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Employment law support provided exclusively by specialist employment lawyers
Liverpool office
January 2017 Review
Welcome to our rather belated review of employment law news from the first month of 2017.

Katharine Kelly reports on the annual increases to the National Minimum Wage which, of course, now incorporate the National Living Wage.

I have chosen to return to the topic of the publication of employment tribunal judgments online as a matter of routine. The service is now live and certainly provides easy opportunities to monitor judgments for news about particular businesses and claims. I've also reported on a case which considers whether negligence by omission can amount to gross misconduct, sufficient to warrant summary dismissal.

The case which might turn out to be the most significant in the long run, because it might apply to 14% of the workforce, is Taylor v Ladbrokes Betting Limited, which considers whether type 2 diabetes can be recognised as a protected disability for the purposes of the Equality Act 2010, thereby including a requirement to make reasonable adjustments.

Next month's newsletter will include posts about the Government's review of tribunal fees as well as the widely reported decision of the Court of Appeal involving Pimlico Plumbers and the extension of workers' rights in the new "gig economy".

Finally, I'm very pleased to report that today, 13 February, the partnership of Canter Levin & Berg, which was established in 1947, incorporated and transferred to Canter Levin & Berg Limited. Who says that lawyers don't move with the times? We continue to provide the same services from the same offices with the same people and look forward to doing so for many years to come.

Kind regards,

Martin Malone
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We are offering you the opportunity of an on-site audit of your employment documents and procedures from one of our experienced employment lawyers completely free of charge and with no obligation. Who says that lawyers always cost you money? We will conduct a detailed check to ensure that your employment procedures are fully up to date and, if they are not, we will let you know what needs to be dealt with. Surely it's worthwhile, if for nothing else other than the peace of mind in knowing that an independent expert review has been carried out. If you would like to make an appointment please contact Katharine Kelly (0151 239 1079 / katharinekelly@canter-law.co.uk).
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If you would like hard copies of the brochure for you and your colleagues please email me at martinmalone@canter-law.co.uk with your name and address and I will be pleased to send them to you.
This month's news
National Minimum Wage (Amendment) Regulations 2017
by Katharine Kelly
Following on from my post in October 2016 which detailed the increase to the National Minimum Wage amongst other key Employment Law Changes, the draft National Minimum Wage (Amendment) Regulations have now been published and will come into force from 1st April 2017. In brief, the changes are as follows:

  • The National Living Wage for 25-year-olds and over will increase by 30p from £7.20 to £7.50 per hour.
  • The adult rate (21-24) will increase to £7.05 from £6.95 per hour.
  • The Youth Development rate (this affects 18-20-year-olds) will increase from £5.55 to £5.60 per hour.


obese man  
Can type 2 diabetes amount to a protected disability?
by Martin Malone
This is the question that was asked in the case of Taylor v Ladbrokes Betting and Gaming Limited, considered by his Honour Judge Hand QC in the Employment Appeal Tribunal.

Type 2 diabetes has been described as "the fastest growing health threat of our times and an urgent public health issue". According to the latest statistics (November 2016) some 3.6 million people in the UK have been diagnosed as having diabetes and it is estimated that a further one million have the condition but have not yet been diagnosed. That equates to 14% of the working population. The question is therefore of considerable importance to employers, bearing in mind the possibility of claims and compensation for discrimination and the duty to make reasonable adjustments.

Mr Taylor was dismissed from his employment in November 2013 in the grounds of "incapacity or misconduct". He submitted claims for unfair dismissal and unlawful disability discrimination, the latter covering the period from November 2012 to November 2013.

As most readers will be aware, according to the Equality Act 2010 a person has a disability if he or she has a physical or mental impairment which "has a substantial and long-term adverse effect on [that person's] ability to carry out normal day-to-day activities". Disability can also be established in cases where there is not a substantial adverse effect but the condition is progressive.

At the employment tribunal hearing Employment Judge Gaskell had no difficulty in accepting that type 2 diabetes involves an inevitably long-term effect. However, he was concerned about whether or not it had a substantial effect on the individual. It was noted that the condition was controlled by medication, principally intended to prevent progression to type 1 diabetes. The medical evidence also indicated that the condition could be controlled by choice of lifestyle, diet and exercise.

On appeal Judge Hand considered in particular the progressive nature of the disease


Church of England  
Online tribunal decisions are here
by Martin Malone
Last month I wrote about the impending online publication of all new employment tribunal decisions. In particular I highlighted the importance of this development for employers, notably SMEs, who might find that they have details of their businesses and procedures exposed to an extent not seen before. Appeal judgments have been available for years but this is the first time that first instance employment tribunal judgments have been made easily accessible by the general public.

The system is now live at www.gov.uk/employment-tribunal-decisions. So what are the first impressions? Well, it's easy to use and, as I expected, there is a powerful search facility. A search of "Liverpool" produced two employment tribunal decisions, one concerning claims of direct race discrimination and unfair dismissal against a local nursing home. The judgments are available as downloadable pdfs.

There is also an RSS feed. Those familiar with the technology will know that RSS is generally regarded as standing for "Really Simple Syndication". It is a way in which websites, blogs and even email clients such as Outlook can take automatic feeds from the website so that new content is automatically added whenever the page is updated. It is therefore a way in which the published tribunal decisions will reach a much wider audience than just those who happen to visit the government website.

It will also be possible for people to set up background searches, for example using Google Chrome. Google, like many other search engines and related tools, has a feature which allows people to set up alerts so that they are emailed whenever the relevant search term appears. Professional organisations have even more sophisticated tools for news gathering and this new resource will dramatically increase the range of content available to be accessed by them.

Perhaps the most interesting aspect of the website is that the content is not confined to new judgments. Available judgments date back as far as May 2015 so it must therefore be assumed that there is no time restriction on the judgments that may be published. Presumably judgments will be added over time so there remains a fair chance employment tribunal judgments from some time ago could suddenly appear. The real problem for employers is that, even if claims are successfully defended, the details in the judgments could expose operational details which they would much rather keep to themselves, such as security, HR procedures and financial information.


employment tribunal judgment  
Can gross negligence amount to gross misconduct?
by Martin Malone
When we advise SMEs that are contemplating steps which might lead to the termination of an employee's employment, one of the first steps is to establish one of the "potentially fair reasons" for dismissal. As most readers will know they are (1) conduct or misconduct, (2) capability or performance, (3) redundancy, (4) to avoid breaking the law (e.g. a driver losing their licence) and (5) the sweeping-up provision referred to as "some other substantial reason" (section 98(2) Employment Rights Act 1996). Capability or performance is normally broken down further to separate dismissals for incapacity (such as by reason of extended sickness absence) from poor performance (such as a failure to improve to an acceptable standard having been placed on a performance improvement plan).

Normally it is important to decide the basis on which to proceed from the outset since, otherwise, it is unlikely that it will be possible to show that a fair procedure was followed. However, there are exceptions and an example can be found in the decision of the Court of Appeal in Adesokan v Sainsbury's Supermarkets Limited.

Mr Adesokan was accused of undermining the Sainsbury's "Talkback Procedure". This is a long-established scheme whereby staff are encouraged to be engaged, motivated and to take pride in their work. It also provides a means of quantifying and assessing the level of engagement of staff. As part of the process participating staff are able to provide information in strict confidence concerning other staff and, particularly, line and senior managers. Results of participation in the process can affect performance progression as well as influencing decisions concerning, pay, bonuses and staff deployment. It would be fair to say that it is at the heart of Sainsbury's personnel procedures.

In June 2013 Mr Adesokan was working with a human resources partner, Mr Briner. Mr Briner sent what is described in the judgment as a "wholly inappropriate email" to the managers of five stores, which included the following:
"Here is our opportunity to show everyone how amazing we are at colleague engagement...

"I think you should focus predominantly on getting your most enthusiastic colleagues to fill in the survey; using your huddles and briefings as a way of engaging these people. Slightly different to other years 100% completion is less important as long as you have a completion rate above 60% you will get a well-rounded view of your store.

"So focus on the Colleague Engagement Index questions and less on 100% completion; let us know how it goes and please do ask us for any help and guidance!"
It appeared that the email was sent by both Mr Adesokan and Mr Briner but it turned out that it was sent only by Mr Briner and Mr Adesokan knew nothing about it. It was sent to coincide with the commencement of the Talkback Procedure. Judge Gore QC, sitting in the High Court, observed that the email offended the philosophy of the Procedure and was likely to compromise the results.

Mr Adesokan became aware on 24 June that the email had been sent. He asked Mr Briner to clarify what he meant with the store managers. He didn't do so and Mr Adesokan did not follow up his enquiry. By 1 July Mr Briner had still not responded to the request for clarification but Mr Adesokan did not report or seek to remedy the problem. In fact, he did nothing at all about it. However, someone else sent a copy of the email to Sainsbury's CEO on 13 September and he commenced an investigation. The upshot was that Mr Adesokan was summarily dismissed on 25 October. The reasons given were as follows:
"You were accountable for Talkback on your region, the key colleague satisfaction metric.

"You were aware that your HR partner had communicated to stores in a way that deliberately set out to manipulate the Talkback scores on your region.

"You failed to take any adequate steps to rectify this serious situation.

"Together, it is my belief that these demonstrate gross negligence on your part which is tantamount to Gross Misconduct."
Mr Adesokan commenced High Court proceedings for wrongful dismissal, on the basis that what he had done did not constitute gross misconduct.

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Designed from the ground up and provided only by Canter Levin & Berg Solicitors, we act for organisations nationwide. Our unique proposition has always been to deliver a prompt, efficient, and personal service to our subscribers through the provision of direct access to our specialist employment solicitors.

Our team is made up of qualified legal professionals who ensure that your business is being guided and supported by the latest and most efficient employment law resources at all times.
Katharine Kelly
Katharine Kelly
Katharine specialises in making sure that employers have all their employment law and HR requirements in place and up to date. Her pleasant manner is combined with her knowledge of employment law issues from a legal perspective so that she makes sure that employers have maximum protection and immediate support in connection with all problems which they may encounter on a day to day basis. Katharine is "on call" to deal with her clients in a way which her clients really appreciate. She will always take the next step to make sure that problems are solved quickly, efficiently and professionally.
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Sean Carty
Sean Carty
Sean joined the Employment Department of Canter Levin & Berg in December 2007. He has experience in all areas of employment law though specialises in Employment Tribunal litigation. Sean has particular expertise in dealing with complex discrimination matters, business reorganisation and redundancy, and unfair dismissal. He also deals with company disputes, breach of contract claims and injunctions, including claims relating to breaches of restrictive covenants.
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Martin Malone
Martin Malone
Martin is a director of Canter Levin & Berg Limited and its Chief Operating Officer. He splits his time between employment law and practice administration. He has over 25 years' experience dealing with a wide range of employment disputes.

He combines his experience in employment law with insolvency, intellectual property and company/partnership disputes.
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