ELA Briefing - January/February 2026

BRIEFING

January/February 2026

MARC JONES 1 EDITORIAL Marjon Law

CASPAR GLYN KC 2 ELA NEWS Cloisters

NIKITA SONECHA 4 IN BRIEF Browne Jacobson

BECKY HARRIES, LOUISE BLOOMFIELD, JOEL ZYNGIER 7 A SPOTLIGHT ON SEXUAL HARASSMENT and LISA SYLVESTER

DAC Beachcroft LLP and Gilchrist Connell

LOTTIE MALLIN-MARTIN 11 JUDICIAL PROCEEDINGS IMMUNITY Guildhall Chambers, Bristol IN TRIBUNAL CLAIMS

CHARLES WYNN-EVANS 15 ANTI-COMPETITIVE BEHAVIOUR IN THE University of Bristol Law School LABOUR MARKET: CMA GUIDANCE

CHRISTOPHER JEANS KC 19 BOOK REVIEW: RATHER PECULIAR THINGS

11KBW

REBECCA TUCK KC and IMOGEN BROWN 21 THE BUTTERFLY EFFECT CURTAILED: Cloisters CAUSING DISCRIMINATION IN BAILEY v STONEWALL

ANDREW BERK 25 TURNER v WESTERN MORTGAGE SERVICES LTD

MSR Solicitors

ELIZA NASH 27 AVENUES INTO PRO BONO FOR ELA Pro Bono Committee EMPLOYMENT LAWYERS

IDS

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ISSN: 1474 7073

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Original design concept by Teresa Monachino www.studiomonachino.co.uk

Editor MARC JONES Marjon Law marc@marjonlaw.co.uk

Editorial committee

KATHLEEN BADA Charles Russell Speechlys LLP

CLARE FLETCHER

Slaughter and May

JO-ANNE GRAHAM / NICOLA TAYLOR Government Legal Department

DOUGLAS LEACH

Guildhall Chambers

RICHARD LINSKELL Gunnercooke LLP

CRAIG LUDLOW 3PB

SARA MEYER

DAC Beachcroft

NIKITA SONECHA Browne Jacobson

CHARLES WYNN-EVANS University of Bristol Law School

Advertising CYNTHIA CLERK Cynthiac@elaweb.org.uk

a word from the editor

A bumper edition of ELA Briefing to start the year. I hope you all had a wonderful festive break I write this editorial on Holocaust Memorial Day (27 January), which marks the anniversary of the 1945 liberation of Auschwitz-Birkenau. It commemorates the six million Jewish men, women and children murdered by the Nazi regime, alongside millions of victims of other Nazi persecutions and subsequent genocides. The day focuses on remembrance, education and combating contemporary hatred.

‘industry experts argue structural pressures –particularly IR35 enforcement – are driving widespread business closures’

Since the last edition of the Briefing, the Employment Rights Bill has received its Royal Assent. Employment law practitioners will be eagerly waiting for the Employment Rights Act 2025 to be implemented, with the first set of changes due to take place in February 2026 (see In Brief, pages 4-6 of this issue for more details). With the reduction of the qualifying period to bring a claim for unfair dismissal, not due until January 2027, it is highly unlikely that the tribunal backlog will have decreased in readiness for the expected influx of new unfair dismissal claims.

This month saw the notice of appeal filed at the Supreme Court in Rice v Wicked Vision UKSC/2026/0005 against the Court of Appeal’s decision holding that employers can be held vicariously liable for the detriment of dismissal caused by a co-worker, whereby employees can claim both automatic unfair dismissal (s.103A ERA) and detriment (s.47B ERA) for the same dismissal.

Keeping with the theme of whistleblowing, an article in Legal Futures this month highlighted criticism from a network of female general counsel urging the Law Society to withdraw its whistleblowing guidance for in-house lawyers. The group, the Eagle Club, argued that the guidance reinforces a longstanding bias against reporting wrongdoing. It called on the Law Society to collaborate with the SRA and other regulators to produce a single, authoritative framework that clearly supports inhouse lawyers making protected disclosures. The criticism followed draft guidance issued in the autumn by whistleblowing charity Protect, which advised lawyers to disclose specific factual information rather than suspicions. The Eagle Club warned that the guidance fails to address the core problem: in-house lawyers face serious legal, professional and personal risks when reporting misconduct, a systemic issue affecting corporate accountability nationwide.

An article in The Freelancer Informer found that UK company insolvencies hovered near 30-year highs throughout 2025, with IR35 and off-payroll working rules emerging as significant contributing factors. Government data reveals 13,453 individual insolvencies in England and Wales in December 2025 alone, with November-December totals 15% higher than the same period in 2024. While ministers blamed a temporary processing backlog, industry experts argue structural pressures – particularly IR35 enforcement – are driving widespread business closures. Construction and hospitality have been hit hardest, with construction accounting for 17% of all UK insolvencies in the year to September 2025. IR35 misclassification risks, retrospective HMRC tax bills, contractor ‘talent flight’ and shrinking outside-IR35 opportunities have pushed many firms and personal service companies into voluntary liquidation. Changes to Business Asset Disposal Relief and a more aggressive HMRC enforcement strategy in 2025 have further accelerated closures, with creditors’ voluntary liquidations now dominating insolvency cases.

If you would like an article to be considered by the editorial committee, please send it by 6 March to ELABriefingEditor@elaweb.org.uk

I sign off this month with a quote from Hungarian-American academic and psychiatrist Thomas Szasz: ‘The stupid neither forgive nor forget; the naive forgive and forget; the wise forgive but do not forget.’

Not a week goes by without one of our members contacting me about delays and issues arising out of the employment tribunal system such as the late pulling of hearings, adjournment of hearings on the day or the day before and the expense of delays and therefore the difficulty of accessing justice.

The statistics are alarming – 10,000 cases were disposed of in Q2 of 2025, but 26,000 new claims were received. In my view, it is proving difficult to recruit enough employment judges for the London Tribunals which makes the issues worst in the South East of England. Acas too is struggling and the sticking plaster solution of doubling the time for conciliation is a temporary fix at best.

The Government will not fund the current system

‘ELA has engaged with governments making the case for more resources to fund and address the backlog’

For many years, ELA has engaged with governments – both Conservative and Labour – making the case for more resources to fund and address the backlog. Cases are now being listed in some areas in four years’ time. The system is not coping and there is no sign that any government will foot the bill to fund the system. The truth is, and employment lawyers in my view need to recognise the ugly truth, that whatever colour of government, there will be higher priorities than funding employment justice to a level that would reduce the backlog.

ELA leading the way in reform

Four years ago, I wanted to find out if there was a better way to address employment disputes. We paid for an exploratory paper from Sarah Fraser Butlin, as she was then, on how other jurisdictions and countries dealt with dispute resolution. On the back of that paper, ELA’s Management Committee voted to fund a two-year research project on dispute resolution in the employment sphere, and we commissioned Professor Catherine Barnard and Sarah Fraser Butlin KC to deliver that research. The manuscript was delivered in November last year and it will be published and released at ELA’s Annual Conference.

Parallel to that research, in a piece of zeitgeist timing, ELA through myself, Catrina Smith and Kathleen Healy, has been engaging with a recently set up ministerial taskforce for tribunal reform, along with all sides of industry. Both ministers, Kate Dearden MP and Sarah Sackman MP with their expert officials, are united in looking for ways to address backlogs, delays and access to justice in order to vindicate the rule of law. A key part of the discussion feeding into considerations is the ELA research – and Catherine and Sarah have delivered a talk on the research to the taskforce.

For proposals to germinate and to encourage free discussion, confidentiality must be a part of the process. I can assure you, however, that everyone is working really hard. I want members of ELA to know that we are in the middle of a discussion helping to formulate workable proposals under the leadership of others.

There is no higher priority for us than addressing this issue that affects all of our members in every day of their work. I hope to report back once the taskforce makes its recommendations. More importantly, I hope that we can, again, deliver the rule of law to the employment tribunals so that all disputes are resolved in accordance with justice – and soon.

Recent activities

· Training Committee webinars included ‘A Chat with Niall Mackenzie, CEO of Acas’ on 22 January and a hybrid event, ‘What’s New in Employment Law: 2026’ on 28 January.

• The Legislative & Policy Committee responded to consultations on the draft code of practice governing the use of electronic and workplace balloting in statutory union ballots and elections, as well as ERB consultations on enhanced dismissal protections for pregnant women and new mothers and leave for bereavement (including pregnancy loss).

• The Pastoral Committee organised two webinars, ‘Let’s Talk about Money in Law’ on 21 January and ‘Sleep and Brain Health’ on 27 January.

Looking ahead

• Forthcoming Training Committee webinars include ‘Smart Justice? Navigating AI in Employment Disputes’ on 11 February.

• The ELA Annual Conference and Dinner will be held on 21 May 2026 in London.

• The Pro Bono Committee has organised a webinar, ‘Introduction to discrimination law: Basic concepts’ (4 February) for those in not-for-profit organisations.

• The Legislative & Policy Committee will be responding to a working paper on options for reform of non-compete clauses in employment contracts in February.

• The regions: there will be a half-day training course for the North East region in Newcastle (5 February), a ‘Solent Training Day’ in Southampton (6 February) and a Junior Training Day in Leeds (19 March). There will also be regional social dinners in Leeds (12 February) and Birmingham (13 February).

in brief

The Employment Rights Act 2025 constitutes a significant legislative intervention in employment law, introducing wide-ranging reforms to be implemented progressively across three distinct phases during 2026. Following a lengthy period of parliamentary ping pong between the House of Commons and the House of Lords, the legislation was finally agreed on 16 December, receiving Royal Assent two days later on 18 December.

Employment Rights Act 2025: provisions already in force

The first wave of reforms became operative upon Royal Assent, with subsequent provisions taking effect over the ensuing two-month period. Key measures now in force include:

‘the second implementation phase commences in April, introducing the more substantive elements of the legislative reform programme’

• enhanced prohibition on exclusivity clauses within zero-hours contractual arrangements; and

• key changes to industrial action provisions which take effect on 18 February, including abolition of the 40% support threshold in ballots for important public services; repeal of picketing supervision requirements; reduced information requirements for ballot notices and voting papers; reduction of advance notice of industrial action from 14 to 10 days; extension of the mandate period for industrial action ballots from six months to 12 months; and strengthened protection against dismissal for taking protected industrial action. Transitional arrangements apply based on when ballots open or when notices are received by employers.

April 2026 reforms

The second implementation phase commences in April 2026, introducing the more substantive elements of the legislative reform programme.

Parental rights

Entitlement to both paternity leave and unpaid parental leave will be conferred from the commencement of employment, removing the existing qualifying service periods. This means that from day one, new fathers and partners will be eligible for these entitlements – a significant change from the current requirement of 26 weeks’ continuous service. Currently, if a parent begins shared parental leave (ShPL), they lose access to statutory paternity leave and statutory paternity pay. From April, parents will be able to benefit from both ShPL and the two-week statutory paternity leave entitlement, regardless of the order in which they take them, providing greater flexibility for families.

Statutory sick pay

Significant amendments to statutory sick pay (SSP) will take effect, abolishing the lower earnings threshold and establishing entitlement to SSP from the first day of absence.

Sexual harassment disclosures and whistleblowing protections

The legislative framework for whistleblowing will be strengthened through express statutory confirmation that disclosures concerning sexual harassment constitute protected disclosures. Reports that harassment has occurred, is occurring or is likely to occur can qualify, provided the individual reasonably believes the disclosure is true and made in the public interest. The disclosure does not need to be substantiated at the point it is made. Any dismissal connected to such a

disclosure will be automatically unfair, regardless of length of service, provided the statutory whistleblowing tests are met.

Trade union recognition

The statutory procedures governing trade union recognition will be streamlined, reducing the procedural barriers to unions obtaining formal recognition rights within workplaces.

Collective redundancy

The legal thresholds for collective consultation are unchanged, but the financial exposure where consultation is mishandled will be significantly higher. The maximum protective award available in collective redundancy situations will be doubled from 90 days’ remuneration to 180 days’ remuneration.

Fair Work Agency

A new enforcement body, the Fair Work Agency, will be established with responsibility for monitoring and enforcing compliance with national minimum wage legislation, statutory sick pay entitlements and holiday pay obligations. The agency will have powers to recover underpayments of statutory entitlements within its enforcement remit directly from employers, without relying on individuals to pursue tribunal claims themselves. It will also be able to bring employment tribunal claims on behalf of workers and provide legal assistance or representation where claims have already been issued.

October 2026 reforms

The third implementation phase will take effect in October 2026.

Sexual harassment and third-party harassment

Employers will be subject to a proactive statutory duty to take ‘all reasonable steps’ to prevent both sexual harassment and third-party harassment occurring in the workplace. Statutory guidance to assist employers in discharging this duty is anticipated to be published by the Government in 2027.

Fire and rehire practices

New statutory protections will render dismissals for refusing proposed contractual variations automatically unfair, save where the employer can demonstrate that it is facing significant financial difficulty.

Trade union recognition and balloting reforms

Various additional rights and protections relating to trade unions will be introduced or strengthened under the Act, including a new statutory duty requiring employers to inform workers of their right to join a trade union, extended protections against detriments for workers taking industrial action, strengthened protections relating to dismissal in connection with industrial action and new trade union access rights to workplaces.

Employment tribunal time limits

The time limit for instituting employment tribunal claims will be extended from three months to six months.

Single sex spaces

The legal framework governing single sex spaces is expected to evolve further during 2026 following the decision in For Women Scotland v Scottish Ministers

[2025] UKSC 16, which established that the term ‘sex’ as defined in the Equality Act 2010 refers to biological sex. The Equality and Human Rights Commission (EHRC) is expected to publish its Code of Practice for Services during 2026.

Ethnicity and disability pay reporting

The proposed Equality (Race and Disability) Bill is expected to be published in draft form for public consultation by the conclusion of spring. This legislation will extend the existing equal pay framework to encompass both ethnic minorities and disabled persons, and will additionally impose mandatory reporting obligations in respect of ethnicity and disability pay gaps.

Revised codes of practice

The Department for Business and Trade has published two draft revised codes of practice for consultation, to be issued pursuant to s.205 of the Trade Union and Labour Relations (Consolidation) Act 1992. These revised codes address industrial action ballots and notice requirements to employers, and picketing in the context of trade disputes, reflecting provisions within the Employment Rights Act 2025 scheduled to take effect on 18 February.

Paternity Leave (Bereavement) Act 2024 (Commencement) Regulations 2025 (SI 2025/1342)

The regulations bring into force, with effect from 29 December 2025, the entirety of the Paternity Leave (Bereavement) Act 2024. The Act establishes a statutory entitlement to paternity leave in circumstances where a mother, or a person with whom a child is or is expected to be placed for adoption, dies. Additionally, the Bereaved Partner’s Paternity Leave Regulations 2026 are expected to extend this leave to 52 weeks, coming into force in April. These changes aim to provide support to fathers and partners during difficult times, ensuring they can take leave without the constraints of previous regulations.

A spotlight on sexual harassment

ELA looks at what the future may hold with further changes to protect employees from sexual harassment due this year in Britain, and considers what lessons can be learnt from Australia.

Employers have sought to meaningfully engage with the duty to take reasonable steps to prevent sexual harassment of employees within the workplace since the introduction of s.40A of the Equality Act 2010 (EqA) in October 2024.

As we enter a new year, we look ahead to future changes under the Employment Rights Act 2025 (ERA 2025) to further protect employees from sexual harassment, towards changing business culture regarding non-disclosure agreements (NDAs) and, in particular, what lessons can be learnt here from the Australian experience.

Third-party harassment

In Britain, it is envisaged that in October 2026, the ERA 2025 will require employers to prevent third-party harassment in respect of all types of harassment under the EqA, and therefore all relevant protected characteristics covered by s.26 of the EqA. The employer would be liable if a third party harasses an employee in the course of their employment and the employer failed to take all reasonable steps to prevent this. Single instances of third-party harassment would be caught.

While the third-party provisions in the EqA have been repealed for more than 10 years, these new provisions create far greater obligations on employers, with the previous provisions only requiring the employer to take ‘reasonably practicable steps’ to prevent harassment and, in order to be liable, to know that an employee had been harassed on at least two occasions by a third party.

In Australia, third-party harassment is governed by the Sex Discrimination Act 1984 (Cth) (SDA). In December 2022, the SDA was amended to strengthen employees’ workplace protections including against sexual harassment by third parties (such as clients, customers or contractors). The new s.47C SDA introduced a positive duty on employers and persons conducting a business or undertaking to take ‘reasonable and proportionate measures’ to eliminate unlawful conduct, including sexual harassment, as far as possible. Employers can now be held liable if a third party sexually harasses an employee in connection with work, unless the employer can show that they took all reasonable steps to prevent it.

These changes result from the recommendations of Respect@Work, the Australian Human Rights Commission’s report of the National Inquiry into Sexual Harassment in Australian Workplaces 2020.

Lessons to be learned

Australian employers have been encouraged to move with the times by taking active measures to mitigate the risk of third-party harassment. Risk assessments are key, with employers examining areas where employees come into contact with third parties (for example, front desks, client meetings and off-site visits), assessing employee vulnerability and considering any particularly high-risk areas and interactions. For example, this may include lone working, night shifts or roles with power imbalances. Steps to mitigate these identified risks include updating policies and training, considering environmental controls (such as security cameras, panic

A spotlight on sexual harassment

‘in Australia, the positive duty to prevent sexual harassment at work has imposed further obligations on employers and made it harder to defend claims of sex discrimination’

buttons or buddy systems) and limiting the extent to which lone workers are required to interact with third parties.

Steps taken by employers in Britain to engage with the obligation to take reasonable steps to prevent sexual harassment (see below) are similar to those taken in Australia. Extending such steps to address all protected characteristics (risk assessments, supply chain communications, etc) would stand them in good stead when the changes take effect.

The duty to prevent sexual harassment

In Britain, it is envisaged that in October 2026, the ERA 2025 will require employers to take ‘all reasonable steps’ to prevent sexual harassment at work, as opposed to simply ‘reasonable steps’, as has been the case since the preventative duty came into force on 26 October 2024. What may amount to a ‘reasonable step’ is to be set out in regulations.

Since 2022, employers in Australia have been under a positive duty under the SDA to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment, sex-based harassment, hostile workplace environments on the ground of sex and related acts of victimisation. This is a proactive duty rather than one which applies only after an incident occurs. To defend an allegation of vicarious liability for unlawful sexual harassment by an employee or agent, an employer must show that it took ‘all reasonable steps’ to prevent it.

Lessons to be learned

In Australia, the positive duty to prevent sexual harassment at work has imposed further obligations on employers and made it harder to defend claims of sex discrimination (which includes sexual harassment). In addition to alleging unlawful sexual harassment, plaintiffs now routinely also allege that the employer has failed to comply with the positive duty. The courts have set a high bar as to the meaning of ‘all reasonable steps’ and Australian employers have had to closely follow the judicial guidance. There are no reported cases in which an employer has successfully avoided vicarious liability by persuading a court that it took ‘all reasonable steps’ to prevent sexual harassment.

In Britain, employers will likely face the same difficulties as in Australia, as evidenced by the very high bar in seeking to utilise the existing ‘all reasonable steps’ defence against discrimination claims under the EqA. If an employer fails to comply with the existing duty to prevent sexual harassment, s.124A EqA enables tribunals to apply a 25% uplift in compensation where an employee succeeds in a sexual harassment claim, and the Equality and Human Rights Commission (EHRC) can take enforcement action even in the absence of an employee claim.

Extending the duty to require ‘all reasonable steps’ will make it harder for employers to comply. Regulations setting out examples of reasonable steps may provide helpful clarity. However, while the extension of the duty is expected to take effect in October 2026, those regulations are not due to be published until 2027. It is also unclear how high they will set the bar and whether they will address how employers’ sector, size and resources may affect what is reasonable.

Furthermore, the Government impact assessment suggests that employers with more than 250 employees may be required to report their action plans regarding sexual harassment through the gender pay gap reporting portal (with wider reporting requirements also intended for gender equity which are outside the scope of this article). It is anticipated that the EHRC will take on enforcement of the requirement to produce action plans.

Sexual harassment and whistleblowing

In Britain, in April 2026, a subtle but key change is intended to be made to whistleblower protection. Under the Public Interest Disclosure Act 1998 (PIDA), a worker qualifies for whistleblower protection if they make a disclosure which they reasonably believe tends to show a particular wrongdoing, and they reasonably believe that they are acting in the public interest in making it.

A

spotlight on sexual harassment

‘in Britain, in April 2026, a subtle but key change is intended to be made to whistleblower protection’

Such wrongdoings include those relating to criminal offences, failures to comply with a legal obligation, miscarriages of justice, dangers to health and safety, damage to the environment or covering up wrongdoing in relation to one of those things. A disclosure about sexual harassment may already be covered by this list (for example, as a criminal offence, a failure to comply with a legal obligation, or a health and safety issue). However, under the ERA 2025, sexual harassment will be expressly added to the PIDA list of wrongdoings.

In Australia, both the SDA and the Fair Work Act 2009 (Cth) prohibit employers from taking detrimental action against a worker because they have raised a concern about sexual harassment. This is distinct from whistleblower protection under the Corporations Act 2001 (Cth). Disclosures are only protected under that legislation if they relate to misconduct or an improper state of affairs in a company, such as breaches of the Corporations Act, fraud, bribery, or corruption or conduct that poses a danger to the public or financial system. Although disclosures about sexual harassment could, in theory, fall within the Corporations Act whistleblower protections, this would be unusual.

Lessons to be learned

In Australia, employees who have complained about sexual harassment against themselves or another person and are later subject to disciplinary action will often allege a causal nexus between their complaint and the disciplinary action, claiming that their employer should be liable for victimisation or unlawful retaliation.

In Britain, there is similar and longstanding protection against victimisation under the EqA. However, with the ERA 2025 providing express whistleblowing protection in respect of disclosures about sexual harassment, there may be an increase in whistleblowing detriment and dismissal claims from employees who are disciplined or dismissed after raising such concerns, including an increased possibility of interim relief applications. There may also be implications for internal whistleblowing policies and procedures for British employers.

To mitigate risk, employers in both jurisdictions should ensure they have sound evidence of the need for disciplinary action, clearly document their reasons and follow fair and lawful procedures when doing so.

Non-disclosure agreements

In Britain, in summer 2025, a new proposal was included in the ERA 2025 regarding NDAs to restrict their use in respect of discrimination and harassment. (This follows other recent restrictions on NDAs relating to higher educational establishments, and also the victims of crime.) It is intended that terms within agreements that seek to prevent the disclosure of allegations, or the employer’s response to alleged discrimination/harassment (or to the employee’s disclosure), would be unenforceable.

The provisions are intended to cover all protected characteristics and all types of discrimination and harassment. Non-derogatory statements clauses that are often included in settlement agreements are also intended be caught. When such NDAs may nonetheless be permitted (so-called ‘excepted agreements’) will be subject to consultation. There are also proposals to broaden the prohibition to agreements with ‘other worker-like individuals’ (for example, independent contractors, those undertaking training, etc).

In Australia, on 20 November 2025, the State of Victoria passed a Bill (scheduled to commence on 20 May 2026) to restrict the scope and enforceability of NDAs relating to sexual harassment at work (Restricting Non-disclosure Agreements (Sexual Harassment at Work) Bill 2025 (Vic)). The changes will not apply retrospectively.

Under the Bill, employers (and individual respondents) involved in workplace sexual harassment claims will no longer be able to offer a settlement in exchange for a complainant’s complete silence – that is, an NDA – save in limited circumstances. NDAs can only be entered into and enforced where all of the express preconditions set out in the Bill apply. These preconditions are:

• the complainant asks to enter into a NDA and it is their express wish and preference;

• after requesting the agreement and before entering into the agreement, the complainant is given a copy of a prescribed workplace NDA information statement;

A spotlight on sexual harassment

• the complainant is given at least 21 days to review the agreement before entering into the agreement (unless this is waived);

• before the complainant enters into the agreement, the complainant acknowledges in an approved form the above preconditions have been met; and

• no one connected with the employer exerts undue influence or undue pressure in relation to the complainant’s decision as to whether or not to enter into an NDA.

Under the Bill, even with an NDA in place, the complainant may still permissibly disclose information relating to the sexual harassment in certain circumstances. The Bill permits disclosure to prospective employers in order for the complainant to obtain or maintain work and disclosure to friends or family members who agree to keep this information confidential for the purposes of providing support to the complainant. The information which may be disclosed is the alleged or actual perpetrator’s identity and any details about the commission of the actual or alleged sexual harassment.

However, complainants will not be permitted to disclose information about the amount of any financial compensation paid to them in respect of the sexual harassment.

Lessons to be learned

In the State of Victoria, it is expected that restricting the use and application of NDAs may reduce employers’ and alleged perpetrators’ willingness to settle defensible claims, as they will not be assured of confidentiality about the facts whether or not the matter is litigated. Additionally, the quantum of settlement payments may reduce, with employers no longer incentivised to pay a premium for confidentiality. Victorian employers facing sexual harassment claims and legal practitioners advising them must ensure they are familiar with the legislation, so that the employer can make sound strategic decisions. For similar reasons, employment practices liability insurers should consider the potential impact on management and defence of sexual harassment claims, including greater exposure to defence costs and longer life of a claim.

In Britain, the implications of the proposed change under the ERA 2025 are likely to be similar but more wide reaching as the prohibition is intended to apply in respect of NDAs concerning all forms of discrimination and harassment. Employers will also need to amend carve outs from confidentiality provisions in employment contracts and settlement agreements to ensure compliance.

Conclusions

The upcoming changes in Britain show the intention to increase transparency at all stages of employment, broadening certain protections to additional protected characteristics and discrimination claims, and requiring further positive steps from employers. The intended broad prohibition of NDAs twinned with the inclusion of allegations related to sexual harassment as a specific protected disclosure seeks to place a spotlight on sexual harassment particularly, further encouraging employers to address concerns at an early stage.

Becky Harries and Louise Bloomfield work for DAC Beachcroft LLP and Joel Zyngier and Lisa Sylvester are at Gilchrist Connell in Australia.

‘the upcoming changes in Britain show the intention to increase transparency at all stages of employment’ KEY: EqA Equality Act 2010 ERA 2025 Employment Rights Act 2025 NDAs Non-disclosure agreements

Equality and Human Rights Commission

Interest Disclosure Act 1998

Judicial proceedings immunity in tribunal claims

LOTTIE MALLIN-MARTIN, Guildhall Chambers, Bristol

The Briefing explores the concept of judicial proceedings immunity following the recent Court of Appeal decision in Erhard-Jensen.

Judicial proceedings immunity (JPI) is a long-established common law principle, with its roots dating back to the 16th century. The JPI defence was introduced to protect witnesses, advocates and judges from civil claims arising out of statements made during a case. The rule seeks to preserve the integrity of judicial proceedings and to ensure that those engaged in civil or criminal litigation should be able to speak freely, without fear of suit.

The scope of the JPI involves a balance between two, sometimes competing public interests:

• every wrong should have a remedy; and

• the encouragement of freedom of speech and communication in legal proceedings, which is necessary to protect the proper administration of justice. Such is the importance of the JPI principle to the integrity of the legal process, that ‘the immunity has been held to apply to whatever claim was being made against the advocate or witness for things done or spoken in court and however ingeniously such a claim was framed’ (XGY, para 10).

Courts have also been willing to extend the core JPI principle to cover statements made to ‘quasi-judicial’ bodies. In Erhard-Jensen, it was common ground that arbitration proceedings in Singapore were quasi-judicial in nature. Other cases in which there has been a finding that the statement was made to a quasi-judicial body include White (the General Medical Council (GMC)); Huda (the General Osteopathic Council); Lincoln (Benchers of the Inns, at a time when they were responsible for handling complaints against barristers); Mayer (the Bar Standard Boards, which assumed the disciplinary function of Benchers in 2006); and Baxendale-Walker (the Solicitors Regulation Authority (SRA) and the Solicitors Disciplinary Tribunal (SDT)).

The JPI rule is not a rule of law, though, but a principle grounded in public policy (Jones, para 88). For a long time, the JPI defence could only be outflanked by a successful claim for the tort of malicious prosecution, which demands a claimant prove they have suffered damage as a result of a criminal or civil case which was brought maliciously and without reasonable cause, and was not a bona fide use of the court process (Willers). More recently, it has been held the rule cannot shield advocates and experts from claims in negligence. As with any rule of public policy, it should be considered in the light of present-day conditions (Jones, para 112). That is especially important because the JPI rule ‘benefits the malicious as well as those who act in good faith’ (Erhard-Jensen, para 109 of the EAT decision).

For employment practitioners, it is interesting that so many of the appellate authorities are concerned with civil claims of, for instance, defamation and conspiracy to injure. There is relatively little case law on how JPI might interact with claims to enforce employment rights founded in statute. In Parmar (which was approved in Aston v Martlet Group Ltd), the EAT held that the JPI principle could outflank a claim of victimisation under s.27 EqA which relied on evidence contained in witness statements served during the tribunal process.

In Singh, the Court of Appeal held that it was permissible for a claimant to bring a claim not about the content of a witness statement from her former colleague, but on the alleged illegitimate pressure that was applied to that witness to produce (what the claimant said was) a false trial statement. In P, the Supreme Court held that a police officer could bring EqA claims about the handling of a disciplinary process, notwithstanding the process was handled by a quasi-judicial misconduct panel.

Judicial proceedings immunity in tribunal claims

‘for a long time, the JPI defence could only be outflanked by a successful claim for the tort of malicious prosecution’

Parliament has chosen to confer extensive protection on those who suffer detriment and disadvantage because, for instance, they do a protected act in accordance with s.27 EqA or make qualifying disclosures in accordance with s.43B ERA. It is very difficult to prove ‘malice’, and, of course, in tribunal claims, claimants do not need to prove malice to make good their claims of victimisation or whistleblowing detriment. Claimants and their representatives might feel it is inherently unsatisfying to be barred from bringing these sorts of claims in tribunals, particularly those which appear well-founded.

The Court of Appeal’s decision in Erhard-Jensen

Mr Rogerson worked for a Mr Werner Erhard. He resigned in 2019. After his resignation, Mr Rogerson alleged that Mr Erhard had been verbally and physically abusive towards staff. Mr Rogerson claimed he had made a protected disclosure.

In 2021, Erhard-Jensen, a Singapore-registered charity linked to Mr Erhard, commenced arbitration proceedings against Mr Rogerson in Singapore. Erhard-Jensen sought damages and an injunction to restrain Mr Rogerson from contacting past and present staff. Erhard-Jensen accused Mr Rogerson of making false allegations (including the allegations of physical and verbal abuse) to extract a settlement.

Mr Rogerson issued an employment tribunal claim against Mr Erhard and Erhard-Jensen for postemployment whistleblowing detriment, which included a complaint about the commencement of arbitration proceedings in Singapore. ERA s.47B(1) confers a right on a worker not to be subjected to any detriment by any act (or any deliberate failure to act) by his employer on the grounds that he has made a protected disclosure. Readers will be familiar with Shamoon and the broad test for detriment, namely whether a reasonable worker might take the view that they have been subject to a disadvantage.

Erhard-Jensen sought to strike out Mr Rogerson’s complaint about the arbitration proceedings on the grounds of JPI. At first instance, the employment judge refused to strike out the detriment claim. That decision was overturned on appeal before Williams J, who held it was important to focus on the pleaded detriment and identify the extent to which it relies upon something said or done in earlier judicial or quasi-judicial proceedings (EAT, para 92). She held that the core JPI principle included statements of case and other documents placed before the court, and that would include the document commencing proceedings (such as a claim form, application notice or in this case, arbitration notice).

This analysis was overturned by the Court of Appeal (Andrews, Elisabeth Laing and Males LJJ). Drawing on Singh and XGY, Andrews LJ concluded that JPI attaches to statements made in court or during litigation from the start of proceedings onwards, but not to the act of initiating proceedings itself. She rejected ErhardJensen’s argument, rooted in Lincoln, that JPI applies to everything done from the inception of proceedings. Furthermore:

• the Court of Appeal highlighted the potential absurdity of a situation where a worker threatened with legal proceedings for making a protected disclosure could bring a detriment claim, yet would have no remedy if the threat was carried out (para 13);

• the court countenanced against parties becoming too bogged down by the way in which the case was pleaded. The JPI defence cannot depend on the facts and circumstances of the individual case (paras 48 and 49); and

• the court seemed unconcerned by Erhard-Jensen’s argument that to establish a causative link between the disclosure and detriment, the tribunal would need to interrogate the contents of the statement of case. Andrews LJ said: ‘The complaint is about the proceedings themselves, and their impact upon Mr Rogerson. Statements made in the proceedings, whether in the request for arbitration or in the statements of case, do no more than evidence the link between the act complained of (commencing arbitration) and the protected disclosures’ (para 50).

The judgment concludes with very powerful statements from Andrews and Males LJJ about the public policy underlying the protection afforded to whistleblowers. As Males LJ said: ‘The provisions of

Judicial proceedings immunity in tribunal claims

‘the Court of Appeal’s decision in Erhard-Jensen stands as a clear statement of principle that the JPI defence should be re-assessed in light of present-day conditions’

the [ERA] demonstrate a clear intention on the part of Parliament to provide a remedy, available in the [employment tribunal], for a worker who suffers a detriment as a result of making a protected disclosure. For that remedy to be defeated by a claim for [JPI] in circumstances such as exist here would be contrary to that clear parliamentary intention’ (para 58).

What next for the JPI defence in employment tribunal claims?

The Court of Appeal’s decision in Erhard-Jensen stands as a clear statement of principle that the JPI defence should be re-assessed in light of present-day conditions, or else it risks eroding the statutory protection afforded to whistleblowers. But what about claims other than whistleblowing detriment? The Court of Appeal’s decision might apply neatly to other detriments claims in the ERA, or a case of victimisation under the EqA. The definition of ‘subjecting B to any other detriment’ in ss.39(4)(d) EqA is broad, and to be actionable in the tribunal, complaints need to properly relate to a claimant’s work, applying s.120(1)(a) EqA.

However, it is important not to overstate the reach of the Erhard-Jensen decision. It is concerned with the respondent’s act of commencing proceedings, rather than statements made during those proceedings. It is the act of issuing a claim which places the worker at a detriment because they incur the cost and stress of defending the same (para 11). The decision might not help those who act for regulated professionals, such as lawyers, doctors and nurses, who find themselves reported to their regulator for allegedly retaliatory reasons. What distinguishes these sorts of cases from Erhard-Jensen is that it is the regulatory body that assesses the complaint raised by the employer and which decides whether the matter should proceed to a formal investigation. There is Court of Appeal authority which says that the act of making a complaint to the police is protected by JPI (Westcott, para 36). Even in Erhard-Jensen, the court agreed that JPI would attach to the act of providing information for use in court proceedings (para 46). One can see those passages being applied by analogy to a case concerning reports to a regulator, and perhaps for good reason. As the court said in Westcott, ‘The potential complainant must know in advance … that her complaint will be immune from a direct or a flank attack’ (para 36). Courts, and regulators, understandably want to encourage parties to speak up about serious issues which might affect the fitness and propriety of regulated professionals to perform their role. That, of course, must be balanced against the disastrous effect which unfair, retaliatory reports might have on a person’s health and ability to work.

Conclusion

JPI remains a complex and evolving area, particularly in the context of employment tribunal claims. The decision in Erhard-Jensen clarifies that JPI does not attach to the act of bringing proceedings, preserving the remedies intended by Parliament for whistleblowers and potentially other claimants under employment law. It will be interesting to follow how tribunals apply this case to other, judicial and quasi-judicial proceedings, particularly those involving regulated professionals.

Judicial proceedings: immunity in tribunal claims

‘JPI remains a complex and evolving area, particularly in the context of employment tribunal claims’

KEY:

Erhard-Jensen Daniel Rogerson v ErhardJensen Ontological/ Phenomenological Initiative Ltd [2025] EWCA Civ 1547, [2024] EAT 35, [2025] ICR 333

JPI Judicial proceedings immunity

XGY

XGY v CC Sussex Police [2025] EWCA Civ 1230

White White v Southampton University Hospitals NHS Trust [2011] EWHC 825 (QB)

GMC General Medical Council

Huda Huda v Wells [2017] EWHC 2553 (QB)

Lincoln Lincoln v Daniels [1962] 1 QB 237

Mayer Mayer v Hoar [2012] EWHC 1805 (QB)

Baxendale-Walker

Baxendale-Walker v Law Society [2011] EWHC 998 (QB)

SRA Solicitors Regulation Authority

SDT Solicitors Disciplinary Tribunal

Jones Jones v Kaney [2011] UKSC 13, [2011] 2 AC 398

Willers Willers v Joyce [2016] UKSC 43, [2018] AC 779

Parmar Parmar v East Leicester Medical Practice [2011] IRLR 641

Aston Aston v Martlet Group Ltd [2019] ICR 1417

Singh Singh v Reading BC [2013] EWCA Civ 909

EqA Equality Act 2010

ERA Employment Rights Act 1996

P P v Commissioner of Police of the Metropolis [2017] UKSC 65, [2018] IRLR 66

Shamoon Shamoon v Chief Constable of Royal Ulster Constabulary [2003] UKHL 11, [2003] 2 All ER 26

Westcott Westcott v Westcott [2008] EWCA Civ 818

Anti-competitive behaviour in the labour market: CMA guidance

CHARLES WYNN-EVANS, University of Bristol Law School

A new guide offers a useful reminder for employers of the issues of which they need to be aware from a competition law standpoint in relation to the engagement of staff and their dealings in that regard with other employers.

In September 2025, the Competition and Markets Authority (CMA) published a guide entitled ‘Competing for talent – What businesses need to know when recruiting workers and setting pay and other working conditions addressing anti-competitive behaviour when recruiting and retaining staff’.

While engagement in professional networks and industry forums will not, in general, terms be problematic, the guide observes that collusion – as distinct from competition relating to the hiring or setting of pay and other working conditions of workers – can have harmful consequences including reducing employees’ pay packets, mobility, and choice and limiting the ability of businesses to expand.

Competition law and the labour market

The guide explains that the Competition Act 1998 (the 1988 Act) prohibits anti-competitive practices – such as the sharing of information – and various forms of anti-competitive agreements between businesses, both formal and informal, and whether or not written, including ‘gentlemen’s agreements’ and those arising through ‘social contacts or informal interactions’.

Agreements between employers about wages or working conditions can fall within the scope of this prohibition since employers can be competitors for workers even if they operate in different business sectors. The example given is of a manufacturing company and a software company headquartered in the same locality which do not compete when selling products but might compete for workers such as software specialists – an agreement not to hire each other’s engineers or setting a ceiling on their pay could be unlawful.

The guide identifies the following three forms of anti-competitive behaviour in the context of the labour market which could contravene the 1998 Act and provides examples in each case which offer useful material, not least for the purposes of employers’ training of relevant staff on the issues that need to be considered.

No poaching agreements

The guide explains that (unsurprisingly) under a no poaching agreement a business agrees not to hire the employees of another business or to poach or solicit them (whether or not consent is required).

Helpfully, the guide also clarifies that commercial agreements such as secondment, consultancy or service provision agreements pursuant to which a client agrees not to hire a service provider’s employees during, and for a prescribed period after, the relevant engagement may potentially not contravene the 1998 Act, ‘if they are necessary to enable the agreement to be carried out and are proportionate to the overall objectives of the agreement, and provided that the clause’s duration, subject matter and geographical scope do not go beyond what is reasonably required’.

Anti-competitive behaviour in the labour market: CMA guidance

‘information already readily available to the public is generally unlikely to be competitively sensitive’

Wage fixing

The guide describes wage fixing as where businesses that compete for the ‘same type of employees’ agree to fix pay, benefits or other terms and conditions of employment, including, for example agreeing the same wage increase rates or setting caps on pay. The example provided is of members of an industry forum agreeing to limit pay increases to a particular percentage following discussion of pressure from their workforces for pay increases for specific roles. Both the trade association and its members are likely to be found to have engaged in what the guide describes as an illegal wage fixing arrangement.

Exchange of ‘competitively sensitive’ information and ‘benchmarking’

The guide acknowledges that information exchange and benchmarking occur in competitive markets and can be beneficial by facilitating efficiency and, in particular in the HR management context, informed decisions about, for example, pay, benefits and recruitment strategies. Nonetheless, it highlights that the exchange of ‘competitively sensitive’ information – including where competition is for talent – can restrict competition, although the nature of the information, how it is exchanged and the nature of the market in question will all be relevant to whether competition law is contravened.

For these purposes, information can be ‘competitively sensitive’ if it ‘reduces uncertainty as to the operation of the market in question’ and/or ‘could influence the competitive strategy of other businesses’ and can extend to information relating to hiring and remuneration decisions.

By way of further ‘high-level’ guidance the guide:

• indicates that information already readily available to the public is generally unlikely to be competitively sensitive;

• draws a distinction between ‘aggregated’ and ‘individualised’ information. The more easily information is attributable to a particular business, the more competitively sensitive that information is likely to be –whereas information that is anonymised and aggregated so that the information and business strategy of an individual business cannot be deduced is less likely to be of concern;

• notes that the age of any information exchanged or the period to which it relates does not of itself determine whether it is competitively sensitive. What matters is the capacity of the information to reduce market uncertainty and/or influence strategic decision-making. Nonetheless, historic information or statements are less likely to be competitively sensitive than current information (or statements concerning current events) and statements about future events are more likely to be competitively sensitive; and

• makes the point that the unilateral disclosure of competitively sensitive information to a competing business can contravene the 1998 Act. Importantly, as the guide puts it, the recipient will be presumed to have taken such information into account, and to have adapted its conduct accordingly, unless it publicly distances itself (for example, by responding with a clear statement that it does not wish to receive such information) or reports the contact to the appropriate authorities.

Information exchange: examples

The examples provided by the guide of more problematic instances of the exchange of information relate to scenarios including the bilateral or unilateral exchange of pay or future pay intentions, legitimate discussions that stray into the exchange of competitively sensitive information and the multilateral exchange of information through a third party such as an HR consultancy where the information is useful, for example, to setting salaries and benefit packages. That these are serious issues is also illustrated by the real-life case study provided in the guide concerning the sharing by five businesses involved in the production and broadcasting of sports content of information concerning the engagement of freelancers with a view to aligning their pay rates – with fines being imposed fines on four of them totalling over £4 million.

The examples provided by the guide of less problematic instances of the exchange of information include:

• benchmarking using a third party that ensures that the information shared by the participating employers is anonymised and sufficiently aggregated so that no individual firm can be identified and the underlying company-specific information is not disclosed by the HR consultancy;

Anti-competitive behaviour in the labour market: CMA guidance

‘individuals involved in “cartel activity” can be prosecuted and sentenced to up to five years in prison and/or a fine’

• benchmarking using public data; for example, salary information published by the Office of National Statistics (ONS) and in job advertisement forums; and

• benchmarking on HR matters that are not competitively sensitive – the example given being discussions confined to partnering with universities to build skills for future graduate talent in order to address skills gaps in the relevant sector.

Collective bargaining

The guide confirms that collective bargaining will not be the subject of CMA enforcement action provided that it is conducted without inappropriate collusion. It notes that the CMA ‘will not seek to enforce competition law whenever workers and companies buying their labour come together to reach a genuine collective bargain … irrespective of whether the workers are employed or self-employed’.

Importantly, the guide acknowledges that the parties’ respective representatives may need to coordinate their approach to negotiations; for example, in relation to their substantive goals and negotiation strategy. Nonetheless, the guide emphasises that, when gathering information to prepare for collective bargaining, ‘employers should not exchange competitively sensitive information among themselves unless it’s absolutely necessary, and only if the purpose of such an exchange can’t be achieved by other means (for example, by using an independent party to aggregate and anonymise the data as outlined above)’. The point is made that the same considerations apply in respect of self-employed workers and their representative organisation(s).

The example provided in the guide indicates that for a HR consultancy to produce a recommendation for a group of employers for the purposes of collective bargaining about minimum pay rates based on historic pay information provided by the employers in question, but which does not involve distribution of employer specific information, would not attract enforcement action. However, for those employers then to collude in deciding not to offer a pay rate higher than that recommended ‘may turn into a form of wage fixing’ and ‘is likely to be considered anti-competitive and unlawful, because it reduces pay competition, limits worker options, and may suppress wages unfairly’.

Breaches of competition law

Breaches of competition law can be serious for both business and individuals. The guide notes that businesses that breach competition law can be fined up to 10% of their annual worldwide turnover and ordered to change their behaviour, prevented from bidding for public contracts and exposed to private damages actions. Individuals involved in ‘cartel activity’ can be prosecuted and sentenced to up to five years in prison and/or a fine. Company directors can be disqualified for up to 15 years.

The guide provides contact details for the CMA for the purposes of seeking confidential guidance or reporting ‘illegal business cartels’ (which is encouraged and as a result of which a reward or leniency for those involved in an illegal cartel may result).

Avoiding competition law breaches

The guide makes several, perhaps unsurprising but nonetheless important, recommendations for employers seeking to avoid the risk of breaches of competition law. They should ensure that they understand how competition law applies to labour markets and, more specifically, should:

• not agree with other businesses to fix wages;

• not agree with other businesses not to approach or hire each other’s employees;

• not share competitively sensitive information about their business or employees with competing employers (either directly or indirectly);

• provide recruitment staff with training on competition law and its application to recruitment; and

• and ensure that ‘solid internal reporting processes’, of which staff are aware, are in place.

Anti-competitive behaviour in the labour market: CMA guidance

‘the guide is a helpful reminder for employers of the perils – and potentially serious consequences – of engaging in discussions with competitor employers’

Conclusion

Much of what the guide says may appear obvious to those familiar with the issues it addresses. Nonetheless, it is a helpful reminder for employers of the perils – and potentially serious consequences – of engaging in discussions with competitor employers which could contravene competition law. It also provides a valuable prompt – and justification – for employers to revisit and, where appropriate, update their policies, guidance and training arrangements for employees in this context and to insist that relevant staff take the issues seriously. Training may need to be provided not just for recruitment staff as indicated by the guide but also for human resources teams more broadly and for other executives who interact with competitors. Employers also need to ensure that industry discussion groups and trade fora in which they participate have suitable protocols in place to ensure that breaches of competition law are avoided and that developing discussions that could lead to an actual or potential breach are identified and managed promptly and appropriately in real time. These are potentially important and topical issues which may require employers’ attention.

KEY:

CMA Competition and Markets Authority

1998 Act Competition Act 1998

ONS Office of National Statistics

Book review: Rather Peculiar Things

CHRISTOPHER JEANS KC, 11KBW

Peter Oldham KC’s, ‘Law and Politics at the National Industrial Relations Court 1970-75: Rather Peculiar Things’, gives extraordinary insights into the legal, political and industrial strife in the UK of the early 1970s.

It is Thursday 15 June 1972. The Cabinet is discussing a national emergency: 35,000 dockers have gone on strike, imperilling national supply lines. They are striking in response to a ruling of the National Industrial Relations Court (NIRC) made the previous day. The ruling was that three dockers had breached its orders and consequently face arrest and imprisonment for contempt. The three have until 2pm the following day to apply to the Court of Appeal. They have no intention of taking that opportunity.

While lunching in Inner Temple Hall, a silk and his young junior discuss a point which they would take if instructed to represent the men in an appeal to the Court of Appeal. But they soon learn that neither they, nor anyone, will be instructed. The three dockers will not appeal. They want to be martyred.

Uninstructed but undaunted, the two barristers walk over to the Royal Courts of Justice and call, uninvited, on the Master of the Rolls in his room at the end of the lunch hour to explain the point they would like to have argued if the appeal had been brought. The Master of the Rolls listens and identifies the problem: the barristers have no client!

He also identifies a solution: namely, that the Official Solicitor be called in to instruct them both to mount an appeal which the three dockers and their union had declined to bring. It comes to pass. The appeal is listed for the following day, the Friday deadline under the NIRC’s order. The Court of Appeal, with none other than the Master of the Rolls in the chair, unanimously allows the appeal. The NIRC’s orders are discharged. There are no arrests. Industrial peace is (for now) restored. The nation is saved.

All this may sound as fanciful as a plot in Judge John Deed. But it happened. The barristers were Peter Pain QC, later a judge (of 2 Crown Office Row, the ‘parent’ of 11KBW and Littleton Chambers) and Ian Hunter (later QC); the Master of the Rolls was, of course, Lord Denning; and the judge whose order was discharged was the President of the NIRC, Sir John Donaldson.

Apologies for the spoiler. But so thrilling, so compelling, is the storytelling in Peter Oldham’s superbly researched book that you come out of it wanting to tell everyone what happened.

The litigation I mention above – the Churchman case – is but one leg in a series of mainly interconnected cases which brought the NIRC, the court set up by the Conservative Government under the Industrial Relations Act 1971, into the depths of disrepute with the labour movement and placed it (and Sir John) regularly in the spotlight of national news. Peter Oldham’s book relates, with meticulous clarity, the story of each of these cases.

The Pentonville Five

The most infamous was Midland Cold Storage v Turner where five unrepentant dockers – ‘the Pentonville Five’ – were imprisoned indefinitely under another of Sir John’s orders, with dock strikes again ensuing. I will not spoil this equally remarkable tale by re-telling it here, except to say that the author shows how the release

Book review: Rather Peculiar Things

‘this book is both an invaluable work of history and a legal blockbuster’

of the men was engineered in the national interest to prevent further industrial unrest, following some startling private interactions involving judges, civil servants and the Lord Chancellor, with the Official Solicitor re-entering the stage as deus ex machina

Lots of insight but no deference

In piecing together these remarkable accounts Peter Oldham, has made use of a considerable body of private, confidential and even ‘secret’ communications between Government officials, judges and their staff as well as publicly available materials and first-hand accounts from, for example, Ian Hunter. Where evidence is missing, he is careful not to speculate. The restraint he exercises only serves to make the conclusions the more compelling. He writes with a lawyer’s insight but without lawyers’ deference. It is surnames all the way (Denning, Hailsham etc), however high the office.

For older readers, the book will evoke memories of a time when industrial relations were red in tooth and claw, when unions were all-powerful and if anyone was disrespectful enough to accuse the judiciary of bias, it was not bias of the liberal kind. But there are some parallels with the modern world, not least in the way judges can be pilloried unfairly by politicians.

The author makes it clear that some of the criticism made of the NIRC and Sir John was ignorant and unjust. Sir John’s removal as a judge was sought by a number of Labour MPs on the supposition that a sequestration order he had made (the Con-Mech case) was directed towards the union’s political fund. The supposition was completely unfounded.

Conclusion

This book is both an invaluable work of history and a legal blockbuster, ideal for that long-haul trip to Bury St Edmunds. With its detailed and vivid elucidation of the legal and industrial landscapes and its reflective coda of lessons learned, the whole book should be devoured, if possible, at a single sitting. The stories it tells are among the most remarkable in legal history.

‘Law and Politics at the National Industrial Relations Court 1970-75: Rather Peculiar Things’ is published by Bloomsbury and available in hardback and as an ebook.

KEY:

NIRC National Industrial Relations Court

Churchman Churchman v Joint Shop Stewards Committee of the Workers of the Port of London [1972] 1 WLR 1094

Midland Cold Midland Cold Storage v Turner [1972] Storage v Turner 3 All ER 773

Con-Mech

Con-Mech (Engineers) v Amalgamated Union of Engineering Workers (Engineering Section) [1974] ICR 464

The butterfly effect curtailed: causing discrimination in Bailey v Stonewall

REBECCA TUCK KC and IMOGEN BROWN, Cloisters

Ms Bailey’s high-profile claim against Garden Court Chambers and Stonewall has been closely followed by the employment law community. This Court of Appeal judgment focuses on the correct approach to causing or inducing discrimination under s.111(2) or (3) of the Equality Act. Section 111 is an infrequently litigated provision and this judgment is particularly important.

Belief discrimination: a developing frontier

Since the EAT held in Forstater that gender critical beliefs qualify for protection under s.10 of the Equality Act (EqA), there has been a stream of cases concerning belief discrimination both in and out of the workplace. The Supreme Court in For Women Scotland determined that transgender individuals do not become the opposite sex under the EqA upon receipt of a Gender Recognition Certificate.

Public reaction to For Women Scotland made plain the unique strength of feeling generated by debates over sex, gender identity and single-sex spaces. As stated by Whipple LJ in her judgment in Bailey, in relation to gender critical and trans-inclusive beliefs: ‘The two sides … hold strong views which are diametrically opposed. Both sets of beliefs warrant protection under the 2010 Act’ (para 93).

The background

Ms Bailey is a barrister who was a tenant at Garden Court Chambers (GCC). She believes that women are defined by their sex, and that one’s gender cannot be different from one’s sex. This was correctly held to be a protected belief.

In late 2018, GCC signed up to a ‘Diversity champions scheme’ created by Stonewall, a charity committed to advancing the rights of gay, lesbian, bisexual and transgender individuals. In response, Ms Bailey sent an email to all members of chambers, criticising the ‘trans-extremism’ being advanced by Stonewall.

The following year, Ms Bailey posted a number of tweets reflecting her objection to Stonewall’s trans agenda and manifesting her gender critical views. As is often the case when such beliefs are expressed, comments from various members of the public began to appear on GCC’s website objecting to Ms Bailey’s tweets. In light of these developments, GCC posted a ‘response tweet’ stating that Ms Bailey was being investigated for her comments. GCC commenced an internal investigation.

In the meantime, on 31 October 2019, Kirrin Medcalf, Stonewall’s Head of Trans Inclusion, emailed GCC complaining about Ms Bailey’s tweets (the Stonewall complaint). The email ended by stating that GCC’s continued association with a barrister ‘actively campaigning for a reduction in trans rights and equality’ placed Stonewall ‘in a difficult position … I trust that you will do what is right and stand in solidarity with trans people’ At the conclusion of its internal investigation, GCC determined that Ms Bailey was ‘likely’ to have breached her professional obligations in acting as she did.

The butterfly effect curtailed: causing discrimination in Bailey v Stonewall

‘the two sides … hold strong views which are diametrically opposed. Both sets of beliefs warrant protection under the 2010 Act’

Ms Bailey alleged that not only did GCC discriminate against and victimise her, but also that Stonewall had instructed, caused or induced GCC to do so under s.111 EqA, including by sending the Stonewall Complaint.

The employment tribunal upheld Ms Bailey’s claims against GCC, finding direct discrimination contrary to s.13 EqA and victimisation contrary to s.27 EqA. It identified two key detriments: GCC’s public ‘response tweet’ announcing the investigation, and the investigation’s outcome finding a likely breach of professional obligations. She was awarded £22,000 in damages.

Turning to Stonewall’s involvement, the tribunal dismissed Ms Bailey’s contention that Stonewall was liable under s.111 EqA. The principal question was whether Kirrin Medcalf’s Stonewall Complaint had instructed, caused or induced the outcome of the investigation that followed. The employment tribunal found that the Stonewall Complaint did not seek to engineer any specific outcome: it was ‘no more than a protest, with an appeal to a perceived ally in a “them and us” debate’. While the email may have provided the occasion for GCC’s discriminatory acts, it did not ‘cause’ them under s.111(2) EqA.

Ms Bailey appealed the findings in respect of Stonewall’s liability to the EAT, but Bourne J dismissed the appeal. He agreed with the employment tribunal that ‘occasioning’ discrimination does not equate to ‘causing’ it under s.111(2). On ‘inducing’ under s.111(3), he held that ‘induce’ is broadly synonymous with ‘persuade’, and the facts did not support the argument that the Stonewall Complaint had any specific aim in mind, ‘except perhaps a public denial of association with [Ms Bailey’s] views’ (para 126).

Ms Bailey appealed to the Court of Appeal.

The Court of Appeal’s analysis

The statutory language of s.111 is deceptively simple. It imposes liability on a person who instructs (s.111(1)), causes (s.111(2)) or induces (s.111(3)) another to contravene the EqA.

Deceptive, because (in the case of ‘causing’ discrimination under s.111(2) EqA) a simple ‘but for’ analysis would draw the limits of liability extremely widely. A butterfly flaps its wings and causes a distant tornado. One party could convene a meeting, entirely innocuously, during which an employee is ultimately discriminated against by their employer. ‘But for’ the convening of the meeting, no discrimination would have happened. Most would agree that liability cannot sensibly be imposed against the meeting organiser in such circumstances. And so Whipple LJ came to wrestle with the correct approach to causing discrimination under s.111(2) EqA.

A review of authorities confirmed the following propositions. First, that liability under s.111(2) EqA should be analysed using an objective assessment of the words used in their statutory context, and having regard to their legislative purpose: R(O); Uber BV

Secondly, that the legacy legislation has as its central purpose the elimination of discrimination in the spheres in which the EqA applies: Jones, and was enacted to remedy a very great evil and should accordingly be construed widely: Savjani

Thirdly, one does not have to intend or be consciously motivated to discriminate against another in order to be liable for discrimination, and this principle carries across to s.111(2): Nagarajan. So far, so uncontroversial, but those principles do not assist with the butterfly problem articulated above.

Whipple LJ then turned to look at the principles of liability in tort more widely. Kuwait Airways established that liability in tort requires a two-stage approach: first, was the loss caused by the wrongful conduct? Secondly, what is the extent of the loss for which the defendant ought to be held liable? In Essa (where racist harassment led to significant psychological harm), it was held that while the wrong should be directly and naturally causative of the loss, reasonable foreseeability need not be a prerequisite, because the ‘good sense of employment tribunals in finding the facts and reaching conclusions on them’ should act as a ‘control mechanism’

In Bullimore (where a damaging reference by employer 1 led to employer 2 withdrawing a job offer), the EAT considered whether the discriminatory act of a second employer broke the chain of causation flowing from the discriminatory act by the first employer; Underhill J held that there were concurrent torts which

‘the “but for” butterfly will escape liability, but practitioners must carefully apply tortious principles as relevant to consider how, when, and where third parties’ actions will come within the net of s.111(2) EqA’

both contributed to the loss. Further, Whipple LJ held that ‘[the] familiar passage from the judgment of Lord Sumption JSC’ in Hughes-Holland was relevant, where it was said that the various legal ‘concepts’ or ‘filters’ by which liability in tort is limited sit alongside the ‘a developed judicial instinct about the nature or extent of the duty which the wrongdoer has broken’ (para 66).

For Ms Bailey it was argued that s.111(2) should have two criteria: first, Person A must act because of a relevant characteristic and second, that ‘but for’ A’s actions, the discrimination would not have occurred. Stonewall agreed that the ‘but for’ test should be applied, but contended that the acts in question must also be the direct cause of the discrimination. It may also be necessary, they argued, to consider whether, on an evaluative assessment, it was fair or just or reasonable to fix the respondent with liability.

Both approaches were rejected: the Court of Appeal drew the limits of liability under s.111(2) EqA broadly. First, ‘but for’ causation must be established. Secondly, having regard to the statutory context and all of the facts, the tribunal must then determine whether it is ‘fair and just and reasonable to find the third party liable’. Various non-exhaustive factors come into play at the second stage, including:

• whether the third party’s conduct was the effective cause of the discrimination or merely the occasion for it;

• whether the damage that followed was reasonably foreseeable;

• whether the third party acted with the claimant’s protected characteristic (whether consciously or subconsciously) in mind; and

• whether there was an intervening cause that overshadowed the third party’s actions and broke the chain of causation (a ‘novus actus interveniens’).

Ms Bailey’s appeal was dismissed. Stonewall was not liable under s.111(2) because its actions were not the effective cause of the discriminatory treatment. GCC had acted independently in reaching the investigatory outcome it did. The Stonewall complaint was ‘merely a protest, no more’ (para 84), and while it was the occasion of further investigation, the dominant and effective cause of the detriment found was GCC’s acts –which provided a novus actus interveniens.

Having failed to show that Stonewall had caused discrimination, the more difficult test of ‘inducing’ discrimination under s.111(3) also failed given the findings of fact made.

Implications

It is necessary but not sufficient to establish ‘but for’ causation under s.111(2) EqA. Thereafter, a tribunal must go on to apply its ‘developed judicial instinct’ and ‘evaluate the causal potency or efficacy of the defendant’s acts’. The Court of Appeal held that once ‘but for’ causation is established, ‘the question was whether, having regard to the statutory context and all the facts, it was fair and just and reasonable to find the defendant liable’ (para 79). This evaluation is not entirely open ended, but requires focus on the various legal labels or concepts by which liability in tort may be limited.

As employment practitioners, we take pride in our honed lists of issues, which organise causes of action into a neat set of questions. This multi-faceted test does not sit easily in such a framework, likely making it more difficult to assess the prospects of a claim brought under s.111 EqA at an early stage.

So the ‘but for’ butterfly will escape liability, but practitioners must carefully apply tortious principles as relevant to consider how, when and where third parties’ actions will come within the net of s.111(2) EqA.

The butterfly effect curtailed: causing discrimination in Bailey v Stonewall

'It is necessary but not sufficient to establish “but for” causation under s.11(2) EqA'

KEY:

EqA Equality Act 2010

Bailey Bailey v Stonewall [2025] EWCA Civ 1662, [2024] EAT 119, [2025] ICR 46

GCC Garden Court Chambers

Forstater

Forstater v CGD Europe [2022] ICR 1 (EAT)

For Women Scotland For Women Scotland v Scottish Ministers [2025] UKSC 16

R(O) R (on the application of O (A Child)) v Secretary of State for the Home Department [2022] UKSC 3, [2023] AC 255

Uber BV Uber BV v Aslam [2021] UKSC 5, [2021] ICR 657

Jones Jones v Tower Boot Co Ltd [1997] ICR 254

Savjani Savjani v Inland Revenue Comrs [1981] QB 458

Nagarajan Nagarajan v London Regional Transport [1999] ICR 877

Kuwait Airways Kuwait Airways Corp v Iraqi Airways Co (Nos 5 and 6) [2002] UKHL 19, [2002] 2 AC 883

Essa Essa v Laing Ltd [2004] ICR 746

Bullimore Bullimore v Pothecary Witham Weld [2011] IRLR 18

Hughes-Holland Hughes-Holland v BPE Solicitors [2017] UKSC 21, [2018] AC 599

Turner v Western Mortgage Services Ltd

ANDREW BERK, MSR Solicitors

In Turner, the EAT held that a COT3 settling all the complaints within a particular employment tribunal claim also compromised any related appeal, even if the appeal concerned a complaint which had previously been struck out. As a result, the claimant’s attempt to revive his struck-out claim for breach of contract/unlawful deductions from wages could not proceed.

Background

The claimant worked for the respondent as a mortgage adviser. After going on long-term sick leave, the claimant received permanent health insurance (PHI) payments and related income protection. These payments ceased in May 2021, although the claimant believed he was entitled to a further six months of PHI and pension contributions.

In March 2021, the claimant brought his first employment tribunal claim seeking six months of PHI payments and the related employer pension contributions. At a preliminary hearing, Jones EJ held that the tribunal lacked jurisdiction to hear the breach of contract claim because the claimant remained employed by the respondent, and that pension contributions did not constitute ‘wages’ for the purposes of an unlawful deduction claim: Chambers The claimant withdrew this employment tribunal claim without reserving the right to bring further proceedings.

In May 2022, the claimant issued a second employment tribunal claim. He now asserted that he was disabled and had resigned in March 2022. Substantively, however, this second employment tribunal claim was identical to the first, ie seeking six months of PHI payments and pension contributions. At a preliminary hearing in March 2023, Noons EJ allowed the breach of contract claim relating to pension contributions to proceed, relying on Hines. However, the PHI claim was barred by issue estoppel because the claimant had withdrawn his first claim without invoking the protection of Rule 52(a) of the ET Rules of Procedure 2013.

The Appeal to the EAT

In April 2023, the claimant appealed to the EAT in relation to the striking out of his PHI claim. However, in July 2023, Acas issued a COT3 confirming settlement of the second employment tribunal claim. The settlement sum was £18,500. Both parties signed the COT3, but nobody initially notified the EAT. The claimant later stated that he still wished to pursue his appeal. He asserted that the struck-out PHI claim was not a live complaint at the time of settlement and that the COT3 did not expressly refer to the EAT appeal. The respondent argued that the COT3 wording settling ‘any and all’ claims the claimant ‘has or may have’ was deliberately broad and encompassed the claimant’s appeal.

HH Judge Auerbach gave the judgment of the EAT. He began by stating that a court or tribunal’s task is generally to objectively interpret the words used in the document(s) in question, and not to enquire into the subjective states of mind of either of the parties as per Lord Bingham of Cornhill in Ali at [8].

Turner v Western Mortgage Services Ltd

‘a complaint struck out by the employment tribunal remains part of the claim and can be compromised by a COT3’

Considering clause 2 of the COT3 in relation to the claims which the claimant ‘has or may have’ against the respondent, HH Judge Auerbach said:

‘Where, as I have concluded in this case, the words of a settlement agreement, objectively construed, compromise a complaint which has been struck out, the natural and logical implication is that they also compromise a related appeal, which is part of the ongoing litigation by which a party has sought to be enabled, after all, to continue to pursue that same complaint in the tribunal.’

HH Judge Auerbach also stressed that the EAT would not entertain an appeal which was purely academic. The interests of finality in litigation also meant that a very compelling reason would be required for the appeal to a full hearing which was not the case here. The claimant’s appeal was dismissed.

Conclusions

A COT3 which settles all the claims in a particular employment tribunal claim number covers live complaints, struck-out complaints and any appeal relating to the proceedings. This applies even if the COT3 does not expressly mention any related appeal. The parties cannot seek to revive an appeal once the employment tribunal claim to which it relates has been formally settled.

Struckout complaints are still ‘complaints’ for settlement purposes. A complaint struck out by the employment tribunal remains part of the claim and can be compromised by a COT3. The implication of this is that the struckout issue is not ‘dead’ for settlement purposes as it can still be wrapped into a global settlement. This decision also reinforces the importance of finality in litigation. Therefore, once a COT3 is issued, the litigation is over. The employment tribunal and/or the EAT should be notified immediately to avoid any unnecessary further hearings.

KEY:

Turner Turner v Western Mortgage Services Ltd 1300842/2021, 1302182/2022, [2025] EAT 191

Chambers Somerset CC v Chambers UKEAT/0417/12/KN

ET Rules of Employment Tribunals (Constitution Procedure 2013 and Rules of Procedure) Regulations 2013 (SI 2013/1237)

Ali Bank of Credit and Commerce

International SA v Ali [2001] UKHL 8, [2002] 1 AC 251

Avenues into Pro Bono for employment lawyers

ELIZA NASH, Chair of the ELA Pro Bono Committee

The benefits for employment lawyers of getting involved in pro bono activities are manifold. As well as it ‘feeling good to do good’ , this work can be invaluable for junior lawyers honing their skills and gaining experience in areas that they may not be exposed to in fee earning work, as well as contributing to network building.

Many of us, however, may be unsure of how to get involved in pro bono work and/or assume that this type of work will inevitably be overly time consuming. In this article, we profile some of the best opportunities, each with differing levels of commitment.

Advocate

Advocate is the Bar’s national pro bono charity. It matches people who are either ineligible for legal aid or cannot afford to pay with barristers who volunteer their time and expertise. It has a panel of more than 4,500 dedicated volunteer barristers who help people in need across all areas of law, and in every type of court and tribunal.

Employment law is one of the two areas in which we receive the highest level of demand for help. Work could include advice, drafting or representation. Barristers with a practising certificate, from their second six all the way to KC can sign up to browse pro bono cases with Advocate. You can sign up here: www.tfaforms.com/4821675 At Advocate:

• all of its cases are reviewed by senior barristers to ensure that they are suitable for pro bono help;

• the cab rank rule does not apply – it is completely your choice what to take and when;

• after you express interest in a case, you have 48 hours to decide whether to take it on. There is no obligation to commit, even once you have reviewed the papers;

• you only take on the piece of work authorised, there is no obligation to continue with the whole case;

• you operate under Advocate’s direct access licence; and

• you can receive mentoring on the cases you work on via our mentoring scheme Collaborate, https:// weareadvocate.org.uk/volunteer/mentoring.html

For further information see ‘How to volunteer with Advocate’ guide and our useful guides for pro bono work page, which contains useful information tailored for different groups across the Bar. Both can be found on our website, https://weareadvocate.org.uk

If you would like to get involved, please contact Faye, Advocate’s Engagement Manager, f.pauffley@ weareadvocate.org.uk

Lucas Nacif, a barrister at 42BR, says of his experience with Advocate: ‘Some of my career highlights so far have been acting pro bono through Advocate. For example, I’ve had the chance to appear unled in the EAT on two occasions and have recently advised a former embassy worker in enforcing an employment tribunal award against a sovereign state.

Avenues into Pro Bono for employment lawyers

‘the Free Representation Unit provides volunteers to support ELA members in the ELIPS scheme’

A lot of these cases are ones which I would not otherwise have been instructed at this stage of my career. Doing pro bono work has been instrumental in developing my professional skills and has proved to be invaluable in developing my profile as an employment barrister.’

Pro Bono Connect

Pro Bono Connect is linked to Advocate and is a scheme which enables solicitors and barristers to work together on pro bono cases in the same way as they would for fee-paid work. Any barrister who takes on a case through Advocate can request solicitor assistance via Pro Bono Connect, with requests circulated to participating firms. Similarly, any participating firm which would like barrister assistance can submit a request which will be circulated to participating chambers.

Pro Bono connect was established in 2016 and is now in its 10th year. There are currently 87 participating firms and 67 chambers. More than 320 requests have been matched through the scheme so far.

Advantages for law firms:

• it is fee to join and there is no obligation to take on any cases; firms simply agree to consider requests for assistance;

• access to meritorious pro bono cases which have already passed all Advocate’s checks and which a barrister feels merit further assistance;

• opportunities for more junior lawyers to work with counsel and run a case; and

• ability to obtain counsel support for the firm’s pro bono work.

Employment law is an area where Pro Bono Connect receives some of the most requests for solicitor assistance. It is keen to increase the number of participating firms with an employment law practice. It would particularly welcome litigation focused, or regional, firms, as they are less likely to have a conflict of interest with pro bono clients.

If your firm would like to join Pro Bono Connect, please email admin@probonoconnect.co.uk, or fill in the enquiry form at www.probonoconnect.co.uk

Free Representation Unit

The Free Representation Unit (FRU) is a leading provider of pro bono advocacy, covering employment, social security and criminal injuries compensation cases.

Its work is delivered by around 350 volunteers – mainly law students and junior lawyers –who receive rigorous training and ongoing supervision from FRU’s experienced legal officers.

Volunteers take full conduct of cases, from preparation to advocacy, gaining invaluable skills in client care, negotiation, legal research and advocacy.

Its primary focus is on clinical legal education for aspiring lawyers and those who are early post qualification. It also offers opportunities for more senior practitioners to take on complex or appellate cases. Many leading employment lawyers and senior judges began their careers at FRU.

How ELA members can get involved with FRU:

• FRU provides volunteers to support ELA members in the ELIPS scheme;

• taking employment tribunal or EAT cases to develop advocacy skills as a junior practitioner or later in support of applications for silk, judicial office or leadership positions;

• providing expert consultancy to FRU volunteers on novel or complex issues;

• passing on employment law skills and knowledge to the next generation of employment lawyers through training volunteers, allowing them to shadow cases or supervising FRU volunteers to increase capacity to do pro bono work; and

• helping FRU to respond to employment policy consultations or to highlight current employment law issues for FRU clients.

It offers PII cover and supportive supervision, and FRU would be delighted to discuss any aspect of working with the unit. Please contact David Abbott at chief.exec@thefru.org.uk

Avenues into Pro Bono for employment lawyers

‘the Unpaid Wages Project is a fantastic opportunity for junior solicitors in particular’

ELIPS

ELIPS (the Employment Tribunal Litigant in Person Support Scheme) is co-ordinated by ELA and operates as an online clinic for legal volunteers to provide support to unrepresented litigants. It has the support of the judges at the employment tribunals and runs in collaboration with Advocate, LawWorks and the Free Representation Unit. More details about ELIPS can be found here: www.elaweb.org.uk/pro-bono/elips-litigants

ELAAS

The Employment Law Appeal Advice Scheme (ELAAS) provides pro bono representation for litigants in persons in preliminary hearings at the EAT, with a particular emphasis on representing appellants in Rule 3(10) hearings.

A Rule 3(10) hearing is an oral permission hearing at the EAT which provides the appellant with an opportunity to persuade the EAT to grant them permission to appeal after being unsuccessful at the initial sift stage. Many litigants in persons struggle to properly articulate their appeals and so obtaining pro bono representation at a Rule 3(10) hearing ensures that they can obtain access to justice.

Volunteers for ELAAS are typically practising barristers who predominantly practice in employment law. Many volunteers use ELAAS as an invaluable opportunity to develop their appellant advocacy skills.

Many appellants who benefit from ELAAS are later referred to other charities, such as the FRU and Advocate, who may be able to provide them with pro bono representation at a final hearing.

More details about ELAAS can be found here: https://elba.org.uk/elaas/

Mumsnet

One of the projects overseen by the ELA Pro Bono Committee is an online legal advice clinic delivered via Mumsnet, an online forum for parents with a large following. Clinics are held for a week at a time in March, June and November. Mumsnet users post their queries on rights at work during pregnancy, maternity leave and the return to work period with many needing advice on discrimination, redundancy, changes to their job or flexible work refusals.

It currently has a panel of 25 volunteers. Volunteers are typically asked to draft a response to one or two queries during each clinic. Volunteers must be at least one year PQE. Mumsnet clinics are administered and overseen by Maternity Action, a nationwide charity providing free legal advice on pregnancy and maternity discrimination.

For further information or if you want to get involved, please contact katiewood@maternityaction.org.uk

LawWorks Employment Law Opportunities

LawWorks’ Unpaid Wages Project (UWP) was set up in 2018 to deal with the problem of ‘wage theft’, identified as a specific issue in a Citizens Advice report in 2016. After the removal of tribunal fees in 2017 there has been a steady increase of unpaid wages claims last year making up 12% of all employment tribunal claims.

The UWP is particularly aimed to help those who are on a low income, and often includes vulnerable and disadvantaged people, including those with disabilities and those with educational barriers, and migrants to the UK. These groups often struggle to navigate the tribunal system.

The teams should have at least two members with one team member having at least two years’ PQE. Many firms prefer a team of at least three. Firms must be LawWorks’ members and are covered under LawWorks’ insurance.

It is a fantastic opportunity for junior solicitors in particular to upskill through the opportunity to draft documents, lead client meetings and even represent claimants in the tribunal.

Last year UWP clients were awarded or settled for a total of £84,268.92.

LawWorks also has two other projects which can include opportunities to volunteer on employment law. Free Legal Answers (www.lawworks.org.uk/solicitors-and-volunteers/get-involved/free-legal-answers) where volunteer solicitors can as individuals sign up to answer legal questions and the Not for Profits Programme

Avenues into Pro Bono for employment lawyers

‘we hope that this will inspire some of you to get involved in pro bono work’

(www.lawworks.org.uk/solicitors-and-volunteers/get-involved/not-profits-programme) which functions similarly to the UWP where volunteers provide pro bono assistance to small not for profits.

We hope that this will inspire some of you to get involved in pro bono work this year. As well as the opportunities highlighted above, there is a comprehensive directory of Volunteering Opportunities on the ELA website (www.elaweb.org.uk/pro-bono/pro-bono-volunteering-opportunities).

This article was written by Eliza Nash, Chair of the ELA Pro Bono Committee, Eleanor Campbell, Barrister, One Essex Court and member of the Pro Bono Connect Executive Committee; Rebecca Wilkie, Chief Executive, Advocate; Katie Wood, Senior Legal Adviser, Maternity Action and member of ELA Pro Bono Committee; Lucas Nacif, Barrister,42BR and member of ELA Pro Bono Committee; Héloïse Ramage-Hayes, Employment Supervisor, LawWorks; Christine Wheeler, Pro Bono Administrator; and David Abbott ,Chief Executive, Free Representation Unit.

KEY:

FRU Free Representation Unit

ELAAS Employment Law Appeal Advice Scheme

UWP Unpaid Wages Project

contributor guide lines

The purpose of these guidelines is to minimise the need to edit submissions to conform to the ELA Briefing style. As the guidelines may be updated from time to time, it is important that contributors follow the latest version, available from the editor or on the ELA website. It is a condition of publication that ELA Briefing has First British Publication Rights. Do not submit articles printed elsewhere (in identical or similar form) or being considered for publication elsewhere. Authors may provide a link to their article as it appears in ELA Briefing (not the complete issue of ELA Briefing) on their firm/company website, provided they clearly acknowledge that the article was first published in ELA Briefing (© Employment Lawyers Association). Please ensure that any contributions will not expose ELA or IDS to civil or criminal proceedings.

SUBMISSION: articles should be emailed as a Microsoft® Word attachment to ELABriefingEditor@elaweb.org.uk by the copy deadline (details on the website or from the editor) in order to be considered for that month’s issue. Articles may be held over to a subsequent month if there are space constraints.

PHOTO: all submitted articles should be accompanied by a highresolution portrait ‘headshot’ photograph of the author(s) in jpeg or tiff format (a minimum of 5cms at a quality of 300dpi).

REFERENCES: at the end of the article, list the short form and full name (with un-italicised case reference) of all cases and legislation, in the order in which they appear in the article. Please provide a hyperlink in the key to any case report cited, and for any reports and legislation you mention (for the digital edition).

CONTENT: articles should examine recent case law developments or legislative proposals, providing succinct analysis and practical tips and keeping the facts to a minimum (for example, there is often no need to summarise the decision of a lower tribunal). Submissions can also be opinion pieces, checklists, overviews of a topic suitable for more recently qualified readers, overviews of foreign laws or discussions of topics related to employment law, such as HR practice. ET decisions are rarely suitable. Articles should be balanced and address both employer and employee viewpoints where possible. They should be written in an accessible style, with short sentences and paragraphs, sub-headings to signpost underlying content, a conclusion and no footnotes.

WORD COUNT: for all articles must be either 600-650, 1,100-1,200 or 1,800-1,900 words (reflecting the page length).

TITLES: should be no more than 50 characters, followed by the author’s name and firm/chambers. The topic should be clear from the title.

INTRODUCTION: begin with a ‘standfirst’ paragraph of 30-40 words, which should introduce the subject covered in the article.

EXTRACTS: suggest a phrase or short sentence for each page, to be extracted as quotes.

SUB-HEADINGS: only use initial capitals for the first word.

BULLETED LISTS: use bulleted lists rather than numbered or lettered paragraphs. Short lists should be introduced with a colon, begin with a lower case letter (unless, for example, there is a name) and have no punctuation at the end. Longer bulleted paragraphs should be punctuated at the end with semi-colons and with a full stop on the final bullet.

ABBREVIATIONS:

• use symbols (%, US$,€ ); do not use ampersand unless it is part of a name

• use numerals for all numbers except one to nine and million/billion

• do not use stops for abbreviations such as etc, ie, eg

• use acronyms where they exist, but with initial capital only: Acas, Ofcom, Nato, Defra

• use standard abbreviations for organisations and the like (CBI, ECJ, EAT, MoJ, BIS, ELA)

• if no standard abbreviation exists, first use its full name, then a short form

• only define short forms (in brackets without quote marks) if not doing so would be confusing

• refer to all legislation and cases (italicised) using an abbreviated form taken from the key

• sections of legislation should appear as follows: s.94 ERA (ERA s.94 at the start of a sentence), ss.94-95 ERA

CAPITALS: use initial capitals for languages, personal titles, names of places, institutions (such as the current Government) and publications, statutory provisions (other than section and paragraph), months and public holidays. Use lower case for job titles (such as director, editor) and legal descriptors such as claimant, defendant, judge, counsel, court, tribunal, etc.

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QUOTES: use single quote marks where quoting from judgments or legislation (except for quotes within quotes). Do not italicise. Include paragraph and page references in brackets after the quote mark (para 12, p.12).