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Russell Cooke Solicitors - Employment Law Update

April 2013


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.


  • Legal advice privilege does not extend beyond the legal profession
  • Disability discrimination - standing for long periods at work can be normal day to day activity
  • Excluding part-time Judges from pension scheme could not be objectively justified
  • Requiring a Christian to work on a Sunday was objectively justified
  • EHRC publishes guidance on religion and belief in the workplace

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).



The underlying purpose of privilege is to allow unrestricted access to a lawyer's professional skill and judgment and for the client to be able to place confidence in that advice. It extends to all members of the legal profession including solicitors, barristers, in-house lawyers and foreign lawyers.
Privilege operates to allow the withholding of relevant information from a third party or the court.  Legal professional privilege consists of:

- legal advice privilege (covering confidential communications between lawyers and their clients made for the main purpose of seeking or giving legal advice); and

- litigation privilege (covering confidential communications between lawyers and their clients, or the lawyer or client and a third party, which come into existence mainly to be used in connection with actual or pending litigation).

In this case, HMRC applied for notices to be issued to Prudential for disclosure of documents held by their accountants relating to a tax avoidance scheme.  Prudential had argued in the High Court that the notices sought material covered by legal advice privilege. They argued that legal advice privilege applied to tax advice provided by accountants. The High Court had eventually rejected this argument.  Even though it had felt that Prudential’s case was compelling, as accountants did have the expertise to advise on tax law in the same way as tax lawyers on occasions, it considered that legal precedents prevented it from developing the law in the way Prudential sought.  Legal advice privilege was linked to the legal profession and did not depend only on the purpose and nature of the advice (i.e. whether it was legal advice). 

Prudential had appealed, but the Court of Appeal had dismissed its appeal, confirming that it was not open to the court to hold that legal advice privilege applied outside the legal profession.  It was sufficiently clear when the privilege applied to members of the legal profession. However extending it to non-lawyers would raise serious questions as to the scope of the privilege.  The court held that the scope of privilege could only be extended in this way by Parliament introducing legislation to this effect.  Prudential finally appealed to the Supreme Court which also refused to extend the availability of legal advice privilege to non-lawyers and dismissed the appeal.

This important case confirms that legal advice privilege can only protect legal advice given by members of the legal profession to their clients. That protection is denied for the same legal advice emanating from any other profession.  The decision means, for example, that organisations taking employment law advice from human resources organisations and other non-lawyers run the risk that the advice (and any communications seeking or passing on the advice) may have to be disclosed.

R (Prudential Plc and Another) The Commissioner of Income Tax and Another [2013] UKSC1


Disability discrimination

Mr Aderemi was a station assistant at London Bridge and was required to work on his feet for substantial portions of his nine hour shift.  After several years he developed back pain that prevented him standing for more than 25 minutes at a time.  He was forced to take periods of sick leave owing to this back complaint.  His employer, London and Southern Eastern Railway Limited, eventually dismissed him citing capability, as they took the view that he would not be able to perform his role in the foreseeable future and did not consider that they had any alternative work available for him to do.  Mr Aderemi brought a claim in the Employment Tribunal for disability discrimination under the Equality Act 2010 (the Act).

The Employment Tribunal rejected the claim, concluding that Mr Aderemi was not disabled for the purposes of the Act.  The Tribunal accepted that Mr Aderemi had a physical impairment, but ruled that the impairment did not have a substantial adverse effect on his ability to carry out day to day activities.  The Tribunal considered that Mr Aderemi’s back pain did not affect his ability to walk, sit or stand, provided that he did not perform these activities for long periods of time.  Additionally he could bend to an extent and carry items provided they were not very heavy.

Mr Aderemi appealed to the Employment Appeal Tribunal, which overturned the decision, holding that the Employment Tribunal had adopted the wrong approach in focusing on what Mr Aderemi was able to do, rather than on what he could not do, which was the correct test.

Additionally the Employment Appeal Tribunal held that, once a Tribunal establishes that an impairment has an adverse effect on an employee, it must consider whether the effect is substantial.  Further, unless a matter can be classified as minor or trivial, it must be treated as substantial.  The correct approach should be to assess how the employee carries out normal day to day activities, as compared with how they would do without the impairment. 

The Employment Appeal Tribunal also held that standing for long periods at work was a normal day to day activity. In the Judge’s view it would not be difficult to think of many jobs in which standing for long periods was necessary.  Finally, in assessing disability under the Act, Tribunals should not defeat the purpose of the legislation by placing an over-emphasis on the label to be attached. Essentially the Tribunal should apply a broad approach to the definition of a normal day to day activity.

This case serves as a useful reminder that organisations should tread very carefully when considering what an employee’s limitations are and that many activities will be considered day to day activities for the purposes of the definition of disability.

P Aderemi v London and South Eastern Railway Ltd UKEAT/0316/12


Excluding part-time judges from pension schemes

The Part-Time Workers Regulations allow workers to challenge any less favourable treatment to which they are subjected on the ground of their part-time status.  An employer will be able to justify any less favourable treatment only if it aims to achieve a legitimate objective, is necessary in order to achieve that objective and is an appropriate way of achieving that objective.  Essentially, an objective balance must be struck between any discriminatory effects of the provision in question and the reasonable needs of the organisation.  While organisations do not need to show that the measure in question was the only means of achieving the desired objective, if the part-time worker can point to another, non-discriminatory way in which the aim could have been achieved, it is less likely that the defence of objective justification will be made out.

Mr O’Brien was a retired part time Judge at the Ministry of Justice and had been for 27 years.  Upon his retirement he argued that he was entitled to receive a judicial pension on a pro rata basis.  The Ministry of Justice argued that Judges were office holders and not workers and thus did not fall within the Part-Time Workers Regulations.  The case was appealed all the way to the Court of Appeal which held that judicial office holders were not workers and were therefore not protected by the Part-Time Workers Regulations.  Mr O’Brien appealed to the Supreme Court who made a reference to the European Court on whether judges were workers for the purposes of the relevant Directive and hence for the purposes of the Part-Time Workers Regulations.

Following referral, the Supreme Court was required to consider whether the relationship between the Ministry of Justice and the Judges was substantially different from the relationship between employer and worker and whether the difference in treatment of the part-time Judges, as compared to the full-time salaried Judges, was objectively justified.  The Supreme Court was satisfied that Judges were workers, as it considered that they had most of the characteristics of employment and that there were clear differences between the position of a Judge and that of a self-employed person.  These factors included that the public service nature of Judges’ work differed from work done by self-employed people, that Judges were expected to work between defined times and periods and that, during service, they were entitled to the same benefits as full-time Judges.  These factors made clear that Judges were not entitled to work as and when they chose.

The Supreme Court considered that the Ministry of Justice’s rationale for excluding part-time Judges from the pension scheme was clearly to save costs which could not, by itself constitute justification for the unfavourable treatment.  In effect its argument was that, if part-time Judges were allowed to join the pension scheme, the pension of the full-time Judges would have to be reduced, which was purely a budgetary consideration.  The court stressed that the fundamental principles of equity cannot depend on how much money the state has at a particular time and how it allocates this money. Therefore no objective justification had been established for the difference in treatment and Mr O’Brien was entitled to a pension on terms equivalent with a full-time Judge, but on a pro rata basis.

Tribunals appear to be increasingly unwilling to accept arguments based only on costs and resources and this case serves as useful guidance when considering the rationale for a disparity in treatment between part-time and full-time staff.

O’Brien v The Ministry of Justice [2013] UKSC No.6


Religious discrimination

Mrs MBA was a Christian, who was employed by the London Borough of Merton as a Residential Care Officer at a children’s home, under a contract which required her to work on Sundays.  Mrs MBA did not wish to work on Sundays, because of her religious belief. For two years Merton accommodated this wish, allowing her to work every Saturday and have Sundays off. However it did not promise that this would be a permanent arrangement.  The Borough then insisted that Mrs MBA work occasional Sundays, in accordance with her contract, but Mrs MBA refused.   Following disciplinary action and a final written warning, Mrs MBA resigned, claiming that the requirement to work Sundays amounted to indirect religious discrimination against her.

The Employment Tribunal found that Mrs MBA’s claim was unfounded and accepted that it was legitimate for Merton to have the aims of ensuring an appropriate gender balance and an appropriate mix of seniority on each shift and a cost effective service in the face of budgetary constraints.  Additionally it considered that fair treatment of its staff and continuity for the children being cared for, to which it felt that Mrs MBA’s contractual provisions where directed, were legitimate aims and that requiring Mrs MBA to work on Sundays was a proportionate means of achieving those aims.  In finding in Merton’s favour, the Tribunal took into account that it had made efforts to accommodate Mrs MBA’s wishes for two years and that it was still prepared to arrange Sunday shifts in a way that enabled Mrs MBA to attend church.  Mrs MBA’s beliefs regarding Sunday working, while deeply held, were not a core component of the Christian faith, as some Christians were prepared to work on Sundays.

Mrs MBA appealed to the Employment Appeal Tribunal, arguing that the Tribunal had decided on what was core to the Christian belief and that it had not been entitled to do so.  The Employment Appeal Tribunal held that, when read in context, it was clear that the Tribunal had intended the expression “core” to reflect the witness evidence of a Bishop, which had been considered during the case.  It was appropriate for the Tribunal to have regard to this evidence in weighing the impact and the Tribunal was commenting on the degree to which Christians generally would be affected, not on what was important in the Christian faith.

This case confirms the importance of ensuring that, when an individual chooses to manifest religious beliefs, organisational decisions should be linked to a legitimate aim and any actions taken should be proportionate in order to achieve this aim.

This case should, however, be followed with caution in light of the European Court of Human Rights’ judgment in Eweida and Others v United Kingdom which considered four combined cases about religious rights in the workplace.  The Commission for Equality and Human Rights has published guidance in order to assist employers in understanding the implications of this decision.  The guidance includes examples of requests and how employers might deal with them and suggests that employers should only question a belief in the most exceptional cases where, for example, it is obscure, appears to be objectively unreasonable, or where the sincerity of the employee’s belief is genuinely in doubt.  Additionally employers should take all requests seriously and should not make assumptions about the significance of the religion or belief, or disregard a request because it is made by only one employee. Click here to view the guide.

MBA v Mayor and Burgesses of the London Borough of Merton UKEAT/0332/12


NCVO & Russell-Cooke Hr conference 2013

Date: Tuesday, 30th April 2013 from 9:30 AM to 5:30 PM
Venue: NCVO conference suite, Kings Cross, London

Join over 100 HR professionals from the voluntary sector at the HR Conference 2013.

  • Find out what the latest changes are to employment legislation
  • Hear from keynote speakers who will inspire and motivate you to improve your human resource management
  • Get resources and tools from experts and real-life case-studies so you can excel in your role
  • Network, share your knowledge and learn with your peers from across the sector at our drinks reception.

Click here to book your place.


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
Jane Klauber (Partner) 020 8394 6483  Jane.Klauber@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
Jane Pendry (Solicitor) - 020 8394 6478 Jane.Pendry@russell-cooke.co.uk

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