In Faithorn Farrell Timms LLP v Bailey the EAT has given the first appellate guidance on the scope of the amendment to the Employment Rights Act to incorporate the provision of protected conversations under Section 111A. Since this was introduced in July 2013, evidence of pre-termination negotiations in unfair dismissal claims have been rendered inadmissible in circumstances where, prior to the introduction of this provision, there would have needed to be a genuine dispute in the workplace in order for such discussions to attract the without prejudice protection. In this case, the EAT has held that the inadmissibility of referring to these conversations goes further than the content of the negotiations and extends to the very fact that they have taken place; and that, unlike the without prejudice privilege, this privilege cannot be waived.
Articles by ‘Malcolm Gregory’
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In writing this article the morning after the vote, I asked employment lawyers across the country – from our soon to be colleagues – (see our merger news here if you haven’t already) at Royds in the City of London to rural-based colleagues what employment law will look like in five years’ time in the UK.
In Gibbs v Leeds United Football Club, the High Court has held that an employee’s willingness to negotiate a termination package does not necessarily prevent him being able to bring a claim of constructive unfair dismissal.
In Harron v Dorset Police, the EAT has potentially extended still further the meaning of “philosophical belief” under the Equality Act. It is possible that a belief that a public service is improperly wasteful of money may be protected under the meaning of philosophical belief.
In another somewhat unusual case factually, Pendleton v Derbyshire County Council, the EAT dealt with an appeal by a claimant against the dismissal of her claim for indirect religious discrimination on the ground that she had been sacked because she refused to leave her husband who was convicted of making indecent images of children and voyeurism.
The pupil was a boarder at the School; she suffered from ADHD. She was caught having sexual intercourse with a male student in the school which resulted in her exclusion and the Principal advising her mother to withdraw her to avoid her having an expulsion on her record. Her mother appealed against the decision, stating that she was disabled under the Equality Act because of her ADHD and its negative effect on her ability to make decisions, and that she had thereby been discriminated against. The matter was initially heard in the Additional Support Needs Tribunal for Scotland which rejected the claim as it was not satisfied that she suffered from a disability. The Court of Session agreed and rejected her appeal because it considered that her mental impairment did not have a substantial and long term adverse effect on her ability to carry out day to day activities based on the evidence of her teachers. Furthermore there did not appear to be a causal link between the ADHD and the act in question which caused her expulsion; this was based on the pre-planning involved in the act itself rather than being an impulsive one as a result of the ADHD; plus evidence that she had had previous sexual relationships which her mother did not appear to attribute to the condition.
The Advocate General has given his opinion in the case of Achbita and Another v G4S Secure Solutions NV on a question that was referred to the European Court of Justice for an opinion on whether prohibiting female Muslim employees from wearing headscarves at work constituted direct discrimination contrary to the Equal Treatment Framework Directive.