Key Employment Law Developments: legal privilege; employment status; unfair dismissal


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Summary: Our October 2018 blog outlines the key UK employment law developments over the last month. These include cases on legal professional privilege, employment status, unfair dismissal, and extension of time applications. We also look at the new Parental Bereavement (Leave and Pay) Act 2018.

Court of Appeal clarifies the law on litigation privilege

The Court of Appeal has provided welcome guidance on the scope of litigation privilege, holding that various documents produced in the course of an internal investigation were protected by litigation privilege. Overturning the High Court’s decision, the Court of Appeal said that ENRC's claim to litigation privilege succeeded because, given the context, criminal prosecution was reasonably contemplated at the point that ENRC engaged lawyers to undertake an internal investigation, and the documents were brought into existence for the dominant purpose of avoiding or settling criminal  proceedings against ENRC.

Why this matters?

The Court of Appeal has given a broader and more pragmatic interpretation to the scope of litigation privilege in the context of carrying out an internal investigation compared to the initial High Court decision. For a detailed review of this case and its implications, you can read this article written by our BCLP Global Investigations practice.

Serious Fraud Office (SFO) v Eurasian Natural Resources Corp. Ltd

EAT rules that letter giving notice was not the same as a letter of resignation

The EAT has ruled that an employee's letter of notice to her department did not amount to a resignation because the wording used was ambiguous.

The employee had been offered a new job within the radiology department at the hospital in which she worked. She gave notice in relation to her existing job with the records department. Her letter of notice said “please accept one month’s notice from the above date”. Her manager accepted the employee’s “notice of resignation”.

The job offer from the radiology department was subsequently withdrawn and the employee tried to retract her letter of notice in respect of her current job. The hospital wouldn’t allow the employee to withdraw her letter and confirmed that her employment would end at the end of her notice period. The employee claimed unfair dismissal.

The EAT agreed with the Employment Tribunal that the employee had not clearly and unambiguously intended to resign from her employment. The correct test was to ask what a reasonable recipient would have understood by the notice in light of the particular circumstances. In this respect, the Employment Tribunal was entitled to find that the letter was not a valid notice of resignation but instead a notice of the employee’s wish to end her role in the records department. Accordingly, the employee had been unfairly dismissed.

Why this matters?

This case is a salient reminder to employers that where they receive an ambiguous or unclear resignation letter from an employee, they should check that it is actually the employee’s intention to resign from their employment before acting on it.

East Kent Hospitals University NHS Foundation Trust v Levy

Solicitor’s failure to spot ET1 defect before filing claim doesn’t necessarily preclude grant of extension of time

The EAT has ruled that an Employment Tribunal may still extend time to allow late submission of an unfair dismissal claim even though the claimant’s solicitors failed to spot a fatal error in the original ET1 form when first filing it.

The claimant had instructed a firm of solicitors to assist with her whistleblowing and unfair dismissal claims. In an attempt to keep costs to a minimum, she completed the formal parts of the ET1 herself. In error, she missed off the last two digits of the early conciliation number and her solicitors filed the ET1 without realising her mistake. The claim was rejected because of this error and, within a day of receiving notification of the rejection, the claimant’s solicitors re-submitted the ET1 with the correct early conciliation number. However, by that point the time limit for filing the claim had expired.

The Employment Tribunal allowed the late re-presentation of the claim on the basis that it had not been reasonably practicable to present a properly constituted claim in time. Although the solicitors were at fault for failing to spot the error - which is usually fatal to a request to grant an extension of time to file the claim – in this particular case, the Tribunal did grant the extension of time. On appeal by the employer, the EAT agreed with the Tribunal that the claimant’s solicitors were at fault, but said that an extension of time could still be granted provided the solicitors were not unreasonable in failing to check the ET1 before filing. It was arguable that the solicitors had behaved reasonably by not checking the ET1, as the claimant was trying to save legal fees by completing the ET1 herself.

Why this matters?

This case serves as a useful reminder of the importance of ensuring that ET1s and ET3s contain the relevant mandatory information when submitting them to the Employment Tribunal, otherwise they will be rejected. To limit the risk of rejection, it is advisable that such forms are double-checked before submitting.

North East London NHS Foundation Trust v Zhou

First Tier Tribunal rules that football referees are self-employed

The First Tier Tribunal has held that a group of English football referees were self-employed and not employed by Professional Game Match Officials Limited (PGMOL), the body that represents football referees in England.

In an attempt to recover PAYE and National Insurance liabilities from PGMOL, HMRC challenged the employment status of a group of football referees who officiate matches in the English Football League and FA Cup.

Before each season, this group of referees sign an overall agreement with PGMOL setting out detailed requirements about their fitness, match day routines and how they are assessed. HMRC tried to argue that this agreement created an employment relationship with the referees because there was ‘mutuality of obligation’ between PGMOL and the referees and the continual monitoring and assessment of their fitness meant that PGMOL exercised a a sufficient degree of control over the referees to be their employer.

However, the First Tier Tribunal held that there was insufficient mutuality of obligation and control in the individual engagements to amount to an employment relationship. Certain factors suggested an employment relationship, such as the level of integration, hours worked and the fact that the referees could not obviously be described to be in business on their account. However, these were outweighed by other factors indicating self-employment, including the fact that neither PGMOL nor the referees were free to cancel the referees' appointment without being in breach of contract, and PGMOL had no control over referees during a match. 

Why this matters

This case is another example of employment status being firmly on HMRC's agenda; industries with a high number of self-employed contractors should take note. The decision also provides a useful example of the application of the criteria used to decide employment status.

Professional Game Match Officials v HMRC

The Parental Bereavement (Leave and Pay) Act 2018 receives Royal Assent

On 13 September 2018 the Parental Bereavement (Leave and Pay) Act 2018 received Royal Assent. The Act provides a day one right to two weeks’ leave for an employee who has lost a child under the age of 18 or suffer a stillbirth from 24 weeks of pregnancy. Employees with a minimum of 26 weeks’ continuous service will also be eligible for statutory parental bereavement pay, for which employers will be able to reclaim some or all of the cost.

The rights under the Act are expected to come into force in 2020.

Full details of the process to be followed will be set out in supporting regulations which are yet to be published.

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