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News Update

April 2018

The EAT hold that the parts of a secret recording of conversations between panel members during the breaks in a disciplinary hearing that were not covered by legal professional privilege were admissible in evidence.

An ET awards £11,000 to an employee of Caribbean origin after upholding his direct racial discrimination claim where colleagues repeatedly imitated his accent, both in conversation with him and within his hearing.

The EHRC have warned employers with over 250 or more employees that they are entering the ‘last chance saloon’ to report their gender pay gap, as it publishes its final strategy on how the law will be enforced.

The TUC has highlighted some of the many ways that 3.2 million Black, Asian and minority ethnic (BAME) employees in the UK still face discrimination at work.

Secret recordings may be admissible to enable understanding of dismissal decision

In Fleming v East of England Ambulance Service NHS Trust, Fleming (F) claimed disability discrimination and unfair dismissal. He wanted to rely on his covert recording of conversations involving panel members during breaks in a disciplinary hearing. An ET denied F’s request on the basis that the contents were private and covered by legal professional privilege (LPP). F appealed. The EAT held that LPP did apply to conversations between the Trust’s solicitor’s and panel members and the panel members discussions about the solicitor’s advice and so would be excluded. As for as the rest, the public interest in hearing any relevant evidence outweighed the public interest in preserving the privacy of private deliberations of the panel, but only because F had been extremely upset by what he had heard, made known his views and then refused to engage in the procedure before his dismissal. The ET could not properly assess the decision to dismiss without reference to the permissible parts of the recording.

£11,000 awarded to employee whose colleagues imitated his Caribbean accent

In Edwards v Hertfordshire County Council, Edwards (E) is of Caribbean origin and speaks English with an accent. An ET upheld E’s claim of direct discrimination in that he was subjected to less favourable treatment because of race when colleagues repeatedly imitated E’s accent, both in conversation among themselves, in E’s hearing, and in conversation with him. The ET determined that E had been treated less favourably than a hypothetical comparator, or than any other member of the white group of engineer colleagues. E’s colleagues did not imitate the accent of any other person who was not of E’s race. The imitation of E’s Caribbean accent amounted to a detriment and the ET awarded E £8,500.00 for injury to feelings and interest of £3,005.32.

EHRC sets out enforcement strategy for failure to comply with gender pay gap reporting

The EHRC have warned employers with 250 or more employees that they are entering the ‘last chance saloon’ to report their gender pay gap, as it publishes its final strategy on how the new regulations will be enforced. The reporting deadlines passes on 30 March for public sector organisations and 4 April for businesses and charities. Enforcement action will start when the EHRC writes to all employers who have not complied with the law. The letters will be sent on 9 April and employers will be given 28 days to comply. If there is no compliance then for private and voluntary employers, an investigation will take place; for public sector employers there will be an assessment of whether they have complied with their specified public sector duty. Further enforcement action for non-compliance is set out in the flow charts on page 12 (private/voluntary sector) and page 13 (public sector).

TUC highlights ongoing forms of BAME discrimination at work

The TUC has highlighted some of the many ways that 3.2 million Black, Asian and minority ethnic (BAME) employees in the UK still face discrimination at work. These include black workers getting paid 8.3% less than white workers, black workers with A-levels earning 10% less than their white peers, BAME workers are over a third more likely than white workers to be stuck in temporary or zero-hours work, and TUC polling shows that over half (57%) of BAME women affected by bullying and harassment have suffered mental health problems.


This update provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and the judgments made in every aspect of the case. Click on the links to access full details. If no link is provided, contact us for more information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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