The outcome of Swiss Re Corporate Solutions v Sommer [2022] EAT 78, (which we reported in this month’s newsletter) provides an interesting illustration of the scope of the ‘without prejudice’ privilege rules in the context of settling an employment tribunal claim.

The ‘without prejudice’ rule (the “Rule”) allows parties to have a full and frank exchange of views about a dispute or litigation, and even to make concessions about weaknesses in their own case, when discussing settlement. The parties can do this safe in the knowledge that anything said or done will be “without prejudice” and therefore cannot be relied on and would not be disclosable if settlement is not achieved and the matter goes to court/tribunal. The courts recognise that without prejudice privilege is important for the efficient operation of the legal system, as it facilitates parties to resolving disputes outside of court/tribunal.

There are only a small number of narrow exceptions to this Rule and the Sommer case is a good illustration of that. One exception is that the Rule cannot be abused or weaponised as a disguise or excuse for “perjury, blackmail or other unambiguous impropriety”. Case law has established that this ‘unambiguous impropriety’ exception should be construed narrowly – it should only be applied in the clearest cases of abuse. In 2021 the Court of Appeal ruled it would only be lost in “truly exceptional” circumstances.

Continue Reading Sailing close to the wind: ‘without prejudice’ and the thresholds of ‘unambiguous impropriety’

With train strikes scheduled for next week, and flight cancellations now a regular occurrence, UK workers seem set for a summer of travel disruption. This blog explores the implication for employers, particularly where workers may be stuck abroad, or otherwise unable to get to their place of work.

Flight cancellations

After two years of restricted travel due to the pandemic, summer 2022 finally provides an opportunity for well overdue holidays, yet with scores of flights being cancelled daily, not everyone will get away as planned, or return when they are meant to. Notwithstanding an argument that flight cancellations or being stuck abroad is not an exceptional circumstance in present times, workers will inevitably feel like it is something outside of their control, and employers are generally advised to act pragmatically.

For those stranded abroad after a cancelled flight home, getting back to work may prove problematic (unless they have booked extra annual leave as a contingency). Those who are able to work, albeit abroad due to a cancelled flight, should be paid in the normal way – working remotely is commonplace in a post-pandemic world, and provides a practical short-term solution where the circumstances permit. However, this approach assumes that a worker has the means to continue working. Although some diligent or senior employees may have taken their work phone and laptop with them so that they can work even if they are out of the country, requiring or expecting all workers (to the extent that the option is available) to do so is not particularly conducive or consistent with the idea that annual leave is a period of rest and relaxation. 

Unless a contract or policy states otherwise (which is unlikely), workers stuck abroad who cannot work remotely, or have no means to do so, have no entitlement to be paid for their absence once their annual leave comes to an end. However, assuming employees are making all reasonable efforts to get back to the UK as soon as they can, and being empathetic to the anxiety and administrative burden that workers will be facing in making alternative arrangements, employers could consider treating it in the same way as they would an ‘emergency’ situation, so if this is paid for a set number of days in other circumstances, to do so here too. Alternative possibilities are to require the days to be taken as paid annual leave, or otherwise as authorised unpaid absence. Options should be discussed in conjunction with the affected employee to find a mutually convenient solution depending on their specific circumstances, although employers also need to be mindful of treating workers consistently.

Continue Reading Strikes and cancellations: The impact of travel chaos on employers

The Queen’s Speech at the State Opening of Parliament sets out the UK government’s legislative agenda for the year ahead. This year’s speech took place on 10 May, and in addition to the Queen’s absence, there was notable absence of any employment law reform.

In particular, the long-awaited Employment Bill, which was included in the Queen’s Speech in December 2019, was not one of the new Bills announced. Its omission was not unexpected, having been excluded from the legislative agenda during 2020 and 2021 too, but it is perhaps now even clearer that employment law is not a priority for the current government.

When first announced, the Employment Bill was expected to contain a plethora of new or enhanced rights including: carer’s leave; neonatal pay and leave; enhanced redundancy protection during pregnancy and maternity; an ability to retain tips; making flexible working the default; and increased contract predictability for workers. It was also expected to legislate to create a new single enforcement body. 

Continue Reading Queen’s Speech 2022: What next for UK Employment Law?

Covid-19 related reluctance or refusal to attend the workplace is nothing new, but as we enter a new phase of the pandemic, ‘Living with Covid’, developing case law will be of interest to employers who require or expect workers to attend the workplace on a full or hybrid basis. This blog considers the current guidance on workplace attendance, the recent Employment Appeal Tribunal’s (EAT) decision in Rodgers v Leeds Laser Cutting (a case looking at whether an employee had protection against unfair dismissal when refusing to attend work due to Covid related concerns), and some practical considerations for employers.

The UK government’s ‘Living with Covid’ plan came to full fruition in England on 1 April 2022, with remaining Covid-specific guidance now largely obsolete, and replaced with general public health guidance. This essentially treats Covid like other respiratory illnesses for individuals and business to manage, leaving employers with discretion on how to manage ongoing Covid risks in the workplace, and individuals encouraged to exercise personal responsibility. 

Employers are no longer required to consider Covid specifically in their risk assessments, nor have specific Covid mitigation measures in place, although they must continue to comply with their general health and safety obligations. Similarly, ‘work from home if you can’ guidance has been removed, although individuals with symptoms of a respiratory infection (including Covid), and who have a high temperature or do not feel well enough to work, or anyone with a positive Covid test, are advised to try and stay at home, working from home if possible, and to avoid others. Individuals who cannot work from home are advised to discuss options with their employer. 

Continue Reading Covid-19 related refusal to attend the workplace

The Supreme Court has delivered its ruling on the landmark Pimlico Plumbers case, upholding previous decisions that an ostensibly ‘self employed’ plumber was in fact properly classified as a ‘worker’ with valuable employment rights under UK law (including discrimination protection and holiday pay). The case has been closely monitored because of its impact on organisations

The FCA and PRA have announced a new package of rules aimed at formalising whistleblowing procedures within certain financial institutions. The rules will be implemented on 7 September 2016; however firms covered by the new regime must comply with the requirement to appoint a ‘whistleblowers’ champion’ by the earlier date of 7 March 2016.

Background

Following the LIBOR scandal in 2013, whistleblowing has fast risen up the regulatory agenda. In June 2013, the Parliamentary Commission on Banking Standards recommended that banks should put in place mechanisms to allow workers to raise concerns internally and appoint a senior person to take responsibility for the effectiveness of these arrangements. Earlier this year, the PRA and FCA consulted with firms on whether such measures should be introduced. The new rules, which are contained in a package of publications from the PRA and FCA, are intended to be applied alongside the Senior Managers Regime (SMR) and the Senior Insurance Managers Regime (SIMR).

The FCA recognises that many of the firms covered by the new rules already have rigorous internal whistleblowing procedures in place. The new regime aims to build on and formalise those good practices and encourage individuals to raise concerns and challenge poor behaviours in the industry.
Continue Reading New rules on whistleblowing for UK financial institutions

Another decision has been handed down to clarify – or complicate – the position on which aspects of pay should be included when calculating an employee’s entitlement to holiday pay.

The Court of Appeal in Northern Ireland (“CA”) has held that voluntary overtime is not necessarily excluded from the calculation of holiday pay for the purposes of the Working Time Regulations 1998 (as derived under the EU Working Time Directive).

The case of Patterson v Castlereagh Borough Council held that it was a “question of fact” for each Tribunal to determine whether or not voluntary overtime was “normally” carried out by the employee. If so, it should be considered to be part of the employee’s “normal remuneration” and included when calculating holiday pay.

The case was remitted to the Tribunal to hear further evidence of the overtime actually worked by the employee within a suitable reference period. Once this is determined, the Tribunal will decide as a question of fact whether the voluntary overtime should be included in this particular case.

Continue Reading Should voluntary overtime be included when calculating holiday pay?

In the case of Federacion de Servicios Privados del sindicato Comisiones Obreras –v – Tyco, the Advocate General has held that, where an employee has no fixed or habitual place of work, time spent travelling from home to the first place of work of the day and from the last place of work of the day to home should be counted as working time for purposes of the EU Working Time Directive.

Background

The employees in this case installed and maintained security alarm systems. They had no fixed place of work. They were provided with a company vehicle and allocated to a particular region. On each working day, the employees travelled to jobs at customers’ premises allocated by the employer. At least once a week, the employees would travel to a logistics centre to collect parts needed for their work.

The employer counted the employees’ working time as starting when the employee arrived at the first job of the day and continuing until the end of the final job of the day. Travel time between jobs counted as working time. However, time spent travelling from home to the first job of the day and from the last job of the day back home did not count. The employees challenged this before the Spanish courts, saying that this was “working time” for the purposes of the EU’s Working Time Directive.

The Spanish court referred the matter to the Court of Justice of the European Union (“CJEU”). Prior to the CJEU making a decision, a preliminary assessment had been undertaken by the Advocate General. The Advocate General’s view is usually, but not always, followed by the CJEU.

Continue Reading Time travelling to and from work can count as working time

Following the unexpected victory by the Conservatives in the UK general election on 7 May, the Government has announced its programme for the next session of Parliament. Amongst its proposals, the Government is proposing new laws regulating the ability to take lawful strike action.

The new proposals will require a 50% voter turnout threshold in strike ballots, while retaining the condition that a simple majority of those votes must be in favour of industrial action.

Additionally, the new proposals will require that 40% of those entitled to vote must vote in favour of industrial action in certain essential public services (health, education, fire and transport). The Bill will also introduce time limits on a mandate following a ballot for industrial action. The Conservatives proposed in their manifesto that employers would be allowed to use agency workers to cover for striking employees. No mention of this proposal was made in the Queen’s Speech, so we will have to wait for the Bill to be published before we see if this proposal becomes reality.

Continue Reading UK Government reveals new legislative programme – Implications for employment law