UK: Employment Briefing - January 2010

Last Updated: 30 September 2010
Article by Brian Gegg, Jesper Christensen and Marc Meryon

Originally published January 2010

Use of Protection from Harassment Act in Employment Case

In Veakins v Keir Islington Ltd an employee was successfully able to pursue a claim under the Protection from Harassment Act 1997 (Harassment Act) in relation to matters which arose at work. The Court of Appeal gave useful guidance in this case as to when a claim under the Harassment Act might be appropriate.

Miss Veakins had been subjected to a course of consistent bullying behaviour from her superior, Mrs Lavy, which included embarrassing public telling-offs, petty disputes and the ripping up of a letter of complaint written by Miss Veakins. Mrs Lavy had also persistently asked other employees questions about Miss Veakins' private life.

Miss Veakins brought a claim under s1(1) of the Harassment Act which provides that a person must not pursue a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment. This prohibition is enforceable by a criminal offence and a civil remedy. The Recorder dismissed Miss Veakins's claim noting the criminal sanction under the Act and stating 'I cannot see that any sensible prosecuting authority would pursue these allegations criminally.[...] These extremely regrettable episodes, though made out factually, do not come anywhere near the line of criminality [to] bring them within section 1 of the Harassment Act'.

The Court of Appeal disagreed. It stated that since the case of Majrowski, courts have been enjoined to consider whether the conduct complained of is 'oppressive and unacceptable' and asked 'if the Recorder had considered the evidence by reference to the test of 'oppressive and unacceptable' would he inevitably have come to the same conclusion[...]?.... The Court found that he would not and that the account of victimisation, demoralisation and reduction of a robust woman to a state of clinical depression crossed the line into conduct which is 'oppressive and unreasonable'.

The court noted that since the case of Hatton v Sutherland it has been more difficult for employees to succeed in negligence claims based on stress at work and it may be that this has prompted more employees to seek redress by reference to harassment and the statutory tort. Whilst the court thought the facts in this case were 'extraordinary' and that not many workplace cases would give rise to this liability, it is likely that the decision will fuel more claims under the Harassment Act where there has been an oppressive course of conduct.

High Court Grants Injunction On Grounds Of Inadequate Ballot Notice

In EDF Energy Powerlink Ltd v RMT the High Court had to consider whether a ballot concerning possible industrial action complied with the ballot requirements under section 226A of the Trade Union Law Reform (Consolidation) Act (TULRCA), namely whether the union had supplied sufficient information about the categories of employee to be balloted. EDF sought an injunction from the High Court restraining the union from relying on the ballot notice which, it claimed, did not adequately identify the categories of staff which were being balloted. This meant that EDF could not make any contingency planning and any industrial action which might result would cause severe disruption to passengers on the London Underground.

The High Court granted an injunction to EDF, rejecting the RMT's argument that upholding EDF's position would infringe the 'right to strike' principle under Article 11 of the European Convention of Human Rights. The Court agreed with the decision in Metrobus Ltd v UNITE that the notification and balloting requirements in TULRCA were not onerous or oppressive.

The High Court held that EDF was entitled to be told which trades were being balloted and which might later be called out on strike. EDF was not seeking a detailed job description but it would make a material difference to EDF if, for example, a trade room inspector withdrew his labour as opposed to a fitter. The RMT's breach was not technical or immaterial and the Court considered the prospects of a strike and the consequences of an unlawful strike to be sufficiently imminent to merit an injunction.

Territorial Jurisdiction

The Court of Appeal has handed down its decision in Diggins v Condor Marine finding that a Suffolk based employee who worked fortnightly shifts on a ship between the Channel Islands and Portsmouth could bring an unfair dismissal complaint even though the employer was based in Guernsey and the boat was registered in Nassau, Bahamas. The court applied the decision in Lawson v Serco, considering Mr Diggins as falling into the second category of case identified in that case, ie that of the peripatetic worker. The Court emphasised that the key question is not where the employer is based but where the employee is based. To that end, where Mr Diggins was concerned 'there can only be one sensible answer: it is where his duty begins and where it ends'. The Court did not accept that the considerations of where the company operated or where the ship was registered were likely to have any significant influence on the question where a particular employee was based.

This case firmly follows the line taken in Lawson v Serco filling the gap left in the legislation following the repeal of s106 of the Employment Rights Act which had provided that the right to claim unfair dismissal did not apply to employees who ordinarily worked outside Great Britain. The approach now taken by the courts is a pragmatic one, focusing on where the employee is actually based throughout the performance of his contract.

EAT Uphold ET's Decision in McFarlane v Relate

The EAT has upheld the Tribunal's finding in McFarlane v Relate Avon Ltd (reported in Employment Briefing March 09) that a Christian counsellor who objected to offering sexual counselling to same sex couples was fairly dismissed. Following the decision in London Borough of Islington v Ladele the EAT held that Mr McFarlane was not dismissed for being a Christian but because a manifestation of his beliefs contradicted a legitimate aim of Relate, namely to offer counselling services to all sections of the community, regardless of their sexual orientation, among other things. Given Relate's strong commitment to providing such counselling to all, without discrimination, it could justify dismissing Mr McFarlane as a proportionate means of achieving that aim. The EAT also rejected Mr McFarlane's argument that he was assisted by Article 9 of the European Convention of Human Rights (right to freedom of thought, conscience and religion), noting that Kalac v Turkey made clear that an employee does not have 'an unqualified right to manifest their religion'.

In Ladele, the EAT held that a Christian registrar who was dismissed for refusing to perform civil partnership ceremonies had not been discriminated against on the ground of her religious belief. Ms Ladele has appealed the decision against her to the Court of Appeal and judgment is awaited.

Providing Information: TUPE

In Cable Realisations Ltd v GMB Northern the EAT upheld a Tribunal's decision that when providing information under Regulation 13(2) of the TUPE 2006 Regulations, where no duty to consult under Regulation 13(6) was triggered as no measures were envisaged, the transferor should have taken into account a period of annual shutdown when employees were absent from work. Regulation 13(2) provides that the employer must provide certain information long enough before a relevant transfer to enable the employer of any affected employees to consult appropriate representatives. Regulation 13(6) provides that where 'measures' are envisaged in relation to affected employees the employer must consult with appropriate representatives. In other words, the required duty to consult only comes into play where measures are intended. The consultation envisaged by Regulation 13(2) is voluntary.

Cable had insisted on a quick sale of its ailing cable business to Paramount. On 15 August 2007 Paramount provided Cable with the information required under Regulation 13(2) and on the same day the union was provided with the same information. In particular, Paramount stated that there were no measures envisaged in relation to the transfer. On 17 August the factory closed early for the annual shutdown between 20 and 31 August, during which period about 99% of union (GMB) employees were on holiday. The transfer was completed on 3 September, on which day there was a meeting between Cable, Paramount and GMB representatives. The GMB claimed breach of the duty to inform in that inadequate time was given between 15 August and 3 September given the annual shutdown.

The EAT held that the purpose behind the requirement to provide information under Regulation 13(2) is to allow the employees' representatives to engage in a consultation process with the employer on an informed basis. A responsible employer will not necessarily limit consultation to 'measures' and the purpose of providing information is therefore to assist voluntary as well as compulsory consultation. In deciding that the information had not been provided 'long enough' before the transfer to facilitate consultation, the EAT held that the tribunal were entitled to take into account the annual shutdown. When assessing the size of the protective award, the EAT awarded 3 weeks' pay per affected employee to reflect the 'justice of the case'.

And Finally...

Equality Bill

The Equality Bill has had its third reading in the House of Commons and has passed to the House of Lords for consideration. The Bill will harmonise and, in some cases, extend existing discrimination law covering the protected characteristics. It will also address recent case law which is generally seen as having weakened discrimination protection and harmonise provisions defining indirect discrimination.

Increase in Parental Leave

A new Framework Agreement concluded by the EU social partners will give each working parent the right to an increased four months leave after the birth or adoption of a child (up from the existing three months). At least one month of the leave cannot be transferred to the other parent. The European Commission will now submit a proposal to the Council of Ministers for the Framework Agreement to be implemented by way of an amendment to the Parental Leave Directive.

Right to Request Time Off for Training

The Government intends to introduce a right to request time off to undertake training relevant to the employee's job (to enable them to become more productive or effective at work) for all employees who have been continuously employed for 26 weeks. The right will be introduced for staff in organisations with 250 or more employees from April 2010 and extended to all employees from April 2011. Employers will have to seriously consider all such requests but can refuse requests where there is a good business reason for doing so. Employers are not expected to pay for the training.

The new right will be included in the Apprenticeships, Skills, Children and Learning Bill which is currently being debated in the House of Lords.

Government's Response to Outlawing Blacklists Consultation

The Government has published its response to the consultation on outlawing blacklisting workers for union membership or activities. The Government intends to amend the draft regulations and bring them into effect in early 2010.

EWC Directive Consultation

The Government has launched a consultation on implementation of the recast European Works Council Directive by means of the Transnational Information and Consultation Regulations 2010 which will amend the 1999 Regulations. Consultation will close on 12 February 2010.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.