May 2011 – Employment Newsletter

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


The government has launched its “Red Tape Challenge”, a wide-ranging project with the aim of identifying unnecessary regulations. The government is asking for suggestions of regulations that should be scrapped, merged with other regulations, simplified or improved. It is focusing, in particular, on regulations relating to employment, pensions, company, equalities, health and safety and environmental law.


The Government has accepted the recommendations of the Low Pay Commission and announced the following increases in the national minimum wage, which will take effect from 1 October 2011:

  • The standard (adult) rate (workers aged 21 and over) will rise to £6.08 per hour (from £5.93).
  • The development rate (workers aged between 18 and 20) will rise to £4.98 per hour (from £4.92).
  • The young workers rate (workers aged under 18 but above the compulsory school age who are not apprentices) will rise to £3.68 per hour (from £3.64).
  • The rate for certain apprentices (those under 19 years of age or those aged 19 and over but in the first year of their apprenticeship) will rise to £2.60 per hour (from £2.50). All other apprentices will continue to receive the national minimum wage at the appropriate age rate.
  • The accommodation offset will rise to £4.73 per day from £4.61.


Further to previous updates, The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 have been published. The regulations abolish the default retirement age from 6 April 2011, subject to transitional provisions. For more information on this change, please click here.


New regulations came into force on 1 April 2011 to revoked the planned extension of the right to request flexible working to all parents of children under the age of 18 from 6 April 2011. The coalition government announced in March 2011 that this extension would be scrapped in its bid to improve growth by reducing red tape for businesses. They have however confirmed that they still intend to extend the right to all employees eventually.


 Highlights of recent court and tribunal decisions include the following:

Employee required to account for secret profit made in breach of fiduciary duty

In Samsung Semiconducter Europe Ltd v Docherty [2011] an employee was obliged to account for the secret profit he made in ensuring that his employer did business with another company in which he secretly held a 50% shareholding. It did not matter that there was no detriment to the employer.

Inflating redundancy score of employee on maternity leave was sex discrimination against male colleague

The EAT has upheld a tribunal’s decision that a law firm discriminated against a male lawyer on the ground of his sex when, in a redundancy selection exercise, it inflated the score of a female colleague who was on maternity leave. Pregnant employees and those on maternity leave should only be treated more favourably than male colleagues to the extent that this is reasonably necessary to remove the disadvantages occasioned by their condition.

The employer’s decision to award the female employee a notional maximum score in respect of one of the selection criteria, while confining the male colleague to his actual score, was not a proportionate means of removing the woman’s disadvantage. There were less sex discriminatory alternatives available, such as measuring both employees’ actual performance during the period before the woman’s maternity leave started.

Illegal worker not barred from bringing employment-related discrimination claim

The EAT has upheld a tribunal’s decision that an employee, who entered the UK dishonestly and had no right to work in this country, was not prevented by the doctrine of illegality from pursuing a race discrimination claim against her UK employers. The discrimination did not arise from and was not inextricably linked with the employee’s illegal conduct; and the tribunal, in awarding discrimination compensation, had not appeared to condone her wrongdoing.

Fair dismissal for inappropriate comments made on Facebook

An employment tribunal has held that a pub manager was fairly dismissed for gross misconduct after she made inappropriate comments on Facebook about two of her customers, who had verbally abused and threatened her. Her employer was entitled to take the view that the conversation on Facebook, which took place while she was at work, did not reflect her upset or anger at the customers, but seemed more like a joke between friends. It did not matter that she thought that her privacy settings meant that only close friends could see her entries; in fact a wider audience was able to view her Facebook page, including relatives of the customers in question. As a result, the manager was found to be in breach of the employer’s e-mail and internet policy, which specifically referred to employees’ use of media such as Facebook while at work

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 Reddington     Solicitor

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