Our May 2022 employment law newsletter is out now!

Welcome to May's Employment Law newsletter

Spring is here: whilst April saw unseasonably dry conditions in a meteorological sense, there has been a metaphorical flood of interest and debate taking place as to what the future may, and should, hold in terms of remote and flexible working as we appear to embark upon what may be regarded as a post-pandemic era. News items in this edition cover: 

- The CIPD Survey on attitudes to home working
- ACAS Panel Debate on the legal and practical considerations for flexible working requests in the wake of the pandemic
- Presidential Guidance on taking oral evidence from persons located abroad

Legal analysis of recent authorities provided by our members:

- Sarah Bowen has provided a summary and analysis of two EAT decisions

recently published relating to ET procedure in Guardian News & Media Limited v Rozanov and Kumar v MES Environmental Ltd
- Katherine Anderson explains how the ET’s case management in Mendy v Motorola Solutions UK Ltd led to a procedural muddle
- Alex Leonhardt reports on the EAT decision in Clark v Middleton
- Sarah Clarke considers the correct pool for comparison in indirect discrimination cases in Allen v Primark Stores Ltd.

CIPD Report ‘Flexible Working: lessons from the pandemic’ published on 1st April 2022

The Report sets out 7 strategies to encourage and develop hybrid working practices. The Report follows on from a large survey of UK employers and employees providing many interesting statistics including that 71% of employers confirmed that the increase in homeworking has either boosted or made no difference to productivity.

Prime Minister warned and outrage at ‘scare tactics’ in attempts to get civil servants back into the workplace

Last week it was widely reported that the Head of the Civil Service, Simon Case, along with other senior civil servants had warned the Prime Minister over what were seen as ‘scare tactics’ and government rhetoric that was seen to be designed to get civil servants back into the workplace.

Presidential Guidance – Taking oral evidence from persons located abroad

Were a witness to give evidence remotely from abroad to a UK Tribunal hearing, permission of the foreign state where the witness will be located is now necessary.

Simon Tibbitts summarises what has changed since the Presidential Guidance was issued on 27 April 2022 and what practitioners need to do to comply with the new guidance.

ACAS Panel Debate on the Future of Flexible Working – 12 May 2022

Head of our Employment and Discrimination Law Team, Craig Ludlow, has been invited to speak and will form part of a Panel with senior ACAS, Business and Trade Union representatives debating the key legal and practical considerations for flexible working requests in the wake of the pandemic era on 12 May 2022. Click here to book your space.

ET Procedure and the disclosure of Court documents to journalists

Sarah Bowen analyses Guardian News & Media Limited v (1) Dmitri Rozanov (2) EFG Private Bank Limited (Media Lawyers Association Intervening), a case in which the EAT applies the Open Justice Principle in granting journalists access to skeleton arguments, witness statements and documents referred to in the judgment.

EAT considers the correct pool for comparison in indirect discrimination cases

Sarah Clarke analyses Allen v Primark Stores Ltd [2022] EAT 57, a case in which the EAT reminds us of the need to carefully consider the relevant provision, criterion or practice (PCP) when constructing the pool for comparison, making sure that the potential pool for comparison suitably tests the discrimination that is being alleged.

Case Management Order unintentionally struck out claim 

Katherine Anderson reviews Mendy v Motorola Solutions UK Ltd and Others [2022] EAT 47, a case in which we are reminded that failure to adequately particuliarise a claim does not mean that it is not being pursued. 

Merely technical breaches of TUPE, and can liability survive a withdrawal?

Alex Leonhardt analyses Clark v Middleton and anor [2022] EAT 31, a case in which the EAT considered the ET's discretion to make (or not make) an award of compensation for breaches of TUPE Regulations, and the effect of withdrawal of a claim on a defendant's liability to pay compensation, in circumstances where the claimant has no freestanding right to bring a claim against
them.

ET Procedure: a party may apply for a transcript of a hearing subject to conditions

Sarah Bowen summarises the case of Kumar v MES Environmental Limited [2022] EAT 60, in which the EAT determined that a party may apply for a transcript, subject to paying the
applicable fee and complying with the associated established protocols. 

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.