Employment Archives - Page 2 of 7

Employment Law Update: Unreasonable Failure and Fire and Rehire Penalties

Today, on 20 January 2025, the first of the 2025 employment law reforms are coming into force. Penalties have been tightened for fire and rehire where there has been an unreasonable failure to follow the statutory Code of Practice on Dismissal and Re-Engagement.  What is fire-and-rehire?  Most commonly, fire-and-rehire is where employers serve notice on staff to terminate their current contracts, then re-hire them immediately on new terms and conditions. Employers may need to use fire and rehire when making changes to the employment contract. They may try to agree a change to the contract with the employee first and the employee refuses. The employer would then use fire and rehire as a last resort to secure the changes made without having the employee’s agreement to vary the contract. It is a unilateral variation of employment contract. Notice is necessary for dismissal. Some employers treat fire-and-rehire as giving notice of the changes to the employment. However, unless there is an explicitly clear clause permitting fire and rehire, then the re-engagement under the new contract may create issues.  The main issue is potential unfair dismissal claims. The employee may refuse to be re-engaged on the new terms. Alternatively, the employee may accept re-engagement but claim unfair dismissal from their old contract, even if they are re-employed by the same employer – Hogg v Dover College [1990] ICR 39.  Other issues arise where 20 or more employees are involved in changes to their employment contracts without the employer consulting with trade unions or elected worker representatives. The employer will be in breach of s.188 TULRCA 1992 – GMB v Man Truck & Bus (UK) Ltd [2000] IRLR 636. A failure to comply with s.188 may require employers to make a protected award of 90 days’ pay to employees.  Implied terms that employers will not use fire-and-rehire may be found, depending on the facts of the case – USDAW v Tesco Stores Ltd [2024] UKSC 28. The implied term in USDAW v Tesco was that Tesco could not dismiss employees for the purpose of removing the right to retained pay. Retained pay was ‘an individual contractual entitlement’, agreed to be ‘permanent’, ‘for life’ and ‘guaranteed’. An injunction restrained Tesco from dismissing any Affected Employee for reasons related to the removal or diminution of retained pay, directly or indirectly. This was a significant consequence for Tesco, albeit on a specific set of circumstances.  What is the Code of Practice on Dismissal and Re-engagement?  It is a formal code which will be considered by the Tribunal, often in unfair dismissal claims. A breach of the code will be admissible in evidence and shall be considered by the Tribunal where it is relevant (S.207 TULRCA 1992, effect of failure to comply with Code).  The code has 2 main provisions on fire and rehire:  <ol class="wp-block-list"> <li>The tactic should only be used as a last resort</li>  <li>The procedural pre-requisites must be followed by employers first before using it.</li> </ol>  Employers should not threaten dismissal if that is not their intention, nor if they seek to coerce employees to sign new terms and conditions.  The necessary procedural requirements are to:  <ol class="wp-block-list"> <li>Consult for as long as reasonably possible</li>  <li>Contact ACAS at an early stage before raising a matter with employees</li>  <li>If employees don’t agree, consider feedback</li>  <li>Review changes to assess if necessary.</li> </ol>  The code can be found here: <a href="https://www.gov.uk/government/publications/dismissal-and-re-engagement-code-of-practice">https://www.gov.uk/government/publications/dismissal-and-re-engagement-code-of-practice</a>.     What are the new changes to the Code?  The Code came into force in July 2024, as a proposal from the former Conservative government. The new Labour government intend to outlaw fire-and-rehire.   The changes have been incited by <a href="https://www.legislation.gov.uk/uksi/2024/1272/contents/made">The Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment of Schedule A2) Order 2024</a>.  Article 2 of the Order includes section 189 (failure to follow consultation requirements) to the list of tribunal jurisdictions to which section 207A applies.  The new provisions do not outlaw the tactic but have made penalties harsher with a 25% uplift on protective awards where s.188 applies. The intention is to encourage dialogue between employers and employees to explore options before unilateral dismissal and re-hiring on new terms.  Penalties will be issued for unreasonable failure to follow the statutory Code of Practice on Dismissal and Re-Engagement.  What is unreasonable failure?  The code is engaged as soon as the prospect of dismissal and re-engagement is raised. There is no distinct definition within the code, but it is likely to include the following actions:  <ul class="wp-block-list"> <li>Not engaging in open dialogue with employees or representatives</li>  <li>Not doing so in ample time</li>  <li>Not doing so in a transparent way</li>  <li>Not exploring alternatives before fire-and-rehire</li>  <li>Failure to follow collective consultation requirements under s.189 TULR(C)A 1992</li>  <li>No consideration to the number of employees concerned to determine collective redundancy obligations apply when seeking to change terms and conditions</li> </ul>  The Tribunal will assess ‘reasonableness’ by balancing the employee’s interests against the actions of the employer. It will likely be assessed in context.    However, it is not entirely clear what will constitute an unreasonable failure and it may cause potential problems for employees or employers attempting to prove a failure to comply with the code.   What are the penalties?  For an employer, the employment tribunal may increase any award it makes to the employee by no more than 25% where:  <ul class="wp-block-list"> <li>Section 207A of TULRCA applies</li>  <li>There is a relevant code of practice that applies</li>  <li>The employer has unreasonably failed to comply with it</li> </ul>  When only firing and rehiring one person, employees will only get the 25% increase. However, where more than 20 people are affected and the employer does not consult properly, the 90-day protective award may be ordered.  Employers may be ordered to pay the employee a protective award of up to 90 days’ gross pay and up to 25% of the same per affected employee where:  <ul class="wp-block-list"> <li>Section 188 of TULRCA applies</li>  <li>There is a relevant code of practice that applies</li>  <li>The employer has unreasonably failed to comply with it</li> </ul>  The tribunal has discretion to increase the protective award.  For an employee, their award will be reduced by up to 25% if the employee or their representatives have unreasonably failed to follow the Code of Practice.  Example:  Employee’s gross daily rate of pay is £100.  Employer breaches Code of Practice and s.188 applies, so the employee’s compensation will be £9000 (£100 x 90 days), as well as 25% of that £9000.  Outlook  While the lack of clarification brings a degree of uncertainty, this is the first change in employment law in 2025. The changes mark a turning point – employees are receiving greater protection.    This Order has a significant interplay with other government changes. The Employment Rights Bill proposes to bring more redundancy situations within the ambit of collective consultation by removing the concept of ‘establishment’. The proposed number of redundancies must be calculated on business wide level and not site-by-site if more than 20 redundancies are proposed. The protective awards may also be increased from 90 to 180 days, or higher.  Therefore, with this being the first of the 2025 employment law reforms from the Labour government, employers should take caution in their actions, check they are done in accordance with legislation, statutory codes of conducts and regulations and note the change of direction that legislation appears to be taking to protect employees’ interests.

Interim Relief: How Employers Can Reclaim the Narrative

<a href="https://www.parklaneplowden.co.uk/our-barristers/robert-allen/" target="_blank" rel="noreferrer noopener">Robert Allen</a>, employment and commercial barrister, considers the mechanism of interim relief, why dismissed employees should proceed with caution, and how employers can turn an application against them into a strategic asset.  Interim relief (IR) gives the tribunal the power to compel the employer to reinstate, re-engage or continue to pay a dismissed employee pending the outcome of a final hearing. Given the current pressures within the tribunal system and growing backlog, this interlocutory remedy has the potential to become increasingly valuable to claimants.  The statutory test  IR is only available to employees in limited circumstances. The right to apply is provided for by section 128 Employment Rights Act (ERA) 1996:  ‘An employee who presents a complaint to an employment tribunal that he has been unfairly dismissed and –  That the reason (or if more than one the principal reason) for the dismissal is one of those specified in –  Section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A or  Paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992,…  May apply to the tribunal for interim relief.’  For an employer, having (rightly or wrongly) decided to dismiss an employee, being required to maintain the terms of a contract for however long it takes for litigation to run its course<a id="_ftnref1" href="#_ftn1">[1]</a> is, on any measure, draconian. Consequently, the IR bar is set purposefully high. That is not altogether obvious, however. On the face of the wording of the statute, one may be deceived. Section 129 ERA 1996 provides:  ‘This section applies where, on hearing an employee’s application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find the reason (or if more than one the principal reason) for the dismissal to be one of those specified…’  (Emphasis added)  My ‘likely’ is not necessarily as likely as yours. The statute offers little by way of assistance.  Guidance from caselaw  Caselaw has – to a degree – clarified matters. The word ‘likely’ is to be construed as meaning the employee has a ‘pretty good chance’ of success at the final hearing.<a id="_ftnref2" href="#_ftn2">[2]</a> But what does a ‘pretty good chance’ mean? According to Mr Justice Underhill, a ‘pretty good chance’ ostensibly means ‘a significantly higher degree of likelihood than just more likely than not.’<a id="_ftnref3" href="#_ftn3">[3]</a> The then President went on to state: ‘in this context ‘likely’ does not mean simply ‘more likely than not’ – that is at least 51% - but connotes a significantly higher degree of likelihood.’  In short, it’s no easy task to prove.  Application  By illustration, take one of the more common routes to IR: an automatic unfair dismissal by operation of section 103A ERA 1996. In such a case, IR can only be ordered where the tribunal is satisfied that it is likely on hearing the evidence at a final hearing that the reason (or principal reason) for the dismissal was that the employee made a protected disclosure. It falls to the applicant to establish the necessary level of likelihood in relation to each and every distinct element of the claim.<a id="_ftnref4" href="#_ftn4">[4]</a>  So, to succeed, the applicant must establish that it is likely that the tribunal at a final hearing would find that:  <ol class="wp-block-list"> <li>they made a disclosure;</li>  <li>they believed that the disclosure tended to show one or more of the matters listed in section 43B(1) ERA 1996;</li>  <li>that belief was reasonable;</li>  <li>the disclosure was made in the public interest;</li>  <li>the disclosure was the sole or principal cause of dismissal;</li> </ol>  As for that final limb, in the absence of qualifying service on the part of the employee, it falls to them to prove the causative link to dismissal.<a id="_ftnref5" href="#_ftn5">[5]</a> Only employees with two or more years of continuous service shift the burden to their employer to show they were not dismissed with the sole or principal reason being the disclosure.  Procedure  Pre-hearing  IR applications are exempt from the usual requirement<a id="_ftnref6" href="#_ftn6">[6]</a> to conciliate before passing go. Time limits are tight: claimants must apply within seven days of the date of dismissal and there is no latitude for an extension.<a id="_ftnref7" href="#_ftn7">[7]</a> A hearing will be listed promptly thereafter. The issue shall be determined ‘as soon as is practicable’.<a id="_ftnref8" href="#_ftn8">[8]</a> Employers will have at least seven days’ notice of a hearing, but seldom more.<a id="_ftnref9" href="#_ftn9">[9]</a>  Though an IR hearing will be a matter of days away by the time an employer is put on notice, parties should nonetheless attempt to cooperate to agree bundle contents. The bundle should be restricted to what is necessary; less is more. A bundle running to hundreds of pages is rarely indicative of a successful IR application. Parties can, and should, make appropriate use of witness statements. And the value of a concise skeleton argument drawing it all together cannot be underestimated.  At the hearing  Even when statements have been provided, expect the judge to hear submissions alone. Rule 94<a id="_ftnref10" href="#_ftn10">[10]</a> provides that the tribunal ‘must not hear oral evidence unless it directs otherwise’. Any request to hear oral evidence would have to be founded on an exceptional reason. If you are seeking the tribunal to hear evidence, be ready to justify why this irregular step is necessary in the circumstances. Is there a point that can only be made orally?  If so, why has it not been set out in a witness statement? If there is a point of challenge, why is it just to challenge it now? If you are resisting such a request made by the other side, emphasise that the task at an IR hearing is to take each party’s case at its evidential height. Moreover, point to the overriding objective<a id="_ftnref11" href="#_ftn11">[11]</a> in light of the risk that hearing evidence at an interlocutory stage may well prejudice evidence at a final hearing.  Tactical considerations  Applying - eager enthusiasm may prove ephemeral  No claimant presents an ET1 without some initial level of confidence in the outcome. But when pursuing IR, such early confidence must be particularly well-placed. IR, for all it can subject the respondent to early pressure (and cost), has the potential to backfire.  First, there is no disclosure process. Not only do employees have to prove each element of the legal test to the required standard; they must do so based upon the documentation they have available to them at the time of applying. Whereas many cases can evolve based upon disclosure identifying key evidential vulnerabilities, IR will turn simply upon what the employee is able to point to from their own records, combined with anything the employer elects to cite for themselves (and the latter is unlikely to be helpful). Even taking the very first stage of a section 103A ERA 1996 dismissal - the employee will need to be ready to point to clear evidence of the precise circumstances of the disclosure they purport to have made. This can be far from straightforward, even with disclosure.  Second, whilst it may be tempting to put early pressure on the employer by making them face an IR application, it must be borne in mind that if IR is successfully resisted, it could be followed swiftly by an application on the employer’s part for costs.  Responding – turning an obstacle into an asset  Whilst facing an application for interim relief can seem daunting, requiring prompt tribunal attendance and early incurrence of costs, it can also present an opportunity for the respondent to make early headway in turning the momentum of the litigation in their favour.  The key to defeating IR applications is to properly apply the test. Limb by limb, submissions can be raised to demonstrate why the applicant does not come up to proof. The bar is high, and each limb presents its own evidential obstacles. In approaching this exercise, the respondent has the tactical benefit of using contemporaneous documents which favour their position, without having to disclose that which could be more damaging.  Where an IR application is successfully opposed, various opportunities present themselves. Principally, the employer has shifted the momentum in their favour. The IR hearing provides an initial forum for submissions explaining why the claim is not as strong as was believed by the other side. If a judge agrees with those submissions, confidence in the prospects of the claim is inevitably diminished – providing scope for settlement or withdrawal.  Having seen off IR, an employer can, in certain cases, use the hearing to go further. For one, the decision to pursue IR at all may have been unreasonable in the circumstances, such that the door is open to pursue costs. If, for instance, an employer is able to justify why the application fails to come up to proof by some margin on each and every aspect, the tribunal may be minded to make a costs order – particularly so if it is persuaded the tribunal’s time has been wasted in the process. Equally, provided IR was sought within a claim that had been presented following conciliation<a id="_ftnref12" href="#_ftn12">[12]</a>, there would be nothing stopping the respondent from applying for a deposit order at the hearing if the evidence tended to suggest its prospects were sufficiently low.  Summary  Dismissed employees should proceed with care when weighing up the benefits and risks of IR. After all, a prepared employer could utilise an application against them for their own benefit, demonstrating unforeseen weaknesses in the claim and pursuing costs for the tactical misstep. ‘As the ancient Romans said, festina lente.’<a id="_ftnref13" href="#_ftn13">[13]</a>  Robert was recently instructed to respond to an interim relief application. Having successfully resisted it; he went on to obtain a costs order in favour of his client. If you wish to instruct a member of our employment team to help navigate an interim relief application, please contact our clerking team.  <hr class="wp-block-separator has-alpha-channel-opacity"/>  <a href="#_ftnref1" id="_ftn1">[1]</a> A period which is increasingly measured in years rather than months  <a href="#_ftnref2" id="_ftn2">[2]</a> Taplin v. C Shippam [1978] IRLR 450 EAT  <a href="#_ftnref3" id="_ftn3">[3]</a> Ministry of Justice v. Sarfraz [2011] IRLR 562 EAT  <a id="_ftn4" href="#_ftnref4">[4]</a> Hancock v. Ter-Berg [2020] ICR 570  <a href="#_ftnref5" id="_ftn5">[5]</a> Smith v. Hayle Town Council [1978] ICR 996, CA  <a href="#_ftnref6" id="_ftn6">[6]</a> Under s.18A Employment Tribunals Act 1996  <a href="#_ftnref7" id="_ftn7">[7]</a> See s.128 (2) ERA 1996 and s.161 (2) Trade Union and Labour Relations (Consolidation) Act (TULR(C)A) 1992  <a href="#_ftnref8" id="_ftn8">[8]</a> S.128 (3) ERA 1996 and s.162 (1) TULR(C)A 1992  <a href="#_ftnref9" id="_ftn9">[9]</a> S.128 (4) and s.162 (2) ibid  <a href="#_ftnref10" id="_ftn10">[10]</a> Employment Tribunal Procedure Rules 2024, SI 2024/1155  <a href="#_ftnref11" id="_ftn11">[11]</a> Now found at Rule 3, ibid  <a href="#_ftnref12" id="_ftn12">[12]</a> This would be rare, given the narrow time limits and IR’s exemption from the early conciliation requirement  <a href="#_ftnref13" id="_ftn13">[13]</a> In the words of Iolanthe’s Lord Chancellor.

May Martin Successfully Defends Disability Discrimination Claim in the Employment Tribunal

May Martin has successfully defended Gateshead Health NHS Foundation Trust against a claim for disability discrimination following a five-day hearing in the Newcastle Employment Tribunal.  The Claimant brought claims of failure to make reasonable adjustments and s.15 ‘discrimination because of something arising’. The issues in the case centred around the Trust’s proposed return-to-work plan for the Claimant.  The Claimant, who had been away from her substantive post as a midwife for a significant period, contended that the proposed plan was punitive and put her at a disadvantage because it required her to rotate around various midwifery departments.  The Trust contended that the return-to-work plan was supportive and was reasonable given, amongst other things, the period of absence from clinical duties and the need for the Trust to assure itself of the Claimant’s competence and safety.  The Tribunal dismissed the Claimant’s claims. It found that the Claimant was not placed at a disadvantage by the proposed return-to-work plan. It also found that the Trust had acted proportionately in pursuance of its legitimate aims of (1) ensuring operational efficiency; (2) ensuring the needs of the service could be met; and (3) ensuring the health, safety, and welfare of its staff and patients.  May was instructed by Gabriella Jobling of Capsticks solicitors.

Parklane Plowden Chambers Appoints Senior Practice Director

Parklane Plowden Chambers has appointed Paul Clarke as senior practice director for civil and employment.  Paul's addition completes our new management structure. Paul is pictured above with (L) Senior Practice Director Stephen Render who heads our chancery and commercial and family teams, and (R) Martin Beanland, Head of Service & Finance Director.  Paul joins from Kings Chambers, where he clerked for almost 30 years and was most recently responsible for the employment, personal injury, clinical negligence, sports law and court of protection practices.  As senior practice director, Paul is working with the heads of the civil and employment teams alongside individual members to identify and implement business growth strategies. Paul’s wealth of experience will enhance the set’s clerking team and help them continue to deliver high levels of service and support to clients.  In its 2025 rankings, barristers’ directory, Chambers & Partners, placed Parklane Plowden as Band 1 across its chancery; clinical negligence; employment; and personal injury practice areas. Additionally, the set was ranked Band 2 for inquests and inquiries.  Commenting on his new appointment, Paul said: “I am delighted to be taking on this new role and joining such an established and prestigious set of chambers.  “We have an exceptional and well recognised team of barristers working closely with highly regarded and experienced support staff. This is a potent combination as we look to continue providing high level advice, advocacy and client care.  “The North Eastern circuit has a thriving legal market, and I am excited to play my part in PLP’s ongoing vision for growth.”  Formed in 2007 following the merger of Parklane Chambers in Leeds and Plowden Chambers in Newcastle, Parklane Plowden is home to 118 members.  Welcoming Paul to PLP, head of chambers, James Murphy, said: “Paul has extensive experience as a leading clerk, and we are pleased he is joining us as a senior practice director.  “At PLP, our civil and employment barristers have an established leading reputation and these practice areas represents a core growth opportunity for our set across the North Eastern Circuit.  “Having Paul on board will be instrumental in achieving this. We look forward to leveraging his leadership and management expertise to ensure high quality services are maintained for our clients as we go from strength to strength.”    Chambers & Partners also placed Parklane Plowden as Band 1, the highest ranking a chambers can achieve, across family and children and Band 2 for family: matrimonial finance.  The 2025 edition of legal directory The Legal 500 ranks Parklane Plowden Chambers as a tier one barristers’ set across five practice areas. These include chancery, probate and tax; clinical negligence; employment; family and children law and personal injury.  In addition, The Legal 500 recommends 79 of the set’s barristers across 11 practice areas.

Pupil Isabella Brunton shares her experience of her first week ‘on her feet’

Monday  My last day of first six. Whilst eagerly anticipating the week to come when my practising certificate kicked in the next day, I made my way to an employment noting brief for an internal ‘SOSR’ disciplinary hearing. As the only instructions pupils are permitted to accept in their first six, noting briefs are a great way to do your own work and meet new people. This instance even meant I was able to witness the meetings prior to a tribunal claim, which usually barristers would not be privy to, so it was an interesting experience.  Tuesday  The first papers in my name started to appear in my inbox. I got to work on employment merits assessments and infant quantum advice documents – having to get used to signing my papers with my own name! I got an early insight into the last minute nature of the profession when my case for the next day settled at 2pm and by 5pm I was receiving new instructions for 10am the next morning. The start of second six is a great time to attend outreach events, as I am experiencing junior practice myself for the first time. On Tuesday evening I joined my colleagues at a networking event for BPP at Newcastle University, where I spoke to a lot of ambitious aspiring barristers.  Wednesday  Following an early (and rainy) drive down to Middlesborough in the morning, I met my opponent and client in my first small claim RTA. On the papers I had not been optimistic about our prospects of defending the claim, but in cross-examination it became clear that there were inconsistencies in the claimant’s account, so I was pleased that the judge awarded a result of split liability. It was a nerve-racking but rewarding first case, and in the afternoon I went back to Chambers to switch my employment law brain on in advance of the next day.  Thursday  I spent the morning in our Leeds Chambers preparing for a mock employment tribunal run by Blacks Solicitors. Acting as counsel for the respondent two days into my second six in front of almost 100 professionals was a unique experience, but I thoroughly enjoyed cross-examining on the topical area of menopausal discrimination and luckily, Sophie Firth was a very fair judge.  Once again I took the opportunity to speak to aspiring barristers, this time at the BPP Leeds offices, where I sat on a panel together with three barristers from various Chambers, talking about life at the Bar. I enjoyed speaking to students about my experiences of the Bar course and pupillage applications.  Friday  The new age of virtual hearings meant that I was able to do my stage 3 telephone hearing from Chambers in the morning. I take great comfort in knowing my colleagues are only on the other side of the wall if I have any queries and thankfully, as my hearing was the first slot of the day, I was still left with plenty of time to work on papers and my cases for next week before enjoying a restful weekend.  I thoroughly enjoyed my first week ‘on my feet’, particularly beginning to develop my own style of cross-examination following six months of observing others. I look forward to building my practice and I am now receiving instructions in employment and civil matters. My pupil supervisors are Amy Rumble and Claire Millns.

Parklane Plowden Chambers ranked as a Band One barristers’ set across five practice areas in the Chambers & Partners 2025 rankings

Parklane Plowden Chambers has been ranked as a Band One set across five practice areas and a Band Two set across two practice areas in the Chambers & Partners 2025 rankings.  Chambers has been listed as Band One, the highest ranking a set can achieve, across the Chancery, Clinical Negligence, Employment, Family: Children and Personal Injury practice areas.  Parklane Plowden is the sole set to be ranked in Band One for both Clinical Negligence and Personal Injury on the North Eastern Circuit.  Additionally, the set has been ranked as a Band Two set for both Family: Matrimonial Finance and Inquests & Public Inquiries.  Individual members received 67 rankings in this year’s edition across: • Chancery • Clinical Negligence • Commercial Dispute Resolution • Employment • Family: Children • Family: Matrimonial Finance • Inquests & Public Inquiries • Personal Injury • Personal Injury: Industrial Disease • Professional Negligence • Real Estate Litigation

Isabella Brunton starts her second six and accepts instructions

Parklane Plowden is pleased to announce that Isabella Brunton has started her second six and is available to take instructions.  Isabella Brunton commenced her specialist civil law pupillage in April 2024 under the supervision of Claire Millns.  To instruct Isabella please contact: <a href="mailto:clerks@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">clerks@parklaneplowden.co.uk</a> or call us on 0113 228 5000.

Parklane Plowden Chambers ranked as a Top Tier barristers’ set across five practice areas in the Legal 500 2025 rankings

Parklane Plowden Chambers has been ranked as a Tier 1 set across five practice areas and a Tier 2 set across two practice areas in The Legal 500 2025 rankings.  Chambers has been listed as Tier 1, the highest ranking a set can achieve, across the chancery, probate and tax; clinical negligence; employment; family and children law and personal injury practice areas.  Parklane Plowden is also the only set to be ranked for both chancery, probate and tax and clinical negligence on the North Eastern circuit.  Additionally, the set has been ranked as Tier 2 for both inquests & inquiries and court of protection & community care.  Individual members received 83 rankings in this year’s edition across:  <ul class="wp-block-list"> <li>Court of Protection and Community Care</li>  <li>Chancery, Probate and Tax</li>  <li>Clinical Negligence</li>  <li>Commercial Litigation</li>  <li>Employment</li>  <li>Family: Children and Domestic Violence</li>  <li>Family: Divorce and Financial Remedy</li>  <li>Personal Injury</li>  <li>Property and Construction</li>  <li>Professional Negligence</li>  <li>Inquests and Inquiries</li> </ul>

Mind the Gaps: EAT Clarifies Constraints in Demonstrating a Continuing Course of Discriminatory Conduct

Worcestershire Health and Care NHS Trust v Angela Allen [2024] EAT 40  The Facts  The Claimant brought a large number of complaints of age and disability discrimination in the Employment Tribunal in January 2020 and March 2022. The Claimant was successful in a small number of those complaints at first instance, where the ET concluded that the dismissal was part of conduct extending over a period that was linked to age discrimination complaints.  Following an appeal and cross-appeal, the EAT (in part) was required to consider whether there was conduct extending over a period.  The Law  The time limits for claims of discrimination are provided by section 123 Equality Act 2010:  123 Time Limits  <ol class="wp-block-list"> <li>Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of- <ul class="wp-block-list"> <li>the period of three months starting with the date of the act to which the complaint relates, or</li>  <li>such other period as the employment tribunal thinks just and equitable.</li> </ul> </li>  <li>...</li>  <li>For the purposes of this section- <ul class="wp-block-list"> <li>conduct extending over a period is to be treated as done at the end of the period;</li> </ul> </li> </ol>  Mummery LJ held in Commissioner of Police of the Metropolis v Hendricks [2002] EWCA Civ 1686, [2003] I.C.R. 530 following prior legislation that:  52. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an extends over a period. They should not be treated as a complete and constricting statement of the indicia of “an act extending over a period”. I agree with the observation made by Sedley LJ, in his decision on the paper application for permission to appeal, that the appeal tribunal allowed itself to be side-tracked by focusing on whether a “policy” could be discerned. Instead, the focus should be on the substance of the complaint that the commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the service were treated less favourably. The question is whether that is “an act extending over a period” as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed.  The Findings  The EAT, presided over by His Honour Judge James Tayler, found that the Employment Tribunal erred in law by concluding that the complaints of discrimination that succeeded constituted conduct extending over a period.  HHJ Tayler rejected the Respondent’s submission that conduct extending over a period (s 123(3)) must as a matter of law all relate to the same protected characteristic. Although he did make it clear that this may be more difficult to establish. Similarly, he held that conduct extending over a period could involve a number of different types of prohibited conduct, such as a mixture of harassment and direct discrimination [13].  The EAT held that it was not enough that incidents were linked, because they all arose in the course of the implementation of a restructuring in the Respondent, and that later events would not have occurred but for the earlier events.  Reference was made to Hendricks, which held that for there to be conduct extending over a period, there must have been an ongoing situation or a continuing state of affairs that was discriminatory.  Following this, the EAT noted that there was a substantial gap between the events in the case, involving different types of prohibited conduct, different protected characteristics, and decisions by different people. Although this in itself did not preclude the possibility of there being conduct extending over a period, the ET would need to clearly identify what the continuing discriminatory conduct was. As this was not identified, the EAT substituted a finding that the complaints that succeeded did not form conduct extending over a period – remitting the decision of whether time should be extended on just and equitable grounds to the ET.  Comment  The judgment provides helpful updated guidance on when conduct may extend over a period under s 123(3) EqA.  It did accept that conduct need not be limited to the same protected characteristic or type of prohibited conduct – which could demonstrate a wider scope for establishing a continuing period in order to bring claims in time. However, the EAT explicitly acknowledged that this may be more difficult to establish.  Principally, the judgment confirmed that even where incidents are linked this is not sufficient to amount to an ‘ongoing situation or a continuing state of affairs’. This was particularly relevant where the incidents involved different people or were largely separated in time.  Tribunals have considerable discretion in determining what is required to establish a continuing discriminatory state of affairs, however, this EAT judgment usefully demonstrated that the scope for these arguments is limited.

Bryony Clayton Appointed Fee-Paid Judge of the First-Tier Tribunal

Chambers are delighted to announce that Bryony Clayton has been appointed as a Fee-paid Judge of the First-Tier Tribunal, assigned to the Health, Education and Social Care Chamber.  Chambers would like to congratulate Bryony on her new appointment.

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Employment Law Update: Unreasonable Failure and Fire and Rehire Penalties

Interim Relief: How Employers Can Reclaim the Narrative

May Martin Successfully Defends Disability Discrimination Claim in the Employment Tribunal

Parklane Plowden Chambers Appoints Senior Practice Director

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Isabella Brunton starts her second six and accepts instructions

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21 October 2025 | Navigating Financial Remedies: A Lunchtime Briefing

Leila Benyounes to speak at British Orthopaedic Association (BOA) Congress in Liverpool

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Parklane Plowden Chambers ranked as a Band One barristers’ set across five practice areas in the Chambers & Partners 2025 rankings