December 2021 employment law newsletter out now

Welcome to December's employment law newsletter

Our last newsletter of 2021 reports 3PB's appearance in the Supreme Court on a holiday pay appeal. We consider the latest developments at Yorkshire County Cricket Club following the allegations of racial harassment and bullying made by Azeem Rafiq and look at Mark Green’s recent training session on discrimination for the ELA.

Case law analysis is provided by
- Naomi Webber on discrimination in pregnancy with R (the Motherhood Plan & Anor) v Her Majesty's Treasury [2021] EWCA Civ 1703;
- Stephen Wyeth on a salutary lesson to employers who deal with a recognised union with his analysis of Kostal UK Ltd v Dunkley and others [2021] UKSC 47;
- Karen Moss considers some important guidance from the EAT on the procedure required for conduct dismissals in 

London Borough of Hammersmith and Fulham v Keable EA-2019-000733-DA / EA-2020-000129-DA;
- Finally, Gareth Graham outlines the need to analyse carefully all the evidence when establishing disability status under the Equality Act following the recent Court of Appeal decision in Sullivan v Bury Street Capital Limited [2021] EWCA Civ 1694.

3PB in UK Supreme Court Holiday Pay Appeal

The appeal in The Harpur Trust v Brazel was argued before the UK Supreme Court on Tuesday 9th November.  The case concerns the statutory holiday pay entitlement under the Working Time Regulations 1998 (WTR) of Mrs Brazel, a visiting music teacher employed at a school on a permanent ‘zero hours’ contract but not called on to perform work throughout the whole of the year: the issue being whether Mrs Brazel is entitled to the 5.6 weeks’ paid annual holiday specified in the WTR or whether that figure should be reduced on a pro-rata basis.

3PB Barristers’ Mathew Gullick QC, Lachlan Wilson and Naomi Webber (instructed by Hopkins Solicitors)

appeared for Mrs Brazel.  Judgment was reserved and is expected to be handed down next year.

The decision of the Court of Appeal, which upheld Mrs Brazel’s claim, is reported at [2020] ICR 584 and can be found on BAILII. This was covered by 3PB in a news announcement at the time.

The video recording of the hearing on 9th November is now available on the Supreme Court’s website.

3PB and Leigh Day deliver training on discrimination at the ELA

3PB employment law barrister Mark Green, together with Leigh Day partner Kiran Daurka, was invited to deliver training on discrimination to Employment Law trainees as part of the ELA’s annual ‘Introduction to Employment Law’ two day course in November. Their whistlestop tour of all aspects of discrimination, incorporating their personal experience, was very well received.

Yorkshire CCC racism scandal: 16 staff to leave

Following the report into allegations of racial harassment and bullying at Yorkshire County Cricket Club, and former player Azeem Rafiq’s compelling testimony in front of the DCMS parliamentary committee, significant changes have been announced by the Club’s new chair, Lord Patel. The Club has said that the changes are aimed at regaining trust and rebuilding a progressive and inclusive culture.

Disability under the Equality Act: on the need to carefully analyse all the evidence

Gareth Graham reviews Sullivan v Bury Street Capital Limited [2021] EWCA Civ 1694, in which the Court of Appeal provides a useful reminder that any assessment as to whether a person with an episodic condition is disabled for the purposes of the Equality Act must be carried out by way of careful analysis of all the evidence.

The EAT provides some important guidance on the procedure required for conduct dismissals

Karen Moss analyses the EAT's decision in London Borough of Hammersmith and Fulham v Keable EA-2019-000733-DA / EA-2020-000129-DA, a case in which the EAT issues useful procedural advice in relation to conduct
dismissals and employee reinstatement.

Expensive offers: collective bargaining and the need to negotiate

Stephen Wyeth reviews the Supreme Court's decision in Kostal UK Ltd v Dunkley and others [2021] UKSC 47, a case which demonstrates that any employer who has a workforce covered by collective bargaining needs to tread extremely carefully when looking to abandon negotiations with the relevant union and approach individuals with offers directly.

Pregnant then screwed? Treasury justified with its income support scheme

Naomi Webber analyses R (the Motherhood Plan & Anor) v Her Majesty's Treasury [2021] EWCA Civ 1703, 'in which the Court of Appeal dismissed the appeal brought by women who were disadvantaged by the Self Income Support Scheme. It did demonstrate, however, that care must be taken not to discriminate when creating schemes that rely on factors which may be affected by periods of maternity (and other) leave.

Meet the team

3PB’s employment law group offers expert advisory and advocacy services to private and public sector employers across all areas of employment law including unfair dismissal, discrimination, equal pay, industrial disputes, executive contracts, wrongful dismissals, restrictive covenants, whistleblowing, TUPE, injunctions, pensions disputes and disciplinary proceedings.