Newsletter

Employment Law Newsletters

From time to time, and particularly when there are any significant developments in the field of Employment Law, Knight-Webb Solicitors publish a newsletter. To subscribe to this newsletter, please email sunita@knightwebb.com.

You can read previous newsletters online by clicking on the links below:

Employment Law Newsletter Autumn 2021

Employment Law Newsletter Spring 2020

January / February 2023 Newsletter

In this edition of our Newsletter, we report on recent cases and updates in employment law.

Also, for those not already aware, Knight-Webb Solicitors have moved. We have moved our London office from Dulwich, around the corner to Brixton. This follows a change in the personal circumstances of the Principal, Sunita Knight-Webb, who as part of the great Covid migration has moved her main home to Lulworth Cove in Dorset. Nothing else has changed. We still offer the same high-level of service. Appointments can be arranged either in Brixton, in Lulworth Cove or, as is increasingly common, by video or telephone conference.

Case update

Marital status discrimination – claim brought by estranged wife failed – issue was whether her marital status was the cause of the less favourable treatment, as opposed to the fact she was married to employer’s main shareholder.  

In Ellis v Bacon and anor, the Employment Appeal Tribunal allowed an appeal against an employment tribunal’s finding that an employee was discriminated against because of her marital status. Mrs Bacon had joined the employer as a bookkeeper, eventually marrying the Managing Director and majority shareholder. Her husband was later replaced as Managing Director but remained the majority shareholder.

The marriage broke down which precipitated acrimonious divorce proceedings. False allegations were raised against her that she had misused company computer equipment, a baseless complaint was made to the police, her directorship was removed and dividends were unpaid. She was eventually dismissed in a letter signed by the replacement MD, Mr Ellis. She brought an employment tribunal claim against Mr Ellis for direct discrimination on the grounds of her marital status. The tribunal upheld her claim. It found that he had sided with Mr Bacon in relation to the marital dispute and was compliant with him in the detrimental acts, including dismissing her on spurious grounds. The tribunal round that these actions involved less favourable treatment against Mrs Bacon because of her marital status as wife to Mr Bacon.

The Employment Appeal Tribunal allowed the appeal. It held that the issue was whether Mrs Bacon was treated less favourably because she was married, not whether she was badly treated because she was married to Mr Bacon. Another way of looking at the issue was to ask whether an unmarried woman whose circumstances were otherwise the same as hers, including being in a close relationship with Mr Bacon, would have been treated differently.

National Living Wage to rise by 9.7% in April 2023

Following recommendations from the Low Pay Commission, the National Living Wage (NLW) will rise to £10.42 from 1 April 2023, an increase of 9.7%.

This ensures the NLW continues on track to reach the Government’s target of two-thirds of median earnings by 2024. Different rates apply to workers under 22.

Details can be found at:

https://www.gov.uk/government/news/large-minimum-wage-increases-help-protect-low-paid-workers-living-standards.

Flexible working requests can be made from the first day in a job

The government has announced that it will introduce legislation giving employees the right to request flexible working from the moment they start a job, as opposed to having to wait six months under the current legislation.

Millions of people across the UK are currently working flexibly, which can take various forms including working from home, job-sharing, compressed hours, flexitime and part-time and term-time-only working. The government has said about 1.5 million low-paid workers, including some gig economy employees, students and carers, would benefit from the new law. Flexible working may allow workers to boost their income by taking on a second job if they wish.

Summer 2022 case update

Interim injunction to enforce 12 month non-compete clause refused – time is of the essence when seeking injunctive relief

When enforcing a restrictive covenant, a court must consider the doctrine of restraint of trade. Any contractual term restricting an employee’s activities after termination will be void for being in restraint of trade and contrary to public policy, unless the employer can show that it is no wider than is necessary to protect the legitimate business interests of the employer.

One of the remedies available to an employer when seeking to enforce restrictive covenants is to apply for an interim injunction which may be granted as a temporary measure to “hold the ring” until matters can be fully explored at trial.

In Planon Ltd v Gilligan [2022] EWCA Civ 642, the Court of Appeal (CA) dismissed an appeal from the High Court’s refusal to grant an interim injunction to enforce a non-compete clause, but for reasons different to those of the High Court. The Court of Appeal’s views on the effect of delay are a reminder to those seeking injunctive relief that time is of the essence.

Planon develops and sells software for managing facilities and its customers include universities, hotels, public buildings and large office blocks. Mr Gilligan was employed as an account manager, and later promoted to sales manager. His contract contained post-termination restrictions which included a non-compete clause which provided that he would not, for 12 months after the termination of his employment, be involved in any capacity with any business concern which was, or intended to be in, competition with any part of Planon’s business which he had been involved with to a material extent in the six months before his employment terminated. Mr Gilligan resigned and joined a competitor, ServiceNow.

The parties were agreed that the effect of the non-compete clause was, in short, to stop Mr Gilligan from working in facilities management software for the 12 month period of the restraint.

In the Court of Appeal, Elisabeth Laing LJ noted that by the time of the hearing before the CA, Mr Gillingham had been employed by the competitor for seven months; the period of restraint had only about four months to run. This was a weighty factor which meant it would now be contrary to the balance of convenience to grant an injunction to enforce it. Much of the damage to Planon’s legitimate interests would already have been caused.

Bean LJ took a difference view of the initial period of delay. He considered that if Mr Gilligan’s job with ServiceNow posed as severe a threat to Planon’s protectable trade secrets or customer connections as the company asserted, the damage would have been done in the first few days, and certainly well before the lapse of two months (which was the time it took between learning of his employment by ServiceNow and the High Court hearing). He said that the status quo should be preserved and that the High Court judge would have been justified in refusing an interlocutory injunction on this ground.

The case is a reminder that the longer the delay to a court hearing the better the chance that the former employee may successfully argue that the damage is done and that the status quo should allow them to continue in their new employment.

November / December 2021 case update

Unfair dismissal whistleblowing claim – Not enough that selection for redundancy was ‘materially influenced’ by protected disclosures.

The recent Employment Appeal Tribunal judgement in the case of Secure Care UK Limited v R Mott illustrates some of the hurdles employees face when bringing whistleblowing claims for automatic unfair dismissal.

The Claimant worked as a Logistics Manager for the Respondent, which provided transport services for NHS patients with mental health problems. He made nine alleged protected disclosures, relating to matters such as inadequate staffing. He was put at risk of redundancy and dismissed.

The tribunal accepted that three of the disclosures qualified as protected disclosures. It found that there was a genuine redundancy situation but that the Claimant’s disclosures had had a material impact on his selection. The tribunal held the Claimant was unfairly dismissed.

The EAT disagreed. The tribunal had applied the wrong test – it had used the ‘materially influences’ test, which applies to s47B Employment Rights Act claims for whistleblowing detriments (as opposed to dismissal), rather than the sole or principal reason test required for s103A ERA claims for automatic unfair dismissal.

The EAT also found that the tribunal had failed in the causation assessment. It had failed to distinguish the impact of the three protected disclosures (and whether these caused the dismissal) from the impact of all nine disclosures.

Knight-Webb Solicitors are specialists in employment law. We pride ourselves in providing a first-rate, cost-effective and personal service to clients. We can advise you on employment law matters including furlough arrangements, redundancies and settlement agreements.

Contact Sunita Knight-Webb on 020 7207 6195 or at sunita@knightwebb.com