Tag Archive: conversations

December 2013’s review of the year

Sandra Wallace, Partner and Employment group head, highlights the most important legislative and case law developments from 2013 and identifies the key cases to watch out for in 2014.   Remember to use our On the horizon legislation tracker to keep up to date with the further changes to legislation which are expected in 2014 and beyond.



Employment Tribunals

1 February Cap on a week’s pay for statutory awards increased from £430 to £450
  Unfair dismissal compensatory award increased from £72,300 to £74,200
25 June In political affiliation cases the two year unfair dismissal qualifying period no longer applies
29 July One year cap on unfair dismissal compensatory award introduced
  Protection of settlement negotiations from admissibility in unfair dismissal tribunal proceedings introduced
  Introduction of fees regime for employment tribunal claims and new tribunal rules
  Compromise agreements renamed ‘settlement agreements’
7 October New fee remission system in force for employment tribunal fees

Family friendly

8 March Parental leave increased from 13 to 18 weeks
7  April Statutory maternity, paternity and adoption pay rates increased from £135.45 to £136.78 per week


25 June Amendments to whistleblowing legislation to remove good faith requirement and introduce public interest test
1 November

Close of call for evidence on further whistleblowing reform


1 February Cap on a week’s pay for statutory redundancy payments increased from £430 to £450
6 April Period of required collective consultation for 100+ redundancies reduced from 90 to 45 days

Employment status

1 September Employee shareholder status introduced


25 June Obligation for the Government to make an order outlawing caste discrimination came into force
1 October Repeal of third party harassment provisions from Equality Act 2010





USDAW and others v WW Realisation 1 Ltd and others This case involves the redundancy consultation obligations arising out of the closure of Woolworths and Ethel Austin stores between 2008 and 2010.   The EAT ruled that the words “at one establishment” in the UK’s collective redundancy legislation should be disregarded for the purposes of any collective redundancy involving 20 or more employees. This potentially results in employers needing to collectively consult whenever they propose to make 20 or more redundancies in a 90 day period, regardless of where the employees are based.  This case is however being appealed to the Court of Appeal.

Working time

Neal v Freightliner Ltd


An Employment Tribunal held that a freight worker was entitled to have overtime payments and shift premiums included in the calculation of his holiday pay as they were intrinsically linked to the performance of the tasks he was required to carry out under his employment contract.  This case is being appealed to the EAT.

Employee competition

Coppage and anor v Safety Net Security Ltd The Court of Appeal upheld an order that a former company director pay at least £50,000 following a breach of his post-termination restrictive covenants which prohibited solicitation of any customers of his former employer for a period of six months following termination.
Vestergaard Frandsen SA v Bestnet Europe Ltd The Supreme Court held that a former sales manager was not liable for misuse of confidential information.  The manager had not acquired information while working for Vestergaard and had no implied knowledge of the misuse of information by her new employer.

Transfer of undertakings

Alemo-Herron and others v Parkwood Leisure Ltd

Considering the status of collective agreements following a TUPE transfer, the ECJ decided that under the Acquired Rights Directive it is impermissible for UK courts to adopt a “dynamic” rather than a “static” interpretation.  Where transferring employees’ contracts provide that their terms are to be determined in accordance with collective agreements, the transferee cannot be bound by terms which are collectively agreed after the transfer if it is unable to be involved in the negotiating process.

Crystal Palace FC Ltd v Kavanagh & Ors

In a case which arose out of the dismissal of employees of the company which owned Crystal Palace football club when it went into administration, the Court of Appeal held that the employees were dismissed by the administrator shortly before the business was sold for a valid “economic, technical or organisational reason”. The administrators needed to reduce the wage bill in order to continue running the business and avoid liquidation.


Lockwood v Department of Work and Pensions

The Court of Appeal held that a severance scheme, which paid higher payments to older employees on the basis that they needed more of a cushion than younger employees, was objectively justified.

Cox v Essex County Fire and Rescue Service

In this disability discrimination case, the EAT decided that although the employee had advised that he was suffering from bipolar disorder, the absence of a definite diagnosis meant that the employer did not know, and could not have reasonably been expected to know, that the employee was disabled.

Croft Vest Ltd & Ors v Butcher

The EAT held that an employer who refused to pay for an employee with work-related stress and depression to have private psychiatric counselling and cognitive behavioural therapy breached its duty to make reasonable adjustments.



USDAW v Ethel Austin Ltd (in administration) and another case


The Court of Appeal will consider whether the words “at one establishment” in the UK’s collective redundancy legislation should be disregarded for the purposes of any collective redundancy involving 20 or more employees. (NB. this is the Woolworths case  – see above for EAT decision).
Lyttle and others v Bluebird UK Bidco 2 Ltd In an application from a Northern Ireland employment tribunal to the ECJ, clarification is sought as to the meaning in the UK’s collective redundancy legislation of the term “establishment” and whether the duty to collectively consult is triggered when 20 or more employees are dismissed at a particular establishment or across the whole of the employer’s business.

Working time

Lock v British Gas Trading Limited and others The ECJ will consider whether the holiday pay of a worker, who receives basic pay and sales-related commission, should be more than just basic pay, even though during holiday periods they are not undertaking work that would entitle them to commission.
Neal v Freightliner Following the Employment Tribunal in 2013 (see above), the EAT will consider if holiday pay must be calculated in a way which takes account of pay for voluntary overtime.


Z v A Government Department & the Board of Management of a Community School;    CD v ST There are currently two cases before the ECJ which will consider whether an mother who has a child via a surrogacy arrangement has pregnancy and maternity rights under EU law.
FOA on behalf of Karsten Kaltoft v Billund Kommune The ECJ will consider whether discrimination on grounds of obesity is prohibited by EU discrimination law.

Gallop v Newport City Council


Judgment is awaited in this case in which the Court of Appeal has considered if an employer’s lack of knowledge prevents the duty to make reasonable adjustments arising where the employer relied on advice from an occupational health adviser that an employee was not disabled for discrimination purposes.

Mba v Mayor and Burgesses of the London Borough of Merton

Judgment is awaited in this case in which the Court of Appeal has considered whether or not an employer’s requirement that all care workers work some Sunday shifts indirectly discriminated against a Christian residential care worker who strongly believed that Sunday should be a day of rest.

Employment law reforms

R (on the application of UNISON) v Lord Chancellor


Judgment is awaited in this case in which the High Court heard an application by UNISON claiming that the introduction of employment tribunal fees is in breach of EU law and contrary to the principle of access to justice.    A similar application to the Scottish Court of Session has been stayed pending the outcome of the High Court case.

R (on the application of Compromise Agreements Ltd) v Secretary of State for Business, Innovation and Skills

An application has been made for judicial review of the statutory cap of one year’s salary in unfair dismissal cases. The application is based on the premise that older people are more likely to be out of work for more than a year and therefore would be eligible to more than a year’s compensation were it not for the new cap.

Permanent link to this article: https://www.dlapiperbeaware.co.uk/december-2013s-review-of-the-year/

Protected conversations

Gurpreet Duhra, a Partner in our Sheffield office looks at the recent changes in protected conversations:

It is a common misconception that simply labelling a meeting or discussion “without prejudice” protects that discussion from future admissibility in legal proceedings. As a legal matter, the “without prejudice” confidentiality rule only applies to without prejudice discussions relating to the resolution of genuine disputes.  There needs to be an existing dispute before the without prejudice rule can be applied.

In many employment situations where an employer is seeking to offer settlement terms to an employee, there may be no existing dispute in the formal sense.  This gives rise to an inherent vulnerability where employers are keen to promote the idea of a settlement.  This has led to some fairly convoluted attempts to establish a dispute before beginning without prejudice discussions, or employers have simply accepted the risk in the hope and expectation that a settlement will ultimately be arrived at.

On 29 July 2013, legislative provisions brought into force a new regime of “protected conversations”.   The legislation is supported by an ACAS Code of Practice.   Compromise agreements were re-named “settlement agreements” on the same date.

The intent behind the new law is to address the difficulties with the existing without prejudice rules.    Under the new rules, evidence of pre-termination negotiations will be inadmissible in unfair dismissal proceedings except that in relation to anything said or done which in the tribunal’s opinion was improper or was connected with improper behaviour, it is inadmissible only to the extent that the tribunal considers just.

However, the new rules have some fairly major shortcomings and should be approached with caution. 

The biggest restriction for employers is that the protection applies to normal unfair dismissal claims only.  If negotiations are unsuccessful and the employee subsequently brings an unfair dismissal claim, then evidence regarding the settlement discussions will be inadmissible. However, if the employee brings another claim, such as discrimination or whistleblowing, or one of the categories of automatically unfair dismissal, evidence of pre-termination negotiations will be admissible. 

Discussions will also be admissible if there has been “improper behaviour” by either party.  The ACAS Code sets out exhaustive guidance on what may constitute improper behaviour which will lead to the confidentiality protection being lost.  This includes harassment; bullying and intimidation; physical assault or threats of assaults; criminal behaviour; victimisation;  discrimination; and undue pressure.

The limitations on the new regime may make it unattractive to employers unless there is little or no risk of a non-unfair dismissal type claim being brought. 

It is also unclear how the protection will operate in practice where the employee brings an unfair dismissal claim and an additional claim, such as discrimination. The tribunal will hear the evidence for the purposes of the discrimination claim, but will have to disregard it for the purposes of the unfair dismissal claim.

The legislation itself does not stipulate any procedure to be applied.  However, the ACAS Code provides guidance on settlement agreements and procedure and Employment Tribunals are likely to have regard to the Code in determining the appropriateness of the employer’s behaviour.

The Code states that parties should be given a reasonable period of time, generally a minimum period of up to 10 calendar days, to consider the terms and receive independent advice. 

The Code also recommends that employees should be permitted to be accompanied at any meeting to discuss settlement.  This is something employers are likely to be reluctant to do.  However, if the employee asks to be accompanied and the employer refuses, this may constitute improper behaviour. 

For the moment, it is unclear how the new law will operate and, as with all new legal concepts, it may require case law to provide clearer guidance on the scope of the regime.

As matters currently stand, the new regime only appears to be of value in respect of employees where there is a very low risk of claims other than unfair dismissal.  The new law is likely to be of little or no assistance in obvious high risk cases, for example when dealing with pregnancy/maternity situations; part-time employees; employees with medical issues and/or dealing with long term sickness absence; employees from minority ethnic groups; where there are obvious gender or age related discrimination issues; where there has been a history of grievances and disputes with the employee which may form the basis of a whistleblowing claim or similar.  For these high risk groups, the normal “without prejudice” rules will continue to apply where there is a genuine existing dispute.

Permanent link to this article: https://www.dlapiperbeaware.co.uk/protected-conversations/