A school inspector dismissed for brushing water off a pupil’s head won his unfair dismissal claim against OFSTED.  Mr. Hewston worked as a Social Care Regulatory Inspector and, on the 8th of October 2019, during a school inspection, he brushed water off the head and touched the shoulder of a young boy who had been caught in a rainstorm. The school reported the incident to OFSTED as a case of ‘inappropriate touching’ in an 11-page letter.

Disciplinary proceedings were instituted, and he was summarily dismissed for gross misconduct, despite his hitherto immaculate disciplinary record. Throughout the disciplinary process, Mr. Hewston maintained that his conduct was appropriate, even though he would not have done it again due to the trouble it had caused him. Mr. Hewston brought proceedings against OFSTED for both unfair and wrongful dismissal, both of which were dismissed. However, he successfully appealed at a tribunal, which found that the claimant had been unfairly dismissed, as OFSTED did not have a policy in place prohibiting physical contact with a child, nor any disciplinary rules defining touching as gross misconduct.

Section 94 of the Employment Rights Act (ERA) 1996 gives employees the right not to be unfairly dismissed, and the absence of published guidance or disciplinary rules on physical contact is dispositive. Indeed, the lack of any such guidance would result in the claimant not knowing that what he was doing was “so seriously wrong as to justify dismissal”.

The decision also makes it clear that a person cannot be dismissed because they did not show the ‘right’ reaction and insight during a disciplinary hearing. The fact that Mr. Hewston would never act the same way because of the trouble it caused him, rather than because he admits his action was ‘wrong’, is irrelevant; the salient point being that he would not do it again.

Employers must ensure that they have the right guidance and policies in place if a certain form of conduct is deemed inappropriate in their field; otherwise, any subsequent dismissal could be regarded as unfair. Your employees must be able to know what behaviours are reasonably expected from them.

Kau Media Group (KMG) Ltd. sought to enforce two post-termination employment restriction (PTRs) contained in a contract of employment to restrict Mr. Hart, a former employee, from working for his proposed new employer, MiSmile Media Ltd. (MML).

Mr. Hart had worked for KMG from November 2020 to late 2024 as an Account Director. From 2021, the defendant became Account Director for MML, a longstanding client of KMG. On the 19th of September 2024, Mr. Hart informed Mr. Khokhar of KMG that he had since taken a job at MML despite being offered more favourable terms, having been approached by the CEO of MML. Mr. Khokhar however made it clear that taking such a job was against the terms of Mr. Hart’s contract.

On the 25th of September 2024, Mr. Hart inaccurately told the claimant he had already signed a contract with MML, before proceedings were started on the 13th of December 2024. The High Court however concluded that KMG did not establish that the PTRs were enforceable with respect to confidentiality and refused the application for injunctive relief on the grounds of ‘restraint of trade’.

The onus was on KMG to demonstrate that the PTRs were reasonable, protected its legitimate business interests, and that any restrictions were commensurate with the benefits secured under the contract. Even though the services provided by MML and KMG were overtly identical, making them potential competitors, the work involved did not comprise a core part of KMG’s dental sector business and thus MML was not effectively in direct competition with KMG. Settled case law has established that legitimate interest does not cover “the skill, experience, know-how, and general knowledge" acquired by an employee, in order to rely on this interest, KMG should have demonstrated ‘objective’ knowledge.

Thus, before incorporating or seeking to enforce any PTRs, ensure that any PTR relied upon is reasonable between the parties, protects the company’s legitimate business interests, and does not venture beyond these demarcations, or else the PTR may be rendered void and unenforceable.

A complex celebrity case arose recently in which the First-tier Tax Tribunal (FTT) was asked to consider the application of the intermediaries’ legislation (IR35), otherwise known as off-payroll working, to payments made by Manchester United Football Club (MUFC) to Bryan Robson Ltd.

This appeal was in relation to determinations of income tax made under Reg. 80 of the PAYE Regulations and s31 of the Taxes Management Act (TMA) 1970  for personal appearances provided to MUFC by Bryan Robson Ltd. as a ‘global ambassador’ from 2015/16 to 2020/21. Those agreements included a licence for MUFC to exploit Mr. Robson’s “image rights” and required the former England star to make 35 personal appearances per year at MUFC’s request for a fixed sum. Although the image rights were not subject to the IR35 legislation and were left to be decided separately, and the additional tax due under the IR35 rules is to be determined.

This technical tax case highlights the intricate factors that determine employment status under IR35 and anyone providing such personal services, including freelancers, content creators, and contractors, has to demonstrate a high level of autonomy to be considered truly self-employed and present watertight contracts to the HMRC. 

The Employment Appeal Tribunal slashed a £10,000 award for injury to feeling by 80% after an original tribunal ruling was deemed not to be Meek compliant as it failed to provide adequate reasons for the quantum awarded. A Miss Graham was employed by Eddie Stobart Ltd. for just over ten months as a planner when she became pregnant and immediately notified her line manager. Miss Graham asserted her right to be offered suitable alternative employment during her maternity leave under the MAPLE Regulations. She was interviewed for a new role but was unsuccessful and was terminated by reason of redundancy although her grievance Email to HR was blocked by the firewall.

Miss Graham complained that she had been "automatically" and unfairly dismissed as per Section 99 of the Employment Rights Act 1996 on the basis that the new role should have been given to her in priority to others who were not on maternity leave. The first Tribunal found that Miss Graham had not been unfairly dismissed but upheld her claim of detrimental treatment and pregnancy/maternity discrimination and awarded £10,000 for injury to her feelings. Eddie Stobart Ltd. appealed and the second tribunal found the award excessive given that she had soon found alternative employment and had not endured prolonged suffering.

This case underscores the importance of presenting evidence supporting any claim for injury to feelings in the form of a ‘checklist’, although HR departments should note that those who are forced to chase up their grievances during allocated maternity or paternity leave may have grounds for such claims, however excessive or seemingly irrational.

The Employment Appeal Tribunal (EAT) upheld claims of constructive dismissal and disability discrimination against Whyte & Mackay Limited (W&ML) in the case of Mr. Duployen , a former forklift truck and warehouse operator, following his termination.   

W&ML had appealed the ET's decision on several grounds, seeking reinstatement or re-engagement, a higher award for injury to feelings, and any interest due on the awards. However, reinstatement proved impracticable due to the breakdown in relations and, while theoretically possible, it was not reasonable given the circumstances. Although the issue of re-engagement, while not addressed by the ET, is a required step per Sections 113 and 116 of the Employment Rights Act (ERA) 1996, tribunals are not compelled to order either a reinstatement or re-engagement, even though they have the discretion to do so.

The tribunals found that the appellant suffered embarrassment, humiliation and distress as a consequence of the discriminatory treatment by the respondent with a detrimental impact on his mental health.  

This is a cautionary tale for employers and HR departments alike, and the letter of the law should be followed diligently in terms of the Employment Rights Act (ERA) 1996, the ECHR, and the Human Rights Act (HRA) 1998 to avoid claims of discrimination or constructive dismissal, especially given that not all handicaps or disabilities are self-evident.

A recent case [London United Busways Ltd. (LUB) v De Marchi and Abellio London [2024] EAT 191] revealed the complexities of working under the Transfer of Undertakings (Protection of Employment) Regulations 2006, or TUPE.

A Mr. De Marchi had been working as a bus driver for two decades by LUB from his local bus depot, even though his contract contained a clause to the effect that employees may be expected to work at any of the depots across London. After LUB lost its tender for his route, his employer elected to exercise this right of transfer, unless the employee objected by a specified deadline under Regulation 4(9). Given the options to transfer, resign or object, Mr. De Marchi objected to his transfer and requested redundancy, as the new depot was over an hour from his domicile. As this was not one of the three alternatives, LUB rejected his approach, and Mr. De Marchi took a leave of absence suffering from stress and anxiety as he had been informed that, if he failed to sign a new contract by the deadline, his employment would effectively be terminated.

Mr. De Marchi failed to respond and later brought a claim for unfair dismissal against the transferor. The tribunal found that, while the employee may object to becoming employed by the transferor under Regulation 4(7) of TUPE, the effect of that objection is to preclude the transfer of his contract and any of the rights and obligations under Regulation 4(2) of TUPE.  However,  Regulation 4(8) TUPE operates to terminate the contract with the transferor to the detriment of the employee.

This ruling serves to provide useful guidance in terms of who is liable. If the objection occurs before the transfer, then the liability falls on the transferor. However, if the employee does not object to the transfer in a timely fashion and then tries to argue Regulation 4(9), then the liability falls on the transferee. It is thus advisable to seek legal advice before transferring employees to other positions or locations.