Employment Law Update – September 2022

Welcome to the first LinkedIn newsletter edition of?our Employment Law Update, our monthly round-up of employment law news brought to you by our employment experts.

This month’s bulletin covers some case law updates, as well as touching on the increasing cost of living crisis in the UK which continues to be relevant, and the appointment of a new Prime Minister!

Case Law Update ??

Williamson v The Bishop of London & ors

In this claim, the Claimant was subject to a Civil Procedure Order (“CPO”) which meant that he needed to get permission from the High Court if he wanted to commence civil proceedings. The Claimant brought a claim in the Employment Tribunal for age discrimination without this permission. He then applied to the High Court for retrospective permission and the Order made gave the Claimant permission to pursue the existing claim or to issue proceedings in the Tribunal.

The Employment Tribunal held that the proceedings that had already commenced were a nullity. In addition, the Order was ineffective as it is not possible to give retrospective permission under a CPO.

The EAT agreed with this approach. Permission to issue tribunal proceedings cannot be given retrospectively to a Claimant who is subject to a CPO.

Scottish Federation of Housing Associations v Jones

In this claim, the Claimant worked as the Head of Membership and Policy and her contract of employment contained a clause which precluded her from taking a ‘formal role’ in a political party (although didn’t stop her from being a member). She asked the Respondent for permission to stand as a candidate for Scottish Labour in the 2019 election. This was refused by the Respondent, and she was later dismissed (after withdrawing her candidacy). Various reasons were given for the dismissal, but the Respondent did not use the request as one of the reasons.

The Claimant brought a claim for belief discrimination and unfair dismissal but did not have two years’ service for the unfair dismissal claim. The Tribunal considered whether an exception to the two-year rule applied, namely that the reason for dismissal “is, or relates to, the employee's political opinions or affiliation” and found that she was entitled to pursue her claim for unfair dismissal.

The EAT disagreed. They stated that the exception applies to dismissals for political opinions or affiliations, whilst the Claimant had accepted that her dismissal was not due to her membership of Scottish Labour nor for her political opinions.

News ??

Appointment of Liz Truss as Prime Minister

In the wake of the appointment of Liz Truss as the country’s new prime minister, there are concerns that she intends to overhaul workers’ rights. The Secretary of the Trades Union Congress has condemned the new prime minister for her lack of transparency and has urged that she “come clean” about what legal protections are going to be changed under her leadership.

Reports have indicated that Liz Truss intends to reconsider the Working Time Directive. Amongst other things, the Directive imposes a limit on average weekly working hours, although an employee can opt-out to enable them to work beyond the 48-hour cap. There have also been reports that Liz Truss is considering changing the rules around taking breaks and calculating holiday pay and leave. It is said that these changes are motivated by her bid to boost the economy and make the UK more competitive. We hope for clarity regarding the government’s intentions over the coming days and weeks. At this stage, no definitive plans have been announced.

Cost of Living Crisis

As the cost of living crisis continues to be at the forefront of discussions, many employers are considering what they can do to support their employees/workers’ financial wellbeing. They are also considering what they can do as a business to ensure that rocketing bills do not cause issues for their own cash flow. Some ideas that are being considered are:

• Reviewing benefits packages to make sure that employees are offered benefits that are actually useful to them, as well as ensuring that employees know the benefits that are available to them.
• Considering pay increases where possible and/or one-off bonuses.
• Ensuring that management and HR are taking an empathetic and approachable style to each individual circumstance.
• Advising on ways to reduce energy usage.

Witness Statements in Scotland

?The President of Employment Tribunals (Scotland), Judge Susan Walker, has issued new guidelines in relation to witness statements being used in Employment Tribunals in Scotland, to be read alongside the relevant Practice Direction. The documents can be found using the links below but briefly illustrate:

• Formatting rules – there are clear rules on formatting e.g., headings are to be used as well as single-sided paper. In addition, there is a requirement to include an introductory paragraph on how the witness statement was actually taken (e.g., did the witness simply draft it themselves or did a solicitor help and how was the information collated).
• There is also some guidance on the content of witness statements and what is to be borne in mind.
• When witness statements should be used; and
• Guidance on when supplementary evidence should be allowed.

Whilst this may not directly apply to you when claims are being brought in England and Wales, these are good practices to adopt generally.

Thank you for reading the first LinkedIn newsletter edition of?our Employment Law Update. If you would like to read future updates, subscribe today! Thank you to our contributors:

Phil Cookson, Partner

Desley Sherwin, Partner

Laura Hill, Associate

Shola Khan, Solicitor