Employment Law Bulletin – Issue 104 – 5 July 2011

Tuesday 5 July 2011

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Employment news

Age discrimination in training

Older workers are neglected when it comes to training and development in the workforce, according to a new report by the Chartered Institute of Personnel and Development. For further details, click here.

Legal aid cuts

The government now published a Legal Aid, Sentencing and Punishment of Offenders Bill. It contains provisions to remove employment law from the scope of legal help, although it is proposed that there will still be legal help for claims brought under the Equality Act 2010. For further details, click here.

Have your say

There is still time to register your comments in relation to the Government's consultation on flexible parental leave, changes to the Working Time Regulations and on equal pay audits, which remains open until 8 August 2011. For further details, click here.

Still awaiting

Employment lawyers are still awaiting the EHRC's Code of Practice for the Public Sector Equality Duty is in the drafting phase, which according to the Commission is due to be laid before Parliament in Summer 2011.

Also anticipated shortly is the government's response to the consultation "Resolving workplace disputes".

Employment Case Law

Supreme Court


Parkwood Leisure Ltd v Alemo -Herron and others [2011] UKSC 26
The Supreme Court has referred to the European Court of Justice the question of whether Article 3 of Council Directive 98/50/EC, on the transfer of workers, can be read dynamically. Regulations 5(1) and 5(2) of the Transfer of Undertakings (Protection of Employment) Regulations 1981 provide that a transferred worker's contract of employment has effect after the transfer as if originally made between the persons so employed and the transferee. The difficult question is what happens when a public sector employer transfers to the private sector a worker, in whose contract pay is determined by a public sector negotiating body in which the private sector employer is unrepresented. In these circumstances must the employer continue to pay increases of salary determined by the public sector negotiations? As a matter of statutory interpretation it has been found that for the purposes of UK law, the private sector employer may indeed bind itself to public sector pay rates (this understanding is known as the "dynamic" interpretation of TUPE and the Directive). However, the European Court of Justice has held, in Werhof v Freeway Traffic Systems GmbH & Co KG (Case C-499/04), that a transferee is not committed to any collective agreement made the date of the transfer. It will now be up to the European Court of Justice to provide further guidance to the courts. For the full judgment, click here.

Court of Appeal

Post-employment detriment

Jackson v Liverpool [2011] All ER (D) 89 (Jun), CA
A former employer may be liable to a former employee in tort where the employer provides a prospective employer with an unfair reference. The Court of Appeal has however held that a reference was not unfair which had not answered two questions on the request for the reference, but the referee had spoken on the telephone to the prospective employer and explained that there were unproven concerns about the former employee's performance. The circumstances were that after the employee, a social worker, had stopped working for the Respondent authority, a team manager discovered what appeared to be discrepancies between his record-keeping and the contact that he had had with four clients. The authority made it clear to the prospective employer that they were allegations only; they had not been tested. The Court observed that while the former employer has a duty to the employee, it also has a duty to the prospective employer. The judgment is available on Lawtel.


Arrowsmith v Nottingham Trent University
Rule 40 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 provides that the Tribunal may award costs where a party has acted unreasonably in bringing the proceedings. The Court of Appeal has approved the extension of this wording to cover the circumstances where a party has brought a claim based on a series of untruths. In the instant case a claimant claimed that the reason she had not been appointed to a role was that two managers had been aware that she was pregnant, and claimed that one of them had asked her if she was pregnant, and had made jokes about pregnancy, and that the second had discussed with her whether a particular dress would conceal her bump. In circumstances where the claimant was disbelieved, the Court found that a costs order was appropriate. The judgment is available on Lawtel.

Employment Appeal Tribunal

Costs: Preparation time

Andrew v Eden College & Ors [2011] EAT 0438/10
Rule 42 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 defines preparation time as time spent by the party or her representatives carrying out preparatory work up to but not including time spent at any Hearing. Where the Employment Tribunal made a preparation time order in favour of the successful unrepresented Respondents and its calculations of the time to be paid included the time for attendance of the Respondents at the hearing, the order was set aside. For the full judgment, click here.

Mirikwe v Wilson & Co Solicitors & Ors [2011] EAT 0025/11
Rule 41 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 provides that the Tribunal may have regard to the paying party's ability to pay when considering whether it shall make a costs order or how much that order should be. Where the paying party did not attend the costs hearing, although she was in the court building, and the Tribunal had held that her conduct of the proceedings had been "outrageous", it was held that the decision to disregard the claimant's ability to pay was well within the wide ambit of the Tribunal's discretion on costs. For the full judgment, click here.

Notices & coming events

The Discrimination Law Association will be hosting a lecture by Louise Whitfield titled "Using Judicial Review to challenge breach of public sector equality duty in the public sector" at 6pm on 27 July 2011. The event will be held at the London offices of Russell Jones and Walker and is open to members of the DLA. For more details, click here.

The Industrial Law Society's annual Oxford conference will be held from Friday 16 through to Sunday 18 September 2011 and will take place at St Catherine's College, Oxford. For more details, click here.


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