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Russell Cooke Solicitors - Employment Law Update


May 2011


Welcome to the latest edition of the Employment Law Update brought to you by the employment team at Russell-Cooke. The aim of this service is to keep you informed of recent developments in this fast moving field of law so that you are better prepared to deal with issues as they arise in your workplace and recognise when professional advice might be required.

Contact details for members of the team are provided at the end of the Update. If you have a query about the issues covered or about any employment law related matter please do not hesitate to get in touch.


Wednesday 22nd June 2011

This one-day conference will look at strategic HR issues aimed at experienced HR practitioners in the third sector. An opportunity for delegates to discuss how HR can demonstrate its value to an organisation. Russell-Cooke's charity team and other leading professionals in the sector will cover developments in the law and explore the challenges within the sector including:

  • the role of HR in managing change
  • how managing people can help build the resilience of an organisation
  • using volunteers more smartly
  • managing the change process
  • devising resilient reward systems
  • good management in light of new equalities law

For more details and for booking information please click here


  • Spaceright Europe v Baillavoine – a dismissal can be TUPE related even where the transferee had not been identified at the time of the dismissal
  • Eversheds Legal Services v De Belin – favourable treatment of a woman on maternity leave in redundancy selection amounted to sex discrimination
  • Kurumuth v NHS Trust North Middlesex University Hospital - Uncertainty around an employee’s immigration status could justify dismissal
  • Dabson v David Cover & Sons - A Tribunal should not scrutinise markings under fair redundancy selection criteria in the absence of bad faith or an obvious mistake
  • Consultation opens on proposed changes to parental leave, flexible working, working time and equal pay 

This material will shortly be available at our website together with an archive of past updates (there is also the facility to sign-up to receive the updates here too).


Dismissal held to be related to TUPE and unfair even where the transferee had not been identified at the time of the dismissal

The Claimant was employed as chief executive of Ultralon Holdings. This company and its subsidiary were placed in administration and the Claimant was dismissed on the same day. Approximately one month later, following a number of bids, the business and assets of both companies and another subsidiary were sold to another company, Spaceright Europe Ltd. The directors of this company included individuals who had previously been directors of Ultralon.

The Tribunal held that the Claimant had been dismissed for a reason connected with the transfer even though the actual transferee had not been identified at the time of the dismissal and in spite of the delay. It also held that the dismissal was not justified by an economic, technical or organisational (ETO) reason entailing changes to the workforce. The organisation was in financial difficulty and the transferee (Spaceright Europe Ltd) argued that any purchaser would have its own chief executive or senior management and therefore it was likely that the Claimant would have faced redundancy in any event. However, an ETO defence is not available where the overall numbers and functions of the employees as a whole remain unchanged. In this case, there was a need for a CEO/managing director and the Claimant was eventually replaced. In addition, organisations should be aware that the EAT held in OTG Ltd v Barke that TUPE applies in full to transfers from a company in administration.

Spaceright Europe Ltd v Baillavoine UKEAT/0339/10


Favourable treatment of a woman on maternity leave in a redundancy selection process amounted to sex discrimination against a male colleague

Where an employer goes beyond what is reasonably necessary to compensate employees for the disadvantages occasioned by maternity leave, they will face a risk of sex discrimination claims from male staff. In this case, there were two employees of a law firm at risk of redundancy, the Claimant and his colleague who had taken a period of maternity leave.

The redundancy selection criteria included a score for the speed with which fees were paid after work was done. This was measured over a 12 month period up to a certain date. The Claimant scored 0.5 points in this area. The Claimant’s colleague was on maternity leave at the relevant period. Her employer decided to award the highest possible score to her, 2 points. The Claimant’s overall score was 27 points and his colleague scored 27.5. The Claimant was therefore selected for redundancy.

The Claimant appealed the decision arguing that there were other, less discriminatory, ways to conduct the process fairly to both employees. The Employment Tribunal and EAT agreed and upheld the Claimant’s claims of unfair dismissal and sex discrimination.

If the employer had looked at the 12 month period up to the point his colleague had gone on maternity leave, she would have scored 0.5 points as well and he would not have been selected for redundancy. This method would not have deprived the Claimant’s colleague of an assessment of her performance in this area simply because she had taken maternity leave and it was also a more proportionate method than the one adopted by the employer.

Eversheds Legal Services Ltd v De Belin [2011] All ER (D) 16


Army Cadet Force Adult Instructor held to be a volunteer

The Claimant, Mr Breakell brought a claim of disability discrimination against the Shropshire Army Cadet Force. In 2008 Mr Breakell had successfully applied for the role of Adult Instructor. He was provided with a set of ‘terms of service.’ This set out his duties and provided that he might receive remuneration but would not normally be paid for more that 28 training days in any one year unless express authorisation was given. In reality there was no obligation to pay instructors and most payments had been stopped in October 2009. There was no entitlement to sick pay, holiday pay or pension scheme membership. Whilst there was no obligation to accept assignments, the terms provided that if an instructor was ‘absent’ for more than 56 consecutive days, their contract would be terminated without notice. It was therefore clear that the Claimant could not establish employee status and his discrimination claim failed, although the basis on which it was found that he was not a worker is less clear. In addition, the Claimant may well have been an employee for each individual assignment but did not argue that the breaks between each assignment were temporary cessations of work, which could have resulted in a different outcome.

Breakell v West Midlands Reserve Forces’ and Cadets’ Association (named as Shropshire Army Cadet Force) UKEAT/0372/10


Dismissal due to uncertainty around the employee’s immigration status

The Claimant was employed as a healthcare support worker, initially as a bank worker and then as a permanent employee from 2003. The Claimant came to the UK in 1992 from Mauritius on a work permit. Her application for further leave to remain was refused in 1997 and the Claimant appealed. She received a letter from the Home Office stating that she was entitled to carry out paid work until her appeal was decided. The appeal remained outstanding for several years and had not been heard at the time of the Tribunal hearing.

The employer sought to check that the Claimant had the right to work but did not receive a clear response from the UK Border Agency, who stated that her application would be decided shortly. The UKBA were in possession of the Claimant’s passport and the papers relating to her immigration appeal. Whilst the UKBA could be criticised for failing to give a clear statement on the matter, the employer had a genuine belief that the Claimant was not entitled to work in the UK.

The Claimant’s dismissal was unfair due to the employer’s failure to follow a fair procedure. However, her compensation was limited to her wages until the point at which a fair procedure would have been completed as it was considered inevitable that the employer would have reached the same conclusion.

The employer also conceded that the Claimant was entitled to her wages for the period of her suspension and her notice pay. Suspension should always be paid unless unpaid suspension is authorised by the employment contract.

Kurumuth v NHS Trust North Middlesex University Hospital UKEAT/0524/10/CEA


A Tribunal should not scrutinise markings under fair redundancy selection criteria in the absence of bad faith or an obvious mistake

The Claimant in this case was made redundant from his role as a transport manager and challenged the marking system used for selecting staff for available alternative employment. He also alleged that the manager carrying out the initial scoring had a bias against him and that there were failures in the process of collective consultation. The Tribunal found that the dismissal was fair and this was upheld by the Employment Appeal Tribunal.

The claim that the process of collective consultation was defective did not, in itself, render the individual dismissal unfair and there was a separate claim and protective award that could be made for such claims.

The Claimant had alleged that he had received different scores for ‘ability to assist with route planning’ and ‘ability to plan routes’ and that this was illogical as they amounted to the same in practice. However, the Tribunal, with its specialist industrial experience, had been entitled to find that the selection criteria were fair and that the two categories in question related to the different levels of skills required for junior and senior posts.

Dabson v David Cover & Sons UKEAT/0374/10/SM


Consultation opens on proposed changes to parental leave, flexible working, working time and equal pay

The government has published its Modern Workplaces consultation on an unexpectedly wide range of proposed changes. The proposals include:

• 18 weeks’ maternity leave (the current provision for 2 weeks’ paternity leave would be retained.) The remaining 34 weeks of the existing entitlement would become shared parental leave with new entitlements to pay;

• Whether the time limit for taking unpaid parental leave, should be extended (currently this must be used before the child’s fifth birthday);
• Whether fathers/partners should have the right to take unpaid leave to attend antenatal appointments; 

• Replacing the statutory flexible working procedure with a duty to consider requests reasonably and a new code of practice; 

• Allowing employees to make a further flexible working request within 12 months in cases where they initially request a temporary arrangement; 

• Allowing employees to carry over a limited amount of statutory annual leave if this is untaken due to sickness;

• Other measures to increase flexibility, such as allowing employers to request that employees defer leave until the first six months of the following leave year;

• Mandatory equal pay audits for employers who lose equal pay or sex discrimination claims that relate to pay. 
The consultation is open until 8 August 2011.

Modern Workplaces Consultation Flexible parental leave, flexible working, working time regulations and equal pay - http://discuss.bis.gov.uk/modernworkplaces/


Contact us:

The Employment Team
Russell-Cooke Solicitors,
2 Putney Hill,
SW15 6AB

Tel: 020 8789 9111


This material does not give a full statement of the law. It is intended for guidance only, and is not a substitute for professional advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be accepted by Russell-Cooke.

© Copyright: Russell-Cooke,

The Employment Team at Russell-Cooke
Anthony Sakrouge (Partner) – 020 8394  6504  Anthony.Sakrouge@russell-cooke.co.uk
Alex Bearman (Partner) – 020 8394 6524  Alex.Bearman@russell-cooke.co.uk
Edward Wanambwa (Partner) - 020 8394 6445 Edward.Wanambwa@russell-cooke.co.uk
Fudia Smartt (Solicitor) – 020 8394 6525 Fudia.Smartt@russell-cooke.co.uk
Emma O'Byrne (Solicitor) – 020 8394 6537 Emma.O'Byrne@russell-cooke.co.uk
Kate Minett (Solicitor) - 020 8394 6557 Kate.Minett@russell-cooke.co.uk

Specialists in advising charities, not for profits, trade associations and public bodies
Jane Klauber (Partner) – 020 8394 6483  Jane.Klauber@russell-cooke.co.uk
Deborah Nathan (Solicitor) – 020 8394 6437 Deborah.Nathan@russell-cooke.co.uk   

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