Webinar
UK Employment Law Update – January 2016
© Copyright 2016 by K&L Gates LLP. All rights reserved.
Meet the team
Paul Callegari
Partner, Practice Group Coordinator
T +44 (0)20 7360 8194
paul.callegari@klgates.com
Emma Thomas
Senior Associate
T +44 (0)20 7360 8339
emma.thomas@klgates.com
Deirdre Treacy
Associate
T +44 (0)20 7360 8234
Deirdre.treacy@klgates.com
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Co-Presenters
David Reade QC
T +44 (0)20 7797 8600
dreade@littletonchambers.co.uk
Alexander Robson
T +44 (0)20 7797 8600
arobson@littletonchambers.co.uk
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AGENDA
1. In case you missed it…
2. Feature: Wrongful dismissal following Farnan v
Sunderland (2015)

David Reade QC and Alexander Robson, Littleton
Chambers
3. In the pipeline for 2016
4. Q&A
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In case you missed it…

Employer monitoring of private employee communications –
Barbulescu v Romania (ECHR)
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Company policy prohibited personal use of company IT equipment
B created Yahoo messenger account at company request to
communicate with clients
B used account to send personal messages to his fiancée and brother
but denied this when challenged
B dismissed and claimed infringement of Article 8 of European
Convention on Human Rights (right to respect for private and family
life, the home and correspondence) - claim dismissed
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In case you missed it…(cont.)
 Misleading media coverage:




BBC: “private messages at work can be read by
European employers”
Metro: “Your boss now has the right to snoop on your
private online messages”
BUT: UK employers still subject to legislation (including
the Data Protection Act 1988) and guidance from the
Information Commissioner’s Office which limits the ability
of employers to monitor communications. This case does
not change that
Emphases importance of clear and unequivocal policy –
but how far should employers go?
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In case you missed it…(cont.)
 Instruction not to speak native language at work was not
race discrimination – Kelly v Covance Laboratories Ltd
(EAT)
 CL carries out animal testing and had previously had difficulties
with animal rights campaigners, including infiltration
 K (Russian) seen to be acting strangely and often speaking in
Russian on mobile
 K instructed not to speak to Russian so managers could
understand
 CL commenced capability procedure, K raised grievance alleging
race discrimination (rejected)
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In case you missed it…(cont.)

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CL discovered criminal convictions which K had not
disclosed
K resigned day before disciplinary hearing and claimed race
discrimination and harassment
EAT rejected claims:
 Although an instruction linked to race or national origins
could amount to discrimination, CL’s explanation was
unrelated to nationality – their suspicions, not her
nationality, was the reason for the instruction
 same instruction was given and would be given to others
 instructions did not meet harassment test
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In case you missed it…(cont.)


Shows importance of clear policy applicable to all
(regardless of nationalities)
Important difference between requirement to
speak English at work and requirement not to
speak native language
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In case you missed it…(cont.)
 Reasonable adjustments: Waddingham v. NHS
Business Services Authority (ET)


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ET upheld a claim for failure to make reasonable adjustments by a
disabled employee who failed to achieve the required score in a
competitive interview for an internal position
ET stated that, as the employee’s performance was impaired by the
cancer treatment he was receiving at the time, the assessment of the
employee’s suitability for the role should have been based on existing
information about his performance e.g. appraisals from previous
positions
ET did not agree that it was necessary to lower the pass mark to
accommodate the employee’s impaired performance at the interview
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In case you missed it…(cont.)
 Reasonable adjustments: Griffiths v The Secretary
of State for Work and Pensions (CA)


CoA dismissed a claim that an employer failed to comply with its
obligation to make reasonable adjustments by not extending the point
at which disciplinary action could be taken under its attendance
management policy and by failing to disregard periods of sickness
absence
CoA upheld the ET’s and EAT’s decision that neither of these
potential adjustments were reasonable for the employer to take.
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Feature: Wrongful dismissal following
Farnan v Sunderland (2015)
- Facts
 Wrongful dismissal claim and bonus pay claim
 Director of football club
 Alleged acts gross misconduct
 Including breaches of confidentiality duty
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Feature: Wrongful dismissal following
Farnan v Sunderland (2015)
- Key contractual clauses
- Judgment of Whipple J ([2015] EWHC 3759
(QB))
- Importance of specifically identifying in
employment contract acts of gross
misconduct
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In the pipeline for 2016
 Gender pay gap reporting
 Requirement to prepare an annual slavery and human
trafficking statement under the Modern Slavery Act 2015
 National living wage
 EU referendum
 Various appeals to be heard, including cases dealing
with:



subject access requests
“public interest” requirement in whistleblowing cases
holiday pay calculations
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Q&A
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Webinar
UK Employment Law Update – January 2016
© Copyright 2016 by K&L Gates LLP. All rights reserved.