ELA Briefing - March 2025

VOLUME 32 NUMBER 2

BRIEFING March 2025 MARC JONES Marjon Law

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EDITORIAL

CASPAR GLYN KC 2 ELA NEWS Cloisters DOUGLAS LEACH Guildhall Chambers

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IN BRIEF

CONNIE CLIFF 5 INTEREST-LIKE COMPENSATION FOR Gowling WLG UNPAID HOLIDAY PAY?

DAVID FISHER 9 RESTRICTIVE COVENANTS IN CM Murray LLP PARTNERSHIP AGREEMENTS

RACHEL CRASNOW KC and GRACE CORBY 12 SEXUAL HARASSMENT IN THE WORKPLACE: Cloisters BATTLING OVER THE PUBLIC PRIVATE DIVIDE

REBECCA TUCK KC 16 EQUAL PAY: THE HERCULEAN TASK OF Old Square Chambers DETERMINING EQUAL VALUE

ANDREW BERK 18 CASE REPORT: EDDIE STOBART v GRAHAM MSR Solicitors

JUDGE BARRY CLARKE and BENJIMIN BURGHER 21 COULD YOU BECOME A SALARIED President of Employment Tribunals in England and EMPLOYMENT JUDGE? Wales and Regional Employment Judge

Editor MARC JONES Marjon Law marc@marjonlaw.co.uk Editorial committee NATASHA ADOM GQILittler KATHLEEN BADA Herbert Smith Freehills LLP CLARE FLETCHER Slaughter and May

IDS ELA Briefing is published by IDS, part of Thomson Reuters. The IDS legal research team has been providing analysis and information on employment law since 1966.

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The views of the authors in ELA Briefing do not necessarily represent those of the ELA editorial board.

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a word from the editor

Welcome to the first online-only version of ELA Briefing, which has also had a small style refresh. As lawyers, we are used to considering the evidence before advising our clients or making submissions in tribunals. So, it is alarming to read President Donald Trump’s recent comments on the war in Ukraine, which has now lasted three years, alleging that President Zelensky is a dictator and started the war. A ‘a lot of employers common-sense response was given by Boris Johnson on that wax lyrical ITV’s Good Morning Britain, stating that President Trump’s about embracing comments were like ‘blaming the girl at the start of the film neurodiversity Jaws for attacking the shark’. I know what you are thinking: merely pay lip Boris Johnson and common sense do not normally appear service’ in the same sentence. But we can only hope that what President Trump has said is simply rhetoric with the aim of brokering a deal for peace.

Many readers may have seen the article in the Law Society Gazette, concerning Martin Scott who brought an employment tribunal claim against Walker Morris for direct age discrimination. In 2018, Walker Morris implemented a new retirement policy under which any member aged over 60 had to apply if they wanted to be kept on; they would have to show that their future contribution ‘in the broadest sense’ would be of an ‘exceptional nature’. Walker Morris submitted that the rationale for the policy was aimed at ‘intergenerational fairness’ and the need to free up equity to give progression opportunities to younger partners. The Leeds tribunal concluded that had Mr Scott been aged under 60, he would not have been subjected to the same treatment and the refusal of both the Walker Morris board and the partners to grant his application amounted to less favourable treatment because of age. The tribunal found: ‘There was very little evidence before this tribunal to support a conclusion that forcing partners to retire age 63 was reasonably necessary for workforce and succession planning.’

This month sees Neurodiversity Celebration Week (17-23 March), a worldwide initiative that challenges stereotypes and misconceptions about neurodevelopmental disorders and learning disabilities. Advising on neurodiversity in the workplace is a passion of mine. However, I am sorry to say that a lot of employers that wax lyrical about embracing neurodiversity merely pay lip service – in reality, they do very little to support neurodivergent employees. Acas provides useful information on understanding neurodiversity at work: www.acas.org.uk/ neurodiversity-at-work An article in The Times caught my eye; first, because the tribunal case lasted over a decade and secondly, as the claimant was awarded £1,145,216.26! Professor Roya Sheikholeslami, who is from Iran, was dismissed by the University of Edinburgh in January 2012. Professor Sheikholeslami presented a tribunal claim for unfair dismissal, sex discrimination and victimisation. Why this case took so long to be concluded is unclear from the article, but what is clear is that Professor Sheikholeslami succeeded with her claim for unfair dismissal and victimisation, and that the majority of compensation was for past loss. She also received a sum for future loss, injury to feelings and a 25% uplift for the university failing to follow the Acas Code of Practice on disciplinary and grievance procedures.

If you would like an article to be considered by the editorial committee, please send this to me by 9am on 7 April to ELABriefingEditor@elaweb.org.uk I sign off this month with a quote from US academic and autism campaigner, Temple Grandin: ‘The world needs all kinds of minds.’

MARC JONES, Marjon Law

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ela news

When we were growing up, we all had that elderly relation who would remark on how much we had grown, didn’t we? The world has come full circle as we greet the amended Employment Rights Bill as it stands on 27 January. ‘How much you’ve grown!’

From a childish 158 pages, the adolescent Bill stands in front of us, 199 pages thick – a growth spurt of more than 25%. ‘the Bill seeks to do so ELA has been at the forefront of trying to work much so quickly that with the Government and engaging with officials to is new without all the highlight the real-world difficulties which the Bill will ramifications having bring to workers and businesses alike. The amended been thought through’ Bill contains new provisions and tries to meet complexity with further mechanisms. We have never been an association that engages in the politics of employment justice, but we have always stood firmly to advocate that the law should be reasonably certain, prospective, workable, non-discriminatory and that there should be access to employment justice.

We are concerned that the Bill seeks to do so much so quickly that is new without all the ramifications having been thought through. The Legislative & Policy Committee, which has already responded to consultation after consultation on the Bill, continues to engage and persuade. We are going to have our work cut out. As the Bill becomes closer to becoming an Act, it will be the ELA Training Committee that will plan session after session to ensure that our members are informed as to the Act and understand its practical effect.

Mrs Justice Eady is stepping down from the EAT role and returning to being a fulltime High Court Judge. She has shown herself to be a brilliant lawyer; a judge who is fair and ensures that procedural justice is done to all. Jenny is a role model, a mentor and a huge supporter of diversity. She did not just pay lip service to these qualities but started, through ELA, her senior judge mentoring scheme and encouraged many from non-traditional backgrounds to apply for judicial roles and silk.

Lord Fairley takes over as the President of the EAT. He is a Judge of the Outer House of the Court of Session, the equivalent of the High Court in Scotland.

He practised in employment law first a solicitor, then at the Bar. He is the first President who knows what it is like to be an employment judge as he has discharged the role in Newcastle as a fee-paid judge and, in Edinburgh, as a salaried employment judge. He has agreed to be interviewed by me.

Recent activities • Training: webinars included: ‘Employment in Hospitality’, 4 February and ‘Whistleblowing and International Law’, 6 February.

• There was a Junior Committee Speed Mentoring event in London on 5 February.

• In February, the Legislative & Policy Committee responded to the open consultation: ‘Leading the NHS: proposals to regulate NHS managers’.

• The Pastoral Committee organised a webinar: ‘Emotional Regulation Techniques for High-Stakes Situations’ on 25 February.

Looking ahead • Training Committee: ‘TUPE Issues in Commercial Property Transactions’ (19 March).

• In-house Committee is holding a conference on 27 March in London.

• The regions: a quiz has been organised in Birmingham on 19 March and the Solent Training Day will take place on 21 March in Southampton.

CASPAR GLYN KC, Cloisters

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in brief

Neonatal care leave and pay On 6 April, the Neonatal Care (Leave and Pay) Act 2023 comes into force. Broadly, the Act operates by amending the Employment Rights Act 1996 to insert a series of provisions requiring regulations to be made which will then set out the finer details of the right to neonatal care leave and its operation. The Act makes similar amendments to the Social Security Contributions ‘witnesses whose and Benefits Act 1992, requiring regulations to be made evidence is important fleshing out the detail of the corresponding right to but who may be based statutory neonatal care leave pay. abroad, can present a Drafts of the regulations were approved by Parliament significant headache’ on 11 February, in the form of the Neonatal Care Leave and Miscellaneous Amendments Regulations 2025 and the Statutory Neonatal Care Pay (General) Regulations 2025, which will come into force on 6 April.

The regulations will provide a right of up to 12 weeks’ leave where the child requires seven or more days of continuous neonatal care within a 28-day period from birth, and to pay during that leave at a statutory minimum equal to that which applies in respect of statutory maternity and shared parental leave pay (subject to eligibility). Rights against detriment and in respect of automatically unfair dismissal will also be provided for.

New Presidential Guidance on taking evidence from abroad The President of the Employment Tribunals (England and Wales) has published new guidance on taking oral evidence from witnesses who are outside the jurisdiction: ‘The Presidential Guidance on Taking Oral Evidence by Video or Telephone from Persons Located Abroad’ (https://www.judiciary.uk). This replaces previous guidance issued in 2022 and became effective from 27 January this year.

Witnesses whose evidence is important but who are based abroad, can present a significant headache, because hearing it will require permission from the state in which the witness is located: it is a longstanding convention that a state will not seek to exercise the authority of its courts on foreign soil, such that doing so without permission would be to damage diplomatic relations.

The new guidance aligns the process in the employment tribunals with that in the civil courts and emphasises that responsibility for obtaining any necessary permission in good time rests with the party wishing to call the evidence.

Obtaining such permission can be a slow process, so the matter should not be left until the last minute. Indeed, the guidance expressly points out that in cases where the relevant party has not acted promptly enough, the tribunal may simply refuse permission to call the evidence or may penalise the dilatory party in costs if an adjournment is required.

The previous guidance set out a notification process, which then involved the HM Courts & Tribunal Service (itself liaising with the Taking of Evidence Unit at the Foreign, Commonwealth and Development Office (FCDO)) in telling the party seeking to call evidence from abroad, whether permission was required or not, and if it was, whether it had been granted. The thrust of the new guidance is to move away from that position and to require the relevant party to undertake the work itself.

Many countries with which the UK enjoys good diplomatic relations, have provided a form of ‘standing permission’. The FCDO maintains a website listing most countries and their stance, which should be consulted in the first instance.

In any case of standing permission, the parties and the tribunal will be able to proceed without impediment.

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Otherwise, the next step will be to check whether the relevant state is a signatory to the Hague Convention. If it is, the party must contact the relevant state authorities to obtain permission, which may involve obtaining a ‘letter of request’ from the Foreign Process Section at the Royal Courts of Justice (and the payment of a consular fee). If the relevant state is not a Hague Convention signatory, the ‘letter of request’ procedure will be required.

In the absence of permission, the tribunal should not hear the evidence. The guidance reminds parties however, that even if there is permission, it remains for the tribunal to decide whether it is in the interests of justice to hear the evidence from abroad, and to manage the case accordingly.

Interestingly, the new Presidential Guidance applicable in Scotland (also effective from 27 January this year) is completely different. Permission from the relevant state is not required in the civil courts in Scotland, and is now no longer required in the employment tribunals either.

DOUGLAS LEACH, Guildhall Chambers

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Interest-like compensation for unpaid holiday pay?

CONNIE CLIFF, Gowling WLG

The Employment Appeal Tribunal has confirmed in SpaDental that interest-like compensation is potentially available for unpaid holiday pay claims under reg 30 of the Working Time Regulations 1998.

Another holiday pay compensation issue Just when you think that surely there are no more new appellate points concerning unpaid holiday pay compensation, another one appears. On 23 December last year, the EAT handed down its judgment in SpaDental.

Much of the judgment concerns whether claims for unpaid holiday pay under reg 30 of the Working Time Regulations 1998 (WTR 1998) vest within the bankruptcy estate or the individual bankrupt claimant personally. But, the judgment also contains a significant point of more general interest when it comes to unpaid holiday pay compensation. The EAT has confirmed that interest-like compensation is potentially recoverable to reflect the diminution in the value of money due to the claimant between the dates when it should have been paid and the date of judgment. The EAT has held that ‘where such loss is found, the tribunal must award the necessary compensation’ (para 94).

Regulation 30 WTR basics The material parts of reg 30 provide that: • a worker may bring a complaint before a tribunal where the employer fails to comply with the duty to pay a worker in respect of statutory annual leave, and in respect of any statutory leave that is outstanding on termination of employment — regs 14(2), 15E, 16(1) or 16A (reg 30(1)(b)); • if the tribunal finds that a complaint under reg 30(1)(a) is well founded, it must make a declaration to that effect and may make an award of compensation — reg 30(3). There is no upper limit to the compensation that the tribunal can award; • reg 30(4) provides that the amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to: (i)

the employer’s default in refusing to permit the worker to exercise his right; and

(ii) any loss sustained by the worker which is attributable to the matters complained of; and • under reg 30(5), where the worker’s complaint is brought under reg 30(1)(b) (it relates to a failure to pay holiday pay or a payment in lieu of holiday on termination of employment), the tribunal must order the employer to pay the worker the amount which it finds to be due.

Factual background of SpaDental On 21 June 2017, Mr Main was made bankrupt. He was discharged from bankruptcy on 21 June 2018. A claim for unpaid holiday pay was commenced by Mr Main after his discharge from bankruptcy for the entire period he worked for SpaDental as a dentist (March 2013 to February 2019). This period spanned a number of years pre-bankruptcy, as well as the year of bankruptcy.

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Interest-like compensation for unpaid holiday pay? ‘reg 30 is framed in terms that do not prevent the tribunal from awarding a sum to compensate a claimant for the financial effect of the delay in receiving what should have been paid’

In a judgment dated 17 May 2022, a tribunal found that Mr Main was a worker for the period he worked for SpaDental Ltd. Mr Main had not received any holiday pay for the six-year period as his employer failed to recognise he had a right to annual leave or to payment for that leave. Having established ‘worker’ status, Mr Main therefore succeeded in his claim under reg 30 WTR 1998 for unpaid holiday (Sash Window and Pimlico Plumbers Ltd).

Mr Main’s unpaid holiday pay claim was substantial as he was claiming £83,500 for six years of unpaid holiday pay plus an additional £42,000 of interest (8% running from the mid-point of each leave year.

The tribunal awarded £83,573.78 in unpaid holiday pay but ordered that the whole of the award should be paid to the trustee in bankruptcy and rejected a claim for interest on the unpaid holiday pay. The tribunal accepted ‘that the wording of regulation 30 does not preclude an award of interest’ (para 61), but that it was not just and equitable to award interest.

Mr Main appealed the decision that the award be paid to his trustee and also the rejection of his claim for interest.

The bankruptcy issue: proprietary or personal claim?

The EAT confirms that claims for unpaid holiday pay vest with the bankruptcy estate. Where the cause of action includes a failure to pay wages and the remedy consists of an amount measured by reference solely to the worker’s rate of pay, it cannot be regarded as a personal claim of the kind identified in Heath (actions that relate to pain felt by the bankrupt in relation to ‘body, mind or character’.) Accordingly, Mr Main’s claim was a proprietary claim which vested in the trustee and did not fall within the ‘personal’ exception identified in Heath (para 54). A detailed consideration of this point is outside the scope of this summary.

Can interest be claimed under reg 30 WTR 1998?

No. The EAT agreed that there is no express power to award interest accruing before judgment on compensation or other sums which it awards under the WTR 1998 or the Employment Rights Act 1996 (ERA).

Consideration of Marshall The EAT looked at Marshall. Here, the claimant successfully challenged a requirement of her employer that female employees had to retire at a younger age than male employees. Although the Industrial Tribunal (as was) had no power to award interest under the Sex Discrimination Act 1975 (SDA), it considered itself bound by EEC law to award adequate compensation including compensation for the diminution in value, over time, of the sums which the claimant would have earned had she not been forced to retire. The court in Marshall explained that full compensation for loss and damage includes the factor of reduction in value by effluxion of time.

Following Marshall, in 1993, Parliament introduced a power to award interest on awards for sex discrimination and equal pay, to give effect to Marshall. That power, and similar powers introduced for race discrimination cases, were consolidated in the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (the 1996 Interest Regs). The 1996 Interest Regs now have effect for claims under the Equality Act 2010 (EqA). The 1996 Interest Regs do not apply to claims under the WTR. But are interest-like claims possible under reg 30 WTR? Yes they are. While it is not possible to claim interest as part of a reg 30 WTR claim for unpaid holiday pay, significantly the EAT confirmed that reg 30 is framed in terms that do not prevent the employment tribunal from awarding a sum to compensate a claimant for the financial effect of the delay in receiving what should have been paid. To avoid any confusion, the EAT suggests this could be expressed as ‘interest-like compensation’, not interest.

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Interest-like compensation for unpaid holiday pay? ‘an interest-like claim could potentially be based on s.24(2) ERA'

As held in Marshall, full compensation for loss and damage includes the factor of reduction in value by effluxion of time. So that factor must be brought into account. In the case of Mr Main, although the tribunal correctly directed itself that it was empowered but not obliged to make the award sought, the rejection of the claim could not stand as the reasons given for its rejection were not sufficient to justify rejection: • a lack of bad faith on the company’s part, or of any active attempt to prevent the claimant from exercising his rights, was logically of little if any relevance. The fact was that he did not receive what he should have received over a very long period. The financial effect of that delay fell on him, while it could be assumed to have been of benefit to the company; • although neither party knew the true legal position at the time, it is the employer that has the legal responsibility to inform itself of the law and comply with it as held in Sash Window; • the fact that the claimant was self-employed for tax purposes was irrelevant; and • there was no need for the claimant to adduce evidence that his award would be worth less when paid than it would have been if he had received it as holiday pay at the correct time. What was missing from this judgment was a recognition of the loss that could be assumed to arise from delayed payment.

The EAT concluded: • the issue of interest-like compensation must be remitted to the tribunal; • it will be for the tribunal to consider the question of loss caused by effluxion of time in light of any relevant evidence; and • where such loss is found, the tribunal must award the necessary compensation. If that is in the form of a percentage rate of interest (as would be usual), the tribunal must make a reasoned decision as to the appropriate rate, which may or may not be the rate of 8%, and the applicable period.

Note: 8% is the interest rate that applies in relation to discrimination claims under the 1996 Interest Regs.

Implications The EAT did not find that interest-like compensation must always be given in a reg 30 WTR holiday pay claim, but rather that the tribunal’s power to award full compensation requires assessment for the factor in value by effluxion of time. As the EAT concludes in this judgment: ‘It will be for the employment tribunal to consider the question of loss caused by effluxion of time in light of any relevant evidence. Where such loss is found, the employment tribunal must award the necessary compensation’ (para 94). In other words, if loss in value due to the effluxion of time is established, then compensation for that loss must be awarded. It will be for the tribunal to consider the appropriate level of interest-like compensation. While the 1996 Interest Regs which apply in relation to discrimination cases do not apply, the rate under those regulations (currently 8%) may end up being a benchmark.

For unpaid holiday pay claims relating to a relatively short period, the effluxion of time may have little impact. However, for claims with a number of years of unpaid holiday (six years in the case of Mr Main), such a sum may be considerable. In this case, Mr Main is claiming an additional £42,082 to the £83,573 award.

A claim under ERA posible While Main solely concerned a claim brought under reg 30 WTR, arguably an interest-like claim may be available in relation to a claim brought as an unlawful deduction of wages claim. An interest-like claim could potentially be based on s.24(2) ERA which provides that an employment tribunal may award a sum that it considers appropriate to compensate the worker ‘for any financial loss sustained by him which is attributable to the matter complained of’. However, due to the two-year backstop under ss.23(4A) and (4B), establishing loss due to the effluxion of time would be more difficult to establish.

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Interest-like compensation for unpaid holiday pay? ‘long-standing unpaid holiday pay claims may have just become more expensive’

As for reg 30 WTR interest-like claims, we await further judicial guidance as to the appropriate rate, and the applicable period to which interest-like compensation may be awarded. Long-standing unpaid holiday pay claims may have just become more expensive.

Pending appeal It is understood that Mr Main is currently seeking permission to appeal from the Court of Appeal on both ground one (vests in the trustee in bankruptcy) and ground two (claim for interest).

KEY: WTR 1998

Working Time Regulations 1998 (SI 1998/1833)

SpaDental

Main v SpaDental Ltd [2024] EAT 200

Sash Window Sash Window Workshop

Ltd v King (C-214/16) EU:C:2017:94 Pimlico Plumbers

Smith v Pimlico Plumbers Ltd [2022] EWCA Civ 70

Heath

Heath v Tang [1993] 1 WLR 1421

ERA

Employment Rights Act 1996

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Marshall Marshall v Southampton

and SW Hampshire AHA (C-271/91) EU:C:1993:335 SDA

Sex Discrimination Act 1975

EEC European Economic Community 1996 Interest Regs Employment Tribunals

(Interest on Awards in

Discrimination Cases)

Regulations 1996 (SI 1996/2803) EqA

Equality Act 2010

Restrictive covenants in partnership agreements DAVID FISHER, CM Murray LLP

Partners who are looking to change firms are often surprised by the broad scope of their restrictive covenants, especially when compared with the restrictions normally imposed on employees.

Many employment lawyers are also unaware of the potential differences between partnership and employment covenants.

This is the case whether the partner is in a traditional partnership (under the Partnership Act 1890), where the individual is truly a ‘partner’, or a limited liability partnership (LLP) where individuals might be given the title of ‘partner’ but in fact have the legal status of a ‘member’. However, where an individual is a ‘salaried partner’ (ie, he or she is paid a salary rather than a share of the firm’s profits) then, generally speaking, he or she ought to have an employment contract and be treated as an employee for the purposes of any restrictive covenants.

Post-termination restrictive covenants Most firms include post-termination restrictive covenants in their partnership and LLP agreements, but, as with all such provisions, if they have not been drafted carefully or are used inappropriately, they could be unenforceable.

The basic starting position is that restrictive covenants are void on grounds of public policy as they are in restraint of trade, but the law will allow them provided: • they are necessary to protect one or more of the firm’s ‘legitimate business interests’, which normally means its trade secrets or confidential information, its client or supplier connections, or the stability of its workforce; and • they go no further than is reasonably necessary between the parties to protect those interests.

Although restrictive covenants cannot be used merely to prevent competition – which is not a legitimate business interest in itself – in some cases, the courts recognise that the only way a business can effectively protect its legitimate interests is to stop the individual who leaves from working in competition with the business for a limited period of time and/or within a defined geographic area. This type of covenant is generally known as a ‘non-compete’ restriction, and such a covenant may be permitted where less onerous restrictions (such as those which prohibit the misuse of trade secrets and confidential information, and prevent the former partner from soliciting or dealing with particular clients for a limited period) will be insufficient as they cannot be policed effectively for some reason. Some firms take this a step further and also name specific major competitors in the restriction.

While the lack of an enforceable ‘non-compete’ restriction will make it easier for a partner to move between firms, the common restrictions against soliciting and/or dealing with clients could still present a sizeable obstacle.

Where such restrictions are placed on an employee then, ideally, they should only relate to clients with whom the employee had material contact in the course of working for the firm during a limited period before leaving, or about whom he or she had confidential information. If the restrictions attempt to cover all of the

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Restrictive covenants in partnership agreements ‘relying on Bridge, it is still common 40 years later for partners and LLP members to be subject to restrictive covenants which apply to all of a firm’s current or recent clients’

firm’s clients, regardless of the employee’s previous dealings with them, then they are likely to be too wide and therefore unenforceable. In addition, the restrictions should last no longer than they really need to – so if the firm ought to be able to consolidate or build up new relationships with the clients within six months, and the shelf life of the confidential information which is available to the employee is also about six months, then nonsolicitation and non-dealing covenants which last for 12 months are likely to be unenforceable.

The Bridge decision However, the courts have developed a different approach to equity partners in a partnership, underpinned by the Privy Council’s decision in Bridge. Mr Bridge was an equity partner in Deacons, a law firm in Hong Kong.

He was head of the IP and Trade Mark department, which dealt with about 10% of the firm’s clients and generated about 4.5% of its turnover. He had no dealings with and little exposure to clients of the firm’s other departments. Under the firm’s partnership agreement, Mr Bridge was entitled to 5% of the firm’s business and assets (including goodwill, which was given a nominal value in the agreement), and when he left to set up his own practice he received a substantial payment for his partnership share (but only a nominal amount for his share of the goodwill).

The Deacons partnership agreement contained a restrictive covenant which prevented Mr Bridge from acting as a solicitor in Hong Kong for five years for any client of the firm or any person who had been a client of the firm during the three years before he left – although this did not apply if he went to work in-house or for the Government. The restriction was not confined just to clients with whom Mr Bridge had dealt while at Deacons. Notwithstanding this restrictive covenant, Mr Bridge left to set up his own practice and began acting for former clients of Deacons. Deacons applied successfully for an injunction to restrain him from doing so.

The arguments which Mr Bridge used to oppose the injunction included the following: • the scope of the restrictive covenant was too wide, as it prevented him from acting for 90% of the firm’s clients with whom he had had no connection or dealings; • the five year duration of the covenant was too long; and • as he had only received a nominal amount for goodwill, the firm was not entitled to protect it by way of the restrictive covenant.

The Privy Council decided that the restrictive covenant was reasonable and therefore enforceable. In its view: • although divided along department lines, Deacons was a single practice in which all of the partners had an interest, owned all of the assets and shared the profits and losses according to their respective profit sharing ratios; • the firm was entitled to protect its legitimate interests by imposing a restrictive covenant on outgoing partners and, having regard to the value of the firm’s business and Mr Bridge’s position as an equity partner, the scope and duration of the covenant were not unreasonable; • every partner was bound by the restrictive covenant and benefited from it in relation to the activities of his fellow partners; • Mr Bridge had had the benefit of the firm’s goodwill while he had been a partner, and the firm now wished to protect it. This protection was in the public interest as it secured the continuity of solicitors’ practices, which would be of benefit to clients, and would ‘encourage the entry of younger men into the profession’ by making partnership available to them without requiring payment of the full market value of their share in the goodwill, which they probably could not afford. It was irrelevant that only a nominal sum had been paid for goodwill, as the transfer of Mr Bridge’s share in it was not a cash sale but was in accordance with the partnership agreement, under which Mr Bridge was only charged a nominal amount for goodwill when he became an equity partner in the firm; and • the partners had equal bargaining power when entering into the partnership agreement and were therefore to be regarded as the best judges of what was reasonable in a commercial bargain. The fact that the partners concerned were lawyers was also a relevant consideration.

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Restrictive covenants in partnership agreements ‘it could be many years before a partner’s restrictive covenants are tested again in the appellate courts’

Relying on Bridge, it is still common 40 years later for partners and LLP members to be subject to restrictive covenants which apply to all of a firm’s current or recent clients, and which last for up to two years from the point of departure or even longer – covenants which no one would now think of including in an employment contract.

Are such broad restrictions likely to be enforceable, or would a court now take a very different view?

Many of the factors taken into account in Bridge will still apply to partners in a traditional partnership today, notwithstanding some of the outdated reasoning expressed by the Privy Council. But LLPs are not the same as traditional partnerships and different laws apply to them. Moreover, as firms have grown in size and their management structures have evolved, it is harder to say that there is real equality of bargaining power for someone who is joining a firm and is required to adhere to the restrictive covenants in its existing partnership or LLP agreement, or that it is reasonable to prevent a departing partner from soliciting or dealing with clients with whom they have never had any connection, just because one of the several hundred other partners in their firm has.

There has been little recent authority in this area, which is no doubt largely due to a reluctance on the part of firms, and the partners involved, to litigate cases involving their clients. Most disputes will be resolved by negotiation and a commercial deal between the parties, especially where the firm seeking to enforce nondealing restrictions in relation to particular clients wants to retain the clients’ instructions in other practice areas and therefore cannot afford to upset them.

Where disputes do develop into legal proceedings, they are often subject to arbitration and will never become public knowledge, unless there is an injunction application before the court, as happened in Carmichael. In that case, the High Court applied Bridge in granting a temporary injunction to uphold a six month non-compete restriction against an LLP member (which followed a garden leave period of over nine months), pending an arbitration hearing, but it did so without considering the difference between a traditional partnership and an LLP. Conclusions It could be many years before a partner’s restrictive covenants are tested again in the appellate courts, and some time before there is a detailed judicial analysis of an LLP member’s restrictions. Until then, cautious drafters of partnership and LLP restrictive covenants might be inclined to approach them more narrowly, as if they were employment restrictions, while those seeking to enforce existing broad partnership covenants might still feel they can negotiate from a position of strength based on the law as it stands.

KEY: LLP

limited liability partnership

Bridge

Bridge v Deacons [1984] AC 705

Carmichael

Pricewaterhousecoopers LLP v Carmichael [2019] EWHC 824 (Comm)

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Sexual harassment in the workplace: battling over the public private divide RACHEL CRASNOW KC AND GRACE CORBY, Cloisters

Recent years have seen a drive to reduce workplace sexual harassment, including the new duty to prevent sexual harassment in the Equality Act 2010. There has also been an increased emphasis on employers’ and regulators’ roles in upholding behavioural standards. These developments are positive, but they also raise complex questions about the extent of oversight employers should exercise, especially regarding employees’ personal lives.

Increased scope for liability Employers have long been liable for harassment perpetrated by one employee against another, provided, pursuant to s.109 Equality Act 2010 (EqA 2010) that harassment was done ‘in the course of’ employment (of course, subject to the elusive ‘all reasonable steps’ defence).

What has caused more recent debate is whether employers should be liable for third-party harassment of their employees. For example, should a nightclub be liable for sexual harassment perpetrated by its customers against an employee bartender?

The EqA 2010 originally had a ‘three strikes rule’ for third-party harassment: under s.40(2)-(4) EqA 2010, an employer would be liable if it was aware that one of its employees had been harassed previously on two occasions and it had failed to take reasonable steps to prevent it from happening again. These provisions were repealed in 2013.

The issue was revisited in the aftermath of the #MeToo movement. Those discussions ultimately led to the new duty found at s.40A EqA, which came into force on 26 October 2024. The duty obligates an employer to take ‘reasonable steps’ to prevent sexual harassment of employees ‘in the course of their employment’.

It does not give a free-standing right of action: enforcement is largely left to the Equality and Human Rights Commission (EHRC). In the employment tribunals, it simply allows for an uplift of damages where a claimant has succeeded in her or his claim for sexual harassment.

The EHRC has produced guidance to assist with compliance. This includes recommendations to take ‘anticipatory’ as opposed to responsive steps, the reasonableness of which are contingent on an employer’s size and circumstances. It advises a risk assessment and provides an eight-step guide covering antiharassment policies, staff engagement, assessing and reducing risk, reporting, training, handling complaints, third-party harassment and monitoring and evaluating actions.

Anecdotally, the new duty does seem to have prompted a response from many employers, largely through the provision of mandatory sexual harassment training to its workforce – no doubt a sensible route to establishing a reasonable steps defence.

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Sexual harassment in the workplace: battling over the public private divide ‘no doubt some employers may increasingly think that an alcohol-fuelled Christmas party is not worth the risk’

However, there is a greater change in the pipeline with the Employment Rights Bill (ERB) – now at the committee stage – that will extend the preventative obligation from ‘reasonable steps’ to ‘all reasonable steps’, in line with the vicarious liability provisions. It also seeks to make third party harassment actionable in its own right. Unlike the repealed provisions, there will not be a three strikes rule. This development is echoed in another part of the ERB which seeks to amend the law on whistleblowing: the Employment Rights Act 1996 will be amended to explicitly state that disclosures that tend to show ‘that sexual harassment has occurred, is occurring or is likely to occur’ will come under the protected disclosure provisions.

Analysis by Irwin Mitchell established that there was a 7% increase in sexual harassment claims in 2024, before any of these reforms can have taken effect. No doubt the new duty, coupled with the ERB (if implemented) will increase claim numbers further. Employers will feel that they need to take effective action in response. Given a 2021 report by the Fawcett Society found that 40% of women experienced sexual harassed at work over the course of their careers, that is a positive change.

However, there is another angle to consider. All of this means that – for good reason – we are demanding more monitoring, oversight and control by employers. No doubt some employers may increasingly think that an alcohol-fuelled Christmas party is not worth the risk: can an employer really have taken reasonable steps to prevent work-related harassment if it has plied its employees with drinks and sent them off to a darkly lit venue? It may be well advised to instead have a two-drink maximum and an early finish.

In addition, with remote working, what would often have been ‘corridor chats’ now take place on workplace messaging services, such a MS Teams or Slack. Those can be, and often are, monitored for appropriateness.

With cheap technological products entering the market, workplace surveillance has never been easier, provided such monitoring adheres to the Data Protection Act 2018 and the UK GDPR. Such technology should mitigate the extra administrative burden on employers the new duty imposes.

However, remote working also makes it harder to ascertain when a working day ends. If employees are unwise enough to use work-supplied platforms to converse about matters unrelated to work, outside of their working hours, are those conversations taking place ‘in the course of their employment’? How much oversight should an employer maintain over the workers’ messages?

Increased political and reputational pressures Alongside an increase in employer’s scope for liability, there are also pressures on employers and regulators to be seen to take action against their employees who commit misconduct themselves either in their professional or personal lives. Indeed, recent years have seen increased action on the part of regulators for sexual misconduct. The case of Jo Sidhu KC, former chair of the Criminal Bar Association, is a recent high-profile example of misconduct findings being made by the Bar Tribunal and Adjudication Services (BTAS). He awaits his sanction in an unusually well-publicised hearing where the BTAS panel had to consider and reach findings on private versus public conduct.

The SRA has also imposed sexual conduct related investigations or sanctions. An example highlighting the difficulty in drawing a divide between public and private life is Beckworth. Mr Beckworth was a supervising partner at a London firm who was found to have engaged in sexual activity with a junior colleague outside of working hours. In 2020, the Solicitors Disciplinary Tribunal (SDT) concluded that, while he had not abused his position of authority, he had breached two principles in the SRA Handbook 2011: that he act with integrity (principle 2) and that he behave in a way that maintained the public’s trust in solicitors and the provision of legal services (principle 6). He was not struck off, but he was fined and, on summary assessment, he was ordered to pay £200,000 of the SRA’s costs. He appealed to the Divisional Court.

The court overturned the SDT, holding that the finding that Mr Beckwith had fallen below acceptable standards was not coherent in circumstances where he had also been found not to have abused his position. Furthermore, the court warned that the rules regulating professionals cannot ‘extend beyond

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Sexual harassment in the workplace: battling over the public private divide ‘new legal measures and cultural shifts should reduce sexual harassment, but they also challenge employers and regulators to navigate the boundaries between oversight and respect for private lives’

what is necessary to regulate professional conduct and fitness to practice and maintain discipline within the profession’. In comments which are highly relevant to the public private divide discussed above, the court continued: ‘There can be no hard and fast rule either that regulation under the handbook may never be directed to the regulated person’s private life, or that any/every aspect of her private life is liable to scrutiny. But principle 2 or principle 6 may reach into private life only when conduct that is part of a person’s private life realistically touches on her practise of the profession (principle 2) or the standing of the profession (principle 6).’

A fair balance was required between ‘the right to respect to private life and the public interest in the regulation of the solicitor’s profession’.

The SRA has continued to grapple with cases which go to the heart of this difficult balance: in 2023, Mr Bretherton was struck off for non-criminal sexual misconduct in the workplace when he was a position of authority. This is thought to be the first case of a strike off for sexual misconduct without associated criminal proceedings.

Also in 2023, Mr Hutchings, a solicitor, was sanctioned by the SRA for conduct linked to, but outside of his workplace: he was found to have sexually harassed the complainant, another solicitor and fellow member of the Society of Construction Lawyers, in a nightclub following a society lunch. Meeting her for the first time, he made inappropriate comments about her looks and touched her inappropriately without consent. He was fined £30,000 and ordered to pay £18,000 in costs.

On one view, there is much to celebrate here: regulators are stepping up to prevent endemic harassment in their profession. However, these cases also highlight the difficulty in determining the limits of their remit. Of course, an employer or regulator can legitimately discipline, dismiss or strike off individuals for conduct outside of work: at the most extreme end, a dismissal for serious criminal sexual misconduct is highly likely to be fair, even if such conduct was entirely removed from work. But what if the sexual misconduct is unwise, even on one view ‘immoral’, but not unlawful, and is also genuinely removed from work?

While professionals’ private lives are not generally within the scope of their regulatory or employers’ code of conduct unless they abuse their professional position or bring that profession into disrepute, the dividing line can be hard to draw, particularly given ongoing home working in many institutions and work meetings often taking place off-site. Furthermore, employers or regulators might choose to sanction, rather than face the risk of public outcry for inaction. The risk to reputation is, of course, nothing new, but the internet poses a heightened risk of even relatively minor infractions ‘going viral’. The Divisional Court in Beckwith was cognisant of reputational risk, warning that ‘regulators will do well to recognise that it is all too easy to be dogmatic without knowing it; popular outcry is not proof that a particular set of events gives rise to any matter falling within a regulator’s remit’ (para 54).

Work must be done to improve processes and entrench consistent understanding and application of rules: regulatory or disciplinary processes can only be effective across the board where individuals have faith in the process so that they are willing to come forward with their complaints. That includes dealing with complaints in a timely manner, as too often regulatory processes are hampered by delays. In the context of the Bar, one of the many factors under investigation by the Harman Review, is whether harassment complaints concerning barristers actually reach the BSB, let alone BTAS. The report is due in late spring this year. In any event, more guidance is needed in the light of ever evolving working norms.

Conclusion Sexual harassment remains a pervasive problem in the workplace. New legal measures and cultural shifts should reduce its prevalence, but they also challenge employers and regulators to navigate the boundaries between oversight and respect for private lives.

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Sexual harassment in the workplace: battling over the public private divide ‘it remains to be seen whether we will continue towards more oversight, or if the pendulum will swing the other way’

With the rise of ad hoc or remote working, defining the limits of employers’ or regulators’ legitimate remit will become increasingly challenging. It remains to be seen whether we will continue towards more oversight, or if the pendulum will swing the other way, as we struggle to balance the need to prevent work-related harassment, with the right to a private life.

KEY: SRA

Solicitors Regulation Authority

EqA

Equality Act 2010

SDT

Solicitors Disciplinary Tribunal

EHRC

Equality and Human Rights Commission

Beckwith

Beckwith v Solicitors Regulations Authority [2020] EWHC 3231 (Admin)

ERB

Employment Rights Bill

Bretherton

Bretherton v SRA Case No 12355/2022

BTAS

Bar Tribunal and Adjudication Services

Hutchings

Hutchings v SRA Case No 12393/2022

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Equal pay: the Herculean task of determining equal value REBECCA TUCK KC, Old Square Chambers

Eleven years into the Asda equal pay litigation, the latest judgment from the Manchester Employment Tribunal has been published – the stage 3 decision on equal value. An end to the claim, however, is still not in sight.

In June 2014, the Asda claimants presented their equal pay claims. Workers in the stores – mostly women, claim to be entitled to be paid the same as workers in the depots – mainly men. The Supreme Court confirmed that these are in principle, appropriate comparators. A stage 1 hearing ordered the instruction of independent experts – and parties were then given permission to instruct their own experts in addition. At stage 2, in 2020 and 2021, findings of fact were made. The latest judgment from the Manchester Employment Tribunal is accompanied by a helpful press release.

The stage 3 decision Horne EJ and his members heard evidence from six of the nine experts (each ‘team’ having three) over 58 days between September and November 2024.

Each set of experts examined the roles of 14 lead claimants and 17 lead comparators and also considered different ‘iterations’ of the roles to reflect additional features of the work which made it more or less demanding. The roles were assessed by reference to between 10 and 13 ‘factors’ – such as knowledge, responsibility for assets, responsibility for health and safety, mental demands, physical demands and working conditions. Each factor was given a number of ‘levels’ from most to least demanding. The task facing the independent experts – who did not have the administrative, technical or legal resources available to the parties – was described by the judge as ‘Herculean’.

The conclusions of the parties’ experts was described as ‘stark’; for the claimants, the Leigh Day experts found all of the claimants roles to be of equal value to most comparators roles. The Asda experts found none of the claimant roles (apart from that of section leader) to be of equal value to any of the comparator roles.

There was no expectation that the report and methodology of the independent experts would be preferred to those of the parties. As Malone EJ stated in Forward: ‘There may well be cases in which the Tribunal is entirely satisfied that the Independent Expert’s report has been produced in good faith and with absolutely no question of direct or indirect sex discrimination and that the report is undoubtedly one which a reasonable expert could have produced, but nevertheless the report and evidence and methodology of another expert provide the Tribunal with more suitable equipment to tease out from the facts the answer to the difficult question of equal value.’

While independence was not then a ‘trump card’, the independent experts’ opinions could be given greater weight than those of the party instructed experts if the expert opinion had a reasonable basis. Generally, the employment tribunal preferred the methodology of the Asda experts; but they did not adopt their scoring and made numerous adaptations.

A Herculean task It is clear from the judgment that the task facing the tribunal was also Herculean. It had before it 11,187 pages of material (excluding authorities). To compare the 16 lead claimant iterations against 32 comparator role iterations by reference to between 10 and 13 factors, to consider the ‘relativities’ of the roles – whether they are greater, equal

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Equal pay: the Herculean task of determining equal value ‘Leigh Day has indicated its disappointment in relation to the two lead claimants who lost. Clearly an appeal is under consideration. The same must surely be true of Asda’

or less demanding, involves making somewhere between 5,120 and 6,656 comparisons of job demands. That, the tribunal said, would only, however, be the beginning of the task because there would then need to be a process of checking those comparisons to ensure that the same differences in demand had been reflected in a consistent way across all the jobs. Having set out, in chapters 7 to 14 of their judgment, the findings in relation to factors, applied to each iteration for claimants and comparators, in chapter 15, the tribunal set out its conclusions as to equal value.

As one might expect in looking at so many different job iterations, the result is that some of the lead claimants were able to establish that their work was of equal value to some of their comparators’ work; some did not.

Two of the 14 lead claimants were found not to be doing work of equal value to any of their comparators. One claimant was found to be doing work of equal value to all of her comparators. As stated in the press release, for the other 11 lead claimants, ‘the result was more of a mixed picture’. The judgment, at 365 pages, comes with a detailed index at the end. The level of detail is deliberate, not only to allow the parties to apply these findings to other claimants in this case, but also for other private sector equal pay litigation coming down the track.

The tribunal started and ended its work with a reminder of the human story behind this work, stating that on a day between 2008 and 2014: ‘Adrienne Hutcheson arrived at the Hamilton Asda store and put on her high-visibility jacket. She climbed onto a forklift truck in the warehouse. When the next delivery arrived, she started unloading pallets and roll cages of stock.

‘Three hundred and sixty miles away, possibly on the same day, Peter Ballard arrived at the Didcot Ambient Distribution Centre and put on his high-visibility jacket. He climbed onto a type of forklift truck known as a Counter-Balance Truck. When the next delivery arrived, he started unloading pallets and roll cages of stock.

Asda say that, overall, Mr Ballard’s work was of greater value than Ms Hutcheson’s work. The claimants seek to prove that the value of the work was equal.’

In a postscript, the tribunal concluded: ‘Ms Hutcheson took off her high-visibility jacket at the end of a week’s work. So did Mr Ballard, at the other end of the country. Each was almost certainly oblivious to what the other had been doing. Unknown to them, they had been doing work of equal value. It was close. If Mr Ballard’s Colleague Circle responsibility was taken into account, his work was slightly, but measurably, more demanding than hers was.’

There is clearly a huge task ahead of the parties to ‘translate’ these results ‘across the wider population’. There are around 60,000 claimants, and in the meantime, Leigh Day has indicated its disappointment in relation to the two lead claimants who lost. Clearly, an appeal is under consideration. The same must surely be true of Asda; with a final potential liability thought to be in excess of £1bn, it is easy to understand why.

Next steps Appeals aside – the next step in the litigation is of course to consider any ‘material factors’ on which Asda seek to rely to examine whether any pay differentials are, or are not, not due to sex. Only if the claimants succeed in this respect will an equality clause read into their contracts. A spokesperson for Asda has confirmed that the supermarket ‘will continue to defend these claims at the next stage of the litigation because retail and distribution are two different industry sectors that have their own market rates and distinct pay structures’.

While there has been a significant step taken in progressing this litigation, it is difficult still to see an end in sight. What is known is that Horne EJ will not be deciding the next hearing, as he commences his role as a Circuit Judge at Bolton Crown Court.

KEY: Asda

Asda Stores Ltd v Brierley [2021] UKSC 10; ET 2406372/2008

Forward

Forward v East Sussex Hospitals NHS Trust ET 1100186/06

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Case report: Eddie Stobart v Graham ANDREW BERK, MSR Solicitors

Eddie Stobart v Graham offers valuable guidance on the approach employment tribunals should take in quantifying compensation for injury to feelings.

Background The claimant started working for the respondent as one of nine planners at the respondent’s Newhouse depot in July 2021. In October 2021, the claimant notified her line manager that she was pregnant. In March 2022, the respondent announced a 30-day consultation for the proposed redundancy of those nine planners and for the creation of four new transport shift manager (TSM) roles at Newhouse. The claimant asserted her right to be offered suitable alternative employment during maternity leave, in preference to other redundant employees, pursuant to reg 10 of the Maternity and Parental Leave etc Regulations 1999 (MAPLE Regs).

On 12 April 2022, the claimant commenced her maternity leave. She was unsuccessfully interviewed for the TSM role. On 26 April 2022, the claimant raised a grievance about this. On 28 April 2022, she attended her final consultation meeting where she referred to her grievance. The claimant’s grievance was not discussed, but the respondent suggested she resend it and gave the claimant an email address for the respondent’s HR helpdesk. The same day, the respondent sent the claimant notice of the termination of her employment by reason of redundancy. The claimant’s employment terminated on 26 May 2022.

On 3 May 2022, the claimant resent her grievance to the respondent’s HR helpdesk. However, the respondent’s firewall system blocked those emails as a security risk, such that nobody at the respondent's organisation saw them. The claimant did not appeal her redundancy. But during a subsequent discussion on 16 May 2022 with Ms Saunders, the respondent’s overall Head of HR, regarding her maternity pay, the claimant mentioned her unanswered grievance. Ms Saunders said she would look into this. However, Ms Saunders made no mention of the claimant’s grievance when, on 20 May 2022, she wrote to the claimant about her maternity pay. The claimant started a new job on 1 May 2023, and she would have been on maternity leave until 13 April 2023.

The employment tribunal sits The claimant brought a tribunal claim in July 2022. Nielsen EJ sitting with members decided that the respondent had not unfairly dismissed the claimant under s.99 of the Employment Rights Act 1996 (ERA). The tribunal agreed with the respondent that the TSM roles were not suitable for the claimant and the reason for the claimant’s dismissal was redundancy and it was not connected to either the claimant’s pregnancy or maternity leave. The tribunal also rejected the claimant’s complaint of victimisation under s.27 of the Equality Act 2010 (EqA). The respondent had refused to offer the claimant the TSM role because it did not believe there was a requirement to offer that role without interview and, after interview, there were other more qualified candidates. Regarding the claimant’s grievance, the tribunal found that the respondent were unaware that a written grievance had been received. But there was a failure by the respondent to make enquiries and to resolve the claimant’s grievance. However, this failure was because of the claimant’s maternity leave.

The tribunal, however, upheld the claimant’s complaints of detrimental treatment contrary to s.47C ERA and pregnancy/maternity discrimination insofar as it found that the respondent had failed to take adequate steps to deal with the claimant’s grievance. The tribunal accepted the respondent’s explanation that the claimant’s two grievance emails had been blocked by its firewall. But while the respondent had made some enquiries, they did not follow up in writing with the claimant nor did they seek any further details about the grievance when

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Case report: Eddie Stobart v Graham ‘Clarke J found that the tribunal’s award of £10,000 for injury to feelings was manifestly excessive and therefore perverse’

they spoke with the claimant during the redundancy consultation process. The tribunal considered that the claimant’s absence on maternity leave had materially influenced the respondent’s approach to her grievance.

Regarding remedy, the tribunal only made an award for injury to the claimant’s feelings. It found that the claimant had been upset both by, ‘the way in which she had been dealt with by the respondent in relation to her redundancy’ and ‘the failure of the respondent to deal with her grievance’. It awarded the claimant £10,000 being at the lower end of the middle Vento band at that time. But no interest was awarded.

The Employment Appeal Tribunal sits The respondent appealed on two grounds. First, that the tribunal’s decision to award the claimant £10,000 in respect of her injured feelings was so excessive as to be perverse. Secondly, that the tribunal’s award of £10,000 for injury to feelings was not ‘meek compliant’.

Judge Barry Clarke, President of Employment Tribunals (England and Wales), said that compensation for injury to feelings (s.124(2)(b) EqA), is assessed in the same way as any other tortious claim. With regard to the authorities, as the Court of Appeal said of Vento in Kemeh: ‘They are designed to ensure a measure of consistency and fairness in the way in which tribunals approach their task’; and ‘the aim is to compensate for genuinely injured feelings, not to punish an employer for bad management or poor personnel practice.’

Furthermore, as the EAT observed in McGlue, such awards, ‘will not be interfered with unless they are manifestly excessive or wrong in principle’.

Clarke J then considered the relationship between the matter of discrimination and injury. Relevant factors for awarding higher compensation would include whether there had been a lengthy campaign of discriminatory harassment, whether the discrimination could be described as ‘overt’ and also whether the claimant had been exposed to ridicule and harm, and if the incidents in question had taken place in front of colleagues. On the other hand, an ‘isolated’ or ‘one-off occurrence’ would normally only justify an award in the bottom Vento band.

Crucially, the next consideration would be the evidence of injury from the claimant showing that their feelings had been injured and to what extent. Clarke J provided important factors which tribunals should take into account in assessing compensation: • the claimant’s description of their injury; • duration of consequences; • effect on past, current and future work; and • effect on personal life or quality of life.

Regarding the respondent’s first ground of appeal, Clarke J found that the tribunal’s award of £10,000 for injury to feelings was manifestly excessive and therefore perverse. He said: ‘This is a case where there was limited evidence before the tribunal of the extent of the claimant’s injury; she had said that she was “shocked” and “upset” because of a “dismissive” attitude towards “what [she] had to say” and her “rights.”’

Furthermore, the claimant had mitigated her losses by finding alternative work almost immediately. There was no finding of any impact on her personal life or her quality of life. The tribunal’s criticism of the respondent was instead limited to some missed opportunities to ask the claimant about her grievance and to doublecheck with her why it had not been received. This was essentially a procedural failing.

Clarke J concluded: ‘In view of the above, this could only have been a lower band Vento case. It was perverse for the tribunal to place it in the middle band.’

In relation to the respondent’s second ground of appeal, Clarke J held that the tribunal had erred in law by providing inadequate reasons for its decision to award the claimant £10,000. In particular, the tribunal had not explained why it had decided upon this figure as opposed to any other sum. Furthermore, there had been no qualitative consideration by the tribunal of how upset the claimant had been, in order to understand what was meant by the ‘degree’ of upset she experienced.

The respondent’s appeal was allowed. Clarke J said that the correct amount of compensation in this case was £2,000 being toward the lower end of the bottom Vento band. This was due to the limited scope of

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Case report: Eddie Stobart v Graham ‘where evidence is sparse, the manner of discrimination can provide a basis for inferring the level of upset caused’

the unlawful behaviour that had injured the claimant’s feelings; namely, the respondent’s procedural failings regarding the claimant’s grievance. But Clarke J did add: ‘I am prepared to infer some additional injury arising from the fact that the claimant was chasing up her grievance at a time when she should have been enjoying her maternity leave.’ Finally, Clarke J awarded the claimant £169 for interest.

Considerations This case serves as an important reminder regarding the approach the tribunals should take in awarding compensation for injury to feelings. The starting point will be the claimant providing direct evidence that their feelings have been injured and to what extent. Clarke J gives important guidance as to the factors that a tribunal may wish to consider when assessing any award for injury to feelings (para 52): • the claimant’s description of their injury – usually, this will be the basis for the amount of compensation the claimant receives. However, tribunals will need to consider claimants who are inarticulate regarding their injuries and equally claimants who are fragile making them more vulnerable to upset; • the duration of the consequences of any injury – is the claimant’s upset fleeting or long lasting? If the injured feelings continue, a tribunal should consider how long they might last and also how they are being manifested; • the effect on past, current and future work – has the discriminatory treatment affected the claimant’s current enjoyment of their work, or lessened their ability to look back warmly upon their past experiences at work, or has made them less likely to remain in the same line of work in future? and • the effect on personal life or quality of life – has the discriminatory treatment adversely impacted the claimant’s personal relationships, private activities, hobbies and the like? Here, third party evidence might be relevant, although a tribunal must decide what weight to give to such evidence.

Where evidence is sparse, the manner of discrimination can provide a basis for inferring the level of upset caused.

In this case, it was open to the tribunal to test whether it could properly support inferences of secondary fact about the claimant’s injury. However, the tribunal’s criticisms of the respondent were limited to missed opportunities to deal with the claimant’s grievance and also not doing so due to the claimant’s maternity leave. Therefore, the award of compensation for injury to feelings could only fall within the bottom Vento band.

This case is similar to another recent decision in Shakil, where the EAT allowed the claimant’s appeal because the tribunal had only awarded her £5,000 for pregnancy discrimination, despite the prolonged and serious nature of the discriminatory treatment and also without reference to the Vento guidelines either. This emphasises the importance of sufficiently reasoned remedy judgments for injury to feelings and with the Vento bands continuing to provide a framework for assessing compensation with the middle band being reserved for serious cases that do not warrant the highest band.

KEY: MAPLE Regs

Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312)

ERA

Employment Rights Act 1996

EqA

Vento

Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102

Equality Act 2010

Kemeh

Kemeh v Ministry of Defence [2014] IRLR 377

Graham

Miss C Graham v Eddie Stobart Ltd ET 4104024/2022; [2025] EAT 14

McGlue

HM Land Registry v McGlue UKEAT/0435/11

Meek

Meek v Birmingham City Council [1987] IRLR 250

Shakil

Shakil v Samsons Ltd [2024] EAT 192

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Could you become a salaried employment judge?

JUDGE BARRY CLARKE, President of Employment Tribunals in England and Wales (pictured) and BENJIMIN BURGHER, Regional Employment Judge

On 13 March, the Judicial Appointments Commission launches a selection exercise to recruit multiple salaried employment judges to sit in London, the South East (the majority of vacancies) and Birmingham. There is also one vacancy, for a fluent Welsh speaker, in Wales.

A perfect opportunity The employment tribunals are a busy, welcoming and innovative jurisdiction, ready to embrace the change needed to meet the challenges of delivering justice in the 21st century workplace. This is your opportunity to join our vibrant community of judges in a rewarding and intellectually challenging career in which you can help to ensure that the rule of law applies as much in the workplace as it does in wider society.

Why consider becoming a salaried judge?

Becoming a salaried judge is a prestigious step and, for many, the pinnacle of a legal career. Salaried judges hear the full range of cases and particularly our lengthier, more challenging and significant cases. They take up ‘lifetime’ appointments. In practice, this means it is a one-way move. Although this requires a careful and committed decision, there is so much to be gained, including: • an opportunity to deliver real justice rather than simply pushing one side of a case; • membership of the wider judicial family; • a structured workload that does not require you to check your email late into the evenings, take out-ofhours calls, or work through weekends; • truly exceptional collegiality; • greater flexibility in your working pattern, for example fractional (part-time) contracts for term-time only working; • opportunities to undertake additional responsibilities such as training, sitting on committees, outreach and mentoring; • career development opportunities for the Circuit Bench, the EAT and beyond; • generous pension; and • paid holidays, paid sick leave, tax deducted at source, no VAT returns, expenses, business development or worrying about billable hours (a new experience for some!).

Judge Tim Adkin: ‘I had no prior judicial experience before applying to be a salaried employment judge. I was attracted by making decisions rather than merely offering opinions and making arguments as I did for 15 years as a barrister. I hoped to have a pattern of

work more compatible with family life after years of late nights, weekend work and travelling around the country ... There are always colleagues I can talk to for advice. I have found judicial colleagues approachable, supportive and able to maintain a sense of humour.’

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Could you become a salaried employment judge? ‘there is a requirement for candidates to demonstrate current or previous substantial experience of employment law’

Many salaried judges retire at state pension age but lots will also continue beyond (and can do so until the mandatory retirement age of 75).

The pace of change over the last few years has been breathtaking. The HMCTS Reform Programme has introduced digital case files and created a new portal for litigants; hearings are now recorded (and can be transcribed on request); the ‘virtual region’ of judges is thriving; there have been changes to panel composition; there is expanded use of alternative dispute resolution; and the transfer of responsibility for our rules of procedure to the Tribunal Procedure Committee. Work will soon begin to prepare for the coming into force of the Employment Rights Bill. This year, we will mark 60 years of delivering workplace justice.

Unique features of this JAC exercise For this recruitment round, the Lord Chancellor has agreed that there is no requirement for previous judicial experience.

However, there is an additional requirement for candidates to demonstrate current or previous substantial experience of employment law. This extends to academics and those involved in employment law policy work (subject to having the necessary professional legal qualification). It can be gained from individual employment law, collective employment law or the application of discrimination law to the workplace. It includes allied areas such as regulatory discipline, employee benefits or pensions law.

Current fee-paid employment judges (or those assigned to sit for the employment tribunals), who have completed their training and have been in post for at least six months, are also encouraged to apply.

Timeline The JAC competition is expected to launch on 13 March with appointments likely to be notified by March 2026.

The timeline for the process is available at https://apply.judicialappointments.digital/vacancies#future Sign up for an alert when it opens at https://judiciary.us1.list-manage.com/subscribe?u=548a65311463275 f5dd9a2447&id=9af65cd85e Locations The hearing centres with vacancies are Central, East and South London, Norwich, Bury St Edmunds, Cambridge and Birmingham. Applications are also invited from fluent Welsh speakers for a single vacancy in Wales, given the pressing need for a person who can conduct cases and write judgments in Welsh.

Salaried part-time working Salaried part-time working opportunities are available. All applications to work part-time will be considered, provided they equate to no less than 50% of the full-time equivalent (FTE) post and are in multiples of 10%. In the employment tribunals, salaried judges take on the bulk of the long hearings. To list cases effectively, we require salaried judges to work five-day weeks in blocks of four weeks or more. Term-time working is especially popular. However, as you would expect, salaried judges are expected to work from the HMCTS estate rather than

Judge Nasreen Akhtar ‘Since becoming a salaried judge, the range and breadth of cases I have had the opportunity to deal with, has far exceeded my expectations ... Admittedly, I was apprehensive when I started.

With no prior judicial experience, I wondered whether the role was right for me and if I could quickly master the necessary judicial skills.

22 BRIEFING Vol. 32 No. 2

I have found there is a strong collegiate and inclusive culture in the employment tribunal, which provides a supporting and enriching environment.

New judges in particular, are provided guidance and mentorship from experienced judges … If you’re considering a career as a salaried employment judge, my advice is simple: go for it! The work is meaningful, varied, and incredibly rewarding.’

Could you become a salaried employment judge? ‘the judiciary must capture talent across all sectors of society and reflect the diverse population it serves’

from home. However, the ET President is willing to engage in discussions relating to any adjustments to these expectations aimed at accommodating specific personal circumstances, always having regard to business need.

Diversity and inclusion The judiciary must capture talent across all sectors of society and reflect the diverse population it serves. The most recent expression of this essential aspiration is the Judicial Diversity and Inclusion Strategy, updated in December 2024: https://www.judiciary.uk/wp-content/uploads/2020/11/Judicial-Diversity-and-InclsuionStrategy-2020-2025.pdf We strongly encourage applications in these two exercises from suitable candidates of all backgrounds, characteristics and personal circumstances: whether you work as a solicitor, barrister or legal executive, whether you are in practice or academia or work as a PSL, whether your professional time is spent in the public or private sector, and whether you gained your experience in large firms, on the high street or in-house.

Supporting your application Recruitment to the judiciary is undertaken by the Judicial Appointments Commission (JAC). This is the statutory body responsible for running selection exercises and making recommendations for most judicial roles. You can read more about the JAC’s work, and sign up for its newsletter, on its website: https:// judicialappointments.gov.uk/ The website is a rich source of information about how exercises are run. It contains many individual case studies, as well as evaluation reports from historic exercises. It is full of excellent tips on choosing the best examples for your application form, selecting the right referees (known as independent assessors) and maximising your chances of selection.

ELA will be hosting a hybrid event on 6 March at 17:30 for its members, where you can meet salaried judges who will host a panel discussion on the role and how to apply. There will also be a webinar for those interested in the Welsh speaking role at midday on the same day. More details and booking can be found on the ELA website at https://www.elaweb.org.uk/training-and-events Training and support Successful candidates will be well supported by a sophisticated programme of observation, induction and continuation training. Every newly appointed judge will be assigned an experienced mentor, who will be available to act as a confidential sounding board and support you in the initial stages of your judicial career.

Judge Hugh Lumby ‘The transition to becoming a salaried judge has been so much better than I expected and I highly recommend it. The support of colleagues has been on another level, there is always someone to answer questions and share thoughts. There is a great diversity amongst my fellow judges but common features are their quality and dedication and willingness to be there for you A great example of the support given was my diagnosis with MND between my application

and appointment as a salaried judge. This has affected my ability to speak. I feared this would prevent my judicial career progressing further but instead I have been encouraged to continue and adjustments made for me ... Both the President and my REJ have gone above and beyond to make this happen. So I recommend the move to salaried without reservation, for the supportive culture, great work and intellectual stimulation. My only regret is not doing this years ago.’

BRIEFING March 2025 23

Could you become a salaried employment judge? ‘you may have tried before and not succeeded.

If that is you, please try again’

Is this for you?

Only you will know if the time feels right, in the words of the judicial oath, to do right to all manner of people, without fear or favour, affection or ill will. It is a fascinating and rewarding role; no two days are ever the same.

It is also intellectually and emotionally demanding; it does require stamina. We would also say that the role of judge is a noble one; although a judge assumes a role with great power over the lives of people, it is a power best exercised with clarity, humility and courtesy.

You may have tried before and not succeeded. If that is you, please try again. The judiciary is well populated by those who only succeeded in obtaining appointment after several attempts! We very much hope that you will consider applying. Your personal and professional development will thrive if you are ultimately successful.

Judge Jennifer Young ‘I had never thought of becoming a judge as it seemed to be something that barristers in independent practice did … I worried that maybe I wasn’t the right kind of person to be a judge.

The first year of becoming a judge direct from the bar was really hard work and a baptism of fire for me as I had a really big case in my first six months. Initially I had to work all the time to

24 BRIEFING Vol. 32 No. 2

keep up with judgments and orders and it can be relentless. One of my more experienced colleagues said to me in my first week to remember that life as a judge is not a sprint, but a marathon and he was absolutely right. But it does get a lot easier and in my second year I now have down time, and I really enjoy my job. I highly recommend it for anyone interested.’

contributor

guidelines The purpose of these guidelines is to minimise the need to edit submissions to conform to the ELA Briefing style.

As the guidelines may be updated from time to time, it is important that contributors follow the latest version, available from the editor or on the ELA website. It is a condition of publication that ELA Briefing has First British Publication Rights. Do not submit articles printed elsewhere (in identical or similar form) or being considered for publication elsewhere. Authors may provide a link to their article as it appears in ELA Briefing (not the complete issue of ELA Briefing) on their firm/company website, provided they clearly acknowledge that the article was first published in ELA Briefing (© Employment Lawyers Association).

Please ensure that any contributions will not expose ELA or IDS to civil or criminal proceedings.

SUBMISSION: articles should be emailed as a Microsoft® Word attachment to ELABriefingEditor@elaweb.org.uk by the copy deadline (details on the website or from the editor) in order to be considered for that month’s issue. Articles may be held over to a subsequent month if there are space constraints.

PHOTO: all submitted articles should be accompanied by a highresolution portrait ‘headshot’ photograph of the author(s) in jpeg or tiff format (a minimum of 5cms at a quality of 300dpi).

SUB-HEADINGS: only use initial capitals for the first word.

BULLETED LISTS: use bulleted lists rather than numbered or lettered paragraphs. Short lists should be introduced with a colon, begin with a lower case letter (unless, for example, there is a name) and have no punctuation at the end. Longer bulleted paragraphs should be punctuated at the end with semi-colons and with a full stop on the final bullet.

ABBREVIATIONS: REFERENCES: at the end of the article, list the short form and full name (with un-italicised case reference) of all cases and legislation, in the order in which they appear in the article. Please provide a hyperlink in the key to any case report cited, and for any reports and legislation you mention (for the digital edition).

• use symbols (%, US$,€ ); do not use ampersand unless it is part

CONTENT: articles should examine recent case law developments or legislative proposals, providing succinct analysis and practical tips and keeping the facts to a minimum (for example, there is often no need to summarise the decision of a lower tribunal). Submissions can also be opinion pieces, checklists, overviews of a topic suitable for more recently qualified readers, overviews of foreign laws or discussions of topics related to employment law, such as HR practice. ET decisions are rarely suitable. Articles should be balanced and address both employer and employee viewpoints where possible. They should be written in an accessible style, with short sentences and paragraphs, sub-headings to signpost underlying content, a conclusion and no footnotes.

• use standard abbreviations for organisations and the like

of a name

• use numerals for all numbers except one to nine and million/billion

• do not use stops for abbreviations such as etc, ie, eg • use acronyms where they exist, but with initial capital only: Acas, Ofcom, Nato, Defra

WORD COUNT: for all articles must be either 600-650, 1,100-1,200 or 1,800-1,900 words (reflecting the page length).

TITLES: should be no more than 50 characters, followed by the author’s name and firm/chambers. The topic should be clear from the title.

(CBI, ECJ, EAT, MoJ, BIS, ELA)

• if no standard abbreviation exists, first use its full name, then a short form

• only define short forms (in brackets without quote marks) if not doing so would be confusing

• refer to all legislation and cases (italicised) using an abbreviated form taken from the key

• sections of legislation should appear as follows: s.94 ERA (ERA s.94 at the start of a sentence), ss.94-95 ERA CAPITALS: use initial capitals for languages, personal titles, names of places, institutions (such as the current Government) and publications, statutory provisions (other than section and paragraph), months and public holidays. Use lower case for job titles (such as director, editor) and legal descriptors such as claimant, defendant, judge, counsel, court, tribunal, etc.

DATES: display in the following format: 24 July 2012.

ITALICS: italicise case names and names of publications.

INTRODUCTION: begin with a ‘standfirst’ paragraph of 30-40 words, which should introduce the subject covered in the article.

EXTRACTS: suggest a phrase or short sentence for each page, to be extracted as quotes.

QUOTES: use single quote marks where quoting from judgments or legislation (except for quotes within quotes). Do not italicise.

Include paragraph and page references in brackets after the quote mark (para 12, p.12).

diary

BOOKINGS Email: ela@elaweb.org.uk

Telephone: 01895 256972 Online: www.elaweb.org.uk

Webinars Event

Cost

Time

Date

Employment in Hospitality

£40 + VAT

12:00 – 13:00

4 March

Buyer Beware! TUPE in the Context of Commercial Property Transactions

£40 + VAT

12:00 – 13:00

19 March

Vicarious Trauma

Free

12:00 – 13:00

2 April

Event

Cost

Date

Location

Birmingham Discussion Forum and Quiz Night

£10 + VAT

19 March

Birmingham

Solent Training Day

£150 + VAT

21 March

Southampton

ELA In-house Conference 2025

£299 + VAT

27 March

London

An Introduction to Advocacy for Junior Employment Lawyers

£25 + VAT

8 May

Leeds

Annual Conference 2025

£425 + VAT

15 May

London

Live events