UK: CABLE: Current Awareness Bulletin - June 28, 2018

Last Updated: 6 July 2018
Article by Charles Urquhart

Most Read Contributor in UK, November 2018

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

Constructive dismissal: the "last straw"

If an employer commits a serious breach of contract, the employee is entitled to resign in response and claim constructive dismissal. A constructive dismissal claim may also arise if an employer commits a series of acts that are not serious individually, but they take on that character when considered cumulatively. The Court of Appeal recently considered whether an employee could rely on the employer's earlier breaches if they carried on working but then resigned in response to a "last straw" event.

After an altercation with a colleague, Ms Kaur raised a grievance. This triggered the Trust bringing disciplinary proceedings against her, which were combined with the grievance procedure, and she was given a final written warning for inappropriate behaviour. Her appeal against this decision was not concluded for several months (for various reasons, including that she was on maternity leave). When her appeal was finally rejected, Ms Kaur brought a claim for constructive unfair dismissal, claiming that the rejection of her appeal was the last straw in a series of acts.

The Court of Appeal said that if there is a continuing cumulative breach of the implied duty of trust and confidence, an employee may rely on the totality of the employer's acts even though the employee carried on working after the earlier breaches - provided that the later act (the last straw) formed part of the series of breaches. The effect of the final act is to revive the right to terminate their employment based on the totality of conduct.


If after an unfair disciplinary decision, an employee carries on working and appeals that decision, a further act by the employer – including upholding the disciplinary decision on appeal - may revive the earlier serious breach.

Kaur v Leeds Teaching Hospitals NHS Trust

"Pattern of behaviour" can amount to gross misconduct

The EAT has found that an employee's summary dismissal for a "pattern of behaviour" was fair, even though no act on its own amounted to gross misconduct.

The Trust took disciplinary proceedings against Mr Mbubaegbu, a consultant orthopaedic surgeon, in relation to 17 separate allegations following investigations to tackle dysfunctional behaviour within his department. He was dismissed for gross misconduct and subsequently brought claims, including for unfair dismissal.

The EAT rejected Mr Mbubaegbu's argument that nothing he had done amounted to gross misconduct, and that the Trust could not rely on a "pattern of conduct" as amounting to gross misconduct. It said a series of acts demonstrating a pattern of conduct may be sufficiently serious as to undermine the relationship of trust and confidence.

The EAT found that some of Mr Mbubaegbu's acts were grossly careless and negligent, amounting to a pattern and repeated process of unsafe behaviour which led to an increased risk to patients. The relationship of trust and confidence was undermined by that pattern of conduct, and the Trust did not believe Mr Mbubaegbu could change his behaviour and avoid the risk of recurrence of his misconduct. It did not matter that there was not a particular act that on its own amounted to gross misconduct.


If employers intend to rely on an employee's pattern of conduct to justify summary dismissal, where there is not a single act that constitutes gross misconduct, they must be clear about the grounds they are relying on in their decision to dismiss the employee and that they have considered lesser sanctions but have good reason to believe the employee's behaviour is unlikely to change. Employers must also ensure they follow a fair procedure.

Mbubaegbu v Homerton University Hospital NHS Foundation Trust

Supreme Court confirms Pimlico Plumber was a 'worker'

The claim against Pimlico Plumbers is the latest in a growing line of cases on employment status in the gig economy. With these cases, courts have to grapple with the facts of the particular case; looking beyond the terms of the written documentation and considering whether personal service is required and if there is a genuine right to provide a substitute, as well as looking at questions of control, risk and subordination.

Mr Smith worked solely for Pimlico Plumbers for six years under a contract which described him as an 'independent contractor' in business on his own account. His contract was ended after he suffered a heart attack and he brought a number of claims against Pimlico Plumbers, including unfair dismissal, unlawful deductions from wages, holiday pay and discrimination. Before his claims could be heard, the court had to decide which claims he was allowed to bring - this depended on whether he was an employee, a worker or self-employed.

The Supreme Court said that despite being VAT-registered and paying self-employed tax, Mr Smith was entitled to basic workers' rights. Key factors in the decision that Mr Smith was a worker were:

  • the dominant feature of his contract was that he was required to perform the work himself - if he provided a substitute, this had to be another Pimlico Plumber on similar terms
  • his subordinate position in the relationship with Pimlico Plumbers

As Mr Smith is a worker, he can continue with his claims against Pimlico Plumbers for holiday pay, unlawful deductions from wages and discrimination, which he would not have been entitled to bring if he were self-employed.


If a business seeks to exercise a significant amount of control over how and by whom the work is done, and the individual is integrated into the business, which dictates terms that put the individual in a subordinate position, they are likely to be found to be a worker (if not an employee).

For a detailed update on this decision, see

Gig-economy update - Supreme Court confirms Pimlico Plumber was a 'worker'.

Pimlico Plumbers Ltd and another v Smith

Data Protection Act 2018 in force

This new Act implements the standards set out in the GDPR so that after Brexit, the UK and EU data protection regimes are aligned and the UK can freely exchange personal data with the EU.

Data Protection Act 2018

Our latest GDPR update sets out the key data processing issues for HR to focus on now: GDPR after 25 May: what does this mean for HR?

Guidance: 'Dress codes and sex discrimination – what you need to know'

The Government Equalities Office has published a short guidance on dress codes and sex discrimination for employers, employees and job applicants. It sets out recommendations for employers when setting or revising a dress code policy – and also advises against a policy that:

  • has gender specific prescriptive requirements
  • could lead to harassment by colleagues or customers
  • prohibits religious symbols that do not interfere with an employee's work


Employment tribunals: quarterly statistics

The practical impact of the abolition of employment tribunal fees in July 2017 is now being felt. The latest employment tribunal and Acas statistics, for January-March 2018, show a significant increase in single employment tribunal claims compared with the same period in 2017.

Employment tribunal statistics

Trade Secrets (Enforcement etc) Regulations 2018 in force

Historically, confidentiality obligations for employees, workers and self-employed contractors have been regulated by the contract and by court decisions. Now, these regulations (which implement an EU law that aims to harmonise the protection of trade secrets across the EU) also protect trade secrets. The regulations set out certain aspects of the procedure and remedies available to trade secret owners to enforce their trade secrets.

Trade Secrets (Enforcement etc) Regulations 2018

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