UK: Employment Round-Up - November 2015

Last Updated: 30 November 2015
Article by Stefan Martin, Nicholas Robertson and Laura Pharez

Our monthly review of key cases and new law affecting employers.

A recent decision for employers on the public interest test in the whistleblowing legislation

Decision: The recent case of Underwood v Wincanton plc sheds light on the scope of the public interest test in the whistleblowing legislation. The requirement that a whistleblowing disclosure has to be "in the public interest" was inserted into the legislation in 2013. The intention was to exclude claims made on the basis of a breach of an employee's contract of employment or other individual rights from the scope of whistleblowing protection.

In this case, Mr Underwood worked for a haulage company and made a complaint that overtime was being unfairly withheld from some drivers, possibly those who were keen to uphold standards and policies in relation to the safety and roadworthiness of their vehicles. The key question was whether this disclosure could be said to have been "in the public interest" and therefore whether Mr Underwood could be protected by the whistleblowing legislation.

The Employment Appeal Tribunal held that the disclosure made by Mr Underwood was in the public interest.

Impact: This case shows that the courts may interpret the words "in the public interest" very widely. Although the complaint effectively related to an employee claiming a breach of his rights, the fact that the employer's actions also affected a small group of other employees was sufficient for the "public interest" test to be satisfied.

The decision means that it will not be difficult for an employee to get a whistleblowing claim off the ground. It may not matter that the primary reason for the disclosure is the employee's own interest or advantage, provided that a sufficient group of other employees are also affected. Therefore, employers should be aware that whistleblowing protection can be claimed by an employee, even where only a small group of people are affected by the disclosure and even where the facts that the employee is relying on turn out to be untrue. It is unlikely that this can be said to have been Parliament's intention when the public interest test was introduced.

Is it fair to dismiss an employee who made derogatory comments about their employer on social media when the employer was aware of the misconduct at least six months before the dismissal?

Decision: Yes, according to the Employment Appeal Tribunal in the case of British Waterways Board v Smith. Mr Smith worked as a manual worker for British Waterways and worked on a rota pattern where he was on standby for one week in every five. Whilst on standby, employees were not permitted to consume alcohol.

During his employment, Mr Smith raised a number of grievances and a mediation was arranged to address these. At the mediation, Mr Smith's manager disclosed some derogatory Facebook comments that Mr Smith had made about British Waterways and Mr Smith's managers some two years previously. He had also bragged about consuming alcohol whilst on standby. British Waterways had been aware of these comments prior to the mediation. Mr Smith was suspended from work and was later dismissed for gross misconduct following a disciplinary hearing.

British Waterways' disciplinary policy expressly referred to "any action on the internet which might embarrass or discredit British Waterways" as constituting gross misconduct. At the Tribunal stage, it was found that Mr Smith had been unfairly dismissed on the basis that British Waterways had failed to take into account any potentially mitigating factors, such as Mr Smith's unblemished service record and the fact British Waterways had been aware of the Facebook comments for some time.

The Employment Appeal Tribunal overturned the Tribunal decision and found that Mr Smith had been fairly dismissed. It held that the Tribunal had unfairly criticised the disciplinary manager's approach to the mitigating factors and by doing so, the Tribunal had essentially substituted its own view for that of the employer when it held that British Waterways did not give weight to the mitigating factors raised by Mr Smith in relation to his dismissal.

Impact: It is interesting to note that there was no criticism of British Waterways for taking Mr Smith's previous behaviour into account and relying on misconduct that had been committed some years ago and of which it had been aware for some time. The Employment Appeal Tribunal held that Mr Smith's behaviour undermined the trust and confidence between the two parties and his behaviour was a clear breach of policy leaving British Waterways open to public condemnation. This case also highlights the importance of having a well drafted social media policy, which makes it clear that even private comments made on social media can result in disciplinary action.

Whilst we would not recommend taking this approach, this case also demonstrates that where an employer has failed to take action or delayed in responding to misconduct, it does not necessarily mean that they will lose the right to take action at a later date.

An interesting decision on shared parental leave

Decision: There has been a certain amount of comment on the ECJ decision of Maistrellis v Ypourgos Dikaiosynis Diarfanelias Kai Anthropinon Dikaiomaton, which considered whether the parental leave legislation in Greece is contrary to the EU parental leave and equal treatment directives and whether as a result, the UK's shared parental leave legislation is compliant with EU law. The decision does not directly impact UK law but provides an interesting insight into the ECJ's approach to parental leave rights.

Under Greek law, female civil servants are entitled to nine months' parental leave. However, male civil servants are only entitled to parental leave if the mother of their child works or exercises a profession. The ECJ found that this approach contravened the EU directives on parental leave and equal treatment and held that a parent cannot be deprived of the right to parental leave on the basis of the employment status of their spouse. The court also held that the situation of a male employee and female employee parent are comparable as regards the upbringing of children. Therefore the position under Greek law in relation to parental leave was also direct discrimination on the grounds of sex.

Impact: Unlike Greek law, UK legislation complies with the EU parental leave directive as it allows the minimum three months unpaid leave for men and women on an entirely equal basis. Therefore, the key issue, from a UK perspective, is the court's pronouncement that, in relation to parental leave, treating fathers less favourably than mothers was liable to perpetuate inequality between men and women because it kept men in a subsidiary role to that of women when it came to exercising parental duties.

Under the SPL regime, any parents (father or mother) seeking to take SPL must first show they have a partner who is in some form of employment. However, under UK law, a mother whose partner does not work has an alternative right to take statutory maternity leave of the same length as SPL, whereas a father whose partner does not work is not entitled to comparable paternity leave for the same length as SPL. There is therefore an arguable similarity with the position under Greek law.

However, we do not think that this opens the door to challenge the UK's SPL regime. In the UK, we have had paid maternity leave for many years. The SPL regime is a system by which a woman can elect to transfer some of her maternity leave to her partner. Under the European parental leave process, the issue was that women had a right to parental leave whereas a man did not. Here, we have a single right which is capable of being shared within a family unit. Unless it is inherently discriminatory to give women statutory paid maternity leave, then there is a fundamentally different situation between the UK's SPL and the Greek unpaid parental leave. Additionally, the UK's SPL is expressly about not perpetuating the traditional distribution of parental duties by allowing men the opportunity to participate.

Originally published November 2015

Visit us at

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2015. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

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.