For employers wanting to bring an employment relationship to an end, whether for disciplinary or performance related reasons or simply because it is not working out, it is often difficult to judge the right time to have a ‘without prejudice’ conversation with an employee. Get it wrong and the contents of that discussion may be used by an employee in a subsequent Tribunal claim as evidence of an admission of guilt or constructive dismissal. The recent EAT case of Portnykh v Nomura International Plc gives some useful guidance as to when the ‘without prejudice’ rule applies.
Continue Reading Settlement discussions – when can employers safely use the ‘without prejudice’ rule?

The UK Court of Appeal has ruled, in the case of NHS Manchester v Fecitt & Others, that an employer cannot be vicariously liable for acts of victimisation by its employees against whistleblowers. The Court also clarified the correct test for determining whether a worker has suffered a detriment on the ground of making a protected disclosure (ie. whistleblowing). The Court decided that to avoid liability under the whistleblowing legislation, the employer must show that the employee’s protected disclosure did not materially influence (i.e. more than trivially influence) the employer’s treatment of that employee.

The whistleblowing legislation provides protection in two ways. First, dismissal of an employee is automatically unfair if the principal reason for dismissal is that they have made a protected disclosure. Second, workers have a right not to be subjected to a detriment by their employer on the ground that they have made a protected disclosure. This case concerned the second of these protections. 

Continue Reading UK court rules employers not vicariously liable for employees who victimise whistleblowers