academic experts) review what we deliver at a

programme level. The University reviews a sample of your work to quality assure the
grades and feedback you received from the person who marked your work. Our
External Examiners will sample a selection of modules from a programme, with more
focus of outcomes between modules within a programme.
The following diagram provides an overview of the marking process for your module
assessment. Further information on the role of external examiners can be found at.
https://www.mdx.ac.uk/about-us/policies/academic-quality/handbook (section 4)
• You submit your assignment

1
• The first marker grades the work and provides feedback; this could be completed
2 anonymously depending on the assessment type.
• A moderator or second marker reviews a sample of the work to quality assure the
grades and feedback, to ensure they are accurate. A final mark for the work is
3 agreed between the first marker and the moderator or second marker.
• A sample of work, from a selection of modules across the programme, is sent to
the External Examiner to check that the grading and feedback is at the right level
4 and in line with external subject benchmarks (this applies to levels 5, 6 & 7only)
• Your final grades are submitted to the Programme assessment board.

5
7.5 Anonymous Marking Assessment Policy <<delete if this does not apply to
this module>>
An anonymous marking policy has been created in response to student
feedback. Anonymous marking ensures that your identity (your name, student number
and other personal/identifiable information) is not made available to academics when
they are marking your work. This means that you can have confidence that your
assessments will be marked fairly and consistently. However, there are some forms
of assessment for which anonymity cannot be guaranteed and these are recognised
in the policy. We believe that it is important to provide you with the support and
guidance needed to help you develop and prepare for your final assessments (those

which count towards your final grades i.e. summative assessments). Therefore,
anonymous marking will not apply to learning activities and assessments that do not
contribute to your final grades (i.e. formative assessments). If you require further
information and support to understand how anonymous marking works in your
programme modules please contact the Module Leader for more information.
The Anonymous Marking Assessment Policy is available at:

https://www.mdx.ac.uk/__data/assets/pdf_file/0037/563599/anonymous-marking-
assessment-policy.pdf
We now look at each component of assessment for this module in detail. Each of the
following tables provides an overview of the requirements for each component. The
support provided for each component along with the feedback arrangements, is also
detailed below.
7.6 Reassessment (Re-sit) opportunity

A student has the right to be reassessed ONCE ONLY in any module with an overall
grade of 17, 18, 19 or 20. Reassessment will be taken at the next available opportunity
(beginning of July) unless that reassessment is deferred by the Programme
Assessment Board. Reassessment (Resit) charges are outlined within our Student
Finance Regulations: https://www.mdx.ac.ae/studentfinance/other-charges. Where a
student repeats a module, any right of reassessment from the original attempt is
cancelled. Failure without good reason to undertake reassessment at the next
available opportunity will result in failure with the award of a grade of 20 should the
required learning outcomes not be met. No second reassessment is permitted.
There could be significant progression (i.e. additional year(s) of study), financial
(tuition fees, scholarships and grants, if any) and student visa implications as a result
of reassessment of your assessment(s).

Assessment 1: Coursework 1
Assessment Coursework
Module code LAW 3407/08
Module title Employment Law
Submission date, The coursework question will be available on myunihub from November. The submission date is 12 noon
time GMT ……January 2024.
Feedback type & You can receive feedback on the coursework from 31 January 2024 onwards by emailing for an
date appointment during the module leader’s office hours (Professor David Lewis, Wednesdays 9-11 am).
Word count 2,500
Assignment type Written coursework
Assignment The written coursework will consist of three problem questions. You must answer each question. You must
structure, format label each question, 1, 2, 3. Format the coursework neatly. You must use OSCOLA style referencing and
and details footnotes and you must include a bibliography.
Assessed learning You will be tested on learning outcomes 1, 4, 5 and 6.

outcome (s)
1. Demonstrate a critical and detailed understanding of the issues relating to the formation, variation and
termination of contracts of employment and the law relating to discrimination;

4. Demonstrate intellectual and analytical skills in the application of employment and discrimination laws
and to reach reasoned judgments;
5. Critically analyse issues related to both employment and discrimination and contextualize the wider
political and social issues;
6. Express him/herself coherently, succinctly and analytically in writing.

Grade Class of Honours Degree Other Qualification
2 FIRST CLASS DISTINCTION
6 UPPER SECOND MERIT
10 LOWER SECOND
11
12 PASS
13
14
15 THIRD
16
17 FAIL – MARGINAL FAIL – MARGINAL
Compensation allowed (but not for Compensation allowed

LLB compulsory modules)
18 FAIL FAIL
Compensation allowed (but not for Compensation allowed

LLB compulsory modules)
19 FAIL FAIL
Compensation not allowed Compensation not allowed
20 FAIL- Incorporating failure to FAIL- Incorporating failure

participate in assessment to participate in
necessary to achieve all learning assessment necessary to
outcomes. Compensation not achieve all learning
allowed outcomes. Compensation
not allowed


Performance
Best Possible Unsatisfactory
Level
MU Grade Level 1-4 5-8 9-12 13-16 17-20
Description understanding understanding understanding knowledge of irrelevant or
and coverage of and coverage of and coverage of some basic incorrect
a number of a number of a number of ideas and facts, learning;
aspects of the aspects of the aspects of the an acceptable fundamental
topic, showing topic, showing topic but there is number of misunderstandin
relation and relation or little relation or elements of the gs
integration of the integration of the integration topic are
aspects into a aspects between aspects understood
coherent whole,
and drawing on
aspects of
relevant
knowledge
outside of the
topic in question
student is able to student can student student can student has not
use what they apply what they understands identify and been able to
have learned in have learned to declaratively, in describe the construct
order to novel situations that they can main concept sufficient
construct their and can discuss content meaningful
own recognise good meaningfully, learning
understanding, or poor they know about
to reflect on their applications of a reasonable
own practice, principle student amount of
and evaluate understands, in content, but don’t
their decisions that course transfer or apply
made in terms of content is used it easily
theory as a theory that
drives action
Characteristics high level of ideas coherent several, or many, the work meets responses may
abstract thinking student elements of the one part of the simply miss the
original ideas demonstrates topic are task, but misses point or may use
understanding is selectivity and understood, but other important tautology to
generalised and judgement uses are not drawn attributes little cover lack of
applied to new the appropriate into a coherent evidence of understanding
contexts ideas language of the whole often moving from the (sometimes can
drawn to discipline forming a list specific to the use elaborate
conclusions explanation or (knowledge general often tautology)
highly reflective application telling = snowing focuses on
sharply rather than a list with many facts) terminology
perceived – trees become student sees the sparse
generalised from the wood trees but not the understandings,
personal aspects are seen wood – a or some higher
experience as making sense necessary but level
shows in relation to the insufficient understanding
metacognitive whole a preliminary to full offset by some
understanding qualitative understanding misunderstandin
goes beyond change in gs
what has been learning has
given the whole occurred

is
conceptualised
at a higher level
of abstraction
than in purely
relational terms
Verbs to generate, integrate, classify, identify correctly, student misses
describe theorise, compare, enumerate, carry out simple the point;
performance. generalise, contrast, explain describe, list, procedure, pick significant
The student hypothesise, causes and combine, carry out main
can ….characteri reflect, evidence effects, analyse out algorithms, concept, lack of
stic student of significant relate, apply evidence of effort evidence of effort/involveme
involvement personal evidence of and involvement some effort in the nt
engagement with involvement or in acquisition of acquisition of
the topic and engagement with taught content terminology in the unit
effort to go ideas, genuine
beyond the given effort to make
sense of the
subject

Support and draft feedback sessions
Coursework briefing
The first lecture will go over the assessment details. You will be emailed the
assessment question which will contain detailed instructions and information.
Feedback opportunities
There are no opportunities for detailed feedback on your draft coursework answers.
If you have concerns about whether you have understood the questions correctly,
or what is expected then you can speak with any of the teaching staff.
Additional support
You can always speak to any of the teaching staff during their office hours and you
can email teaching staff. You can also reach out to the CAS Team.

5. Learning Planner
Date Week Lecture Seminar

25 1 The foundations and institutions of Introduction / Ice-Breakers
September
Employment law
2 October 2 Employment status (1) The foundations and institutions of Employment
law
9 October 3 Employment status (2) Employment status (1)
Employment law, includ-ing the importance of eu
16 October 4 Introduction to equality and discrimination law Employmentlaw status (2)
Dl Introduction to equality and discrimination laws

23 October 5 Sex Equality (1)
30 October 6 Reading Week
6 7 Sex equality (2) Sex equality (1)

November
13 8 Bs discrimination
Disability and age Sex equality (2)
November
20 9 Bsgrounds of race and
Discrimination on the Disability and age discrimination
November
religion
27 10 Individual and collective sources of terms (1) Discrimination on the grounds of race and
November
religion
4 11 Individual and collective sources of terms (2) Individual and collective sources of terms (1)
December Ms
11 12 Dl sources of terms (3)
Individual and collective Individual and collective sources of terms (2)
December
WinterDl
Break 16th December – 16th January
Coursework due 31 January 2024, 12pm GMT
15 January 13 Continuity of employment & transfers of Individual and collective sources of terms (3)
undertakings
22 January 14 Suspension, variation, and breach of contract. Continuity of employment & transfers of
Dl undertakings
29 January 15 Termination of employment under common Suspension, variation, and breach of contract
law
lawand
andstatute
statute(1)
(2)dl
5 February 16 Unfair dismissal and redundancy (1) Termination of employment under common law
and statue
12 17 dl redundancy (2)
Unfair dismissal and Unfair dismissal etc (1)
February Dl
19 18 Unfair dismissal and redundancy (3) Unfair dismissal etc (2)
February
26 19 Non-standard working and Work/life balance Unfair dismissal etc (3)
Fedbruary
6-10 March Independent Study Week

Date Week Lecture Seminar

11 March 20 Non-standard working and Work/life balance Non-standard working and Work/life balance
18 March 21 Pay issues Non-standard working and Work/life balance
25 March 22 Dl
Revision Pay Issues
1 April 23 Ms
Dl and revision
Exam technique Revision
8 April 24

6. University 20-point Scale
Percentage used for aggregation

purposes only
20-point General scale General scale
scale (full ranges) (for areas marking directly to the 20
point scale on modules with multiple
assessment components)
1 80% - 100% 79.50% - 100% 90%

2 76% - 79% 75.50% - 79.49% 77.5%
3 73% - 75% 72.50% - 75.49% 74%
4 70% - 72% 69.50% - 72.49% 71%
5 67% - 69% 66.50% - 69.49% 68%

6 65% - 66% 64.50% - 66.49% 65.5%
7 62% - 64% 61.50% - 64.49% 63%
8 60% - 61% 59.50% - 61.49% 60.5%
9 57% - 59% 56.50% - 59.49% 58%

10 55% - 56% 54.50% - 56.49% 55.5%
11 52% - 54% 51.50% - 54.49% 53%
12 50% - 51% 49.50% - 51.49% 50.5%
13 47% - 49% 46.50% - 49.49% 48%

14 45% - 46% 44.50% - 46.49% 45.5%
15 42% - 44% 41.50% - 44.49% 43%
16 40% - 41% 39.50% - 41.49% 40.5%
17 35% - 39% 34.50% - 39.49% 37%

18 30% - 34% 29.50% - 34.49% 32%
19 0% - 29% 0.01% - 29.49% 15%
Non-
20 0% 0% (non-submission of a component)
participation


WEEK 1: INTRODUCTION TO MODULE: THE FOUNDATIONS AND INSTITUTIONS OF

EMPLOYMENT LAW, INCLUDING THE RELEVANCE OF EU LAW POST-BREXIT.
1. EMPLOYMENT LAW IS DERIVED FROM MANY SOURCES.
No labour code.
Civil law - Contract, tort, statutory rights
Criminal law - Health & Safety legislation, public order
European Law post –Brexit [see below].
Also applicable is the European Convention on Human Rights
2. COMMON LAW.
Binding precedent. Forms of action: Breach of contract, suits in tort. Judicial review e.g.
UNISON v Lord Chancellor [2017] UKSC 51
3. LEGISLATION.
National: statutory rights, for example, the Employment Rights Act (ERA) 1996. Statutory
Instruments e.g. the Agency Workers 2010 S.I. 2010 No.93
European: Directives. Regulations. Recommendations
4. CIVIL AND CRIMINAL COURT STRUCTURE.
Court of Justice of the European Union (CJEU). European Court of Human Rights (ECHR).
International Labour Organisation (ILO).
5. KEY INSTITUTIONS.
Employment tribunals (ET’s), Employment Appeal Tribunal (EAT), Advisory Conciliation and
Arbitration Service (ACAS), Central Arbitration Committee (CAC), Certification officer (C.O.).
BREXIT AND THE IMPACT OF EU LAW

CJEU DECISIONS POST – 31ST DECEMBER 2020 [“IP COMPLETION DAY”]:
don’t bind courts and tribunals in the UK but can be taken into account where relevant to
any matter before them – Section 6(1) and (2) of the European Union (Withdrawal) Act 2018
[EUWA 2018].
CATEGORIES OF EU LAW DEEMED PART OF DOMESTIC LAW [“RETAINED EU LAW”]:
This includes EU –derived domestic legislation and directly effective rights under EU Treaties
and Directives.
Section 5(2) EUWA: if there is a conflict, retained EU law takes precedence over UK
legislation enacted prior to IP completion day.
Section 5(1) EUWA: UK legislation enacted after IP completion day takes precedence over
retained EU law.
Section 5(4): EU Charter of Fundamental Rights is not part of domestic law after IP
completion day.
Section 6(2): after 2020, CJEU does not have jurisdiction over UK courts and its future
decisions are not binding. However, domestic courts and tribunals may have regard to CJEU
case law “so far as it is relevant to any matter” before it.
Section 6(3) and (7): questions as to the meaning of any retained EU law must be decided
“in accordance with any retained case law [of both CJEU and domestic courts] and any
retained general principles of EU law”’. Here “retained” means by 31st December 2020.
Note that: the Supreme Court and Court of Appeal are entitled to depart from retained EU
case law.
Para 3 of Schedule 1: there is no longer a right to bring a claim based on failure to comply
with any of the general principles of EU law and no court can disapply any enactment or
other rule of law, or otherwise decide that it is unlawful because it is incompatible with any
of the general principles of EU law.
EUROPEAN UNION (FUTURE RELATIONSHIP) ACT 2020 commits the UK not to reduce its
level of employment protection in place on 31st December 2020 in a way which affects
trade and investment.

However, the RETAINED EU LAW (REVOCATION AND REFORM) BILL [22/9/23] will create
powers to make secondary legislation which will enable Parliament to amend more easily,
repeal and replace retained EU law. It will include a sunset date by which all remaining
retained EU law will either be repealed, or assimilated into UK domestic law. Any retained
EU law that remains in force after the sunset date will be assimilated in the domestic
statutebook, by the removal of the special EU law features previously attached to it. This
means that the principle of the supremacy of EU law, general principles of EU law, and
directly effective EU rights will also end on 31/12/23. [the sunset may be extended for
specified pieces of retained EU law until 2026].
https://www.gov.uk/government/news/the-retained-EU -law-revocation-and-reform-bill-
2022
On “International employment cases post –Brexit: choice of law, territorial scope,

jurisdiction and enforcement.” see Merrett ILJ (2021) p342
WHAT IS THE FUNDAMENTAL BASIS OF EMPLOYMENT LAW?
Consider this extract from the Supreme Court judgment of UNISON v Lord Chancellor [2017]
UKSC 51 [6, 8] which held that the tribunal fees were unlawful:
“Relationships between employers and employees are generally characterized by an

imbalance of economic power. Recognising the vulnerability of employees to exploitation,
discrimination, and other undesirable practices, and the social problems which can result,
Parliament has long intervened in those relationships so as to confer statutory rights on
employees, rather than leaving their rights to be determined by freedom of contract. In
more recent times, further measures have also been adopted under legislation giving effect
to EU law. In order for the rights conferred on employees to be effective, and to achieve the
social benefits which Parliament intended, they must be enforceable in practice.
…ETs are intended to provide a forum for the enforcement of employment rights by
employees and workers, including the low paid, those who have recently lost their jobs, and
those who are vulnerable to long term unemployment. They are designed to deal with
issues which are often of modest financial value, or of no financial value at all, but are
nonetheless of social importance…”

BIBLIOGRAPHY.
Background Reading:
Textbooks PLUS
Davies,A Perspectives on Labour Law
Lewis,D & Sargeant, M Employment Law – the Essentials , Chapter 1.
Further Reading:
Davies & Freedland: Labour Legislation and Public Policy Chapter 11

WEEKS 2-3: EMPLOYMENT STATUS AND RELATIONSHIPS
HOW DO WE DISTINGUISH EMPLOYEES FROM OTHER TYPES OF WORKER?
THE NEED TO DISTINGUISH:
i) The EU approach to employment relationships:
see: *B v Yodel Delivery Ltd [2020] IRLR 550 (CJEU ); Bosworth v Arcadia Ltd [2019] IRLR 668
(CJEU ) on the need for subordination in a contract of employment; Balkaya v Kiesel
Abbruch Gmbh [2015] IRLR 771 (CJEU ) on the concept of “worker” (covering company
directors and trainees).
ii) Statutory purposes:
ERA 1996, Employers Liability (Compulsory Insurance) Act 1969, also tax in arrears under
the Income Tax (Earnings and Pensions) Act 2003.
Compare: Equality Act 2010 which covers employees and workers & HASAW 1974 which
covers the self-employed.
On the definition for anti –discrimination purposes see: Alemi v Mitchell [2021] IRLR 262
(equivalent to a limb (b) worker); Halawi v World Duty Free [2015] IRLR 50 (C/A);
On the definition of a worker see: *Manning v Walker Crips Investment Ltd [2023] IRLR 729;
***Pimlico Plumbers v Smith [2018] IRLR 872(SC); Sejjpal v Rodericks Dental [2022] IRRL 752
(dentist with limited substitution right); Johnson v Transopco Ltd [2022] IRLR 581 (on limb
(b) and relevance of what happens when not working for respondent); Nursing and
Midwifery Council v Somerville [2022] IRLR 447 (C/A) (limb (b) worker); Bates van Winkelhof
v Clyde & Co [2014] IRLR 641 (SC);
See also: Section 23 ERA 1999 which gives the Secretary of State power to confer rights on
workers.
iii) Common law purposes:
- higher standard of care owed by employers

- vicarious liability. See: *BXB v Trustees of Barry Congregation [2023] IRLR 579 (SC) (“but
for” insufficient to satisfy close connection test); Chell v Tarmac Ltd [2022] IRLR 430
(C/A)(employer not liable for horseplay); Ali v Luton BC [2022] IRLR 423 (employee pursuing
own agenda); *Barclays Bank v Various Claimants [2020] IRLR 481 (SC); * Morrisons plc v
Various Claimants [2020] IRLR 472 (SC); Cox v Ministry of Justice [2016] IRLR 370 (liability for
non-employees); Mohammud v Morrisons Supermarkets Ltd [2016] IRLR 362 (SC) (close
connection test); Viasystems Ltd v Thermal Transfer Ltd [2005] IRLR 983 (C/A) (dual
responsibility).
DRAWING THE DISTINCTION:
The statutory definition of an employee - the tautology in Section 230(1(2) ERA 1996.
The case law -
a) The traditional test was CONTROL i.e. the master could stipulate what, where, how and
when work was to be performed.
Walker v Crystal Palace F.C.[1910] K.B. 87 - although some freedom of action, a player was
bound to obey captain's directions. Hence emergence of 'right to control'.
Defect: employer viewed as having superior skill & knowledge.
See: ****Uber v Aslam [2021] IRLR 407 (SC); White v Troutbeck SA [2013] IRLR 949 (C/A);
b) ORGANISATION (OR INTEGRATION) TEST:
Conceived in context of the professional worker - see Cassidy v Min.of Health [1951] 2 KB
343.
Problem: How integrated does an individual have to be?
c) MULTIPLE (OR MIXED FACTOR) TEST:
Initially formulated in Ready Mixed Concrete v Min.of Pensions [1968] 2 QB 497.

Original elements involved: agreement to provide own work in exchange for remuneration;
control is necessary but not sufficient; are the provisions of the contract 'consistent with it
being a contract of service'? (begs the question of what is a contract of service!).
Note that the PARTIES' INTENTION deemed relevant where doubt as to contractual status.
On intention of the parties generally see also:
Ferguson v Dawson Ltd [1976] 1 WLR 1213 (C/A) (a relevant factor)
Massey v Crown Life [1978] 1 WLR 676 (C/A) (relevant where ambiguity).
Young & Woods Ltd v West [1980] IRLR 201 (C/A) (relevant but not conclusive. Need to
focus on realities rather than appearances)
Market Investigations v M.S.S [1968] 3 AER 732 - woman engaged under series of contracts
but not shown to be "in business on her own account".
See direction in O'Kelly v Trust House Forte [1983] IRLR 369 (C/A) & Lee v Chung [1990] IRLR
236 (P.C.).
On the need for mutuality of obligations see: Revenue and Customs v Athholl House Ltd
[2022] IRLR 698 (C/A) (the necessary conditions); **Pimlico Plumbers v Smith [2018] IRLR
872 (SC); Varnish v British Cycling [2021] IRLR 822
On the need to perform services personally see:*Manning v Walker Crips Investment Ltd
[2023] IRLR 729 (ET erred in implying a term that use of a substitute would not be
unreasonably withheld. Substitution clause never used); Stuart Delivery Ltd v Augustine
[2022] IRLR 56 (C/A); IWUGB v Roofoods Ltd [2018] IRLR 911; Express & Echo v Tanton
[1999] IRLR 367 (C/A); Staffordshire Newspapers v Potter [2004] IRLR 752(EAT)& compare
MacFarlane v Glasgow City Council [2001] IRLR 7(EAT).
On express and implied contract formation see: Stack v Ajar –Tec [2015] IRLR 474 (C/A)
RELATED ISSUES:
1. Is it possible to operate an 'ORDINARY PERSON' test? See: Thames T.V.v Wallis [1979]
IRLR 136.

2. Can HOMEWORKERS be treated as employees? See Section 35 National Minimum Wage

Act 1998 & James v Redcats Ltd [2007] IRLR 296; Airfix Ltd v Cope [1978] IRLR 396 &
Nethermere Ltd v Taverna & Gardiner [1984] IRLR 240 (C/A).
3. On casual staff see ** Carmichael v National Power [2000] IRLR 43 (H/L); ** Stevedoring
& Haulage Services Ltd v Fuller [2001] IRLR 627 (C/A) (express terms leave no scope for
implied obligations) & Clark v Oxfordshire Health Authority [1998] IRLR 125 (C/A)
4. On 'UMBRELLA' contracts see: *Quashie v Stringfellows Ltd [2013] IRLR 99 (C/A).
5. Is the existence of a contract of employment a question of law or fact? See: Carmichael v

National Power [2000] IRLR 43 (H/L)
6. On AGENCY workers see notes below on Regulations 2010 and Smith v Carillion Ltd [2015]
IRLR 474 (C/A); Tilsom v Alstom [2011] IRLR 169 (C/A); Muschett v HM Prison Service [2010]
IRLR 451 (C/A);Redrow Ltd v Buckborough[2009] IRLR 34; Consistent Group Ltd v Kalwak
[2008] IRLR 505 (C/A); James v L.B. of Greenwich [2008] IRLR 302 (C/A); Cairns v Visteon Ltd
[2007] IRLR 175; Cable & Wireless v Muscat (2006) IRLR 354 (C/A), Dacas v Brook Street
Bureau [2004] IRLR 359 (C/A).
7. On contracts of apprenticeship note that Section 25 of the Enterprise Act 2016 introduces
a definition of a 'statutory apprenticeship' in England and makes it an offence to label any
course or training 'an apprenticeship' unless it satisfies the statutory requirements or forms
part of an individual's employment.
8. On tripartite relationship for rehabilitation see: Steelcraft Ltd v Ellis [2008]IRLR 355
9. On civil servants as employees see R v Lord Chancellor's Department ex parte Nangle

[1991] IRLR 343 .
10. On office –holders as workers but not employees see: O’Brien v Ministry of Justice
[2010] IRLR 294 (SC);
11. On controlling shareholders and directors as employees see: Department for

Employment and Learning v Morgan [2016] IRLR 350 (NIC/A); Sec.of State v NEU feld
[2009]IRLR 475 (C/A);
12. On sui generis contracts see Ironmonger v Movefield Ltd [1988] IRLR 461
13. On partners as workers or employees see: Bates van Winkelhof v Clyde and Co [2014]
IRLR 641 (SC); Morrison v Aberdein Considine [2019] IRLR 10.
14. On the clergy see: Sharp v Bishop of Worcester [2015] IRLR 663 (C/A) and President of
Methodist Conference v Preston [2013] IRLR 646 (SC).

15. On medical practitioners see: N.Essex Health Authority v David-John [2004] ICR 112
16. On volunteers see: X v Mid Sussex CAB [2011]IRLR 335
17. On foster carers see: Glasgow City Council v Johnstone [2020] IRLR 908
18. On the test for sham relationships see: ***Autoclenz Ltd v Belcher [2011]IRLR 820(SC);
On false but not sham description: see Richards v Waterfield Ltd [2023] IRLR 144
19. On zero-hours contracts see notes below on non-standard working.
20. On ascertaining the identity of the employer see: FBU v Embery [2023] IRLR 520 (two
employers?); Clark v Harney Westwood and Riegels [2021] IRLR 528
EMPLOYEE SHAREHOLDERS
The Growth and Infrastructure Act 2013 inserted Section 205A into ERA 1996 in order to
create the status of employee shareholder. Such persons receive a minimum of £2000 paid
up shares in the company but relinquish their general right to claim unfair dismissal, the
statutory rights to a redundancy payment and request flexible working, and certain
statutory rights in relation to time off for training: Sections 205A(9) –(10) ERA 1996 and
Section 205A (8) in respect of returning from parental leave. In addition, employee
shareholders are required to give 16 weeks’ notice of their intention to return to work after
maternity, adoption or paternity leave.
Section 205A(5) ERA 1996 obliges the company to provide individual employee
shareholders with a written statement of particulars which, inter alia, specifies:
(i) that the employee shareholder will not have the statutory rights described above;
(ii) the notice periods which apply in relation to a return to work after maternity, adoption
or paternity leave;
(iii) whether any voting rights are attached to the shares and whether they carry any rights
to dividends;
(iv) whether, if the company was wound up, the employee shares would confer any right to
participate in the distribution of assets;

(v) if the company has more than one class of shares, explain how any employee
shareholder rights differ from the equivalent rights that attach to the shares in the largest
class;
(vi) whether the employee shares are redeemable and, if so, at whose option;
(vii) whether there are any restrictions on the transferability of the employee shares and, if
so, what they are.
According to Section 205A ERA 1996, an employee shareholder agreement cannot be

implemented unless, before it is concluded, the individual has received advice about the
terms and effect of the proposed agreement and seven days have elapsed since the advice
was given. The company must also reimburse any reasonable costs incurred in obtaining this
advice whether or not the individual becomes an employee shareholder. See: Barrasso v NY
Retailers Ltd [2019] 1042
Finally, employees have the right not to suffer a detriment on the ground that they have
refused to accept an employee shareholder contract and a dismissal for this reason will be
automatically unfair.
AGENCY WORKERS
Reg 13A of the Conduct of Employment Agencies and Employment Businesses Regs 2003
requires TWA’s (defined in 2010 Regs below) to issue work seekers with a ‘key information
document’ before agreeing the terms on which work will be undertaken.
“Reg.13A (2): The key information document must be separate from any other documents
provided to the work-seeker or any person to be supplied to carry out the work.
(3) The key information document must include—
the title “Key Information Document” at the top of the first page;
a statement immediately beneath the title that—

the key information document specifies key information which relates to the relationship
between the employment business and the work-seeker and, where paragraph (6) applies,
any person to be supplied by the work-seeker to carry out the work;
where necessary, identifies documents where further related information may be found;
and
includes contact details of the officers appointed or arranged to act under section 8A of the
Employment Agencies Act 1973 and informs the work-seeker and, where paragraph (6)
applies, any person to be supplied by the work-seeker to carry out the work that they may
contact those officers if they are concerned about a breach by the employment business of
obligations under that Act or these Regulations(5);
except where paragraph (6) applies, details in respect of—
whether the work-seeker is or will be employed by the employment business under a

contract of service or apprenticeship, or a contract for services;
the identity of the employment business;
if not the employment business, the identity of the person who will normally pay the work-
seeker in respect of the work done;
(iv) either—
(aa) the rate of remuneration payable to the work-seeker; or
(bb) the minimum rate of remuneration the employment business reasonably expects to
achieve for the work-seeker;

(v) the intervals at which the remuneration will be paid;
(vi) the nature of any costs and deductions required by law and affecting the work-seeker’s
remuneration;
(vii) the nature and the amount (or, where the amount cannot be stated, the method of
calculation) of any other costs and deductions affecting the work-seeker’s remuneration;
(viii) the nature and the amount (or, where the amount cannot be stated, the method of
calculation) of any fees for services or goods which may be provided by the employment
business or any other person and for which the employment business or other person will or
may charge a fee to the work-seeker;
(ix) any non-monetary benefits to which the work-seeker is entitled; and
(x) details of any entitlement to annual holidays and to payment in respect of such holidays;
and
(d) except where paragraph (6) applies, a representative example statement which sets out
as amounts, reasonably estimated where necessary and item by item, for a single
prospective period based on the intervals at which remuneration will be paid—
the gross remuneration payable to the work-seeker, as referred to at paragraph (c)(iv);
any costs and deductions affecting the remuneration which are required by law, as referred
to at paragraph (c)(vi);

any other costs and deductions affecting the remuneration, as referred to at paragraph
(c)(vii);
any fees for services or goods to be provided by the employment business or any other
person and for which the employment business or any other person will or may charge a fee
to the work-seeker, as referred to at paragraph (c)(viii); and
the net remuneration payable to the work-seeker after taking account of all costs,
deductions and fees.”
Enforcement of this right will be the responsibility of the Employment Agency Standards
Inspectorate.
THE AGENCY WORKERS REGULATIONS 2010 S.I. NO.93
These are designed to implement Directive 2008/104/EC: see Auto-Jakuljetsusala case

[2015] IRLR 502 (CJEU ). They introduce the principle of equal treatment for agency workers
after they have been in “the same role” (defined in Reg.7(3)) with the same hirer for a
qualifying period of twelve continuous calendar weeks (see Regs.7-9).
Regulation 3: provides a definition of “agency worker”. See: *Kocur v Angar Ltd (No.2)
[2020] IRLR 732 (work was always time limited)
Regulation 4: defines “temporary work agency” (TWA). On the meaning of “temporary” see:
Moran v Ideal Cleaning Ltd [2014] IRLR 172
Regulation 5: gives agency workers the right to the same “basic working and employment
conditions” as they would have been entitled to if they had been engaged directly by the
hirer. [For an exception see Reg. 10 below]. See: ** Kocur v Angar Ltd (No.3) [2021] IRLR
212 (not entitled to work same number of hours). Reg. 5(3) deals with deemed compliance
and the expressions “ordinarily included” and “comparable employee” are used, the latter
being defined in Reg.5(4). The effect is that individually negotiated terms are not covered.

Regulation 6: makes it clear that it is terms and conditions relating to pay (defined in
Reg.6(2) with exclusions in Reg.6(3)), the duration of working time, night work, rest periods,
rest breaks and annual leave that are relevant.
Regulations 7-8: deal with the completion of the qualifying period. According to Reg.7(2),the
individual must work “in the same role with the same hirer”. “The same role” is explained in
Reg.7(3), which uses a test of “substantively different”.
Reg.7 (5)-(8)deal with the effect of breaks during or between assignments.
Reg 9 provides that the twelve weeks will be treated as satisfied if a worker is prevented
from doing so by the structuring of assignments.
Regulation 12(1)-(2): provide a right to be treated no less favourably than a comparable

worker in relation to “collective facilities and amenities” (see Reg.12(3))provided by the
hirer unless less favourable treatment can be justified on objective grounds. This applies
from the commencement of work.
Regulation 13: provides agency workers with the right to be informed by the hirer of any
vacant relevant posts. This applies from the commencement of work but may be achieved
by “a general announcement in a suitable place in the hirer’s establishment” (Reg.13(4).
See Kocur v Angar Ltd [2022] IRLR 437 (C/A) .
Reg.14: TWA and hirer can both be liable to the extent that they are responsible for
breaching Reg.5. The hirer is liable for breaches of Reg.12+13.
Reg.15: restricts contracting out.
Reg.16: gives agency workers the right to receive information from the TWA or hirer as
applicable about the rights and duties in Regs 5, 12 + 13. It refers to written requests for a
written statement to be supplied within 28 days.
Reg. 17: provides the right not to be unfairly dismissed or subjected to a detriment for a
reason relating to the Regulations.
Reg. 18: deals with remedies for breaching Reg. 17, including a minimum award of two
weeks’ pay and an additional award of up to £5000 where Reg. 9 applies (i.e. the structuring
of assignments to prevent agency workers being entitled to the rights contained in Reg.5).
There is no cap on compensation but no award can be made for injury to feelings.
Reg. 20 deals with the liability of employers and principals.

Finally, Section 188(4) TULRCA 1992 (on disclosure for the purposes of consultation over
collective dismissals) is extended to include information about agency workers. See also
Section 70B TULRCA 1992 on training.
BIBLIOGRAPHY:
On personal work relations in EU rope see: Kountouris (2018) ILJ 192 “The concept of
‘worker’ in EU ropean Labour Law : Fragmentation, Autonomy and Scope”.
For recent BEIS guidance see “Employment status and employment rights etc”
https://www.gov.uk/government/publications/employment-status-and-employment-
rights/employment-status-and-employment-rights-guidance-for-hr-professionals-legal-
professionals-and-other-groups [July 2022]
SOME QUESTIONS FOR CONSIDERATION
1. Is it true to say that an ET in one part of the country can find that a group of workers in a
particular company are employees, whilst in another part of the country the same kind of
workers in the same company on the same facts can be found not to be employees by a
different tribunal?
2. How willing are ET’s to identify sham relationships? see: Protectacoat Ltd v Szilagyi
[2009]IRLR 365 (C/A) and Consistent Group Ltd v Kalwak [2008] IRLR 505 (C/A)
3. How important is the declared intention of the parties today? Should the declared
intention of the parties be a factor in determining employment status?
How effective will the Agency Workers Regs 2010 be in providing equal treatment for this
type of worker?

Should statutory rights be based on contracts of employment? See Section 23 Employment

Relations Act 1999.
How relevant is the EU approach to employment relationships?
On application of Part-Time Workers Regs 2000 and Fixed- term Employees Regs 2002 see
below

WEEK 4 : INTRODUCTION TO EQUALITY AND DISCRIMINATION LAW
There follows an outline of discrimination law under the Equality Act 2010, which provides
you with an introduction to this topic. PLEASE NOTE THAT THIS OUTLINE DOES NOT DIVIDE
UP THE MATERIAL IN THE ORDER OF THE LECTURES THAT FOLLOW. LEADING CASES WILL BE
FOUND IN THE LECTURE POWERPOINTS RELATING TO THE INDIVIDUAL TOPICS.
Further reading is listed at the end of this entire section.
Very useful online sources for understanding the Equality Act are:
The Explanatory Notes to the Act :
http://www.legislation.gov.uk/ukpga/2010/15/notes/contents
The Employment Code of Practice, produced by the Equality and Human Rights
Commission(EHRC)
http://www.equalityhumanrights.com/uploaded_files/EqualityAct/employercode.pdf
The sources for discrimination law in the U.K are the Equality Act 2010 ( 'EA 2010') as well as
EU law in the form of treaty articles and secondary legislation which applied prior to Brexit.
[On Brexit and discrimination law, read the short article by Dr Catriona Cannon ‘Brexit and
discrimination law’ in Employment Law Bulletin, 2019, 150, 2-4 available on Westlaw].
Key directives in this context include:
Council Directive 2000/78/EC, establishing a general framework for equal treatment in

employment and occupation - ‘the framework directive’
Council Directive 2000/43/EC, implementing the principle of equal treatment between

persons irrespective of racial or ethnic origin – ‘the racial equality directive’.
Directive 2006/54/EC of the EU ropean Parliament and of the Council on the

implementation of the principle of equal opportunities and equal treatment of men and
women in matters of employment and occupation (recast)
Prior to October 2010 the U.K law on discrimination was to be found in a number of
different statutes and sets of regulations dealing with different areas of discrimination:
- Race discrimination was dealt with by the Race Relations Act 1976.

- Discrimination between men and women was covered by the Sex Discrimination Act 1975
and the Equal Pay Act 1970.
- Disability discrimination law was contained in the Disability Discrimination Act 1995.
- Sexual orientation, religion or belief and age discrimination each had a separate set of
regulations
EA 2010 deals not only with discrimination in employment but also in other areas of life
such as education and the provision of services or premises.
Note that under section 83(2) the definition of “employment” includes not only
employment under a contract of employment but also a contract personally to do work.
This means that some self-employed people are able to bring discrimination claims as well
as employees.
On the s.83(2) definition see Halawi v WDFG UK Ltd t/a World Duty Free [2015] IRLR 50
(C/A)
** On illegality, see Hounga v Allen [2014] IRLR 811
On the territorial jurisdiction of UK courts in relation to discrimination law claims see Hottak
& Anor, R (on the application of) v The Secretary of State for Foreign and Commonwealth
Affairs & Anor [2015] EWHC 1953 (Admin)
([2015] EWHC 1953 (Admin), [2015] WLR(D) 297
THE DISCRIMINATION WHICH IS MADE UNLAWFUL UNDER EA 2010 IS SET OUT BY LISTING
THE 'PROTECTED CHARACTERISTICS' AND 'PROHIBITED CONDUCT'.
The PROTECTED CHARACTERISTICS are, in total, nine personal attributes in respect of which
EA 2010 gives protection against discrimination. It is unlawful, unless an exception applies,
to discriminate against a person because of such a characteristic. They are as follows:
Age
Disability
Gender reassignment
Marriage and civil partnership

Pregnancy and maternity
Race
Religion or belief
Sex
Sexual orientation
PROHIBITED CONDUCT means the different acts of discrimination which are unlawful under
the Act, unless one of the exceptions applies. These are:
direct discrimination
combined discrimination
discrimination arising from disability
gender reassignment discrimination
pregnancy and maternity discrimination
indirect discrimination
failure to comply with a duty to make reasonable adjustments.
There are two other types of ‘prohibited conduct’
Harassment

Victimisation
THE PROTECTED CHARACTERISTICS
[Section numbers refer to EA 2010]
1) AGE (SECTION 5) [SCHEDULE 9 PARAS 7-16 DEALS WITH EXCEPTIONS]
This protected characteristic is defined as belonging to a particular age group, and 'age
group' is defined to cover people either of the same particular age or of a range of ages
within that group. [On range of ages see Games v University of Kent [2015] IRLR 202]
Note that age is the only protected characteristic for which direct, as well as indirect,
discrimination can be justified (direct and indirect discrimination are explained below).
On the justification test for direct discrimination see: VT v Ministero del’ Interno [2023] IRLR
158 (CJEU) (maximum age for applications); Imperial NHS Trust v Matar [2023] IRLR 264
(early retirement); Ligere Handlingsnavuet v HK/Danmark [2022] IRLR 791 (CJEU) (conditions
for access to any occupational activity); CO v COMMUNE DI GESTURI [2020] IRLR 987
(CJEU ): (legitimacy of aim of ensuring rejuvenation of current personnel could not
reasonably be called into question); PITCHER & EWART v UNIVERSITY OXFORD [2021] IRLR
946; RMT v LLOYD [2019] IRLR 897 (evidence as to the effectiveness of a measure is
relevant for testing whether the aim is true and legitimate in the circumstances); LORD
CHANCELLOR v MCCLOUD [2019] IRLR 477 (C/A); Seldon v Clarkson Wright & Jakes and
Secretary of State for Business, Innovation and Skills [2012] IRLR 590 (SC)
On indirect age discrimination see: HESKETT v SECRETARY OF STATE FOR JUSTICE [2021]
IRLR 132 (C/A); Homer v Chief Constable of West Yorkshire Police [2012] IRLR 601
On benefits based on length of service, see: Rolls Royce v Unite the Union [2009] IRLR 576
On Equal Treatment Directive and ‘conditions for access’ to ‘any occupational activity’ see:
Ligebehandlingsnaevnet v HK/Danmark [2022] IRLR 791 (CJEU )- application to election of a
union convenor .
in 2021/22 the average age discrimination compensation award was £18,623

2) DISABILITY (SECTION 6 AND SCHEDULE 1)
This is defined in section 6 as a physical or mental impairment which has a substantial and
long-term adverse effect on a person’s ability to carry out normal day-to-day activities. The
definition covers a large number and variety of conditions, both physical and mental, if they
have the stated substantial and long-term effect.
in 2021/22 the average disability discrimination compensation award was £26,172?
Some recent cases
On the definition of a disability see:
Primaz v Carlroom Restaurant Ltd [2022] IRLR 194 (cancer)
Sullivan v Bury Street Capital Ltd [2022] IRLR 159 (C/A)
Elliott v Dorset CC [2021] IRLR 880:
On long term see: definition in Schedule 1 para 2 and ALL ANSWERS v W [2021] IRLR 612
(C/A)
On normal day –to –day activities see: Guidance on matters to be taken into account in
determining questions relating to the definition of disability paragraph A5, pp 8-9 and
Banaszczyk v Booker Ltd [2016] IRLR 273]
** On the status of the United Nations Convention on the Rights of Persons with
Disabilities,see: HK Danmark, acting on behalf of Ring v Dansk almennyttigt Boligselskab
[2013] IRLR 571
On direct discrimination see: Boesi v Asda Stores Ltd [2023] IRLR 625; VL v SZPITAL
KLINICZAY [2021] IRLR 330 (CJEU ) (comparison can be with other disabled workers) and
CHIEF CONSTABLE OF NORFOLK v COFFEY [2019] IRLR 805 (C/A) (section 13 covers
perception discrimination).

On indirect discrimination see: Davies v EE Ltd [2023] IRLR 258 (on whether PCP requiring
full-time working).
On DISCRIMINATION BY ASSOCIATION see EBR Attridge Law LLP v Coleman (No. 2) [2010]
IRLR 10
On obesity capable of being a disability, see Karsten Kaltoft v Billund Kommune Case [2015]
IRLR 146 ECJ
On long-term sickness absence and disability, see O’Brien v Bolton St Catherine’s Academy
[2017] IRLR 547 CA
OTHER CONDITIONS TREATED AS A DISABILITY
There are a number of situations, where the condition may be treated as a disability even
though it does not fulfil the requirements of the main definition in section 6.
In deciding whether the impairment has a substantial effect one does not take into account
any measures which are being taken to treat or correct it, such as medical treatment.
Schedule I para 5(1).
If the impairment has ceased to have a substantial adverse effect but the effect is likely to
recur, it is still treated as continuing to have that effect. See Schedule 1 para 2(2) and SCA
Packaging v Boyle [2009] IRLR 746
Progressive conditions: Three specific conditions – cancer, HIV and multiple sclerosis – are
treated as a disability without the need for there to be any adverse effect on the person’s
life. [see Schedule 1 para 6, Lofty v First Café [2018] IRLR 512 on cancer stages and Bennett v
Mitac Ltd [2021] IRLR 25]. Other progressive conditions are treated as disabilities from the
time the condition begins to have some adverse effect, even though it is not substantial, if
the prognosis is that the effect is likely to become substantial.
A person who has had a disability in the past is protected even if he or she has made a full
recovery: Section 6(4)
A severe disfigurement is treated as a disability. Schedule 1 para 3.

The Equality Act 2010 (Disability) Regulations 2010 SI 2010/2128 state that certain
conditions do not constitute a disability. These conditions include: an addiction, including a
dependency on alcohol, nicotine or any other substance;
certain conditions including a tendency to set fires, steal, abuse other persons,
exhibitionism and voyeurism; hay fever.
3) GENDER REASSIGNMENT (SECTION 7)
A person who has proposed, started or completed a process to change his or her sex has the
protected characteristic of gender reassignment under the Act. This would cover both a
male making a transition to female and female making a transition to male.
Note that there is no longer a requirement to be under medical supervision see: Equality Act
2010 Explanatory Notes (revised edition available on the legislation.gov.uk website).
CHIEF CONSTABLE OF YORKSHIRE V A [2004] ICR 806 - entitled to be treated in all respects
as a person of the acquired gender:
4) MARRIAGE AND CIVIL PARTNERSHIP (SECTION 8)
A person who is married or is in a A civil partnership has the protected characteristic

of ‘marriage and civil partnership’. The single characteristic covers both these relationships,
so, for example, a married man and a woman in a civil partnership both have the protected
characteristic of ‘marriage and civil partnership’: Civil Partnerships Act 2004 and the
Marriage (Same Sex Couples) Act 2013. [Note that no protection for single people].
On unfavourable treatment because married see: Ellis v Bacon [2023] IRLR 262
On a failed marriage discrimination claim see: GOULD v ST JOHNS DOWNSHIRE HILL[2020]

IRLR 863

5) PREGNANCY AND MATERNITY (SECTION 18)
Under section 18 it is discrimination to treat a pregnant woman unfavourably because of

her pregnancy, or pregnancy-related illness or because of exercising or wishing to exercise
her maternity leave rights, during what is called the protected period. – see below under
prohibited conduct.
See: COMMISSIONER OF THE CITY OF LONDON v GELDART [2021] IRLR 749 (C/A) – non-
payment of London allowance.
6) RACE (SECTION 9)
Race is defined to include colour, nationality and ethnic or national origins. In a famous case
decided under the Race Relations Act 1976, Mandla v Lee [1983] IRLR 209, it was held that
Sikhs were a racial group by reference to ‘ethnic origin’. ‘Ethnic’ was a wider term and
included groups who might not be a separate ‘race’ in the 'biological' sense.
Dawkins v Department of the Environment [1993] IRLR 294 (on Rastafarians see religion
below)
R v Governing Body of JFS [2010] IRLR 136
On Roma origin see CHEZ BULGRARIA CASE [2015] IRLR 746 (CJEU ).
On socio-economic circumstances and nationality not being indissociable: see MRUKE v

KHAN [2018] IRLR 526
On discrimination against vulnerable migrant workers see Onu v Akwiwu (heard together
with Taiwo v Olaigbe) [2014] IRLR 448 (SC)
On indirect discrimination on grounds of race and age in the context of needing to pass an
exam to be promoted see: Essop and others v Home Office (UK Border Agency) [2017] UKSC
27
CASTE DISCRIMINATION
The Enterprise and Regulatory Reform Act 2013 opened up the possibility of caste being
added to the definition of race under the Equality Act 2010. However, in 2018 the
Government decided to allow case law to ‘ensure that necessary protection is provided’. In
Chandok v Tirkey [2015] IRLR 195 the EAT held that caste was arguably an aspect of ethnic
origin.

See Explanatory Notes paras 49-50
On discrimination by association (see also below, under direct discrimination, and above
under disability) see: Weathersﬁeld v Sargent [1999] IRLR 94. Contrast Redfearn v SERCO
Ltd [2006] IRLR 623 but see now and ** Redfearn v United Kingdom [2013] IRLR 51 (ECHR)
On indirect discrimination by association see **Chez Razpredelenie Bulgaria AD v Komisia za

Zashtita ot Diskriminatsia (Case C-83/14) EU :C:2015:480; [2015] WLR (D) 314 (CJEU )
7) RELIGION OR BELIEF (SECTION 10)
Religion is defined as meaning any religion, and belief is defined as any religious or
philosophical belief. Religion also includes lack of religion and belief includes lack of belief.
See Explanatory Notes paras 51+ 53 and:
** Higgs v Farmor’s School (No.3) [2023] IRLR 708: if actions have sufficiently close and
direct nexus to an underlying religion or belief, such that they are properly to be understood
as a manifestation of it, any limitation would need to be prescribed by law and necessary in
on one of the ways identified in Art.9(2) ECHR. Principles to be adopted when assessing
proportionality set out in para 94 (1) –((5).
LR v SCRL [2023] IRLR 70 (CJEU)(religion or belief in Art.1 of Framework Directive constitute

a single ground of discrimination)
IX v WABE eV [2021] IRLR 832 (CJEU ).
McClintock v Department of Constitutional Affairs [2008] IRLR 29
Eweida v British Airways [2009] IRLR 78, but see now ** Eweida v United Kingdom [2013]
IRLR 231 – refusal of permission to wear a cross visibly was breach of Article 9 ECHR
* Grainger v Nicholson [2010) IRLR 4 - climate change belief
Page v NHS Trust Development Authority [2021] IRLR 391 (C/A) – reason for treatment was
the way the employee manifested beliefs about homosexuality.

Mackereth v Department of Work and Pensions [2022] IRLR 721 and Forstater v CDG EU
rope Ltd [2021] IRLR 706 - beliefs about transgender people.
Ladele v London Borough of Islington [2010] IRLR 211, and see [2013] IRLR 231 (ECHR)
McFarlane v Relate Avon Ltd [2010] IRLR 872 and see [2013] IRLR 231 (ECHR)
On a nurse’s refusal to assist in abortion procedures see: Grimmark v Sweden [2020] IRLR
554 (CJEU )
Assertion of religious belief must be made in good faith: see GAREDDU V LONDON
UNDERGROUND LTD [2017] IRLR 404 –
For some discussion of the purpose of the legislation see Jivraj v Hashwani [2010] IRLR 797
On dismissal on basis of religious dress see: Bougnaoui and another v Micropole SA [2017]
IRLR 447 ECJ. But, on a ban applying occasionally and whether that amounts to indirect
discrimination see: Achbita and another v G4S Secure Solutions [2017] IRLR 466 ECJ.
Gan Menachem Hendon Ltd v De Groen [2019] IRLR 410 The dismissal of a teacher from an
ultra-orthodox Jewish nursery because she refused to lie about cohabiting with her
boyfriend was not discrimination on the grounds of religion or belief because the motive of
the discriminator was irrelevant, Lee v Ashers Baking Co Ltd [2018] IRLR 1116 considered.
The EAT confirmed that the motive for the discrimination is immaterial and must be based
on the victim's beliefs (not the discriminator's, providing they would act in the same way
regardless of who is affected). It held that the unfavourable treatment was on the grounds
of the nursery’s beliefs, rather than the teacher’s, and so it was not discrimination on the
grounds of religion or belief. However, the nursery's criticisms of her at a meeting and in her
dismissal letter amounted to less favourable treatment on the grounds of her sex.
[On political opinions or affiliation see Section 108(4) ERA 1996 and Scottish Federation of
Housing Associations v Jones [2022] IRLR 822]
8) SEX (SECTION 11)
On sex not limited to biological or birth sex see: Petition for Women Scotland Ltd [2023]
IRLR 212 (sex and gender reassignment not to be conflated
On toilet facilities: Earl Shilton Council v Miller [2023] IRLR 352
On breastfeeding see : RAMOS v SERVICIO GALEGO [2018] IRLR 159 (CJEU )

On segregation: see CHIEF INSPECTOR OF EDUCATION v AL-HIJRAH SCHOOL [2018] IRLR 334
(C/A)
On parental leave see: PRICE v POWYS COUNTY COUNCIL [2021] IRLR 741
On PCP requiring flexible working see: Glover v Lacoste Ltd [2023] IRLR 457
Is it direct sex discrimination for an employer to have different rules of dress and
appearance for their male and female employees? See
Schmidt v Austicks Bookshops [1997] IRLR 360
Smith v Safeway [1996] IRLR 456 CA
Department of Work and Pensions v Thompson [2004] IRLR 348 EAT
9) SEXUAL ORIENTATION (SECTION 12)
The sexual orientation characteristic is defined as orientation towards: persons of the same
sex; persons of the opposite sex, or persons of either sex. It thus excludes asexual and non -
sexual people.
JK v TPSA [2023] IRLR 306 (CJEU)(refusal to conclude a contract with a self-employed person
likely within Art. 3(1) of Directive 2000/78)
*R v Office for Standards in Education etc [2021] IRLR 993
English v Thomas Sanderson Blinds Ltd [2009] IRLR 206
HM Land Registry v Grant [2010] IRLR 583
On the conflict between the protection of religious belief and discrimination on the grounds
of sexual orientation see Lee v Ashers Baking Ltd [2018] IRLR 1116
PROHIBITED CONDUCT
This refers to the different types of discrimination.

1) DIRECT DISCRIMINATION (SECTION 13)
Direct discrimination occurs if a person (A) treats another (B) less favourably than A treats or
would treat someone else because of a protected characteristic.
The treatment must be because of the protected characteristic: see Matovu v 2 Temple
Gardens [2023] IRLR 533; Lee v Ashers Baking Ltd [2018] IRLR 1116
In regard to eight out of the nine protected characteristics (the exception is marriage and
civil partnership) there is direct discrimination even if it is not B's own characteristic but the
characteristic of someone else with whom B is associated. This is known as discrimination by
association [see above].
EBR Attridge Law v Coleman (no 2) [2010] IRLR 10
Weathersﬁeld v Sargent [1999] IRLR 94 contrast Redfearn v SERCO Ltd [2006] IRLR 623
but see ** Redfearn v United Kingdom [2013] IRLR 51 (ECHR)
It is direct discrimination even if the treatment takes place on the basis of an employer's
mistaken perceptions. See: Chief Constable of Norfolk v Coffey [2019] IRLR 805 –
stereotypical assumption about hearing loss
English v Thomas Sanderson [2009] IRLR 206
Except in regard to age there is no justification defence for direct discrimination. The motive
for direct discrimination is irrelevant - a good motive is no defence.
CLFIS (UK) Ltd v Reynolds [2015] IRLR 562 (CA)
Moyhing v Barts and London NHS Trust [2006] IRLR 860
Amnesty International v Ahmed [2009] IRLR 884
However in regard to age, under section 13(2), the employer does have a defence of
justification for direct discrimination. The definition of justification is 'a proportionate
means of achieving a legitimate aim'.
Seldon v Clarkson Wright & Jakes (2012) IRLR 590 (SC) and Seldon v Clarkson Wright & Jakes
(No. 2) [2014] IRLR 748 (EAT)
On special treatment afforded to a woman in connection with pregnancy or childbirth, see

s.13 (6) (b) and Eversheds Legal Services Ltd v De Belin [2011] IRLR 448
2) COMBINED DISCRIMINATION (SECTION 14)

Section 14 is a new type of claim introduced by EA 2010. However, the Government

announced in March 2011 that it did not intend to bring this section into force.
The section enables a claim to be made for direct discrimination which is based on a
combination of two of the following protected characteristics:
Age
Disability
Gender reassignment
Race
Religion or belief
Sex
Sexual orientation
3) DISCRIMINATION ARISING FROM DISABILITY (SECTION 15)
There will be many situations where a person’s disability means that they cannot perform
satisfactorily in a particular job and the law recognises this. Section 15 provides for
'discrimination arising from disability' which is defined as where A treats B unfavourably for
a reason arising in consequence of B's disability. In these cases, the employer will be able to
justify the discrimination if it is a proportionate means of achieving a legitimate aim. See
Code of Practice p72 para 5.1
Note the word “unfavourably” is used rather than “less favourably” so there is no need for
comparisons to be made. See: Cowie v Scottish Fire and Rescue Service [2022] IRLR 913
(paid special leave policy not unfavourable).
On the four stage approach to the balancing exercise see: Dept for Work and Pensions v
Boyers [2022] IRLR 741
On relationship to other statutory provisions see: Knightley v Chelsea and Westminster NHS
Trust [2022] IRLR 567
On the question of the employer's knowledge see Gallop v Newport City Council [2014] IRLR
211 (CA) and Stott v Ralli Ltd [2022] IRLR 148

Disability does not have to be the primary cause of the unfavourable treatment see: Hall v
Chief Constable of W.Yorks [2015] IRLR 893
On the proportionality test under s.15 and the test under Article 8 of the ECHR see:
Akerman-Livingstone v Aster Communities Ltd [2015] 2 WLR 721 (SC) and application of a
four stage approach in Department for Work and Pensions v Boyers [2022] IRLR 741- ET
could look at beyond contractual place of work and duties and consider alternative work.
In CITY OF YORK V GROSSET [2018] IRLR 746 C/A found the dismissal was disproportionate
and discriminatory.
See also ROBINSON V DEPARTMENT OF WORK AND PENSIONS [2020] IRLR 884 (C/A);
BIRTENSHAW v OLDFIELD [2019] IRLR 946
On direct discrimination after a health test is failed by someone with multiple disabilities
who wishes to work overseas see Owen v AMEC Foster Wheeler Energy Ltd and anor [2019]
EWCA Civ 822
On Section 15(2) see: A LTD v Z [2019] IRLR 952 (question is what the employer might
reasonably be expected to have known and not what more might have been required of the
employer).
4) GENDER REASSIGNMENT DISCRIMINATION: CASES OF ABSENCE FROM WORK (SECTION

16)
It is discrimination to treat transsexual people less favourably for being absent from work
because they propose to undergo, are undergoing or have undergone gender reassignment
than they would be treated if they were absent because they were ill or injured. See
Explanatory Notes para 71.
5) PREGNANCY AND MATERNITY DISCRIMINATION – WORK CASES (SECTION 18)
Under Section 18 it is discrimination to treat a pregnant woman unfavourably because of

her pregnancy, or pregnancy-related illness or because of exercising or wishing to exercise
her maternity leave rights, during what is called the protected period. For a woman entitled
to statutory maternity leave, the protected period runs from the beginning of the pregnancy
until the end of the leave. If the woman is not entitled to maternity leave (e.g she is not an
employee) the protected period ends two weeks after the baby is born.

On who took the decision see: Alcedo Orange Ltd v Ferridge – Gunn [2023] IRLR 606
Good motive is no defence: Chief Constable of Devon v Town [2021] IRLR 235
If a woman is outside the protected period she will have to claim sex discrimination and
show less favourable treatment.
Some cases
CHIEF CONSTABLE OF DEVON v TOWN [2021] IRLR 235- moved to another team
Mayr v Bäckerei Case C-506/06 [2008] IRLR 387
On in vitro procedures see: JURIC v CROATIA [2021]IRLR 511 (ECrt HR)
On surrogate mothers, see two decisions of the Court of Justice of the EU - CD v ST [2014]
IRLR 551, and Z v A Government department [2014] IRLR 563. See also the Children and
Families Act 2014 under which Regulations may be made giving paid leave to parents whose
babies are born through surrogacy arrangements.
6) INDIRECT DISCRIMINATION (SECTION 19)
The essence of the definition of indirect discrimination in section 19 is that
there is a rule ('provision, criterion or practice' - PCP) which the employer applies to
everyone but
which has more of an impact on some groups than on others
which causes a disadvantage to the claimant personally, as well as to his or her group
On PCP requiring flexible working see: Glover v Lacoste Ltd [2023] IRLR 457
On judicial notice of the ‘childcare disparity’ see: DOBSON v N.CUMBRIA NHS TRUST [2021]
IRLR 729
On height requirement: see YPOURGOS ESOTERIKON v KALLIRI [2018] IRLR 77 (CJEU ).
See: ISHOLA v TF LONDON [2020] IRLR 368 (C/A): not all one-off acts and decisions
necessarily qualify as a PCP. To qualify they must be capable of being applied in future to
similarly situated employees. “Practice” connotes the way things generally are done.

On the need for group disadvantage: Eweida v British Airways [2010] IRLR 322 but see now
*** Eweida v United Kingdom [2013] IRLR 231(ECHR) and Mba v Mayor and Burgesses of
the London Borough of Merton [2014] IRLR 145 (CA)
On the correct 'pool' for comparison, see EHRC Code of Practice p64 para 4.18; IFA v Davda
[2023] IRLR 615; Allan v Primark Ltd [2022] IRLR 644 (material difference in cirumstances)
and Naeem v Secretary of State for Justice [2014] IRLR 520
On what the claimant has to prove in an indirect discrimination claim see: Home Office (UK
Border Agency) v Essop ([2015] EWCA Civ 609, [2015] WLR(D) 269 – do not need to prove
why PCP put group at a disadvantage.
If the above three elements exist then the claimant will win an indirect discrimination claim
unless the employer can justify the discrimination i.e. can show it to be a proportionate
means of achieving a legitimate aim.
Azmi v Kirklees Metropolitan BC [2007] IRLR 484
Ladele v London Borough of Islington [2010] IRLR 211
Cost alone is not sufficient justification, the approach is ‘costs plus’ – there must be some
other element of justification: Woodcock v Cumbria PCT [2012] IRLR 491;
** On indirect discrimination by association see now Chez Razpredelenie Bulgaria AD v

Komisia za Zashtita ot Diskriminatsia (Case C-83/14) EU :C:2015:480; [2015] WLR (D) 314
(CJEU )
7) FAILURE TO COMPLY WITH A DUTY TO MAKE REASONABLE ADJUSTMENTS (SECTION

20)
An employer has a duty to make reasonable adjustments which would make a
job suitable for a person with a disability. The duty comprises three requirements,
relating to different aspects of the employment, if any of these place the disabled
person at a substantial disadvantage in comparison with non-disabled people.
The three requirements relate to:
a provision, criterion or practice applied by the employer. See EHRC Code p80 para 6.10

physical features of a building. Explanatory notes para 866
providing auxiliary aids or services. Explanatory notes para 866
See:
Pipe v Coventry Uni HEC [2023] IRLR 745: no disadvantage in relation to reasonable
adjustments and indirect disability discrimination – result would have been the same.
Hilaire v Luton BC [2023] IRLR 122 (no substantial disadvantage).
XXXX v HR Rail SA [2022] IRLR 456 (CJEU )
HILL V LLOYDS BANK [2020] IRLR 652:
Archibald v Fife Council [2004] IRLR 651 CA
Grifffiths v Sec of State for Work and Pensions [2016] IRLR 216 – attendance management
policy.
On whether there is a duty to make reasonable adjustments in a case of disability

discrimination by association see Hainsworth v Ministry of Defence [2014] IRLR 728
Liability under Section 21: see Schedule 8 para 20 on knowledge required. On reasonable
steps see EHRC Code p85 para 6.28
OTHER PROHIBITED CONDUCT – HARASSMENT AND VICTIMIZATION (SECTIONS 26 AND 27)
1) HARASSMENT (SECTION 26)
There are three types. The first type (section 26(1)) involves unwanted conduct which is
related to a relevant characteristic and has the purpose or effect of violating the
complainant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive
environment for the complainant. This type applies to all the protected characteristics apart
from
pregnancy and maternity, and

marriage and civil partnership.
See EHRC Code p93 para 7.5 on harassment relating to sex and sexual orientation.
* Greasley -Adams v Royal Mail Ltd [2023] IRLR 723: perception of person claiming
harassment is a mandatory component in determining whether harassment has occurred. If
no awareness, there can be no perception.
C v Romania [2023] IRLR 87 (ECrt HR): (states have duty to protect physical and
psychological integrity of an individual from other persons).
Ali v Heathrow Express Ltd [2022] IRLR 558
R v POLICE CONDUCT TRIBUNAL [2020] IRLR 964- intention irrelevant
The second type (section 26(2)) is sexual harassment which is unwanted conduct of a sexual
nature where this has the same purpose or effect as the first type of harassment. See
Explanatory Notes para 99
The third type of harassment (section 26(3)) is treating someone less favourably because
they have either submitted to or rejected sexual harassment, or harassment related to sex
or gender reassignment.
On dismissal as harassment see: BASE CHILDRENSWEAR LTD v OTSHUDI [2020] IRLR 118
(C/A); DRISCOLL v V & P GLOBAL LTD [2021] IRLR 891 - constructive dismissal
In deciding whether harassment of any of the three types under s.26 has taken place it is
necessary for the tribunal to take into account not only the perceptions of the claimant and
other circumstances but also whether it was reasonable for the conduct to have that effect
(section 26(4)). See Pemberton v Inwood [2018] IRLR 542 and note also the impact of the
Protection from Harassment Act 1997.
On “conduct related to” see BAKKALI v GREATER MANCHESTER BUSES [2018] IRLR 906 –
focus on context in which offending words spoken.

2) VICTIMISATION (SECTION 27)
Victimisation is defined as where A subjects B to a ‘detriment’ because B has done one of

the ‘protected acts’, or A believes that B has done or may do one of these acts. ‘Protected
acts’ are defined as the following:
B bringing discrimination proceedings himself/or herself
giving evidence or information in such proceedings
doing any other thing for the purposes of or in connection with EA 2010
making an allegation that A (or anyone else) has done something in breach of EA 2010
On post -termination victimization see Section 108 and Rowstock Ltd v Jessemey [2014] IRLR
368 -protected act must be an important cause of victimization or a significant influence on
it.
Perception of the employee important but these perceptions must be reasonable: see CHIEF
CONSTABLE OF WEST YORKSHIRE POLICE V KHAN [2001] IRLR 830
The need for a like for like comparison
Under section 23, in cases of direct, indirect or dual discrimination, the claimant must be
compared with someone whose circumstances are not materially different, apart from the
protected characteristic. This is known as a ‘like for like’ comparison. See EHRC p52 para
3.23.and
Capita Customer Management v Ali [2019] IRLR 695 – shared parental leave not comparable
to maternity leave.
Hewage v Grampian Health Board [2012] IRLR 870
If there is an actual person with whom to make the comparison (called the 'comparator') all
the better, otherwise the employee can compare himself or herself with a ‘hypothetical
comparator’ i.e a theoretical person whom the claimant shows, on the evidence, would
have been treated less favourably. See: Chief Constable of West Yorkshire v Vento [2001]
IRLR 124

On lack of causation see: Kalu v University Hospitals Sussex [2023] IRLR 129
On associative victimisation see: THOMPSON v LONDON CENTRAL BUS COMPANY [2016]

IRLR 9
DISCRIMINATION GENERALLY UNLAWFUL AT ALL STAGES
Section 39 makes clear that an employer must not discriminate at any stage of the
employment relationship – from hiring through to termination, and even beyond
termination in some cases. Thus, unless one of the exceptions apply, an employer must not
discriminate:
In relation to job offers – including an outright refusal to hire, or offering the job but on
inferior terms
During employment – in relation to access to promotion, transfer or training, or other

benefits or subjecting the employee to some other detriment
By dismissal
Section 108 makes it unlawful to discriminate even when the employment has ended. This
applies if the discrimination arises out of and is closely connected to the former
employment relationship. So, for example, if an employer refuses to give a reference to an
ex-employee because of his or her religion or belief, this would be unlawful.
Note that under section 60, unless one of the following situations is applicable, it is unlawful
for an employer to ask about the health of a job applicant until that person has received a
job offer or has been included in a pool of candidates to be offered a job when a position
arises. The situations when an employer may make enquiries at an earlier stage are for the
purposes of:
finding out whether a job applicant would be able to participate in an assessment to test his
or her suitability for the work
making reasonable adjustments to enable a disabled applicant to participate in the

recruitment process
finding out whether a job applicant would be able to undertake a function that is intrinsic to
the job, with reasonable adjustments in place if required
monitoring diversity in applications for jobs
supporting positive action in employment for disabled people

enabling an employer to identify suitable candidates for a job where there is an

occupational requirement for the person to be disabled.
On enforcement by EHRC: see EAct 2006 Section 24A(1)(b) and EA 2010 Section 120(8)
On inducing or aiding contraventions see: Sections 111& 112 and Sami v Avellan [2022] IRLR
656 and IFA v Davda [2023] IRLR 615
EXCEPTIONS – WHEN DISCRIMINATION IS ALLOWED
There are general exceptions when it is lawful to discriminate, which apply not only to
discrimination in employment but also other areas of life such as education, provision of
goods and services etc. There are also specific exceptions which apply only to potential
employment law discrimination.
GENERAL EXCEPTIONS – PART 14 AND SCHEDULE 22 OF EA 2010
Statutory authority
Under section 191 and Schedule 22 an act of discrimination is lawful if done
under statutory authority i.e. that there is another law which requires
the discrimination to take place. This applies only in relation to age, disability,
religion or belief, sex and sexual orientation discrimination (i.e. not race). See Explanatory
Notes para 977.
National security
Under section 192 an act of discrimination which is proportionate, for the
purpose of safeguarding national security, is lawful.
On positive action and positive discrimination see below.

SPECIFIC WORK (EMPLOYMENT LAW) EXCEPTIONS
Occupational requirements: paragraph 1
This is an exception to what would otherwise be unlawful direct discrimination in relation to

work. The exception applies where being of a particular sex, race, disability, religion or
belief, sexual orientation or age – or not being a transsexual person, married or a civil
partner – is a crucial requirement for the work, and the person to whom it is applied does
not meet it (or, except in the case of sex, does not meet it to the reasonable satisfaction of
the person who applied it). It must also be a proportionate means of achieving a legitimate
aim. See: Explanatory Notes para 789
Religious requirements relating to sex, marriage, etc, sexual orientation:
paragraph 2
There is a specific exception which applies to employment for the purposes of an organised
religion, which is intended to cover the employment of
ministers of religion and
a small number of lay posts which can also be said to be for the purposes of an organised
religion – see examples below.
Where employment is for the purposes of an organised religion, this exception allows the
employer to apply a requirement to be of a particular sex or not to be a transsexual person,
or to make a requirement related to the employee’s marriage or civil partnership status or
sexual orientation, but only if –
appointing a person who meets the requirement in question is to comply with the doctrines
of the religion, or

because of the nature or context of the employment, employing a person who meets the
requirement is to avoid conflict with a significant number of the religion’s followers’ strongly
held religious convictions.
See Explanatory Notes para 789
Exception for ethos relating to religion or belief: paragraph 3
This exception is broader than the previous one. It applies where an employer has an ‘ethos’
based on religion or belief. It allows that employer to discriminate in relation to work by
applying a requirement to be of a particular religion or belief, but only if, having regard to
that ethos,
being of that religion or belief is a requirement for the work, and
applying the requirement is proportionate so as to achieve a legitimate aim.
Other work exceptions contained in Schedule 9 include those relating to National Minimum
Wage bands and enhanced redundancy payments.
POSITIVE ACTION AND POSITIVE DISCRIMINATION
We need to distinguish positive action, which is permitted, and positive discrimination

which is generally not permitted. For a full explanation and examples see the EHRC Code of
Practice (chapter 12:
https://www.equalityhumanrights.com/sites/default/files/employercode.pdf).
Section 158 – general positive action measures are permitted.
Where an employer reasonably thinks that people who share a protected characteristic:
experience a disadvantage connected to that characteristic; or

have needs that are different from the needs of persons who do not share that
characteristic; or
have disproportionately low participation in an activity compared to others who do not

share that protected characteristic
the employer may take any action which is proportionate to meet the stated aims –
enabling them to overcome the disadvantage, meeting the needs and enabling
participation.
Section 159 applies only to recruitment and promotion situations, so in employment only,
not other areas of life. Under this section a protected characteristic may be taken into
consideration in case of equally qualified candidates
...where a person (P) reasonably thinks that—
persons who share a protected characteristic suffer a disadvantage connected to the

characteristic, or
participation in an activity by persons who share a protected characteristic is

disproportionately low
P is allowed to treat that person (A) more favourably in connection with recruitment or
promotion than another person (B),but only if
A is as qualified as B to be recruited or promoted,
P does not have a policy of treating persons who share the protected characteristic more
favourably in connection with recruitment or promotion than persons who do not share it,
and
taking the action in question is a proportionate means of achieving the aim of alleviating
disadvantage.
Positive discrimination, as opposed to positive action, means preferential treatment to the

person/group with the protected characteristic. Positive discrimination is generally
unlawful, though s.159 comes close to it . However, in relation to disability discrimination,
positive discrimination is allowed! For an example, see Archibald v Fife Council [2004] IRLR
651
On disability discrimination in recruitment, see Government Legal Service v Brookes

EAT/0302/16

EMPLOYER'S VICARIOUS LIABILITY FOR DISCRIMINATION BY EMPLOYEES: SECTION 109
Under Section 109 when an act of discrimination is committed by an employee ‘in the
course of [the employee's] employment’, the employer is vicariously liable for the act, even
if the employer doesn’t know about or approve of it. The employee himself or herself will
also be personally liable under Section 110.
In the landmark case of Jones v Tower Boot [1997] IRLR 168 the Court of Appeal held that
the words ‘in the course of employment’ should be understood in the sense that they are
used in everyday speech.
Chief Constable of Lincolnshire Police v Stubbs [1999) IRLR 81
Sidhu v Aerospace Composite Technology (2000) IRLR 602
Even if the acts were done ‘in the course of employment’, the employer has a defence
under section 109(4) if it has taken all reasonable steps to prevent the employees from
doing those acts. See:
ALLAY LTD v GEHLEN [2021] IRLR 348:
Balgobin and Francis v London Borough of Tower Hamlets [1987] IRLR 401
Canniffe v East Riding of Yorkshire Council [2000] IRLR 555
A RELATED BUT SEPARATE SECTION (SECTION 111) MAKES IT UNLAWFUL TO INSTRUCT,

INDUCE OR CAUSE DISCRIMINATION in relation to any of the protected characteristics. Both
the person given the instruction and the intended victim have a claim if they have suffered a
'detriment'.
On discrimination by an agent see Kemeh v Ministry of Defence [2014] IRLR 377 (CA)
BURDEN OF PROOF IN DISCRIMINATION CLAIMS: SECTION 136
In order to make it less difficult to prove that discrimination has occurred, the rule is that
the employee merely has to produce sufficient evidence from which a court or tribunal
could decide that there has been discrimination. Once such evidence has been produced it

is for the employer to disprove that discrimination has occurred, and if the employer
cannot do so then the tribunal must find in favour of the employee. See now
** Efobi v Royal Mail Group Ltd [2021] IRLR 811(SC)
TIME LIMITS IN MAKING A DISCRIMINATION CLAIM: Section 123
Claims of discrimination in employment begin in the employment tribunal. No period of

continuous employment is needed. The time limit, under section 123(1), is three months
from the act of discrimination, with an extension of time for late applications where the
tribunal considers it ‘just and equitable'.
See: Concentrix Ltd v Obi [2023] IRLR 351 & ABERTAWE HEALTH BOARD v MORGAN [2018]
IRLR 1050 (C/A)
REMEDIES (Section 124)
If the employee's claim is successful, a tribunal may make three orders.
A declaration that the employee's rights have been infringed.
An order for compensation.
On injury to feelings see: Vento v Chief Constable of West Yorkshire (No. 2) [2003] IRLR 102
and updated bands.
Aggravated damages may also be available.
On mitigation see: Edward v Tavistock NHS Trust [2023] IRLR 463
On the joint and several liability of two or more respondents see: London Borough of
Hackney v Sivanandan [2013] IRLR 408
c) A recommendation.
A tribunal is able to make a recommendation that the respondent (the employer) takes
specified steps for the purpose of obviating or reducing the adverse effect of the
discrimination on the complainant (the employee who brought the claim).
If a recommendation is not complied with by the employer without reasonable justification

the tribunal may order compensation instead, or increase the amount of compensation, if
already ordered.

[Note that interim relief is not available in discrimination/ victimisation cases: STEER v
STORMSURE LTD [2021] IRLR 762 (C/A)].
THE EQUALITY AND HUMAN RIGHTS COMMISSION (EHRC)
The EHRC was set up under the Equality Act 2006. Its duties and powers include:
monitoring the effectiveness of discrimination law
undertaking research and education
giving advice or guidance
producing publications, including Codes of Practice
conducting inquiries and investigations
assisting in bringing litigation.
An investigation by the EHRC may be undertaken if it suspects that a person or organisation

may have committed an ‘unlawful act’ of discrimination. After the investigation, the EHRC
will draw up a report which will only be finalised once the party investigated has been sent a
draft and has had at least 28 days to make representations: Section 20 EA 2006
If the EHRC is satisfied that the party investigated has committed an unlawful act, it may
issue an unlawful act notice and require the person involved to prepare an action plan:
Sections 21 & 22 EA 2006. The person may appeal to a court or tribunal within six weeks
claiming that he or she has not committed the act or that the action plan is unreasonable.
The EHRC may apply to a court at any time within five years for an order requiring the
person to act in accordance with the action plan or to take specified action for a similar
purpose.
The EHRC has the power to enter into a legally binding agreement with a person who
undertakes not to commit an unlawful act, and in return the EHRC undertakes not to
proceed with an investigation or issue an unlawful act notice: Section 23.
PUBLIC SECTOR EQUALITY DUTY: SECTION 149

Under Section 149 of EA 2010, all public authorities listed in Schedule 19 are subject to a
public sector equality duty which requires them in carrying out their functions to have due
regard to the need to:
eliminate prohibited conduct
advance equality of opportunity
foster good relations between persons who share a protected characteristic and those who
do not.
The duty is also imposed on some other public bodies in respect of their public functions.
The Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 (SI
2017/353) provide for specific duties.
EQUALITY OF TERMS FOR EQUAL WORK – PART 5
CHAPTER 3 EA 2010
This part of the Equality Act covers inequality between men and women under the terms of
their employment contracts relating to pay and benefits. The pay gap between men and
women doing the same or comparable jobs is a major and long-standing problem which this
part of the Act tries to address. Despite legislation being in force for 50 years to deal with
the issue where it arises in relation to ‘equal work’ (see below) there is still significant
inequality, although the pay gap has been declining slowly over time. Measured across all
jobs in the UK, in April 2021 average hourly earnings for a full-time male employee were
7.9% higher than for a comparable female employee. When also taking into account part-
time employees, the gap was 15.4%.
Regulations which came into force in 2017 aim to tackle the problem in larger organisations,
in the public, private and voluntary sectors, by requiring that employers with 250 or more
employees publish annual reports on their gender pay gap. The calculations must cover both
pay and bonus payments. The information must be published on the employer’s website
and also on the GOV.UK website: see The Equality Act 2010 (Gender Pay Gap) Regulations

2017, SI 2017/172 and The Equality Act 2010 (Specific Duties and Public Authorities)
Regulations 2017, SI 2017/353.
The right to equality of pay and other terms between men and women under their contracts
if they are employed to do equal work is dealt with in Part 5 Chapter 3 of EA 2010.
Under Section 65 of EA 2010, a claim for equal terms may be made if:
ss(1)(a) – the woman is employed on work like the comparator’s work
ss(1)(b) – the woman is employed on work rated as equivalent to the comparator’s
ss(1)(c) – the woman is employed on work of equal value to the comparator’s.
Section 66 inserts an implied equality clause into contracts of employment and Section 74
inserts a maternity equality clause when relevant. Section 77 deals with gagging clauses.
In the leading case of Hayward v Cammell Laird [1988] IRLR 257, the Supreme Court held
that an employer cannot claim that less favourable terms in the woman’s contract are offset
by other terms which are more favourable.
'Work like the comparator's work' is the simplest route to claiming equality of terms – the
claimant alleges that the work she is doing is like that of her comparator. Dugdale v Kraft
Foods [1977] IRLR 160
'Work rated as equivalent is another route to claim equality of terms in which the woman
compares herself with a man doing a totally different job but one that is comparable in the
demands of the job and the skills required. This second way in which a woman can claim
equality of terms is if her job and that of the male comparator have been rated as
equivalent under a job evaluation study which the employer has voluntarily carried out. See
Section 80(5) and Springboard Trust v Robson [1992] IRLR 261
The third way of presenting an equal terms claim is for the claimant to claim that her job is
of equal value to that of her male comparator. As with work rated as equivalent, this

category of case is used to compare quite different sorts of jobs – for example, the job of a
cook may be compared to a painter (Hayward v Cammell Laird) or a speech therapist to a
psychologist (Enderby v Frenchay Health Authority [1993] IRLR 591). Again, the comparison
means looking at the demands of the two jobs such as effort, skill and decision-making. A
tribunal deciding an equal value claim will generally (though not always) decide the issue by
commissioning an independent expert to carry out a report which compares the jobs in
question (Section 131).
Section 79 deals with comparators generally and note the ‘single source’ approach taken by
the CJEU . See K v Tesco Ltd [2021] IRLR 699 & **Asda Stores v Brierley [2021] IRLR 456
The material factor defence: where a woman can show that she is employed on work like
her comparator’s, or work rated as equivalent or of equal value, Section 69 says that an
employer can still defend the claim for equal terms by showing that the inequality is due to
a material factor. There are two types of material factor provided by the section. Put simply,
these amount to saying that the reason for the inequality is either not based on sex at all, ie
there is no direct discrimination, or even if it does involve a particular disadvantage for one
sex, i.e there is indirect discrimination, it is justified.
See WALKER v CO-OP GROUP LTD [2020] IRLR 896 (C/A): work rated as equivalent but,
despite passage of time, executive experience was still causative of the difference.
See Sections 70 -1 on discrimination outside the terms of the contract.
On burden of proof see: Element v Tesco [2023] IRLR 102
ENFORCEMENT
The time limit for bringing equality of terms claims at the employment tribunal will
normally be six months after the last day on which the claimant was employed. Arrears can
be awarded back to the ‘arrears date’ in respect of any time when there was unequal pay.

Normally, the arrears date will be six years before the date on which the claim is made. See
Section 132 EA 2010 on remedies and note that since 2014 equal pay audits can be ordered.
SELECTED FURTHER READING
Alysia Blackham: Young Workers and Age Discrimination: Tensions and Conflicts.
Industrial Law Journal, Volume 48, Issue 1, March 2019, Pages 1–33,
Alysia Blackham: Interrogating the ‘Dignity’ Argument for Mandatory Retirement: An

Undignified Development? Industrial Law Journal, Volume 48, Issue 3, September 2019,
Pages 377–415, https://doi.org/10.1093/indlaw/dwy013
Hannah Saunders: The Invisible Law of Visible Difference: Disfigurement in the Workplace.
Industrial Law Journal, Volume 48, Issue 4, December 2019, Pages 487–514,
https://doi.org/10.1093/indlaw/dwy019
Simonetta Manfredi, Lucy Vickers, Kate Clayton-Hathway. The Public Sector Equality Duty:
Enforcing Equality Rights Through Second-Generation Regulation
Industrial Law Journal, Volume 47, Issue 3, September 2018, Pages 365–398,
https://doi.org/10.1093/indlaw/dwx022
Jackie A Lane, Rachel Ingleby: Indirect Discrimination, Justification and Proportion ality: Are
UK Claimants at a Disadvantage?
Industrial Law Journal, Volume 47, Issue 4, December 2018, Pages 531–552,
https://doi.org/10.1093/indlaw/dwx009
Sandra Fredman: The Reason Why: Unravelling Indirect Discrimination.
Industrial Law Journal, Volume 45, Issue 2, July 2016, Pages 231–243,
https://doi.org/10.1093/indlaw/dww019

Connolly, M, Racial Groups, Sub-Groups, the Demise of the But For Test and the Death of
the Benign Motive Defence: R (on the application of E) v Governing Body of JFS, ILJ (2010)
39 (2): 183-193
Lawson, A, Disability and Employment in the Equality Act 2010: Opportunities Seized, Lost
and Generated, ILJ (2011) 40 (4): 359-383
Pitt, G, Keeping the Faith: Trends and Tensions in Religion or Belief Discrimination, ILJ (2011)
40 (4): 384-404
Fredman, S, The Public Sector Equality Duty, ILJ (2011) 40 (4): 405-427
Vickers, L, and Manfredi, S, Age Equality and Retirement: Squaring the Circle, ILJ (2013) 42
(1): 61-74
Pearson, M, Offensive Expression and the Workplace, ILJ (2014) 43 (4): 429-450
Bell, M, Mental Health At Work and the Duty to Make Reasonable Adjustments, ILJ (2015)
44 (2): 194-221
WEEK 5: NO LECTURE – INDEPENDENT LEARNING WEEK
WEEK 6: SEX EQUALITY (1) SEE POWERPOINTS
WEEK 7: SEX EQUALITY (2) SEE POWERPOINTS
WEEK8: DISABILITY AND AGE SEE POWERPOINTS
WEEK 9: RACE AND RELIGIOUS DISCRIMINATION SEE POWERPOINTS

WEEKS 10-12: INDIVIDUAL AND COLLECTIVE SOURCES OF TERMS
EXPRESS TERMS AND STATUTORY STATEMENTS.
INTRODUCTION
Do employees negotiate on an individual basis? Current coverage of collective bargaining?
Contract of employment may be oral or in writing. See Christie v Canaccord Genuity Ltd
[2022] IRLR 672 (no oral contract for retention award).
On certainty of terms see: Judge v Crown Leisure [2005] IRLR 823(C/A).
On unfair contract terms see: ** Commerzbank v Keen [2007] IRLR 132 C/A. 2007 ILJ 207
STATUTORY STATEMENTS
Sections 1-3 ERA 1996: At the start of employment, the employer must supply a written
statement to workers (note that this formerly applied to employees only).
This statement must contain particulars of:
1) the identity of the parties
2) the date the employment commenced and the date when an employee’s period of
continuous employment began
3) the scale or rate of remuneration or the method of calculating remuneration and the
intervals at which remuneration is paid
4), any terms and conditions relating to hours of work including any terms and conditions
relating to—
(i) normal working hours,
(ii) the days of the week the worker is required to work, and
(iii) whether or not such hours or days may be variable, and if they may be how they vary or
how that variation is to be determined.

5) any terms and conditions relating to any of the following—
(i) entitlement to holidays, including public holidays, and holiday pay (the particulars given
being sufficient to enable the worker’s entitlement, including any entitlement to accrued
holiday pay on the termination of employment, to be precisely calculated, [on holidays
accrued during notice period see notes on Working Time Regulations & Gibson v E.Riding
Council [2000] IRLR 598 (C/A)]
(ii) incapacity for work due to sickness or injury, including any provision for sick pay,
(iia) any other paid leave, and
(iii) pensions and pension schemes. This does not apply to a worker of a body or authority
if—
(a) the worker’s pension rights depend on the terms of a pension scheme established under
any provision contained in or having effect under any Act, and
(b) any such provision requires the body or authority to give to a new worker information
concerning the worker’s pension rights or the determination of questions affecting those
rights.
6) any other benefits provided by the employer that do not fall within another paragraph of
Section 1(4)
7) the length of notice to be given by either party (information can no longer be provided in
instalments)
8) the title of the job or a brief description of the work (see Kampelman's case [1998] IRLR
333 (ECJ))
9) where the employment is not intended to be permanent, the period for which it is
expected to continue, or if it is for a fixed term, the date the contract expires[see notes on
Fixed Term Employees Regs 2002]. (This information can no longer be provided in
instalments).

10) information must be provided about any probationary period, including any conditions
and its duration. A probationary period is defined as a temporary period intended to enable
the employer to assess the worker’s suitability: Section 1(6) ERA 1996
11) The statement must specify any training entitlement provided by the employer and any
part of it that the worker is obliged to complete and any other training that the worker must
complete which the employer will not pay for.
12) either the place of work or, where the person is required to work at various places, an
indication of that and of the employer's address.
On the implication of a mobility clause see: APARAU v ICELAND FROZEN FOODS [1996] IRLR
119.
13) any collective agreements which directly affect terms and conditions including, where
the employer is not a party, the person by whom they were made
14) where the worker is required to work outside the UK for more than a month -
the period of work outside the UK
the currency in which payment will be made
any additional pay and benefits to be provided by reason of the work being outside the UK.
any terms and conditions relating to the worker's return to the UK.[ on overseas working
note also effect of Posted Workers Directive (16/12/99)].
(This information can no longer be given in instalments).
15) any disciplinary rules and the disciplinary and grievance procedure.
See Section 3(1)(aa): “specifying any procedure applicable to the taking of disciplinary
decisions relating to the worker, or to a decision to dismiss the worker, or referring the
worker to the provisions of a document specifying such a procedure which is reasonable
accessible to the worker”.
According to Section 3(1)(b)(i)ERA, the statement must specify a person to whom the
worker may apply if s/he is dissatisfied with a decision to dismiss or with a disciplinary
decision.

On grievance handling see: Goold Ltd v McConnell [1995]IRLR 516. See Employment Act
2002
On a worker’s right to be accompanied see: Section 10 Employment Relations Act 1999,

ACAS Code on Disciplinary and Grievance Procedures 2009 (below) & * Toal v GB Oils Ltd
[2013] IRLR 696; Skiggs v South West Trains [2005] IRLR 460; Harding v London Underground
Ltd [2003] IRLR 252 (EAT) & Heathmill Ltd v Jones [2003] IRLR 856 (EAT)
On the appropriateness of legal representation where an employee may be deprived of his

or her right to practice a profession see: R v Governors of X School [2011] IRLR 756 (S.C.)
On the impact of Article 2 of Directive 91/533 see now: Hardarson v Askar Capital
[2013]IRLR 475 (EFTA Court); Lange v Shunemann Gmbh [2001] IRLR 244 (ECJ)
Some of the matters listed above may be given in instalments but other items must be dealt
with in a single document called a 'principal statement'. If there are no particulars to be
entered under any of the above headings, that fact must be mentioned in the written
statement.
On the use of alternative documents to give particulars see Section 37 Employment Act
2002 which inserts Section 7A & B: applies to a contract of employment /worker’s contract
or letter of engagement which is given in time, including before employment begins.
In relation to some of the items specified (e.g.Section 1(4)(d)(ii) to (iii) and (l)), the
statement may refer the worker to some other document which he or she has reasonable
opportunities of reading in the course of employment, or which is made reasonably
accessible in some other way: Section 6 ERA.
As regards 7, the statement may refer to Section 86 ERA 1996 or to a collective
agreement dealing with notice. The collective agreement itself must be reasonably
accessible (see above).
Section 4 ERA 1996: Where there is a CHANGE in terms, written notification must be given
to the worker within a month. There is no provision for the changes to be notified in
instalments. The nature of the changes must be set out in full, although the employer may
refer to other documents for the same matters and in the same manner as for the original
giving of particulars. Section 4 can be used to notify a change in the name or identity of the
employer so long as continuity is unaffected and there are no other changes in any of the
other matters which must be specified in a written statement.

What if the statement is unilaterally varied by the employer and the employee does not
express dissent? See Jones v Associated Tunnelling [1981] IRLR 477; 1982 ILJ 118, and
Robertson v British Gas [1983] IRLR 302 (C/A); 1983 ILJ 115
Statement need not be signed by the employee, but what if it is?
Since April 2020, temporary agency workers have to be provided with a “key information
document” which deals with pay and holiday entitlement. (see notes above on agency
workers).
Section 8 ERA: Itemised pay statements. (now applies to workers as well as employees)
On deductions from wages see Section 13 ERA 1996 and notes below.
Section 11 ERA: Powers of the employment tribunal. See: Southern Cross Healthcare v
Perkins [2010] (C/A); Parker v Northumbrian Water [2011] IRLR 1172
Section 38 Employment Act 2002 deals with the consequences in other proceedings of a
failure to give a statement of particulars:
(1) applies to jurisdictions listed in Schedule 5
(2) if no award but breach of Section 1(1) or 4(1) ET must make 2 weeks’ pay or 4 weeks’
pay if just and equitable.
(3) if award is made but breach of Section 1(1) or 4(1) ET must increase the award by 2
weeks’ pay or 4 weeks’ pay if just and equitable.
(4) award or increase may be denied in exceptional circumstances.
In addition, Section 12A ETA 1996 allows ET’s to impose a financial penalty on employers
where there has been a breach of employment rights and the ET thinks that “the breach has
one or more aggravating features”. Normally the penalty must not be less than £100 or

more than £20,000 but regard must be had to the employer’s ability to pay and there is a
50% discount if payment if made within 21 days.
On the date for the determination of particulars see: Railcare Ltd v Cook [IRSER 683]
BIBLIOGRAPHY
ACAS Self Help guide - "Producing a Written Statement".
On fixed term contracts: see notes below
SOME QUESTIONS FOR CONSIDERATION
1. What is the legal status of a written statement issued in accordance with Section 1 ERA
1996?
2. Might it be dangerous not to appeal against an incorrect statement of particulars?
3. Does Section 11 ERA 1996 "guarantee real and effective judicial protection"?
4. Would it be preferable to make employers issue written contracts to all workers?
THE IMPLIED OBLIGATIONS OF THE PARTIES.
THE SOURCES OF OBLIGATION –
EXPRESS TERMS:
On the credibility of oral agreements see: Prometric Ltd v Cunliffe [2016] IRLR 776 (C/A)
(pension arrangements)
2) TERMS IMPLIED BY STATUTE:
Section 66 Equality Act 2010 (sex equality clause).

National Minimum Wage Act 1998
Working Time Regulations 1998 S.I.1833
Section 185 TULRCA 1992 (CAC awards).
3) TERMS IMPLIED BY COMMON LAW
IMPLIED TERMS OF FACT
used to fill a gap (for example, see Ali v Christian Salvesen [1997] IRLR 17 (C/A) on overtime
and annualised hours) OR to effect the mutual intention of the parties.
Other bases for implying terms: the "officious bystander" test, "business efficacy".
Reasonableness? On necessity see: Ali v PetrolEU m Company of Trinidad [2017] IRLR 17
(PC).
On the relationship with express terms see: Thorne v House of Commons Commission
[2012604] IRLR
On the implied duty not to frustrate sickness arrangements see: Awan v ICTS [2019] IRLR
212;
On the implied right to a fair process see: * West London Mental Health Trust v Chabra
[2014] IRLR 277 (SC)
On avoiding benefits under a contractual redundancy payment scheme see: Jenvey v ABC
[2002] IRLR 520(QB).
On whether a management policy has become a term of the contract see: Bateman v Asda
Stores [2010] IRLR 370; Albion Ltd v Walker [2002] IRLR; Wandsworth B.C.v D'Silva [1998]
IRLR 193 (C/A) (staff sickness code); Quinn v Calder Ltd [1996] IRLR 126 (enhanced
redundancy pay).
IMPLIED TERMS OF LAW - inherent in all contracts.
CUSTOM –

usage must be invariable, certain and general see: Park Cakes Ltd v Shumba [2013] IRLR 800
(C/A) (enhanced redundancy terms); Rutherford v Seymour Pierce Ltd [2010] IRLR 606
EMPLOYER DUTIES -
TO PAY WAGES:
See Driver v Air India [2011]IRLR 992 (C/A)( reasonable sum if pay not specified) &
Beveridge v KLM [2000] IRLR 765 (EAT)
ii) TO PROVIDE WORK:
Normally it is sufficient to pay wages but there are exceptions:
- do earnings depend on work being performed?
- loss of publicity or reputation affected?
- work needed to preserve skills?
On 'garden leave' see: Finn Ltd v Holliday [2014] IRLR 102; Tullet Prebon v BGC Brokers
[2010] IRLR 648; SG & R Valuation Service v Boudrais [2008] 770;
On the relationship with obligations of loyalty see: Standard Life v Gorman [2010]IRLR 233
(C/A)
iii) TO CO-OPERATE WITH THE EMPLOYEE:
On mutual trust and confidence generally see: Palmeri v Charles Stanley Ltd [2021] IRLR 563
(QBD) (implied term in a non-employment case); AL-Obaidi v Frimley NHS Trust [2019] IRLR
1065 (necessary to imply a term that discretion whether there is a case to answer is to be
exercised in good faith and rationally); Brown v Neon Management [2019] IRLR 30; IBM UK
v Dalgleish [2018] IRLR 4 (C/A) (rationality approach to discretionary powers); Rawlinson v
Brightside Group Ltd [2018] IRLR 180 (misleading reason for dismissal); Gibbs v Leeds United
FC [2016] IRLR 493 (loss of status); Atkinson v Community Gateway Association [2015] IRLR
834; Stevens v University of Birmingham [2015] IRLR 899 (refusal of request to be
accompanied); Yapp v Foreign & Commonwealth Office [2013] IRLR 616; (obligation of fair
treatment); Tullet Prebon Plc v BGC Brokers [2011]IRLR 420 (C/A);

On the duty of procedural fairness and a general disclosure obligation see: Burn v Alder Hey
Trust [2022] IRLR 306 (C/A)
On the imposition of positive obligations generally see: Nair v LS Entertainment Ltd [2021]
IRLR 54; James –Bowen v Comissioner of Met Police [2018] IRLR 954 (SC) (no duty in relation
to economic or reputational harm); Fraser v Southwest London Health Trust [2012]IRLR 100
(no general duty to advise employees of their rights);Crossley v Faithful & Gould Ltd [2004]
IRLR 377; Transco plc v O’Brien [2001] IRLR 496 (C/A); Hagen v ICI Ltd [2002] IRLR 31;
University of Nottingham v Eyett 1999] IRLR 87
On the exercise of discretion in relation to commission, share options and bonuses see:
**Hills v Niksun Inc [2016] IRLR 715 (C/A); Patural v DG Services Ltd [2016] IRLR 286; Attrill v
Dresdner Kleinwort [2011] IRLR 613 (C/A); Locke v Candy Ltd [2011] IRLR 163 (C/A);
On pension rights see: Ibekwe v LGTS Ltd [2003] IRLR 697 (C/A) & Imperial Group Pension
Trust v Imperial Tobacco Ltd[1991] IRLR 66. However, there is no duty to advise: Outram v
Academy Plastics [2000] IRLR 499 (C/A)
On the non-disclosure of personal information see: Data Protection Act 1998 and
Dalgleish v Lothian Police [1991] IRLR 422.
Also the Information Commissioner’s Code Parts 1-6 and document on good practice and
references.
On privacy and surveillance see: Telecoms Regs 2000 (IRSER 715); Human Rights Act 1998
(1998 Dec ILJ) & Phoenix House Ltd v Stockman [2019] IRLR 960; Halford v UK [1997] IRLR
471. On perceptions of privacy see: Ford (2002) ILJ 135
On complaints and grievance handling see: Deadman v Bristol City Council (2007) IRLR 888
(C/A) & Goold Ltd v McConnell [1995] IRLR 516
On the provision of a reasonably suitable working environment see: Moores v Bude –

Stratton Council [2000] IRLR 676 (EAT) & Waltons & Morse v Dorrington [1997] IRLR 488
(see below also).
TO TAKE REASONABLE CARE OF THE EMPLOYEE:
Standard required is "that which an ordinary prudent employer would take in the
circumstances". NB reasonable foreseeability.
On relationship with public law obligations see: Connor v Surrey County Council [2010] IRLR
521 (C/A)

On protecting the reputation of employees: see Beynton v Credit Suisse Ltd [2020] IRLR 299
and James -Bowen v Metropolitan Police Commissioner [2018] IRLR 954 (SC).
No duty to protect from pure economic loss: see * *Benyatov v Credit Suisse Ltd [2023] IRLR
381 (C/A); Dryden v Johnson Matthey [2018] IRLR 963 (SC) (platinum sensitization was an
actionable injury)
Where an employee's labour is sub-contracted see Morris v Breaveglen Ltd [1993] IRLR 350
On relationship with express terms see Johnstone v Bloomsbury HA [1991]IRLR 118

(C/A),1992 MLR 562.
Convenient sub-divisions - safe premises; safe plant, equipment & tools; safe system of
work; competent & safe fellow workers.
For cases on employer’s liability see: Richmond v Selecta Systems [2019] IRLR 18
(interference with personal internet accounts); Corr v IBC (2008) ICR 372 (H/L);
On stress see: * Dickins v O2 [2009] IRLR 58 (C/A); Intel Corporation Ltd v Daw [2007] IRLR
355 C/A. 2007 ILJ 216; Sayers v Cambridge County Council [2007] IRLR 29; Hone v Six
Continents Ltd [2006] IRLR 49;
On bullying see: Green v DB Group [2006] IRLR 764 2007 ILJ 213; Horkulak v Cantor
Fitzgerald [2004] (above).
On the Protection from Harassment Act 1997 see: Marinello v City of Edinburgh [2011] IRLR
669 (course of conduct); Rayment v MOD [2010] IRLR 768; Veakins v Kier Ltd [2010]IRLR
132; Sunderland City Council v Conn (2008) IRLR 324 (C/A); Majrowski v Guys NHS Trust
[2006] IRLR 695 (H/L)- vicarious liability
On insurance see: Bernadone v Pall Mall Group [2000] IRLR 487 (C/A)
[Note also Health & Safety at Work Act 1974 and Corporate Manslaughter and Corporate
Homicide Act 2007].
v) TO PROVIDE A REFERENCE?
See: Hincks v Sense Network Ltd [2018] IRLR 614 (need to examine fairness of a previous
investigation?); AB v A Chief Constable [2014] IRLR 700 (impact of the Data Protection Act
1998 on employer’s duty); Jackson v Liverpool City Council [2011] IRLR 1009 (C/A); Cox v Sun

Alliance Ltd [2001] IRLR 448 (C/A); Kidd v AXA Equity [2000] IRLR 301(QBD); TSB v Harris
[2000] IRLR157 (EAT); Bartholomew v L.B. of Hackney [1999] IRLR 246 (C/A)
See the Information Commissioner’s document on good practice and references.
On liability for negligent misstatements see: Abdel –Khalek v Ali [2016] IRLR 358 (C/A) (no
wrong impression demonstrated) and McKie v Swindon College [2011] IRLR 575 (N.B.not
made in a reference)
SOME QUESTIONS FOR CONSIDERATION:
1.Can an employer reserve the right to change a particular aspect of the contract
unilaterally?
Can an implied term ever take precedence over an express term?
In effect, does the implied duty to co-operate mean that employers must treat employees in
a reasonable manner?
Is the current law on the provision of references satisfactory? If not, what changes should
be made?
EMPLOYEES' DUTIES
[Note also the impact of express terms and obligations imposed by statute,for example, in
relation to health and safety].
TO CO-OPERATE WITH THE EMPLOYER: (obeying lawful orders and not impeding the
employer's business).
On duty to obey instructions given in bad faith see: *Macari v Celtic FC [1999] IRLR 787
On part performance see: Spackman v London Metropolitan University (2007)IRLR 774.

On new technology see: Cresswell v Inland Revenue [1984] IRLR 190, 1985 ILJ 51.
On temporary changes see: Luke v Stoke City Council [2007] IRLR 305 & (2008)IRLR 777
(C/A)
On computer misuse see: IDS Brief 637
On the withdrawal of goodwill and the refusal to sign an undertaking to work normally see:
*Ticehurst v BT [1992] IRLR 219, ICR 383 (C/A) & Sim v Rotherham MDC [1986] IRLR 391;
1987 ILJ 185 (on goodwill and professional obligations).
On co-operation outside the scope of the contract see 'some other substantial reason' as a
potentially fair reason for dismissal under Section 98(1) ERA 1996.
DUTY OF FIDELITY:
Note comparison with fiduciary obligations: Thelfall v ECD Insight [2013] IRLR 198;
Ranson Customer Systems plc [2012] IRLR 769 (C/A); Nottingham University v
Fishel [2000] IRLR(QBD); 2001 ILJ 101
On duty to disclose own wrongdoing see: Human Kind Charity v Gittens [2020] IRLR
402; Marathon Asset LLP v Seddon [2017]IRLR 503;
On attacking the competence and integrity of those in charge see: Palmeri v Stanley
& Co [2021] IRLR 563
On competing with the employer see: Planon Ltd v Gilligan [2022] IRLR 684 (C/A); Square
Global Ltd v Leonard [2020] IRLR 607; Argus Media v Halim [2019] IRLR 442; **Tillman v
Egon Zehnder [2020] IRLR 838 (SC) (ability to sever an impermissibly wide restriction );
Tradition Financial Services v Gameroni [2017] IRLR 699; Pennwell Publishing Ltd v Ornstien
[2007] IRLR 700 (contact list on email);
On ‘springboard’ relief see: Forse v Secarma Ltd [2019] IRLR 587 (C/A);

On recent injunctions see: Law by Design v Ali [2022] IRLR 610 (non-competition); Delivery
Group Ltd v Yeo [2022] IRLR 603 (non-dealing); Ideal Standard v Herbert [2019] IRLR 435;
Capital plc v Darch [2017] IRLR 718; Legends Live v Harrison [2017] IRLR 59;
On the intention to set up in competition see: Quilter Advisers Ltd v Falconer [2022] IRLR
227;
On restrictive covenants or restraint of trade clauses generally see: CJ Motorsport Ltd v Bird
[2019] IRLR 1080; Invista Textiles Ltd v Botes [2019] IRLR 977; Rush Hair Ltd v Gibson -Forbes
[2017] IRLR 49; Refuse Collection Ltd v Sendall [2015] IRLR 226; One-step Ltd v Morris-
Garner [2015] IRLR 215; Sunrise Brokers LLP v Rodgers [2014] IRLR 780; Prophet plc v
Huggett [2014] IRLR 797 (C/A)(on the scope for judicial re-writing).
Note also the effect of Rock Refrigeration Ltd v Jones [1996] IRLR 675, (1997)ILJ 62.
On non -disclosure of confidential information (unless in the public interest). See:

Trailfinders Ltd v Travel Counsellors Ltd [2021] IRLR 450 (on equitable duty of confidence);
Warm Zones v Thurley [2014] IRLR 791 (on discovery and inspection of employee’s
computer); Vestergaard Frandsen v Bestnet Ltd [2013] IRLR 654 (SC) (must know
information is confidential);
On WHISTLEBLOWING see Part IVA ERA 1996 (as amended 2013) on protected disclosures.
According to Section 43B, there is a qualifying disclosure if a worker reasonably believes that
the information is in the public interest and tends to show one or more of the following: a
criminal offence, a failure to comply with any legal obligation, a miscarriage of justice, a
danger to health and safety and damage to the environment. A likelihood of any of these
events occurring is also a qualifying disclosure, as well as any information about
concealment, or attempts to conceal, such information.
The disclosure needs to be made to an individual’s employer or to some other person who
has responsibility for the matter disclosed, to a legal adviser or to a prescribed person.
Sections 43G and 43H ERA 1996 impose strict rules about making disclosures in other
circumstances. For example, the worker must reasonably believe that the information is
true and not make disclosures for private gain. It must also be reasonable for the worker to
make the disclosure.
Section 47B ERA 1996 imposes vicarious liability if a worker suffers a detriment at the hands
of a co-worker and the employer did not take all reasonable steps to prevent this
happening.

Good faith is no longer a requirement for making a protected disclosure but an award can
be reduced by up to 25% if it appears to an ET that a disclosure was not in good faith:
Section 123(6A) ERA
Section 103A ERA 1996 makes dismissal on the grounds of making a protected disclosure
unfair.
See: Kong v Gulf International Bank [2022] IRLR 954 (C/A) (way disclosure made is generally
part of the disclosure itself); Edinburgh Media Ltd v Purnell [2021] IRLR 871 (detriment after
employment ceased); Dobbie v Felton [2021] IRLR 679 (applying the public interest test);
Simpson v Cantor Fitzgerald [2021] IRLR 238 (C/A); Gawlik v Liechenstein [2021] IRLR 426
(ECrHR); Jesudason v Alderhey Trust [2020] IRLR 374 (C/A) (detriment does not depend on
employer’s purpose or motive); Royal Mail v Jhuti [2019] SC; Gilham v Ministry of Justice
[2019] SC; Ibrahim v HCA Ltd [2020] IRLR 224 (C/A) (on two -stage approach in Chesterton
case); Tiplady v City of Bradford MDC [2020] IRLR 230 (C/A); Timis v Osipov [2019] IRLR 52
(C/A) (claim against co-worker as a party to dismissal); Kilraine v London Borough of
Wandsworth [2018] IRLR 846 (C/A) (information/allegation intertwined); Small v
Shrewsbury and Telford NHS Trust [2018] IRLR 889 ( C/A) (stigma damage to be considered);
Royal Mail Group v Jhuti [2018] IRLR 251 (C/A) (line manager’s motivation to be considered);
Chestertons v Nurmohammed [2017] IRLR 837 (public interest test); * Beatt v Croydon NHS
Trust [2017] IRLR 748 (C/A) (employer knowledge that disclosure protected); * Day v Health
Education England [2017] IRLR 623 (C/A) (claim against two employers); Eiger Securities LLP
v Korshunova [2017] IRLR 115; McTigue v University Hospital Bristol [2016] IRLR 742 (both
supplier and end user can be the employer); Roberts v Wilsons LLP [2018] IRLR 1042 (C/A)
(discretion on compensation); Morgan v Royal Mencap Society [2016] IRLR 428 (health and
safety complaints); Day v Lewishham and Greenwich NHS Trust [2016] IRLR 415 (not a
worker); Rubins v Latvia [2015] IRLR 319 (ECHR); Keppel Seghhers UK v Hinds [2014] IRLR
754; Panayiotou v Chief Constable of Hampshire [2014] IRLR 500; Millbrook Financial
Services v Crawford [2014] IRLR 18; Blackbay Ventures Ltd v Gahir [2014] IRLR 416;
Abertawe University Health Trust v Ferguson [2014] IRLR 14; Hill v Great Tey School [2013]
ICR 691; Onyango v Berkeley[2013] IRLR 338; **Fecitt v NHS Manchester [2012] IRLR 64;
Commissioner for Police v Shaw [2012] IRLR 291 (aggravated damages);
On intellectual property and employment law see: Wotherspoon (1993) ILJ 119 (employee
inventions)
iii) DUTY TO TAKE REASONABLE CARE:
On completion of medical questionnaire see: Cheltenham B.C. v Laird [2009] IRLR 621 (QBD)

See also Health & Safety etc at Work Act 1974.
BIBLIOGRAPHY:
“Nineteen years of whistleblowing legislation in the UK: is it time for a more comprehensive
approach?” Lewis, D. (2017) International Journal of Law and Management 1126
1. Does the existence of a duty to co-operate mean that on occasions employees can be
compelled to relinquish contractual rights?
2. Is it possible to enforce an employee's duty of fidelity during "garden leave"?
Assess the impact of the amendments made in 2013 to Part IVA ERA 1996.
THE LEGAL EFFECT OF COLLECTIVE AND WORKFORCE AGREEMENTS.
Comparison with workforce and relevant agreements under Working Time Regs 1998.
Collective agreements defined by Section 178(1) TULRCA 1992: agreement or arrangement

made between trade union(s) and employer(s) which relates to one or more of the matters
mentioned in Section 178(2) TULRCA 1992. See: Edinburgh Council v Brown [1999] IRLR 208
Procedural agreements: govern relations between signatories by establishing methods for

handling disputes.
Substantive agreements: regulate terms and conditions of those covered i.e. employees.
LEGAL ENFORCEABILITY BETWEEN THE PARTIES:
Section 179(1) TULRCA 1992: conclusive presumption that intended not to be legally
enforceable unless agreement in writing and states that parties intend agreement to be a
legally enforceable contract. See NCB v NUM [1986] IRLR 439.

NB Section 179(3): an agreement may be enforceable in parts. On transfer of collective

agreements see Reg 6 Transfer Regs 1981.
On the Contracts (Rights of Third Parties) Act 1999 see: Cavanagh v Secretary of State for
Work and Pensions [2016] IRLR 591 (check off provision enforced by union).
HOW DOES A COLLECTIVE AGREEMENT BECOME PART OF AN INDIVIDUAL'S CONTRACT OF

EMPLOYMENT?
Preliminary questions:
- is there vagueness or uncertainty of terms?
- are the terms appropriate for insertion into an individual contract? See: Cox v Secretary of
State for the Home Department [2023] IRLR 679 (C/A) (on right to check off facility); Sparks
v Department for Transport [2016] IRLR 519 (C/A)( sickness absence management clause);
*Malone v British Airways [2011] IRLR 32 (C/A); Keeley v Fosroc Ltd [2006] IRLR 961 (C/A)
On the use of practice as an aid to interpreting terms which are truly ambiguous see:
*Dunlop Tyres Ltd v Blows [2001] IRLR 629 (C/A)
On the need to construe a collective agreement in its factual setting see: Anderson v London
Fire Authority [2013] IRLR 459 (C/A); Garratt v Mirror Group Ltd [2011]IRLR 591(C/A);&
Adams v British Airways [1996] IRLR 574 (C/A)
On the ostensible authority of the union negotiator: see Harris v Lawson Ltd [2002] IRLR 476
(C/A)
1. EXPRESS INCORPORATION:
express term or Section 1 ERA statement see: Grainger v N.E.London NHS Trust [2017] IRLR
981; Harlow v Artemis Ltd [2008] IRLR 629; Kaur v MG Rover [2005] IRLR 40 (C/A); Anderson
v Pringle Ltd [1998] IRLR 64 and Airlie v City of Edinburgh D.C. [1996] IRLR 516).
As regards terms and conditions relating to sickness or injury (including sick pay) and
pensions, the length of notice to be given by either party and the provision of disciplinary

and grievance procedures,a Section 1 ERA 1996 statement may refer the employee to some
other document which he or she has reasonable opportunities of reading in the course of
employment,or which is made reasonably accessible in some other way. Where there is a
change in terms,the employer may refer to other documents for the same matters and in
the same manner as for the original giving of particulars.
2. IMPLIED INCORPORATION :
need knowledge & conduct demonstrating acceptance. See now *Hamilton v Futura Floors
[1990] IRLR 478.
On the position of non - members see Singh v British Steel [1974] IRLR 131.
On membership of an employer's association see Hamilton v Futura (supra)
3. INCORPORATION BY CUSTOM AND PRACTICE:
See: Henry v LGTS Ltd [2002] IRLR 472 (C/A)
On insertion of NO- STRIKE clauses see Section 180 TULRCA 1992: only binding if collective
agreement -
(i) is in writing with provision stating that such a clause may be incorporated.
(ii) is reasonably accessible to the employee
(iii) is concluded by an independent trade union
and the individual contract expressly or impliedly incorporates the no-strike clause.
Note also the effect of a RELEVANT TRANSFER on collective agreements.
A collective agreement which exists at the time of the transfer between a recognised trade
union and the transferor continues in force after the transfer in relation to the employees
transferred as if it had been made with the transferee. See also: Askelepios Kliniken v Felja
[2017] IRLR 653 (CJEU )
Note - potential impact on non-contractual disciplinary or grievance procedures.

1. Assess the impact of workforce agreements.
2. What is the legal position where there are conflicting collective agreements? See Gascol
Conversions v Mercer [1974] IRLR 155.
What legal rights do workers have if their employer tears up the collective agreement and
seeks to impose new terms? see Robertson v British Gas [1983]IRLR 302; Gibbons v
Associated British Ports [1985]IRLR 376 and Lee v GEC Plessey [1993] IRLR 383.
What do employers gain by introducing no-strike clauses?
WEEK 13: CONTINUITY OF EMPLOYMENT AND THE TRANSFER OF UNDERTAKINGS

REGULATIONS 2006 ('TUPE')
CONTINUITY OF EMPLOYMENT.
On the impact of Art 119 see: COLLEY v CORKINDALE [1995] ICR 965
On the inability to contract out see: COLLISON v BBC [1998] IRLR 238.
Section 210(5) ERA: continuity presumed unless contrary shown.See S of S v Cohen [1987]
IRLR 169
Section 215: working outside G.B. covered
Section 210(3): continuity to be determined week by week but computed in months and
years.
On impact of Section 211(1) see: O’Sullivan v DSM Demolition Ltd [2020] IRLR 840 (work
collateral to a contract); Welton v De Luxe Retail [2013]IRLR 166 (acceptance of a job offer);
Section 210(4): Normally a week which does not count breaks continuity.
On the effect of illegality see Hyland v J.Barker Ltd [1985] IRLR 403

WEEKS WHICH COUNT TOWARDS CONTINUITY:
Section 212 ERA: any week during the whole or part of which the employee's relations with
the employer are governed by a contract of employment shall count in computing a period
of employment.
On leaving and returning see: Sweeney v Henderson Ltd [1999] IRLR 306
A week also counts if one or more of the following apply for the whole or part of a week:
i) Section 212 (3)a: the employee is incapable of work because of sickness or injury. See
Pearson v Kent C.C.[1993] IRLR 165 (C/A).
Not more than 26 weeks can count under this sub-sub section.
ii) Section 212 (3)b: the employee is absent on account of a temporary cessation of work.
On temporary cover contract see: Hussain v Acorn College [2011]IRLR 463.
On absent from work see Stephenson v Fish [1989] IRLR 324.
On the meaning of temporary see *Sillars v Charrington Fuels [1989] IRLR 152 (C/A)
On cessation see: University of Aston v Malik [1984] ICR 492 & Byrne v City of Birmingham
[1987] IRLR 191 (C/A)
According to the EAT, the reason for the cessation is irrelevant and the subsequent work
could be in a different location: Welton v De Luxe Retail [2013] IRLR 166
iii) Section 212 (3)c: the employee is absent from work in circumstances such that by
arrangement or custom s/he is regarded as continuing in employment for all or any
purposes.
Must arrangement exist at the time the absence began? See: Welton v De Luxe Retail [2013]
IRLR 166
On childbreak agreement see: * Curr v Marks & Spencer plc [2003] IRLR 74 (C/A)
On the deliberate creation of gaps to break continuity see: Booth v USA [1999] IRLR 16
On continuity being acquired from the time that a job offer is accepted see: Welton v De
Luxe Retail [2013] IRLR 166 - the contract of employment may not require the performance
of actual work but governed the relations between the parties
On continuity following a complaint of unfair dismissal see Employment Protection

(Continuity of Employment) Regulations 1993. S.I.2165

On the effect of maternity and parental leave see texts etc on PARENTAL RIGHTS.
On Section 214 and redundancy payments see: S of S v Lassman [2000] IRLR 411 (C/A)
INDUSTRIAL DISPUTES
Section 216 (1)(2): days on strike neither count nor break continuity.
Section 216 (3): a lock out does not break continuity and,if contract subsists,absence could
count under Section 212 (supra).
Section 235 (4)(5) define strike and lock out for these purposes.
CHANGE OF EMPLOYER
Situations in which employment is deemed to be continuous despite change of employer:
Section 218(2): transfer of trade, undertaking, business or part of a business. "Business" is

defined in Section 235. See also notes on Transfer of Undertakings Regs (below)
ii) Section 218(3): if statute results in one corporate body replacing another.
iii) Section 218(4): if the employee is re-employed by the personal representatives of a

deceased employer.
iv) Section 218(5): if there is a change in the partners,personal representatives or trustees

who employ the individual.
On partners see : Stevens v Bower [2004] IRLR 957.
On unincorporated associations see Affleck v Newcastle Mind [1999] IRLR 405
v) Section 218(6): if employed by an associated employer (defined by Section 231).
On control see: Da Silva v Composite Mouldings Ltd [2009] ICR 416 (liquidation)
On overseas companies see Hancill v Marcon Ltd [1990] IRLR 51.
vi) Section 218(7): teachers transfering within same local education authority.
Section 218(8)- (10): relevant health service employment.

SOME ISSUES FOR CONSIDERATION:
1. Should employers and employees be permitted to make arrangements about continuity

which have retrospective effect?
2. Should a tribunal be entitled to intervene if it feels that an employer has deliberately

engineered a gap in an employee's service?
TUPE REGS 2006
Interpretation: Reg.2:
On the meaning of “assigned” see: Marcroft v Heartland Ltd [2011] IRLR 599 (C/A)
Relevant transfer: Reg.3
On the need to be situated in the UK before transfer see: Holis Ltd v GMB (2008)IRLR 187.
Business transfer –
Reg. 3(1)(a)- “where there is a transfer of an economic entity which retains its identity”.
See: ICAP Management Ltd v Berry [2017] IRLR 811.
“Economic entity” is defined as “an organised grouping of resources which has the objective
of pursuing an economic activity, whether or not that activity is central or ancillary”: Reg.
3(2).
See: Tuitt v LB of Richmond [2022] IRLR 1035 (activities fundamentally the same); McTear
Contracts Ltd v Bennett [2021] IRLR 444 (Govaerts [2020] IRLR 639 principle (see below) on
transfer to a number of transferees can apply under Reg 3(1)(a); Grafe v Sudbrandenburger
GMBH [2020] IRLR 399 (CJEU ) (failure to take over substantial operating resources does not
preclude transfer); Siguenza v Valadolid [2018] IRLR 1056 (CJEU ) (absence of staff at time of
transfer but significant amount of equipment) ; Dodic v Banka Koper [2019] IRLR 938 (CJEU )
(transfer of intangible assets important); Nicholls v London Borough of Croydon [2018] IRLR
988 (public health team = economic activity or exercise of public powers); Mustafa v Trek
Ltd [2016] IRLR 326 (cessation of activities); Hyde Housing Association Ltd v Layton [2016]

IRLR 107 (multiple transferees); On “stable economic entity” see: Balfour Beatty Ltd v Wilcox
[2007] IRLR 63 & TGWU v Swissport (2007) ICR 1593.
On who is the transferor within a group of companies see: Albron Catering v FNV
Bondgenoten [2011] IRLR 76 (CJEU ).
“Resources” – covers employees as well as tangible and intangible assets.
On the need to retain organizational autonomy see: Klarenberg v Ferretron Technologies

[2009]IRLR 301(ECJ)
Service provision change –
Reg.3(1)(b)(i-iii)& 3(3) cover contracting out, contracting in and re-tendering and focus on
activities which cease to be carried out by one person but are carried out by others. See: ISS
Nv v Govaerts [2020] IRLR 639 (CJEU ) (transfer to a number of transferees in proportion to
task performed by worker concerned); Salvation Army v Bahi [2017] IRLR 410; Arch
Initiatives v Greater Manchester Mental Health Trust [2016] IRLR 406 (more than one
organisted grouping); Inex Ltd v Hodgkins [2016] IRLR 13 (effect of temporary lay off); BT
Management Services v Edwards [2015] IRLR 994 (permanently unable to return to work);
Rynda Ltd v Rhijnsburger [2015] IRLR 394 (C/A) (single employees = organized grouping);
Sage Ltd v O’Connell [2014] IRLR 428 (on intentions);); Hunter v McCarrick [2013]IRLR 26
(C/A)(change of contractor and client);
Reg.3(3)(a)(i) requires an “organised grouping of employees” with the “principal purpose” of

meeting one client’s needs. See: Tees Esk NHS Trust v Harland [2017] IRLR 486; Ottimo
Services Ltd v Duncan [2015] IRLR 806 (multiple clients).
Reg.3(3)(a)(ii) excludes activities carried out “in connection with a single specific event or
task of short-term duration”. See: ICTS UK Ltd v Mahdi [2016] IRLR 113 (on relevance of
subsequent events); Denton LLP v Kirwan [2012] IRLR 966;
Reg.3(3)(b): activities must not “consist wholly or mainly of the supply of goods for the
client’s use”. See: Prannu v King Ltd [2012]IRLR 193.
Public sector and not –for –profit transfers –
Reg.3(4)(a): Regs apply to “public and private undertakings engaged in economic activities
whether or not they are operating for gain”.

Reg.6(a): may be series of transactions see: * Metropolitan Resources Ltd v Churchill

Dulwich Ltd [2009]IRLR 700
Public administration –
Reg.3(5): “an administrative reorganisation of public administrative authorities or the

transfer of administrative functions between public administrative authorities is not a
relevant transfer”.
Note that “administrative functions” are not defined.
Effect on contracts of employment.
Reg.4(1): Transfers those employed by transferor immediately before the transfer who are
assigned to the relevant group of resources or employees. See: Salman v Castlebeck Care
Ltd [2015] IRLR 189 (successful appeal against dismissal after date of transfer); F & G
Cleaners v Saddington [2012] IRLR 892 (substantial change); Royal Mail v CWU [2009] IRLR
108 (on effect of a mobility clause); Celtec Ltd v Astley [2006] IRLR 635 (on time of transfer);
Millam v Print Factory [2007] IRLR 526 C/A (refusal to lift corporate veil) & G4S Ltd v Anstey
[2006] IRLR 588 (on effect of dismissal by transferor and reinstatement).
On Article 3 of Directive see: Scattolon v Ministero Dell ‘Istruzione [2011] IRLR 1120 (CJEU ).
Reg.2 states that “assigned” means “assigned other than on a temporary basis”.
Reg.4(3): protection also for those who would have been so employed had they not been
dismissed by reason of the transfer or for a reason connected with the transfer that is not
an economic, technical or organisational (ETO) reason.
See: Regent Ltd v Power [2008] IRLR 66 (C/A)(employee can take advantage of more
favourable term) and compare Jackson v Computershare (2008)IRLR 71 (C/A).
Varying terms and conditions:
Reg 4(4): variation void if sole or principal reason is the transfer.
Reg.4(5): the only variations that can be agreed between the transferee and the transferred
employees are those done for a reason unconnected with the transfer and those done for a
reason connected with the transfer that is an ETO reason entailing changes in the workforce
provided the employer and employee agree or the terms of the contract permit the
variation.

see: Ponticelli Ltd v Gallagher [2022] IRLR 1031(entitled to join equivalent share incentive
plan); Ferguson v Astrea Asset Management Ltd [2020] IRLR 577 (improved contract terms
void and EU abuse of law principle applied); Xerox Business Services Philippines Ltd v Zeb
[2018] IRLR 495 (variation must be agreed).
Reg 4(5A): changes in the workforce includes changes in the place of employment.
Reg 4(5B): variations allowed if incorporated from a collective agreement and variation
takes effect at least a year after date of transfer and rights and obligations “when
considered together, are no less favourable” to the employee than those which applied
before the variation.
Reg 4A: transfer does not tie transferee to future collective agreements if transferee is not a
participant in the collective bargaining.
Note special provisions apply in context of insolvency (see below)
Right to object: Reg.4(7)
Reg.4(8): transfer terminates the contract but employee not treated as dismissed(subject to
Reg.4(9)& (11))see: Capita Ltd v McLean [2008] IRLR 595.
Reg.4(9): where transfer involves or would involve “a substantial change in working

conditions to the material detriment” of the employees, s/he can treat contract as
terminated by dismissal. See DTI guidance & Abelio Ltd v Musse [2012]IRLR 360
Reg.4(11): above are without prejudice to right to accept a repudiatory breach and claim
constructive dismissal.
See: New ISG Ltd v Vernon (2008)IRLR 115
Reg 5: On the effect of collective agreements see: **Parkwood Leisure Ltd v Alemo-Herron
[2013]IRLR 744(ECJ) (dynamic clauses precluded).
Dismissals:
Reg.7(1) – automatically unfair where sole or principal reason is transfer itself or reason
connected with transfer that is not ETO one entailing changes in workforce. See: Hare Wines
Ltd v Kaur [2019] IRLR 555 (C/A); Manchester College v Hazel [2014] IRLR 392 (C/A);
Kavanagh v Crystal Palace FC [2104] IRLR 139 (C/A); Spaceright Ltd v Baillavoire [2012]IRLR
111(C/A)

Reg.7(2)(3) – potentially fair if sole or principal reason is an ETO reason entailing changes in
the workforce or sole or principal reason is unconnected to transfer. N.B. redundancy or
SOSR. See: Kavanagh v Crystal Palace(2000)Ltd [2013] IRLR 29; Meter U Ltd v Ackroyd [2012]
IRLR 367; Nationwide Building Society v Benn [2010] IRLR 922
Reg.7(4) – above apply irrespective of whether employees in question are assigned to the
organised grouping of resources that is or will be transferred.
Insolvency: Regs 8 & 9
Reg.8(3)–(5): certain liabilities towards the transferring employees which would otherwise
attach to transferee will be met by National Insurance Fund.
N.B. debts that fall outside the categories payable under the “relevant statutory
schemes”(see Reg.8(4)) will pass to the transferee.
See: Pressure Coolers Ltd v Molloy [2011] IRLR 630 & S of S v Slater (2007) IRLR 928.
Reg.8(7): Regs 4 & 7 do not apply where transferor is subject of bankruptcy or any
analogous proceedings that have been instituted with a view to liquidation of the
transferor’s assets and are under the supervision of an insolvency practitioner. See: FNV v
Heiploeg Seafood International [2023] IRLR 405 (CJEU) (‘ pre-pack’ procedure); Key 2 Law
Ltd v D’Antiquis Barke [2012]IRLR 212 (C/A) (TUPE applies to companies in administration) &
Oakland v Wellswood Ltd [2010] IRLR 82 (on relationship to Section 218(2)ERA 1996)
Reg.9: allows transferor, transferee or an insolvency practitioner to agree certain permitted

variations to contracts via “appropriate employee representatives” (see Reg.9(2))
Pensions: Reg.10
See Transfer of Employment (Pension Protection) Regs 2005 S.I.649 and Sections 257-8
Pensions Act 2004 – entitled to have occupational scheme provided by transferee.
However, note Reg.10(2): provisions other than those relating to old age, invalidity or
survivors’ benefits are not treated as part of the occupational pension scheme and Regs.4 &
5 above apply. See: Proctor & Gamble v Svenska Cellulosa [2012]IRLR 733 (right to be
considered for early retirement benefits transferred).
Notification of employee liability information by transferor:

Reg.11(1) – must be in writing or “a readily accessible form”.
Reg.11(2)(a)-(e) defines “employee liability information”.
Reg.11(3) – information must be accurate as at a specified date not more than 14 days
before the information is given to the transferee.
Reg.11(4): includes information about any employees whose dismissals are to be treated as
automatically unfair.
Reg.11(5): must notify changes in information.
Reg.11(6): information must be given at least 14 days before transfer unless special
circumstances (in which case, as soon as reasonably practicable).
Reg.11(7): information may be given in instalments and indirectly through a third party.
Reg.12(1): right to complain of failure to comply with Reg.11.
Reg.12(4): declaration plus just and equitable compensation based on loss and any
contractual agreement between transferor and transferee.
Reg.12(5): must be at least £500 per employee unless just and equitable to award lower
sum.
Reg.12(6): duty to mitigate loss.
Reg.12(7): provides for conciliation.
Duty to inform and consult representatives: Regs.13-16
WEEK 14 & 15: SUSPENSION, VARIATION AND BREACH OF CONTRACT. TERMINATION OF

EMPLOYMENT AT COMMON LAW
SUSPENSION:
See para 8 of ACAS Code on Disciplinary and Grievance and Procedures 2009.

a) Without pay:
Is there contractual authority? if not there is a breach of contract. Could suspension

constitute a dismissal at law? See McKenzie v Smith [1976] IRLR 345
Can an implied right to suspend be based on the presumed intention of the parties?
See now * McClory v Post Office [1993] IRLR 159 [1992] ICR 758.
What if a procedure has to be followed in event of suspension?
To what extent can it be said that in the context of industrial action there is an
implied agreement to suspend the contract? see Boxfoldia Ltd v NGA [1988] IRLR 383
b) With pay
Lawfulness depends on whether there is a duty to provide work. (see notes on

implied terms).
On impact of duty of trust and confidence see: Gogay v Herts County Council [2000] IRLR
703 (C/A).
On basic pay or average earnings? see Evans v Malley Ltd [2003] IRLR 156.
On suspension as a form of discipline: See City & Hackney Health Authority v NUPE [1985]
IRLR 252 (C/A).
When an employee is absent owing to illness but is being paid is his/her contract
suspended? See: Marshall v Sloan & Co [1981] IRLR 264
VARIATION:
To be lawful must be mutually agreed. Consent to change may express or implied, collective
or individual. Hence potential for implied acceptance by conduct e.g. remaining at work
after revised terms have been imposed. See: **Cox v Secretary of State for the Home
Department [2023] IRLR 679 (C/A); Abrahall v Nottingham City Council [2018] IRLR 628 (C/A)
(no agreement to vary); On agreement under protest see: Robinson v Tescom Corporation
(2008) IRLR 408.
On consent to unilateral variation see: Sparks v Department for Transport [2015] IRLR 642 (if
change not detrimental); Norman v National Audit Office [2015] IRLR 634; Andamas Ltd v

ChEU ng [2011] IRLR 104 (PC); Bateman v ASDA [2010] IRLR 270; Wandsworth B.C.v D'Silva
[1998] IRLR 193 (C/A).
On acceptance by conduct and custom/established practice see: Farnworth Ltd v Lacy

[2013] IRLR 198; Solectron Ltd v Roper [2004] IRLR 4 (EAT)
Unilateral variation without consent = breach of contract or repudiation. See: Security and
Facilities Division v Hayes [2001] IRLR 81 (C/A).
On non- acceptance of unlawful repudiation see * Boyo v Lambeth B.C. [1994] ICR 527
(C/A),1995 ILJ 353.
Note that employee acceptance of repudiation = constructive dismissal but may be fair. See
unfair dismissal (below).
BREACH OF CONTRACT:
On approaches to construction see: Sparks v Department of Transport [2015]IRLR 642 (on

the aptness for incorporation of a sickness absence management clause); Allen v TRW
Systems Ltd [2013] IRLR 699 (promise in employee handbook); Adams v British Airways
[1996] IRLR 574.
Options open to innocent party = waive, sue, or if serious breach may regard contract as at
an end.
On the application of ex turpi causa principle see AB v Chief Constable of X [2015]IRLR 284
(psychiatric injury and cocaine use)
On the application of the elective theory see: ***Societe Generale v Geys [2013] IRLR 122
(SC).
On affirmation see: Cook v MHSK Ltd [2009]IRLR 888 (C/A)
On part performance: See Ticehurst v British Telecom [1992] IRLR 219; ICR 383 (C/A); &
Wiluszynski v Tower Hamlets BC [1989] IRLR 279 (C/A), 1989 ILJ 241.
PRINCIPAL REMEDIES = DECLARATION, INJUNCTION, OR DAMAGES.
However, where these remedies do not provide an adequate response, an account of profits
may be appropriate: Attorney General v Blake [2001] IRLR 37 (H/L).

On declarations see: R v OFSTED [2011] ICR 1195 (C/A)
On refusal of injunction because damages would be adequate: see Avsar v Wilson James
[2021] IRLR 300.
On interlocutory relief see: Waste Managed Ltd v Wilce [2023] IRLR 767 (no interim
injunction); Veriton Advisers LLP v Jump Trading Ltd [2023] IRLR 787 (C/A)(no injunction but
order for speedy trial); Boydell v NZP Ltd [2023] IRLR 572 (C/A); Rayner v Barnet NHS Trust
[2022] IRLR 296;
On final injunctions: see *USDAW v Tesco Ltd [2022] IRLR 844 (C/A)
On springboard injunctions see: Amob Ltd v Smith -Hughes [2022] IRLR 975; Aquinas
Education Ltd v Miller [2018] IRLR 518;
On injunctions to: enforce negative covenants see: D v P [2016] IRLR 355 (C/A); to restrain
‘hire and fire’ see USDAW v Tesco [2022] IRLR 407;
On suspension see: Smo v Hywel Dda University Health Board [2021] IRLR 273; Avsar v
James Ltd [2021] IRLR 300; Ardron v Sussex NHS Trust [2018] IRLR 917; Harrison v Barking
NHS Trust [2021] IRLR 62.
On restraining an employee during “garden leave” see: Faieta v ICAP Management Ltd
[2018] IRLR 227; Symbian Ltd v Christensen [2001] IRLR 77 (C/A)
On specific performance see Brodie (1998) ILJ 37 & Powell v LB of Brent [1987] IRLR 466
(C/A). Note also Section 16 TULRA 1974 - employees cannot be compelled to work. Compare
re-employment as a remedy for unfair dismissal.
On the measure of damages see: Morris -Garner v One Step Ltd [2018] IRLR 661 (SC)
(‘negotiating damages’ based on hypothetical fee for release from contract); Gebremariam v
Ethiopian Airlines [2014] IRLR 354; Monk v Cann Hall School [2013] IRLR 732 (on Johnson
exclusion zone) ** Edwards v Chesterfield NHS Trust [2012]IRLR 129 (SC); Horkulak v Cantor
Fitzgerald [2004] IRLR 842 (C/A); McCabe v Cornwall County Council [2004] IRLR 733 (H/L).
On liquidated damages and genuine pre-estimate of loss see: Tullett Brebon Ltd v El-Hajjali
[2008] IRLR 760; Murray v Leisureplay plc [2005] IRLR 946 (C/A)
On stigma damages see BCCI v Ali (No.3) [2002] IRLR 460 (C/A)
On mitigation see: Cerberus Ltd v Rowley [2001] IRLR 160 (C/A)
On penalty clauses see: Giraud UK v Smith [2000] IRLR 763

On the impact of statutory and common law illegality see: Okedina v Chikale [2019] IRLR 905
(C/A)
1) In what circumstances could suspension with pay amount to a breach of contract?
2) Does suspension without pay always amount to a breach of contract?
Could a contract of employment include a term permitting unrestrained unilateral

variation?
Why are employees not normally sued when they act in breach of contract?
5) Can an employee argue that there has been no repudiation because the refusal to
perform a task was based on a bona fide belief that it was outside the scope of the
contract? see Blyth v Scottish Liberal Club [1983] IRLR 245 and compare Brown v JBO Ltd
[1993]IRLR 568.
6) If Fahad's employer demotes him without contractual authority but Fahad decides to
work in the new job rather than be unemployed, can he still claim damages for breach of
contract? see *Rigby v Ferodo [1987] IRLR 516 (H/L) & Burdett Coutts v Herts CC [1984] IRLR
91 (1984) ILJ 177.
TYPES OF TERMINATION - RESIGNATION, CONSENSUAL, FRUSTRATION, EXPRESS AND

CONSTRUCTIVE DISMISSAL, SUMMARY AND WRONGFUL DISMISSAL.
VOLUNTARY RESIGNATION:
See: Kwit -Fit Ltd v Lineham [1992] IRLR 156
On threat of dismissal see: Sandhu v Jan de Rijk [2007] IRLR 519 (C/A))
On agreements to vary notice of termination see: * Butcher v Surrey County Council [2020]
IRLR 601

TERMINATION BY MUTUAL AGREEMENT:
See: Birch v University of Liverpool [1985] IRLR 165
On automatic termination clauses and Section 203 ERA see:
Igbo v Johnson Matthey Ltd [1986] IRLR 215.
DISCHARGE BY PERFORMANCE:
see Brown v Knowsley Borough Council [1986] IRLR 102 and note the impact of Fixed Term
Contract Regs 2002( see above)
FRUSTRATION:
Performance of contract has become unlawful or events make it physically impossible for
contract to be performed or where no physical impossibility, there has been such a change
to destroy the whole object of the contract.
We are primarily concerned with sickness which leads to incapacity. Issue often arises in
unfair dismissal cases since frustration leads to AUTOMATIC TERMINATION, ie there is no
dismissal as such. (See Section 95 ERA 1996 below).
NOTCUTT v UNIVERSAL EQUIPMENT LTD [1986] IRLR 218, MLR 785: the doctrine of
frustration could apply to a periodic contract of employment determinable by short notice.
On prison sentence as a potentially frustrating event: see SHEPHERD LTD v JERROM [1986]
IRLR 358. On the impact of bail conditions see: Four Seasons Ltd v Maughan [2005] IRLR 324.
CONVERFOAM LTD v BELL [1981] IRLR 195 (EAT): a contract which is still capable of being
performed but becomes subject to an unforeseen risk is not frustrated. Frustration is
produced by events happening not by the risk of such events. Here risk of second heart
attack. See now WILLIAMS v WATSON LTD [1990] IRLR 164:
On the possible effect of arrangements after frustration has occurred see: Sharp Ltd v
McMillan [1998] IRLR 632
The following principles are relevant to the application of the doctrine of frustration in the
event of illness:

First, the courts must guard against too easy an application of the doctrine, especially when
redundancy occurs and also when the true situation may be a dismissal by reason of
disability. Second, although it is not necessary to decide that frustration occurred on a
particular date, an attempt to decide the relevant date may help to determine whether it is
a true frustration situation. Third, the factors set out below may help to decide the issue by
pointing in one direction or another:
1 length of previous employment
2 how long it was expected the employment would continue
3 the nature of the job
4 the nature, length and effect of illness of disabling event
5 the need of the employer for the work to be done, and the need for a replacement
to do it
6 the risk to the employer of acquiring obligations to the replacement employee
7 whether wages have continued to be paid
8 the acts and statements of the employer in relation to the employment, including
the dismissal of, or failure to dismiss, the employee
9 whether in all the circumstances a 'reasonable' employer could have expected to

wait any longer
The terms of the contract as to sick pay if any
a consideration of the prospects of recovery
Fourth, the party alleging frustration should not be allowed to rely on the frustrating event
if was caused by that party's fault.
On an occurrence provided for by the contract see: Villella v MFI Ltd [1999] IRLR 468
Note also the potential impact of the Disability Discrimination Act 1995. See: Warner v
Armfield Retail Ltd [2014] ICR 238 (on duty to make reasonable adjustments)
EXPIRY OF LIMITED TERM CONTRACTS: Section 95(1)b & 136 (1)b ERA
See also Fixed Term Contract Regs 2002

EXPRESS DISMISSAL: Section 95 (1)
Note problems caused by-
successful internal appeal: Marangakis v Iceland Ltd [2023] IRLR 140 (reinstatement).
lack of communication: on dismissal by conduct see E.London NHS Trust v O’Connor [2020]
IRLR 16; Sandle v Adecco Ltd [2016] IRLR 941 (agency worker not dismissed).
lesser penalty being substituted on appeal: Roberts v West Coast Trains.[2004] IRLR 788
(C/A)
ambiguous words: Tanner v Kean [1978] IRLR 110
"heat of the moment" resignations: Sothern v Charlesly [1981] IRLR 278
CONSTRUCTIVE DISMISSAL: Section 95 (1)
See: Craig v Abellio Ltd [2022] IRLR 596 (last straw argument); Gordon v Pierce Ltd [2021]
IRLR 266 (using grievance procedure does not amount to affirmation); Hall v London Lions
[2021] IRLR 17 (repudiation of fixed term contract); *Williams v Alderman Davies School
[2020] IRLR 589 (resigning partly in response to a fundamental breach); Brown v Neon Ltd
[2019] IRLR 30 (unwarranted findings without investigation); Kaur v Leeds Teaching
Hospitals [2018] IRLR 833 C/A (on effect of a repudiatory breach after contract affirmed);
Patel v Folkestone Nursing Ltd [2018] IRLR 924 C/A (on effect of a serious breach in handling
a contractual appeal); Ishaq v Royal Mail [2017] IRLR 208 (need for causal connection
between breach of contract and resignation); Grewals Ltd v Koo Seen Li [2016] IRLR 638
(Privy Council) (relevance of intention to dismiss); Atkinson v Community Gateway
Association [2015] IRLR 834; Elsevier Ltd v Monro [2014] IRLR 766; Cockram v Air Products
[2014] IRLR 672 (on affirmation); McNeil v Aberdeen Council [2014] IRLR 113 (effect of
employee’s prior breach); Leeds Dental Team Ltd v Rose [2014] IRLR 8 (employer’s
subjective intention irrelevant); Finn Ltd v Holliday [2014] IRLR 102 (on garden leave and
reputational damage); McBride v Falkirk FC [2012]IRLR 22 (changed term); Watson v
University of Strathclyde [2011] IRLR 458 (bias in appeal panel);**Tullet Prebon Plc v BGC
Brokers [2011]IRLR 420 (C/A)(forward contracts);*Buckland v Bournemouth University
[2010]IRLR 445 (C/A) (unable to cure breach); Amnesty International v Ahmed [2009]IRLR
884 (reasonable and proper cause for discrimination);
On CONSTRUCTIVE RESIGNATION see: LTE v Clarke [1981] IRLR 166 (C/A).

On OPERATION OF LAW see: Rose v Dodd [2005] IRLR 977 (C/A)(effect of Law Society
intervention).
On DEATH of either party see: Section 206 ERA 1996
1. How desirable is it to apply the doctrine of frustration to contracts of employment? see

Williams v Watsons Ltd [1990] IRLR 164.
Is the distinction between an employer termination and a constructive dismissal always

clear? see Alcan Extrusions Ltd v Yates [1996] IRLR 327
TERMINATION BY NOTICE
Usually either party entitled to terminate by giving notice. NB fixed-term contracts.
In what circumstances might an employer's right to give notice be constrained?
2. Notice and warnings of termination must be distinguished see: Rai v Somerfield Ltd
[2004] IRLR 124; ICL v Kennedy [1981] IRLR 28
3. Notice once given cannot be unilaterally withdrawn: Willoughby v CF Capital plc

[2011]IRLR 985 (C\A)
4. LENGTH OF NOTICE:
COMMON LAW - in absence of express or implied term required to give a reasonable period.
What is reasonable? Depends on all the circumstances of the relationship, e.g service,
seniority, difficulty in obtaining alternative employment.
b) STATUTORY MINIMUM PERIODS - see Section 86 ERA 1996
5. WAGES DURING NOTICE: see Sections 87-89 ERA 1996. On Section 87(4) see Scotts Ltd
v Budd [2003] IRLR 145

On PAYMENTS IN LIEU see Section 86(3) ERA 1996 and: Cavenagh v Evans Ltd [2012] IRLR
679 (C/A); Delaney v Staples [1992] IRLR 191 (H/L) On tax see: EMI Group v Coldicott [1999]
IRLR 630 (C/A)
On GARDEN LEAVE: see William Hill v Tucker [1998] IRLR 313
DATE OF TERMINATION:
COMMON LAW - is the day notice expires or day wages in liEU accepted.
THE EFFECTIVE DATE OF TERMINATION –
Section 97 ERA: Effective date is when notice expires even though employee doesn't work
out the notice. If during the notice the employee is summarily dismissed the dismissal date
is that of the summary dismissal. Octavius Atkinson v Morris [1989] IRLR 158 (C/A).
On the employee’s knowledge of summary dismissal see: Kirklees MBC v Radecki [2009]
IRLR 555 (SC)
On the opportunity to read a dismissal letter see: Gisdacyf v Barratt [2010] IRLR 1073 (SC)
On repudiation terminating contract at once see: Meaker v Cyxtera Technology Ltd [2023]
IRLR 365.
On date agreed by parties see: Fitzgerald v University of Kent [2004] IRLR 300 (C/A) &
Palfrey v Transco plc [2004] IRLR 916
On effect of appeals see: Rabess v London Fire etc Authority [2017] IRLR 147;
On the effect of an employee's counter-notice: See Thompson v GEC [1991]
IRLR 448

Section 97(2): When proper notice not given by the employer add on statutory entitlement.
See Lancaster & Duke Ltd v Wileman [2019] IRLR 112
Section 111 (3): Can apply to tribunal before notice expires.
C. THE RELEVANT DATE OF TERMINATION - Section 135 ERA: mirrors Section 97 except
where counter -notice or trial period (Section 64).
Section 136(3)(4): anticipating expiry of employer's notice -obligatory period.
Section 142(3): If employee refuses to withdraw notice tribunal has discretion to award.
Section 145(3): Dismissal by employer but relevant date is when employee's notice expires.
On moving the relevant date by agreement see Mowlem Ltd v Watson [1990] IRLR 500
STATEMENT OF REASONS FOR DISMISSAL: Section 92- 3 ERA
See: Harvard PLC v Younghusband [1990] IRLR 17, Haigh Hair Design v Seed [1990] IRLR 175.
1. In what circumstances might an employer's right to give notice be constrained?
2. In what circumstances might an employer wish to rescind a notice of termination?
3. In what circumstances can an employee claim that being put on 'garden leave' amounts
to a breach of contract?
4. Should the parties to a contract of employment be permitted to agree a date of

termination for statutory purposes?
5. Should Parliament require written reasons to be supplied whenever there is a dismissal?
SUMMARY DISMISSAL:
a) Termination without notice is ordinarily a breach of contract. On waiving the right to

notice see: Baldwin v British Coal [1995] IRLR 139.

b) Right to dismiss summarily arises from express or implied terms in the contract.
On the contractual right to a payment in liEU and subsequently discovered misconduct see:
Cavenagh v Evans Ltd [2012] IRLR 679 (C/A)
WHAT CONDUCT JUSTIFIES SUMMARY DISMISSAL?
SOME PRINCIPLES:
Conduct must be a breach of an important term of the contract. What terms are
important? Depends on the nature of the business and the employee's position in it. See:
McCormack v Hamilton Academical FC [2102]IRLR 108
Certain implied terms are always regarded as important, eg stealing or damaging property,
obedience to reasonable orders, drunkenness.
On managerial negligence see: Adesokan v Sainsburys Ltd [2017] IRLR 346 (C/A).
On abuse of position as director see: Milanese v Leyton Orient FC [2016] IRLR 601
On misuse of confidential information see: Farnan v Sunderland FC [2016] IRLR 185
On emailing of pornographical images: see Williams v Leeds Utd FC [2016] IRLR 315
On deliberate and persistent failure to follow mandatory instructions see: Dunn v AAH Ltd
[2010]IRLR 709 (C/A).
On gross negligence and contract: See DIETMAN v LONDON BOROUGH OF BRENT [1988]
IRLR 299 (C/A). Also Hamilton & Argyll & Clyde Health Board [1993] IRLR 99.
2. Does the employee have reasonable justification for his/her conduct? See LAWS
v LONDON CHRONICLE (1959) 1WLR 698 conflicting orders therefore disobedience
excusable. Compare: Farrant v Woodroffe School [1998] IRLR 176 where lawfulness of
employer's action not determinative of fairness.
Single acts of misconduct are less likely to justify summary dismissal than a pattern.
Compare PEPPER v WEBB [1964] 1WLR 514 with WILSON v RACHER [1974] ICR 428 IRLR 114

4 Employer more likely to be entitled to dismiss summarily for misconduct within the
workplace than outside it.
5 Test is the nature of the misconduct itself rather than what were the consequences?
See Denco Ltd v Joinson [1991] IRLR 63
6 Decisions of the courts in other cases are generally of little relevance.
On relationship with duty of trust and confidence see: Neary v Dean of Westminster 1999]
IRLR 288
On relevance of the employer’s motive see Williams v Leeds Utd [2015] IRLR 383;
Additional points:
- if the employer does not invoke his/her right to end the contract within a reasonable
period he will be taken to have waived his right and will only be able to seek damages. See
Welsh v Cowdenbeath FC [2009] IRLR 362.
- for statutory purposes, dismissal without notice must be accepted even though it is not
lawful: SANDERS v NEALE [1974] IRLR 236. A wrongful dismissal does not terminate the
contract until the employee has accepted the repudiation: RIGBY v FERODO LTD [1987] IRLR
516 (H/L)
- at common law, the employer is not required to provide the employee with a reason for
dismissal but see now Section 92 ERA 1996.
WRONGFUL DISMISSAL:
On purported demotion see: Smith v Trafford Housing Trust [2013]IRLR 86 (Facebook

postings).
Basic remedy is damages.

Specific performance normally not available: see Section 236 TULRCA 1992 & Brodie (1998)
ILJ 37
On declarations see: Richards v IP Solutions [2017] IRLR 133
However injunctions have been issued to restrain a breach. See Jones v Gwent CC [1992]
IRLR 521 and Robb v LB of Hammersmith [1991] IRLR 72.
MEASURE OF DAMAGES: (see also remedies for breach of contract above).
Recover for such loss as arises naturally from the breach and for any loss which was
reasonably foreseeable by the parties as being likely to arise from the breach. Thus normally
only recover wages lost. See now: Edwards v Chesterfield NHS Trust [2012]IRLR 129 (SC)
On ‘least burdensome’ performance rule see: Mackenzie v AA Ltd [2022] IRLR 985 (C/A).
On the loss of right to claim unfair dismissal see: Harper v Virgin Net Ltd[2004] IRLR 390
(C/A)
On the impact of disciplinary procedures see *Janciuk v Winerite Ltd [1998] IRLR 63 & Boyo
v Lambeth B.C. [1994] ICR 527 (C/A),1995 ILJ 353
Note also that an employee may be compensated for a loss suffered as a result of being
deprived of a right to exercise options under a share option scheme: see Chapman v
Aberdeen Construction Group [1991] IRLR and Micklefield v Sac Ltd [1990] IRLR 218.
On right to salary increase and bonuses during notice period see: Clark v BET Plc [1997] IRLR
348
DEDUCTIONS:
a) employees have a duty to mitigate (ie seek other employment). However, there is no
duty to mitigate where the contract provides for payment in liEU see: Hutchings v Coinseed
Ltd [1998] IRLR 190 (C/A)
b) if damages less than £30,000 income tax not deducted. See SHOVE v DOWNS
SURGICAL [1984] IRLR 17 (QBD) - damages should reflect the fact that tax is payable.
National insurance contributions deducted.
c) job seekers allowance (unless employee worse off than if contractual obligations
property performed): WESTWOOD v S OF STATE [1984] IRLR 209 (H/LORDS).

d) on the effect of payments under an occupational pension scheme see Hopkins v Norcross
plc [1994] IRLR 18.
EMPLOYMENT TRIBUNAL OR ORDINARY CIVIL COURT?
Note that the county court, High Court and employment tribunals have jurisdiction to hear
breach of contract claims: see below.
Some advantages of using the ordinary courts:
no financial limit on claims.
certain procedural devices are available e.g. summary judgment on affidavit evidence and
interim payments.
legal aid available (but note risk of costs being awarded).
Some advantages of using employment tribunals
speedier;
related claims can be heard together (e.g. unfair dismissal);
- counter -claims are more restricted;
- costs unlikely to be awarded.
Note that proceedings are now to be heard by a judge alone unless a judge directs
otherwise: Section 28(2) –(8) ETA 1996
EMPLOYMENT TRIBUNALS EXTENSION OF JURISDICTION ORDER 1994 S.I.1623
The jurisdiction of employment tribunals extends to breach of contract claims. However,

tribunals can only deal with claims which have arisen or are outstanding at the end of
employment.
See: Peninsular Ltd v Sweeney [2004] IRLR 49(EAT); Miller Ltd v Johnston [2002] IRLR 386 &
Sarker v S.Tees NHS Trust [1997] IRLR 328)

Section 3(2) ETA 1996: the claim must be for -
i) damages for breach of a contract of employment or any other contract connected with
employment (see Rock-It Cargo Ltd v Green [1997] IRLR 581);or
ii) a sum due under such a contract; or
iii) recovery of any sum in pursuance of any enactment relating to the terms or performance
of such a contract.
[Note that such a claim does not have to be combined with other tribunal proceedings.]
The maximum that can be awarded in respect of claims relating to the same contract is
£25,000. On recovering sums in excess of this amount see: Fraser v Hlmad [2006]IRLR 687
(C/A).
The following types of claim are excluded:-
a) damages or sums due in respect of personal injuries
b) breach of a term imposing an obligation of confidence
c) breach of a covenant in restraint of trade
d) breach of a term relating to intellectual property
e) breach of an obligation in connection with the provision of living accommodation
Note employers can bring proceedings arising out of a contract only if the employee has first
made a contract claim.
Procedure:
Subject to a test of reasonable practicability
- an employee's claim must be brought within three months of the effective date of
termination or,where there is no such date,within three months of the last day s/he worked
See: Capek v Lincolnshire County Council [2000] IRLR 590 (C/A)

- an employer's claim must be brought when the employee's contract claim is still before the
tribunal and has not been settled or withdrawn.It must be presented within six weeks of
receiving a copy from the tribunal of the employee's contract claim.
Claim will be heard by chair alone unless s/he decides that a full tribunal should hear it:
section 4(3)(d) ETA.
Section 18(1)(e): conciliation is available. However, parties can reach their own agreement
without meeting the requirements of compromise agreements.
JUDICIAL REVIEW:
Is there a sufficient element of public law?
On keeping claims within one set of proceedings see: R v OFSTED & others [2011] IRLR 679
(C/A).
On the right to legal representation see: R v Governors of X School [2010]IRLR 210 (C/A) & R
v Middlesbrough [2010]IRLR 699.
On the need for judicial decision- makers to be impartial see: R v Chief Constable of
Merseyside ex parte Bennion [2001] IRLR 442(C/A)
REMEDIES: see Section 31 Supreme Court Act 1981
1. Assess the value of the remedies available to a person who has been wrongfully
dismissed?
2. In what circumstances can a dismissed employee claim judicial review?
WEEK 16, 18 & 19: UNFAIR DISMISSAL AND REDUNDANCY

UNFAIR DISMISSAL
EXCLUSIONS AND QUALIFICATIONS
Section 230 ERA: Employee.
On unenforceability of a contract because of illegality see: **Robinson v Qasimi [2021] IRLR

744 (C/A); Okedina v Chikale [2019] IRLR 905 (C/A);
On employment in Great Britain see: Hamam v British Embassy in Cairo [2020] IRLR 570
(need for close connection); Jeffery v British Council [2016] IRLR 935 (expatriate); Olsen v
Gearbulk Ltd [2015] IRLR 818; Lodge v Dignity in Dying [2015] IRLR 184; Ravat v Halliburton
Services [2012]IRLR 315(SC); Diggins v Condor Ltd [2009] ICR 609 (peripatetic based in GB);
BlEU se v MB Transport (2008) IRLR 264;
Section l99 ERA: Crew of fishing vessel.
Sections 210 -219: Continuity (see notes above). Note PRESUMPTION IN
EMPLOYEES FAVOUR. Also Reg 5 of Transfer of Undertaking (P of E) Regs 1981.
Section 108 ERA: Continuously employed for two years but note that Section 108(3)4 apply
in specified circumstances.
Section 110 ERA: Excluded procedure agreement.
[See now Section 44 EA 2002 – S of S can add conditions].
On national security see Section 10(1) of Employment Tribunals Act 1996 and impact of HRA
1998 see: B v BAA [2005] IRLR 927
Section 111 ERA: Submit claim within 3 months unless Section 111(2)(b) applies. See: BLISS v
Fellows [2023] IRLR 528 (solicitor’s negligence); Cynet Ltd v Britton [2022] IRLR 906; Rabess
v London Fire Authority [2017] IRLR 147 (effect of internal appeal); Wang v Keele
University[2011] IRLR 542 (on when notice starts to run); McMaster v Antrim BC [2011] IRLR
235 (NIC/A); Radakovits v Abbey National [2010] IRLR 307 (C/A) (a question of jurisdiction);
Cambridge & Peterborough Trust v Crouchman [2009] ICR 1306 (ignorance of fundamental
fact);
Section 203 ERA: Agreement through conciliation officer and "settlement agreements" [see
also below] .Alma Ltd v Bonner [2011]IRLR 204

On ostensible authority see: Freeman v Sovereign Chicken [1991] IRLR 408.
Sections 191,200 ERA: Crown employees are covered but not the police.
On national security see: B v BAA (2005) IRLR 927
AUTOMATICALLY UNFAIR REASONS:
1. Where no reason given (see also Section 92).
Trade union membership or activities: Section 152 TULRCA 1992. See: Cadent Ltd v Singh
[2020] IRLR 86 - motivation of manager attributed to the employer. Section 161 TULRCA
1992 deals with the interim relief procedure: see Serco v Dahou [2015] IRLR 30
Selection for redundancy on "inadmissible" grounds: Section 105 ERA 1996 (includes
pregnancy, health and safety, pension trustees, employee reps and assertion of statutory
rights, national minimum wage, protected disclosures, working time, recognition etc). See
also Section 153 TULRCA 1992 on union victimisation: O'Dea v ISC Chemicals [1995] IRLR 599
& Dundon v GPT Ltd [1995] IRLR 403.
Equality Act 2010 in relation to disability, sex, race etc.
Rehabilitation of Offenders Act 1974, Section 4(3)(b).
6.* Section 99 ERA deals with leave for family reasons. [see Schedule 7 E.Act 2002 on
adoption and paternity leave]. Paquay v Minne SRPL (2008) ICR 420 (ECJ).
7. Dismissal of employee because of relevant transfer unless there was an economic,

technical or organizational reason entailing changes in the workforce. See Transfer of
Undertakings (Protection of Employment) Regulations 2006 Reg.7(1) – automatically unfair
where sole or principal reason is transfer itself or reason connected with transfer that is not
ETO one entailing changes in workforce. See: Hare Wines Ltd v Kaur [2019] IRLR 555;

Manchester College v Hazel [2014] IRLR 392 (C/A); Kavanagh v Crystal Palace FC [2104] IRLR
139 (C/A);
Reg.7(2)(3) – potentially fair if sole or principal reason is an ETO reason entailing changes in
the workforce or sole or principal reason is unconnected to transfer. N.B. redundancy or
SOSR. See: Kavanagh v Crystal Palace(2000)Ltd [2013] IRLR 29; Meter U Ltd v Ackroyd [2012]
IRLR 367; Nationwide Building Society v Benn [2010] IRLR 922
Reg.7(4) – above apply irrespective of whether employees in question are assigned to the
organised grouping of resources that is or will be transferred.
* Section 100 ERA: certain health and safety grounds. See: Boesi v Asda Stores Ltd [2023]
IRLR 625; Rodgers v Leeds Laser Ltd [2023] IRLR 222 (C/A) (Covid fears); Sinclair v Trackwork
Ltd [2021] IRLR 557; Castano v LGT Ltd [2020] IRLR 417 (claimant not designated as
required);
* Section 101A ERA: working time dismissals. McLean v Rainbow Homeloans Ltd [2007] IRLR
14
10 * Section 103 ERA: employee reps or candidates.
11 * Section 101 ERA: deals with protected and opted out workers
12* Section 102: performing functions as an employee trustee of a pension scheme.
13* Section 103: protects those involved in elections for appropriate representatives.
14* Section 103A: protected disclosures. See: McDermott v Sellafield Ltd [2023] IRLR 639; *
Kong v Gulf International Bank Ltd [2022] IRLR 854 (C/A) (on separability); Edinburgh Media
Ltd v Purnell [2021] IRLR 871 (detriment after employment ceased); Dobbie v Felton [2021]
IRLR 679 (disclosure relevant to one person could be in the public interest); Simpson v
Cantor Fitzgerald [2021] IRLR 238 (C/A); Gawlik v Liechenstein [2021] IRLR 426 (ECrHR);

Jesudason v Alderhey Trust [2020] IRLR 374 (C/A) (detriment does not depend on
employer’s purpose or motive); Royal Mail v Jhuti [2019] SC; Gilham v Ministry of Justice
[2019] SC; Ibrahim v HCA Ltd [2020] IRLR 224 (C/A) (on two -stage approach in Chesterton
case); Tiplady v City of Bradford MDC [2020] IRLR 230 (C/A); Timis v Osipov [2019] IRLR 52
(C/A) (claim v co-worker for being a party to decision to dismiss); Kilraine v London Borough
of Wandsworth [2018] IRLR 846 (C/A) (information/allegation intertwined); Small v
Shrewsbury and Telford NHS Trust [2018] IRLR 889 ( C/A) (stigma damage to be considered);
Royal Mail Group v Jhuti [2018] IRLR 251 (C/A) (line manager’s motivation to be considered);
***Chestertons v Nurmohammed [2017] IRLR 837 (public interest test); * Beatt v Croydon
NHS Trust [2017] IRLR 748 (C/A) (employer knowledge that disclosure protected); * Day v
Health Education England [2017] IRLR 623 (C/A) (claim against two employers); Eiger
Securities LLP v Korshunova [2017] IRLR 115; McTigue v University Hospital Bristol [2016]
IRLR 742 (both supplier and end user can be the employer); Roberts v Wilsons LLP [2018]
IRLR 104 (C/A) (discretion on compensation); Morgan v Royal Mencap Society [2016] IRLR
428 (health and safety complaints); Kilraine v London Borough of Wandsworth [2016] IRLR
422 (information/allegation intertwined); Day v Lewishham and Greenwich NHS Trust [2016]
IRLR 415 (not a worker);
15. *Section 104 ERA: the assertion of a statutory right. See: Simoes v De Sede UK Ltd [2021]
IRLR 974 (instruction to breach Working Time Regs); Spaceman v ISS Ltd [2019] IRLR 512
(insufficient to allege a future breach).
16* Section 104A: national minimum wage dismissals
17* Section 104C: on flexible working.
18.* Dismissal for asserting rights under the Part-time Workers, Fixed –term Employees and
Agency Workers Regs.
19. Political opinions or affiliations.
(* = these reasons require no service qualification and no age limit applies.)

1. Should there be a qualifying period of service for claiming unfair dismissal?
2. Should late claims be accepted by tribunals if it would be "just and equitable" to do so?
POTENTIALLY FAIR REASONS: Section 98(1-2) ERA:
Employer to show.
Not necessary for reason to be correctly labelled at the time of dismissal (but see Section
92),although reason must have existed and been known at the time of dismissal.
See also: ASLEF v Brady [2006] IRLR 576: Wilson v Post Office [2000] IRLR 834 (C/A);
NO JURISDICTION:
(unless protected industrial action). See Section 237 & S238 TULRCA 1992 & Sehmi v Gate
Gourmet [2009] IRLR 807
CAPABILITY: Section 98(2)a, Section 98(3) ERA
Competence:
Where reason relates to unsatisfactory work performance as a general rule it will be

considered unreasonable to dismiss without giving the employee a clear warning and an
opportunity to improve.
On distinguishing misconduct from incompetence see: Sutton & Gates v Boxall [1978] IRLR
476
On ill -health:
See: O’Brien v Bolton Academy [2017] IRLR 547 (C/A) (on relationship with disability
discrimination); * BS v Dundee City Council [2014] IRLR 131 (Crt Sess); First West Yorks Ltd v
Haigh (2008) IRLR 182; and Edwards v Hanson School [2001] IRLR 733 (relevance of
employer’s treatment contributing to ill-health).

Note the possiblity of disability discrimination under Equality Act 2010. On disability –
related absences see: Royal Liverpool NHS Trust v Dunsby (2006) IRLR 351
CONDUCT:
Section 98(2)b & ACAS CODE ON DISCIPLINARY AND GRIEVANCE PROCEDURES 2015 and
ACAS Guide 2016.
On frivolous and vexatious grievances see: Hope v BMA [2022] IRLR 206.
On reputational damage see: K v L [2021] IRLR 916.
On the confidentiality of salary information see: Jagex Ltd v McCambridge [2020] IRLR 187
On physical violence and lack of a zero tolerance policy see: Clark Ltd v Spoor [2017] IRLR
500
On non-disclosure of close relationship with a criminal see: A v B [2016] IRLR 779 (C/A)
On actions away from work see: CJD v Royal Bank of Scotland [2014] IRLR 25 (Crt Sess);
On objective and subjective dishonesty see: John Lewis plc v Coyne [2001] IRLR 139.
On possible action for defamation see: Friend v CAA [1998] IRLR 253 (C/A)
On reasonableness of disobedience see: Farrant v Woodroff School [1998] IRLR
176
On agreement to work on varied terms see: Robinson v Tescom Corporation (2008) IRLR
408.
On access to computers see Denco Ltd v Joinson [1991] IRLR 63.
On status of the BURCHELL test: Salford Royal NHS Trust v Roldan[2010]IRLR 721
(C/A) & Sainsbury’s Ltd v Hitt [2003] IRLR 23 (C/A)
On "blanket" dismissals see Frames Snooker v Boyce [1992] IRLR 472.
On relevance of appeals against warnings: see Tower Hamlets H.A.v Anthony

[1989] IRLR 394 (C/A).
On the relevance of previous warnings see: Wincanton Group v Stone [2013]
IRLR 178
On warnings relating to different conduct see Auguste Noel Ltd v Curtis [1990]
IRLR 326.
On the effect of an expired warning see: *Airbus Ltd v Webb [2008] IRLR 309
(C/A)
On criminal activity see: X v Y [2003] IRLR 561 (EAT);Scottish Co-op v
Cullion[1991] IRLR 261 & Securicor Ltd v R[1994] IRLR 633.
On reliance on police statements see: Rhondda CBC v Close [2008] IRLR 869
On the right to cross-examine see: Rhondda CBC v Close [2008] IRLR 869 & Santamera v
Express Cargo Ltd [2003] IRLR 273(EAT).
On preserving the anonymity of witnesses see: Ramsey v Walkers Food Ltd
[2004]IRLR 754
On alternative employment: see P v Notts County Council [1992] IRLR 363(C/A)
and Hamilton v Argyll & Clyde Health Board [1993] IRLR 99.
On consistency of treatment note impact of Section 98(4) and see: Paul v
E.Surrey D.H.A.[1995] IRLR 305 (C/A)
On admitted dishonesty and Section 98(4) see: Whitbread plc v Hall [2001] IRLR 275.
REDUNDANCY: Section 98(2)c ERA, Section 153 TULRCA 1992, Section 98(4) ERA.(See also
ACAS Advisory Booklet on Handling Redundancies).
"Same undertaking" - department or whole company? "Positions similar" - same grade? See
now: O'Dea v ISC Chemicals [1995] IRLR 599.
On Section 98(4) see: Mogane v Bradford NHS Trust [2023] IRLR 44 (Williams v Compair case
should apply to all redundancy situations); Gwynedd Council v Barratt [2021] IRLR 1028
(C/A); Aramak Ltd v Fernandes [2021] IRLR 861; Capita Hartshead Ltd v Byard [2012] IRLR

814 (redundancy pool); Morgan v Welsh RFU [2011]IRLR 376 (reorganization and new roles);
Watkins v Crouch [2011] IRLR 382 (“overall requirements of the business” = statement of
the obvious); Pinewood Repro Ltd v Page [2011]ICR 508 (need for adequate information);
Lambe v 186K Ltd [2005] ICR 307 (C/A); *Elkouil v Coney Island [2002] IRLR 174 (EAT);
Whiffen v Milham School [2001] IRLR 468 (C/A)(indirect sex discrimination); Lloyd v Taylor
Woodrow [1999] IRLR 782 (curing defect on re-hearing); * Langston v Cranfield University
[1998] IRLR 172
On consultation with unions and individuals see: Mugford v Midland Bank [1997]IRLR 208
See ACAS Advisory Booklet on alternatives to compulsory redundancy
Should LIFO be based on cumulative or continuous service? Should it apply in a particular

section, throughout a department, works or whole company?
STATUTORY BAN: Section 98(2)d
For example, loss of driving licence or permission to work. See: Immigration, Asylum and
Nationality Act 2006 and Baker v Abellio Ltd [2018] IRLR 186.
On relationship with SOSR (below) see: Hounslow LBC v Klusova (2008) ICR 396 (C/A)
SOME OTHER SUBSTANTIAL REASON:(SOSR) Section 98(1)b plus Section 106 ERA on
replacements.
See: Cobley v Forward Technology [2003] IRLR 706 (C/A)
On client pressure see: Henderson v Connect Ltd [2010] IRLR 466.
On unproven allegations see: Leach v OFCOM [2012] IRLR 829 (C/A)
On real possibility that an offender see: K v L [2021] IRLR 701 (Crt.Session)
On reasonable refusal to agree to a change in the terms of employment see: SW Global Ltd v
Docherty [2012] IRLR 727;Willow Oak Ltd v Silverwood [2006] IRLR 607
On “equity” where pay cut proposed see: Garside and Laycock Ltd v Booth [2011]IRLR 735
On reorganisations see: Copsey v Devon Clay [2005] IRLR 811 (Sunday working); Hollister v
MFU [1979] IRLR 238 (C/A), St John Ltd v Brook [1992] IRLR 546 & Catamaran Cruisers v
Williams [1994] IRLR 386.

On relationship with misconduct see: Ezsias v Keele University [2011] IRLR 551.
On impact of personality see: Perkin v St George’s NHS Trust [2005] IRLR 934 (C/A)
THE CONCEPT OF REASONABLENESS: Section 98(4) EPCA
See: London Borough of Hammersmith v Keable [2022] IRLR 4 (opportunity to dispute

evidence etc); Uddin v London Borough of Ealing [2020] IRLR 332 (knowledge of a person
other that the one who decided to dismiss could be relevant here); Sattar v Citibank NA
[2020] IRLR 104 (C/A) (claims rejected although bank did not strictly follow its own
procedures); Reilly v Sandwell MBC [2018] IRLR 558 SC (range of reasonable responses test
endorsed); Phoenix House Ltd v Stockman [2016] IRLR 848 (outside range of reasonable
responses); Connollly v Western Health and Social Care Trust [2018] IRLR 259 NIC/A
(proportionality and ‘equity and substantial merits’); Garamukanwa v Solent NHS Trust
[2016] IRLR 476 (no reasonable expectation of privacy in relation to photos); Secretary of
State v Lown [2016] IRLR 22 (ET substituted own view ); Ramphal v Department of Transport
[2015] IRLR 985 (influence of HR on investigating officer’s decision); Adeshina v St George’s
Hospital [2015] IRLR 704 (curing deficiencies in process); Newbound v Thames Water Ltd
[2015] IRLR734 (C/A) (disparity of treatment); Way v Spectrum Property[2015] IRLR 657
(C/A) (warning in bad faith); McMillan v Airedale NHS Trust [2014] IRLR 803 (C/A) (increased
sanction on appeal?); Z v A [2014] IRLR 244 (allegations of sex abuse); Docherty v SW Global
Resourcing [2013] IRLR 875; City of Swansea v Gayle [2013] IRLR 768 (covert filming); Tayeh
v Barchester Healthcare Ltd [2013] IRLR 387 (C/A); Christou v London Borough of Haringey
[2013]IRLR 379 (C/A)(second disciplinary proceedings on the same facts); Davies v Sandwell
MBC [2013] IRLR 374 (C/A) (impact of final warning); City & Council of Swansea v Gayle
[2013] IRLR 768 (covert filming); Sneddon v Carr –Gomm Ltd [2012] IRLR 820 (Crt.Sess)
(further investigations needed); Graham v Secretary of State [2012] IRLR 759
(C/A)(summary dismissal outside band of reasonableness); Turner v E. Midland Trains
[2013] IRLR 107 (C/A) (impact of ECHR Art 8); Crawford v Suffolk Mental Health Trust
[2012]IRLR 402(C/A)(20 years service and procedural errors); Spence v Dard [2011] IRLR 806
(NICA)(disclosure of information); Fuller v London Borough of Brent [2011] IRLR 414
(C/A)(role of appellate bodies); *Orr v Milton Keynes Council [2011] IRLR 317 (C/A);
PRESSURE TO DISMISS UNFAIRLY: Section 107 ERA
applies except where pressure exercised because employee was not a union member: See
Section 160 TULRCA 1992

1. What are the consequences of an employer wrongly classifying the reason for dismissal?
2. In what circumstances might a dismissal on the grounds of redundancy be unfair?
3. How useful is "some other substantial reason" in the context of business reorganisations?
See *Catamaran Cruisers Ltd v Williams [1994] IRLR 386.
REMEDIES:
1 INTERIM RELIEF: Section 128 ERA.
See B.Coal v McGinty [1988] IRLR 7.
2. RE-EMPLOYMENT: Section 113 -117 ERA.
No right to be re-engaged see: McKenzie v University of Cambridge [2020] IRLR 324 (C/A)
On reinstatement under the guise of a re-engagement order see: British Airways v Valencia
[2014] IRLR 683
On the unconditionality of reinstatement see: McBride v Strathclyde Police [2016] IRLR 633
On the need to specify terms of re-engagement see: Lincolnshire CC v Lupton
[2016] IRLR 576
On the practicability of compliance with an order see: London Borough of Hammersmith v

Keable [2022] IRLR 4; *PGA Tour v Kelly [2021] IRLR 575 (C/A); Davies v DL Insurance [2020]
IRLR 490
See also Section 13(2) ETA 1996 on costs sanction if no evidence as to job availability and
postponement necessary.
On unreasonable refusal of re-employment see: Wilding v BT plc [2002] IRLR 524 (C/A).
On compensation for non-compliance see: Selfridges Ltd v Malik [1997] IRLR 577

On the relationship between S114(2) and S117(3) see: Awotana v S.Tyneside NHS Trust
[2005] ICR 958 (C/A)
COMPENSATION:
i) ADDITIONAL AWARD: Section 117
26 - 52 weeks' pay.
ii) BASIC AWARD: Section 119.
Maximum in 2023 is £19,290 (i.e. 30 x £643).
[On maximum week’s pay see Section 227(1) and Section 14 Work and Families
Act 2006].
On Section 122(4) see: Parry v National Westminster Bank [2005] IRLR 193.
iii) COMPENSATORY AWARD: Section 123 ERA.
Maximum in 2023 is the lower of £105,707 or 12 months gross pay (except for protected
disclosures and health and safety cases where unlimited compensation is available). [In the
year 2021/22 the average compensation awarded in unfair dismissal cases was £13,541
while the median award was £7,650. Compensation of £50,000 or more was awarded in 26
cases, with the maximum award being £165,000].
On deductions and application of the statutory cap see: Dafiaghor-Olomu v Community

Integrated Care [2022] IRLR 763
On a week’s pay for purpose of S124 (1ZA) see: University of Sunderland v Drossou [2017]
IRLR 1087 (includes employer’s pension contributions)
On what is compensatable see now: ***Dunnachie v Kingston upon Hull City Council [2004]
IRLR 727 (H/L) (no recovery for non-economic loss) 2005 ILJ 83; Robins Ltd v Triggs
(2008)IRLR 317(C/A)(illness caused by breach of contract);
Section 123(1) involves a 3 stage process: Simrad Ltd v Scott [1997] IRLR 147.

On making predictions see: SCOPE v Thornett [2007] IRLR 155 C/A.
On the relationship between S123(1) and (6) see: Friend v Civil Aviation Authority [2001]
IRLR 819 (C/A) & Rao v Civil Aviation Authority 1994] IRLR 240 (C/A).
Is there a loss? See: King v Eaton Ltd (No.2) [1998] IRLR 686 on procedural/substantive
unfairness and the calling of evidence.
On uplift for failure to follow ACAS Code on Discipline see: Section 207A TULRCA 1992, **
Rentplus UK Ltd v Coulson [2022] IRLR 664 and Holmes v Qinetic Ltd [2016] IRLR 664 (does
not apply to ill –health dismissals).
On relation to awards for injury to feelings and aggravated damages see: Slade v Biggs
[2022] IRLR 216
Loss of earnings:
past and future (NB: Recoupment Provisions). Can include loss of spouse's earnings. Take-
home pay, not Basic pay, therefore regular overtime included.
On loss of wages during notice period see: Buro v Langley [2007] IRLR 145 C/A
Where possible to conclude that employee will find an equivalent job see: Wardle v Credit
Agricole [2011] IRLR 604 (C/A).
Where new employment obtained see: Aegon Ltd v Roberts [2009]IRLR 1042 (C/A).
On career–long loss and use of Ogden tables: Kingston upon Hull City Council v Dunnachie
(No.3) [2003] IRLR 843 (EAT)
On loss of value of shares see: Leonard v Strathclyde Buses [1998] IRLR 693 (Crt Sess).
On loss of death benefit see: Fox v British Airways [2013] IRLR 812 (C/A)
On possibility of future fair dismissal see: Hill v Governing Body of Great Tey School [2013]
IRLR 274
On the effect of underlying illness on the chances of working see: Seafield Holdings Ltd v
Drewett [2006] ICR 1413.
On the receipt of incapacity benefit see: Sheffield Forgemasters Ltd [2009] IRLR 192
On impact of national minimum wage and value of free accommodation see: Paggetti v
Cobb [2002] IRLR 861.

On evaluation of the loss of chance rather than the balance of probabilities see: Shittu v
South London Maudsley NHS Trust [2022] IRLR 382
Loss of protection:
Notice entitlement, UD rights, redundancy if loss exceeds basic award.
Loss of pension rights:
See: Griffin v Plymouth Hospital Trust [2014] IRLR 962 (C/A)
On pension payments received see: Knapton v ECC Ltd [2006] ICR 1084
Loss flowing from manner of dismissal:
eg less acceptable to potential employers. See: Uhr-Rehman v Ahmad [2013] ICR 28 (on
stigma).
Expenses:
Cost of looking for a new job; moving house. Lost telephone, car, entertainment
allowances. Does not cover cost of bringing the action.
Mitigation:
must act as if no hope of getting compensation? What if re-employment sought?
No duty to mitigate before dismissal: see F & G Cleaners Ltd v Saddington [2012] IRLR 892
On refusal of an offer of re-employment see: *Wilding v BT plc [2002] IRLR 524 (C/A).
On establishing a business see: AON Ltd v Dore [2005] IRLR 891 (C/A).
Where dismissed without notice or pay in lieu
no deduction of compo for pay earned in different employment during notice period. On
application to constructive dismissal see: Peters Ltd v Bell [2009] IRLR 941 (C/A)

Contribution:
On covert recording of a meeting see:Phoenix House Ltd v Stockman [2019] IRLR 960
Involves some element of blameworthiness: Steen v ASP Packaging [2014] ICR 56
Parties might agree on proportion of blame. See: London Ambulance Service v Small [2009]
IRLR 963 (C56/A)
On industrial action: Crosville Ltd v Tracey (No.2) [1997] IRLR 691 (H/l)
Deductions:
Section 123 (6): dismissal caused or contributed by..etc. Can apply to constructive dismissal
see: Frith Ltd v Law [2014] IRLR 510 and TUPE see: Ferguson v Astrea Management [2020]
IRLR 577
On the effect of the Polkey case see: Hill v Governing Body of Great Tey School [2013] IRLR
274.
On settlement sum received from another employer: Optimum Group plc v Muir [2013] IRLR
339
On the order of deductions see: Dafiaghor -Olumu v Community Integrated Care
[2022] IRLR 763
On Section 123(7) see: Digital Equipment v Clements (No.2)[1998] IRLR 134(C/A).
See now Section 39 E.A.2002 which inserts Section 124A ERA on adjustments for failure to
supply statement of particulars: adjustment shall be applied before any reduction under
Section 123(6) or (7).
Note also Social Security Regulations 1983 Regulation 7(1)k.: do not deduct benefits
applicant likely to draw after hearing since for stated period not regarded as unemployed.
On benefits see now: Morgans v Alpha Plus Ltd [2005] IRLR 234
On application of limit see: Braund Ltd v Murray [1991] IRLR 100 and compare Derwent
Coachworks v Kirby [1994] IRLR 639
See now Section 123(8)

Note that Section 12A ETA 1996 allows ET’s to impose a financial penalty on employers
one or more aggravating features”.
INTEREST ON SUMS AWARDED:
Judgement Debts (Rate of interest) Order 1993. S.I.No.564 and compare sex discrimination
regulations. See: Melia v Magna Kansei [2005] IRLR 449;
Following evidence the employers were failing to pay sums awarded by tribunals, Sections
37A –37Q ERA 1996 came into effect in 2016. These provisions enable enforcement officers
to issue a warning notices specifying a date by which an outstanding tribunal award and
interest must be paid. An employer not complying with the notice may incur a financial
penalty (payable to the Secretary of State) of 50% of the sum owed, subject to a minimum
of £100 and a maximum of £5000. However, employers qualify for a reduction of 50% of the
penalty if they pay the reduced penalty and the whole unpaid amount within 14 days after
the day on which notice of the decision to impose the penalty was sent.
RECOUPMENT OF BENEFITS:
See: Employment Protection (Recoupment of Job Seeker's Allowance and Income Support)
Regs 1996
PRE-TERMINATION NEGOTIATIONS:
defined as “any offer made or discussions held” with a view to the employment being ended
on agreed terms.
Section 111A ERA 1996: evidence of pre-termination negotiations normally cannot be heard
by an ET. The exceptional circumstances are –
where claimants assert that they have been dismissed for an automatically unfair reason,;if
the ET thinks that there has been improper words or behaviour and it would be just to allow
information to be disclosed; and if an offer in relation to costs or expenses was made on
the basis that the right to refer to it was reserved.
See: Clark v Harney Westwood & Riegels [2021] IRLR 529 (privilege wrongly removed)

ACAS Code of Practice Settlement Agreements (July 2013) explains, in particular, aspects of
the confidentiality provisions which are associated with the negotiation of settlement
agreements. This Code will be taken into account when ET’s consider relevant cases but
there are no financial or other sanctions for non-compliance with it.
CONCILIATION:
Section 18A Employment Tribunals Act 1996: most potential applicants must submit details
of their case to ACAS before they can lodge an ET claim. The conciliation officer must
endeavour to promote a settlement between the prospective parties within a prescribed
period. If during this period the conciliation officer concludes that a settlement is impossible
or the period elapses with a settlement being achieved, he or she will give the prospective
claimant a certificate to that effect. A claim cannot be lodged without such a certificate but
a conciliation officer may continue to endeavour to promote a settlement. See: Compass
Group v Morgan [2016] IRLR 924 (on certificate covering future events) and Science
Warehouse Ltd v Mills [2016] IRLR 96 (on additional claim).
Section 18B (1) ETA 1996: even if it has not received information from a prospective
claimant, ACAS is obliged to promote a settlement where a person requests the services of a
conciliation officer in relation to a dispute that is likely to result in ET proceedings against
them.
Section 18(4) ITA 1996: Re-employment terms have to appear equitable but compensation
may not be.
Section 18(6) ITA : Desirability of using available grievance procedures.
On performance of functions see: Clarke v Redcar B.C (2006) IRLR 324
SETTLEMENT AGREEMENTS: Section 203 ERA 1996(as amended)
See: Arvenecu v Quick Release Ltd [2023] IRLR 230 (C/A) (included claims arising
“indirectly ..in connection with employment”); McWilliam v Glasgow City Council [2011]
IRLR 568 (approach to Section 77 SDA 1975); Sutherland v Network Appliance Ltd [2001]
IRLR 12 & Rock -It Cargo v Green [1997] IRLR 581
On jurisdiction to consider misrepresentation see: Industrious Ltd v Horizon Ltd [2010] IRLR
204

On effect of agreement being ultra vires and void see: Gibb v Maidstone NHS Trust [2009]
IRLR 707 (QBD).
On the need to relate to the particular complaint see: Hinton v University of East London
[2005] IRLR 552 (C/A)
On the duty to disclose prior to agreement see: Collidge v Freeport plc [2008]IRLR 697(C/A);
BCCI v Ali [2001] IRLR 292 (H/L)
On confidentiality clause as a condition of the contract see: Duchy Farm Ltd v Steels [2020]
IRLR 632
On tax implications see: Wilson v Clayton [2004] IRLR 611
ARBITRATION:
see Employment Rights (Dispute Resolution) Act 1998 Sections 7 -8,1998 ILJ 214 &
Arbitration Scheme (GB) Order 2004
On arbitration in individual disputes generally see: Clark 1999 ILJ 319.
BIBLIOGRAPHY:
ACAS Annual Report
1. In what circumstances is re-employment likely to be an appropriate remedy for unfair

dismissal?
2. Should there be a limit on compensation for unfair dismissal?
3. Do the provisions on settlement agreements provide sufficient protection for employees?
4. Why has the ACAS unfair dismissal arbitration scheme proved unattractive to potential
users?
REDUNDANCY PAYMENTS

EXCLUSIONS AND QUALIFICATIONS:
Section 140(1): Gross misconduct. See also Section 140(3): Bonner v Gilbert Ltd [1989] IRLR
475.
Section 141(2) & (4): Unreasonable refusal of suitable alternative employment. See
*Cambridge & District Co-op v Ruse [1993] IRLR 156; Curling v Securicor Ltd [1992] IRLR 549.
Section 155: Employment for two years. Note that continuity is presumed: Section 210(5)
ERA.
Section 213(2): Interval before renewal or re-engagement counts as period of employment.
Section 145: Effective date of dismissal and operation of Section 145(3). See: Staffs CC v S of
S [1989] IRLR 117 (C/A).
Section 157: Exemption orders
Section 199(2): Crew of fishing vessel.
Section 159,191 192: Public office holders, armed forces and civil servants exempt.
Section 161: Domestic servants
Section 164: Claim in time - six months unless just and equitable. Absolute bar after 12
months.
Section 230: Employee.
Section 203: Restrictions on contracting out.
THE MEANING OF DISMISSAL:
NB: Court appointment of receiver and compulsory winding-up = termination. If voluntary

winding-up employment continues.
On expiry of fixed term contracts: see Pfaffinger v City of Liverpool College [1996] IRLR 508
& 2002 Regs.
On agreement to be dismissed: See Lassman v de Vere Hotel [2003] ICR 44.

Section 136(5): Death of employer.
Section 138(1): No dismissal if offer of renewal or re-engagement before ending of

employment under previous contract and renewal or re-engagement takes effect within 4
weeks.
On effect on an unfair dismissal claim see: Ebac Ltd v Wymer [1995] ICR 466.
On provision of details of vacancies see: Curling v Securicor Ltd [1992] IRLR 549
Section 138(2)-(6): Trial period if different terms - four weeks unless re-training: Section
138(3). See: Optical Express v Williams (2007) IRLR 936; *Benton v Sanderson Kayser [1989]
IRLR 19(C/A).
Section 138(4) Dismissal during trial period treated as dismissal from date on which previous
contract ended. Suitability.
On reasonableness of refusal and desire to take advantage of redundancy rights see: *

Devon Primary Care Trust v Readman [2013] IRLR 878 (C/A)
On reasonableness of refusal and loss of status see: Cambridge & District Co-op v Ruse
[1993] IRLR 156
On relationship with unfair dismissal see: Hempell v W.H. Smith [1986] IRLR 95.
MEANING OF REDUNDANCY: Section 139.
"if attributable wholly or mainly to":
(a) the fact that the employer has ceased or intends to cease to carry on the business
(Section 81(3) permanently or temporarily) or ceases etc in the place where employee
employed.
On the scope and extent of the business see Barbar Restaurant v Rawat [1985]
IRLR 57)
On place of work: See High Table Ltd v Horst [1997] IRLR 513 (C/A) & Bass Leisure Ltd v
Thomas [1994] IRLR 104.
On mobility clauses and possible indirect discrimination see: Meade-Hill v British Council
[1995] IRLR 478]

(b) the fact that the requirements of the business for employees to carry out work of a
particular kind have ceased or diminished or are expected to cease or diminish. See:
**Murray v Foyle Meats [1999] IRLR 562 (H/L)& Packman v Fauchon [2012] IRLR 721
On redundancy without a reduction in headcount see: Packman v Fauchon [2012] IRLR 721.
On the impact of reorganisations see: *Shawkat v Nottingham NHS Trust(No.2) [2001] IRLR
255 (C/A)
On the impact of flexibility clauses see: Johnson v Peabody Trust [1996] IRLR 387
On change in working hours see Johnson v Notts Police [1974]
NOTE that definition of redundancy does not necessarily refer to claimant's own job. On
'BUMPING' compare Murray v Foyle Meats [1999] IRLR 562 (H/L) with Church v W. Lancs
NHS Trust [1998] IRLR 4
Section 163(2): Presumption of redundancy - see Willcox v Hasting [1987] IRLR 299 (C/A).
Note that an employee who creates a redundancy situation by his/her own conduct (eg
joining a strike which leads to a closure) may get a payment (Saunders v Neal [1974]).
THE EFFECT OF STRIKES OR GROSS MISCONDUCT DURING THE OBLIGATORY PERIOD:
Section 140(3) deals with misconduct and Section 143 ERA: deals with strikes
LAY- OFF AND SHORT TIME: Sections 147- 154
On contractual position: McCrae & Co v Dawson [1984] IRLR 5.
Section 147(1): Meaning of lay-off: not entitled to remuneration under contract. NB:Section
28 provides right to a guarantee payment.
Section 147(2): Meaning of short-time: less than half a week's pay. See: Spin Press Ltd v
Turner [1986] ICR 433.
Section 148: Notice in writing of intention to claim:
(a) four or more consecutive weeks. See Allinson v Drew Simmons Ltd [1985] ICR 488.
(b) six or more weeks within 13 week period.

Section 150: Employee needs to give notice to terminate within three weeks after seven
days allowed for counter-notice: Section 149. See Walmsley v Ferguson Ltd [1989] IRLR 112.
Section 152: Employee not entitled if "reasonably to be expected" that would not later than
four weeks after date of service of notice of intention, enter upon a period of 13 weeks
without lay-off or short-time. However, a payment is owed if no counter-notice from
employer.
Section 149 or Section 152 operates if further four weeks of lay-off.
Section 153: see Dutton v Jones [2013]ICR 559 (on relevant date)
Section 154: No account taken of any weeks where lay-off etc. "wholly or mainly
attributable to a strike".
REDUNDANCY DURING A PROTECTED PERIOD OF PREGNANCY
Section 49D: provides for Regs about redundancy during or after a protected period of
pregnancy.
COMPUTATION OF PAYMENTS:
Section 162(1)(2): Reckon backwards and use gross pay (WP)
41 + = 1.5 x WP for each year of service
22 - 41 = 1 x WP for each year of service
20 - 21 = 0.5 x WP for each year of service
Section 162(3): 20 year max. In 2022 this is £19,290 (i.e. 30 x £643).
Section 220: Week's pay.
Section 227: £643 = limit in 2023
[see Section 14 Work and Families Act 2006 for possible uplift].
Section 221: Normal working hours excludes non-mandatory overtime: Gascol Ltd v Mercer
[1974] IRLR 155

If pay does not vary = gross amount payable under contract. See Keywest Club v Choudhury
[1988] IRLR 51.
Section 222: If pay varies = normal working hours x hourly rate of remuneration averaged
over 12 weeks.
Section 223 See:British Coal v Cheesbrough [1990] IRLR 148.
Section 224: Where no normal working hours = average weekly remuneration over 12
weeks.
Monetary Remuneration: covers anything quantified in terms of money which worker

expected as a result of his work (S & U v Wilkes [1974] - expenses included if represent a
profit).
Section 165: Written statement indicating how payment calculated.
Section 12A ETA 1996: allows ET’s to impose a financial penalty on employers where there
has been a breach of employment rights and the ET thinks that “the breach has one or more
aggravating features”
SOME POINTS FOR CONSIDERATION:
1. What do we learn from Murray and Shawkat cases about the meaning of work of a
particular kind?
2. What are the effects of mobility and flexibility clauses on entitlement to a redundancy
payment?
3. Does a re-organisation of a business which involved changes in working hours entitle an

employee who refuses to work the new hours to a redundancy payment?
4. Assess the potential impact on the handling of redundancies of the law on age
discrimination.
COLLECTIVE DISMISSALS
Section 188 TULRCA:

(1) Where an employer is "proposing to dismiss" as redundant 20 or more employees at one

establishment within a period of 90 days or less, the employer shall consult about the
dismissals all the persons who are appropriate representatives of any of the employees who
may be affected by the proposed dismissals or may be affected by measures taken in
connection with those dismissals. See: UQ v Marclean Technologies [2022] IRLR 548 (CJEU).
Note that Art 1 (1) of Directive refers to “workers”. See Balkaya v Kiesel Gmbh [2015] IRLR
771 on the essential feature of an employment relationship (both company director and
trainee were workers)..
Section 195 (1): defines “redundancy” for these purposes. See: Pujante Rivera v Gestora
Clubs [2016] IRLR 41 (CJEU ); *University of Stirling v UCU [2015] IRLR 573 (SC) (fixed term
contract = reason related to an individual); GMB v MAN Truck Ltd [2000] IRLR 636. Note
presumption in Section 195(2).
Section 196(3): deals with meaning of "affected employees".
On "establishment" see: Seahorse Ltd v Nautilus International [2019] IRLR 286 C/A (each
ship was a separate establishment); USDAW v WW Realisation [2015] IRLR 577 (CJEU );
Renfrewshire Council v Educational Institute [2013] IRLR 76;
(1A) The consultation shall be in good time and in any event -
where the employer is proposing to dismiss 100 or more employees as mentioned in sub-
section (1),at least 45 days, and
otherwise, at least 30 days, before the first dismissals take effect.
see also Section 188(3).
On calculation of the reference period see: **UQ v Marclean Technologies [2022] IRLR 548.
On the meaning of “proposing to dismiss” see: * Socha v Szpitalspecjalistyczny [2018] IRLR

72 (CJEU ) (terminations following refusal to accept changes); Keeping Kids Co v Secretary of
State [2018] IRLR 484 (clear, albeit provisional, intention when made grant application); E
Ivor Hughes v Morris [2015] IRLR 696; Leicestershire CC v UNISON [2006] IRLR 810 (C/A);
Optare Group v TGWU (2007) IRLR 931 (includes volunteers); Hardy v Tourism South East
[2005] IRLR 242. Compare Article 2 EC Directive 75/129 on "contemplation" and see: Akavan
v Fujitsu Siemens [2009] IRLR 944 (ECJ)
On shelf life of Section 188 and need for fresh round of consultation see: Vauxhall Motors v
TGWU [2006] IRLR 674

(1B) For the purposes of this section the appropriate representatives of any affected
employees are -
(a) if the employees are of a description in respect of which an independent trade union is
recognised by the employer, representatives of the trade union, or
(b) in any other case, whichever of the following employee representatives the employer
chooses:
(i) employee reps appointed or elected by the affected employees otherwise than
for the purposes of this section,who (having regard to the purposes for and the method
by which they were appointed or elected) have authority from those employees to receive
information and to be consulted about the proposed dismissals on their behalf;
employee reps elected by the affected employees, for the purposes of this section, in an
election satisfying the requirements of Section 188A (see below).
Section 196:
(1) For the purposes of this chapter persons are employee representatives if -
(a) they have been elected by employees for the specific purpose of being consulted by
their employer about dismissals proposed by him, or
(b) having been elected by employees (whether before or after dismissals have been
proposed by their employer) otherwise than for that specific purpose, it is appropriate
(having regard to the purposes for which they were elected) for the employer to consult
them about dismissals proposed by him, and (in either case) they are employed by the
employer at the time they are elected.
(2) References in this chapter to representatives of a trade union, in relation to an

employer, are to officials or to other persons authorised by the trade union to carry on
collective bargaining with the employer.
Section 188(2): the consultation shall include consultation about ways of-
(a) avoiding the dismissals [see UK Coal v NUM (2008)IRLR 4]
(b) reducing the number of employees to be dismissed
(c) mitigating the consequences of dismissals
and shall be undertaken by the employer with a view to reaching agreement with the
appropriate representatives.

Note that the above features of consultation are disjunctive: Middlesbrough B.C. v TGWU
[2002] IRLR 332 (EAT).
On the meaning of consultation see: Kelly v Hesley Group Ltd [2013] IRLR 524; R v BRITISH
COAL ex parte PRICE [1994] IRLR 72
Section 188(4) requires the employer to disclose in writing:
(a) the reasons for his proposals,
(b) the numbers and descriptions of employees whom it is proposed to dismiss,
(c) the total number of employees of any such description employed at the establishment,
(d) the proposed method of selecting who may be dismissed,
(e) the proposed method of carrying out the dismissals.
(f) the proposed method of calculating the redundancy payment if this differs from the
statutory sum.
(g) the number of agency workers working temporarily for and under the supervision and
direction of the employer
(h) the parts of the employer’s undertaking in which those agency workers are working;
(i) the type of work those agency workers are carrying out
See: Akavan v Fujitsu Siemens [2009] IRLR 944 (ECJ); Securicor Ltd v GMB [2004] IRLR 9
(EAT) & MSF v GEC FERRANTI(No.2) [1994] IRLR 113 - there is no rule that full and specific
information under each of these heads must be provided before the consultation period can
begin.
Section 188(5A): The employer shall allow the appropriate representatives access to the
employees whom it is proposed to dismiss as redundant and shall afford to those
representatives such accommodation and other facilities as may be appropriate.
Section 188(7): if there are "special circumstances" which render it "not reasonably
practicable" for the employer to comply with any of the above requirements the employer

"shall take all such steps towards compliance....as are reasonably practicable in those
circumstances."
Note that a failure by a person controlling the employer to supply information does not
constitute a special circumstance. See: GMB v Beloit Walmesly [2004] IRLR 18 and Bichat v
Aviation Passage Service Berlin [2018] IRLR 1074 (CJEU )
On the need for something out of the ordinary or uncommon see: Carillion Ltd v Benson
[2022] IRLR 39 (compulsory liquidation not uncommon)
See also Section 188(7A), which deals with the situation where the employer has invited
employees to elect representatives.
The major defences accepted so far relate to supervening economic circumstances e.g. loss
of a key order in AUEW v Cooper [1976]; however, in Bakers Union v Clarks [1978] IRLR 366
(C/A) the mere fact of insolvency was held not necessarily to be a special circumstance.
Consultation must begin before giving individual notices of dismissal: NUT v Avon C C [1978]
(EAT),T.G.W.U. v Ledbury Preserves [1985] IRLR 412, GEC Feranti v MSF [1993] IRLR 101.
Section 188(7B): if after the employer invites affected employees to elect reps,they fail to
do so within a reasonable time, the employer must give to each affected employee the
information set out in Section 188(4).
Section 188A(1): Requirements for the election of employee reps.
(a) employer must make reasonably practical arrangements to ensure election is fair
employer to determine number of reps so that there are sufficient to represent interests of
all affected employees
(c) employer to determine whether affected employees should be represented by reps of all
affected employees or by reps of particular classes
(d) employer to determine term of office of reps so that it is sufficient to enable information
to be given and consultations to be completed
(e) candidates for election are the affected employees on the date of election
(f) no affected employee is unreasonably excluded from standing
(g) all affected employees on date of election are entitled to vote

(h) employees may vote for as many candidates as there are reps to be elected or, if there
are to be reps for particular classes, or may vote for as many candidates are there are reps
to be elected for their class
(i) election to be conducted so as to ensure that,
- so far as reasonably practicable voting is secret and
- votes are accurately counted.
See: Phillps v Xtera Ltd [2011]IRLR 724 – no vote required if number of candidates matches
number to be elected.
Section 188A(2): if a rep ceases to act and any of affected employees are no longer
represented those employees shall elect another rep in accordance with the requirements
above.
Section 189(1): complaints may be presented to tribunal on ground-
(a) in case of an election failure, by any of affected employees or by any redundant

employees;
(b) in case of any other failure relating to employee reps,by any of reps to whom failure
related; see: Northgate Ltd v Mercy (2008)IRLR 222 (C/A)
(c) in case of failure relating to union reps, by the union
(d) in any other case, by any affected employee or by any redundant employee
Section 189(1A): if a question arises as to whether or not a rep was appropriate for the
purposes of Section 188,burden is on employer to show that employee rep had the
authority to represent the affected employees.
Section 189(1B): where complaint under Section 189(1)(a), burden is on the employer to
show that the requirements of Section 188A have been satisfied
If the complaint is well-founded tribunal SHALL MAKE A DECLARATION S189(2) and MAY
ALSO MAKE A PROTECTIVE AWARD.

According to Section 189(4) the PROTECTED PERIOD shall be "of such length as the tribunal
shall determine to be just and equitable in all the circumstances having regard to the
seriousness of the employer's default." Maximum period is 90 days.
See: Ivor Hughes Foundation v Morris [2015] IRLR 696; Lancaster University v UCU [2011]
IRLR 4; TGWU v Brauer [2007] IRLR 2007 (only covers section of employees for which union
is recognized); Radin Ltd v GMB [2004] IRLR 400 (C/A) (focus is on seriousness of employer’s
default not compensation for loss suffered).
Section 190(2): Employee entitled to a week's pay for each week of the protected period.
On who can be covered by a protective award see: Independent Insurance Ltd v Aspinall
[2011] IRLR 716
On the effect of a winding up order on the protective award see: AEEU v Clydesdale Group
[1995] IRLR 527
On disentitlement see: Cranwick Country Foods v Beall [2007] ICR 691
Section 191(3): Offers of suitable alternative employment must not be unreasonably

refused.
Section 192(1)(2): Complaint of failure to pay protective award goes to tribunal within three
months. See: Howlett Marine v Bowlem [2001] IRLR 201
Section 193: Employer has to notify the Secretary of State (DTI)in writing of 20 or more
redundancies before giving notice to terminate contracts of employment(see S193(1)(2) for
time periods - same as S188(1A)) and give a copy of the notice to representatives.
Section 198(1): Exemption of collective agreements on redundancies.
NOTE ALSO:
Section 47 ERA 1996 gives employee reps the right not to suffer detriment for being a rep or
carrying out rep's duties.
Section 47(1A) ERA 1996: protects those who participated in an election

Section 103 ERA 1996 makes it unfair to dismiss an employee for being a rep or a candidate
in an election to become one.
Section 103(2) ERA 1996: protects those who took part in an election.
Section 61 ERA allows employee reps reasonable time off to perform their functions and for
training.
See also Section 168 TULRCA 1992 on time off for duties in relation to redundancy
information and consultation.
WEEK 17: NO LECTURE – READING WEEK
WEEKS 20 –1: NON-STANDARD WORKING AND WORK -LIFE BALANCE
SOME BACKGROUND NOTES:
Full-time open ended contracts of employment are the most prevalent types of contract in
the workplace in the UK and the EU (apart from the Netherlands). This standard form of
employment accounts for some 59% of all contracts.There has been a corresponding growth
in more ‘flexible’ forms of employment and it is possible that these flexible forms will
become the norm in the future. The number of self-employed workers has increased
significantly and there are now more than one million more people in self-employment
compared to 2006. Here we consider the so-called gig economy and place it within the

context of precarious work and show that it is not a new phenomenon but a variation of the
increasing flexibility of labour.
WHAT IS THE GIG ECONOMY?
At its simplest it means that the nature of work is different to the conventional standard
view that jobs consist of open-ended contracts of employment where people work regular
hours and are paid at a regular rate. In this new economy those who work in it carry out a
series of ‘gigs’, i.e. one-off jobs, in order to create an income. This must mean that they are
either self-employed working perhaps for a number of employers or that they are employed
on a series of employment contracts and are employees during their working periods. In
either case they are to be paid for a particular task or tasks, rather than receive a
guaranteed income.
A research report by the Chartered Institute for Personnel and Development (CIPD) defined
the gig economy as ‘a way of working that is based on people having temporary jobs or
doing separate pieces of work, each paid separately, rather than working for an employer’.1
Of course large numbers of people have been working in this way for very many years, so it
is not offering a definition of any new form of working.
The wider context is described by Professor Orly Lobel when she says that we should
examine it in the context of the World Wide Web’s genealogy. She suggests that we are now
in the third phase of the internet. The first phase was about enabling searching and
accessing information (1.0); the second phase was about selling things (2.0) and now the
third phase (3.0) includes the selling of ‘labor, effort, skills and time’.2 The development of
1 CIPD To gig or not to gig? Stories from the modern economy Survey report (March 2017).
2 Lobel, Orly, The Gig Economy & The Future of Employment and Labor Law (2016).
University of San Francisco Law Review, Forthcoming; San Diego Legal Studies Paper No. 16-
223. Available at SSRN: https://ssrn.com/abstract=2848456

this technology, which enables a gig economy, is also reliant upon a pool of workers willing
to work under this regime.
A further study of independent work for the McKinsey Global Institute3 identified three key
features of this work. Firstly, a high degree of autonomy for workers in deciding their
workload and work portfolio; secondly, payment by task, assignment or sales, meaning that
they are not paid for time not spent working; and, thirdly, the short-term relationship
between the worker and the customer.
Thus, we have a picture of a large group of independent workers benefiting from new
technology supported by large corporations who provide the platforms on which the
workers rely. There are, however, differing views of these developments. On the one hand
there is technology which empowers people to sell their skills in an alternative way to just
getting a ‘permanent’ job. Others see it as using new technologies to sustain business
models based on old-fashioned exploitative employment relationships, which minimise
obligations to workers and drive down hourly pay.4
What the CIPD research shows is that the majority of those working in the gig economy are
second jobbers. Only a quarter of their survey participants stated that gig economy type
work was their main employment and about 50% had been involved for one year or less. Yet
second jobbing as a feature of employment has not grown overall in recent years. As Adam
et al (2017)5 point out, more or less the same proportion of employees had second jobs in
2015–16 (3.5%) as in 2007–08 (3.7%). They also point out of course that the size of the
labour force has increased during this period so the actual numbers involved will have
increased. There has also been a small growth in the proportion of individuals who work for
3 Manyika, James. Lund, Susan, Bughin, Jaques. Robinson, Kelsey. Mishke, Jan and Mahajan,
Deepa. Independent Work: Choice, Necessity, and the Gig Economy McKinsey Global
Institute (October 2016)
4 Written evidence from the Chartered Institute of Personnel and Development (CIPD)
(WOW0098) to the House of Commons Business, Energy and Industrial Strategy Committee
who carried out an enquiry into the future world of work’ see n3.

their own business as a second job and that the proportion who work in a second job as an
employee has fallen slightly in this period.
VULNERABLE WORKERS AND PRECARIOUS WORK
Much attention has been given in research to the subject of vulnerable workers and
precarious working. One characteristic of vulnerable workers is that they are more likely to
be vulnerable to exploitation and denied employment protection that is available to others.
A UK Government report6 defined a vulnerable worker, for example, as someone working in
an environment where the risk of being denied employment rights is high and who does not
have the capacity or means to protect themselves from that abuse. The UK Government
established a ‘Vulnerable Worker Enforcement Forum’ in June 2007. It brought together
trade unions, workplace enforcement agencies, business groups and advice bodies to look
at evidence about the nature and extent of abuse of workplace rights. It published its final
report in 2008.7 It highlighted the employment rights abuses suffered by vulnerable
workers. These included no written terms of engagement; workers being paid below the
minimum wage and not being paid for all; the hours worked; unauthorised deductions being
made from wages; holiday pay not being paid; wages and holiday pay owed not being
provided after leaving a job; inadequate rest breaks being given; excessive hours; workers
not being provided with safety equipment and the provision of sub-standard “tied”
accommodation.
One reason for this predicament may be that vulnerable workers are more likely to be
employed in ‘precarious work’, i.e. work that deviates from the standard employment
relationship of full- time, open-ended contracts of employment. There are a number of
6 ‘Success at work: protecting vulnerable workers, supporting good employers’ (2006)

Department for Trade and Industry London
7 Vulnerable Worker Enforcement Forum – Final report and Government Conclusions

August 2008 http://www.berr.gov.uk/files/file47317.pdf

employment relationships which have been described as coming within the term ‘precarious
work’. Quinlan et al8 categorised them into five groups. These were
1. Temporary workers; including short fixed-term contracts and casual workers;
2. Workers subject to organisational change; including re-structuring, downsizing and

privatisation;
3. Outsourcing; including home working;
4. Part-time working;
5. Workers in small businesses, including self-employment.
A further study in the UK identified twelve different forms. These were self-employment,
part-time work, temporary work, fixed-term contract work, zero hours contract
employment, seasonal work, (annual hours, shift work, flexitime, overtime or compresses
working weeks), home working, teleworking, term time only working, Sunday working and
job sharing.9
ZERO-HOURS CONTRACTS
There has been a sharp increase in recent years in the use of so-called ‘zero-hours’
contracts. Although their nature may differ from organisation to organization, such
contracts refer to the situation where people agree to be available for work as and when
required but have no guaranteed hours. . For example, sometimes individuals will be bound
to accept work if it is offered, but in other situations they will not. If there is a lack of
mutuality of obligation, we have seen that this is a barrier to the establishment of
8 Michael Quinlan, Claire Mayhew, and Philip Bohle (2001) The Global expansion of
precarious employment, work disorganization, and consequences for occupational health: a
review of recent research International Journal of Health Services, vol 31, part 2 pp 335-414
9 Dex, S and McCulloch, A (1995) Flexible employment in Britain: A Statistical Analysis Equal
Opportunities Commission Research Discussion Series, Manchester

employment status. Nevertheless, the wording of the contract is not the sole factor in
determining whether, in practice, mutuality of obligation exists. Tribunals and courts should
examine the reality of the agreement and if there is in fact a pattern of regular work the
relationship may be treated as one of employment. Indeed, although a zero-hours contract
may state that there is no continuing relationship between engagements, if the individual is
prohibited from working elsewhere or there is a realistic expectation of further
engagements, an ‘umbrella’ contract may be recognised.
Even if a contract of employment does not exist, employers may have some legal obligations
towards those who are on-call. For example, the National Minimum Wage Regulations
provide that workers on ‘stand-by time’ or ‘downtime’ must still be paid the national
minimum wage if they are required to be at their place of work. Similarly, such time may
well constitute ‘working time’ under the Working Time Regulations.
Section 27A ERA 1996:
(1) In this section “zero hours contract” means a contract of employment or other worker’s
contract under which—
(a) the undertaking to do or perform work or services is an undertaking to do so

conditionally on the employer making work or services available to the worker, and
(b) there is no certainty that any such work or services will be made available to the worker.
(2) For this purpose, an employer makes work or services available to a worker if the
employer requests or requires the worker to do the work or perform the services.
(3) Any provision of a zero hours contract which—
(a) prohibits the worker from doing work or performing services under another contract or
under any other arrangement, or
(b) prohibits the worker from doing so without the employer’s consent, is unenforceable
against the worker.”
[Note that the ban on exclusivity clauses in employment contracts now applies to those
earning on or less than the lower earnings limit (currently £123 per week)].See The
Exclusivity Terms for Zero Hours Workers (Unenforceability and Redress) Regulations 2022
S.I. 2022/1145
QUESTION FOR CONSIDERATION:

Should those who have been engaged on zero hours contracts for six months or longer have
a right to work a stated minimum number of hours?
FIXED–TERM EMPLOYEES (PREVENTION OF LESS FAVOURABLE TREATMENT) REGULATIONS

2002 S.I.No. 2034
On effect of Framework Agreement see: Valenza v AGCM [2013] ICR 373 (CJEU ); Gaviero v
Galicia [2011] IRLR 504 (CJEU ) (length of service increment);
Reg 1: Interpretation etc –
“fixed -term contract” means a contract of employment that, under its provisions
determining how it will terminate in the normal course, will terminate –
on the expiry of a specific term
on the completion of a particular task, or
on the occurrence or non-occurrence of any other specific event other than the attainment
by the employee of any normal and bona fide retiring age in the establishment for an
employee holding the position held by him.
On the effect of a notice clause see: Allen v National Australia Group [2004] IRLR 847
“permanent employee” is an employee not employed under a fixed term contract
“pro–rata principle” means a fixed term employee is entitled to such proportion of pay and
any other benefit as is reasonable in the circumstances bearing in mind the length of his/her
contract of employment and the basis on which the pay or other benefit is offered
N.B. “renewal” includes extension
Reg 2: Comparable employee –
Comparable permanent employee must be employed by the same employer and

engaged in the same or broadly similar work having regard, where relevant, to whether the
comparator has a similar level of qualifications and skills and experience,
and
at the same establishment unless no comparable permanent employee is working or based

there.
Reg 3: Less favourable treatment –
Right not to be treated less favourably as regards contractual terms or be subjected to any
other detriment if the treatment is on the ground that the employee is fixed term and the
treatment is not justified on objective grounds. See: Grupo Norte v Gomes [2018] IRLR 970
(CJEU ) (lesser compensation on expiry of contract); Diego Porras v Ministerio de Defensa
[2016] IRLR 964 (CJEU ); Alonso’s case (2007) IRLR 911 (CJEU ).
In particular, mention is made in Reg 3(2) of:
service qualifications relating to a particular condition of employment; the opportunity to

receive training and the opportunity to secure permanent employment.
Note that under Reg 3(5) the pro –rata principle applies unless inappropriate.
Under Reg 3(6)(7) the employee has the right to be informed of available vacancies in the
establishment.
Reg 4: Objective justification –
There is objective justification if the terms of the fixed- term employee’s contract, taken as a
whole, are at least as favourable as the terms of the comparable permanent employee’s
contract.
See: Grupo Norte SA v Gomez [2018] IRLR 970 (CJEU )
Reg 5: Right to written statement of reasons for less favourable treatment –
Employees who consider their Reg 3 rights may have been infringed can make a written
request to the employer for a written statement giving particulars of the reasons for the
treatment. This must be provided within 21 days.

Note that, under Reg 5(2)(4), the written statement is admissible in evidence but this Reg
does not apply if Section 92 ERA 1996 could be invoked.
Reg 5(3): ET can draw inferences from an employer’s failure to respond or evasive or
equivocal replies.
Reg 6: Unfair dismissal and the right not to be subjected to detriment –
Reg 6(3) sets out the impermissible grounds and Reg 7(6) requires the employer to identify
the ground for the less favourable treatment or detriment.
Reg 7: Complaints to employment tribunals –
Reg 7(2): normal 3 month time limit.
Reg 7(7): remedies = declaration, compensation and recommendation.
Reg 7(10) : compensation for less favourable treatment under Reg 3 does not include injury
to feelings.
Reg 7(10)(11) deal with mitigation and contribution to loss respectively.
Reg 8: Successive fixed- term contracts –
Restriction on duration of fixed term contract shall be of no effect and contract shall be
regarded as being of indefinite duration if at any time:
the employee has been continuously employed for 4 years or more [See: Adeneler v EOG
[2006] IRLR 716 (ECJ)].
and
the employment under a fixed term was not justified on objective grounds either when it
was most recently renewed or, if not renewed, when it was entered into.
See: Perez Lopez v Servicio Madridileno [2016] IRLR 970 (CJEU ) (cover for temporary
needs); Hudson v Department of Work & Pensions [2013] IRLR 32 (C/A) (previous fixed term
contracts excluded under Reg 18); Kucuk v Land Nordrhein –Westfalen [2012] IRLR

697(CJEU ); Huet v Universite de Bretagne [2012]IRLR 703 (CJEU ); Duncombe v Sec.of State
[2010] IRLR 331 (C/A)
[Note that a single fixed term contract cannot be converted.]
Reg 8(5): a collective or workforce agreement may substitute for (a) or (b) above one or
more different conditions which specify one or more of the following:
maximum periods of fixed term employment
maximum number of fixed term contracts and renewals
objective reasons justifying the renewal of fixed term contracts
Reg 9: Right to receive written statement of variation -
Reg 9(1)(2): an employee who consider his/her contract to be of indefinite duration by

virtue of Reg 8 can request in writing a written statement confirming that the contract is to
be so regarded.
Within 21 days of the request, the employee is entitled to be provided with such a
statement or a statement giving reasons why it is not to be so regarded. If the latter applies,
the statement must include the objective grounds justifying a fixed -term contract.
Reg 9(3): written statement admissible in evidence.
Reg 9(4): possible inference from failure to provide or equasive/equivocal statement.
Reg 9(5)(6): an employee can apply to an ET for a declaration if:
a statement has previously been requested and
the employer has failed to provide one or give reasons why the contract is fixed-term.
Reg 10: Restrictions on contracting out. Section 203 ERA 1996 applies.
Reg 12: Liability of employers and principals.
Reg 13,15,16,17: Crown employees, House of Lords/Commons staff and police covered.
Reg 14,18,19,20: Regs do not apply to naval, military or air forces; apprenticeships;
Government training schemes; agency workers.
Schedule 1: Workforce agreements.

Schedule 2: Amendments to primary legislation
Note that the concepts of “limited –term contract” and “limiting event” are introduced into
Section 235 ERA 1996. They are defined as follows:
(2A) For the purposes of this Act a contract of employment is a “limited –term contract” if –
the employment under the contract is not intended to be permanent, and
(b) provision is accordingly made in the contract for it to terminate by virtue of a limiting
event
(2B) In this Act “limiting event”, in relation to a contract of employment means –
in the case of a contract for a fixed term, the expiry of the term,
in the case of a contract made in contemplation of the performance of a specific task, the
performance of the task, and
in the case of a contract which provides for its termination on the occurrence of an event
(or the failure of an event to occur), the occurrence of the event (or the failure of the event
to occur).”
QUESTIONS FOR CONSIDERATION:
Is the requirement to have four years’ continuous service in order to convert to an indefinite
contract a fundamental flaw in the Regulations?
Should the law allow fixed-term contracts to be renewable indefinitely?
THE PART-TIME WORKERS (PREVENTION OF LESS FAVOURABLE TREATMENT) REGULATIONS

2000. S.I. 1551
[Directive No.97/81 and Framework Agreement of June 1997].
Note Departmental Guidance but lack of Code of Practice.
REG 1(2): Interpretation –

“Pro rata principle” means that where a comparable full-time worker receives or entitled to
receive pay or other benefit, then the part- time worker should receive not less than the
proportion of pay and benefits that the weekly number of hours bears in relation to the
number of weekly hours of the comparable full- timer.
On the meaning of worker in relation to office holders: ** O’Brien v Ministry of Justice

(No.2) [2019] IRLR 185 (CJEU ) and Miller v Ministry of Justice (No.2) [2020] IRLR 239 (SC).
On occupational pensions see: INPS v Bruno [2010] IRLR 890 (CJEU ).
REG 2(1)(2): defines full-time workers and part-time workers respectively in terms of –
being paid wholly or in part by reference to the time worked [ie not pieceworker])
having regard to the custom and practice of the employer in relation to workers employed
by the worker’s employer under the same type of contract
REG 2(3): cannot compare different types of contracts eg workers v employees.
Note also that a comparison cannot be made with a part-timer working longer hours:
Advocate-General for Scotland v Barton [2016] IRLR 210 (Crt.Session).
REG 2(4): a full- time worker is a comparable full- time worker in relation to a part-time
worker, if, at the time less favourable treatment is alleged , both workers are –
employed by the same under the same type of contract, and
engaged in the same or broadly similar work having regard, where relevant, to whether they
have similar levels of qualifications, skills and experience; and
the full-timer works or is based at the same establishment as the part-timer, or where
there is no full-timer working or based at that establishment who satisfies (i) & (ii), works or
is based at a different establishment and satisfies (i) & (ii).
See: Ministry of Justice v Dodds [2023] IRLR 428 (cannot be both a full-time and part-time
worker during the same period of time); Roddis v Sheffield Hallam University [2018] IRLR
706 (zero hours contract is not a type of contract for these purposes); Ministry of Justice v
Burton [2016] IRLR 100 (part-time property judges treated less favourably that full time tax
judges) & Moultre v Ministry of Justice [2015] IRLR 364 (part-time tribunal members)
NOTE that the sex of the worker is irrelevant but the comparator must be
contemporaneously employed. It is not possible to rely on a hypothetical comparator: Carl v
University of Sheffield [2009] IRLR 336

Do casual part-timers have a comparator in practice? See Wippel v Peek & Clockenburg
Gmbh [2005] IRLR 211 (ECJ)
REG 3: full-timer who becomes part-time is protected by Reg 5 as if there is a comparable

full-timer under the terms that applied to them immediately before the change. see: Land
Tirol case [2010]IRLR 631 (ECJ)
NOTE – the Regs do not provide a right to go part-time.
REG 4: workers returning part-time after absence.
REG 4(1): This regulation applies to a worker who-
was a full-time worker before the absence;
returns to the same employer within 12 months of the absence starting;
returns to the same job or level under a contract requiring fewer weekly hours that the one
before the absence.
[NOTE that Reg 1(3) defines “weekly hours”]
REG 4(2): Reg 5 applies to the returning worker as if there were a comparable full-timer
immediately before the absence, or if it can be shown that if the returner had continued to
work a variation would have been made, then the contract will include that variation.
REG 5: less favourable treatment.
REG 5(1): A part-timer has the right not to be treated less favourably than the employer
treats a comparable full-timer as regards the terms of the contract or by being subject to
any detriment by any act or failure to act, by the employer.
REG 5(2): Reg 5(1) applies only if –
the treatment is on the grounds that the worker is a part-timer; see: Carl v University of
Sheffield [2009] IRLR 616 (needs to be effective and predominant cause but not sole reason
for discrimination)
and

the treatment is not justified on objective grounds. See Ministry of Justice v Blackford
[2018] IRLR 688 (failure to extend appointment as a Recorder)
N.B. full-timers who refuse to go part-time are not protected.
The Notes accompanying these Regs give performance related pay schemes as an example
of treatment being justified.
REG 5(3): in determining whether a part-timer has been treated less favourably the pro-rata
principle (defined in Reg 1(2)) applies unless inappropriate.
The Notes accompanying these Regs suggest that pro-rating of health insurance may not be
possible.
REG 5(4): paying lower rates of overtime to a part-timer where the total number of hours
including overtime, worked does not exceed the basic hours of a comparable full-timer does
not constitute less favourable treatment.
REG 6(1): if a worker considers treatment by the employer to infringe these Regs, they may
write to the employer requesting a written statement giving particulars of the reasons for
the treatment. Worker is entitled to be provided with such a statement within 21 days of
the request.
REG 6(2): statement admissible as evidence in any proceedings under Regs.
REG 6(3): tribunal may draw inferences from a refusal to give a statement or supplying one
that is evasive or equivocal.
NOTE that no compensation available for infringement of Reg 6(1).
REG 6(4): this Regulation does not apply if treatment is dismissal but note effect of Section
92 ERA 21996.
REG 7(1): a dismissal is unfair if it is for one of the reasons in Reg 7(3).
REG 7(2): right not to be subjected to any detriment by any act or failure to act by the
employer on the grounds listed in Reg 7(3).
REG 7(3): the reasons or grounds are

(a) that the worker has –
brought proceedings against the employer under these Regs;
requested a written statement under Reg 6;
(iii) given evidence or information in connection with such proceedings brought by any
worker;
otherwise done anything under these Regs;
alleged that the employer infringed these Regs;
refused, or proposed to refuse, to forego any rights under these Regs;
(b) that the employer believes or suspects that the worker has done, or intends to do any of
the above.
REG 7(4): if the reason or ground is (v) or (b) above and the allegation made by the worker is
false and not made in good faith, then the worker is not protected by Reg 7(1) or (2).
REG 8(2): complaints to employment tribunal must be made within 3 months (6 months for
armed services) of date of less favourable treatment or detriment (see Reg 8(4).
REG 8(3): out of time complaints can be heard if just and equitable.
REG 8(6): employers to identify the ground for less favourable treatment or detriment.
[Note that applicant must demonstrate less favourable treatment].
REG 8(7): where complaint well –founded, tribunal may make a declaration, order
compensation and recommend action within a specified period to obviate or reduce adverse
effect on complainant.
REG 8(8): 2 year limit on backdating where complaint relates to occupational pension
scheme.
REG 8(9): compensation must be just and equitable.
REG 8(11): no compensation for injury to feelings.
REG 8(12)(13): duty to mitigate loss and reduction for contributory fault.
REG 8(14): extra compensation for failure to comply with a Reg 8(7) recommendation.

REG 9: Section 203 ERA 1996 applies to prevent contracting out of Regs.
REG 11: Employers liable for acts in the course of employment or performed by agents with
usual defence of taking all steps that were reasonably practicable to prevent the act.
REGS 12-16: includes Crown, armed services, Parliamentary staff and police.
REG 17: holders of judicial office paid on a daily fee basis are excluded. See: Christie v DPA
(2007)ICR 1553
Schedule: amendments to primary legislation.
QUESTION FOR CONSIDERATION?
What might be the consequences of providing employees with a statutory right to work on a
part-time basis either permanently or temporarily?
WORK/LIFE BALANCE:
See ACAS Flexible working and work-life balance.
This guide describes the importance of having a good work/life balance thus:
‘In today’s society it is common for employees to have many competing responsibilities in
their life. Examples of responsibilities away from work might include:
• care commitments involving children or elderly relatives

• education commitments that limit availability at times of the week/month/year
• duties and/or interests outside of work
• needing to be available for religious observances
• people wanting a greater sense of well being and reduced stress levels
A poor balance between an employee’s work commitments and their other responsibilities
can lead to stress, high absence and low productivity.
Employees who have a better work-life balance often have a greater sense of responsibility,
ownership and control of their working life. If an employer helps an employee to balance
their work and home life this can be rewarded by increased loyalty and commitment. They
may also feel more able to focus on their work and to develop their career.’
It describes the variety of types of flexible working as:
Flexitime
Part-time work
Overtime
Job sharing
Compressed hours
Shift work
Annualised hours
Term-time working
Temporary working and Fixed-term contracts
Sub-contracting
Zero hours contracts
Homeworking
Mobile working

Hot-desking
FLEXIBLE WORKING
The right of an employee to apply for flexible working is found in the Employment Rights Act
1996 ('ERA') ss 80F – 80l, as amended by Employment Relations (Flexible Working) Act 2023.
Further detail is found in the ACAS Code of Practice on handling in a reasonable manner
requests to work flexibly. https://www.ACAS.org.uk/media/3977/Code-of-Practice-on-
handling-in-a-reasonable-manner-requests-to-work-
flexibly/pdf/11287_CoP5_Flexible_Working_v1_0_Accessible.pdf
All employees who have been continuously employed for a period of not less than 26 weeks
have the right to apply for flexible working.
An employee who fulfils the qualifying conditions has the right to apply for variations in the
terms of their contract in relation to hours of work, times when required to work or place of
work.
Employees are able to make two flexible working requests in any 12 month period but
cannot make an application under if another such application to the same employer is
proceeding. See Section 80F (4A) on the meaning of “proceeding”.
Requests have to be dealt-with by employers within 2 months of receipt of a request if no

extension is agreed.
Employers cannot refuse a request until they have ‘consulted’ with the employee (although
there is no legislative de minimis requirement of what that ‘consultation’ needs to include):
S 80G (1) (aza)
Commotion Ltd v Rutty [2006] IRLR 171
Shaw v CCL Ltd [2008] IRLR 284
The employer must 'deal with the application in a reasonable manner' (ERA s.80G(1)(a)) and
must notify the employee of its decision within two months of the application (or longer
period if agreed). See the ACAS Code of Practice on handling in a reasonable manner
requests to work flexibly which recommends the offer of a right of appeal..

On agreement to extend decision period see: Walsh v Network Rail [2022] IRLR 213
Under the ERA s.80G (1)(b) the application may only be refused if the employer considers
that one or more of the following grounds applies:
the burden of additional costs,
detrimental effect on ability to meet customer demand,
inability to re-organise work among existing staff,
inability to recruit additional staff,
detrimental impact on quality,
detrimental impact on performance,
insufficiency of work during the periods the employee proposes to work,
planned structural changes, and
such other grounds as the Secretary of State may specify by regulations
Under section 80(H) an employee may complain to an employment tribunal that:
his or her employer has failed to comply with the duty under section 80G(1), or
a decision to reject the application was based upon incorrect facts, or
the employer incorrectly treated his/her application as having been withdrawn.
The maximum amount of compensation that can be awarded is 8 weeks’ pay. The tribunal
may also order the employer to reconsider the application.
‘FAMILY-FRIENDLY’ RIGHTS’
Part VIII of the Employment Rights Act 1996 contains provisions for maternity rights, and
further detail is provided in the Maternity and Parental Leave Regulations 1999 (MPL
Regulations), as amended.

Employees have rights to maternity, parental, adoption, paternity and additional paternity
leave. They also have rights to time off to deal with ad hoc emergencies and to seek longer-
term flexible working to care for dependants.
ANTENATAL CARE – RIGHT TO TIME OFF
Under section 56(1) ERA 1996 a pregnant woman cannot be unreasonably refused paid time
off during working hours for antenatal care.
If time off is refused or not paid or underpaid, a complaint can be made to an employment
tribunal. If the claim is upheld the tribunal must make a declaration and must also order
compensation.
Since October 2014 there is a right for fathers and partners (including same sex) of pregnant
women to have unpaid time off to accompany their partner to 2 ante-natal appointments
MATERNITY LEAVE
Maternity leave may be taken as a combination of two parts:
ordinary maternity leave (‘OML’)
additional maternity leave (‘AML’)
Each leave period lasts up to 26 weeks
Maternity leave is taken before and/or after the ‘expected week of childbirth’ ('EWC')
This is defined as the week (beginning with midnight between Saturday and Sunday) in
which it is expected that childbirth will occur. The employee may decide when to start her
leave, but this cannot be earlier than the beginning of the 11th week before the beginning
of the EWC (Regulation 4(2)(b) MPL Regulations 1999).
An employee’s entitlement to maternity leave is conditional on her notifying the employer

no later than the 15th week before the EWC (unless not reasonably practicable) of her
pregnancy and the date on which she intends to start her OML (Reg 4 MPL regs).
Exception (Reg 6) – if the employee is absent from work when into 4th week before EWC
The employer may request written notice and medical certificate.
Within the OML, and forming part of it, is the compulsory maternity leave period. This is a
two-week period, beginning with the day of the birth, during which the employer must not
permit the employee to work. An employer who allows an employee to work during this

period will be subject to a fine (Section 72(3) ERA 1996 and Regulation 8 MPL Regulations
1999).
The additional maternity leave period commences on the day after the last day of the
ordinary maternity leave period.
Under Regulation 12A the employer is entitled to maintain ‘reasonable’ contact with the
employee during maternity leave; the same Regulation enables the employee to do up to 10
days’ work for her employer without this having the effect of bringing her maternity leave to
an end. These days are known as ‘keeping in touch’ days.
Under Reg 9 an employee on OML or AML is entitled to the benefit of all the terms and
conditions of employment under her employment contract which would have applied had
she not been absent. This does not include terms and conditions relating to wages or salary
(she receives statutory maternity pay instead) but she is entitled to other contract benefits
(s.73(5) ERA 1996).
An employee has the right to return to work on her original contract and on terms and
conditions which are no less favourable than if she had not taken leave. Those who take
longer leave may, in some circumstances, be offered instead suitable and appropriate
alternative employment (Regulation 18A(1) MPL Regulations 1999).
An important change was introduced in 2011. An employee who qualifies for maternity
leave but wishes to return to work rather than taking up her full 52 week entitlement is able
to transfer up to 26 weeks of the leave to the father of the child.
STATUTORY MATERNITY PAY (SMP)
Employees who meet the qualifying conditions are entitled to receive statutory maternity
pay (SMP) for the first 39 weeks of maternity leave. The conditions are:
26 weeks of continuous service with the employer on the relevant date (14 weeks before
EWC)
Earning a gross wage of a minimum level
SMP may start from 11th week before EWC but no later than the day following the baby’s
birth.
During the first six weeks the employee will receive a sum equivalent to 90% of her average
gross weekly earnings with no upper limit.

During the remaining 33 weeks she will receive a flat rate sum (£156.66 in 2022) or 90% of
gross average earnings if this is less than the flat rate figure.
Women who don't qualify for SMP might qualify for Maternity Allowance
PARENTAL LEAVE
An employee who has been continuously employed for a period of not less than one year
and who has, or expects to have, responsibility for a child is entitled to be absent from
work on parental leave for the purposes of caring for that child (Regulation 13(1) MPL
1999). Both parents can take the leave.
In relation to a child born or adopted on or after 5th April 2015 the entitlement to parental
leave continues until the child's 18th birthday.
Each parent is entitled to 18 weeks’ leave in respect of any individual child (Regulation 14
MPL Regulations 1999). The leave is unpaid. It must be requested and taken in blocks of a
week or multiples of a week.
Rodway v South Central Trains Ltd [2005] IRLR 583
At least 21 days' notice of the leave has to be given, and the employer generally has the
right to postpone the leave, except where the employee wants to take it immediately after
the birth or placement of the child
Postponement is on basis of undue disruption to business
Must permit the leave to be taken within 6 months (Schedule 2 MPL Regulations 1999)
While an employee is on parental leave, only some of the terms and conditions of the
contract of employment continue to apply. This may be contrasted to an employee on
maternity leave – see above.
As with maternity leave, the right to return to work is a right to return with seniority,
pension rights and similar rights preserved (Regulation 18A(1) MPL 1999). Those who take
longer leave may, in some circumstances, be offered instead suitable and appropriate
alternative employment .
Riezniece v Zemkopibas Ministrija [2013] IRLR 828 (redundancy selection exercise while on
extended parental leave).
PATERNITY LEAVE

Paternity leave is a maximum of two weeks' leave. In order to qualify for ordinary paternity
leave an individual must meet certain conditions and comply with the notice requirements
(Regulation 4(1) PAL Regulations 2002).
Must have 26 weeks continuous service on relevant date and
Must be father or married to/partner/civil partner of mother and
Must have responsibility for bringing up the child.
An employee may take either one week's leave or two consecutive weeks’ leave in respect
of the child (or children). This leave must be taken between the date of the birth and a date
56 days after that.
Employees who are married to, or the partner/civil partner of, an adopter have the same
entitlement to paternity leave. They must meet similar conditions and abide by similar
notice rules. The important date is that on which the child is placed with the adopter.
Other rules relating to paternity leave – pay, right to return to job - are very similar to those
which apply to maternity leave. The employee receives the same flat rate figure paid for
maternity pay, see above (£156.66 in 2022) or 90% of average earnings, if lower.
[Note that the Additional Paternity Leave scheme was dissolved in 2015 and replaced by the
Shared Parental Leave scheme.
ADOPTION LEAVE
As with maternity leave this is divided into ordinary and additional adoption leave, each
period comprising 26 weeks, although there is no equivalent of compulsory maternity leave.
In relation to a child adopted before 5th April 2015 another important difference from
maternity leave is that adoption leave is only available for an employee with not less than
26 weeks' service on the relevant date.
In relation to a child adopted on or after 5th April 2015 there is no qualifying period of
service – an employee is entitled to adoption leave from 'day 1'.
Only one partner may take the leave but unused leave may, as with unused maternity leave,
be transferred to the other partner
Leave may start either on the date on which the child is placed for adoption or maximum 14
days before the expected placement date (contrast maternity leave – may start 11 weeks
before)

Statutory adoption pay (SAP) is payable for a total of 39 weeks, at £156.66 per week in 2022
or 90% of average gross earnings, if lower.
In relation to a child adopted on or after 5th April 2015 during the first six weeks the
employee will receive SAP equivalent to 90% of his/her average gross weekly earnings with
no upper limit, as with SMP (see above).
SHARED PARENTAL LEAVE AND PAY
In relation to a child born or adopted on or after 5th April 2015 both partners are able to
share the untaken balance of maternity/adoption leave ('Shared Parental Leave') and pay
('Statutory Shared Parental Pay') if they meet the eligibility criteria.
Up to 50 weeks of leave and 37 weeks of pay can be shared.
ShPP is paid at the rate of £156.66 a week in 2022 or 90% of average weekly earnings,
whichever is lower.
TIME OFF FOR DEPENDANTS
An employee is entitled to be permitted by the employer to take a reasonable amount of

unpaid time off to deal with illness, death or an emergency relating to a dependant (ERA
1996 s.57A) . Dependant is defined as:
a spouse or civil partner
a child
a parent
a person who lives in the same household as the employee
others who reasonably rely on the employee
Qua v John Ford Morrison Solicitors [2003] IRLR 184
Royal Bank of Scotland v Harrison [2009] IRLR 28
Under Section 57B ERA 1996 an employee may apply to an employment tribunal about a
failure to be allowed time off. If this is upheld the tribunal must make a declaration and may
award compensation which it considers ‘just and equitable in the circumstances’.
Protection from detriment and dismissal

It is automatically unfair, regardless of length of service, to dismiss an employee for any

reason connected with pregnancy or with maternity, parental, adoption, paternity or
additional paternity leave, dependant time off or flexible working. An employee is also
entitled not to be subjected to any detriment by the employer in relation to these rights.
Sefton Borough Council v Wainwright [2015] IRLR 90
Risk Assessment
Where an employee is pregnant, has given birth within the previous six months or is breast-
feeding, the employer must assess workplace risks and take steps to avoid them, find her
suitable alternative work or suspend her on full pay (Sections 66–67 ERA 1996).
British Airways v Moore and Botterill [2000] IRLR 296
The right to pay is lost if she unreasonably refuses an offer of suitable alternative work (ERA
1996 S.68).
UNPAID CARER’S LEAVE
Section 80J (1): Regs to be made “to provide or arrange care for a dependant with a long-
term care need”.
Section 80J (2): defines dependant and long -term care need.
Section 80J (4): at least a week’s leave during any period of 12 months.
Section 80K: Regs to deal with rights during and after leave.
Section 80N: Complaints to an employment tribunal within 3 months. Declaration and

compensation considered just and equitable in all the circumstances.
THE REGULATION OF WORKING TIME,
THE WORKING TIME REGULATIONS 1998 S.I.1833 (as amended)

Note that these Regs also implement provisions of the YOUNG WORKERS DIRECTIVE relating
to the working time of adolescents (those over minimum school leaving age but under
18).[Such adolescents have different rights in relation to health assessments for night work;
minimum daily and weekly rest periods and rest breaks at work].
The preamble to the WORKING TIME DIRECTIVE (henceforward WTD)states that "in order to
ensure the safety and health of Community workers,the latter must be granted minimum
daily,weekly and annual periods of rest and adequate breaks" and that "it is necessary in
this context to place a maximum limit on weekly working hours".
On UK challenge see: UK v Council of EU ropean Union [1997] ICR 443 (ECJ)
On EU right see: BlEU se v MB Transport (2008)IRLR 264
Reg 2(1): WORKER - includes anyone who works under:
* a contract of employment,or
* any other contract,express or implied and (if express) whether oral or in writing,whereby
the individual undertakes to do or perform personally work or services for another party to
the contract 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. See: Chief Constable of
Northern Ireland v Agnew (CJEU ) (on EU definition of worker); Bacica v Muir [2006] IRLR
35; Redrow Ltd v Wright [2004] IRLR 720 (C/A); Addison v Ashby [2003] IRLR 211; Byrne Ltd
v Baird [2002] IRLR 96 (EAT)
Reg 36: deals with agency workers who are not otherwise workers by deeming the agency
or principal to be the employer depending on who is responsible for paying the worker.
Reg 37: covers Crown employment
Note that:
* majority of agency workers and freelancers are likely to be workers
* Reg 19: domestic servants are excluded from provisions on working week and night work
but are entitled to rest breaks,rest periods and annual leave
the Regs also apply to trainees who are engaged on work experience or training other than
that on a course run by an educational institution or training establishment [though may be
covered by Reg 2(1)(a) below]. See also Reg 42.

On government trainees see now NMW Regs 1999 (Amendment) Regs 2001.
On foster parents see: Sindicatul Familia v Directa Generalia [2019] IRLR 167 (CJEU ).
Reg 2: WORKING TIME means -
* any period during which the worker is working,at the employer's disposal and carrying out
his/her activity or duties. See: Thue v Norwegian Government [2018] IRLR 449 (EFTA Crt);
Espsco v Tyco Security [2015] IRLR 935 (travelling time between home and first/last
customers included) Edward v Encirc Ltd [2015] IRLR 528
* any period during which the worker is receiving 'relevant training' (see EU ropean
Commission v Ireland [2016] IRLR 77 (CJEU )), and
* any additional period which is to be treated as working time for the purpose of these Regs
under a 'relevant agreement' (see Schedule 1 below)
In relation to 'on call' periods see: DJ v Radiotelevizija Slovenija [2021] IRLR 479 (CJEU );
Ville de Nivelles v Matzak [2018] IRLR 457 (CJEU ) (firefighter on close stand by at home);
On vocational training within Art 2 (1) see: BX v Unitatea [2022] IRLR 186 (CJEU )
Reg 4: AVERAGE WORKING WEEK:
Note that -
* a contractual obligation was acknowledged in Barber v RJB Mining [1999] IRLR 308
* on claim for breach of statutory duty see: **Fuss v Stadt Halle [2011] IRLR 176 (CJEU )-
Art.6(6) intended to confer rights on individuals; Sayers v Cambridge County Council [2007]
IRLR 29.
* the 48 hour limit is based on average working time and the Regs provide a calculation
method for working out average hours
* to calculate the average hours worked a reference period has to be determined (see
below)
* there are a number of potential exclusions,including the right of individuals to agree not to
apply the limit (see Reg 5 below)

Reg 4(2) requires employers to take all reasonable steps to ensure that limit is complied
with.
Section 10 suggests employers “may wish to make an enquiry …..about any additional
employment”. However, in CCOO v DEU tsche Bank [2019] IRLR 753, the CJEU indicates a
duty to keep records.
* does cut in pay following a reduction in hours amount to a detriment?
no enforcement by individuals ( see Reg 28 below)
no action for breach of statutory duty: Sayers v Cambridge County Council [2007] IRLR 29
REFERENCE PERIODS - standard period of 17 weeks.
Calculation of average hours can be represented by the following equation:
A+B divided by C where A is total hours worked during reference period;
B is total hours worked immediately after the reference period, during the number of
working days equivalent to the number of 'excluded' days; and
C is the number of weeks in the reference period.
Excluded days are days including annual leave,sick and maternity leave, and periods in
which an individual opting out agreement is in effect
When does the reference period start?: Reg 4(3) -
"any period of 17 weeks in the course of...employment" in any case unless a relevant
agreement applies successive 17 week periods.
Reg 4(4): for new employees the average is calculated by reference to the number of weeks
actually worked.
Where Reg 21 applies ("other special cases" (a) -(e)) reference period is 26 weeks.
Reg 23: Reference period could be 12 months where collective or workforce agreement so
provides on the basis of objective or technical reasons concerning the organisation of work.
DEROGATIONS:

i) Reg 5: Individual opt-out requirements –
* agreement must be in writing. On need for express individual consent freely given see:
Pfeiffer’s case [2005] IRLR 137 (ECJ).
* agreement may specify its duration or may be of indefinite length. However,worker must
have right to terminate by giving 7 days written notice,unless a different period (not
exceeding 3 months) is specified in the agreement
* employer must maintain up-to date records of who has opted out: see Reg 4(2)
* records must be available to an inspector and employment must co-operate with

inspector and supply him/her with any relevant material in relation to individuals who have
agreed to disapply the limit.
ii) Reg 19: Domestic servants.
iii) Reg 20: General exclusion applies to workers who have unmeasured working time.
[i.e. "on account of the specific characteristics of the activity in which he is engaged,the
duration of his working time is not measured or predetermined or can be determined by the
worker himself"].
In particular these include -
* managing executives or other persons with autonomous decision-making powers
* family workers, (see Halva v SOS [2017] IRLR 942 (CJEU ) – “relief parent’s” working time
largely predetermined) or
* workers officiating at religious ceremonies
See new Reg 20(2) and examples given in DTI Guidance Section 8.
On doctors’ hours see Reg 25A
RECORDS: Reg 9
employers have duty to keep records showing that limits on weekly work are being
complied with.
Records must be kept for 2 years.

ENFORCEMENT: Reg 28
Working time limits by HSE or local authority Environmental Health Departments.
Breach of these provisions will be an offence.
Failure to comply with relevant requirement: £20,000 maximum on summary conviction and
unlimited on indictment.
Breach of improvement/prohibition notice: fine and/or 2 years imprisonment.
Reg 6: NIGHT WORK:
Reg 2(1) defines NIGHT TIME as a period determined by a relevant agreement which must
be at least 7 hours and which must include the period between 11pm and 5am. If no such
agreement 11pm -6am applies.
NIGHT WORKER: defined as either
- anyone who,"as a normal course" [e.g. on the majority of working days], works at least 3
hours of his/her daily working time during night time,or
- anyone who is likely, during night time, to work a certain proportion of his/her annual
working time as defined by a collective or workforce agreement
See now: R v Att-Gen for N.Ireland ex parte Burns [1999] IRLR 315
Reg 6(1): normal working hours of night worker must not exceed an average of 8 in each 24
hours.
Reg 6(2): employer to take all reasonable steps to ensure compliance with limits. On
unavailability of a declaration where no criminal charge see: R v S. Yorkshire Fire Authority
[2018] IRLR 717.
On 'average normal hours of work' see Reg 6(5) and DTI examples: average hours calculated
by dividing normal working hours during reference period by the number of working days in
that period
On 'normal hours of work' see Reg 6(6) and note impact of overtime.

Reg 6(7)(8) : where work involves special hazards or heavy physical or mental strain limit is 8
in each 24 hours period during which night work performed (i.e. without any reference
period). Such hazards or strain to be identified by collective or workforce agreement or a
risk assessment under Management of HASAW Regs 1999 finds "significant risk".
Does it matter how much of the work involves hazards or strain?
REFERENCE PERIOD:
Reg 6(3): 17 weeks used for calculating average hours (unless not been working that long).
Period runs from date in a relevant agreement or,where no agreement,any 17 week period.
DEROGATIONS:
* Reg 19: domestic workers
* Reg 20: those whose working time is unmeasured or cannot be predetermined ( "on
account of the specific characteristics of the activity in which he is engaged,the duration of
his working time is not measured or predetermined or can be determined by the worker
himself").
* Where Reg 21 applies ("other special cases" (a) -(e): for example, workers whose activities
involve need for continuity of service or production; where there is a foreseeable surge of
activity)
* Reg 23: collective or workforce agreements.
Note that where exemptions apply under Regs 21-23 employers are obliged to grant either
equivalent periods of rest or to afford appropriate protection. However, compensatory rest
is not defined: see Reg 24 & DTI Guidance (should be as long as the worker was entitled but
unable to take and within a reasonable time).
Reg 7: workers entitled to FREE HEALTH ASSESSMENT before being assigned to night work
and at regular intervals. See DTI Guidance Section 4
No prescribed procedure for conducting a health assessment but see DTI Guidance: Section
4 on screening questionnaires & Section 9 (sample health questionnaire).

Health and safety risks should already have been assessed so purpose of this assessment is
to determine whether worker is fit to undertake night work to which assigned. Hazards may
not change at night but risks might because of certain medical conditions.
Reg 7(2): note health and capacities assessment for adolescents.
If registered medical practitioner has advised the employer that the worker is suffering
health problems connected with night work,the worker is entitled to be
transferred,"whenever possible" to suitable day work : see Reg 7(6).
Note also DDA 1995,reasonable adjustments and hours of work
DEROGATION:
only domestic workers - Reg 19
RECORDS: Reg 9
Employers have duty to keep records showing that limits on night work and obligations in
relation to health assessments for night workers are being complied with.
Records must be kept for 2 years.
ENFORCEMENT: Reg 28
Limits on activities of night workers and health assessments are enforced by HSE or local
authority Environmental Health Departments.
Breach of these provisions will be an offence.
Failure to comply with relevant requirement: £20,000 maximum on summary conviction

and unlimited on indictment.
Breach of improvement/prohibition notice: fine and/or 2 years imprisonment.
No enforcement by individuals.
Reg 8: MONOTONOUS WORK (see Art 13 of Directive on humanisation of work).

where work pattern puts health and safety at risk,in particular because of monotony or
predetermined work rate,employer must ensure adequate rest breaks.
Short breaks more frequently?
No derogations here except for domestic workers.
Note that no claim to tribunal under Reg 30.
ENFORCEMENT: Reg 28
Reg 10: DAILY REST
Reg 2(1) defines rest period.
Reg 10(1): Adults entitled to at least 11 hours consecutive rest in each 24 hour period during
which they work. See: Academia de Studia Economice case [2021] IRLR 496 (CJEU ) (where
several contracts with the same employer rest period relates to contracts taken together
not individually).
Reg 10(2): For young workers the figure goes up to 12 hours.
Reg 10(3): This rest period can be interrupted where activ496ities are split up over the day
or are of short duration:
On effect of being ‘on call’ see: MacCartney v Oversley House Management (2006) IRLR 514
On availability of a declaration see: R v S. Yorkshire Fire Authority [2018] IRLR 717.
On weekly rest being additional see: IH v Mav-Start [2023] IRLR 591 (CJEU)
Reg 11: WEEKLY REST
worker entitled to uninterrupted weekly rest period of not less than 24 hours (48 hours for
young workers) in each seven day period during which s/he works. See: Da Rosa v Varzim
Sol [2018] IRLR 470 (CJEU );
Entitlement can be averaged over a reference period of 14 days if the employer chooses one
of two options
- either two uninterrupted rest periods of not less than 24 hours in each 14 day period
- or one uninterrupted period of not less than 48 hours in each 14 day period.

Reference period starts at Sunday midnight unless relevant agreement provides otherwise.
For YOUNG WORKERS, the 48 hours cannot be averaged over 14 days but may be
interrupted where activities are split up over the day or are of short duration and may be
reduced if justified by technical or organisational reason (but not below 36 hours): Reg 11(3)
Note that weekly rest is in addition to daily rest except where "objective or technical
reasons or reasons concerning the organisation of work" justify incorporating all or part of
that daily rest into the weekly rest period: Reg 11(7)
DEROGATIONS FROM DAILY AND WEEKLY REST PERIODS:
himself").
activity)
* Reg 22: shift workers are exempt when they change shift or when work split up over the
day,provided given equivalent periods of compensatory rest.
Note that where entitlements are modified under Regs 21- 23, employers are obliged to
grant either equivalent periods of rest or to afford appropriate protection. However,
compensatory rest is not defined: see Reg 24 & DTI Guidance (should be as long as the
worker was entitled but unable to take and within a reasonable time). See Union Syndicale v
Premier Ministre [2011] IRLR 84 (CJEU ).
RECORDS ABOUT DAILY AND WEEKLY REST PERIODS:
None required but see CCOO v DEU tsche Bank [2019] IRLR 753 where the CJEU indicated a
Reg 30: COMPLAINTS about infringement of daily and weekly rest periods or compensatory
rest go to an employment tribunal.

Compensation available on basis of what is just and equitable having regard to employer's
default and loss sustained by worker.
Reg 12: REST BREAKS
Should employers make sure that workers can take their rest? See: *Grange v Abellio Ltd
[2017] IRLR 108
Entitlement where daily working time is more than 6 hours.
On rest periods where worker has more than one contract see: Academia De Studii v Oipou
[2022] IRLR 496 (CJEU )
Details are to be set out in collective or workforce agreements. If no such agreement,break

must be for an uninterrupted period of not less than 20 minutes. See: Corps of
Commissionaires Ltd v Hughes [2009] IRLR 122
Regs do not specify whether such breaks be paid or not.
Young workers entitled to at least 30 minutes where daily working time is more than 4.5
hours (aggregate hours if more than one employer).
Break should not overlap with daily rest period and worker entitled to spend break away
from his/her workstation.
DEROGATIONS:
himself").
activity). See Gallagher v Alpha Catering [2004] IRLR 102 (C/A).
Note that where entitlements are modified under Reg 21 or 23, employers are obliged to
grant either equivalent periods of rest or to afford appropriate protection. However,
compensatory rest is not defined: see Reg 24 & DTI Guide (should be as long as the worker

was entitled but unable to take and within a reasonable time). See Crawford v Network Rail
Ltd [2019] IRLR 53 (C/A)
RECORDS ABOUT REST BREAKS:
None required but see CCOO v DEU tsche Bank [2019] IRLR 753 where the CJEU indicated a
Reg 30: COMPLAINTS about failure to provide rest breaks go to tribunal.
Compensation available on basis of what is just and equitable having regard to employer's
default and loss sustained by worker. However, no compensation for injury to feelings:
Santos Gomes v Higher Level Care Ltd [2016]IRLR 678
Regs 13- 16: ANNUAL LEAVE:
Not defined in Directive. See: *Russell v Transocean International [2012] IRLR 179 (SC) on
field breaks.
On the relationship with pay see: The Sash Window Company Ltd v King [2018] IRLR 142
(CJEU ) (deterred from taking leave); ** Pimlico Plumbers Ltd v Smith (No.2) [2022] IRLR 347
(C/A) (entitled to unpaid leave – employer to show gave opportunity to take paid leave).
On the relationship with sick leave see: Sobszyzyn v Szkola Rzeplinie [2016] IRLR 725 (CJEU )
(on effect of convalescence leave); Sood Ltd v Healy [2013] IRLR 865; * NHS Leeds v Larner
[2012] IRLR 825 (C/A); Neidel v Stadt Frankfurt [2012] IRLR 607 (CJEU ); *ANGED v FASGA
[2012]IRLR 779 (CJEU ); Dominguez v CICOA [2012] IRLR 321 (CJEU ) (no need to work during
reference period) & Stringer v HM Revenue & Customs [2009] IRLR 214 (CJEU ).
On the consequences of sickness during annual leave see: KHS AG v Schulte [2012]IRLR 156
(CJEU )& Pereda v Madrid Movilidad SA [2009]IRLR 959 (CJEU )
On carrying over leave on grounds of illness see: TSN case [2020] IRLR 141 (CJEU )
On entitlement after death see: Stadt Wuppertal v Bauer [2019] IRLR 148; Bollacke v Klaas
and Kock BV [2014] IRLR 732
Reg 13(7)(8): Qualifying service removed by Working Time Amendment Regs 2001. Monthly
accrual in the first year of employment.
Reg 13(2): Entitled to 5.6 weeks in each "leave year" (see Reg 13(3) but this is not additional
to contractual entitlements.

Reg 13(5): New employees entitled to proportion of annual entitlement equal to the
proportion of the leave year remaining on date employment commences.
Reg 13(6): Entitlements to proportions of weeks are calculated in days and fractions of a day
are treated as whole days.
On daily rate see: Leisure Leagues Ltd v Maconnachie [2002] IRLR 600 (EAT) – divide annual
salary by number of working days in the year.
Reg 16: Entitled to a 'week's pay' in respect of each week (see Sections 221-224 ERA 1996)
but there is no statutory maximum and 'calculation date' is first day of leave.
see: * Harpur Trust v Brazell [2022] IRLR 867 (S/C (on part-year workers) ;East of England
Ambulance Service v Flowers [2019] IRLR 798 (CA) (voluntary overtime included); Lock v
British Gas (No.2) [2016] IRLR 946 (C/A) (results-based commission); BA v Williams [2012]
IRLR (1014(SC)(normal remuneration);
On the unilateral reduction in hourly rates to fund holiday pay see: Blackburn v Gridquest
Ltd [2002] IRLR 604 (C/A).
What if the contract provides that an element of the weekly wage represents holiday pay?
See: Reg 35, ** Robinson –Steele v RD Retail Ltd (2006)IRLR 386 (ECJ) & Lyddon v Englefield
Ltd (2008)IRLR 198
* paid time off on public holidays potentially counts towards minimum entitlement.
* suggests pro-rata entitlement for part-timers. See now: Part –Time Workers Regs 2000.
Reg 13(9): Entitlement can only be taken in the leave year to which it relates but see: Plumb
v Duncan Print [2015] IRLR 711 (18 month carry over period); Pereda v Madrid Movilidad SA
[2009]IRLR 959 (ECJ)
However, Regulation 13A(7)provides that a relevant agreement may allow any leave to
which a worker is entitled under Regulation 13A (the additional 1.6 weeks annual leave in
the UK) to be carried forward into the leave year immediately following the leave year in
respect of which it is due.
Entitlement can be taken in instalments but may not be replaced by monetary "allowance in
liEU " except where employment terminated: see Reg 14. The reason for termination is
irrelevant see: WD v job-medium GMBH [2022] IRLR 364 (CJEU ), and Maschek v Stadt Wien

[2016] IRLR 801(CJEU ). However, there can be payment in liEU in respect of enhanced
contractual leave. See: Witley & District Club v Mackay [2001] IRLR 670.
On the determination of the amount of outstanding holiday where there is no relevant

agreement see: Reg 14. Where a relevant agreement permits it, Reg 14(4) provides for
compensation to the employer where holiday taken in excess of entitlement see: Hill v
Chapel [2003] IRLR 19.
Reg 13(3): LEAVE YEAR
commences as specified in a relevant agreement,or in its absence, either the anniversary of

the worker's commencement of employment or anniversary of coming into effect of Regs,
whichever is the later.
Reg 14: TERMINATION DURING COURSE OF LEAVE YEAR.
Reg 15: NOTICE REQUIREMENTS.
In the absence of a relevant agreement, worker has to give equivalent of twice the amount
of leave proposing to take. Employer can prevent leave on a particular date by giving notice
equivalent to number of days employee wishes leave to be taken on. See: Fraser v
Southwest London Health Trust [2012] IRLR 110 & Lyons v Mitie Ltd [2010] IRLR 288
In effect, employee can be required to take leave on particular days. See: Sumsion v BBC
Scotland [2007] IRLR 678.
Note that employee must be able to take leave during period other than maternity leave
see: Gomez v CIDC SA [2004] IRLR 407 (ECJ)
DEROGATIONS:
None.
RECORDS ABOUT PAID ANNUAL LEAVE:
None required.

Reg 30: COMPLAINT to tribunal.
Remedy is order of holiday pay due or outstanding on leaving. See: Santos Gomes v Higher
Level Care Ltd [2018] IRLR 440 (C/A) (no award for injury to feelings).
On claim for unlawful deduction and time limits see: HMRC v Stringer [2009] IRLR 677 (H/L)
Reg 35(1)(a): void agreements. See: MPB Structure Ltd v Munroe [2002] IRLR 601 (EAT)
REG 18: TOTAL EXEMPTIONS:
[Note Directive on non-mobile workers in the transport sector].
* specified service activities eg armed forces,police
* (apart from the provisions relating solely to adolescents),specified sectors of activity ie air,
rail, road, sea, inland waterway and lake transport,sea fishing,other work at sea.
VICTIMISATION: Regs 31 & 32
Reg 31: inserts Section 45A & 48(1ZA) ERA 1996 - Workers have right not to be subjected to
a detriment for exercising rights under Regs. This covers:
* refusal to exceed working time limit
* refusal to work during rest period or break or to forgo annual leave
* refusal to sign a workforce agreement or to make,vary or continue any other agreement

provided for in the Regs
* activities carried out as a workforce rep or candidate for election
* allegation that the employer infringed the worker's rights under the Regs
* bringing proceedings to enforce rights under the Regs
Reg 32: inserts Section 101A ERA - Automatically unfair to dismiss "employees" on same
grounds but interim relief not available.
Note that Section 12A ETA 1996 allows ET’s to impose a financial penalty on employers
one or more aggravating features”.

Reg 29: OFFENCES - relevant provisions of HASAWA 1974 apply e.g. fines and
improvement/prohibition notices. See Regs 4(2); 6(2); 7-9.
THREE TYPES OF AGREEMENTS can be used to supplement or derogate from Regs. [See DTI
Guidance Section 8].
1. Collective agreements- made by independent trade unions and employers or employers

associations
2. Workforce agreements : Schedule 1 para 1
Made by employer and appropriate elected reps.
For such an agreement to be valid it must:
a) be in writing
b) have effect for a specified period not exceeding 5 years
c) apply to either all relevant members of workforce,or all relevant members of workforce
who belong to a particular group
d) agreement must be signed,before it comes into effect,by the reps of the workforce or the
particular group of workers but,where there are 20 or fewer workers on the date when the
agreement is first made available for signature,either appropriate reps or a majority of the
workforce.
Schedule 1 para 2: "relevant members of the workforce" are "all of the workers employed
by a particular employer,excluding any worker whose terms and conditions of employment
are provided for,wholly or in part,in a collective agreement".
This para also defines "a particular group" and "representatives of the workforce". "Group"
means "relevant members of a workforce who undertake a particular function, work at a
particular place or belong to a particular department or unit within their employer's
business.
Schedule 1 para 3: lays down the requirements relating to the election of workforce reps.
Before the agreement is made available for signature,the employer must have provided all
the workers to whom it was intended to apply with copies of the agreement and such
guidance as they might reasonably require in order to understand the agreement fully.

3) Relevant agreements: defined as "a workforce agreement which applies to the

worker,any provision of a collective agreement which forms part of a contract between him
and his employer, or any other agreement in writing which is legally enforceable as between
the worker and his employer".
QUESTIONS FOR CONSIDERATION
Is the opt-out from the maximum working week a fundamental flaw in the protection
provided for workers?
WEEK 22: PAY ISSUES - FOR EXAMPLE, UNLAWFUL DEDUCTIONS, NATIONAL MINIMUM
WAGE
On non-performance and part performance of the contract see: Cresswell v Inland Revenue
[1984] IRLR 190 & Wiluszynski v Tower Hamlets BC [1989] IRLR 279 (C/A).
A. ITEMISED PAY STATEMENTS: Section 8 ERA
-right extended to workers in 2019
- no need to request
- on remedy see Sections 11(4) & 12(4)
B. NATIONAL MINIMUM WAGE:
National Minimum Wage Act 1998 and National Minimum Wage Regulations.
COVERAGE
On the effect of illegality see: Ajayi v Abu [2018] IRLR 1028 (victim of trafficking); Blue Chip
Ltd v Helbawi [2009] IRLR 128

Sections 1(2)(a) & 54: definition of 'worker' (same as Section 230 ERA 1996). See Inland
Revenue v Post Office [2003] IRLR 199
Section 34: applies Act to agency workers (person responsible is person who pays).
Section 35: applies Act to outworkers (including those who delegate or are assisted by
others).
Section 36: application to Crown employees
Sections 38 & 9: application to Parliamentary staff
Section 40: application to those working on a UK registered ship.
Section 41: power to extend categories of worker by Regs.
Section 42: Act can be applied to offshore employment.
Section 44: voluntary workers.
Section 46,47 & Schedule 2: amend agricultural wages legislation.
Section 49: makes contracting- out void.
SOME EXCLUSIONS:
Section 1: those who are under 18 [Reg 12(1)] or do not ordinarily work in UK;
Section 37: armed forces;
Section 44: prisoners;
Section 47: share fishers;
Reg 2: member of family unit. See: *Thukalil v Puthenveettil [2023] IRLR 512 on indirect sex
discrimination and the application of Art 157.
Reg 12 (2): apprentices during first 12 months if under 26 years. See: Edmunds v Lawson QC
[2000] IRLR 391 (C/A)
Reg 12(5): certain designated training or employment schemes do not qualify.
Reg 12(6): above exclusion does not apply if trainee is employed.
Reg 12(8)(9): deal with students and certain courses with placements.

Reg 13: HMRC v Ant Marketing [2020] IRLR 744 (effect of training costs).
Reg 14: HMRC v Ant Marketing [2020] IRLR 744 (accommodation deduction not a reduction
in NMW).
Reg 16(1): see Wray v Lees & Co [2012] ICR 43
LEVEL
Section 1(3): such single hourly rate as S of State may prescribe BUT Section 51(2): prevents
Regs from providing differently "for different cases or for different descriptions of person".
Thus there cannot be variations based on region,sector,size or occupation.
From April 2023 the ‘national living wage’ is £10.42 for those aged 23 and over and the
‘standard rate’ is £10.18 hour for those aged 21-22.
There are also development rates: £7-49 per hour for those aged 18 years to 20 years
inclusive and £5.28 for apprentices and those under 18.
Section 1(4): provides that a "pay reference period”, for which worker must be paid at least
NMW, is such period as may be prescribed. Reg 10: PRP = one month unless paid by
reference to a shorter period.
Section 2: S of S can make Regs prescribing how to calculate a worker's hourly rate of
remuneration for these purposes.
Four categories of working time (depend on way in which worker is paid):
i) time work: Regs 3(1),7 (time spent travelling),15,19 (time spent on training) & 20
See: *** Royal Mencap Society v Tomlinson –Blake [2021] IRLR 466 (SC) (not doing time
work unless awake for the purpose of working); Whittlestone v BJP Home Support Ltd
[2014] IRLR 176;
On the application of Regs 15(1A)& 16(1A) to on-call hours and sleeping accommodation
see: * Focus Care Ltd v Roberts [2017] IRLR 588 (multi factorial assessment); Shannon v
Rampersad [2015] IRLR 982 (on call night care assistant not entitled to NMW while sleeping
at care home); Esparon v Slavikovska [2014] IRLR 598;

salaried hours: Regs 4,15,21-23. On Reg 21 see: Lloyd v Elmhirst School [2023] IRLR 477
(question is what contract provides for).
output work (piecework or commission workers without set hours): Regs 5,17,24-26A
iv) unmeasured work (residual category): Regs 6,18,27-29 (fair estimate). See: MacCartney v
Oversley House Management (2006) ICR 510 & Walton v Independent Living Organisation
[2002] ICR 1406 (EAT).
Reg 8: remuneration counting towards NMW:
Reg 9: remuneration not counting.
Regs 30-5: payments to worker to be taken into account
For example, Reg 33(a): deduction of money owed for course. See HMRC v Stewart plc
[2015] IRLR 187
On training see: Opalkova v Acquire Care Ltd [2021] IRLR 921
On payments from a tronc see: Revenue & Customs v Annabel’s Ltd [2009] ICR 1123 (C/A)
On payments for gas and electricity see: HM Revenue & Customs v Leisure Employment Ltd
[2007] IRLR 450 C/A .
On sleep- in payment and Reg 31(1)(d) see: Smith v Oxfordshire NHS Trust [2009] ICR 1395.
Regs 36-7: where living accommodation provided.
Reg 14: method of determining whether nmw paid. Divide gross NMW pay in PRP by total
working time [see i) - iv) above] in PRPs.
On accommodation and training costs deductions see: *HMRC v Ant Marketing Ltd [2020]
IRLR 744.
On effect of consolidating an attendance allowance see: Laird v Stoddart Ltd [2001] IRLR
591.
Section 3: S of S can prescribe different hourly rates for different age groups below 26.

Section 4: allows S of S to add descriptions (and take them out) of those aged 26 and over to
the candidates for a modified rate
RESPONSIBILITY FOR PAYING NMW:
Section 1(1) makes worker's employer responsible. Section 54(4) defines "employer".
LOW PAY COMMISSION:
Sections 5 -8 and Schedule 1 provide statutory framework.
Section 6(1): S of S has discretion to refer matters to LPC
Section 7: LPC must consult before making recommendations and S of S must lay report
before Parliament.
RECORDS:
Section 9: power to make Regs requiring employers keep records.
[Section 51(1)(a): may make different provision for different cases].
Reg 38: "sufficient" records must be kept for three years but do not need to be in a
particular form. On transfer of obligation under TUPE see: Mears Ltd v Bradburn [2019] IRLR
882
Section 10: worker's right to require employer to produce "relevant records" and to inspect
and copy those records.
Worker must have reasonable grounds for believing that paid less than NMW and give the
employer a written "production notice". The employer can determine where the inspection
takes place but give reasonable notice.
Relevant records must be produced within 14 days (or later if agreed). Worker has right to
be accompanied when examining them but must state that intention in the production
notice.

Section 11: can complain of employer's failure to ET. If upheld tribunal must award 80 x
NMW
Section 12 &: power to make Regs requiring employers to provide written "national
minimum wage statement" (N.B. not in 1999 Regs).
UNDERPAYMENT:
Section 17: if paid less than NMW shortfall is deemed to be additional remuneration and
workers have contractual right to recover the difference.
Section 18: can complain of unlawful deduction under Part 2 ERA 1996. Compensation is
available for financial loss under Section 24(2) ERA 1996. ET chair sits alone. Compare
county court proceedings.
On time limit in Section 23 see: Bath Hill Court v Coletta [2020] IRLR 124 (C/A); Ajayi v Abu
[2018] IRLR 1028;
Section 28: burden of proof reversed i.e. presumption that qualified for NMW and that
underpaid. Claimant to establish amount of underpayment.
VICTIMISATION:
Section 23: workers have right not to be subjected to a detriment because -
(i) asserted in good faith their right to NMW,their right of access to records or right to
recover difference between NMW and what paid; or
(ii) as a result of such an assertion,their employer was prosecuted; or
(iii) they qualify or might qualify for NMW or for a particular rate of NMW
Section 24: complaint to ET. On limitation period for claiming see: see: Ajayi v Abu [2018]
IRLR 1028; Bathhill Court Ltd v Coletta [2020] IRLR 124
Section 25: inserts new Section 104A and Section 105(7A) into ERA 1996 making dismissal of
an employee automatically unfair if the reason for it is one listed in Section 23 NMWA
(above). On constructive dismissal and ignorance of rights see: ***Mruke v Khan [2018] IRLR
526 (C/A)
Note that interim relief is not available.

ENFORCEMENT OFFICERS: (NMW COMPLIANCE OFFICERS)
[See Inland Revenue Codes of Practice on Enforcement]
Section 13: S of S empowered to appoint officers to enforce and/ or arrange for existing
inspectors to act as enforcement officers.
Section 14: powers of enforcement officers e.g. right to enter premises and take copies of
records.
Section 15: information obtained when on duty treated as held by S of S. [Note that Section
16 deals with passing information about agricultural wages].
Section 19 (as amended by Employment Act 2008): If it is discovered that workers are not
being paid the national minimum wage, the Revenue can issue a notice of underpayment
requiring payment of the national minimum wage together with arrears and a financial
penalty. See: Inland Revenue v Bebb Travel plc [2002] IRLR 783 (EAT) & Inland Revenue v St
Hermans Estate Ltd [2002] IRLR 788 (EAT).
Section 20: if enforcement notice not complied with, enforcement officer may,on behalf of
any workers in the notice who are incapable of representing themselves or of seeking
representation on their own, bring proceedings to recover sums owed.
Section 21: if enforcement officer satisfied that employer has failed to comply with
enforcement notice,officer may serve a penalty notice on the employer requiring it to pay a
fine no earlier than four weeks from date it received notice. Amount (payable to Secretary
of State) is twice the NMW for each worker underpaid per day of non -compliance.
Section 22: employer can appeal to ET against penalty notice. Penalty not enforceable until
appeal withdrawn or determined.
It should be noted that Section 12A ETA 1996 allows ET’s to impose a financial penalty on
employers where there has been a breach of employment rights and the ET thinks that “the
breach has one or more aggravating features”.
In April 2016 the maximum penalty that could be enforced was raised to an amount that
was equal to 200% of the underpayment, subject to a maximum of £20,000 per worker. For
those employers who deliberately and persistently fail to comply with the NMW the
Government is creating a new type of enforcement order, a Labour Market Enforcement
Order, supported by a criminal offence for non-compliance. Other penalties include the
public naming of underpayers.

MISCELLANEOUS MATTERS:
Section 29: appeals on point of law from ET go to EAT
Section 30: conciliation officers have jurisdiction in relation to Sections 11,18,20 & 24.
Section 31: lists 6 offences triable without a jury.
a) refusing or wilfully neglecting to pay
b) failing to keep records
c) keeping false records
d) producing false records
e) obstructing an officer
f) refusing to give information to an officer
Fine not exceeding the statutory maximum of £20,000 but unlimited if tried on indictment:
Section 31(9)
Section 32: joint responsibility of individuals and corporate body.
Section 33: enforcement officers or other non-lawyers may be authorised to prosecute

under Section 31
Section 50: S of State has duty to publish information about the Act and Regulations.
Section 51: General power to make Regs.
C. UNLAWFUL DEDUCTIONS:
Section 13 ERA 1996: provides a right not to suffer unauthorised deductions [On tribunal
statistics see latest ACAS Annual Report or Tribunal Service statistics].
On the contractual right to wages where unavailable for work owing to an avoidable
impediment see: Burns v Santander plc [2011]IRLR 639 (remand in custody)
On ET’s ability to interpret a contractual term see: *Agarawal v Cardiff University [2019]
IRLR 657 C/A

On the contractual right to impose a variation which results in lower income see: Hussman
Ltd v Weir [1998] IRLR 288
THE MEANING OF 'WAGES': Section 27.
On payments in liEU see: Delaney v Staples [1992] IRLR 191 (H/L)
On holiday pay see: HMRC v Stringer [2009] IRLR 677 (H/L)
On commission payable "in connection with his employment" see: Robertson v Blackstone
Management [1998] IRLR 376 (C/A).
On the calculation of holiday pay see: Taylor v E. Midlands Offender Employment [2000]
IRLR 760 (EAT);
On tips see:** Nerva v UK [2002] IRLR 815 (ECHR)
On SSP see: Sarti Ltd v Polito [2008] ICR 1279 & Taylor Gordon Ltd v Timmons [2004] IRLR
180
On lack of jurisdiction for a quantum meruit payment see: Abellio Ltd v Thomas [2022] IRLR
288
MEANING OF DEDUCTION:
On impact of Section 13 (1) see: Peninsular Ltd v Sweeney [2004] IRLR 49 (EAT)& Hill v
Chapel [2003] IRLR 19
Section 13(2) requires consent to the deduction before it is made see: * Cleeve Ltd v Bryla
[2014] IRLR 86 (on the legitimate recovery of recruitment costs); Kerr v The Sweater Shop
[1996] IRLR 424, Discount Tobacco v Williamson [1993] IRLR 327.
On the impact of collective agreements see: Davies v Hotpoint Ltd [1994] IRLR 538
On Section 13(3) and meaning of "properly payable" see: Small v Boots plc [2009] IRLR 328
(on whether contractual right to bonus); Coors Ltd v Adcock [2007] IRLR 440 C/A (incentive
payments must be capable of quantification otherwise remedy in county court while in
employment); Farrell Mathews & Weir v Hansen [2005] IRLR 160 (non –contractual
discretionary bonus); New Century Ltd v Church [2000] IRLR 27
No distinction between reductions and deductions see: Bruce v Wiggins Teape [1994] IRLR
536

On deductions "in respect of expenses incurred" see: London Borough of Southwark v

O'Brien [1996] IRLR 420 (mileage allowances).
On unilateral reduction of working hours and an attendance allowance see respectively: IPC
Ltd v Balfour [2003] IRLR 11 & Laird v Stoddart Ltd [2001] IRLR 591.
On impact of additional public holiday see: Campbell & Smith Construction Ltd v Greenwood
[2001] IRLR 588
Section 13(4) deals with errors of computation see: Yemm v British Steel [1994] IRLR 117 &
Morgan v W. Glamorgan C.C. [1995] IRLR 68(does not include error of law).
Section 13(5): deductions for industrial action. See: Hartley v King George VI College [2015]
IRLR 650 (C/A) on the value to be attributed to strike days.
Section 14 deals with excepted deductions see: Healey v King Edward VI College [2017] IRLR
763 (effect of Apportionment Act) (SC); Norris v London Fire Authority [2013] IRLR 428;
Cooper v Isle of Wight College [2008] IRLR 124 (industrial action);
Section 16 deals with excepted payments. See: Gill v Ford Ltd [2004] IRLR 840
Note also the distinction drawn between mistakes of fact and mistakes of law in Avon
County Council v Howlett [1983] 1 AER 1073. On the consequences of failure to notify the
employer about an accidental overpayment see: Attorney General's Reference [1984] 3 AER
369
WORKERS IN RETAIL EMPLOYMENT: Sections 17- 22
ENFORCEMENT:
Section 23(2-4) deals with the time limit for complaints. Note there is now a two year
maximum period for recovery under the Deduction from Wages (Limitation) Regs 2014. No.
3322
On series of deductions within Section 23(3)(a) see: Pimlico Plumbers v Smith (No.2) [2022]
IRLR 347 (C/A)
Section 26: prevents double recovery where there is also a Section 11 complaint.
Section 12A ETA 1996 allows ET’s to impose a financial penalty on employers where there
has been a breach of employment rights and the ET thinks that “the breach has one or more
aggravating features”.

D. SICKNESS:
On contractual rights: see Mears v Safecar Security [1982] IRLR 183 (C/A)
On Statutory Sick Pay (28 weeks at standard rate): see Part X1 of the Social Security
Contributions and Benefits Act 1992 plus textbooks.
E. SUSPENSION ON MEDICAL GROUNDS:
see Sections 64-70 ERA 1996.
F. GUARANTEE PAYMENTS:
In 2023, £35 max for 5 days within any 3 month period (i.e. total of £175)..
For rights during lay off and short time see contract and Sections 28-35 ERA 1996. [Note also
relationship to redundancy payments.] Abercrombie v Aga Ltd [2013] IRLR 13
BIBLIOGRAPHY:
On the meaning of work see: A. Davies (2017) ILJ 477 “Getting more than you bargained for?
Rethinking the meaning of ‘work’ in employment law”.
QUESTION FOR CONSIDERATION:
Despite the inherent age discrimination, should the introduction of national minimum wage
legislation in the UK be regarded as a success?
WEEK 23: REVISION AND EXAM TECHNIQUE

SEMINAR QUESTIONS
How to find employment law sources online
So far as possible please read the actual law reports, not just the summaries of the cases
that you will find in the textbooks. The simplest and most convenient way, as long as you
have access to a computer, is to use the university's electronic resources. Where there is
more than one report of the same decision, you will find that the Industrial Relations Law
Reports (IRLR) is the most helpful one to use. The other set of employment law case reports
is the ICR (Industrial Cases Reports) but because the IRLR is easier to use, wherever possible
we will give you the IRLR reference for the case.
To find the law report, log on to myUniHub and then click on the ‘My University’ tab and
scroll down to ‘My Library’, then click on ‘Databases’. Click on the letter 'L', then 'Lexis
Library' and then click on 'Enter Database Here'. To find a case, click on ‘Cases’ at the top,
then enter the names of the parties or alternatively the case citation (the law report
reference), e.g [2000] IRLR 43. Make sure your search terms are exactly right otherwise
your search won’t yield the right result!
Also make sure that you are looking at the correct STAGE of the court proceedings. So if
you're searching by the names of the parties, make sure that e.g with the Carmichael v
National Power case (Seminar 2), that you are looking at the House of Lords decision, not
the Court of Appeal or Employment Appeal Tribunal ones!
If you'd prefer to look at the hard copy of the report rather than online, you will be able to
find the cases in the law reports volumes in the library.
Read at least the ‘headnote’ – the introduction at the beginning of the report, which
contains the facts and summarises the main points from the decision. If you find that you
can follow the headnote, then try and have a look at part, at least, of the full judgment. Try
and grasp what the cases were about and the main point of the decisions. Don’t get too

bogged down in - and depressed by! – the detailed evidence and all the legal points. We’ll
hopefully clarify the cases further in the seminars.
To look at a statute in Lexis Library, instructions are as follows. For example, to look at
section 95 of the Employment Rights Act 1996:
- Access Lexis Library (as above)
click on 'Legislation'
in the box 'Title' type 'Employment Rights Act'
in the box 'Year' type '1996'
tick the mini-box 'Act',
then in the box 'Provision' type '95'

SEMINAR 1: FOUNDATIONS AND INSTITUTIONS OF EMPLOYMENT LAW.
READ: R (on the application of UNISON) v Lord Chancellor [2017] IRLR 911, UKSC 51
https://www.supremecourt.uk/cases/docs/uksc-2015-0233-judgment.pdf
Make a note of the judgment paragraph numbers you consulted to answer these questions:
1. What was the issue that the Supreme Court had to decide?
2. What was the argument and counter-argument relating to access to justice?
3. What was the Court’s finding and what was its main reasoning?
4. Why is it considered necessary for the state to provide a legal system for
employment law disputes? What are the broader issues at stake?
In addition, think about:
a) What are the sources of UK employment law? Which of the sources are the most
important nowadays?
b) What are employment tribunals and who sits on a tribunal panel? What are examples of
the types of claim which may be brought before the tribunal?
c) What is the tribunal & court hierarchy in an employment law claim?
d) What is ACAS and what functions does it carry out? How does ACAS carry out conciliation
work and how widely used is it? Go to the ACAS website which is www.ACAS.org.uk and
locate the latest Annual Report.

SEMINAR 2: EMPLOYMENT STATUS
1. In Carmichael v National Power [2000] IRLR 43, why did the court decide that Mrs
Carmichael was not an employee?
2. In Express and Echo v Tanton [1999] IRLR 367 why did the court decide that Mr
Tanton was not an employee? What were the important differences in the case of
MacFarlane v Glasgow City Council [2001] IRLR 7 which enabled the court to hold
that Ms Macfarlane might be an employee? See now: Stuart Delivery Ltd v Augustine
[2022] IRLR 56 (C/A)
3. Jamal has worked for the last three years for ABC Ltd ( 'ABC') as a medical products
motorcycle courier. He has a written agreement with ABC entitled 'Self-employed
courier's agreement'. He uses his own bike but ABC pays the cost of his fuel and the
insurance he requires as a courier. The company deducts income tax and national
insurance from his wages. He receives no company sick pay if he is ill. He is expected
to report for work every day to the company office where he is given work for the
day. His agreement states that he may work for other courier companies as well but
Jamal knows of other couriers who were dismissed by ABC for doing this. There is
also a term in his agreement which states that if he is unable to attend work he may
arrange for someone to replace him, though the replacement must come from a list
of names kept by ABC.
With reference to relevant case law advise Jamal, by considering all the stated facts,
whether he has the status of an employee for employment law purposes
4. Read Pimlico Plumbers Ltd and another (Appellants) v Smith (Respondent) [2018]
UKSC 29. Why did the Supreme Court find in favour of Mr Smith?
5. What do learn from Revenue and Customs v Athholl House Ltd [2022] IRLR 698
(C/A)?

SEMINAR 3: EMPLOYMENT STATUS
1. In Uber v Aslam [2019] IRLR 257 (C/A) why were the claimants regarded as workers?
2. In Autoclenz v Belcher [2011] IRLR 820 820 why did the Supreme Court hold that the
car valeters were employed under contracts of employment, given that their
contracts stated they were self-employed?
3. Might an agency worker become the employee of a client (the ‘end user’) to whom
s/he is assigned by the agency? Read: Cable & Wireless plc v Muscat [2006] IRLR 354
and Tilson v Alstom Transport [2011] IRLR 169
4. Do the Agency Worker Regulations 2010? resolve the uncertainty as to when an

agency worker is an employee?
5. Bushra, a secretary, has been registered with Jobs-4-All ‘J4A’), an employment

agency, for 10 years. She has a written agreement with J4A which is stated to be a
self-employed person’s contract. She has been assigned to a number of different
client companies over the years by J4A but for the last two years she has worked as
one of the secretaries to a project management team in Building Britain plc (‘BB’), a
large construction company. She attends work regularly, takes all her orders and
instructions from the team members and wears a staff badge. All her equipment is
provided by BB and they provide a mobile phone for which they pay the bills. She is
not subject to the disciplinary and grievance procedures of BB and receives no
company sick pay. Her annual leave is arranged with J4A. If she is sick or unable to
attend work for some other reason she informs J4A, who send along another
secretary in her place. J4A pays her wages. Bushra was off sick recently and when
she came back to work she was told by BB that she would no longer be working for
them. Bushra is very upset at what has happened.
With reference to relevant case law advise Bushra whether she might have had
the status of an employee of BB.
6. Here is a specimen essay question. "At the beginning of the twenty–first century the
judges are still having great difficulty in identifying who is an employee. It is
therefore vital that Parliament extends employment protection rights to all types of
worker as soon as possible".
With reference to relevant case law, critically discuss this statement.

Using the knowledge you have of cases which have considered whether someone is an
employee, try to write an outline answer to the question. For further reading, read Great
Debates: Employment law, pages 10-13, 18-33 and 50-53.

SEMINAR 4: INTRODUCTION TO EQUALITY AND DISCRIMINATION LAWS
For further reading on discrimination, read Great Debates: Employment law chapter 4
1. At which stages of the employment (e.g the hiring stage) is it generally unlawful to
discriminate? When is it lawful to discriminate?
2. Direct discrimination
a. What is meant by direct discrimination? See section 13 EA 2010.
b. In B v A [2007] IRLR 576 - a jealous employer dismissed his secretary. Why

did the EAT decide that there was no direct sex discrimination in this case?
Direct discrimination with a good motive
c. Is it still direct sex discrimination if the (alleged) discriminator is acting with a

good motive? See Moyhing v Barts [2006] IRLR 860 EAT
d. Why did Amnesty International refuse to accept an application for a post of

researcher for Sudan from an applicant of Sudanese origin? Was this lawful?
See Amnesty International v Ahmed [2009] IRLR 884 EAT
Discrimination by association
e. How did a white employee win a race discrimination claim under the Race
Relations Act 1976, when she resigned because of the company policy
towards black and Asian customers? Read Weathersfield v Sargent [1999]
IRLR 94 Court of Appeal -. Look now at the wording of section 13 (1) of EA
2010 – would Mrs Sargent have won her claim under this Act?
f. What did the Court of Appeal decide when a member of the BNP claimed he
had been subjected to discrimination by association? Read Redfearn v Serco
Ltd [2006] IRLR 623. What happened when Mr Redfearn took his case to the
EU ropean Court of Human Rights? Read Redfearn v United Kingdom [2013]
IRLR 51, http://www.thompsonstradEU nionlaw.co.uk/information-and-
resources/lelr/weekly-305.htm#political_protection &
http://www.thompsonstradEU nionlaw.co.uk/information-and-
resources/lelr/weekly-307.htm#dismissal_because_of_political_opinion


SEMINAR 6: DISCRIMINATION
Pregnancy and maternity discrimination
1. In order to bring a claim under section 18 , does a woman need a comparator (i.e
does she need to compare herself to someone else? What is the protected period?
2. May a woman claim for pregnancy and maternity discrimination if she is

unfavourably treated outside the protected period? Read British
Telecommunications v Roberts and Longstaffe [1996] IRLR 601 Thompsons Issue 3
3. Is it lawful for an employer to refuse to employ or to dismiss a pregnant woman on a

short fixed-term contract because she is going to be absent from work when she is
needed? Read Tele Danmark v Handels-Og [2001] IRLR 853 ECJ – Thompsons Issue
70
Dress codes
4. When do the rules in an employer’s dress codes constitute sex discrimination?

Read:-
Smith v Safeway[1996] IRLR 456 CA and Thompsons LELR Issue 3
Department of Work and Pensions v Thompson [2004] IRLR 348 EAT and Thompsons
LELR Issue 87
Harassment
5. What sort of behaviour counts as harassment? What if an employee is over-

sensitive, or what if the employer's behaviour wasn't done with the purpose of
offending? See the analysis of the definition of harassment in Richmond PharmacEU
ticals v Dhaliwal [2009] IRLR 336 EAT
Victimisation
6. What sort of situations are covered by the definitions of victimisation in s.27 of EA

2010?

7. In Rank Nemo (DMS) v Coutinho [2009] IRLR 672 CA why did the court hold that an
employer who doesn't pay his ex-employee the compensation awarded by a tribunal
in a discrimination claim could be committing an act of victimisation?

1. Why were Sikhs held to be a ‘racial group’ for the purposes of the Race Relations Act
1976? See Mandla v Lee [1983] IRLR 209 House of Lords. N.B This case was decided
under the previous definition of indirect discrimination, but the concept is the same.
For the definition of race under EA 2010, see section 9.
READ: Essop and others v Home Office (UK Border Agency) [2017] UKSC 27
Religion or belief discrimination
2. Read the case of Azmi v Kirklees Metropolitan Borough Council [2007] IRLR 484 EAT.
What were the claims and why did the claimant lose?
3. What occupational requirement exceptions are there to religion or belief

discrimination under EA 2010?
4. Smithers, a gay man, applies for a job as art teacher at St Botolph's, a Catholic
school. The headteacher (Mr Skinner) explains that because of his sexual orientation
he would be 'unsuitable' in a Catholic environment and that he cannot be appointed.
Advise Smithers.
5. Why did the claimant in Eweida v British Airways [2010] IRLR 322 CA lose her claim
of discrimination on grounds of religion or belief in not being allowed to wear a cross
at work? What did the EU ropean Court of Human Rights decide? See Eweida v
United Kingdom [2013 IRLR 231
6. Why did the claimant in London Borough of Islington v Ladele [2010] IRLR 211 CA
lose her claim of discrimination on grounds of religion or belief in being required to
officiate at civil partnership registration ceremonies?
7. What sort of non-religious beliefs are covered by EA 2010? Are political beliefs
covered? Read Grainger v Nicholson [2010] IRLR 4 EAT

Discrimination on grounds of sexual orientation
1. Is it unlawful discrimination when the discriminator mistakenly perceives an

employee to be of a particular sexual orientation? What about a situation where
even the discriminator does not believe it?
On both the above, read English v Thomas Sanderson Blinds [2009] IRLR 206 CA
2. What occupational requirement exceptions are there to sexual orientation

discrimination under EA 2010?
3. Peter works for Brickwall, a gay rights campaign organisation. All the employees are
gay, including Peter, and his colleagues are aware of his sexual orientation. He is
single and his colleagues frequently subject him to banter suggesting that he is a
closet heterosexual with a secret girlfriend. Peter goes along with it for a while but
he now finds it annoying and unpleasant. Advise Peter.
4. When might an employer be vicariously liable for acts of discrimination committed

by their employees? See EA 2010 section 109 and read the following cases:
Jones v Tower Boot [1997] IRLR 168 CA
Chief Constable of Lincolnshire Police v Stubbs [1999] IRLR 81 EAT
What defence does an employer have? See EA 2010 section 109 (4).
5. Who has the burden of proof in discrimination claims? See section 136 EA 2010. You
will see that essentially there are two stages:-
Stage 1
The employee must show a prima facie case that there was discrimination.
Stage 2
If the employee has succeeded at stage 1, the burden of proof then moves to the employer
who must then provide a non-discriminatory explanation of the facts, i.e disprove
discrimination.
What might count as good prima facie evidence? Read Hewage v Grampian Health Board
[2012] IRLR 870,

For an example of evidence that did not count as good prima facie evidence read Laing v
Manchester City Council [2006] IRLR 748 EAT
6. Try and answer this problem question:
Gillian has been a junior manager with XYZ Ltd for several years and has received excellent
appraisals. A vacancy recently arose in a senior management post in the company. Gillian
applied and was interviewed but her application for the promotion was not successful. The
job went to a male colleague who joined the company last year. Gillian is disappointed
personally and she also feels that it would have been to the benefit of the company to have
appointed a female senior manager since the company currently has very few women in
senior managerial posts.
Advise Gillian as to any claim she may have and how the rules on the burden of proof
operate in any such claim.

1. What is the time limit for bringing a discrimination claim in the employment tribunal
under EA 2010?
2. What are the remedies for discrimination?
3. Disability Discrimination
a. What is the definition of a disability under EA 2010? See section 6 EA 2010 and
look at “Guidance on matters to be taken into account in determining questions
relating to the definition of disability” - see
https://www.gov.uk/government/uploads/system/uploads/attachment_data/fil
e/85010/disability-definition.pdf
b. Why was the claimant held to be a person with a disability in Goodwin v Patent
Office [1999] IRLR 4 EAT? Note: it is no longer necessary for a mental impairment
to be clinically well recognised.
4. What is 'discrimination arising from disability'? See EA 2010 section 15.
5. What are examples of reasonable adjustments which the employer might be obliged
to make? See section 20 of EA 2010.
What if the employer doesn't know about the disability? See Ridout v TC Group
[1998] IRLR 628
6. Is positive discrimination permitted in relation to disability under EA 2010? See the

case of Archibald v Fife Council [2004] IRLR 651 HL See now section 13(3) of EA 2010.
7. Mo, who limps badly from an accident, which occurred some years ago, applies for
the vacant caretaker’s post at Springfield High School. He is interviewed but the
headmaster (Mr Skinner) tells him that he would not be suitable because due to his
injury he would be unable to carry out some of the tasks (e.g climbing ladders,
pursuing naughty children etc).
Advise Mo.
8. Age discrimination

a. When might it be possible for employers to have the defence of justification

for direct age discrimination? Read:Seldon v Clarkson Wright & Jakes [2012]
IRLR 590
b. In the case of Homer v Chief Constable of West Yorkshire Police [2012] IRLR
601 Thompsons Weekly Issue 267, why did the Supreme Court hold that
there had been indirect discrimination?

SEMINAR 10: INDIVIDUAL AND COLLECTIVE SOURCES OF TERMS
1. Is the statutory statement of terms which the employer has to give the worker the
same thing as a contract of employment?
2. What is the difference between implied terms of fact and implied terms of law?
3. In Adin v Sedco [1997] IRLR 280 what was the implied term of fact relating to
payment of sick pay under the contract?
4. What is the legal test for deciding if there has been a breach of the employer’s
implied duty of co-operation (trust and confidence)? To see some examples of
behaviour which is likely to be in breach of this term read the following cases:-
o Reed and Bull Information Systems v Stedman [1999] IRLR 299
o Gogay v Hertfordshire County Council [2000] IRLR 703
o Horkulak v Cantor Fitzgerald [2003] IRLR 756
o Transco plc v O’Brien [2002] IRLR 444
5. Why was it held in Hilton v Shiner Ltd [2001] IRLR 727 Employment Appeal Tribunal
that there was no breach of the trust and confidence term on the facts of that case?

1. What duties does an employer have in relation to providing an employment

reference? Read the following cases:
• Bartholomew v London Borough of Hackney [1999] IRLR 246 Court of Appeal
• TSB Bank v Harris [2000] IRLR 157 Employment Appeal Tribunal
• Jackson v Liverpool City Council [2011] IRLR 1009
2. In Intel v Daw [2007] IRLR 355 why was Intel liable for the breakdown in Mrs Daw’s
mental health? Was it relevant that she had not made use of Intel’s confidential
counselling service?
3. Which implied terms in the employee's contract were breached by the employer in
Waltons & Morse v Dorrington [1997] IRLR 488 (Note: At the time of this decision it
was lawful in the U.K to smoke in public places!)
4. Write an outline answer to the problem which follows.
Kristine works for a major firm of surveyors. The central heating in the building has
not been working properly for quite some time, and Kristine's office is always cold.
She has complained a number of times and heating engineers have tried to remedy
the problem but without success. Three months ago Kristine was told by her boss
that there is nothing more that can be done as the firm cannot afford to instal a new
heating system in the current difficult economic circumstances. Kristine is
considering resigning.
Advise Kristine as to her employment law rights.
5. Where there is a conflict between an express term of the contract and an implied
term, which takes precedence? Read Johnstone v Bloomsbury Health Authority
[1991] IRLR 118

1. Do employees have a duty under their contract to adapt to change? Read Cresswell v
Inland Revenue [1984] IRLR 190
2. May an employer ever require an employee to perform duties which are different
from those required by the express terms of the contract? Read Luke v Stoke on
Trent CC [2007] IRLR 305 EAT (the CA decision is not important for our purposes)
3. Does an employee have the right to be paid if s/he performs only part of his/her
duties? Read Spackman v London Metropolitan University [2007] IRLR 744
4. How does the implied duty of fidelity affect the use by an ex-employee of the ex-
employer’s confidential information? Read Faccenda Chicken v Fowler [1986] IRLR 69
5. In Thomas v Farr [2007] IRLR 419 why was the employer allowed to restrict their ex-
employee from working for a competitor?
6. What is meant by 'whistleblowers' and 'protected disclosures'? What sort of

information may be disclosed?
7. In Harlow v Artemis Ltd [2008] IRLR 629 how did the company’s redundancy policy
become a term of the contract?
8. In Malone v British Airways [2011] IRLR 32 why were crew complements, which were
fixed by collective agreement, not a term in the contract?
9. Write an answer to the following specimen essay question:
‘The courts have been able to exercise a powerful influence over the content of the
employment contract by the use of implied terms'. Critically consider this statement
with reference to relevant case law’.
For further reading on the contract of employment, read Great Debates: Employment law
chapters 2 and 3

SEMINAR 13: CONTINUITY OF EMPLOYMENT.
1. Why is continuity of employment an important concept? When is continuity broken?
2. How did the employer succeed in breaking the employees’ continuity of employment
in Booth v United States of America [1999] IRLR 16

SEMINAR 14: SUSPENSION, VARIATION AND BREACH OF CONTRACT
1.
a. If the employer varies the employment contract against the wishes of the
employee what are the options open to the employee?
b. What was the mistake made by Mr Robinson in the case of Robinson v

Tescom [2008] IRLR 408 EAT
2. When is there a danger for the employee that s/he will be taken to have accepted a
variation of the contract by conduct? Read the following cases:-
• Jones v Associated Tunnelling [1981] IRLR 477 EAT
• F W Farnsworth Ltd v Lacy [2013] IRLR 198
3. When may an employer suspend an employee (i) with pay and (ii) without pay?
On suspension with pay see William Hill v Tucker [1998] IRLR 313 CA
4. What impact does the implied term of trust and confidence have on the employer's
right to suspend? See Gogay v Herts CC [2000] IRLR 703 CA
5. What are the remedies for breach of contract?
6. What is an interim injunction? What are the conditions which must be fulfilled in
order for the court to grant one? Read Lew v Board of Trustees of United
Synagogue[ 2011] IRLR 664
SEMINAR 15: TERMINATION OF EMPLOYMENT UNDER COMMON LAW AND STATUTE
1. When might an employment contract be frustrated?
2. If an employee resigns due to pressure from the employer, does the law treat this as
a resignation or a dismissal? See Sandhu v Jan de Rijk Transport Ltd [2007] IRLR 519
CA

3. What are the conditions that must be fulfilled for there to be a constructive
dismissal?
4. How much notice of dismissal must an employer give to an employee? How much
notice of resignation must an employee give to an employer?
5. When does an employer have the right to dismiss an employee summarily (without
notice)? Read Dunn v AAH Ltd [2010] IRLR 709 and McCormack v Hamilton
Academical FC [2012] IRLR 108
6. When is there a wrongful dismissal?
7. What are the remedies for a wrongful dismissal? What do damages for a wrongful
dismissal cover and what do they not cover? In Edwards v Chesterfield Royal
Hospital NHS Foundation Trust [2012] IRLR 129 what was the claim for and what
damages did the claimant succeed in recovering?

SEMINAR 16 UNFAIR DISMISSAL
1. In what ways was the old common law claim of wrongful dismissal inadequate so
that it was necessary for Parliament to create the new statutory law of unfair
dismissal in 1971?
2. What are the necessary qualifications for bringing an ordinary (i.e not automatic)
unfair dismissal claim?
3. Why is the effective date of termination (‘EDT’) important and what are the
statutory rules for deciding it?
4. Will the fact that s/he received incorrect legal advice justify a late claim? See Marks
& Spencer v Williams-Ryan [2005] IRLR 562 Court of Appeal.
5. When dismissal is by letter, from when does the time limit run? Read Gisda Cyf v
Barratt [2010] IRLR 1073
6. What advantages are there for an employee if s/he can claim unfair dismissal for one
of the automatically unfair reasons
7. Which employees have the right to receive a written statement of reasons for
dismissal? Why is the right important?

SEMINAR 17: UNFAIR DISMISSAL
1. In BS v Dundee City Council [2014] IRLR 131, what were the principles and
requirements which the court set out in regard to the fairness of ill health
dismissals?
2. If the employer causes the illness which leads to the dismissal, does that mean it will
always be an unfair dismissal? Read McAdie v Royal Bank of Scotland [2007] IRLR 895
3. May an employer dismiss an employee for making personal phone calls? Read John
Lewis v Coyne [2001] IRLR 139
4. What situations has ‘Some other substantial reason’ been held to cover? For an
interesting example of one of the categories, read Henderson v Connect [2010] IRLR
466
5. What is covered by the duty on the employer to act reasonably (s.98(4) ERA) in
dismissing?
6. How important is the ACAS Code of Practice on Disciplinary and Grievance

Procedures? What are the fundamental requirements? What are the legal
consequences if an employer doesn’t follow the Code?
7. If an employer fails to follow fair procedures in dismissing, will it be a fair dismissal if

the employer can show that fair procedures would have made no difference? Read
Polkey v Dayton [1987] IRLR 503

SEMINAR 18: UNFAIR DISMISSAL/REDUNDANCY
1. What are the ‘reasonableness’ requirements for a fair dismissal in a redundancy

situation? In the case of Morgan v Welsh Rugby Union [2011] IRLR 376, why was the
selection of Mr Morgan for redundancy not an unfair dismissal?
2. What are the remedies for unfair dismissal? Why are the re-employment remedies
so rarely awarded by tribunals? Why did the EAT decide that a re-employment order
was not appropriate in the case of Wood Group Ltd v Crossan [1998] IRLR 680
3. Is compensation awarded for injury to feelings? Read Dunnachie v Kingston Upon

Hull City Council [2004] IRLR 727.
4. Write an outline answer to the following: ‘Critically consider the strengths and
weaknesses of unfair dismissal protection’.
Redundancy
5. What situations are covered by the definition of redundancy in section 139(1) (a) and
(b) Employment Rights Act 1996?
6. What are the necessary qualifications to be able to make a redundancy claim? What
are the time limits for making a claim?
7. What is the effect on redundancy entitlement if the employer offers the employee
an alternative job? May the employee simply refuse the offer altogether? How long
is the statutory trial period? Why did the employee lose her right to a redundancy
payment in Optical Express v Williams [2007] IRLR 936?
8. How is a redundancy payment calculated?

SEMINAR 19: NON-STANDARD WORKING
1. What important points did the EAT decide about comparisons with full-time workers
under the Part-time Workers Regulations in Carl v University of Sheffield [2009] IRLR
616
2. What are the remedies for a breach of the Part-time Workers regulations?
3. Ahmed has been a part-time law lecturer at Bruddersford University Law School for
six months. His work consists entirely of his teaching and the marking of exams and
coursework. Full-time lecturers at the university have a number of other duties in
addition to their teaching and marking, such as devising courses, writing course
materials, administration tasks, attending meetings and acting in a supervisory and
pastoral role to the students. Ahmed feels, nevertheless, that it is unfair that
whereas the full-time lecturers have their own offices, he does not, and has to make
do with using one of the computers in the university library. The university’s
response is first, that the full-time and part-time lecturer roles are different jobs;
second, Ahmed is only on campus part of the week and only during term-time so it
would be a poor use of limited office space to give him an office; and third that the
decision not to give him an office is not only because he is part-time but also
because he has been employed by the university for a short time
With reference to relevant statutory provisions and case law advise Ahmed as to his legal
rights. NOTE: DO NOT CONSIDER DISCRIMINATION LAW UNDER THE EQUALITY ACT 2010
4. What are the remedies for a breach of the Fixed-Term Regulations?
5. In Department for Work and Pensions v Webley [2005] IRLR 288, why did the Court
of Appeal hold that there was no breach of the Fixed Term Employees Regulations
2002 in terminating Mrs Webley’s contract after 51 weeks?
6. In Hudson v Department of Work and Pensions [2013] IRLR 32 why did Mrs Hudson's
previous fixed-term contracts not count towards the four-year reg. 8 qualifying
period for a permanent contract?

SEMINAR 20: WORK/LIFE BALANCE
1. Who has rights under the Working Time Regulations?
2. What is the individual opt-out? What are the requirements for a valid opt-out? See
regulation 5(1)
3. Which of the rights can be modified by collective or workforce agreement? See

regulation 23 (a)
4. Do employers have to make workers take their rest breaks? Read EU ropean
Commission v UK [2006] IRLR 888 (CJEU )
5. Do hours when the worker is ‘on call’ count as working time? Read MacCartney v
Oversley House Management [2006] IRLR 514
6. What protection is given to workers who avail themselves of rights under the
regulations and are then victimized or dismissed? See regulations 31 and 32.
7. What is the length of the period of statutory maternity leave and how much of this
period is paid? Are all working mothers entitled to this leave? May the employer
refuse to grant the leave? What is compulsory maternity leave? What rights does the
mother have a) during the leave and b) once the leave is over?
8. How long is parental leave? Who is entitled to take it? May the employer refuse to
grant the leave? What rights does the employee have a) during the leave and b) once
the leave is over? In Rodway v South Central Trains [2005] IRLR 583,) why did the
Court of Appeal decide that Mr Rodway was not entitled to parental leave?
9. What is the right to dependant time off? In Qua v John Ford Morrison [2003] IRLR
184, what important points of guidance on the right were set out by the EAT? Does
this right include a right to compassionate leave? Read Forster v Cartwright Black
[2004] IRLR IRLR 781

SEMINAR 21: PAY ISSUES
1. Who is covered by the national minimum wage legislation?
2. In British Nursing Association v Inland Revenue [2002] IRLR 480, what did the court
decide about the hours of work of the night shift staff working from home?
On the effect of being allowed to sleep at work see
3. How are the rights under the legislation enforced?
4. Under section 13 of the Employment Rights Act 1996 when is it lawful to make a
deduction from wages? In the case of Kerr v The Sweater Shop (Scotland) Ltd [1996]
IRLR 424 were the deductions of holiday pay made by the employer (on termination)
lawful?
5. Is an employee always entitled to sick pay under his/her contract? Read Mears v
Safecar Security Ltd [1982] IRLR 183
6. In Adin v Sedco [1997] IRLR 280 was the employer entitled to dismiss the employee,
as the contract allowed, if this resulted in loss of long-term disability benefits?
SEMINAR 22: REVISION /EXAM TECHNIQUE

Employment Law Handbook Law2407

Uploaded by

Copyright:

Available Formats

Employment Law Handbook Law2407

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Employment Law Handbook Law2407

Uploaded by

Copyright:

Available Formats

School of Law

Department of Law & Politics

Module Coordinator in Dubai: Samantha Roberts

Document Version 1.0

Online location of handbook

Other formats available

Module Handbook 2023-24 page. 2

Module Handbook 2023-24 page. 3

Samantha Roberts - [email protected]

2. The module teaching team

Module Coordinator: Samantha Roberts

3. Communication with the teaching team

Module Handbook 2023-24 page. 4

Contact your Module Coordinator(s) and / or the Campus Programme Leader/

Module Handbook 2023-24 page. 5

4.1 Module Narrative

2. Title: Employment Law

5. Start term: September

6. Module leader: Professor David Lewis, Hendon campus,

7. Accredited by: N/A

(a) Pre-requisite N/A

(b) Programme restrictions LLB Law 146M200/146M20D/146M20M

LLB Commercial Law 146M293/146M295

LLB Law with Human Rights 146M291

(c) Level restrictions UG level 5

(d) Other restrictions or N/A

10. Learning outcomes:

On successful completion of this module, the student will be able to:

Module Handbook 2023-24 page. 6

1. Demonstrate a critical and detailed understanding of the issues relating to the

On successful completion of this module, the student will be able to:

4. Demonstrate intellectual and analytical skills in the application of employment and

• The foundations and institutions of employment and discrimination law,

• Employment status and non-standard working

Module Handbook 2023-24 page. 7

13. Assessment scheme:

(a) Formative assessment scheme

b) Summative assessment scheme

Two coursework assignments:

Module Handbook 2023-24 page. 8

Weighting Specification e.g. LO Anonymously Ethics approval

50% Up to 2500 words The ☐ No ☒ No

Weighting Specification e.g. LO Anonymously Ethics approval

50% Up to 2500 words The second ☐ No ☒ No

☐ Yes – whole module

☒ an overall aggregate of grade 16;

Module Handbook 2023-24 page. 9

☐ an overall aggregate of grade 16 with a minimum of grade 17 in each

Seen examination n/a

Unseen examination n/a

Coursework (no examination) 100%

14. Timetabled examination ☒No ☐

16. Learning materials

Smith, I, & Baker, A Smith & Wood’s Employment Law,

Adams,Z, Barnard, C, Deakin, S & Fraser Butlin, S,

Emir, A Selwyn’s Law of Employment, OUP 21 st

1. Module code: LAW2408

2. Title: Employment Law

5. Start term: September

6. Module leader: Professor David Lewis, Hendon campus,