Update on the Employment Rights Bill

The Bill is still making its way through Parliament and several of the core provisions were recently rejected by the House of Lords, including:

  • Unfair dismissal as a day-one right: Provisions which changed Unfair Dismissal Rights to a day-one employment right have been rejected.  It has been hypothesised that making unfair dismissal a day-one right may have a negative effect on the hiring of new and younger workers by risk-averse employers, particularly in periods with a falling job rate. The current legislation requires two years of employment for unfair dismissal rights, but the House of Lords have previously suggested the right should kick in after 6 months of employment. Further negotiation between the Houses is likely.
  • Zero-hours contract changes: Previous versions of the Bill have required employers to offer guaranteed hours to every employee from day one. It has now been proposed by the House of Lords that Employers should contact their workers at the end of a reference period of work, giving them the option to take on guaranteed hours if they wish.
  • Trade union ballot thresholds: The House of Lords voted to keep the 50% turnout threshold for industrial action ballot validity after previous versions of the Bill sought to scrap the requirement and maintain the status quo.

The Bill and its provisions are becoming increasingly uncertain, making it difficult for organisations to plan for the Bill’s implementation.   If you have any questions about the implications of the Employment Rights Bill and its recent amendments, please get in touch with a member of our Employment team

Dismissal not procedurally unfair, according to Appeal Tribunal

The Case: Mr J Alom v The Financial Conduct Authority: [2025] EAT 138 – GOV.UK

The Employment Appeal Tribunal has reaffirmed that dismissing an employee who sent a hostile email to a colleague (as well as one which breached confidentiality) was not procedurally unfair. Arguments that the process was unfair as a result of failure to provide transcripts and because ‘scripts’ were prepared ahead of interviews were once again rejected.

The Claimant was an employee of the Financial Conduct Authority (FCA). He had a friendly relationship with a colleague that turned acrimonious, and ended with him sending the colleague a threatening email when she accused the Claimant of stalking and harassing her. The Claimant alleged that the colleague had racially discriminated against him and that her claims of stalking and harassment were false. After searching the work emails of the Claimant, the FCA rejected his complaints and upheld several of his colleagues, stating that on balance it was likely that the Claimant had sent his colleague a threatening email and that he had acted inappropriately on two other occasions.

During the disciplinary process that followed, the Claimant was dismissed for sending emails that were hostile, as well as an email to his colleague’s line manager that breached confidentiality. The Claimant was summarily for both gross and ordinary misconduct.

The Claimant submitted a claim to the Employment Tribunal alleging unfair dismissal, direct race discrimination, and harassment/victimisation due to his race. All claims were dismissed by the Tribunal at first instance, leading to the appeal.

The Claimant’s appeal had two main bases: he was not provided with transcripts of the investigation meeting into his misconduct, and he discovered that his employer had prepared a script for the disciplinary meeting which, in the claimant’s view, suggested the outcome was a forgone conclusion. The Claimant also alleged a breach of his privacy when the FCA conducted a search of his work email.

The Appeal was rejected by the Employment Appeal Tribunal (EAT) on multiple grounds. The Claimant did not need to be provided with transcripts of his investigation interviews because he possessed the relevant information to understand the allegations against him, and those conducting the disciplinary hearing were also not provided with transcripts.  The tribunal cited the ACAS Code of Practice, which states that it will “normally be appropriate to provide copies of any written evidence, which may include witness statements,” suggesting that it is not an absolute requirement to provide such evidence.

Furthermore, the preparation of a script before the disciplinary hearing did not necessarily suggest any prejudice towards the Claimant; the script was not rigidly followed during the disciplinary hearing, and even if it had been, the script allowed for responses from the Claimant. There was clear deliberation shown by the decision maker on the Claimant’s answers, and the so-called ‘script’ was deemed more of a meeting agenda than a rigid schedule.

The EAT finally determined that searching through the Claimant’s work emails did not constitute a breach of his privacy, and in any event, evidence from the search was not used in the disciplinary process. The FCA’s IT policy also made it clear that employees’ work emails were monitored. Whilst a robust IT policy can help employers in this regard, it will not help an employer where the investigation is a disproportionate interference with the employee’s rights.

One of the main takeaways from the case is that the disciplinary process must be fair, but that providing materials like transcripts is not necessarily required to make the process fair. What is more important is that the employee is provided with clear and comprehensive information on the allegations against them.  Furthermore, reasonable preparations before an interview or disciplinary hearing do not prejudice the employee, provided that the employee is afforded an appropriate opportunity to state their case.

If you have any questions about this case or how to conduct a fair disciplinary procedure, please get in touch with Laura McKenna or Holly McLean for a confidential discussion.

Dismissal for incident which took place outside of work

The Case: Mr R Shearwood v London Fire Commissioner: 2304148/2023

In this case, an employee with a previously clean disciplinary record was dismissed due to an incident that had allegedly taken place outside of working hours. The Tribunal held that his dismissal was unfair as a result of an unreasonable and “tainted” investigation, and that a lesser sanction would have been more appropriate in the circumstances.

The Claimant worked as a technician in the Fire Brigade. During his lunch break one day, he went to a supermarket and had a physical altercation with another customer. The other customer alleged that she had been physically assaulted by the Claimant, and because the Claimant was wearing a uniform at the time, she reported him to the Fire Brigade.

An investigation into the Claimant’s conduct was led by his supervisor. CCTV covering the incident could not be released to the Fire Brigade, but the Claimant’s supervisor was told by the supermarket that he had “shoulder barged” a woman to the ground and left her physically distressed. Other eyewitness reports were taken, which suggested that the Claimant had been pushed by the other customer, and they did not confirm the “shoulder barge”. The customer did not press formal charges against the Claimant for the incident. The CCTV footage of the incident was to be routinely destroyed after 30 days and was therefore unsuitable as evidence in any police matter. The Fire Brigade was informed of this, but did not tell the Claimant.

The Fire Brigade scheduled an HR meeting with the Claimant following the incident. The Claimant did not attend but submitted a written account of his version of events. The HR Advisor for the Fire Brigade determined that, on balance, there was a case to answer. The Claimant then attended a disciplinary hearing where he was told he had brought his employer into disrepute by assaulting a member of the public. The Claimant’s supervisor provided a character reference which was referred to in the hearing, stating that his interpersonal skills were lacking and that he did not respond well to being challenged. It was notably not standard procedure for the Fire Brigade to include character references in these hearings, and the Claimant viewed the reference as ‘character assassination’ in light of his previously clean disciplinary record. The Claimant also outlined his neurodiversity and the lack of support he had received, but was dismissed at a reconvened hearing.

While the Claimant’s argument that his neurodiversity amounted to a disability was rejected by the Tribunal, it was held that his dismissal was unfair. The Tribunal noted that a dismissal for an altercation that took place outside of work could potentially be fair,  and that the Fire Brigade genuinely believed that the allegations made against the Claimant were true.  However, the Tribunal determined that the Claimant’s disciplinary process was flawed due to the inclusion of his line manager’s character reference, thus rendering the dismissal unfair.

They said it was held to be unreasonable for the Fire Brigade to include the reference in direct conflict with their standard disciplinary procedure, and in any event, a copy of the reference had not been disclosed to the Claimant prior to the hearing, meaning he was not given adequate time to consider this prior to the hearing, and respond. He was also not given fair notice about the CCTV footage deletion and its inability to form part of the evidence. The presiding Judge also stated that it was likely that the Claimant’s version of events was accurate, based on the other eyewitness reports.

The Claimant’s clean disciplinary record suggested that the character reference may have been biased to some extent, which would have called into question the evidence and information that the Claimant’s line manager had obtained from the supermarket. The prospect of the supermarket evidence being tainted by bias should have been considered in the Claimant’s appeal of the disciplinary decision, but it was not.

It was ultimately determined by the Tribunal that dismissal was not an appropriate response to the allegations and evidence set out, and that the Claimant had therefore been unfairly dismissed. A separate hearing to determine the remedy required has been scheduled.

Government considers re-introducing Tribunal Fees

Employees could soon be charged for taking their employer to the Tribunal, according to a recent report in the Guardian. Trade Unions have labelled this potential development a ‘disaster’. Tribunal fees were previously explored by the Conservatives under Rishi Sunak, but plans were ultimately abandoned when Labour came into power in 2024. The Government now looks to restart these discussions in light of budget pressures.

Under the current regime, employees do not have to pay a fee for the claim itself but must fund any legal representation obtained. An employee would not typically pay for their employer’s costs unless their case was unreasonable with little prospect of success.

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