Silence is not golden

Ignoring a suggestion of Mediation is unreasonable.

Halsey V Milton Keynes General NHS Trust (2004) 1 WLR 3002 decided that while a Court cannot compel a party to mediate, it can “robustly encourage” mediation, including by depriving the successful party of costs because it refused unreasonably to mediate.

In PGF II SA V OMFS Company 1 Ltd (2013) EQCA Civ 1288, the Court of Appeal congratulated itself on the durability of the rules laid down in Halsey, but acknowledged that PGF raised a slightly different issue. The Defendant had not actually refused to mediate; instead, D had ignored two invitations to mediate. The parties exchanged Part 36 offers but, when D found a new point at the door of the Court, C accepted D’s Part 36 offer. Since the acceptance was out of time, C would ordinarily be required to pay D’s costs from the time of the offer (CPR 36.10 (5)). A Court will only depart from this if the Court considers the normal Order unjust (SG V Hewitt [2012] EWCA Civ 1053).

In PGF, the Court of Appeal said that silence in the face of an invitation to mediate is always unreasonable. This is therefore a rare instance of the Courts laying down a strict rule, here motivated by the policy of encouraging mediation. This policy required a salutary rule to force parties to consider the possibility of mediation. A party won’t be allowed to invent retrospectively reasons why it would have refused.

However, the Court stressed that an unreasonable refusal to mediate is only one factor in the Court’s decision as to costs. The first instance Judge had deprived D of its costs from the time of the offer because of D’s implicit refusal for mediation, but did not order D to pay C’s costs for that period. The Court of Appeal considered that this was correct and that it would only be in the most serious and flagrant cases (e.g. where the Court itself has suggested Mediation) that a Court would order a mediation recalcitrant to pay costs. On the facts, the Court of Appeal considered that the Judge may even have gone a bit far in depriving D of all its costs after the offer, but did not overturn the decision because it fell within the legitimate area of judicial discretion. A salutary rule at the first stage, but not at the second; ultimate discretion is therefore restored.

However, the bottom line remains that if the otherside proposes mediation, you must respond. Refusal is risky. Is it better to waste the time and cost of going through a mediation that you think will be futile rather than, by declining to mediate, to give the other side an argument that you should not get your costs if and when you win? The cost of a failed mediation can be recovered in costs. And if you aren’t confident of success, mediation may be helpful.

Source – Lexology 


Is your pay and holiday pay calculation right?

Getting pay right is not always straight forward. In recent years there have been many cases concerning holiday pay and entitlement for employees who are sick whether short or long term. This is not the only area where problems can arise though in establishing the correct interpretation of the law that regulates this area. Two recent cases which look at pay could have significant implications for employers and employees alike.

National Minimum WageWhittlestone v BJP Home Support Ltd – Employment Appeal Tribunal

Mrs Whittlestone was a care worker who was required to work shifts which in this case meant a series of visits to service users determined by rota. She was paid £6.35 an hour for the time spent providing care to the service user. Additionally, Mrs Whittlestone was expected to cover some overnight  ‘on call shifts’ under threat of disciplinary action if she was not available for these. The pay for these ‘sleepovers’ which ran from 11.00p.m. to 7.00a.m. was £40 per night.

The case looked at two important issues that can arise in work of this type; pay for periods spent traveling to and from each service user and pay for the ‘sleepover’. 

Mrs Whittlestone claimed that she should be paid the National Minimum Wage for travel between assignments other than at the start or end of the day and also for the eight hour period of the sleepover. The claim was not successful in the Employment Tribunal and she appealed.

After detailed consideration of the facts of the case and the relevant law the Employment Appeal Tribunal found that both the claims were successful.

When considering the travel the Judge stated that:-

“ the fact that the contract called each separate visit a ‘shift’ does not have the consequence that this was the same arrangement as if the Claimant had been starting work at her employer’s premises at the start of an 8 hour shift or thereabouts and returning home after. She was on a rota and obliged to visit each service user in turn during the course of the day, and there inevitably was travelling time between each visit.” 

Accordingly she was held to be entitled to National Minimum Wage for this time.

The same conclusion was reached for the sleepover on the basis that:-

“The evidence was that there had been agreement between the employer and the Claimant that she would work; she would have been disciplined if she had not been present throughout the period of time; she could not for instance slip out for a late night movie or for fish and chips.”

The conclusion was again that National Minimum Wage was due for the period even though in fact the Claimant was never actually called upon to provide any services to the service users during the time she was sleeping. It was sufficient that she was at the employer’s disposal during the periods and required to be there.

Holiday Pay and Overtime - Neal v Freightliner Ltd – Employment Tribunal

It is widely accepted that all full time employees are entitled to a minimum of 5.6 weeks paid annual leave but what is not always so clear is how that week’s pay for the time taken off as holiday should be calculated. The calculation is relatively straightforward for employees who work the same hours each week but for those who do not have regular hours or work overtime it can be more challenging.

The case of Neal v Freightliner Ltd concerned an employee who had a ‘basic’ 35 hour week but who was also required to work overtime when necessary and who regularly did. His week’s pay for the purposes of holiday was worked out with reference to the 35 hour basic rate which was less that his usual working hours each week and he claimed a higher amount in the Employment Tribunal.

His claim was successful. While acknowledging that voluntary overtime was excluded from the calculation of a week’s pay, the Tribunal found that:-

 “As the claimant’s duties were to perform his contractual obligations as a MSO, then the work which he carried out as overtime and at weekends was at all times the performance of tasks which he was required to carry out under his contract of employment. The fact that he may have volunteered to perform these tasks at times outside those which he contracted to do not mean that the performance was at those times no longer “intrinsically linked.””

He was entitled to be paid on the basis of all earnings in this case. 


Both of these cases were dependant on the facts and wording of the contracts. However, both have potentially huge implications in the amount of pay that may be being routinely unpaid. It is likely that both these cases may be appealed and the Employment Tribunal judgment in Neal v Freight Liner is not binding unlike the Employment Appeal Tribunal judgment but, as things stand, it may be worth reviewing pay arrangements in light of these cases to consider if there may be a claim or to seek advice to clarify the correct interpretation of existing contracts.



If you have any questions on this article or employment law generally please contact me, Sarah Everton at




The opportunity for a claimant injured at work to rely on a statutory breach was reduced on 1 October 2013 by the Enterprise and Regulatory Reform Act (ERRA) 2013. Notably, strict liabil­ity previously present in regulations such as regulation 5 of the Provision and Use of Work Equipment Regula­tions (PUWER) 1998 will be removed. Additionally, those regulations which incorporate a defence of ‘reasonable practicability will now require the claimant to prove the failure to take the practicable steps on the part of the employer, whereas previously the burden rested firmly with the employer.

However, it is envisaged that a find­ing of contributory negligence will become more common, as the previous emphasis on a primary, and at times overwhelming, fault on the part of the employer created by a statutory breach will no longer survive.

Kennedy v Chivas Brothers Ltd [2013] CSIH 57

The accident

The claimant was a line operator in a bottling plant. Part of her duties involved pushing a trolley - a cage mounted on four small wheels, two of which rotate and swivel, on to which was loaded about 380kg - along a passageway into which machinery protruded. On the occasion of her accident, the wheels stuck, and in an effort to move the trolley through the limited space created by protruding machinery, the claimant took to pulling the trolley. As she did so, her hand, which was holding onto the side of the trolley, came into contact with one of the machines, causing her injury.

The defendants pointed out that the trolley was of an 'industry standard'. Post-accident, no defects were found, and no prior complaint had been made either by the claimant or her colleagues. A general risk assessment of all manual handling activities had been carried out, but not a specific one for the task performed by the claimant on that day.

The judge at first instance found that the task was `simple', and did not involve a real and foreseeable risk of injury. It was not reasonably practica­ble to deliver the goods on the trolley to the top of the bottling line other than by way of the trolleys, and the installation of an automated system would require substantial structural alteration. The claim failed.


On appeal the claimant was successful on the basis of regulation 4 of PUWER 1998, and regulation 40 of the Manual Handling Operations Regulations (MHOR) 1992. Regulation 4 of PUWER states that `every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the pur­pose for which it is used or provided'. It was established that the trolley was `work equipment'.

The appeal court held that the equipment must be suitable for the particular task for which it is used. `Suitability' is defined by reference to the test of reasonable foreseeability - the defendant will not escape responsibility unless he can show the circumstances of the accident were `unforeseeable' or `exceptional'.

The facts upon which the court relied in finding for the claimant were:

  • The trolley was heavily loaded.
  • The claimant was asked to move it along a passageway between two rows of machinery.
  • Her height was 5ft 3in and she would have had difficulty in seeing over the top of a fully laden trolley.
  • Machinery and waste bins protruded into the passageway `to a significant degree'. lt was necessary to change the direc­tion of the trolley on at least two occa­sions within a relatively cramped space.
  • The difficulty of manoeuvering the trolley was `clear and obvious'.

As such, the trolleys were not `so constructed... as to be suitable for the purpose' of moving a full load of boxes within the factory. It was reasonably foreseeable that an accident of the type suffered by the claimant might occur, as she was trying to negotiate a fully laden trolley through the gap in ques­tion, with wheels that had the potential to stick and require realignment.

The judge at first instance relied to too great a degree on the general suitability of the trolleys for a range of tasks, rather than the specific task in this instance. Pushing a trolley may be 'simple', but on the occasion of the acci­dent obstructions had to be negotiated, the trolley was loaded to a height that affected the operator's visibility, and the wheels have a tendency to stick thereby creating an obvious hazard.

In relation to the MHOR, the defen­dants raised the issue of reasonable practicability. The court held that they failed to adopt the sequential approach to the assessment of the risk. The court emphasised that the burden of estab­lishing that a step is not a reasonably practical one rests on the employer, for it is settled law that it is not the employ­ee's task to design the system of work.

On appeal there was no finding of contributory fault on the part of the claimant, for `momentary acts of inat­tention are to be expected, especially when employees are under pressure or performing repetitive tasks. For that reason, a finding of contributory neg­ligence should only be made in a clear case. Generally speaking this will be one where the employee has made a conscious decision to embark upon a risky course of action'.

Quite properly, the court held that the claimant was confronted with a problem which she tried to resolve.

There were no handles on the trolley, therefore she was obliged to hold it in the manner in which she did, with her hands exposed.


The decision underlines the impor­tance of the application of the Health and Safety Regulations enacted in 1992, and their subsequent amend­ments.

This case was another example of an employee being presented with an unsafe situ­ation as a result of the failings of the employer in not properly assessing the risks at work, and suffering injury through her attempt to resolve the problem the employers had created.

If one puts the changes into a commercial context, an employer who abandons the current principles of health and safety, starting with a suitable risk assessment, will soon receive a slap in the face from his insurers as they start to make pay­ments of damages arising from such a lax approach.

If you have any questions on Personal Injury please contact Helen Mandeville at

Source – Law Society Gazette


Calculating Maternity Pay  




It is important to know how much an employee due to go on maternity leave is to be paid and when the payments are due. It is also important to note that an employee on maternity leave is still entitled to all benefits of her terms and conditions of employment for example, if her contract states she can use a Company car for personal use as well as business, she is entitled to the benefit of the car on her maternity leave.

Key Phrases:

Qualifying Week:
The 15th week before the expected week of childbirth

SMP:  Statutory Maternity Pay

OML:  Ordinary Maternity Leave

AML:   Additional Maternity Leave


Statutory Maternity Pay:

When is an employee entitled to SMP?

  1. The employee has worked continuously for 26 weeks by the end of her Qualifying week. She will qualify if she does this and works only one day of her Qualifying week.
  2. The employee’s normal weekly earnings are not below the Lower Earnings Limit.
  3. The employee is still pregnant (or has given birth) 11 weeks before the start of the expected week of child birth.
  4. The employee gives her employer at least 28 days notice (or a reasonable amount of time in the circumstances) of the date she intends to begin her SMP.
  5. The employee supplies a certificate confirming her Expected Week of Childbirth (usually a MAT B1 form) either before the birth, no more than three weeks after the birth or if she has good cause for delay, as soon as reasonably practicable.

The employee may still be entitled to SMP from her employer if she has ceased work (she must qualify the above) for example, if the employee resigns or is dismissed, for any reason, before her SMP is due to start. This is a more complex area of law therefore advice is recommended.

Maternity Allowance

Non-eligible individuals may qualify for Maternity Allowance (MA). Individuals who do not qualify for SMP (for example, because they have left work before qualifying for SMP, have insufficient earnings or continuity of service, or are self-employed) may qualify for MA, which is a social security benefit paid by Jobcentre Plus.

The relevant period

The relevant period ends with the last normal pay day on or before the end of the Qualifying Week and begins after the last normal pay day at least eight weeks earlier.

  • In other words, to find the relevant period:
  • Take the last normal pay day on or before the end of the Qualifying Week. (If the employee has already given birth by then, take the last normal pay day before the week of birth.) That normal pay day is the last day of the relevant period.
  • Count back eight weeks from that day.
  • Take the last normal pay day before that date. The day after that pay day is the first day of the relevant period.

Note that, if no "normal pay day" is identifiable from the employee's contract or from the employer's normal practice, actual payment days are used.

How do I know what to pay?

The Employee’s normal weekly earnings are taken into account, these include anything that would normally be treated as earnings for National Insurance purposes for example, bonuses, commission, overtime, etc, as well as remuneration. The normal weekly earnings are calculated in 2 ways depending on whether the Employee is paid monthly or weekly:

  1. Paid monthly – the last 2 payslips before the end of the Qualifying week are used. Divide the total earnings on the last 2 payslips by the number of months, times this by 12 to get the Employee’s yearly pay and divide by 52 to get the normal weekly earnings.
  2. Paid weekly – the last 8 payslips before the end of the Qualifying week are used. Divide the total earnings on all 8 payslips by the number of weeks earned to get the normal weekly earnings

When do I start paying the SMP?

An Employee’s SMP will normally start on the eleventh week (providing they’ve left work) before the Expected Week of Childbirth unless the Employee notifies the Employer otherwise.

If the birth occurs before this date or the Employee is off work for a pregnancy related illness then the SMP will start or after the fourth week before the Expected Week of Childbirth.

How do I pay SMP?

The Employee is entitled to SMP for a maximum of 39 weeks. SMP is payable at two different rates, namely:

  1. During the first 6 weeks, a rate equal to 90% of the Employee’s normal weekly earnings are payable. This is known as the “earnings-related rate”;
  2. During the remaining 33 weeks, it is paid at either the weekly standard SMP rate (currently £136.78) or earnings related rate if this is less than standard rate SMP.

When will SMP stop?

SMP will no longer be payable upon the following:

  1. Once the 39 weeks end;
  2. The Employee returns to work permanently before the end of the SMP;
  3. The Employee is detained in custody or is sent to prison;
  4. The Employee dies;
  5. The Employee starts a new job with a new employer after the birth.

For any further information on this top please contact Rebecca Hardy





It has been nearly 3 months since fees were in introduced to the Employment Tribunal.  On 18th October the Ministry of Justice published Employment Tribunal Receipt Statistics for July to September.  The key findings were:


  • Employment Tribunal receipts were around 40,000 for July – September in line with historical quarterly trends.
  • Monthly data on receipts are volatile and any interpretation should be treated with caution. This volatility is mainly driven by irregular receipts of multiple claims cases which can involve over 100 receipts per case, and occasionally over 1,000.
  • Between January – May 2013 an average of 17,000 receipts per month were received into the Employment Tribunal by HMCTS.
  • In June there were 25,000 receipts, and a further 17,000 in July 2013. This sudden increase may be explained by people choosing to enter a claim prior to the introduction of fees.
  • In August 2013 there were 7,000 receipts, and 14,000 in September 2013. 


Whether the introduction of fees will have the effect of reducing the number of claims is still unclear because of the distortions due to delays in processing some claims and the possible effect of people bringing claims before fees were introduced to avoid fees.

The introduction of fees have been challenged by UNISON and recently Dave Prentice said that “The latest Government statistics show a significant drop in the number of individual claims being taken to employment tribunals, which is precisely why UNISON is challenging these unfair fees.  Putting a price on justice is immoral and allows unscrupulous employers to ride roughshod over the employment rights of their workers.” See UNISON

Unison, with the backing of the Equality and Human Rights Commission, submitted an application for judicial review of the introduction of employment tribunal fees. The hearing which took place in the High Court on 22nd and 23rd October 2013 went part-heard and will resume on 4th  November 2013.

The issue of employment tribunal fees was also raised in Prime Minister’s Question Time in 23rd October  2013 and the following was reported in Hansard: 

Diana Johnson (Kingston upon Hull North) (Lab): Does the Prime Minister think it fair that a sacked pregnant woman will now have to pay £1,200 to take a maternity discrimination case to an employment tribunal?

The Prime Minister: It is very important for people to have access to employment tribunals, and they do under this Government. One thing that we have done is ensure that people do not earn such rights until they have worked for a business for two years, and I think that that is the right approach.

This exchange highlights the need to know the current legal position as while the point was not taken up, a maternity discrimination claim does not require any qualifying length of service in order to bring a claim. It is essential that employers find out the correct legal position and seek legal advice when required.

If you have any questions about this article or employment law generally please contact Sarah Everton at   

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