Employment Law Newsletter – June 2012

Welcome to June’s edition of our employment law newsletter, keeping you up to date with forthcoming changes to legislation and case developments.

Highlights of forthcoming changes include:

Publication of Enterprise and Regulatory Reform Bill 2012-13

This recently published Bill would implement a number of the government’s reforms to employment law. The Bill contains a new mandatory procedure which requires claimants to lodge claims with Acas before issuing proceedings. The Bill would also implement changes which the government has previously announced it is going to introduce. These include: introducing financial penalties for losing employers where there are “aggravating features” to the claim; renaming compromise agreements as settlement agreements; requiring qualifying disclosures to be made in the public interest; and providing that EAT judges will sit alone unless they direct otherwise.


Highlights of recent court and tribunal decisions include the following:

Illegal worker had no right to bring discrimination claim

In Hounga v Allen the Court of Appeal has overturned an earlier EAT decision and held that an employee, who entered the UK dishonestly and had no right to work in this country, was prevented by the doctrine of illegality from pursuing a race discrimination claim against her UK employers. The discrimination complained of was inextricably linked with the employee’s illegal conduct: she relied on the circumstances of her illegal employment to support her discrimination claim. It was not relevant that the employers in this case were also involved in the illegality.

Contractual PILON payable even where gross misconduct discovered after termination

In Cavenagh v William Evans Ltd the Court of Appeal has held that, where an employer exercises an express contractual right to terminate with a payment in lieu of notice, it cannot avoid payment if it subsequently discovers that the employee had committed a repudiatory breach that would have entitled the employer to dismiss him summarily. The principle whereby an employer can rely on after-acquired knowledge of gross misconduct to defend a claim for damages for an otherwise wrongful dismissal, does not apply where the employer has chosen to terminate lawfully under a PILON clause.

Dismissal of Baby P social workers was fair following second disciplinary for same offence

The EAT has upheld an employment tribunal decision that the dismissal of two social workers involved in the Baby P case was fair. The employees had previously been disciplined and given written warnings for their conduct, but a new management team had taken a different view of the seriousness of their failings and instigated further disciplinary proceedings, leading to their dismissal. The employer was not precluded from conducting second disciplinary proceedings against the employees resulting in their dismissal. However, cases in which it is fair to discipline an employee twice for the same offence will be rare

If you require any further clarification in relation to the above developments, or if you need any other assistance then please do not hesitate to contact our team of specialist employment solicitors on 0161 832 3304:

Shiva Shadi                      Partner

Anna Bunting                    Partner

Claire Smith                     Associate Solicitor

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