January Newsletter


It feels as if we’ve been away for about a year – our busiest year on record caused the hiatus but two new solicitors have joined us (see below) and we’re now back on form. Fortunately, nothing out of the ordinary has happened in our absence – it’s not as if something crazy has happened and the leader of the free world is now a barely-literate fool with an extremely short attention span. No, in his own words, he’s a genius, a very stable genius.

And fortunately, it’s easy for us to bridge the gap in newsletters because we’ve received the following endorsement from the World’s greatest leader: We’re going to speak the plain truth, and really the truth that you just want to hear – you have to hear – they don’t want to hear. This newsletter is, you know, it is going to be beautiful. It is the greatest employment law newsletter. The greatest ever. You know it is. You know, they said (and they’re always saying this) it can’t keep being the greatest. But it is. It will always be. They were full of enviousness. Envying. Something. They were wrong and we were right. Period. Bigly. We hear that all the time. From people. Sad!.

Well, many thanks for those kind words. Please take a moment to wipe the tears from your eyes and then let’s get on with the news:

‘Protected Conversations’ – when are they not ‘protected’?

Protected conversations can be a very useful tool for employers, enabling them to engage an employee in termination and settlement discussions in much the same way as lawyers are able to speak to each other on a without prejudice basis. Pre-termination conversations between an employee and employer (if dealt with properly) can be protected under s111A Employment Rights Act 1996 and cannot be referred to in an unfair dismissal claim.

However, the Employment Appeal Tribunal (EAT) held in Basra v BJSS Limited that the Tribunal can hear evidence about ‘protected conversations where the date of the termination is disputed by either party.

Following performance concerns, the Claimant and Respondent had entered into negotiations regarding termination of the Claimant’s employment without having to initiate the disciplinary process. The Respondent wrote to the Claimant with a without prejudice offer and the Claimant emailed back. The Respondent took from this that the Claimant had resigned as the original offer had said today will be the last day at BJSS.

The Claimant then took a period of sickness absence during which the Respondent chased him about the Settlement Agreement. The Claimant then wrote to the Respondent to say that he had not resigned and that he wished to return to work.

The EAT held that the without prejudice correspondence could be considered on the specific point of the date of termination that was in dispute but that any offers contained within it should be ignored by the Tribunal.

The key points for employers to note is that while protected conversations can be very useful indeed, there is a risk that they can be referred to in a Tribunal. The above case is an example of that but a more common occurrence is where something said during such a discussion is discriminatory in some way (or the reason for suggesting termination is discriminatory). So, great care must be taken in this process. Please contact us if you would like advice on how to approach protected conversations.

Working Time – Rest breaks

The Working Time Regulations are often overlooked (or deliberately ignored) by employers. They tend not to be an issue until there’s a falling out of some sort and a claim is brought by an employee that includes a stress/ health and safety aspect. Aside from the requirement that employees have at least an 11-hour break between working days and a 24-hour break between working weeks, there is also a provision for a rest break during the day. Regulation 12 says where a worker’s daily working time is more than six hours, he is entitled to a rest break and that it is an uninterrupted period of not less than 20 minutes. The EAT has ruled that an employer is not able to meet the 20-minute rest break required by aggregating a series of shortened breaks adding up to 20 minutes.

The Claimant, Mr Crawford, was a railway signalman with Network Rail and worked eight-hour shifts. He did not have set breaks but was expected to take breaks when they naturally occurred whilst remaining on call. No single break lasted for 20 minutes however when the time taken was added together, his breaks lasted substantially more than that.

The EAT found that there should be a proper uninterrupted break from during a rest period and that break should last for at least 20 minutes. Network Rail were therefore in breach of their obligations. It’s worth noting that being on call has in recent years consistently been found to be actually working rather than resting (see sleep-in care home cases).

Racial and disability discrimination

In a recent well publicised case (certainly in the tabloids) Mr Evans, a salesman for a global software company claimed he was called by colleagues “a fat ginger pikey”, a “salad dodger” and a “fat yoda” and that subsequently he had been discriminated against.

The Claimant told the Tribunal he was discriminated against because of his travelling background (race) and because of his size, which was the result of diabetes and an under-active thyroid causing weight gain (disability).

The Tribunal took the view that the loose connection between the claimant and travellers makes it very unlikely that the comment was intended to upset him and found no causal link between the claimant’s size and his disability.

The Tribunal further commented that the Claimant had joined in with the company “banter” including the use of a considerable amount of profanity himself (of industrial grade variety). The Tribunal held that he was fired because of his performance. They found the reason for his dismissal to be consistent with the treatment of other staff members who failed to hit their sales targets.

New Appointments

We have added two new solicitors to our team. Welcome Caroline Oliver and Claire Helling. Caroline is now well established in the team and Claire starts with us on Monday 22 January.  If you think Claire sounds familiar, it may be because she was part of the team around 5 years ago. She makes a welcome return.

And Finally…

A festive story to finish with (Christmas is just about still within memory!). The Local.ES reports on a Spanish Employment Tribunal involving a sales assistant who lost her job at a department store after a complaint that she deliberately revealed that Santa doesn’t exist to a seven-year-old girl. The employment tribunal was told that a mother and father were browsing in the jewellery department with their seven-year-old daughter when the mother spotted a Christmas gift for her husband.

She asked the shop assistant to put a wrist watch to one side so she could buy it later for her husband. The assistant told the little girl to take your father to the perfume department so your mother can buy him a watch for Christmas.

Apparently, the child immediately told her father and ruined the surprise. But she was more concerned that Santa wasn’t bringing the gifts. A complaint was made concerning the assistant’s respectful and malicious attitude, following which she was dismissed. For those of you thinking this was a little harsh, the assistant did have form for being a Grinch -  she had been given a warning about an incident when she told off a family for buying gifts on Christmas Eve and also reminded them that in Spain, it is the Kings who bring the presents, not Santa Claus…


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