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Need to Know: August 2023


In the latest edition of our ‘Need To Know’ employment and HR newsletter, we look at how employers can navigate the challenges of vexatious litigation, the new duty to prevent sexual harassment which is likely to become law and the difference between protected and qualifying disclosures for whistleblowing purposes.

We also have included our usual HR Bullets – which cover other significant employment law updates from the past month.

HR Bullets

  • The High Court dismissed an interim injunction application refusing to “micromanage” disciplinary proceedings (concerning whether a witness could be compelled to attend a hearing) where the law is settled in Colbert v Royal United Hospitals Bath NHS Foundation Trust [2023] EWHC 1672 (KB).
  • The Employment Appeal Tribunal (“EAT”) found that the absence of an employee’s direct communication with the dismissing officer did not, in and of itself, make a dismissal unfair in Charalambous v National Bank of Greece [2023] EAT 75.
  • The High Court held that a solicitor was not in breach of an implied term of fidelity, or non-compete restriction, when she took up employment at another law firm, as it did not fall into the definition of ‘Competing Business’ being outside the prescribed four mile radius, despite having breached a valid contractual term prohibiting her to hand in her notice for three years, which she did after one year, in Hine Solicitors Ltd v Jones and another [2023] EWHC 1708 (KB).
  • The EAT upheld the tribunal’s finding that a lay member had not been biased following that member’s posting online a link to the decision in the Mail Online in Aspect Windows (Western) Ltd v Retter (as representative of the estate of McCrorie) [2023] EAT 95.
  • A tribunal held that while the Judicial Appointments Commission’s application test had put an autistic candidate at a disadvantage, this was a proportionate means of achieving a legitimate aim of testing their ability to deal with complex and abstract cases, and that reasonable adjustments had been made, including providing sample questions and permitting the candidate to have an assistant when completing the tests in Rackham v Judicial Appointments Commission ET/3303706/2020.
  • The EAT confirmed that the burden of proof is on the claimant, and not the defendant, when applying for an extension of time in a discrimination claim Polystar Plastic Ltd v Liepa [2023] EAT 100.
  • The EAT found that an employer’s decision to extend a termination date seven times and then not to offer the employee an opportunity to appeal against its final decision not to extend the termination date had neither breached the employee’s contract nor affected the reasonableness of the dismissal in Garcha-Singh v British Airways plc [2023] EAT 97.


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