Employment Law Bulletin: September 2014

The holidays are over – and it’s “back tae auld claes and porridge” (old Scots) i.e. back to old clothes and porridge!

For many organisations, business slows down over the summer period.

Now it’s back to some semblance of routine for everyone.

You could use the lead-up to Christmas (yes, Christmas) as an opportunity to revitalise your workplace and energise your workforce.

Why not review your contracts, update your appraisal systems and liven up your management training?

If nothing else, it will take your mind off the chill in the air.

Important change for companies which employ drivers

By 10 September 2014, all professional drivers (essentially lorry, bus and coach drivers) need to carry a Driver’s Qualification Card (DQC). To get this, they must pass the Drivers Certificate of Professional Competence (CPC) – and it will be a criminal offence to drive without it.

Organisations could also find themselves criminally liable if their drivers drive in breach of the CPC requirement. Companies and their directors could be fined up to £1,000 each, and the business’ operator licence could be threatened.

The message to employers is: make sure drivers know about the CPC requirement and are assessed before 10 September. After that date they won’t be able to drive legally without the CPC and that could mean they stand to lose their jobs. That all needs to be communicated to staff, giving them as much time as possible to get CPC arrangements in place.

Warnings and past offences
Sweeney (deceased) v Strathclyde Fire Board

Employers often get confused about what they can and can’t take into account during the disciplinary process. In the Sweeney case, the Employment Appeal Tribunal (EAT) looked at a situation in which an employer had factored into its dismissal decision a later warning the employee had received.

Mr Sweeney was a fireman. In July 2010 he was charged with assaulting his wife. One month later he was given a final written warning for unauthorised absence from work. In March 2011 he was sentenced to community service for the assault.

The fire service investigated the conduct (the assault) that had led to the criminal sentence. Rather than give Mr Sweeney a final written warning for that, his employer dismissed him – it took into account the final written warning for unauthorised absence, even though it post-dated the assault.

The EAT held that the employer was entitled to look at Mr Sweeney’s entire employment record when considering dismissal. It didn’t matter that the written warning was for later misconduct; the fact that it had been issued could be taken into account in the disciplinary process.

Heavier sanctions at appeal stage?
McMillan v Airedale NHS Foundation Trust

Disciplinary appeals exist for an employee’s benefit. So it would seem odd if the sanction already imposed could be increased at that stage in the process. Might employees who choose to appeal be shooting themselves in the foot?

Ms McMillan was a consultant employed by the NHS. She appealed, unsuccessfully, against her final written warning for misconduct. Ms McMillan became worried that her warning would nevertheless become dismissal. So before the appeal panel had decided the outcome, she obtained a High Court injunction stopping the Trust reconvening the hearing.

The Court of Appeal upheld the High Court’s decision to grant the injunction, saying that if employers want the power to increase sanctions on appeal then this must be clearly set out in their disciplinary procedure (and it was not in the disciplinary procedure in this case).

The Trust was not entitled to increase the sanction, the Court said, because the right to appeal is for the employee’s benefit or protection; employees would otherwise be deterred from appealing at all. Furthermore, if a warning were increased to dismissal then the employee would have no right to appeal against that dismissal because the end of the internal process road had been reached.

Adjusted scoring for disabled employees
Dominique v Toll Global Forwarding Ltd

Mr Dominique suffered a stroke. It resulted in him making mistakes at work and having difficulty with using computers.

A redundancy process ensued and Mr Dominique was selected based on productivity and accuracy criteria. Should his scores have been adjusted to take into account his disability? And did the employer fail in its duty to make reasonable adjustments even though making those adjustments would have made no difference to the outcome?

Yes and yes, said the Employment Appeal Tribunal. Mr Dominique was put at a substantial disadvantage by his employer’s selection criteria, and a reasonable adjustment would have been to adjust the scores (but not necessarily to score Mr Dominique highest in his pool). Because it hadn’t done this, the employer was liable for disability discrimination, attracting an injury to feelings award.

The lesson to take from this case is that it’s important to make reasonable adjustments even where making them will still result in dismissal. Dismissal isn’t the only detriment an employee can suffer; injury to feelings attracts its own award.

What the HR consultant says goes
Hershaw v Sheffield City Council

Every employer knows the importance of clear communication, especially during the disciplinary and grievance process. Ambiguity and misinformation have a habit of returning to bite. And that’s what happened to Sheffield City Council when an external HR Consultant got things wrong.

Twelve council staff members had taken issue with their pay grade and level of pay. They raised a grievance about their employer’s inaction during the process. The Council engaged an external HR consultant to investigate the grievance.

The consultant was authorised to write to the employees with the outcome of their grievance, but not to determine their pay. However, in her letter she mistakenly told them that they had been placed on a higher grade salary.

The Employment Appeal Tribunal held that although the consultant didn’t have actual authority to increase the grade, her letter bound the council to pay the higher salaries. It had contractual effect. The employer had authorised the consultant to answer the employees’ grievance and so the effect of her letter was as if the employer had written directly to the employees.

There’s a lesson here about setting boundaries and keeping an eye on what’s being done on your behalf by external contractors. Be clear about what a third party is and isn’t authorised to do in this sort of situation. A good way of looking at this is through the eyes of an employee; if they were to receive a letter on company paper, for example, then it would reasonable for them to assume that it was official and binding.

Employer’s liability for disclosures to police
Melik Camurat v Thurrock Borough Council

Mr Camurat’s settlement agreement contained an agreed reference. It was mostly positive, except for a mention of his final written warning for an incident involving the confiscation of a pupil’s mobile phone.

It’s usually the case that a reference is enough to inform future employers about past performance – and former employers must tread very carefully in departing from the terms of an agreed reference. But in Mr Camurat’s case, the issue concerned a safeguarding disclosure that his former employer was required to make to the authorities.

The information Thurrock gave to the police included details of allegations that Mr Camurat had used inappropriate force in the classroom. Those details became part of an Enhanced Criminal Record Check (ECRC) which led to Mr Camurat losing his new job and being unable to get another. He fought for five years to get the ECRC cleared, which it eventually was.

Mr Camurat claimed that Thurrock owed him a duty of care when making this safeguarding disclosure. He lost his case. The Court held that if there were a duty of care then that would discourage people from providing safeguarding information in good faith to the police. Also, there was nothing to say (or be implied) that safeguarding disclosures would be in the spirit of the agreed reference.

Mr Camurat has been given permission to appeal the decision and so this might not be the last word.

And Finally…
Body art discrimination – a step tattoo far?

The boundaries of discrimination law are being tested all the time. As more classes of people gain protection, others naturally seek it out.

Stories like those of Jo Perkins hit the headlines every now and again. Her contract was terminated because she hadn’t covered up a four-inch butterfly tattoo on her foot. This contravened the “no visible inking” policy which many employers have in place.

It’s a difficult one for businesses, keen to protect their brand image. There is a risk of appearing to be out of touch, stifling individuals’ freedom of expression. But in reality tattoos aren’t always well received, particularly when it comes to certain types of customer-facing jobs.

The bottom line is that there is no specific legal protection from being dismissed (or suffering another detriment) simply for having a tattoo. It’s for employers to introduce the right policies in the right way and to follow the correct disciplinary procedures when a tattoo becomes an issue.

And a word of caution: remember that while many tattoos are fashion statements, others can be deeply symbolic, religious requirements or cultural norms. In those types of cases, anti-discrimination protection kicks in – and that really needs to be handled carefully.



Sam Inkersole

In 2022, Sam won the Taxation’s Rising Star award at the Taxation Awards in and was named in the Accountancy Age 35 Under 35.

Jon Wedge

While Jon’s client work focuses on the financial services sector, he also oversees the firm’s assurance service, as well as supporting the trainees following in his footsteps.


Elana joined us in 2017 as an ACA trainee, after graduating from Durham University where she had studied languages. She is now a manager in our assurance team.


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