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August 2011 Updates

Scope of ability to challenge public authority decisions
in the Employment Tribunal

In LB of Waltham Forest v Martin, the Employment Appeal Tribunal decided, that, where an employer is a public prosecutor, the decision to prosecute an employee is not something that can be challenged in the Employment Tribunal.

The Claimant was employed as a Bus Driver and was also a local resident receiving benefits. When he received a bonus, he failed to report this to the Benefits Department and the Council decided to prosecute him for benefit fraud. The Claimant alleged that the decision to prosecute him, instead of issuing him with a lesser sanction, was racially motivated. He brought Employment Tribunal proceedings under the Race Relations Act.

The Employment Appeal Tribunal held that the decision to prosecute the Claimant, even if racially motivated, was a decision made by the Council in its role as a public prosecutor and not as an employer. This meant that any claim of racial discrimination had to be brought in the County Court.

The Employment Appeal Tribunal noted that the same principle applied to any public authority whose public enforcement decisions cannot be challenged in the Employment Tribunal merely because they happen to affect an employee.

Employer-supported childcare

HM Revenue & Customs have updated their guidance on employer-supported childcare.

Guidance and FAQ documents are available for both employers and employees.

Agency Worker Regulations - minor amendments

Some amendments to the Agency Workers Regulations 2010 have been announced.

The Regulations, which come into force on 1 October 2011, provide (amongst other things) that agency workers (i.e. temps) will have the same rights to pay, benefits, rest periods and holidays as someone recruited directly by the hirer (including the hirer's own directly recruited temp workers and employees).

There is a 12 week qualifying period, so genuine short-term agency temps will not qualify for this right. The 12 weeks do not have to be continuous; there can be breaks between assignments and absences on grounds of sickness or jury service, among other reasons.

The two main amendments of note are:

  • The definition of "agency worker" in regulation 3 has been changed. The agency worker now just needs to have any contract with the agency to perform work or services personally, whoever that work or those services are for (i.e. the worker does not need to be working for the agency itself).
  • Agencies have been given a new defence to a breach of the Regulations by a hirer where the agency has taken reasonable steps to obtain information about the hirer's terms and conditions.

Second notice of termination trumps first

In M-Choice UK Ltd v Alders, an employee was served with notice of termination of employment. This would have expired after she had accrued a year's service, giving her the ability to bring an "ordinary" unfair dismissal claim. However, she was then summarily dismissed before she had accrued a year's service. This prevented her from gaining the right to claim ordinary unfair dismissal. The second notice of termination overrode the first.

Continuity of employment in the NHS

The Employment Appeal Tribunal has decided, in Winchester and Eastleigh Healthcare NHS Trust v Walker, that, apart from in the context of TUPE transfers and statutory reorganisations, statutory continuity of employment is not preserved for NHS staff moving between different health service employers.

In calculating an unfair dismissal basic award, the Employment Tribunal incorrectly used the Claimant's entire service within the NHS, rather than the period when she worked for the Respondent Trust. The Employment Appeal Tribunal therefore reduced the basic award.

Minimum wage - sleeping on the job

In Wray v JW Lees & Co, the Employment Appeal Tribunal found that, when considering whether a temporary Pub Manager should be paid the national minimum wage for time spent on the employer's premises overnight, the answer depends solely on the relevant provisions of the National Minimum Wage Regulations 1999. The definition of working time in the Working Time Regulations 1998 has no relevance in the context of a national minimum wage claim.

In this case, the Employment Appeal Tribunal found that the Claimant was not working during the periods in question and could not, therefore, count them for the purposes of a national minimum wage claim. The requirement to sleep at the premises did not require the employee to do any work and her position could be distinguished from that of a night watchman or night sleeper in a residential home, who had responsibilities throughout the night.

Employment Appeal Tribunal time limits

The Employment Appeal Tribunal has decided, in Hine Marketing Partnership v Archant Dialogue, that if a Notice of Appeal is lodged out of time, but a previous notice has been lodged before the deadline (which was missing a page of the written reasons) the Notice of Appeal should nevertheless be accepted.

The following factors were taken into account:

  • The error in excluding a page of the judgment was minor, as the essential dispute between the parties could be understood without the missing page.
  • The Appellant had provided a full explanation for the delay in that there had been an error made by the office of the Instructing Solicitor. The fault of an adviser, in conjunction with other factors, is relevant to the exercise of the Employment Appeal Tribunal's discretion.

The case could not be said to have no merits.


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SRA number 404293