UK: CABLE: Current Awareness Bulletin - November 2016

Last Updated: 30 November 2016
Article by Graham Mitchell

Clyde & Co's UK employment team brings you CABLE, a monthly bulletin keeping you up to date with recent legal developments.

Employment Status

Aslam and others v Uber BV and others ET/2202550/15 - Uber drivers are workers

The employment tribunal found that Uber's desire to control its brand image had led to a level of control which caused worker status to arise as the drivers were not acting totally independently and autonomously, as self-employed contractors would.  Although the contractual documentation suggested that Uber is a technology company that merely puts drivers in touch with customers who then contract with the driver, in reality the Uber drivers are workers for the purposes of the Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998.

Practical point

An individual's employment status is assessed on the basis of the reality of the relationship and in particular the control exerted in practice, and not just on what the documentation says.

Note that this is only a first instance decision, so it is not binding on other tribunals or courts.

Click  here for a detailed update on this case. 

Maternity Pay

Campus Living Villages UK v HMRC & Sexton – If SMP is included in a settlement payment, make this clear in the Settlement Agreement

At the time of her dismissal for redundancy, Ms Sexton was pregnant. Although when negotiating to settle her unfair dismissal and pregnancy discrimination claims through ACAS, Ms Sexton calculated her claims as including a sum 'in respect of maternity pay entitlement', HMRC subsequently stated that Ms Sexton was entitled to a Statutory Maternity Pay ("SMP") payment.

The tax tribunal concluded that although the settlement sum may have included an element of maternity rights, it was clear from the final breakdown of the payments that it did not include Ms Sexton's entitlement to SMP, and no National Insurance Contributions had been deducted or paid in respect of SMP.

The tax tribunal clarified that irregular or one-off payments, such as an annual bonus, count towards the employee's earnings for SMP calculation purposes. 

Practical point

The Settlement Agreement must specifically state that it includes the payment of SMP. Any relevant tax and NICs in respect of SMP must be deducted and paid in order for an employer to discharge its obligation to pay SMP.

When one-off payments are made to employees within the SMP calculation reference period, they will be treated as the employee's earnings for the purposes of calculating the amount of SMP payable. 

Click  here for a detailed update on this case. 

Unfair Dismissal

Bandara v British Broadcasting Corporation UKEAT/0335/15 - Invalid final written warning cannot be relied on

The tribunal found that when making the decision to dismiss Mr Bandara, the manager unreasonably took into account a previous final written warning which was manifestly inappropriate as neither of the charges relating to that warning against him constituted gross misconduct according to the definitions in the BBC's disciplinary policy.

The Employment Appeal Tribunal said that to assess the reasonableness of the employer's decision to dismiss, tribunals must examine to what extent the employer relied on a manifestly inappropriate previous warning.

Practical point

When considering whether to dismiss an employee who has an active warning on file, check that the earlier warning was appropriate before relying on it.

If the employee has an earlier warning on file but their dismissal is on account of stand alone gross misconduct, make this clear in the dismissal letter. 

Working time

Grange v Abellio London Ltd - Right to a rest break is infringed even if there is no explicit request and refusal

Mr Grange monitored the arrival and departure times of a bus service and regulated the service. Initially his working day was eight and a half hours with half an hour unpaid and treated as a rest break, although it was often difficult for him to take that break. Subsequently, Abellio changed this to an eight hour day without a break. Mr Grange raised a grievance which was rejected.

The EAT concluded that for a worker to enforce a rest break, it was not necessary to have an explicit request for such a break then refusal. Although workers cannot be forced to take rest breaks, employers must proactively ensure that working arrangements allow them to take rest breaks to avoid a claim arising. 

Practical point

Employers must ensure that working arrangements allow for workers to take breaks. Many workers in high-pressured environments do not take rest breaks and although they have not complained that the right has been denied to them, they can still raise a complaint later and seek to enforce this right. 


Thomas v BNP Paribas Real Estate - Insensitive redundancy consultation may make a dismissal unfair 

Mr Thomas had over 40 years' service and was a senior director. When he was identified as at risk of redundancy, he was put on garden leave.  

The tribunal and EAT were very critical of the "perfunctory and insensitive" manner in which the employer approached consultation. The EAT concluded that the way Mr Thomas had been treated suggested that the outcome of the process was predetermined and that this could make the dismissal unfair. The case will now be re-heard by a new tribunal. 

Practical point
Consider carefully how to deal with senior employees at risk of redundancy especially at the beginning of the redundancy consultation process and in particular what access they have to systems and clients, and whether it is reasonable to put them on garden leave.

Data Protection 

The Government has confirmed that the UK will be implementing the EU General Data Protection Regulation in May 2018 which will mean a number of key changes to data protection rules. However, it is unclear what amendments if any will be made to data protection laws after the UK has left the EU. 

Click here for a detailed update on this topic, and here for the Information Commissioner's Office's 12 steps guide to preparing for the new rules.

Corporate Offences

The Criminal Finances Bill 2016-17 has been presented to Parliament and had its first reading in the House of Commons. One of the key elements of the Bill is the introduction of a new corporate offence of failure to prevent staff facilitating tax evasion. 

Rights for Organ Donors

The Organ Donors (Leave) Bill 2016-17, which will make provision about leave for individuals donating body organs for transplant, has been presented to Parliament and is expected to have its second reading in January 2017, depending on Parliamentary time as this is not a government initiated Bill.  The Bill will guarantee employees who are living organ donors the right to paid time off to allow them to recover. Employees' terms and conditions and rights will also be the same on their return to work.

CABLE: Current Awareness Bulletin - November 2016

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 Topics
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions