We are delighted to invite you to the virtual 11KBW Employment Law Conference 2022.  As in previous years we are bringing together chambers’ leading experts in the field. Topics covered include a roundup of discrimination and whistleblowing cases, TUPE and fragmentation, working time, employee competition disputes, and returning to the office and other Covid-related issues.

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In Parr v MSR Partner LLP (and others) [2022] EWCA Civ 24 the Court of Appeal considered the question of discrimination time limits in the context of a decision to de-equitise a member of an LLP.

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In Burn v Alder Hey Children’s NHS Foundation Trust [2021] EWCA Civ 1791, the Court of Appeal (Underhill, Singh and Elisabeth Laing LJJ) rejected an argument, brought by a consultant surgeon under disciplinary investigation, that a contractual right to sight of correspondence imposed on her employer a general duty of disclosure extending to all documentation relating to the investigation.

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The appeal to the EAT (Clive Sheldon QC) in Nigerian High Commission v Ihame, Judgment on 15 September 2021 raised issues relating to State and Diplomatic Immunity in the context of a race and religion discrimination and victimisation claim by an employee of the High Commission.  The claim was tantamount to bringing a claim against the Federal Republic of Nigeria.  The ET had misdirected itself by failing to consider whether or not the employment involved an inherently sovereign or governmental act or was a purely private act. This was a misapplication of the Supreme Court’s Judgment in Benkharbouche (2017) ICR 1327.  If the former, State Immunity applies and the claims have to be dismissed on that ground.

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Labour and Social Standards are addressed briefly  In the Christmas Eve Brexit deal at pages 200-201, Chapter 6 of Title XI in Part 2, of the Agreement between  the UK and the EU. The deal does no more than to prohibit a reduction in the level of protection for workers or failure to enforce rights in a manner that goes so far as to have an effect on trade or investment. Subject only to that, the UK will be free to make its own decisions. EU retained law will not have a special place on the statute book. There will be a new procedure for dispute resolution.

The Government has today announced an Open Consultation on Measures to reform post-termination Non-Compete clauses in contracts of employment:

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In my blog piece on 28 February 2020, I looked at the state of mind required to make an employer liable in tort for inducing a breach of contract when it employs a person subject to post-termination restrictions. I reported by reference to the recent case of Allen v Dodd that in order to be liable the employer must know that it was inducing a breach. Knowledge that it might be is not sufficient.

I now turn my attention to the state of mind required to make an employer liable for breach of confidence when it receives a client list from a recruited employee.

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What is the position if business owners employed by their own company award themselves substantially enhanced ‘golden parachute’ terms in advance of a TUPE transfer, confident in the expectation that those liabilities will be picked up by the unwitting transferee?

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As we all adjust to the strange new reality ushered in by the arrival of Covid-19, it is reassuring to see that the wheels of the justice system continue to turn, and at the highest levels. Today the Supreme Court has handed down its judgment in one of the most watched data protection and employment cases of recent years: Various Claimants v Morrisons. The judgment is a real watershed moment, and one that will doubtless bring considerable relief to employer data controllers across the land.

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