ABG Employment Newsletter – August 2014

Extension to the right to request flexible working

As we highlighted in our May Employment Newsletter, legislation that came into force on 30th June 2014 has extended the right to request flexible working to any employee who has 26 weeks’ continuous employment with their current employer.

Previously, only employees who had children under 17 (or 18 if the child was disabled) or cared for an adult had the statutory right to request flexible working.

We will shortly be publishing a Guidance Note which covers the changes to the flexible working regime in full.  In the meantime, if you require any advice on how to deal with a flexible working request or would like us to update your flexible working policy please contact one of our Employment Group.

Contractual disciplinary procedure does not allow for an increase in sanctions on appeal

In a recent case the Court of Appeal has upheld the High Court’s decision that an employer could not impose an increased disciplinary sanction on an employee who had appealed as it was not explicitly set out in the employer’s disciplinary procedure that the employer had the right to do so.

Employers are required to provide employees with a written statement of the main terms of their employment.  This must include details of the disciplinary rules and procedures, or refer to an easily accessible document, e.g. an employee handbook, which contains the rules and procedures.

In this case, the employee was found guilty of misconduct and was issued with a written warning.  The employee then appealed.  An internal appeal panel reviewed the evidence and upheld the allegations of misconduct.  The employer informed the employee that it would then consider what sanctions would be applied.  The employee then withdrew her appeal and applied to the High Court for an injunction to prevent her employer increasing her sanction to dismissal.

The High Court held that the employer did not have the right to increase the sanction as it was not set out in the employment contract or disciplinary procedure.  The employer appealed.

The Court of Appeal dismissed the appeal based on the fact that the disciplinary rules and procedure did not explicitly give the employer a right to increase the sanctions on appeal.

The employer’s procedure gave an employee a right of appeal against a warning or a dismissal and there was no further right to appeal.  It also explicitly referred to the ACAS Code.

The Court of Appeal held that would seem unfair to allow an employee to appeal against a warning but then not be permitted to appeal against the more serious sanction of dismissal if it was increased.  In addition, the ACAS Code expressly states that an appeal should not result in an increase in sanction.

This case is a good reminder that, as an employer, if you have a disciplinary procedure in place you must follow it.  If you do want the right to increase the sanctions on appeal, this must be expressly set out in your disciplinary policy and/or procedure.

Court was wrong to enforce a restrictive covenant that was badly drafted

In our May Employment Newsletter (https://abg-law.com/abg-employment-newsletter-may-2014/) we included details of a case in which the High Court read words into a restrictive covenant in an employment contract in order to achieve a commercially sensible result as a literal reading of the restrictive covenant would not have provided the employer with any protection.

This decision has now been overturned by the Court of Appeal.  The Court of Appeal rejected the idea that the clause was an ambiguous clause that led to an absurd result.  It was not an error in drafting; it was just that the employer had not given careful enough consideration to the effect of the wording used.

This case illustrates the need for careful consideration of the intention and effect when drafting a restrictive covenant.

Mistake as to rate of pay contained in a letter from HR could bind employer

In a recent case, the EAT has considered whether an employer should be bound by rates of pay that were set out in a letter sent from a HR officer to employees.

If a contract is to be enforceable it must be made by people who have the requisite authority to bind the parties.  A contract entered into by an agent would normally be enforceable if the agent had the authority to bind the principal.

In this case, a group of employees appealed against a variation in pay which was to their detriment.  The employer heard the appeal but did not inform the employees of the outcome or change their pay.  The employees raised a grievance.

The employer then authorised a HR officer to communicate the outcome to the employees.  The HR advisor wrote to the employees and informed them that their pay would be increased by two pay grades.  This was incorrect.

The employees’ pay did not increase and they brought a claim for unlawful deductions.

The Employment Tribunal dismissed the claim and held that the letter from the HR officer was not a contractual document.  The employees appealed.

The EAT upheld the appeal on the basis that the HR officer was held out by the employer as someone who was authorised to communicate the outcome of the grievance to the employees.  The HR officer did have authority from the employer and therefore the letter was a contractual document.

This case is a good reminder that information communicated to employees on behalf of the employer (whether by Directors, Managers, HR officers etc.) may be binding on the employer, regardless of whether it is correct.  Therefore, it is important to ensure that all information communicated to employees is correct and that whoever is communicating the information has the requisite authority to do so.


The comments in this note are of a general nature only. Full advice should be sought on any specific problems.

Christopher Gigg  cgigg@abg-law.com  +44 (0)115 934 3310

Kathryn Meir kmeir@abg-law.com +44 (0)115 934 3308