SARAH WILDER 6 PLATFORM: HEALTHY WORKING PRACTICES IN Staffbase UK LTD THE LEGAL PROFESSION – TIME FOR CHANGE
CHARLOTTE SLATER, JASPAR CHAN and SYBILLE RAPHAEL 9 KEY WHISTLEBLOWING CASES IN 2024 Protect
KERENZA DAVIS 12 THE TEST FOR GETTING AN IMAGING ORDER Blackstone Chambers
EMMA DARLOW STEARN, SIÂN McKINLEY 14 EMPLOYMENT LAWYERS ARE WELL PLACED and PETER FROST TO BRING AND DEFEND DISCRIMINATION Cloisters and Herbert Smith Freehills CLAIMS AGAINST SERVICE PROVIDERS
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Editor MARC JONES
Marjon Law marc@marjonlaw.co.uk
Editorial committee
NATASHA ADOM GQILittler
KATHLEEN BADA Dentons UK and Middle East LLP
CLARE FLETCHER Slaughter and May
JO-ANNE GRAHAM / NICOLA TAYLOR Government Legal Department
CLIVE HOWARD Keystone Law
DOUGLAS LEACH Guildhall Chambers
RICHARD LINSKELL Gunnercooke LLP
CRAIG LUDLOW 3PB LOUISE MASON Linklaters LLP
SARA MEYER DAC Beachcroft
NIKITA SONECHA Browne Jacobson
Advertising CYNTHIA CLERK Cynthiac@elaweb.org.uk
a
word from the editor
A belated Happy New Year to you. This is the last edition of ELA Briefing that will appear in hard copy form, ending more than 30 years of print production. Although some ELA members still prefer to thumb their way through the Briefing on the train or Tube to and from work, the majority of members receive their copies digitally. This initiative will provide a huge cost saving to ELA and allow the Management Committee to reinvest those costs to benefit members in different ways. For example, it is presently looking into a dedicated App for ELA Briefing and I will report back on this in due course.
In case you missed it, the next President of the Employment Appeal Tribunal will be The Honourable Lord Fairley whose term of office starts on 1 February. Lord Fairley has sat as a judge in the EAT since October 2020 and succeeds the Honourable Mrs Justice Eady, who has served as President since February 2022.
An article reported by lawyer-monthly.com will be of interest to all those undertaking legal research and the way that AI has begun to transform the way legal professionals interact with research databases. According to lawyer-monthly.com, one of the most significant advancements is the application of Natural Language Processing (NLP), a form of AI that allows users to communicate with research tools in everyday language. Previously, lawyers often had to rely on legal jargon or keywords to find what they wanted. NLP can interpret queries in plain English, allowing lawyers to ask specific questions such as, ‘What are the legal requirements for terminating an employee in a redundancy situation?’ rather than forcing them to use technical language. This shift in how users interact with research tools increases the accuracy and relevance of the results. Obviously, this will not only assist lawyers but lay persons too. In my own practice, I have seen an increase in litigants in person, AI and NLP may lead to a further increase in these numbers.
members receive their copies of the Briefing digitally’
A case caught my eye this month in the Mail Online, in which an NHS hospital cleaner was sacked after being off sick for more than 400 days in four years. At first blush, this may not sound unremarkable. However, Zoe Kitching was employed by Morecambe Bay NHS Foundation Trust and had several lengthy periods of sick leave from 2019 to 2023 as she struggled with ‘complex mental health issues’. Nevertheless, despite there being a ‘wealth of evidence’ supporting Ms Kitching who suffered with anxiety and depression, as well as being bipolar, the service managers of the Trust failed to recognise that she was disabled for the purposes of s.6 of the Equality Act 2010 and dismissed her because of her absences.
Ms Kitching presented a claim for unfair dismissal and disability discrimination. An employment tribunal held that it was ‘irrational and wrong’ for the Trust to find Ms Kitching was not disabled and, therefore, she should have been afforded more sick leave. As a litigant in person, Ms Kitching won her claims of unfair dismissal and disability discrimination, and was awarded £49,147 in damages. The tribunal found that Ms Kitching sometimes suffered breakdowns which led to having time off and had asked her manager if she could cut down her hours but this was refused. Furthermore, the tribunal found that Ms Kitching had previously been classified as disabled, but in January 2021, the Trust received an occupational health report which ‘curiously’ stated she was ‘not a disabled person within the meaning of the Equality Act 2010’. This case highlights that not only should litigants in person not be taken for granted, but that occupational health reports should not be taken at face value.
If you would like an article to be considered by the editorial committee, please send this to me by 3 March (ELABriefingEditor@elaweb.org.uk)
I sign off this month with a quote from Lord Woolf: ‘Only too often the litigant in person is regarded as a problem for judges and for the court system rather than the person for whom the system of civil justice exists.’
MARC JONES, Marjon Law
ela news
In December, Danny Carlyle joined us as our Events Manager and Steve Mattin as Membership Manager. In the Membership Office, Steve is also joined by our Membership Administrator, Jackie Williams. As Charley and Nick handover their brilliant stewardship of ELA Events and Membership to them, Danny, Stephen and Jackie will join our fantastic and experienced team, working under James Jeynes’s operational management, consisting of Angela Gordon, our Finance Officer and Webinar Producer, Website Manager, Cynthia Clerk, and Pro Bono Administrator, Christine Wheeler. I have asked Danny and Steve to introduce themselves via this column.
Danny Carlyle, Events Manager
I am a dedicated events professional with seven years’ experience in event management within membership organisations. My career has been defined by a commitment to delivering impactful events and creating meaningful connections across multiple industries. My life in events started a decade ago working as a crew member at Reading and Nottingham Half Marathons and today, I still site manage at both events. This role prompted the North & Western Lancashire Chamber of Commerce to ask if I would like to take over as its Event Manager. Organising over 50 events annually to meet the evolving needs of our members, I re-structured the chamber’s event portfolio, aligning it with industry trends and driving consistent growth in sponsorship revenue. In my two years at TALiNT Partners, I led the employer events programme, managing a dynamic portfolio of events across the UK, EMEA, USA and APAC. From intimate roundtables to international conferences, I oversaw every detail of event planning and delivery. My role included curating content for talent acquisition leaders, fostering strong sponsor relationships and developing innovative marketing campaigns, all of which enhanced attendee engagement and sponsor satisfaction. In my most recent role, I stepped in as the interim Event Manager at The Talent Labs. I designed and executed 40 successful events in the last six months of 2024 while laying the foundation for 100 events in 2025. I live in Clitheroe, a small town in East Lancashire, with my wife Beth and Collie Cross, Clover, and we will be expecting our first child in June, so 2025 is going to be an extremely exciting time for me personally, as well as professionally. In my spare time, I am an avid (although not very good) golfer and member of my town’s local course. My biggest passion is supporting Liverpool FC and I am a regular visitor to Anfield. I believe I am joining ELA at a very exciting moment, with the introduction of a new team within the events and memberships function. I can already see that many of the event’s foundations are firmly in place, but what I bring is a desire to improve events and I hope to be able to deliver an events programme that all ELA members see as invaluable.
Steve Mattin, Membership Manager
I am an experienced professional membership manager with a total commitment to member communication, engagement and customer service delivery. Before joining ELA, I worked at various professional bodies’ membership teams in roles aimed at growing, retaining and increasing the engagement of members, as well as promoting members’ services to their potential clients. For the past two years, I have been working at the Grounds Management Association (GMA), a membership organisation that supports professionals and volunteers working to improve the quality of surfaces to make sport more accessible to everyone. My role at the GMA was to lead the restructuring of the association’s membership offer, increase membership engagement, deliver a comprehensive membership
strategy and contribute to the overall advancement of the GMA and the grounds management industry as a whole. I have long, broad and deep experience of membership organisations from the Greater Birmingham Chambers of Commerce as Head of Burton & District and Cannock Chase divisions, at the Institute of Physics and Engineering in Medicine, the Royal Town Planning Institute and the Royal Institute of British Architects, primarily working with members to increase their commercial profile and supporting their growth as businesses. I am married (to a lawyer so I have some insight into our members’ roles). We have a sixyear old son and live in Bewdley on the banks of the Severn in Worcestershire. I maintain an active interest in all sports, as well as history, archaeology and architecture. I am really looking forward to this exciting opportunity to work closely with colleagues and key stakeholders at ELA to build relationships, and ensuring that our members get the very most out of their membership.
Recent activities
• Training Committee: webinars included ‘Sexual Harassment Preventative Duty’, 10 January; ‘Tax on Termination Payments’, 14 January; ‘An Employment Lawyers Guide to Data, Privacy and Defamation Issues’, 29 January. A hybrid event, ‘What’s New in Employment Law’, took place in London on 29 January.
• The Pastoral Committee organised a webinar ‘Right First Time – Every Time: What gets in the way?’ on 23 January.
• The regions: a Wales Quiz Night was held in Cardiff on 30 January.
Looking ahead
• Training Committee: forthcoming webinars include ‘Employment in Hospitality’, 4 February; and ‘Whistleblowing and International Law’, 6 February. A hybrid event, ‘Reasonable adjustments: Where are we now?’, will take place in London on 13 February. The ELA Annual Conference will be held in London on 15 May 2025.
• The In-house Committee has organised a conference for in-house members on 27 March in London.
• There is a Junior Committee speed mentoring event in London on 5 February.
• In February, the Legislative & Policy Committee will respond to the open consultation: ‘Leading the NHS: Proposals to regulate NHS managers’.
• The regions: a training day in Southampton is planned for 21 March 2025.
CASPAR GLYN KC, Cloisters
in brief
TUPE: objection to a transfer amounted to dismissal
The EAT has clarified the legal effect of exercising the right to object under TUPE in circumstances where the transfer entails a substantial change in working conditions to the material detriment of the employee, giving rise to a claim under reg 4(9) Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE). In London United Busways v De Marchi [2024] EAT 191, the claimant was a bus driver employed by London United Busways Ltd (LUB). Following a re-tendering exercise, London bus route 27 was transferred from LUB to Abellio. This resulted in a change in the location from which the bus route was operated, from Stamford Brook to Battersea. Mr De Marchi asserted that the relocation to Battersea (which was an hour’s commute from his home by multiple forms of transport) was a substantial and detrimental change to his working conditions. He exercised his right to object to the transfer under reg 4(7) TUPE but maintained that he was not resigning his employment. The EAT held that in circumstances where reg 4(9) applies, the effect of exercising the right to object was a dismissal by the employer (rather than a termination by operation of law). It noted that reg 4(8) TUPE (which sets out the effect of objecting to a transfer) was expressed as being ‘subject to’ reg 4(9) TUPE. Accordingly, the termination of the claimant’s employment was treated as a dismissal and the claimant’s remedy lay against LUB, the transferor.
Employment tribunals: new rules of procedure
On 6 January, the Employment Tribunal Procedure Rules 2024 (SI 2024/1155) came into force. These replace the previous set of rules contained in Sch 1, Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237), which have been revoked. While the rules introduce minimal substantive change, the near complete re-numbering means that practitioners must familiarise themselves with the rules.
‘the near complete re-numbering means that practitioners must familiarise themselves with the rules’
Tribunals: legal officers authorised to carry out certain judicial functions
On the same date, the Senior President of the Employment Tribunals issued a Practice Statement conferring new powers on legal officers. Acting under the supervision of an employment judge and in accordance with any applicable Presidential Guidance, legal officers may make certain orders or determine certain matters. These include:
• extending or shortening a time limit, including extending time for presentation of a response;
• rejecting claim forms with missing or incorrect information;
• making a case management order, where no party has objected, for an extension of time to comply with a case management order; to amend a claim or response; for additional information about another party’s claim or defence; for different claims to be considered together; to postpone a hearing;
• directing a preliminary hearing, where no party has objected, to conduct a preliminary consideration of the claim and make a case management order; and
• dismissing a claim following withdrawal.
Parties have the right to apply to the tribunal for any decision made by a legal officer to be considered afresh by a judge, providing that they do so within 14 days from the date on which the tribunal sends notice of the decision.
Uplift to protective award claims in fire and rehire situations
The Statutory Code of Practice on dismissal and re-engagement (the code), setting out the process employers should follow when terminating employees and seeking to re-engage them on less favourable terms, came into effect on 18 July 2024. Employment tribunals have the power to increase (or decrease) by up to 25% any award of compensation made for an unreasonable failure to follow the code.
From 20 January 2025, the power to award an uplift (or reduction) also applies in respect of protective award claims brought under s.189 Trade Union and Labour Relations (Consolidation) Act 1992. The Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment of Schedule A2) Order 2024 amends the claims listed in Sch A2 to include s.189 Trade Union and Labour Relations (Consolidation) Act 1992.
Comments about employee’s accent amounted to harassment
In Carozzi v University of Hertfordshire [2024] EAT 169, the EAT considered the meaning of ‘related to’ a relevant protected characteristic for the purposes of the test of harassment in s.26 Equality Act 2010. Ms Carozzi, a Brazilian national of Jewish ethnic origin, was employed as Marketing, Engagement and Partnerships Manager at the University of Hertfordshire. She resigned during her probationary period, bringing a number of claims including harassment on grounds of race.
The harassment claim arose out of comments made about the claimant’s accent which was said to be ‘very strong’, making it ‘difficult for her to be understood’. The employment tribunal found that these comments did not amount to harassment since they had not been motivated by race but had instead been about the claimant’s intelligibility or comprehensibility when communicating orally.
The EAT overturned this finding. It held that the tribunal had been wrong in stating that a mental element is required in harassment claims, as for direct discrimination claims. While treatment may be ‘related to’ a protected characteristic where it is ‘because of’ it, harassment may also occur where the alleged harasser was not motivated by the characteristic. The EAT gave as examples the making of sexist jokes (citing its decision in Blanc de Provence Ltd v Ha [2023] EAT 160), or the unwitting use of racially insensitive terms. In these examples, the harassment would still be ‘related to’ the protected characteristic.
Commenting on the link between accent and race, the EAT noted that an accent may be an important part of a person’s national or ethnic identity. Criticism of a person’s accent could be related to the protected characteristic of race and could violate a person’s dignity.
Carozzi confirms the position that the test of being ‘related to’ a protected characteristic can be satisfied by establishing an objective link between the conduct and the characteristic, without the need for the conduct to be motivated by the characteristic. This makes it much wider than the ‘because of’ or ‘reason why’ test which applies in direct discrimination claims.
Women and Equalities Committee inquiry into shared parental leave
Uptake of shared parental leave (SPL) has been low since its introduction in 2015. A 2023 Department for Business and Trade report found that it was used by only 1% of mothers and 5% of fathers following the birth or adoption of their child.
In its policy paper, Next Steps to Make Work Pay, the Government committed to a review of the parental leave system, which it considers does not support working parents. In advance of this review, the Women and Equalities Committee has launched an inquiry into paternity and shared parental leave, with a view to examining options for reform. A call for evidence is underway, seeking submissions on issues including possible solutions to the low take-up of SPL, alternatives to the current ‘maternal transfer’ model and lessons from other countries. The call for evidence closes on 7 February 2025.
LOUISE MASON, Linklaters LLP
Platform: Healthy working practices in the legal profession – time for change
SARAH WILDER, Staffbase UK Ltd
Overwork has long been the norm in law – and change is long overdue. This will require firms to get serious about their responsibilities, says the Chair of ELA’s In-house Committee.
A longstanding culture of overwork
When I started my training contract more than 20 years ago, I knew that I would have to work hard. I was in my very early 20s, and although I had had weekend and holiday jobs, sometimes working long hours in the retail and hospitality industry, as a kid who grew up in a very ordinary family in urban Essex, with no contacts in the law, I had no prior knowledge of the legal profession beyond a glamorous glimpse into what life as a City solicitor might look like from a couple of vacation schemes. They taught me that being a trainee solicitor was a huge amount of fun and involved a lot of socialising, but not much else.
What I did not realise was how working in the legal industry would ensure that I normalised working 60-plus hours a week (and that was without ever doing any pure corporate work as a trainee or post-qualification), missing events with friends and loved ones, and sometimes surviving on four to five hours sleep a night for weeks at a time.
I did not realise that it would institutionalise me to such an extent that it would take me years to understand what a reasonable workload looks like to most people. Or, that it would ultimately lead to one night in my late 20s, when at three in the morning, I called my then employer’s Employee Assistance Line after yet another night of lying in bed, awake, on a bath sheet to soak up the copious amounts of anxietyinduced sweat I was producing, in floods of tears and unable to breathe, thinking that ceasing to exist might actually be a viable alternative to the feelings of abject failure created because I could not get on top of a workload that in future would be split between three different full-time employees.
Overworking culture persists
Twenty something years on, the legal profession in the UK is still grappling with a deep-rooted culture of overwork. Long
hours, constant client demands, unreasonable billable hours targets and an ‘always-on’ mentality are still rife, despite efforts by some to move the needle in a more sensible direction. This culture is then compounded by business circumstance – in-house teams striving to do more for less as budgets are cut in times of economic recession, for example – as well as the traits that many of us lawyers share, including perfectionism, fear of failure and a susceptibility to imposter syndrome. Added to this, at least for some, is a fear of speaking out either against the prevailing culture or indeed of raising concerns about individual workloads, in case this damages career prospects.
Working in this environment has significant repercussions, including stress, burnout and mental health challenges among lawyers, some of which have resulted in many individuals leaving the profession, the very worst of which have resulted in lawyers dying, whether by their own hand or as a result of health conditions caused by stress. I was lucky – I got help, made the changes I needed to make, set some very clear boundaries in place (which took a lot of work, after many years of conditioning in the opposite direction), and although there have been other instances of acute stress in my 20-plus year career, I have never been back to that very dark place where I honestly felt, for an hour or two, that I could not continue. As we all know from news coverage of the tragic death of lawyer Vanessa Ford, not everyone is this lucky.
Change is needed
I do not think that it is revolutionary to suggest that we need to change things. There is a clear business imperative for change. Data highlights that stress-related issues cost UK businesses billions annually and result in lost productivity – and lawyers are not exempt from this. We carry such responsibility
Platform: Healthy working practices in the legal profession – time for change ‘long hours, constant client demands, unreasonable billable hours targets and an “always-on” mentality are still rife’
as trusted advisers and legal experts, yet we are human beings and, as such, are susceptible to the impact of acute and/or chronic stress, including reduced performance, poor decisionmaking, and mistakes – none of which are good for us, our employers, or our clients.
The working practices that many of us have normalised are not only a risk to health and wellbeing. In a profession that suffers from a lack of diversity, particularly in leadership, there is a further imperative to move towards healthier and more inclusive working practices in order to support lawyers with caregiving responsibilities, disabilities and other underrepresented groups and thereby look to a future where legal leaders are far more diverse and women, in particular, do not leave the profession in droves because they cannot meet the demands that the current archaic structures place upon them.
What are we to do?
As an in-house lawyer, I feel a great responsibility to drive change by demanding certain standards of the law firms that I instruct when it comes to working practices. This means that I make it clear from the outset when instructing external counsel that I do not expect teams to work until midnight or on weekends to deliver the work I request, and I regularly remind the teams I work with that I do not want them to work this way. It means that I try my hardest to make sure that I always instruct external lawyers as early as possible, so that I do not have to request overly short turnaround times for work, and that I am always very open to working with teams that have flexible working practices in place. As long as I can reach someone from the team when I need to, I do not mind in the slightest how or when that team works.
I am a realist – I am not suggesting that there will not be times when there is a need for teams to pull together and perhaps work longer hours to deliver an outcome (much as I try to avoid it myself, it is also necessary for me sometimes!) –but I do believe that working long hours should be the limitedin-time exception rather than the rule. Proper steps should be taken to ensure that compensatory rest time is built into the model, so that after a busy period people have time to recover to be able to perform at their best, rather than simply work until they drop, harm themselves, or leave the profession.
Change will require tough decisions
The problem is that real change is not going to happen on the basis of individual lawyers acting like reasonable human beings
towards the firms or individuals that they instruct. Making real change is going to mean making hard decisions about dismantling structures that have led to lucrative outcomes for the people at the top in the past, but nonetheless also lead to unhealthy working practices – the question is whether, as a profession, we are brave enough to make these changes, or whether we will continue to cling on to the status quo.
While we continue to operate below the level of the sensible, healthy nirvana that I envisage for the legal profession, several organisations and initiatives have emerged to provide support in this space:
• the Mindful Business Charter (MBC) is a standout initiative that fosters healthier workplace cultures by promoting practices that mitigate stress and enhance collaboration. The recent publication of its specific guidelines on best practice for the legal sector contains a plethora of sensible, grounded advice on how law firms, chambers and in-house legal teams can create healthy working environments. For any firms that do not know where to start, I would strongly recommend starting here. The key here, of course, is for employers (and Heads of Chambers) to not just sign up to the MBC to tick a box, or follow the guidelines in a perfunctory manner – the key is to really scrutinise working practices and structures – and make real change. The guidelines suggest some great initiatives to help with this;
• Lawcare: this mental health charity offers free, confidential support to anyone in the legal profession, providing resources and advice on stress management and wellbeing. I wish I had known about it earlier in my career;
• our very own ELA Pastoral Committee has recognised the specific challenges faced by employment lawyers and has developed pastoral care initiatives, including mentoring programmes and stress-relief workshops, aimed at supporting employment lawyers to work in a more healthy way. There is a plethora of links to useful organisations at https://www.elaweb.org.uk/content/ organisations-offering-pastoral-support-members and I would highly recommend anyone who is struggling to take a look. I am sure there will be something for you here; and
• the Solicitors’ Charity offers support as well as financial wellbeing services and advice for solicitors. The benefits of these interventions are manifold, but real change is not going to happen at an individual level,
Platform: Healthy working practices in the legal profession – time for change
‘real change is going to require firms to get serious about their responsibilities to provide a safe workplace and take care of their people’
it is going to require firms to get serious about their responsibilities to provide a safe workplace and take care of their people.
Conclusions
Transforming our profession requires collective effort to address the systemic issues that can be a genuine danger for our fellow professionals. Leaders in the legal field must be brave enough not to simply accept the status quo, including not accepting harm to their staff as ‘collateral damage’ or putting profit above people.
As for me – well, I am not just paying lip service to this. I have already taken the MBC’s guidelines back to my General Counsel, and we are considering what we
can implement, both internally for our legal team, and in how we instruct external firms. I am in touch with other legal leaders who are already front and centre of this kind of initiative, to learn from and support them where I can. I have encouraged the members of the ELA In-house Committee, which I am lucky enough to chair, to take these ideas back to their own organisations and look at what changes they can make.
To quote Rachel Platten’s Fight Song: ‘I might only have one match, but I can make an explosion.’ All the ELA members reading this are so much more than one match, and while I am not advocating that we make an explosion, we can most definitely use our light to lead our profession into a bright, shining, healthy future.
Key whistleblowing cases in 2024
2024 was a busy year for whistleblowing. Protect, the whistleblowing charity, intervened in two EAT cases and has been given permission to intervene in the two which will be heard by the Court of Appeal in 2025.
Durey: can non-financial losses be compensated in whistleblowing detriment claims?
Mr Durey was a student paramedic who raised concerns about the reduction of placement hours. He argued that he was victimised as a result and brought a s.47B detriment claim. He did not have any financial loss and only claimed injury to feelings.
The respondent raised a cross-appeal in the EAT, challenging the ability of the employment tribunal to award compensation for non-financial losses in whistleblowing claims. The employer was arguing that – contrary to the settled position since Virgo Fidelis – the ERA does not actually allow for awards for nonfinancial losses in whistleblowing detriment claims.
Injury to feelings, compensating for stress and anxiety, is a common and crucial remedy for whistleblowers. Protect intervened in the case, highlighting the emotional and psychological harm that can arise from retaliation for whistleblowing. Removing such a remedy would, in our view, be an injustice to the individual whistleblower punished for ‘having done the right thing’ and would have a chilling effect on those witnessing unsanctioned retaliation. As Mr Durey lost his appeal, the EAT dismissed the cross-appeal, explaining that on this occasion, it was not appropriate to engage with the employer’s reasoning as it was not a point of law which had been decided at the first hearing and it would not be relevant to any future appeal either party may make. Injury to feelings awards are safe for now!
Wicked Vision and Treadwell: does Osipov still stand?
ERA s.47B(2) states that a s.47B claim cannot be used when the detriment in question amounts to dismissal as there is a different cause of action for dismissal claims (s.103A). However, since Osipov, employees have been able to bring a s.47B detriment claim for the decision to dismiss taken by
a co-worker, in addition to (or instead of) a s.103A dismissal claim.
Mr Rice and Ms Treadwell were both dismissed after raising concerns. Quoting Osipov, they both ran a s.47B claim for having been subjected to the detriment of a co-worker’s decision to dismiss them, for which the employer was vicariously liable.
In Wicked Vision, the EAT accepted that a worker can hold the employer vicariously liable for detriments by an individual coworker under s.47B(1B). However, the EAT then said that where the detriment amounts to an unfair dismissal and where the employee can bring a dismissal claim under s.103A, they cannot bring a detriment claim for the decision to dismiss under s.47(B). Osipov was significantly restricted: ‘dismissal as detriment’ claims could only be brought in cases where liability under s.103A was not possible (in Osipov, a s.103A claim was not possible because the company was bankrupt). In Wicked Vision, as the company and the co-worker were essentially the same (the decision-maker was the owner of the company) and as the company was not insolvent, Mr Rice was able to bring a s.103A claim and therefore could not also bring a s.47B claim for the decision to dismiss.
In Treadwell, a different EAT went the other way and ruled against the employer. The judge stated that the EAT was bound by Osipov: employers can be held vicariously liable for the detriment of dismissal under s.47B. The judge also held that he was not obliged to consider Wicked Vision as binding precedent or even persuasive authority. It is possible for an employee to bring a s.47B claim against an individual co-worker for subjecting them to the detriment of dismissal, and to bring a claim of vicarious liability for that act against the employer. All that s.47B(2) excludes is a claim against the employer in respect of its own act of dismissal.
Both cases have been joined and will be heard by the Court of Appeal in early 2025. Protect has been granted permission
CHARLOTTE SLATER, JASPAR CHAN and SYBILLE RAPHAEL, Protect
Key whistleblowing cases in 2024
‘we are concerned that the Wicked Vision approach to Osipov will make what is already in practice a legal minefield for whistleblowers, even more complicated’
to intervene. We are concerned that the Wicked Vision approach to Osipov will make what is already in practice a legal minefield for whistleblowers, even more complicated. The legal test is easier in detriment cases (where the protected disclosure needs only to have materially influenced the employer’s treatment) than in dismissal cases (where the disclosure must be the dismissal’s principal reason, not just a reason) and injury to feelings is only available in detriment claims.
Nicol, Williams and Moussa: how much personal knowledge is necessary?
Mr Nicol had raised concerns about his CEO’s managerial style to HR consultants. The CEO was informed that concerns had been raised about her but was not told about their substance. Shortly afterwards, Mr Nicol was dismissed. Mr Nicol lost his s.103A claim because the employment tribunal found that the decision-maker – the CEO – had not been aware of the substance of the protected disclosure. Mr Nicol appealed on the grounds that, as long as a protected disclosure had been made to his employer (the HR consultants), and that the decision-maker (the CEO) knew that a disclosure had been made, then the decision-maker did not need to know the substance of the disclosure to be liable for the retaliation. On appeal, the EAT upheld the tribunal’s decision. It held that employers had to have at least some knowledge about the substance of the disclosure to be liable for unfair dismissal arising from it. Mere awareness that a concern had been raised is not sufficient to establish causation.
Some employers may try to avoid liability by claiming or keeping themselves in ignorance of the substance of the disclosure, though the EAT asserted that Jhuti would provide adequate safeguards as the tribunal can 'penetrate through the invention' of feigned or deliberate ignorance. But it is not hard to imagine a scenario where a decision-maker dismisses a whistleblower for the fact of having blown the whistle alone without knowing about or caring for the substance of their disclosure.
In any event, in Williams, the EAT stated that Jhuti only applies to dismissal – not detriment – claims. Where the decision-maker did not know of the protected disclosure, the knowledge and motivation of another individual who influenced the decision-maker cannot be attributed to the decision-maker.
Moussa – decided a few months later – offers some reassurance though Mr Moussa had won an automatic
whistleblowing dismissal claim and had been reinstated. Following an incident four years later, Mr Moussa was suspended. He lodged a claim for whistleblowing detriment.
The employment tribunal found that the employer had indeed unfairly suspended Mr Moussa and conducted an inadequate and biased investigation because of his past whistleblowing. The myriad examples of unfairness could not be explained as a string of unfortunate errors. This was not a case of manipulation of an innocent decision-maker (as in Jhuti); there was no conspiracy. But the tribunal found that there was an underlying negative attitude towards Mr Moussa because he had blown the whistle in the past.
The employer appealed, arguing that they were not liable for whistleblowing detriment as the decision-maker who had suspended Mr Moussa had not personally known about his previous whistleblowing disclosures. The EAT dismissed the appeal: there was a ‘collective memory’ at the organisation which was prejudiced against Mr Moussa, and this had permeated the approach of the HR department. This was a factual determination for the employment tribunal to make, and there had been no error of law.
It seems that some knowledge of the substance of the protected disclosure is required – even if this knowledge is part of a ‘collective memory’ and not the actual personal knowledge of the decision-maker.
MacLennan and Sullivan: can charity trustees and job applicants claim to be within the scope of whistleblowing protection?
Gilham enables those who are in an analogous situation to ‘workers’ to argue that they should be able to bring whistleblowing claims using Arts 10 and 14 ECHR.
Dr MacLennan argued that he had been expelled and lost his position as a trustee after he reported concerns about the running of the charity where he had been elected President. The employment tribunal found that he was not a ‘worker’ of the charity, nor was he in an analogous situation. Protect intervened in the case and, applying Gilham, the EAT allowed the appeal and clarified that charity trustees may be entitled to whistleblowing protections. The nature of the trustee role, particularly its responsibilities and regulatory regime, make a strong argument for it being akin to an occupational status, which could unlock the door to protection. The fact that trustees are often unpaid is not determinative, other factors are relevant, including the chances that trustees will discover wrongdoing and their
Key whistleblowing cases in 2024
‘to be protected, the worker needs to show that he had a reasonable belief that the breach was probable and that he subjectively believed that the disclosures were in the public interest’
vulnerability to retaliation for whistleblowing (for example, impact on their professional reputation). The judgment also establishes a precedent for workers to be protected from being subject to a detriment by their current employer for making a protected disclosure to that employer prior to the commencement of the employment.
The question in Sullivan was whether job applicants should be protected. Here, the EAT answered with a clear no: being a job applicant is not an occupational status in an analogous situation to workers. But the Court of Appeal gave the claimant permission to appeal and will hear the case in early 2025. Protect has been given permission to intervene.
Ritson: how difficult are the public interest and breach of a legal obligation tests to satisfy?
Mr Ritson’s manager had asked him to continue working while on furlough. Mr Ritson had responded that this might be in breach of the Coronavirus Job Retention Scheme. He was made redundant shortly afterwards. The EAT upheld the employment tribunal decision that Mr Ritson’s text messages to his employer were not qualifying disclosures: Mr Ritson had satisfied neither the public interest test nor the breach of a legal obligation test. The tribunal had found that the only interests that he had in mind were his own, and the disclosures were too vague, as they did not point towards a ‘probable’ (as in ‘more likely than not’) breach of a legal obligation. To be protected, the worker needs to show that he had a reasonable belief that the breach was probable and that he subjectively believed that the disclosures were in the public interest. Mr Ritson failed both these tests, and the tribunal found that these the principal reason for the dismissal was a genuine redundancy situation anyway, not the text messages.
KEY:
Durey Mr Declan Durey v (1) South Central Ambulance Service NHS Foundation Trust (2) Protect (Intervenor) [2024] EAT 173
ERA Employment Rights Act 1996
Virgo Fidelis Virgo Fidelis Senior School v Boyle [2004] IRLR 268
Wicked Vision Wicked Vision Ltd v Mr I Rice [2024] EAT 29
Treadwell Ms G Treadwell v Barton Turns Development Ltd [2024] EAT 137
Osipov Timis v Osipov [2019] ICR 655 CA
Nicol Nicol v World Travel and Tourism Council [2024] EAT 42
William William v Lewisham and Greenwich NHS Trust [2024] EAT 58
Moussa First Greater Western Ltd v Moussa [2024] EAT 82
Jhuti Royal Mail Group Ltd v Jhuti [2019] UKSC 55
MacLennan MacLennan v British Psychological Society (Protect and Charity Commission intervening) [2024] EAT 166
Sullivan Sullivan v Isle of Wight Council [2024] EAT 3
ECHR European Convention on Human Rights
Gilham Gilham v Ministry of Justice [2019] UKSC 44
Ritson Ritson v Milan Babic Architects Ltd [2024] EAT 95
The test for getting an imaging order
KERENZA DAVIS, Blackstone Chambers
Nix is part of a growing consensus that slightly less compelling evidence may be required to obtain an imaging order than is required for a search order.
In TBD (which was covered in the article by Niran de Silva KC and Sam Neaman in the April 2024 edition of ELA Briefing), the Court of Appeal approved the use of imaging orders (an order that requires a defendant to permit a forensic computer expert to make a complete copy of their electronic devices) as a less intrusive alternative to a search order (an order that requires a defendant to allow the claimant’s representatives to enter their premises and search for, copy and remove documents)
Since then, there has been some debate over the relevant threshold for granting an imaging order, with a degree of inconsistency appearing in the authorities.
In the recently published judgment of Nix, HH Judge Pelling KC expressed support for the view that the grounds for granting an imaging order are slightly less stringent than for granting a search order. He also identified the factors that are likely to be most relevant to obtaining an imaging order where the complaint is of unacceptable conduct in relation to disclosure and/or the preservation of documents.
The facts
HH Judge Pelling provided very limited details of the facts of the underlying claims in the case, taking the view that it was not appropriate to set these out in a judgment given on a without notice application.
As a result, all we are told is that the defendant, Alexander Nix, was the director of a company or companies which have been subject to insolvency proceedings and that the claimants are assignees of various causes of action from the insolvency practitioners.
The facts that gave rise to the claimants’ application for an imaging order were as follows.
Mr Nix had been provided with a work laptop by the companies. When the relationship between Mr Nix and the companies was ‘severed’, Mr Nix not only deleted all the data on the laptop before returning it, but also conducted a process known as ‘zero filling’. This renders it practically impossible to
retrieve data (in a way that deleting files does not). The ‘zero filling’ was done after litigation was in contemplation and, consequently, after Mr Nix should have been aware of his obligation to retain all relevant documentation.
Litigation was subsequently started and directions for disclosure were made. Following disclosure, the claimants’ solicitors wrote to Mr Nix’s solicitors criticising what had been provided and essentially asking that the exercise be redone. In particular, the claimants asked that relevant SMS, WhatsApp and Facebook Messenger communications be reviewed and disclosed.
Mr Nix’s solicitors responded with what the judge described as ‘distain’, stating that there were ‘no additional sources of documentation to disclose or search’.
After this correspondence, Mr Nix was subject to public examination as part of the insolvency proceedings. During that examination, Mr Nix said he could not remember if he was using WhatsApp at the relevant times.
Prompted by this, the claimants’ solicitors made contact with another former director of the companies, who provided the claimants with WhatsApp messages he had exchanged with Mr Nix. The claimants’ solicitors ran these through an e-discovery platform programmed with the relevant search parameters, which identified many of the messages as ‘disclosable’.
As the judge noted, this indicated that there was a realistic possibility that other relevant WhatsApp messages had not been disclosed by Mr Nix. There was also a realistic possibility that these messages would still be stored on Mr Nix’s current or former mobile phones or on the cloud storage facility of WhatsApp. Consequently, there was a strong prima facie case that, notwithstanding Mr Nix’s assurances, he had not carried out the disclosure exercise as he should have done.
The
principles
HH Judge Pelling started by reiterating (as per TBD) that any order that deprives a litigant of the opportunity to consider whether or not to make any disclosure is ‘an intrusive
The test for getting an imaging order
‘practitioners seeking an imaging order should focus on the particular factors that justify the order in the circumstances of the case, rather than simply banking on the lower threshold to get them home’
order’, which is ‘contrary to the normal principles of justice’. As a result, imaging orders (like search orders) should only generally be made after a party has been given the opportunity to comply with their disclosure obligations and failed to do so.
HH Judge Pelling went on to state that simple failure to comply with disclosure obligations will not by itself be sufficient to justify an imaging order; there needs to be ‘aggravating factors’. In this case, those were present in the form of Mr Nix’s disdainful reply to the claimants’ request to reconsider the disclosure exercise, the ‘zero filling’ of the laptop and the apparent inconsistency between the unequivocal assurances provided by Mr Nix that he had disclosed all relevant messages and the provision of relevant WhatsApp messages from another source.
The judge then considered the divergence between Hyperama and Garofalo. In Hyperama, Pepperall J articulated five criteria for determining an application for an imaging order, the first of which was whether there was ‘a high degree of assurance’ that the applicant would be able to establish their claims at trial. Pepperall J suggested that this was ‘not significantly different’ from the equivalent criterion for granting a search order (establishing an ‘extremely strong prima facie case’) but acknowledged less is required to justify an imaging order because it is ‘less invasive’.
In contrast, in Garofalo, Ms Caroline Shea KC, sitting as a Deputy Judge of the Chancery Division, had suggested the approach to granting an imaging order should be essentially the same as to the approach to granting a search order. HH Judge Pelling did not doubt the correct decision had been made in Garofalo itself, but as a matter of principle preferred the approach in Hyperama
So, as regards that criterion, HH Judge Pelling has added weight to the view that the threshold for granting an imaging order is slightly lower than for granting a search order. However, HH Judge Pelling went on to emphasise that this criterion is not the only or even the determining factor as to whether an imaging order should be made. The ultimate touchstone is where the balance of injustice lies in light of
the injustice each party is likely to suffer should the order be granted or refused respectively.
The other four criteria identified in Hyperama (whether the damage to the applicant’s business interests is very serious; whether there is clear evidence the defendants have incriminating documentation in their possession; whether there is a real possibility the defendants might destroy such material before any inter partes hearing; and whether the relief sought is proportionate) are relevant to this assessment.
In the immediate case, where the issue was whether there had been compliance with disclosure obligations, HH Judge Pelling considered the determining factors were the third and fourth in Pepparall J’s list (ie, whether there was evidence the defendant had incriminating documents and whether there was a real possibility he might destroy these).
As both those factors were present and the relief applied for was proportionate to its aims, HH Judge Pelling concluded it was appropriate to grant the imaging order sought.
Conclusions
The consensus seems to be developing that slightly less compelling evidence may be required to obtain an imaging order compared to what is needed to obtain a search order. However, practitioners seeking an imaging order should focus on the particular factors that justify the order in the circumstances of the case, rather than simply banking on the lower threshold to get them home.
Hyperama Hyperama Plc v Poulis [2018] EWHC 3483 (QB)
Employment lawyers are well placed to bring and defend discrimination claims against service providers
EMMA
Most ELA members will be familiar with the conduct of discrimination, harassment and victimisation claims in the employment arena made under Part 5 of the EqA. Far fewer are likely to have encountered such claims made under Part 3 of the Act against organisations that provide services to the public.
Below we highlight key considerations for EqA claims against service providers and seek to demonstrate that employment lawyers are well-equipped to conduct these claims in the civil courts, provided that important differences to conducting equivalent employment tribunal claims are properly appreciated.
The scope of protection: Part 3 of the Equality Act 2010
Protections relating to the provision of services are found in s.29, Part 3 of the EqA (all subsequent statutory references are to the EqA). In addition, courts must consider the EHRC Code if it appears to be relevant to the issues in the case.
Employment lawyers will be familiar with many of the concepts in s.29, which includes the following protections:
• service providers must not, when providing any service publicly or privately, whether for payment or not, discriminate against, or victimise, a person:
• by not providing a person with the service;
• as to the terms on which the service is provided;
• by terminating provision of the service; or
• by subjecting a person to any other detriment (ss.29(1), (2), (4) and (5));
• service providers must not harass a person requiring the service, or a person to whom the service is provided (s.29(3)); and
• service providers have a duty to make reasonable adjustments (s.29(7)(a)).
The burden of proof provisions of s.136 apply with equal force to claims under Part 3.
However, Part 3 has some quirky differences to the employment provisions: it does not apply to the protected
characteristics of age (if under 18) or marriage and civil partnership. Furthermore, protection against harassment does not apply where the protected characteristics are sexual orientation, or religion or belief.
(The gaps in protection from harassment were described by Lynne Featherstone MP on the Equality Bill’s second reading in the Commons, as part of the ‘balance to be struck between protection from harassment and free speech’ – Hansard Vol 492. However, on the Bill’s second reading in the Lords, Lord Lester of Herne Hill called the Bill ‘underinclusive’ in places, citing its failure ‘to cover homophobic bullying in schools, except where it amounts to discrimination rather than harassment’ – Hansard Vol 715.)
Exceptions
Section 29 is subject to various exceptions; for example, in certain circumstances, insurers may consider an individual’s disability when deciding whether to provide insurance services (para 21, Sch 3), and religious or belief organisations may restrict participation on the basis of a person’s religion or belief, or sexual orientation (para 2(3), Sch 23).
More general exceptions relating to sex discrimination include that a service provider may provide:
• separate services for persons of each sex if – (a) a joint service for persons of both sexes would be less effective (para 26(1), Sch 3);
• separate services differently for persons of each sex if – in addition to (a) above, (b) the extent to which the service is required by one sex makes it not reasonably practicable to provide the services otherwise than as a separate service provided differently for each sex (para 26(2), Sch 3); and
DARLOW STEARN, SIÂN McKINLEY and PETER FROST
Employment lawyers are well placed to bring and defend discrimination claims against service providers ‘the application of s.29 EqA is not always straightforward, particularly in belief discrimination cases’
• a service only to persons of one sex if – (a) the service is also provided jointly for persons of both sexes; and (b) the service would be insufficiently effective if it were only to be provided jointly (para 27(3), Sch 3).
All the exceptions under paras 26–27, Sch 3 are subject to the condition that the limited provision of the service must be a proportionate means of achieving a legitimate aim (a concept with which employment lawyers will, again, be familiar).
The EHRC Code provides illustrative examples of when such exceptions could apply, ie for para 26(1), Sch 3 (above), a charity might provide separate hostels for homeless men and women if it considers that a mixed hostel would deter some people from using the service (para 13.87 EHRC Code).
The positive action provision of s.158 (applicable too in the employment law context) provides another possible defence –for example, a local authority that provides parenting groups open to all might decide to create an additional parenting group for LGBTQ+ parents in light of issues that such parents do not feel able to raise in the mixed groups (para 10.20 EHRC Code).
Application of s.29 EqA
Few claims made under s.29 have proceeded to a full hearing. However, the decisions that do exist demonstrate the potential breadth of the application of s.29 (see by way of example Billy Graham, First Group, Ashers Baking Co and Traveller Movement).
Employment lawyers with expertise in equality and discrimination law are in a good position to assist in the conduct of s.29 claims. Contrast the decision in Billy Graham with the employment case of Omooba.
In Billy Graham, the owner of a venue was found to have discriminated against the claimant religious organisation on the basis of the protected characteristic of religion or belief by not providing them with the venue for their lawful evangelical outreach event, contrary to ss.10, 29(1) and 29(2)(b). The defendant’s reasons for cancelling the claimant’s event centred on their principal sponsor’s view that the event was not compatible with their values (para 176), amid fears that the keynote speaker might make homophobic and/or Islamophobic comments. The potential impact on the defendant’s business did not prevent a finding of discrimination.
However, in Omooba, an appeal regarding claims of religion and belief discrimination, harassment and breach of contract, the EAT upheld the finding that the claimant’s
belief that homosexuality was a sin (founded on her Christian faith) was not a reason for a theatre’s decision to terminate the claimant’s contract to play an iconic lesbian role and her agent’s decision to ‘drop’ her; rather the truly separable reason was potential business harm arising from the social media storm following the claimant’s Facebook post expressing said belief.
The Court of Appeal’s forthcoming decision in Higgs will hopefully provide further clarification on this question of ‘separability’ – ie discrimination as a consequence of a belief itself as compared to a manifestation of that belief (the latter being justifiable).
Litigating in the county court
Under s.114, all claims under s.29 must commence in the county court. This jurisdictional requirement is strictly interpreted (see Taylor). A number of important consequences flow from this:
• a fee is payable to start proceedings (and at various stages thereafter), the value of which is dependent on the value of the claim;
• the limitation period is six months, subject to extension if the court considers this just and equitable (the current Labour Government has confirmed that it will be extending the employment tribunal’s current limitation period of three months to mirror this);
• the CPR will apply. For present purposes, the following should be noted:
• the CPR Practice Direction – Pre-Action Conduct and Protocols applies and must be followed;
• under Practice Direction – Proceedings Under Enactments Relating To Equality, when a claim is commenced, the claimant must give notice of the commencement of the proceedings to the EHRC (para 2);
• once a defence has been entered, cases will be allocated to one of four ‘tracks’ depending on the claimed monetary value and complexity, and are normally allocated as follows: the ‘small claims track’ for cases with a value of up to £10,000; the ‘fast track’ for cases between £10,000 and £25,000; the (new) ‘intermediate track’ for cases between £25,000 and £100,000, and the ‘multi-track’ for all other cases;
• the track to which a case is allocated can have important consequences. For example, disclosure in cases allocated to the small claims track will usually be limited to documents each party seeks to rely on, whereas in the
Employment lawyers are well placed to bring and defend discrimination claims against service providers
‘there is a presumption in discrimination claims that the court will appoint a lay “assessor” to assist the court’
fast, intermediate and multi-tracks, standard disclosure is more frequently ordered – although it is open to the court to make different orders (see CPR rules 28.2(4) and 31.5(7)), including for disclosure on an issue-by-issue basis; and
• the general rule that costs follow the event applies, although the ability to recover costs varies by track: fixed recoverable costs apply to cases in the small track (CPR 27.14), fast track (CPR 45.44) and intermediate track (CPR 45.50) and the multi-track is subject to the general costs management rules (CPR 3.12–18);
• the judge hearing the case is unlikely to have any experience of discrimination law. However, there is a presumption in discrimination claims that the court will appoint a lay assessor – likely to be an experienced lay member of the Employment Tribunal Service (s.114(7) EqA). An assessor’s role includes advising the court and helping evaluate the evidence (CPR 35.15/14.14 EHRC Code – see Cary and Laidley for further guidance on an assessor’s role);
• sadly, while many ELA members will bemoan the current deficiencies of the Employment Tribunal Service (despite the best efforts of its conscientious employment judges and colleagues), in the authors’ recent experience, there is a big gap between the (relative) efficiency of the operation of the High Court and that of the county courts; and
• as with the employment tribunals, litigants in person are fairly commonplace in the county courts, in particular, for claims of lower value – more recently assisted by the availability of generative AI for legal research and drafting.
Concluding comments
Claims of this type are relatively rare, so there is likely to be a lack of familiarity with them. This can have two main consequences:
• first, when analysing risk, service providers can easily overlook the potential for such liability arising; and
• secondly, even if the potential is appreciated, those with the greatest expertise in managing discrimination risk are not normally involved because the claim does not arise in an employment context. Similar risks can arise in law firms if employment lawyers are not involved in these claims on the mistaken basis that their expertise extends only to claims in the employment tribunal.
While in many cases the monetary value of claims under s.29 is modest, the same reputational impact from a finding of discrimination can be felt by a service provider as by an
employer. In addition, the costs of defending such claims can swiftly mount and publicity can generate ‘copycat’ claims from other customers or clients.
The Ministry of Justice recently issued a call for evidence seeking views on whether costs protection should be extended to discrimination claims in the civil courts. Depending on its outcome, there could be a marked increase in these types of claims.
In the authors’ view, this is certainly an area where ELA members can themselves become the providers of valuable services to their clients, by helping them to avoid such claims arising in the first instance, or by helping them navigate any claims that do arise.
Emma Darlow Stearn is a member of Cloisters Chambers; Siân McKinley and Peter Frost work for Herbert Smith Freehills.
KEY:
EqA Equality Act 2010
EHRC Code Equality and Human Rights Commission Statutory Code of Practice in relation to services, public functions and associations
Billy Graham Billy Graham Evangelistic Assoc v Scottish Event Campus Ltd [2022] SLT (Sh Ct) 219
FirstGroup FirstGroup Plc v Paulley [2017] UKSC 4
Ashers Baking Lee v Ashers Baking Co Ltd [2018] UKSC 49 Co (Northern Ireland)
Traveller Traveller Movement v JD Movement Wetherspoon Plc [2015] WLUK 440
Omooba Ms Seyi Omooba v (1) Michael Garrett Associates Ltd (t/a Global Artists) (2) Leicester Theatre Ltd [2024] EAT 30
Higgs Mrs Kristie Higgs v (1) Farmor’s School (2) Archbishops’ Council of the Church of England [2023] EAT 89
Taylor Taylor v Evans (as representative of the Labour Party) [2023] EWHC 2490 (KB)
Cary Cary v Commissioner of Police for the Metropolis [2014] EWCA Civ 987
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