Here’s the thing, when the factual background became clear she did have a really solid legal case, although had entirely failed to explain it in the form (although because there was a unfair dismissal claim too some of the claim could arguably by inferred by that context – Trustees of the William Jones’s School Foundation v Parry [2018, ICR 1807, CA).

Fortunately, we were able to prepare detailed particulars of claim and get these accepted as an amendment of the claim and in due course settle the case on terms the claimant was happy with. But going into that Preliminary hearing on a case that had no particulars advanced at all other than one solitary tick box completed for the main claim I was worried the claim could end up being directed for a strike out hearing on the basis the claim could not be responded to or otherwise be rejected.

Shortly after that hearing the EAT gave judgment in the case of The Scottish Ambulance Service Board v Chapman [2025] EAT 64. On 27 May 2024 submitted an ET1 form and ticked the box at section 8.1 of the form to say complaining about disability discrimination.

At section 8.2 (which needs to be completed) the claimant was asked to give “details of the claim, including relevant dates of events complained about.” The claimant did not do so.

When a claimant wishes to make a complaint of discrimination, they should tick the relevant box or boxes at 8.1 of the ET1 form. Later the judge ordered the claimant to provide details of the claim form pursued within 14 days (the ET therefore accepted the claim but made case management directions). The EAT was about whether, by doing that, the ET had made an error of law.

Rule 12 of the 2013 Employment Tribunal Rules of Procedure (the same Rule is now found in Rule 13 of the Employment Tribunal Rules of Procedure 2024) requires that the ET “must” refer the case for a decision whether claim form should be be rejected because “it cannot sensibly be responded to”. The employer argued that under this Rule the employer could not know what the complaint was about at all except that it involves disability and so could not be responded to. Therefore what the ER should have done is consider rejecting the ET1 claim form rather than asking the claimant for more details of the claim.

If a tribunal decides that a claim cannot be sensibly be responded to then the “Tribunal must reject a claim” (Rule 13(2)).

The judgment of the EAT was that “The complete absence of any information whatsoever about the nature of the claim, other than the fact that it is said to come under the heading of ‘disability’ means, for all the reasons advanced by the respondent, that it cannot sensibly respond” and therefore needed to be considered for rejection. The EAT continued that “follows that a case management decision to allow time for further particularisation of the claim to be made without the claim form having first been seen by an Employment Judge and that Judge being satisfied that the ET had jurisdiction in respect of the claim was also an error, as submitted under the second ground of appeal” (Paragraphs 17-18).

What the Case Means

It is a common (mis)perception that filing an ET1 claim just ‘starts the ball rolling’ and that all the substance of the complaint can be added to a claim later on. This case shows that can cause serious problems for claimants.

A case being rejected is different from a case being dismissed in that a claim can be remade with the Employment Tribunal if it has been rejected. This means that if a rejection is early enough a claimant can correct the errors, provide more detail, and remake the claim within the three month window that usually applies for making a claim (a good reason why not to leave claims to the last minute). But that is a best case scenario; with employment tribunal delays it is more likely by the time you are told there is a problem the time limit for making a valid claim is already expired and that means there will be future legal argument about whether the ET can continue be heard.

The key learning point for claimants and union representatives drafting particulars of claim (the description of events in part 8.2 of the ET1) is never to treat this as something to be completed later. It is OK not to be sure what the exact type of discrimination is, but you do and least need to set out the central complaints and facts about the case.

The ET have produced some explainer videos and this is a good one on how to make sure your ET1 claim form includes everything needed and therefore gives the best chance to avoid problems like that experienced by Mr Chapman – where not including relevant information in an ET1 form is not just an administrative oversight but could make or break the whole employment tribunal case:

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If a claimant has an employment tribunal claim that has been submitted then they may withdraw this quite simply. Unlike litigation in other areas where there are formal forms that need to be completed to withdraw a claim, a simple email or oral communication in a hearing saying “I withdraw my claim”, or words that effect will suffice. A withdrawal, though informal in process, is fatal to a claim; the relevant part of Rule 50 of the 2024 Rules of Procedure make this clear, where: “a party advancing a claim informs the Tribunal, either in writing or in the course of a hearing, that their claim, or part of it, is withdrawn, the claim, or part, comes to an end.”

As explained by the EAT in Segor v Goodrich (2012) the only requirement for a withdrawal of an ET claim to be valid is that it is “clear, unambiguous and unequivocal.”  

Given the informality of the process to withdraw an ET claim it is not surprising that sometimes wires get crossed and the ET thinks a claim has been withdrawn when that is not the intention. You may have noted the requirement on whether a withdrawal is made is an objective one, is the withdrawal clear, unambiguous and unequivocal? It is not part of the requirement that the person giving the withdrawal intended to withdraw the claim – and this can get claimants, and especially unrepresented claimants in hot water.

In Segor the judge observed that “[l]awyers may sometimes be accused of being too pedantic and precise in their use of language” which may explain why those falling foul of inadvertent withdrawals are usually unrepresented.

To give an example, I once assisted (after the fact I should make clear, given the below!) a claimant who had unpaid wages claims against an employer. Subsequently, the claimant pursued new discrimination claims in a new ET claim form. The claimant agreed terms of settlement for the wages claim and this was settled by an ACAS  COT3. The settlement was for that first claim only and did not settle the second claim. However, the claimant sent an email withdrawing the claims (not claim) she had against the Respondent although her intention was only to withdraw the first claim (following settlement). However, the withdrawal while not intended was clear and unambiguous and so the discrimination claim was also automatically ended. Unfair as that outcome was, it was not a decision that could be confidently challenged and the language used was clear, unambiguous and unequivocal.

This case was brought to mind because a couple of days ago the EAT published another case on the issue – McCrory v Healthwatch Stockport Limited (2026). In that case the ETdismissed the claim because of a withdrawal.

In this case the context was clear the claimant did not unambiguously withdraw. Against the background of costs threats against a claimant in one email the claimant signalled the possibility of withdrawing saying “I can give consideration to withdrawing today”. In a later email on 31 May 2024 he said “I wish to confirm that I wish to  withdraw my claim … unless the tribunal would not apply a costs order”. That “unless” adds equivocation into the withdrawal and so could not properly be relied upon with clarification.  

Having seen that equivocal withdrawal an employment judge (quite properly) wrote to the claimant on 4 June 2024 to ask the claimant to clarify his position within 14 days. However, before that 14 day deadline had expired a ET legal officer (inexplicably given the 4 June 2024 correspondence) treated the claim as withdrawn and cancelled the upcoming hearing telling the claimant this on 9 June 2024.

On the next day, 10 June 2024, but not having seen the 9 June letter the claimant replied to the 4 June 2024 clarification request confirming he wished to proceed with the claim.    On 20 June 2024 a different employment judge directed that the claimant should be told the claim was now dismissed saying “the claim was unambiguously withdrawn. It was correctly dismissed on withdrawal”.

Reading the communication it is difficult to comprehend that the employment judge had read the emails in question as they are far from unambiguous and unequivocal, but that was the decision. As the EAT observes (para 57 of the judgment):

On a proper reading, the second email remained equivocal and any doubt falls away when it is read with the first. Accordingly, the only possible conclusion was that the claim had not been withdrawn. That meant that the claim did not automatically come to an end and there could be no judgment on withdrawal.

The EAT undoubtedly came to the right decision which means the claimant’s case has been reinstated, albeit with an 18 month delay.

What is clear that a claimant cannot always trust an ET to interpret written correspondence correctly (in addition to the legal officers three judges say they reviewed the files and two perversely interpreted an ambiguous withdrawal as being unambiguous).

The McCrory case does not add any new law but it is an important reminder of the importance of ensuring any correspondence with the ET is precise before it is sent – as this case shows you can’t assume the ET will know what you mean and, to be fair, they are working under such backlogs that they are less likely to have the time necessary to consider carefully.  

Given the harshness of the consequences of an unintended withdrawal of claim ending a case irrespective of its merits (which would be very unlikely to be allowed to be re-filed) it is always important to:

• Try not to draft and send an email straight away – take a break and re-read before pressing “send”
• If you are have more than one claim but only intend to withdraw one make that clear. For example, “I am writing to withdraw my claim under reference 1234567/2025. For the avoidance of doubt, I do not withdraw any other claims I have except under this reference number.
• If you are only withdrawing part of the claim again be specific on this. For example, “ I am writing to withdraw my complaint of unauthorised deduction of wages in claim reference 1234567/2025. The complaint’s I am withdrawing are at paragraphs 17-18 of the particulars of claim I submitted when making claim. All other claims in that claim are not withdrawn and I am still pursuing these.”

This of course seems simple advice – and it is. But it is advice that can make the difference between a claim being allowed to proceed to determination and one that is dismissed – even if that is not the claimant’s intention.

END of Post

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Want to stay updated? 

This blog is specifically for the benefit of trade union reps and members but I hope will be of interest more widely to other advisors, and workers. If you are not a union member then now is a good time to put that right, the TUC offers help selecting the right union to join (although feel free to message me if you’re unsure about what’s best and I am happy to make a suggestion depending on your circumstances).

If you are among the number of employment lawyers and paralegals who
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Charles Close was born in West Yorkshire in the 1820s and went on to become a boilermaker, a skilful and relatively lucrative profession.  Close was also became a member of the United Society of Boilermakers and Iron Shipbuilders, a trade union established in 1834.  The union, following intermediate amalgamations was to become part of the GMB Union.

Close was the treasurer for the union’s Bradford branch. In 1865 the union conducted an audit of the branch’s accounts and found that that Charles Close had embezzled £25 of union funds, this was a significant equivalent to several months’ wages.  After attempting to resolve without recourse to legal proceedings another union member, John Hornby entered the stage by commencing legal proceedings against Charles on behalf of the union; that legal challenge was to culminate in the  

John Hornsby was the union’s president of the Bradford branch. As an aside it is somewhat refreshing for those of us who have experienced the joys of trade union executive committees to see that internecine disputes was ever thus!

The Background context

McCunn describes the legal position of Trade Unions as existing “in a kind of legal limbo.” That is surely correct. But, the time unions felt much more assured on their position. In 1800 the Combination Act (the last of multiple statutes over the previous century) was an “An Act to prevent Unlawful Combinations of Workmen”. What was it that made a combination unlawful? The Act made one of the central unlawful acts clear, it was an offence for any worker “who shall at any time after the passing of this Act enter into any combination to obtain an advance of wages, or to lessen or alter the hours or duration of the time of working, or to decrease the quantity of work.” This struck at the core purpose of trade unions: to work together (combine) to improve working conditions, pay, etc! Trade Unionism was de facto an both unlawful and a criminal endeavour (albeit there is debate over the extent to which it was enforced).

The passing of the Combination Laws Repeal Act 1924 removed the threat of criminal prosecution for combining to improve working conditions in respect to wages and hours (but did not remove the risk of criminal conspiracy charges for other union interests such as such as threatening an employer with strike action to induce dismissal of non-union workers as the case of R v Byerdike (1832) 174 Eng Rep 61) shows).

Still the repeal gave hitherto underground unions the confidence to “come out into the open” (Vester and Gardner) and with that more amendable to pursuing legal redress.

However, aside from the taint of criminality context, the the United Society of Boilermakers and Iron Shipbuilders, like all trade unions was an unincorporated organisation. At common law that would have meant that the organisation could only take action if all of its members acted in concerned. As anyone who has been involved in trade unions such a level of unanimity is especially difficult to achieve but even more so for James Hornby and his fellow members since the prospective Defendant (Charles Close) was himself a member of the union which is akin to a defendant sitting on a jury hearing and deciding evidence against herself!

The problem for the union was however even more problematic in common law. As a member of the unincorporated body it was legally questionable whether Charles Close could steal from the union since the £25 belonged to the members, including himself.

Nevertheless, the union was in a bullish mood (McCunn) because it believed that Parliament had provided them standing to bring a case even without unanimous support of its members because of section 44 of the Friendly Societies Act 1855. Friendly societies burgeoned in the seventeenth and eighteenth centuries and are essentially organisation where members join together for a common purpose such as providing financial relief for members in need.

Section 44 of the Friendly Societies Act provided that so long as a society’s rules were deposited with the relevant body (which the Union had done) and the society was established “for any purpose that was not illegal” then the society could pursue legal actions in defence of their funds.

John Hornby had every reason to be confident in his standing to pursue a legal case under section 44 as in 1865 the union had secured a conviction against one William Warner who had been Secretary of the Leeds branch and had also embezzled union funds.

The Case of Hornsby v Close (1866 and 1867).

The union brought its case against Close in 1866 before Bradford Magistrates.  It does not appear that the issue of whether Charle Close had in fact stolen the £25  was considered. Instead, Charles resisted the union’s case on jurisdictional grounds.

Section 44 of the Friendly Societies Act 1855 only gave standing for a society to commence proceedings where that society has been established “for any purpose that was not illegal”. Whilst, following the repeal of the Combination Acts,  it may no longer to criminal to withdraw labour or induce the same to improve wages etc, a central purpose of the union was still to provide support to those against restraint of trade. That may not be criminal, but it was still illegal and therefore that restraint of trade illegality deprived the union of standing to rely on section 44.

Close’s argument was successful, and in January 1866 the Magistrates dismissed the claim.

Standing back from the legalities for a moment this is a remarkable course of conduct for a trade unionist to take (remember Close was not just a member but an active officer of the union). Some 40 odd years later the Osborne judgment (1909) would be issued, this was a case where a union member challenged the operation of his union’s political donations. Within trade union circles Walter Osborne’s legal challenge is viewed in an extremely negative light as an employer and Tory Party lackey (I think somewhat unfairly, as it happens, especially as he was a member of the Liberals). But here, a union member (although as a defendant rather than plaintiff), advanced a legal argument that struck to the heart of trade union modus operandi, and gave succour to one of the multitude of employers who would go on the seek to restrain the exercise of “combination” for the private end of escaping liability for having had the temerity to extract £25 out of the hand of his fellow union members. In a rogue’s gallery of trade unionists there are surely few who would command a more prominent position than Charles Close?

Predictably, the union were furious at the decision and there were allegations of anti-union bias. One respondent (with good reason) complained that the £25 theft was uncontested but ‘with £25 of our money in his pocket’ he now ‘huzza’d and scoffed at our society’ (McCunn). An appeal was launched funded by a levy upon members and George Mellish QC was appointed to argue the case, which was heard in January1867.

Relying on the precedent of a case a decade previous – Hilton v Eckersley (1855) – the Lord Chief Justice (of the Queens Bench) held that the union’s rule were contrary to public policy and, therefore, illegal even though he accepted they may not have been criminal.  The union rules providing has it did financial support for striking workers among other rules supported combinations of workers to restrain the trade of employers.

Hilton v Eckersley was a ‘combination’ case, but not of a trade union variety (although as McCunn notes the judgements very much had combinations of workers in mind notwithstanding the different subject matter of the case at hand).

In 1853 Nathaniel Exkersley was the Mayor of Wigan and a mill-owner. Factory workers in Wigan engaged in a strike to secure higher wages. Ecksersley and other employers organised a combination of employers, comprising 18 mill owners who promised that the approach to the strikes would be governed by majority agreement of its members and, should a member fail to do so, would be subject to a £500 penalty fine. One of those employers was Caleb Hilton. The mill-owners agreed to a ‘lock-out’ strategy. Striking workers were being starved into submission and workers approached Eckersley and proposed a return to work for half the sum sought in the strike. Eckersley was agreeable but the other employers were not, and so Eckersley resigned from the combination and re-engaged the striking workers. Caleb Hilton commenced an action to enforce the £500 payment which was defeated. The judges found the employer aims to be laudable but that they were unenforceable. The real focus of the decision was against the prospect of workers combining together. Thus Baron Alderson made the pointed comment in judgment that if such a bond against employers should be acceptable the courts would soon be being called to “legal effect to combinations of workmen for the purpose of raising wages, and make their strikes capable of being enforced at law.” And so, contracts facilitating a restraint of trade was unenforceable the “clinching argument against the bond was not that it was against the public interest per se, but that a similar contract made by workers would have ‘disastrous consequences’ for the nation” (McCunn).

Honby v Close gave the court the opportunity to direct the ratio of Hilton v Eckersley to what was the intended real subject: to determine that contracts (as a union rule book was) that encourage restraint of trade (of employers) was unlawful.

Aftermath

The judgment in Hornby v Close seized upon opportunity to give the judgment Hilton v Eckersley sought to provide. Union’s were tyrannical organisations that were depriving naïve members of genuine freedom by removing freedom to contract. Baron Alderson went to say that by seeking, by combining efforts and consolidating negotiating power unions were “oppressed by a majority of his fellow workmen.”

A union of workers was ‘illegal’ because by the Rules of the union the sought to facilitate collective action in furtherance of improved wages for all members and so this was against public policy in  that it denied the opportunity for employers to trade but, I suspect more pertinently, the freedom for workers to shoot themselves in the foot and further enrich employers). As Frederic Harrison argued (Harrison was a pro-union barrister) “the repercussions of Hornby reached far beyond the application of the 1855 Act. The judges had found that unions were ‘in their nature contrary to public policy’, to be ‘condemned and suppressed by the law’ just like ‘public nuisances and immoral considerations” (cited in McCunn).

Whilst not a major cause the Hornby v Close decision was an impetus for the establishment the following year of the Trades Union Congress in 1868 and attempts to secure passage of new legislation by Frederic Harrison. The increased franchise after the Reform Act 1867 and increased working class vote was seen as an impetus to press parliamentarians for a parliamentary resolution. The later passing of the Trade Union Act 1871 to (attempt to) remedy the effect of the common law moved the dial in the trade union’s favour but not decisively (see for example discussion in Russell v Amalgamated Society of Carpenters and Joiners [1912] UKHL 1026.

Sources:

Michael J Klarman, The Judges versus the Unions: The Development of Labor Law, 1867-1913, Virginia Law Review, Vol 75(8), (1989), 1487-1602.

J H McCunn, Hornby v Close (1867): Freedom of Contract and Freedom of Trade, Landmark Cases in Labour Law, (Eds J Adams-Prassl, A Bogg, and ACL Davies), Hart Publishing, (2022), 31-53.

A E Musson, The Congress of 1868: The Origins and Establishment of the Trades Union Congress, TUC, (1955).

John V Orth, English Combination Acts of the Eighteenth Century, Law and History Review, Vol 5(1), (1987), 175-211.

H Vester and A H Gardner, Trade Union Law and Practice, Sweet and Maxwell, (1958).

That caused a double take on my part because that would be a significant departure as previous authorities had been clear that the test was not a more than 50% chance but simply “a prospect” (for example, Leeds Teaching Hospital NHS Trust v Foster [2011] UKEAT 552_10_1406 which said there had to be “a chance” or “some prospect”). A reading of the Hindmarch judgment shows that the position has not really changed or narrowed at all.

Hindmarch was a case about an ambulance driver in the midst of the Covid Pandemic. He was vulnerable to covid because of asthma and had a anxiety related disability. All scheduled ambulance drivers (such as the claimant) were provided with FFP2 masks whereas unscheduled (because of higher risk) were given FFP3 masks which offered significantly more protection but had other limitations to their use. In giving the FFP2 masks the NHS Trust were following their policy. The claimant commenced sickness absence because of his anxiety. The claimant alleged that by not giving him FFP3 masks the trust refused to make reasonable adjustments.

The argument is certainly a cogent one and in other circumstances this may have been a reasonable adjustment. However, on the specific facts, the tribunal found that there was no real prospect that if the FFP3 had been offered the claimant would have been able to return to work (note the tribunal does not talk about balance of probabilities but no real prospect).The EAT succinctly explained the rationale at paragraph 61 saying “It  cannot be reasonable to require a party to make an adjustment that has no prospect of achieving the desired effect … there are cases, such as this one, in which the conclusion that the adjustment has no real prospect of making a positive difference provides a complete answer.”

Whether the assessment of the facts was correct is one matter, but on the question of law this is not a controversial decision. In the non-employment case of Paulley v First Group plc [2017] UKSC 4 the same position was set out that there must be at least a “real prospect” of the adjustment removing the disadvantage.

The reason Mr Hindmarch lost his case was not because the tribunal concluded the adjustment was unlikely to be successful but because it concluded it had no prospect of being successful. Had the tribunal’s decision of fact been somewhere between these two positions (for example, the adjustment was not likely to be successful but still had a real possibility it could be) then case outcome may well have been very different …  which is exactly the same legal position as before the recent Hindmarch decision.

This threshold for a reasonable adjustment claim (where prospects of success of the adjustment is one of the relevant factors that a employment tribunal will consider is a very helpful one to remember. Employer’s will often try to argue that an adjustment is not guaranteed to work, or is untested, as a justification for not making changes. For a worker seeking adjustments evidence that a change will help is of course very helpful but so long as there is a real prospect an adjustment could help that will mean there is a real question of reasonableness to be determined in an argument there has been a failure to make adjustments – and where as is often the case adjustments cost very little that may be a difficult argument for an employer to resist.

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This blog is specifically for the benefit of trade union reps, and members but I hope will be of interest more widely to other advisors, and workers. If you are not a union member then now is a good time to put that right, the TUC offers help selecting the right union to join (although feel free to message me if you’re unsure about what’s best and I am happy to make a suggestion depending on your circumstances).

If you are among the number of employment lawyers and paralegals who
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Fully Unpaid?

For a while there was some uncertainty whether a non-payment of wages (bearing in mind the restrictive scope of what is and is not “wages” definition of wages in s.27(2) of Employment Rights Act 1996) which was settled by the Court of Appeal’s judgment in Delaney v Staples [1991] IRLR 112 (if a payment is a ‘wage’ and is payable then a complete non-payment is still a ‘deduction’). The Court put it in this way:

“Non-payment of wages due to an employee is a deduction from wages within the meaning of the Act. The Industrial Tribunal can entertain any claim by an employee that, in contravention of the Act, his employer failed to pay him at the appropriate time the full amount of the wages, as defined in the Act, which he ought then to have been paid.”

The Delaney v Staples case went on to be heard by the House of Lords but on a different (but important) point of law about notice pay which I will post on shortly but the decision on full non-payment being a deduction was not challenged in that later hearing.

There are quite a lot of circumstances where a deduction of wages complaint is possible but in most cases the complaint is of the type covered by Court of Appeal’s Delaney v Staples: For example, “I was due a 10% pay rise in September but didn’t receive any pay rise at all”, or, “my salary for August was £2,000 but I was not paid this.”

Partly Paid and Underpaid?

Sometimes an employer will only pay part of the wages that are due. For example, where an worker is owed £2,000 for a month’s salary but only paid £1,500 – this is still covered by the Delaney v Staples case; because as the court said, and employment tribunal “can entertain any claim by an employee that, in contravention of the Act, his employer failed to pay him at the appropriate time the full amount of the wages” owed at that time.

But what about where there has been a change of hours worked so the employer only pays for those hours worked. For example, suppose a worker has a contract for forty hours a week pay at £15 per hour; that would equal a weekly wage of £600. Now the employer only offers the worker twenty hours of work, so the worker is paid only £300, which is £3,000 less than the worker thinks should be paid. Can she make an unauthorised deduction of wages claim then?

For a while that was hotly debated because to determine the case an ET would need to interpret contract of employment which some felt the ET did not have jurisdiction to do. This was necessary because if our worker’s contract allowed an employer to unilaterally reduce hours of work then any claim would be defeated but if not then this would suggest the employer was required to pay the worker £600 per week for 40 hours work, even if the number of hours worked was less than this. This concern was settled by the Court of Appeal in Agarwal v Cardiff University [2019] IRLR 657. If interpretation of a contract was required to resolve a unauthorised deduction of wages case then the ET could do this.

An example of how this can be applied can be seen in International Packaging Corporation (UK) Ltd v Balfour [2003] IRLR 11. In that case the employer unilaterally reduced worker pay when it did not have a contractual right to do so. The amount of the unilateral reduction of pay was found to be an unauthorised deduction of wages.

The Agarwal decision is an especially important case for trade union representatives as it provides opportunity to raise collective issues on a collective basis where, for example, a unilateral change of contract is imposed by employers (something that may become more common after reforms to fire and re-hire in the Employment Rights Bill). While workers remain employed, they have no right to bring breach of contract claims in the ET (they can in the civil court but that is expensive). Where a failure to adhere to an employment contract results in a loss of wages then, post Agarwal, an unauthorised deduction of wages claim offers an opportunity for a collective claim on behalf of members.   

Lately Paid? 

Nearly all unauthorised deduction of wages concern an amount of money that remains unpaid. The claimant wants an order to require the employer to pay money owed to the worker – but is this an absolute requirement?

This question was considered in the context of an automatic unfair dismissal case in Francis v Elizabeth Claire Case Management Ltd [2005] IRLR 858. The claimant complained to her employer that it was often paying her late. There was no dispute all money owed had been paid, but simply the payments were later than they should be. She alleged that because of those complaints she was dismissed and that this was because of her asserting a statutory right (the right not to suffer unauthorised deductions of wages). The EAT therefore had to decide whether a failure to pay on time was itself capable of being an unauthorised deduction of wages? The EAT found that it was, stating [at paragraph 30] that the:  

“true position is that where an employee is not paid any of his or her salary on time, this failing by the employer constitutes a breach of ‘a relevant statutory right’ of that employee.

Of course, it is unlikely to be reasonable to complaint to an ET on the basis that an employer made a payroll a day late and there is no financial impact upon a claimant unless part of a broader case. However, it is not hard to see that a failure to pay on time might cause a worker financial loss.

For example, suppose a worker is due to be paid on the first day of every month but an employer does not in fact pay the worker until a week later. For that first week, the worker has insufficient money to pay their credit card, loan payments, mortgage etc (maybe all three!) and, as a result they are charged additional fees for their late payments. Because, in addition to ordering unpaid wages be paid, the ET can award additional sums for financial losses caused by the deduction (section 24(2) Employment Rights Act 1996) making a claim that an employer made deductions of wages simply by paying them late is an option reasonably open to a worker to recover that additional outlay caused by the employer’s breach.  

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Want to stay updated? 

This blog is specifically for the benefit of trade union reps and members but I hope will be of interest more widely. . If you are not a union member then now is a good time to put that right, the TUC offers help selecting the right union to join (although feel free to message me if you’re unsure about what’s best and I am happy to make a suggestion depending on your circumstances).

If you are among the number of employment lawyers and paralegals who
work in the legal sector following this blog why not join the Legal Sector Workers United (LSWU)?

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A good example of this tendency can be seen in the ET case of Mohamed v Acis Group (2021). Mr Mohamed was dismissed and he believed that dismissal was discriminatory. In his ground of claim he explained “I also strongly believe that my race had something to do with it and if it was one of my white colleagues the outcome would have been different.” Because that was all the claimant could bring to support his claim it was struck out.

Mr Mohamed’s gut instinct upon which he based his claim is a common and understandable one. An employee is faced with a detriment ( a dismissal, a warning, a demotion etc) and they note that this has affected them only, and no-one who does not share the protected characteristic (whatever the PC may be) has been treated in the same way. That disparity in treatment is entirely reasonable grounds for a concern of direct discrimination. But is is enough to justify starting a claim?

I have never tabulated the data on this but my guesstimate is that for maybe 60-70% people of people who are considering making an employment tribunal claim and who have not had any previous advice put forward as their main basis for why they have been discriminated against the fact of different treatment in the same way that the claimant in Mohamed v Acis Group did.

It is a surprise to them that if that is the argument then their legal complaint is on shaky ground (subject to new evidence that may come out in disclosure). I have set the burden of proof on this website before (the Efobi decision was indeed appealed to the Supreme Court and dismissed) but it is worth repeating the salient issue.

In its decision in Madarassy v Nomura International Plc [2007] EWCA Civ 33 [at 56] the Court of Appeal made clear that, contrary to the prime arguments of that 60-70%, that (emphasis added) the “bare facts of a difference in status and a difference in treatment only indicate a possibility for discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the Respondent had committed an unlawful act of discrimination.“

What this means is that unless that 60-70% can show that in addition to the different treatment there is something more to show that the reason for the treatment is the protected characteristic is then they will lose the case, if they can show this then they are still in the fight and may succeed at the tribunal.

The category of what is “something more” is wide and varied. Sometimes this may be obvious such as a manager who dismissed an employee having previously made racist remarks about the claimant. Sometimes it may be an evasive answer to allegations of discrimination (as in Virdee v EEC Quarries Ltd [1978] IRLR 295) or a senior official emailing staff to acknowledge there was disparity in the treatment of certain particular characteristics (as in Home Office v Kuranchie [2017] UKEAT 0202_16_1901).

As it happens, although maybe 60-70% of unrepresented persons may be framing their case in a way that is not positive it does not mean that they do not have a good claim. As Madarassy recognised a difference in treatment does “indicate a possibility for discrimination.”

Claimants advancing a case relying on just a difference in treatment will often come unstuck at Preliminary Hearing as the lack of a ‘something more’ becomes apparent.

So, if you are contemplating or advising on a discrimination claim then care to consider whether there is a ‘something more’ that can be relied upon will be valuable time spent. It may be that a case of discrimination is not proceeded with as, like the claimant in Mohamed v Aris Group there was nothing to say to prove discrimination beyond a gut instinct; or it may be that by identifying the evidence from the outset litigation is commenced on the front foot.

A recent judgment of the Employment Appeal Tribunal complicates this even further in respect to when the ACAS Early Conciliation ‘stop the clock’ provisions take effect. The basic principle in ACAS Early Conciliation is so long has started in the relevant limitation period (within three months normally) that when conciliation starts the time limit stops running and does not start until conciliation ends (section 207B Employment Rights Act 1996). There are also rules that the time limit can be extended further if a claimant is left with less than a month to file an ET claim at the end of the conciliation period.

In Raison v DF Capital Bank Ltd [2025] EAT 86 the claimant sought to make an unfair dismissal complaint against her employers. The claimant was dismissed on 17 February 2023. However, anticipating the dismissal the claimant began ACAS early conciliation on 11 February 2023 (6 days before the dismissal) and early conciliation ended on 28 February. The issue in the appeal was whether the stop the clock provisions applied to the whole period (11 to 28 2023) or just the period from the dismissal date (17 to 28 February 2023). If the former applied the claim was in time, if the latter the claim was out of time and at risk of being dismissed.

The EAT adopted the latter position. The claimant could not rely on the period of Early Conciliation from 11 February to 17 February 2026 to extend the time limit to make her unfair dismissal claim. As a result the EAT upheld the ET’s decision that the unfair dismissal should be dismissed because it was lodged out of time.

Like the situation in Jumping the Gun I, this case is a sad reminder of the risks of taking steps to prematurely initiate employment tribunal litigation as this can backfire later on. In this case the situation could have been avoided if the risk about the first 6 days of Early Conciliation had been identified and the claim date pushed forward by at least the same number of days.

I am not convinced the EAT’s decision here is the correct one, but that is more related to the reasonably practicable time limit point but the case is helpful in emphasising that:

• ACAS Early Conciliation for an unfair dismissal should not be commenced until the legal right has been infringed (the dismissal has happened)
• If there is any doubt about whether the stop the clock provisions will apply to all the conciliation period then make sure the claim is brought as early as possible to mitigate or remove that risk.

It is (fairly) well known that if a person has been dismissed they have a three month (less one day) time limit to commence ACAS Early Conciliation on a prospective unfair dismissal complaint. If a claim is not made within that time then the subsequent ET claim is likely to be out of time.

The statutory basis for the three month period is section 111(2)(a) of the Employment Rights Act 1996 which states an employment tribunal cannot consider an unfair dismissal complaint unless it is presented (allowing for any extension of time limits because of ACAS Early Conciliation) “before the end of the period beginning with the effective date of termination”.

The key issue which these employees have misunderstood is that the general rule is that an employee must have actually been dismissed in order to claim unfair dismissal, it is not enough to know that they are going to be dismissed. In short (and again with one exception), in order to claim unfair dismissal the claim must be started after the effective date of termination which is the actual date the employment ends. It is not unusual for an employee to know they are going to be dismissed but for the actual date of termination (EDT) to be in the future.

For example:

• Scenario One – An employee could be accused of gross misconduct with a disciplinary hearing scheduled on a Friday. On Wednesday he is informally told he is going to be dismissed on the Friday without any notice pay. If he submits an unfair dismissal claim on the Thursday the claim is (probably – there may be some argument here) made before the EDT the tribunal will strike out the claim as it only has jurisdiction when the claim is made after the EDT (s.112(a) ERA 1996). This scenario was considered in Rai v Somerfield Stores [2004] IRLR 124, EAT where this was confirmed. If the employee waited to Saturday after he was told he was summarily dismissed (the claim would be valid and once the ET can consider. An unfair dismissal claim will be likely to be struck because the claimant ‘jumped the gun and made the claim too early.’
• Scenario Two – An employee is on a fixed term contract that expires on 31 December 2025. On 1 December 2025 she is informed the contract will not be renewed. There is no doubt that a non-renewal of a fixed term contract is a dismissal (s.95(1)(b) ERA 1996) so that she knew she was going to be dismissed. If the employee makes an ET claim for unfair dismissal before 31 December 2025 this will be before the EDT (31 December 2025) and so likely to be struck out, a claim after 31 December 2025 would not be. This scenario was considered in Throsby v Imperial College [1977] IRLR 337 where this was confirmed. An unfair dismissal claim will be likely to be struck because the claimant ‘jumped the gun and made the claim too early.’
• Scenario Three (the exception) – An employee is entitled to four weeks notice. The employer decides to dismiss the employee and gives them their four weeks notice. Because section 111(3)ERA 1996 creates an exception that that an ET can consider an unfair dismissal claim if it is issued before the EDT but after notice of dismissal is given. In this scenario the employee can wait until after the EDT (the expiry of the notice period) but can also make a a claim before the EDT within the notice period because section 111(3) specifically allows this. Therefore, unlike scenario one and two, a unfair dismissal claim before the EDT is not ‘jumping the gun’.

Every year claimants (and claimants who, if they did not jump the gun, would have strong unfair dismissal complaints) are denied the opportunity to have their complaints considered because they ‘jump the gun’. It is easy to see how that happens. In the immediate aftermath of discovering they are going to be dismissed thoughts quite understandably turn to making an unfair dismissal complaint; the question of whether the complaint is about an upcoming dismissal the is unfair or an actual dismissal that is unfair is likely to be a technicality that does not enter their thoughts.

This shows the importance of avoiding kneejerk claims – a little forbearance in responding to bad news and the risk of jumping the gun is much reduced.

Of course, if a mistake is made and a claimant is still within the limitation period the mistake can be rescued, a new claim (after the EDT) or amendment can be made but without good advice at an early stage the mistake may be unrepairable. Suppose (and unfortunately the example is based in experience) a claimant jumps the gun and makes an unfair dismissal claim too early but is unaware of that fact. With ET delays being what they are it may not be for some months before an ET tells the claimant about the problem but by then the three month period to make a claim after the EDT has long since expired.

Without knowing there was a problem the claimant would find their unfair dismissal claim struck out and the time limit to make a new claim expired, meaning the chance of a new claim being accepted out of time is not guaranteed and likely to be resisted. A claimant could argue the claim was made as soon as was reasonably practicable based on the inadvertent mistake about when an unfair dismissal could first be made – the claimant may be successful but may not be.

The key takeaway is if you are seeking to make a claim for unfair dismissal, then you should not normally initiate this (including ACAS Early conciliation) until until after the EDT. In a summary dismissal case this means the date you are told you have been dismissed, in a dismissal with notice case this means the date the notice period ends (but this where the exception applies), and in a non-renewal of fixed term contract case it is the date the end date of the contract is reached. For advisers, making sure employees are aware of the risk of jumping the gun is a key factor in ensuring that claimant’s can make valid complaints of unfair dismissal determined on their merits and not defeated by a technicality. Or, to put in in clichéd form: don’t jump the gun but rather hold your horses!

My last post was on whether the Supreme Court’s decision in Mercer was a victory for workers as some union briefings suggested – I doubted that saying:

Although it is true that the Court found against the government, the claimant has still lost her case because she could not meet the statutory requirements of the Trade Union Act. If Ms Mercer were to make her claim again today the outcome would be the same, despite the media claims of victory. Even more importantly, even after the Mercer decision nearly any employer can still impose a detriment on striking workers so long as it does not dismiss them and know it will be safe from successful challenge because the law (section 146 of the Trade Union Act) remains unchanged. Given that is the legal reality after the Supreme Court’s decision I struggle to describe the judgment as a resounding victory for workers and trade unions!

As if to prove the point a group of Royal Mail and CWU workers – totalling 540 claims have had their claims struck out our partially because they have no reasonable prospect of success – Rodriques & Ors v Royal Mail Group Ltd (2024).

These claimants all alleged that because of their participation in CWU industrial action their employer, Royal Mail, had subjected them to pay related detriments. The employer sought to strike out the trade union detriment cases of the claimants (a smaller number also have unauthorised deductions cases) on the basis that the claims had no reasonable prospect of success. The basis of that application was that, following the Supreme Court’s decision in Mercer, the Tribunal did not have the jurisdiction to consider the case because it was not allowed to consider whether the treatment was because of the claimants’ participation in the strike.

Unsurprisingly, lawyers acting for CWU did not disagree with Royal Mail’s argument about reasonableness of the case. However, what is interesting is that CWU pushed this to a judgment, this was explained in the judgment itself:

Although the CWU claimants do not dispute the substance of the respondent’s application, and do not oppose it, they nonetheless seek a reasoned judgment striking out the claims because the claimants are considering an application to the European Court of Human Rights (ECHR) against the UK Government, which would include a claim for a breach of Article 11 and 6 of the European Convention of Human Rights (the Convention). In particular, the claimants note that a claim which is the subject of an application to the ECHR must first have been brought in the domestic forum. Moreover, article 35 of the Convention requires all domestic remedies to have been exhausted prior to an application to the ECHR.

We can be confident that new legislation will be forthcoming to remedy the problems the Court found in Mercer. However, the tantalising prospect intimated in CWU’s submission in this case raises is that the the past Government’s failure to ensure that trade union members who are subject to a detriment for having participated in industrial action is an interference with its Article 11 obligations.

In one of my earlier posts on the Mercer case I made the perhaps over-confident prediction the Supreme Court would sort out the mess, they didn’t. In legal terms they made a declaration of incompatibility under the Human Rights Act 1998. In non-legal terms they have taken a mallet to the structure of Trade Union protection in its current version, gathered and bundled up the shattered remains and sent this to Parliament with a note saying “Rishi, we found this and thought of you, please sort it out”.

In the aftermath, many commentators have labelled the judgment a victory for workers and a defeat for the Government. I am not convinced by that line of argument; it is certainly true that the decision is much better than it could have been. After all, the Court could have found section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (Trade Union Act) was compliant with Article 11.

I am not going to go into the case in detail as I want to come back to this issue in a blog-series on strike related protections but the essential fact of the case is a Unison rep helped to organise and took part in a strike. Her employer did not sack her for this (that would have been an automatically unfair dismissal) but did decide to issue her with a formal warning and suspended her. The claimant challenged that decision saying it was a detriment for taking part in trade union activities viewed generally (which of course it was) but the case was lost on a preliminary issue that strikes are excluded from the statutory definition of “trade union activities”.

All the appeals on this case (at the EAT, Court of Appeal and now SC) related to whether the relevant legislation was consistent with the Freedom of Association in Article 11 of the ECHR (European Convention on Human Rights). The decision of the Supreme Court is that, as it is currently drafted, section 146 of the Trade Union and Labour Relations (Consolidated) Act 1992 does adequately not protect UK workers from detrimental treatment from employers for exercising their right to strike as Article 11 of the ECHR. But the judgement is not really an employment law decision but a human rights one and so an unusual diversion for this blog into constitutional and human rights law is required.

A Brief Primer on the Human Rights Act and Legislation

To understand the Mercer decision a basic understanding of constitutional law/arrangements is required, especially the idea of primary legislation and parliamentary supremacy.

Primary and Secondary Legislation

In the UK there are two types of legislation the Government passes: primary and secondary legislation. At the risk of significantly oversimplifying primary legislation is legislation in which Parliament (House of Commons and Lords) passes and receives royal assent. This then becomes an Act of Parliament. There is quite a lengthy process of readings and back and forth before proposed primary legislation (called a Bill) becomes law, (and so becomes an Act). By contrast secondary legislation is a process where the Government implements an order in Parliament (usually because an Act allows them to do so) is assumed will become law at a certain date unless Parliament expressly objects. Secondary legislation are usually called “Statutory Instruments” or “Orders”.

Parliamentary Supremacy

Unlike the situation in the USA, the UK Supreme Court has no power to to overturn and make inapplicable any piece of Primary legislation. In normal (common law) a court can view an Act of Parliament has wrpng-headed, offensive, and discriminatory but it has no power to declare it void, the only (legal) way is to hope Parliament itself overturns the unjust law. With a few complications (there are convoluted legal arguments on the extent the EU membership and devolution has affected this which are not relevant to this post) that has been the essential legal position from 1689 (the date of the Bill of Rights 1689) to 1998 in respect of primary legislation. The position of secondary legislation is less straightforward but basically while a court cannot rule Primary Legislation as invalid the court can rule that secondary legislation is invalid. The 2017 decision of the Supreme Court on employment tribunal fees is an example of this; because the law was found in secondary legislation (Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, SI 2013/1893) it could be ruled to be invalid – had that same provision been found in primary legislation the court would have had no power to rule it invalid because of the principle of parliamentary sovereignty – however much it may have wanted to.

Human Rights

The UK has been a signatory of the European Convention on Human Rights since inception and subject to the jurisdiction of the European Court of Human Rights (ECtHR). As at 1998, if someone believed the UK law did not protect human rights they could make a complaint to the ECtHR who could rule that the UK was in breach of its obligations to protect the human rights of those under its jurisdiction. Crucially however, if the UK did not like a judgment it could not be legally compelled to do so in domestic (UK) law.

In 1998 the then Labour Government passed the Human Rights Act 1998 (HRA), which came into effect in October 2000. The HRA had a huge effect on how the Court dealt with disputes about primary legislation. Importantly however, even though the HRA undoubtedly gave the courts more power to scrutinise primary legislation if did not change or alter the principle of parliamentary supremacy (because the extra powers were conferred by Parliament to the Court in the HRA). Before and after the HRA, no UK court could declare primary legislation invalid.

What the HRA did do was impose two new powers give courts some tools to more flexibly interpret legislation on the basis that it is assumed that Parliament did not intend to enact legislation that was inconsistent with its human rights obligations. The two main tools were:

• Section 3 of the HRA imposing an obligation on the court to, “so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” Even if the natural reading of primary legislation suggests a different approach if the court can interpret primary legislation in line with human rights obligations then that is what it must do.
• Section 4 gives the court the power (but not necessarily the obligation), if it cannot interpret interpret legislation in a way consistent with human rights protections to make a “declaration of incompatibility.”

Importantly, however – if the Court do make such a declaration this has no effect whatsoever on the primary legislation which it has found to be inconsistent with the State’s legal obligations (Section 4(6) HRA).

So, what’s that got to do with the case in Mercer?

At the Supreme Court Unison argued that:

• Section 146 of the the Trade Union Act was inconsistent with the Government’s obligations under Article 11 of the ECHR (the freedom of association), and
• That the legislation could be interpreted in a way consistent with the human rights obligations under Article 11.

The Court agreed on Unison’s first argument but disagreed on the second. This is important because, had it agreed on the second point as well then from that point on every trade union member would have had the legal protection against being penalised for taking part in or encouraging the taking part in industrial action.

However, the Supreme Court instead made a declaration of incompatibility which means that the claimant actually lost her case against her employer (under section 4(6)(b) HRA) and the law remains valid, live and unchanged until such time as Parliament passes an amendment to make it compliant which under the principle of parliamentary supremacy it does not need to do.

Although it is true that the Court found against the government, the claimant has still lost her case because she could not meet the statutory requirements of the Trade Union Act. If Ms Mercer were to make her claim again today the outcome would be the same, despite the media claims of victory. Even more importantly, even after the Mercer decision nearly any employer can still impose a detriment on striking workers so long as it does not dismiss them and know it will be safe from successful challenge because the law (section 146 of the Trade Union Act) remains unchanged. Given that is the legal reality after the Supreme Court’s decision I struggle to describe the judgment as a resounding victory for workers and trade unions!

Readers may notice I said “nearly any employer” will be safe from challenge. One of the reasons the court found a declaration was necessary was because employees of private (non-state) employers cannot make a complaint of a breach of Article 11 because that needs to be a complaint against a public authority (like a local authority or government department). For the time being, if a worker is placed to a detriment because of strike action and they are a worker for a public authority then they may still have a remedy by making a complaint of an article 11 breach in court (not employment tribunal).

So, what next?

I do not expect the government to take any attempt to legislate to change primary legislation any time soon, especially given the likelihood of a General Election in the next few months. Even after all the noise of press reports on the case the legal reality is not really changed and because of the principle of parliamentary supremacy will not be until (if they do) Parliament decide to change for law to account for the Supreme Court’s decision.

If the delay is for any period it is possible that the claimant, Unison, or other persons could pursue a complaint to the ECtHR, but that can itself take years and, as the Prisoner Votes saga shows even an adverse decision against the UK can take years to resolve itself and solve the underlying denial of rights.

So, is the Supreme Court’s decision a victory or a case of limbo? A bit of both I think, but with an unfortunately heavy dose of limbo.

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