UK: Employment Briefing - May 2010

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

Originally published May 2010

Whistleblower Can Rely on Disclosure Made in Previous Employment

The EAT in BP PLC v Elstone upheld a tribunal decision that a worker could bring a claim against his new employer based on a disclosure he had made whilst employed by a previous employer.

In this case, Mr Elstone had worked for two years as an employee for Petrotechnics until his dismissal for gross misconduct. He was dismissed for making disclosures about safety concerns to one of Petrotechnic's clients, BP plc (for whom he had previously worked for 25 years). He was offered work as a consultant by BP after his dismissal. A further contract was refused as BP had by then been advised by Petrotechnics that Mr Elstone had been dismissed for disclosing confidential information. Mr Elstone brought a claim under the whistleblowing legislation against BP alleging that he had been subjected to a detriment for having made a protected disclosure. The EAT, considering a point of law and not the substantive merits, agreed with the tribunal judge that the worker had to be in employment at the date of the relevant disclosure but that the legislation did not provide directly that that the employer needed to be one and the same at both the times of disclosure and detriment. The EAT emphasised that the aim of the legislation was to protect the employee against later retribution by an employer. This was the central point, rather than the identity of that employer. The case was remitted to tribunal for a decision on the merits.

Appropriate Use of Disciplinary Procedures

Sarkar v West London Mental Health NHS Trust (the Trust) illustrates the importance of ensuring that the procedure used when disciplining and dismissing an employee is appropriate for the purpose.

In this case Dr Sarkaar, a consultant psychiatrist, was dismissed by the Trust for gross misconduct. Following an investigation into complaints about Dr Sarkar's treatment of colleagues, the Trust embarked on an internal procedure (forming part of the disciplinary procedure) known as the Fair Blame Policy. This policy was designed for fairly low level infringements which 'do not constitute potentially serious or gross offences'. There was no sanction of summary dismissal available under this procedure but a clause did provide that if it became apparent that the matter was more serious than originally envisaged the matter could be heard under a separate, more formal disciplinary procedure.

During the course of the Fair Blame Policy procedure an agreement was reached in principle between Dr Sarkar and the Trust that he would return to work for a different Directorate with a different team. However Dr Sarkar was then informed that, notwithstanding the agreement, the Trust's medical director would report the matter to the General Medical Council. Dr Sarkar refused to accept the proposal and was suspended. A disciplinary hearing was held under the disciplinary procedure to consider the allegations together with further minor misdemeanours following which Dr Sarkar was dismissed for gross misconduct. He brought a claim for unfair dismissal.

On appeal to the Court of Appeal, the Court restored the tribunal's decision that despite the Trust having undertaken a reasonable investigation and formed a genuine belief as to Dr Sarkar's guilt, the decision to dismiss fell outside the band of reasonable responses. The Trust's use of the Fair Blame Policy indicated that it considered Dr Sarkar's misconduct to be relatively minor. The additional acts of misconduct also relied upon were minor and could not have supported a finding of gross misconduct.

This case underlines the importance of ensuring that the procedure used when disciplining is appropriate for the purposes. It is likely to be difficult to later decide that the offence merits a more serious sanction. If additional misdemeanours come to light an employer must consider whether they justify departure from the agreed procedure. In this case they were minor offences and it could not be said that Dr Sarkar's misconduct had significantly altered in degree.

Collective Agreements Not Incorporated into Employment Contracts

The High Court in Malone and others v British Airways plc considered whether terms contained in collective agreements relating to minimum staffing levels were incorporated into individual employment contracts. It found that whilst the contracts of employment stated that the relevant collective agreements 'form part of your contract of employment' the terms were not 'apt for incorporation' into the employment contract.

The facts related to the recent dispute between BA and its cabin crew relating to the proposal to cut staffing levels on some services. The staff argued that the provisions in collective agreements relating to staffing levels were expressly incorporated into their contracts of employment and therefore the proposed cuts would be a breach of contract. They sought a declaration of their rights and an injunction stopping BA from proceeding with the crew reductions. The High Court found that the terms were not incorporated since the parties never expressed an intention that they would be legally binding. Further the terms were more 'aspirational' than contractual and could not sensibly have been set out in a contract of employment. The court found that there was insufficient evidence of mutual intention to enable an individual staff member to enforce the terms. The court also held that even if it were wrong, it would still not have granted an injunction as, having regard to the necessary balance of convenience test, an exceptional burden would have been imposed on BA and potentially jeopardized its financial recovery.

PILON Clauses and Summary Dismissal

The question of when an employment terminates was considered in Geys v Societe Generale. Mr Geys was MD of Societe Generale from February 2005. On 29 November 2007 the Bank told him that his employment was being terminated 'with immediate effect'. He was asked to clear his desk and leave the premises immediately. The dispute concerned when Mr Geys' contract came to an end since this would significantly affect the amount of the payment in lieu of notice due to him. The effect of various bonus schemes was that if he were employed after a certain date, the difference in pay due to him would be around 2.5 million euros.

Mr Geys' contract of employment provided for the right of either party to terminate the employment on the expiry of 3 months' notice. The Bank's handbook made provision for payment in lieu of notice.

On 7 December 2007 Mr Geys' solicitors wrote to the Bank's solicitors requesting details of the termination payment due to Mr Geys. The letter ended 'in the meantime [Mr Geys] reserves all his rights'.

On 10 December 2007 the Bank sent a draft severance agreement with a summary of payments to Mr Geys' solicitors.

On 18 December 2007 the Bank paid £31,899.29 directly into Mr Geys' bank account. Mr Geys assumed that this related to a payment in lieu of notice but he could not be sure.

On 21 December 2007 Mr Geys' solicitors asked the Bank for more information about the payment, again reserving Mr Geys' rights.

On 2 January 2008 Mr Geys' solicitors wrote again to the Bank stating that Mr Geys had decided to affirm his contract and again reserved his position.

On 4 January 2008 the Bank sent to Mr Geys a letter confirming the details of the payment and stating '[The Bank] gave you notice to terminate your employment with immediate effect on 29 November 2007 and will pay you in lieu of your notice period'. It confirmed that the amount had been credited to Mr Geys' account on 18 December 2007.

The Bank argued that Mr Geys' employment terminated on 29 November when he was told his employment was being summarily terminated. Mr Geys argued that his employment actually terminated 3 months after notice was given.

The High Court held that Mr Geys' employment did not terminate on 27 November when he was ejected from his office and told he was being summarily dismissed. It took effect on 6 January 2008 when Mr Geys received the 4 January letter confirming that he had been paid in lieu of notice. Had the Bank worded its 29 November letter appropriately or sent out its further letter confirming the details of the termination of Mr Geys' employment promptly, it would have saved a significant amount of money. In order for Mr Geys to have treated the Bank's actions as terminating his contract, he would have needed to 'clearly and unequivocally' convey this to the Bank. His 'silence or inactivity' did not indicate acceptance of the breach and his solicitors persistently reserved his rights in correspondence. Further, the mere payment of Mr Geys' notice monies into his bank account did not suffice since this action was not actually communicated to him in terms that this payment constituted his pay in lieu of notice.

This case serves as a lesson to employers when summarily terminating to ensure that the termination letter is carefully drafted. This will be of particular significance where an employee may, as in Geys' case, become entitled to a significant sum of money during the notice period.

'Off the Record' Allegations and Dismissal

In A v B the EAT agreed with the tribunal that a public authority, B, had been entitled to summarily dismiss a senior employee on the basis of informal disclosures made against him by the Metropolitan Police Child Abuse Investigation Command (CAIC). A, a career civil servant, had been arrested and charged in Cambodia for having allegedly sexually abused children. He was acquitted of the charges and 'totally exonerated of any criminal wrongdoing'. A's employer, B, investigated and decided on A's innocence. B was then, however, advised by the CAIC on an informal basis that there were other allegations against A including his having posed as a doctor to abuse children and having frequented Cambodian brothels known to supply children. B was advised by the CAIC that he posed a continuing threat to children.

B held a disciplinary hearing following which A was summarily dismissed on the ground that trust and confidence in A had been broken. A claimed that he had been wrongfully and unfairly dismissed. The EAT upheld the tribunal's decision that B had fairly dismissed A even though the alleged misconduct had not been proved and it had no bearing on the work that he did. The EAT were unhappy with B's reliance on the breakdown in trust and confidence as a ground for dismissal and felt that it should more properly have been some other substantial reason (the risk of reputational damage to B). However, taking into account the nature of B's organisation, the nature of the allegations and the nature of A's senior role the risk of damage to B would have been greater had it chosen not to dismiss A and it emerged that they had been warned by the CAIC. The EAT held that when relying on information supplied by a third party, the employer must always insist on a sufficient degree of formality and specificity about the disclosure before contemplating taking any action against an employee. An employer would not be acting reasonably if it took an uncritical view of such information.

The EAT also considered whether the risk of reputational damage was a sufficient justification for dismissing A and held that it was.

And Finally...

Equality Act

The Equality Act 2010 received Royal Assent on 8 April and will come into force in October 2010. In the main, the Act will harmonise and consolidate the discrimination and equality laws but will also make a number of significant changes, strengthening the laws for employees claiming discrimination.

New Offence of Stirring up Hatred on Grounds of Sexual Orientation

Section 74 and schedule 16 of the Criminal Justice and Immigration Act 2008 came into force on 23 March 2010 and create a new offence of stirring up hatred against another on the ground of their sexual orientation. The offence is punishable by a fine and/or up to a maximum 7 years' prison sentence.

New EWC Regulations

The Transnational Information and Consultation of Employees (Amendment) Regulations 2010 amend the 1999 Regulations and come into force on 5 June 2011. Generally the new Regulations will apply to EWCs agreed on or after 5 June 2011 and to EWCs established between 16 December 1999 and 5 June 2009 unless they are revised between 5 June 2009 and 5 June 2011. Significant changes are made to the employer's duty to inform and consult and there is a new duty on EWCs to provide feedback to employees. EWC agreements will be required to set out arrangements for linking the informing and consulting of the EWC with that of national employee representative bodies. Importantly, the maximum penalty for breach of the Regulations will increase from £75,000 to £100,000. The Government has produced guidance on the new Regulations.

The Employment Group are proud to announce the following promotions of our team members for 2010

Nick Le Riche
Senior Associate

Nick joined Bircham Dyson Bell as a trainee in 2004 and qualified into the firm's Employment Group in 2006. Nick undertakes both contentious and non-contentious work including dealing with claims brought against high profile transport and charity clients as well as undertaking day to day advisory work concerning policies, contracts, procedures and disciplinary and grievance hearings.

Paul McAleavey

Paul McAleavey joined the firm as a trainee solicitor in 2006, and qualified as a Solicitor in the Employment Team in November 2008. Paul advises clients on a wide range of employment law issues, with a particular focus on business immigration and industrial relations disputes, including acting on several injunctions in the High Court.

Fiona McDermott

Fiona McDermott joined the firm in May 2008, having previously been at Taylor Vinters in Cambridge where she trained. Since joining the firm, Fiona has specialised in Employment Law and Industrial Relations. Fiona advises a variety of clients upon a number of contentious and non-contentious matters, with particular emphasis upon clients within the transport sector.

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.