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Employment Law Journal: September 2016

Jo Broadbent rounds up recent case law and developments affecting employers and their advisers

Lewis Silkin

Bethan Carney considers the agenda for employment law under the UK’s new Prime Minister

In a speech launching her campaign to become Prime Minister, Theresa May declared that while ‘Brexit means Brexit’, her leadership should not become defined exclusively by the process of the UK’s withdrawal from the European Union. She suggested there was also a need to deliver ‘serious social reform’.


Victoria Albon and Michael Bronstein analyse two recent EAT decisions which appear to give the green light to employers to ignore the Acas code when dealing with certain types of dismissal

An employer’s failure to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures (the Code) may result in a tribunal uplifting an employee’s compensation award by up to 25%. While the impact on unfair dismissal claims is mitigated by the cap on the compensatory award, no such comfort is available in relation to discrimination claims.

The EAT has delivered its first decision on the rules making conversations about ending an employment relationship inadmissible in tribunal proceedings. Phil Allen investigates

It has always been difficult for employers and employees to raise the possibility of an agreed exit from employment in a way which the other party cannot later use against them. Since 2013, s111A of the Employment Rights Act 1996 has meant that evidence of pre-termination negotiations is inadmissible in unfair dismissal claims. Faithorn Farrell Timms LLP v Bailey [2016] is the first appeal decision on this issue. This article looks at the judgment and what it means in practice.

Rosemary Wooders looks at a recent Supreme Court decision on reinstatement and why the remedy is more commonly ordered in New Zealand than in the UK

The remedy of reinstatement is powerful: the employer must treat the employee in all respects as if they had never been dismissed (and if it fails to comply, it faces a penal award).

Euan Smith and Susan Hay discuss the challenges that employers could face if the UK’s exit from the EU leads to restrictions on the free movement of workers

Immigration was a core concern of the ‘Vote Leave’ campaign and now that Brexit is going to take place, employers and their advisers understandably want to know what is going to happen to government policy in this area when the UK leaves the EU. As things stand, nobody knows the answer to that question. There remains a possibility that free movement of workers may continue, although the current political climate suggests that is unlikely.

The Court of Appeal has considered whether two court interpreters could bring discrimination claims despite ostensibly being self-employed. Helen Cookson and Anna Scott report

In a recent decision, the Court of Appeal has emphasised the importance of taking mutuality of obligation into account when determining employment status.