Hand Morgan & Owen Employment Bulletin – March 2018

Hand Morgan & Owen Employment Bulletin – March 2018



Time limits apply to the bringing of claims under employment legislation.  There are situations when for the calculation of a time limit time will not run.  One such situation is where an employee intends to bring a claim for discrimination the commencement of a disciplinary process gives rise to a “state of affairs” that continues until the end of the disciplinary process.  The practical point is that if an employee alleges discrimination based upon a disciplinary process his time for bringing that claim will not start to run until the end of the disciplinary process. (Hale v Brighton and Sussex University Hospitals NHS Trust).


The purpose of this note is not to describe the workings of auto enrolment but to alert employers to changes in the figures for the earnings trigger and qualifying earnings band which come into force on the 6 April 2018 as follows;

  • The current automatic enrolment and re-enrolment earnings trigger of £10,000 will not change for 2018/2019
  • The National Insurance contributions upper earnings limit increases to £46,350
  • The National Insurance contributions lower earnings limit remains at £6032


With effect from the 1 April 2018 the following increases will apply;

  • 25 plus – £7.83
  • 21 to 24 – £7.38
  • 18 to 20 – £5.90
  • Under 18 – £4.20


We have dealt with the concept of protected conversations in previous bulletins.  The general principle is that such conversations are protected from being put in as evidence to a Tribunal.  Basra v BGSS Limited in the Employment Appeal Tribunal, however, has highlighted a situation where a Tribunal will hear evidence of protected conversations.

That situation is where it is necessary to determine when the Employment Contract between the employee and employer came to an end.  The Employment Appeal Tribunal explained that if there is disagreement between the parties as to whether or not the Contract of Employment ended on a particular date the Employment Tribunal could not be in a position to determine what evidence should be excluded until that dispute is determined.  The Tribunal needed to decide the end date in order to then decide what discussions between the employer and employee were protected.


In a group action against Morrisons Supermarkets the Court had to decide if a serious breach instigated by a disenchanted employee could be laid at the door of the employer Morrisons under the principle of vicarious liability.

Morrisons IT Manager published data on 5,500 employees and did so with a view to harming Morrisons.

For Morrisons to be liable the Court had to decide whether the actions had been in the course of his employment (he had actually carried out the publication from his home computer).  The test was said to be whether the IT Manager’s wrongful conduct was closely connected to his authorised duties.   The Court decided that this test was met since the Manager held a position of trust and had processed the data as part of his job.  There was sufficient connection between his employment and his wrongful conduct.

Morrisons are appealing this decision.


With effect from the 6 April 2019 Itemised Pay Statements (pay slips) have to state the number of hours being paid where pay varies according to the time worked.  See The Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) Order 2018 for details.


In Chief Constable of Norfolk v Coffey the Employment Appeal Tribunal held that it is direct disability discrimination for a job applicant not to be taken on because the employer feared that an existing medical condition could escalate to a disability in the future.

The medical condition was a degree of hearing loss.

In its judgment the Employment Appeal Tribunal said “there would be a gap in the protection offered by equality law if an employer, wrongly perceiving that an employee’s impairment might well progress to the point where it affected his work substantially, could dismiss him in advance to avoid any duty to make allowances or adjustments.


These have come to the fore following recent allegations of sexual harassment, including the Presidents Club debacle.

Attention has been drawn to Section 43J of the Employment Rights Act 1996 which indicates that:

“Any provision in an agreement to which this section applies is void in so far as it purports to preclude the worker from making a protected disclosure”.

A protected disclosure by an employee or worker is one made in the public interest with a reasonable belief that one of a number of criteria are met.  These include;

  • A criminal offence has been committed
  • The health and safety of an individual has been or is being or is likely to be endangered
  • There is failing or likely failing on the part of a person to comply with a legal obligation they are subject to

Sexual harassment can amount to criminal acts for example an assault.  If this is the case, then any disclosure will be protected and will not amount to a breach of the non-disclosure agreement by the employee or worker.


In Hare Wines v (1) Kaur (2) H and W Wholesale the Employment Appeal Tribunal sent a warning that an employer who uses the occasion of a business transfer to sack an employee with whom they have issues in relation to behaviour and performance does so on risk of the dismissal being automatically unfair on the basis that the main reason for the dismissal was the business transfer.

As ever the Tribunal indicated that whether a transfer is the “sole or principal reason” for the sacking will be a question of fact in each case.  In reviewing the decision made by the Employment Tribunal (this being an appeal) the Judge made a number of points in support of his decision, but one stands out for us.  He suggested that where an employer had not taken action to resolve an ongoing relationship difficulty prior to the transfer, but does so only at the point of transfer by sacking the employee, it is open to the Tribunal to conclude that the reason for the dismissal was the transfer.


The topic of equal pay is in the headlines and one case which is ongoing is notable for us if only because of the sums involved.

The case is in its early stages – statutory conciliation through ACAS – and it is said that the outcome could affect 200,000 Tesco employees each with an estimated claim of £20,000.  The claim is therefore valued at £4bn.

The claim is in respect of an alleged pay disparity between Tesco depot and store workers.  The depot workers are largely male and the store workers largely female.  It is suggested that the depot workers are earning around £11 an hour and store workers £8 an hour.

No doubt the other big supermarkets are bracing themselves but the outcome could have implications for businesses across the board with similar business models and pay structures.


March 2018


If you would like to read other articles, fact sheets and bulletins on Employment Law go to our Employment page and our News page.

For advice and assistance in respect of Employment matters contact Nigel Pepper, Consultant or Patrick Nelson, Associate on 01785 211411.


The contents of this article are for the purpose of general awareness only.  They do not purport to constitute legal or professional advice.  The law may have changed since this article was published.  Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

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