July 2011 Employment Newsletter

Welcome to July’s edition of our employment law newsletter, keeping you up to date with changes in employment law, and informing you of recent case law developments.


Commons debate on capping tribunal awards

The House of Commons considered a Private Members’ Bill which would cap all awards for unfair dismissal, wrongful dismissal and employment-related discrimination at £50,000. Unfair dismissal compensation is currently capped at £68,400, and wrongful dismissal is capped in the tribunals (but not the civil courts) at £25,000. Discrimination awards are uncapped.

It was confirmed during the debate that the government has recently consulted over unfair dismissal compensation, and will launch a public consultation on discrimination awards “later in the year”. Although the bill is highly unlikely to become law anytime soon the debate is set to resume on 9 September 2011.

Bribery Act 2010

The Bribery Act came into force on 1 July 2011 in the hope to strengthen the UK’s anti-corruption laws. The Act introduced four new criminal offences which can be summarised as follows:

(a)     Bribing another

(b)     Being bribed

(c)     Bribing a foreign public office

(d)     Failure of a commercial organization to prevent bribery by an ‘associated person’ for its benefit.

The definition of ‘associated person’ covers those who perform services for or on behalf of an employer, and therefore will cover employees, agents and subsidiaries. The definition also extends to consultants, agency workers and volunteers. Therefore, an employer is potentially responsible for the actions of a wide range of individuals, some of whom the employer may have minimal control over.

The consequences of breaching the Act could mean that an individual faces up to ten years imprisonment and a commercial organization can be fined an unlimited amount and prevented from tending for public contracts. As an employer you would have a defence if you could show that you had in place ‘adequate procedures’ designed to prevent bribery.

Case Developments in June 

SG –v– Head Teacher and Governors of St Gregory’s Catholic Science College

The school had a uniform policy prohibiting boys from wearing their hair in cornrows. The policy was ruled to be unlawful and to be indirect racial discrimination. Interestingly, the Claimant’s sex discrimination claim on the same basis failed.

Wilcox –v– Birmingham CAB Services Ltd

The EAT has held that the duty to make reasonable adjustments under the Disability Discrimination Act 1995 only applied where an employee knew or could reasonably have been expected to know both that the employee in question was disabled and likely to be substantially disadvantaged by that disability. In this particular case the employer did not know, and could not have reasonably been expected to know, that the Claimant was disabled until it received a consultant’s report.

Sheffield City Council –v– Norouzi

Sheffield City Council were held liable under the Race Relations Act for third party harassment. In the Tribunal’s view, Sheffield City Council had not done enough to protect a Social Worker from regular racial harassment at the hands of a child in a Care Home and were therefore held liable for indirect race discrimination and racial harassment.

Independent Insurance Company Ltd (in provisional liquidation) –v– Aspinall & another

The EAT has held that where an individual claims for protective award for beach of the collective consultation requirements under the Trade Union and Labour Relations (Consolidation) Act 1992, a tribunal cannot treat the claim as representative of claims to a group of employees in similar circumstances. Each individual would have to bring their own particular claim.

Phillips –v- Xtera Communications Ltd

The Claimant, who had been made redundant, argued he was entitled to a protection award due to a failure by the employer to hold an ‘election’ for employee representatives when the number of nominations matched the number of representatives. The Employment Tribunal disagreed and an appeal was lodged in the EAT. The EAT held that an ‘election’ takes place for employee representatives and redundancy collective consultations under the TULRCA 1992 where the number of nominations equals the number of representatives positions, even if there is no ballot.

R –v- Governors of X School [2011]

[In R –v- Governors of X School [2011]] the Supreme Court held that a teaching assistant accused of sexual misconduct with a minor could not rely on the right to a fair trial in Article 6 of the European Convention on Human Rights to insist on legal representation at the school’s disciplinary hearing.  The court confirmed that the correct test was whether the disciplinary proceedings had a ‘substantial influence or effect’ on the outcome of the proceedings before the Independent Safeguarding Authority to consider whether the employee should be put on the children’s barred list. If they did then Article 6 would apply to give entitlement to legal representation. However in this case the test had not been correctly applied. The court held that there was no reason to believe that the ISA would be unable to form its own view of the facts independent from that of the school governors. As the governors’ determination would not have a substantial influence on the ISA’s decision there was not a sufficient connection between the disciplinary proceedings and the ISA proceedings which determined G’s civil right to practise his profession. There was therefore no right to legal representation in this case.

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                   Associate

Claire Smith                     Solicitor

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