Employment Case Law Update November 2023

does an employer have to give a reference


Read on for our monthly digest for employers on upcoming employment law changes and key, recent employment tribunal cases.


Unfair dismissal & Heat of the Moment Resignations

Omar v Epping Forest District Citizens Advice

This case involved Mr. Omar, who resigned verbally during a heated exchange with his line manager. Mr Omar subsequently sought to retract the resignation, but his employer disagreed and proceeded on the basis of the verbal resignation, bringing the employment to an end.

Mr Omar brought a claim for unfair dismissal.

The central issue in the case was whether Mr. Omar’s resignation was a genuine expression of intent to terminate his employment or whether it was said in the “heat of the moment” and did not reflect his true intentions.

At first instance, the tribunal found in favour of the employer.

On appeal, the EAT, in a unanimous decision, found that Mr. Omar’s resignation was not a genuine expression of intent and remitted the case to a fresh tribunal for reconsideration.

The EAT’s decision emphasized the importance of considering the surrounding circumstances when assessing whether a resignation is valid. In this case, the EAT noted that Mr. Omar had a history of positive performance reviews, had expressed a desire to continue working for the organisation, and had not taken any steps to finalise his resignation, such as clearing his desk or handing in his keys.

The EAT also stated that each case will turn on its own facts.


Employer takeaways

The EAT’s decision sets out important guidance for cases involving resignations made in the “heat of the moment.” It highlights the need for employers to carefully consider the context of an employee’s resignation before accepting it, and to be cautious about relying on verbal resignations made during emotional or stressful situations.
The recipient of the resignation should, in the eyes of the reasonable bystander, consider that the resignation was ‘seriously meant’, ‘really intended’ or ‘conscious and rational’.


Trade Union Recognition

Independent Workers Union of Great Britain v CAC

In November 2023, the Supreme Court delivered a landmark ruling in the case of Independent Workers Union of Great Britain (IWGB) v Central Arbitration Committee (CAC).

This case centered on the question of whether Deliveroo riders could be classified as “workers” under the Trade Union and Labour Relations (Consolidation) Act 1992, granting them the right to collective bargaining.

The IWGB, representing Deliveroo riders, had argued that the drivers were workers based on their degree of control over their work, their integration into Deliveroo’s business, and the absence of a mutuality of obligations between the riders and the company.

However, the CAC had previously ruled that the riders were independent contractors, not workers.

In a unanimous decision, the Supreme Court upheld the CAC’s ruling, concluding that Deliveroo riders were not workers under the 1992 Act. The Supreme Court considered various factors, including the drivers’ freedom to choose when and how to work, their ability to substitute others, and their lack of entitlement to benefits such as sick pay and holiday pay.


Employer takeaways

The Supreme Court’s decision has significant implications for the gig economy and the rights of platform workers. It suggests that individuals working for platform companies may face challenges in establishing their status as workers, potentially limiting their access to collective bargaining and other employment rights.

The decision has also sparked debate about the evolving nature of work and the need to adapt legal frameworks to reflect the changing dynamics of the gig economy.


National Minimum Wage Increases from April 2024

The Government has agreed with the recommendations of the Low Pay Commission in relation to increases in UK minimum wage rates.

Applicable from 1 April 2024, the increases will be at record levels:

  • 21 and over – £11.44 (increase of £1.02)
  • 18-20 – £8.60 (increase of £1.11)
  • 16-17 and apprentices – £6.40 (increase of £1.12)

The accommodation offset will £9.99 per day (increase of 89p).

For the first time, National Living Wage will also apply to all workers aged 21 and over. Under current rules, the NLW applies only to workers aged 23 and over.


Rehabilitation of Offenders

Section 193 of the Police, Crime, Sentencing and Courts Act 2022, which came into force on 28 October 2023, introduces significant amendments to the Rehabilitation of Offenders Act 1974 (ROA).

These amendments aim to reduce the periods of time after which certain offences become ‘spent’ and no longer need to be disclosed by an individual to an employer.

The following changes on declaring custodial convictions now apply:

Reduction of Rehabilitation Periods: Section 193 reduces the rehabilitation periods for a range of offences, including theft, fraud, and motoring offences. For example, the rehabilitation period for a theft conviction of up to £200 is now two years, compared to seven years under the previous regime.

  • Spent Offences Table: Section 193 introduces a new Spent Offences Table, which categorizes offences and specifies their respective rehabilitation periods. This table provides clarity and consistency in determining when offences become spent.
  • Discretionary Disclosure: Section 193 grants employers discretion to request disclosure of certain spent convictions where they consider it relevant to the job role. This applies to offences involving dishonesty, violence, or child protection.
  • Protections for Offenders: The amendments provide safeguards for offenders, ensuring that they are not unfairly disadvantaged by the disclosure of spent convictions. Employers must have a clear and justifiable reason for requesting disclosure and must consider the proportionality of the request.


Employer takeaways

The amendments introduced by Section 193 have several significant implications:

  • Reduced Disclosure Burden: Offenders will benefit from the reduced rehabilitation periods, meaning that their past convictions will become spent sooner, reducing the burden of disclosure and potentially opening up employment opportunities.
  • Fairer Recruitment Practices: Employers will be able to make more informed recruitment decisions based on an individual’s current circumstances and suitability for the role, rather than being solely influenced by past convictions.
  • Balance of Interests: The amendments strike a balance between protecting offenders from unfair disadvantage and safeguarding the interests of employers and the public.


Need assistance?

If you have a question about employment case law and the impact of tribunal and court decisions on your business, we can help. Working closely with our specialist human resource colleagues, we offer a holistic advisory and support service for employers encompassing both the legal and people risks of workforce management. Speak to our experts today for advice.

Last updated: 30 November 2023


Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.

She is a recognised by Legal 500and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.

Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

About DavidsonMorris

As employer solutions lawyers, DavidsonMorris offers a complete and cost-effective capability to meet employers’ needs across UK immigration and employment law, HR and global mobility.

Led by Anne Morris, one of the UK’s preeminent immigration lawyers, and with rankings in The Legal 500 and Chambers & Partners, we’re a multi-disciplinary team helping organisations to meet their people objectives, while reducing legal risk and nurturing workforce relations.

Legal Disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct at the time of writing, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

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