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Employment Law Journal: February 2012

The Supreme Court ruling in the Edwards and Botham cases may not be as good news for employers as many commentators are suggesting, argues Stephen Levinson

Employment contracts are not normal. At least that is the logical conclusion one must draw from the recent Supreme Court decision in Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2011]. This article explores the reasons for the judgment, anomalies in those reasons and some of the consequences of the decision.

Magrath LLP

Catherine Yallop examines the challenges for employers raised by the 2012 Olympic and Paralympic Games

This summer, nine million Olympic Games spectators, two million Paralympic Games spectators and almost 300,000 athletes and their supporters, officials and media personnel will descend on Central London. The Games represent an opportunity to watch sport of the highest calibre and to celebrate national culture. However, one cannot escape the fact that the UK’s hosting of the Games will have a significant impact upon the nation’s businesses, particularly those based in London – and not necessarily a positive one. While the Games are some months off, employers should be asking themselves now whether they will be affected, and if so, what they should do to prepare.


2012 could mark the end of 40 years of growth in employees’ rights if the coalition government has its way, warn Richard Kenyon and Angus Ackroyd

In his speech to the Engineering Employers’ Federation on reforming employment relations on 23 November 2011, the business secretary, Vince Cable, stated that ‘The willingness to speak truth to power is more important than it has ever been’. It is a little unclear from the context whether he is the speaker of truth or the holder of power, but the essential message was that the current balance of employment rights is an impediment to economic growth and should therefore be the object of ‘comprehensive review’ and ‘radical reform’.

Lewis Silkin

Katharine McPherson and Katherine Shaw weigh up whether the government needs to amend the Equality Act to make clear that it prohibits caste discrimination

The case of Begraj v Heer Manak Solicitors, listed to be heard by the employment tribunal in March, raises the important issue of whether discrimination based on caste is prohibited under the Equality Act 2010 and adds fuel to the broader discussion on whether caste should be included within the Act’s definition of ‘race’. This article examines key issues raised in the caste-based discrimination debate, explores the possible implications of Begraj and considers whether caste can fall within either race or religion for the purposes of finding discrimination under the Act.

Ilana Swimer analyses the growing use of anonymity and restricted reporting orders in the employment tribunal

Rights enshrined in the European Convention on Human Rights (ECHR) are increasingly relevant to employment law. We have seen the right to freedom of expression (article 10 ECHR) cited in a whistleblowing case ( Heinisch v Germany [2011]) and in an unfair dismissal claim relating to an employee’s publication of an offensive cartoon in a trade union newsletter ( Palomo Sanchez v Spain & ors [2011]).

Sarah Hogg considers the latest in the long line of cases on whether employees on long-term sick leave are entitled to holiday pay

There have been a number of cases over recent years on the question of whether employees should accrue and receive an entitlement to holiday pay while absent on sick leave. The recent Employment Appeal Tribunal case of Fraser v Southwest London St George’s Mental Health Trust [2011] considered whether the right accrues even if the employee has not requested holiday. After considering the somewhat contradictory line of case law, the EAT held that employees do accrue the right to claim annual leave during any long-term sick leave, but will lose the entitlement if they do not request annual leave in the year in question.

Should employment tribunal proceedings be postponed when High Court proceedings, arising from the same facts, have been threatened but not issued, ask Julian Yew and Lauren McLardie

Breach-of-contract claims can be brought in either the employment tribunal or civil courts depending on the value of the claim and whether the employment contract has terminated. In some cases, claims may be issued simultaneously in the employment tribunal (for example for unfair dismissal) and High Court (for wrongful dismissal, for example, or a bonus dispute in excess of £25,000). One set of proceedings will often need to be stayed where there are common facts to be determined. In practice, the employment tribunal proceedings are usually stayed so that a superior court can make appropriate findings of fact first.