Case law updates

Redundancy: Overturning the employment tribunal (ET)’s decision, the Employment Appeal Tribunal (EAT) has found that a nurse who was dismissed for redundancy on the basis that her fixed term contract was due for renewal before that of her colleagues (who were also on fixed term contracts) was unfairly dismissed. The EAT considered that using the fixed term contract expiry date as the sole criterion for redundancy selection, a decision adopted without any prior meetings or consultation, to be arbitrary and effectively put the claimant into a pool of one and made her redundancy a fait accompli. The case acts as a reminder of the importance of careful consideration of selection criteria and that meaningful consultation, including on the method of selection, is a key component of a fair redundancy process. (Mogane v. Bradford Teaching Hospitals)

Settlement agreements: The EAT has held that an ET was wrong to deny the claimant the ability to bring an age discrimination claim in circumstances where he had previously signed a settlement agreement waiving his rights. The claimant had accepted a redundancy package under a settlement agreement, but he subsequently brought a complaint of age discrimination when he was not paid a pension payment due to his age. This claim had not arisen at the time of his settlement agreement. While he had settled all future claims under contractual principles, the Equality Act 2010 does not allow for settlement of future claims which have not yet arisen. The case is a helpful reminder to take care when drafting waivers of claims in settlement agreements, and to be mindful that certain claims cannot be waived. (Bathgate v. Technip)

Legislative developments

Whistleblowing: The Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2022, coming into effect on 15 December 2022, amends the statutory list of prescribed persons to whom disclosures can be made to gain protection under whistleblowing legislation. The amendments include widening the scope of matters to which the Financial Conduct Authority is a prescribed person.

Pregnancy and maternity – redundancy: The government has confirmed its backing to legislation that extends the rights of pregnant workers and new parents in redundancy situations. It is understood that the policy intention is to extend the right to priority for suitable, alternative vacancies to cover the period from when a woman tells her employer she is pregnant until 18 months after the birth. This same 18-month window is also expected to apply to maternity and shared parental leave. A timescale for implementation is unknown.

Carer’s leave: The government has also confirmed its backing to legislation to introduce a day one right to a week’s unpaid leave per year for workers with caregiving responsibilities. Again, the timescale for implementation is currently unclear.

Industrial action: The government is pressing ahead with its proposals to introduce legislation to ensure that minimum service levels are in place for transport so that industrial action does not make it impossible for people to travel to work. The Transport Strikes (Minimum Service Levels) Bill 2022 (Draft) was published on 20 October 2022 and will now make its way through the legislative process.

Data protection: The government has announced plans to replace the UK GDPR with bespoke data protection legislation. Details and a timescale are unknown.

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