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Parklane Plowden welcomes new pupil

Chambers is delighted to welcome Isabella Brunton, who is commencing her specialist civil law pupillage under the supervision of Claire Millns.  Isabella achieved first-class honours at the University of York in Law and was awarded the Citizenship Award for her role as Mistress of the Moots of the Mooting and Bar Society. She was awarded the HHJ Paul Clark Scholarship and Blackstone Entrance Exhibition Award by Middle Temple, and the Excellence and Career Commitment Scholarships by BPP. She went on to achieve a Distinction in her BTC LLM.

Parklane Plowden Podcast – A missed opportunity for workplace sexual harassment law

Listen to Parklane Plowden’s latest PLP Podcast – A missed opportunity for workplace sexual harassment law.  In October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force, making changes to the remedy provisions in the Equality Act in relation to sexual harassment at work.  Parklane Plowden employment barristers <a href="https://www.parklaneplowden.co.uk/our-barristers/roger-quickfall/">Roger Quickfall</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/bryony-clayton/">Bryony Clayton</a> explore the current protections for employees suffering sexual harassment and the journey behind the legislative change.  They discuss why an opportunity was missed with the upcoming legislation in relation to protecting employees from third party sexual harassment such as that by clients of their employer and how employers and practitioners can prepare for when the new legislation comes into force.  Helpful resources and further reading:  <ol> <li><a href="https://www.legislation.gov.uk/ukpga/2023/51/contents">Worker Protection (Amendment of Equality Act 2010) Act 2023</a></li>  <li><a href="https://bills.parliament.uk/bills/3205">History of the progress of the Bill where the debates can also be found</a></li>  <li><a href="https://metoomvmt.org/">Me too </a></li> </ol>  Listen to the podcast below:

Rule 50 in the spotlight: privacy in the Employment Tribunal – a recent case and some practical tips

The key provisions in brief  Rule 50  Under r50:  “(1) A Tribunal may at any stage of the proceedings, on its own initiative or on application, make an order with a view to preventing or restricting the public disclosure of any aspect of those proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person or in the circumstances identified in section 10A of the Employment Tribunals Act.  (2) In considering whether to make an order under this rule, the Tribunal shall give full weight to the principle of open justice and to the Convention right to freedom of expression.”  R50(3) contains a list of illustrative orders the Tribunal may make. That includes:  <ul> <li>R50(3)(a) – An order that a hearing, or part of a hearing be held in private.</li>  <li>R50(3)(b) – Anonymisation orders applying to parties, witnesses, or other people referred to in proceedings. Anonymisation can relate to the course of the hearing, in the list, and/or any documents forming part of the public record, such as the judgment or reasons.</li>  <li>R50(3)(c) – An order for measures preventing witnesses at a public hearing being identifiable by members of the public, such as screens.</li>  <li>R50(3)(d) – A restricted reporting order (“RRO”) within the terms of s11 or 12 of the Employment Tribunals Act 1996 (“ETA”). Respectively, these sections relate to sexual misconduct/offences and disability (see below).</li> </ul>  Under r50(5), an RRO must meet certain requirements:  “(a) it shall specify the person whose identity is protected; and may specify particular matters of which publication is prohibited as likely to lead to that person’s identification;  (b) it shall specify the duration of the order;  (c) the Tribunal shall ensure that a notice of the fact that such an order has been made in relation to those proceedings is displayed on the notice board of the Tribunal with any list of the proceedings taking place before the Tribunal, and on the door of the room in which the proceedings affected by the order are taking place; and  (d) the Tribunal may order that it applies also to any other proceedings being heard as part of the same hearing.”  S10 ETA  The Tribunal can be invited to sit in private to hear evidence which is likely to consist of information which:  <ul> <li>Has been communicated or received in confidence.</li>  <li>Would cause substantial injury to the Respondent.</li> </ul>  S11 ETA  In cases involving allegations of the commission of sexual offences, s11 ETA (read with r50) enables the Tribunal to grant anonymity to those affected by or making an allegation of the commission of sexual offences.  In cases involving allegations of sexual misconduct, it enables the Tribunal to make an RRO having effect until promulgation of its decision, unless it is revoked earlier.  Sexual misconduct means “the commission of a sexual offence, sexual harassment or other adverse conduct (of whatever nature) related to sex, and conduct is related to sex whether the relationship with sex lies in the character of the conduct or in its having reference to the sex or sexual orientation of the person at whom the conduct is directed”.  Sexual offence means any offence to which certain statutory provisions, including SO(A)A apply.  The RRO should prevent the reporting of any matter likely to lead members of the public to identify the person affected by (i.e. the alleged perpetrator), or the person making (i.e. the complainant), the allegation.  S12 ETA  In a “complaint which relates to disability in which evidence of a personal nature is likely to be heard”, s12 ETA (read with r50) enables the Tribunal to make an RRO having effect until promulgation of its decision, unless it is revoked earlier.  Evidence of a personal nature means “any evidence of a medical, or other intimate, nature which might reasonably be assumed to be likely to cause significant embarrassment to the complainant if reported”.  Sexual Offences (Amendment) Act 1992 (“SO(A)A”)  S1 grants lifelong anonymity to those alleging commission of sexual offences:  “(1) Where an allegation has been made that an offence to which this Act applies has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed.  (2) Where a person is accused of an offence to which this Act applies, no matter likely to lead members of the public to identify a person as the person against whom the offence is alleged to have been committed (“the complainant”) shall during the complainant’s lifetime be included in any publication.”  Accused means charged with an offence.  No such protection is extended to alleged perpetrators, by virtue of their status alone. However, cases of ‘jigsaw identification’ – where revealing the identity of the perpetrator would be likely to lead to identify the person making the allegation – may necessitate an order being sought in relation to the alleged perpetrator under s1.  Z v Commerzbank AG [2024] EAT 11  Facts  The Claimant made discrimination allegations and alleged that a female colleague, Q, had sexually harassed and sexually assaulted him. After he was dismissed by Commerzbank, he brought a claim against it and other Respondents, including Q.  First instance  On application, restricted reporting and anonymity orders were made in respect of the Claimant and Q.  In relation to the Claimant, the Judge found that he was protected for life by operation of s1 of the SO(A)A. In respect of the anonymity order, she decided to make the same order in the interests of justice under r50(3)(b) to give effect to the SO(A)A. She also made a restricted reporting order (“RRO”) of indefinite duration under r50(3)(d). She considered freedom of expression under art 10 but held that it was proportionate to protect the Claimant’s art 8 right to privacy because “the test of strict necessity [in r50] is satisfied in the case of a victim of an alleged sexual offence”.  In relation to Q (and her husband), who did not enjoy the protection of SO(A)A, similar orders were made, but of limited duration until the promulgation of the liability judgment. The Judge referred to art 10 but found it was outweighed by Q’s art 8 rights. She held that post-promulgation restrictions fall outside the statutory exception in s11 ETA.  At the liability hearing, the Tribunal concluded that the Claimant’s account was false and made up. It dismissed all his claims.  The Respondents applied to lift the anonymity order and RRO (“the privacy orders”) in respect of the Claimant, and to extend them in relation to Q.  In respect of Q, the privacy orders were varied to have indefinite effect. Whilst not the subject of any appeal, Mr Justice Kerr expressed discomfort that the orders had no sunset or lapsing provision requiring a conscious decision to extend the duration of the order periodically.  In respect of the Claimant, the Tribunal revoked the privacy orders, subject to a temporary stay for any appeal. It referred to Mr Justice Soole’s decision in A v X UKEAT/0113/18, noting that there appears to be no direct authority on whether and if so how the Tribunal should give effect to the SO(A)(A).  The Tribunal concluded that there had been a material change of circumstances sufficient to enable the Tribunal to consider revoking the privacy orders:  “The exceedingly serious allegations on which the Claimant based his application for anonymity have been considered, comprehensively dismissed and found to be false and, in large part, made up. The foundation on which EJ Brown necessarily approached the application, namely that the Claimant was relying on sincere allegations advanced in good faith, has been exploded.”  The power to make the order lay under r50, not SO(A)A, and the power to revoke it under r29. The correct approach was to exercise its case management powers under r29 “in keeping with the spirit and intention” of SO(A)A. That involved recognising that protection under the SO(A)A is automatic and in principle permanent. The rationale being to avoid discouraging victims from making complaints for fear of distressing publicity. However, the Employment Tribunals Rules of Procedure enable the Tribunal to remove or relax that protection in special circumstances:  “We simply cannot accept that the law is powerless to separate the Claimant from a protection to which, as is now apparent, he was never entitled. It is to us unthinkable that our procedural law, founded on the overriding objective of deciding cases justly, could contemplate such a bizarre and unjust result.”  It went on to consider the balancing exercise of competing interests and concluded that art 10 clearly outweighed art 8:  “His is a most unusual story and we can well see why it would be of considerable interest to the press and the public. His identity would be a matter of legitimate interest given the Tribunal's findings, in the way that Q's would not. Against the interests of open justice and freedom of interest, we see no countervailing argument based on the Claimant's Convention rights. If, as we have held, he did not have a sustainable right to litigate anonymously, it cannot be said that his right to respect for his private life would be violated as a consequence of the anonymity being lost.”  Appeal  The Claimant appealed the revocation of the anonymity order and RRO.  Mr Justice Kerr identified four strands of authority: the common law; art 8; SO(A)A and ETA read together with r50. He described this as a “complex interaction”.  There was no dispute between the parties regarding the principle of open justice and derogations from it applying the common law or art 8, balanced against art 10. There are many authorities dealing with this balancing exercise.  He noted that:  <ul> <li>The protection of s1 SO(A)A is statutory an therefore automatic – there is no need for the trial court to make an order mirroring it.</li>  <li>By s1(4), the section does not prohibit publication of a report of a subsequent trial of the complainant for perjury or perverting the course of justice.</li>  <li>There are provisions to allow removal or relaxation of the s1 protection, but these must not be given by reason only of the outcome of the trial.</li> </ul>  Mr Justice Soole reviewed several authorities where it had been assumed that s1 SO(A)A applied to a Claimant making an allegation in the Tribunal.  He held that the words “an allegation has been made” in s1(1) SO(A)A “refer to the making of an allegation in circumstances which raise, or are intended to raise, a real possibility that a criminal charge will follow.”  Such an allegation need not be made by the alleged victim. For example, a complaint by a parent to police that their child has been sexually assaulted would trigger anonymity for the child.  He stated:  "the accurate formulation is that "allegation" in section 1(1) refers to a formal allegation made in the context of potential criminal proceedings, where a criminal charge may be brought. The paradigm case is a complaint to police. Other complaints made seriously and intended to or likely to be acted upon might be to a prosecuting authority, a safeguarding body, a social worker or social services department or other person with professional responsibility for taking the complaint further through the criminal justice system.  It follows that I do not think an ""allegation"" in section 1(1) includes, without more, an allegation made in civil, family or tribunal proceedings of conduct that, if committed, would be one of the sexual offences covered by the 1992 Act.“  The Claimant nor anyone else had made such an allegation against Q and the Judge at first instance was wrong to conclude he was entitled to the protection of the SO(A)A.  However, Mr Justice Soole commented, obiter, there will be a difficulty in other cases where the requirement in s1(1) is satisfied, for example where a serious complaint of a sexual offence has been made to police by the time the allegation of the same conduct is made in the Tribunal. In those circumstances, the only means of removing the protection of SO(A)A is in accordance with its provisions, for example if there is a subsequent trial for perjury or if a Justice of the Peace of a Crown Court Judge decides to relax the restriction.  He noted the cross reference to SO(A)A in s11(6) ETA as suggesting that parliament had in mind the possibility that the protection of SO(A)A could apply in cases where the same conduct is alleged as a criminal matter and in the Tribunal. In such cases, a privacy order would be made under r50.  The lacuna, however, is that an Employment Judge does not have the corresponding power given to a Justice of the Peace of a Crown Court Judge to remove the restriction in circumstances where the Tribunal decides a complaint is false. The solution may here lie with Parliament.  Albeit for slightly different reasons, the Tribunal at first instance was therefore correct to revoke the privacy orders in respect of the Claimant. It was “difficult to think of a more striking change of circumstances” and the art 10/art 8 balance had been struck correctly.  Some practical tips  <ul> <li>Privacy orders should be considered in any sex-related or sexual harassment claim</li>  <li>In disability-related cases they are rarer</li>  <li>The parties cannot agree to a departure from open justice – the Tribunal will not merely approve an agreed order, but will need to consider whether a derogation from open justice is necessary</li>  <li>The interests of justice and protection of a person’s Convention rights are two distinct but often overlapping grounds upon which derogation from open justice can be sought</li>  <li>The party seeking the privacy order has the burden of proving it is necessary to deviate from the principle of open justice</li>  <li>Evidence should therefore be adduced in support of such an application e.g. medical evidence if an assertion is made of risk of damage to health, evidence of any complaint to police</li>  <li>The Tribunal may need to hear witness evidence e.g. to determine whether revealing certain information could lead to jigsaw identification of a complainant</li>  <li>A draft order should be prepared to accompany the application, with thought being given to precisely what is sought e.g. Anonymity? Of whom? An RRO? For how long?</li>  <li>Applications should ideally be made at a preliminary hearing in advance of the final hearing</li>  <li>There may be consequential impacts of a privacy order on case preparation e.g. redaction, labelling of individuals by letters, preparation of one bundle for the parties and a redacted bundle for the public</li> </ul>  For a fuller discussion of this topic, join <a href="https://www.parklaneplowden.co.uk/our-barristers/bryony-clayton/">Bryony Clayton</a> at <a href="https://www.parklaneplowden.co.uk/20-march-2024-employment-grandstand-seminar-newcastle/">Parklane Plowden’s Employment Grandstand on 20 March</a> for her talk: The Limits of Open Justice: Anonymity and Privacy Issues in the Tribunal.

Reasonable Adjustments and Recording Tribunal Proceedings: Bella v Barclays Execution Services Ltd & Ors [2024] EAT 16 (23 February 2024)

The Background  The Claimant/Appellant applied to the Employment Tribunal to be allowed to record a three-day preliminary hearing. The Employment Judge declined to grant the application as he was not satisfied with the evidence in support or that there was any significant disadvantage to the Appellant. In reaching his decision, the Judge did not refer to the guidance provided on this question in Heal v University of Oxford [2020] ICR 1294. Although the guidance in Heal is not mandatory, is in important in considering an application to record proceedings and by not referring to it, the Judge then failed to take into account factors material to the assessment of the Appellant's application. The Judge should therefore have granted the application and it was right to make a declaration that the decision not to do so was unlawful.  The Law  The Employment Tribunal is under a duty to make reasonable adjustments in appropriate circumstances. Whilst the language of reasonable adjustments appears in s. 20 of the Equality Act 2010, that section does not provide the source of the relevant duty as was made clear by Underhill LJ in J v K [2019] ICR 815, albeit in the context of an application for an extension of time for the presentation of a complaint to the employment tribunal:  "...judicial decisions are excluded from the scope of the Act: see paragraph 3 of Schedule 3 to the Act. But as a matter of general law the exercise of a judicial discretion must take into account all relevant considerations, and in such a case the party's mental condition or other disability would plainly be a relevant consideration." [33]  Langstaff J in Rackham v NHS Professionals Ltd UKEAT/0110/15/LA said as to the level of review to which and Employment Tribunal's decision on reasonable adjustments could be subject to scrutiny at the EAT level:  "In this case, though we are attracted to the proportionality analysis that Miss Joffe proposed and that Mr Horan in reply adopted, we do not think that the decision actually depends upon the approach we take, though we would observe that we would be very hesitant before suggesting that a pure Wednesbury approach was appropriate in any case in which it appeared to the reviewing court that it would have been reasonable to have to make an adjustment if that adjustment appeared necessary to obtain proper equality of arms for someone with a relevant disability."[46]  In addition, the court observed as follows:  “In many cases, if not most, a person suffering from a disability will be the person best able to describe to a court or to others the effects of that disability on them and what might be done in a particular situation to alleviate it." [50]  The particular issue of whether a reasonable adjustment might be granted in the form of permission to record proceedings was considered by Choudhury J in the Employment Appeal Tribunal in Heal v The Chancellor, Master and Scholars of the University of Oxford & Ors [2020] ICR 1294.  “a. Tribunals are under a duty to make reasonable adjustments to alleviate any substantial disadvantage related to disability in a party's ability to participate in proceedings.  b. Where a disability is declared and adjustments to the Tribunal's procedures are requested in the ET1 form, there is no automatic entitlement for those adjustments to be made. Whether or not the adjustments are made will be a matter of case management for the Tribunal to determine having regard to all relevant factors (including, where applicable, any information provided by or requested from a party) and giving effect to the overriding objective.  c. The Tribunal may consider whether to make a case management order setting out reasonable adjustments either on its own initiative or in response to an application made by a party.  d. If an application is made for reasonable adjustments, the Tribunal may deal with such an application in writing, or order that it be dealt with at a preliminary or final hearing: see Rule 30 of the ET Rules.  e. Where the adjustment sought is for permission for a party to record proceedings or parts thereof because of a disability-related inability to take contemporaneous notes or follow proceedings, the Tribunal may take account of the following matters, which are not exhaustive, in determining whether to grant permission:  i. The extent of the inability and any medical or other evidence in support;  ii. Whether the disadvantage in question can be alleviated by other means, such as assistance from another person, the provision of additional time or additional breaks in proceedings;  iii. The extent to which the recording of proceedings will alleviate the disadvantage in question;  iv. The risk that the recording will be used for prohibited purposes, such as to publish recorded material, or extracts therefrom;  v. The views of the other party or parties involved, and, in particular, whether the knowledge that a recording is being made by one party would worry or distract witnesses;  vi. Whether there should be any specific directions or limitations as to the use to which any recorded material may be put;  vii. The means of recording and whether this is likely to cause unreasonable disruption or delay to proceedings.  f. Where an adjustment is made to permit the recording of proceedings, parties ought to be reminded of the express prohibition under s.9(1)(b) of the 1981 Act on publishing such recording or playing it in the hearing of the public or any section of the public. This prohibition is likely to extend to any upload of the recording (or part thereof) on to any publicly accessible website or social media or any other information sharing platform."  Comment  Given the facts of the case, that there was evidence from a psychotherapist support the application, the application was not opposed by the Respondent, the Claimant was a litigant in person, the PH in question was to last 3 days, and the Claimant had previously been given permission to record hearings with no concerns over his use of those recordings, the outcome of the case is hardly surprising.  Considering the frequency with which disabled Claimants, or witnesses more generally, come before the ET, it is surprising how regularly reasonable adjustments are not considered at case management stage. When adjustments are considered and ordered, they are often conservative in nature. One reason for this conservatism may be an over-reliance on expecting Claimants to identify the adjustments they need, and the corresponding obvious difficulty for Claimants, not familiar with the ET process, to imagine what measures may alleviate disadvantages.  It would be short-sighted for a Respondent representative, seeing no reasonable adjustments requested by a disabled Claimant, to fail to raise the matter. Of course primary duties are to the Tribunal, and Respondents must always bear in mind the Overriding Objective, and as such it would be sensible to always raise the matter of adjustments proactively at case management stage. In most circumstances, it is far better for a Respondent to have an effective final hearing with adjustments, albeit perhaps slightly longer, than a disrupted hearing, or worse, an appeal.  Representatives will find useful guidance on reasonable adjustments in the context of vulnerable parties and witnesses in the <a href="https://www.judiciary.uk/wp-content/uploads/2013/08/ET-Presidential-Guidance-on-Vulnerable-Parties-and-Witnesses-22-April-2020.pdf">Presidential Guidance</a>. The Presidential Guidance refers to <a href="https://www.theadvocatesgateway.org/toolkits-1-1-1">The Advocate’s Gateway Toolkits</a> which cover a range of topics including cross examining witnesses with autism, dyslexia, ADHD, and deaf witnesses. For those representing Claimants with disabilities, the toolkits may be a helpful prompt to inform requests for meaningful reasonable adjustments.

REPLAY: Remedy Arguments and Calculations | 22 February 2024

<iframe width="560" height="315" src="https://www.youtube.com/embed/ASNJ2JMpLlU" title="YouTube video player" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen=""></iframe>   Parklane Plowden's 'Law with Lunch' webinars bring you the latest law updates.  Employment specialists <a href="https://www.parklaneplowden.co.uk/our-barristers/sarah-brewis/">Sarah Brewis</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/bethan-davies/">Bethan Davies</a> discuss remedy arguments and calculations.  Click on the above video to watch the webinar recording.

20 March 2024 | Employment Grandstand Seminar, Newcastle

Successful Litigation for Employment Practitioners: Practical Guidance and Useful Tips  Parklane Plowden Chambers would be delighted if you would join our employment team specialists on the 20th March 2024 for an afternoon of talks giving practical guidance and useful tips on running a successful employment tribunal litigation.  Location: <a href="https://www.bing.com/maps?mepi=101%7EDirections%7EUnknown%7EDirection_Button&ty=0&rtp=pos.54.97492980957031_-1.6094900369644165__Laing+Art+Gallery__e_%7E&mode=d&v=2&sV=1&cp=54.974913%7E-1.609465&lvl=14.5">Laing Art Gallery</a> New Bridge Street Newcastle Upon Tyne NE1 8AG  Time: 12:00 - 16:30  We are offering an early bird price of £50pp when registering to this event until the 26 February 2024. Tickets will be £75pp after this date.   Programme  12:00 - 12:55 | Lunch and Refreshments  12:55 - 13:00 | Welcome  13:00 - 13:30 | <a href="https://www.parklaneplowden.co.uk/our-barristers/andrew-sugarman/">Andrew Sugarman</a> - How to win in the Employment Tribunal: top 10 tips  13:30 - 14:00 | <a href="https://www.parklaneplowden.co.uk/our-barristers/claire-millns/">Claire Millns</a> - Mastering the virtual maze: a guide to efficiently handling employment tribunal claims via the online portal  14:00 - 14:30 | <a href="https://www.parklaneplowden.co.uk/our-barristers/robert-dunn/">Robert Dunn </a>& <a href="https://www.parklaneplowden.co.uk/our-barristers/robert-allen-pupil/">Robert Allen</a> - Case choreography and preliminary pizzazz: tips on navigating a CMPH  14:30 - 14:45 | Break  14:45 - 15:15 | <a href="https://www.parklaneplowden.co.uk/our-barristers/bryony-clayton/">Bryony Clayton</a> - The limits of open justice: anonymity and privacy issues in the tribunal  15:15 - 15:45 | <a href="https://www.parklaneplowden.co.uk/our-barristers/nicola-twine/">Nicola Twine</a> - Striking the balance: when to apply (and when not to), strike out and deposit orders  15:45 - 16:15 | <a href="https://www.parklaneplowden.co.uk/our-barristers/bethan-davies/">Bethan Davies</a> - It’s all in the words: maximising your witness statements  16:15 - 16:30 | Questions and closing remarks   Lunch and refreshments will be served from 12pm with speakers starting at 13:00 until 16:30. Guests will then be welcome to join us in Chambers at Portland House for drinks.  If you are interested in attending please <a href="https://lexlinks.parklaneplowden.co.uk/doForm.aspx?a=0xF15D4A97E0E04123&d=0x49EB4C9596DBE1A5^0xBDC0B87423493533|0x40F3E49C83A12815^0xAF1BA1DD83354AE1|0xF1B146662D144B75^0x8A1CDD2DB76555E3|0x9CB58EF48012E032^0x75E2A344A6368118|0xA14B30AADF25AF0D^0x4538EA01547C6D9520542FC6B6F63C93|0x43D48F22BB6859DF^0x75E2A344A6368118|0xD52134AC788FF0FE^0xAF1BA1DD83354AE1|">sign up here</a>.

Bathgate v Technip [2023] CSIH: Broadening the scope of Qualifying Settlement Agreements

As all employment lawyers know, in order to protect them from being taken advantage of by unscrupulous employers, employees cannot ordinarily contract out of their employment rights. There are only two exceptions.  They can do so in a contract of settlement made with the assistance of ACAS, known as a ‘COT3’, or they can do so in ‘qualifying settlement agreement’, but not otherwise.  I recently came across the notes for a talk I gave back in 2006 in which I confidently stated that one of the differences between a COT3 and a qualifying settlement agreement (or a compromise agreement as they were then called), was that a COT3 could compromise claims arising out of future conduct whereas a qualifying settlement agreement could not.  Following the recent Court of Session judgment in Bathgate v Technip [2023] CSIH 48, however, it appears that my confidence was misplaced.  Legal Background  Since at least the House of Lords decision in BCCI v Ali [2001] ICR 337,it has been clear that parties can use a COT3 to compromise claims that have not even come into existence, although as Lord Bingham put it ‘If the parties had sought to achieve so extravagant a result they should in my opinion have used language which left no room for doubt’. That is because there is nothing to stop parties at common law from contracting out of future rights; and in order to fall into the ‘COT3’ exception, the only stipulation is that the agreement is ‘made with the assistance of ACAS’. In other words, any otherwise contractually enforceable agreement made with the assistance of ACAS will work; a point well illustrated in the context of post-employment victimisation in Arvunescu v Quick Release [2022] EWCA Civ 1600.  It is slightly different with qualifying settlement agreements. To come within that exception there are a number of hoops that have to cleared, one of which is that the agreement must ‘relate to the particular complaint’. It might be thought that for an agreement to relate to ‘the particular complaint’ then the particular complaint must be capable of being in existence at the time the agreement is signed. That certainly was the view of the EAT in Lunt v Merseyside TEC Ltd [1999] ICR 17, when it said:  'A compromise agreement cannot, therefore, seek to exclude potential complaints that have not yet arisen on the off-chance that they might be raised; it cannot, in other words, be used to sign away all the employee's tribunal rights, as can be done in the case of a negotiated settlement drawn up with the assistance of a conciliation officer.'  That also seems to have been the intention behind the statutory provisions, given the comments of Viscount Ullswater when he introduced the relevant statutory provisions in the House of Lords:  'We are proposing that these procedures should only be available in the context of an agreement which settles a particular complaint that has already arisen between the parties to that complaint.'  That too was Lord Summers’s view when Bathgate was in the Scottish EAT. Drawing from the judgments of Mummery and Smith LJJ in University of East London v Hinton [2005] ICR 1260, that the broad purpose behind the legislation was to protect employees from relinquishing their rights; he concluded that the requirement that a settlement agreement ‘relates to the particular complaint’ could never be met in relation to a cause of action which had not emerged at the time of the agreement.  The Judgment of the Court of Session  Needless to say, the Court of Session came to the opposite conclusion. It reasoned that if Parliament had intended to lay down rules limiting parties’ freedom of contract, it would have expressed them in clear and unequivocal terms; and it had not done so. In its view, all that the words ‘relate to the particular complaint’ required was that the complaint being made was covered by the terms of the contract. It could see no justification for putting a temporal limit on what could be compromised by a settlement agreement, when none existed for a COT3. On a natural reading of the settlement agreement signed by Mr Bathgate, future claims for age discrimination were covered. Accordingly his age discrimination claim, which arose out of conduct which post-dated that agreement, had been validly compromised even before the discriminatory conduct had occurred.  Comment  With respect to the Court of Session, its reasons do not seem to me to be entirely convincing. Firstly, it is abundantly clear that Parliament was laying down rules to limit parties’ freedom to contract. It does that in terms at section 144(1) of the Equality Act 2010. The section the Court was interpreting is an exception to that general prohibition, it is not itself a limitation to the right to contract.  Secondly, on one reading of the Court of Session analysis, the statutory requirement for the agreement to ‘relate to the particular complaint’ is entirely superfluous. If the agreement does not ‘relate to the particular complaint’ in the sense used by the Court of Session, then as a matter of contract it will not compromise the complaint. Surely Parliament intended something more by those words than a bland restatement of the obvious. Indeed, I do wonder whether the ubiquitous list of UK employment rights (which Smith LJ had warned against in Hinton) is really quite what Parliament had in mind either.  Thirdly, and perhaps most compellingly, on the Court of Session analysis, the central purpose of the prohibition on contracting out would seem to be undermined. On its analysis, there is nothing to prevent an unscrupulous employer from asking an employee (after advice from an insured lawyer and presumably some form of payment) to sign away their employment rights pre-emptively during the course of their employment. Surely it is that evil that the ‘particular complaint’ requirement was designed to prevent. By definition, ACAS will not become involved until a dispute has arisen, so there is less need for a similar protection in respect of a COT3. But that is not the case with legal advisors. Without some sort of safeguard, they could be brought in to give advice on the waiver of employment rights, even as the ink is drying on the employment contract.  The Court of Session is not technically binding in England and Wales, but its decisions are highly persuasive; and unless and until the issue is revisited by the Court of Appeal, it is likely to be followed. In the meantime, and out of an abundance of caution, I will still be advising employers to utilise a COT3 if they wish to be confident of compromising any claims arising out of future conduct.  <a href="https://www.parklaneplowden.co.uk/barristers/dominic-bayne">Dominic Bayne</a> acted for Mr Bathgate before the EAT and at first instance. He is joint head of <a href="https://www.parklaneplowden.co.uk/expertise/employment">PLP’s employment team</a>, and is recognised by the directories as one of the leading employment barristers on the North Eastern Circuit.

25 January 2024 | Employment Law with Lunch

The next webinar in our ‘Law with Lunch’ series of bitesize, lunchtime talks covering legal issues of the moment is not to be missed.  Thursday 25 January 2024 | 12:30 - 13:30  Join employment specialists <a href="https://www.parklaneplowden.co.uk/our-barristers/dominic-bayne/">Dominic Bayne</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/andrew-webster/">Andrew Webster</a> as they discuss a practical guide to costs in the employment tribunal.  The talk will cover:  <ul> <li>When to apply for costs</li>  <li>How to apply for costs</li>  <li>The approach of the tribunal</li>  <li>Assessing the amount of costs</li> </ul>  Please register via events@parklaneplowden.co.uk

Holiday Pay: Where are we now?

Introduction  In 2022, <a href="https://www.bailii.org/uk/cases/UKSC/2022/21.html">Harpur Trust v Brazel [2022] UKSC 21</a> brought unwelcome news for employers who had become accustomed to applying a pro-rata percentage to workers’ annual leave entitlement.  More recently, in <a href="https://www.supremecourt.uk/cases/docs/uksc-2019-0204-judgment.pdf">Chief Constable of Police Service of Northern Ireland and Another v Agnew and Others [2023] UKSC 33</a>, the Supreme Court has confirmed that the different types of leave (see below) all form part of a composite ‘pot’.  In November 2023, the Government has produced draft regulations aimed at simplifying matters (<a href="https://www.legislation.gov.uk/ukdsi/2023/9780348253269/contents">The Employment Rights (Amendment, Revocation and Transitional Provisions) Regulations 2023</a>) (“the Draft Regulations”).  So where exactly does this leave us?  Calculating Holiday Pay for Part-Year Workers  Harper Trust v Brazel was a blow for many employers with workers who did not work the full number of weeks in the year.  Employers like Harper Trust have been calculating 12.07% of the total number of hours worked, then multiplying this by the hourly rate.  That, however, failed to take account of accumulation of leave during weeks that were not worked.  In a nutshell, the Supreme Court held that this ‘Proportion Method’ was not compatible with the requirements of the ERA 1996.  Accordingly, it held that the ‘Calendar Method’ is appropriate: working out the total number of hours worked over the reference period, excluding any full weeks where no work was done.  The Government has now proposed legislation in response to this judgment. The Draft Regulations are expected to come into force on 1 January 2024 but, in respect of holiday, will only affect holiday years beginning on or after 1 April 2024. The Draft Regulations permit employers to calculate accrual as 12.07% of hours worked during the pay period (new Regulation 15B of the WTR.  Agnew  The focus of the Agnew judgment was, not surprisingly, on whether a break of three months between holiday pay underpayments prevents an underpayment being part of a ‘series’ (it does not).  However, towards the end of the judgment the Supreme Court turned its attention to the different types of annual leave and whether leave must be taken in a particular sequence.  As is widely known, under Regulation 13 of the WTR, workers are entitled to 4 weeks’ annual leave, derived from the minimum leave requirement set out in the Working Time Directive [2003/88/EC] (“the Directive”).  The further 1.6 weeks’ entitlement is set out in Regulation 13A of the WTR.  The distinction between the different entitlements is not academic.  It makes a difference on carry over of leave.  One can also, for example, consider what constitutes a week’s pay under Regulation 16 of the WTR.  According to <a href="https://www.bailii.org/ew/cases/EWCA/Civ/2004/359.html">Bamsey and Others v Albon Engineering and Manufacturing PLC [2004] EWCA Civ 359</a>, section 234 of the ERA 1996 is applicable and excluding voluntary overtime was lawful.  However the Court of Appeal has held that, so far as EU law (i.e. the Directive) is concerned, ‘normal pay’ does not require payments to be compulsory under the contract (<a href="https://www.bailii.org/ew/cases/EWCA/Civ/2019/947.html">East of England Ambulance Service NHS Trust v Neil Flowers and others [2019] EWCA Civ 947</a>).  Caselaw therefore suggests that for leave derived from the Directive (Regulation 13), overtime can be taken into account if regular and/or recurring, whereas Regulation 13A requires it to be contractually guaranteed by the employer and compulsory for the employee.  The approach in Flowers is reflected in the Draft Regulations. In a new Regulation 16(3ZA), in respect of entitlement under Regulations 13 of the WTR and (the new) Regulation 15B, a week’s pay includes (amongst other things) overtime payments which have been paid regularly in the 52 weeks preceding the calculation date.   Is Regulation 13 and 13A leave to be taken in sequence or considered as a ‘composite pot’? According to Agnew, “a worker is entitled to enjoy leave from whichever legal source it may be derived and that there is no requirement as a matter of law that the leave derived from different sources must be taken in a particular order”.  Furthermore, “workers are likely to look at their annual leave entitlement as a composite whole”.  This does leave employers with a potential headache.  They could simply operate a ‘composite pot’ in its simplest form: treating all leave the same, no matter the source.  This, however, would require them to afford workers with the more generous aspects across the board (see calculation of a week’s pay, above), regardless of the source of the leave.  Alternatively, employers could consider treating the different aspects as they have been, but combining the leave itself into a pot and dividing it between the different types of leave each time that entitlement is exercised.  That, however, might be an administrative nightmare.  The solution may lie in paragraph 137 of the judgment: “if and in so far as it is not practicable to distinguish between different types of leave then all the leave to which the worker is entitled must form part of a single, composite pot…” [emphasis added].  When does it become practicable to distinguish? That remains to be seen, and the judgment offers no guidance.  Clear contractual clauses may be sufficient, setting out the entitlement, its source, how it is to be treated, and in what order it must be taken.  It seems that firm contractual direction is going to be the minimum required by Tribunal’s following Agnew.   And in Other News  The draft Regulations permit rolled up holiday for irregular hours or part-year workers, if holiday pay is calculated at 12.07% of all pay for work done, if the additional 12.07% is paid at the same time as pay for the work done, and if the holiday pay is itemised separately (new Regulation 16A).

REPLAY: Protection of Trans People within the Workplace | 30 October 2023

<iframe width="560" height="315" src="https://www.youtube.com/embed/G34UQou_lPI" title="YouTube video player" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen=""></iframe>   Parklane Plowden's 'Law with Lunch' webinars bring you the latest law updates.  Employment specialists May Martin and Sophie Firth discuss how the Equality Act protection trans people from discrimination within the workplace.  Click on the above video to watch the webinar recording.

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