Redundancy – Do employers have to offer a right of appeal?

Anyone who has been through a redundancy process, whether as an employer or employee, will understand the importance of following a fair procedure.

Unlike conduct or capability dismissals, there is no statutory right of appeal following a dismissal by reason of redundancy, and some employers chose not to offer an appeal in order to avoid the associated time and cost.

In Gwynedd Council v Barratt & others, the Court of Appeal considered whether the failure to offer an appeal in a redundancy process rendered the dismissal of two employees unfair.

The Claimants won their cases for unfair dismissal at the Employment Tribunal.   One of the findings of unfairness was the failure to offer the right of appeal.

The Claimants were teachers who were dismissed when the School they were working at closed. A new School subsequently opened on the same site, and they were not rehired. The Tribunal heard that there was no consultation over the closure of the School and no appeal was offered to the Claimants. The Claimants also applied for new jobs at the new school, but their applications were unsuccessful.

Gwynedd Council lodged their appeal on several grounds, all of which were dismissed by the Court of Appeal. The Court made it clear that the absence of any appeal or review procedure does not of itself make the dismissal unfair, so long as the original selection for redundancy came after a fair procedure (which it didn’t in this case). The Court added that the absence of an appeal is not fatal to an employer’s defence, but it is one of the many factors to be considered in determining the overall fairness of a dismissal by reason of redundancy.

Talk to us!

There are lots of factors to consider when carrying out a redundancy process. Employers should be careful to ensure that procedure they follow is fair and reasonable in order to minimise the risk of litigation. If you are considering making redundancies, please do not hesitate to contact Paul, Vicky, Neal or Sarah on 0161 832 25000

The Equality Act 2010 sets out various types of discrimination which most employers are aware of (direct, indirect, harassment and victimisation).  When it comes to disability discrimination however, there are additional protections for disabled workers, and certain less well understood obligations are placed on employers.

In this article, we look at two recent cases which dealt with the duty on employers to make reasonable adjustments and what constitutes a ‘reasonable adjustment’.

When does the duty arise?

The duty to make reasonable adjustments arises where a worker or an applicant is placed at a substantial disadvantage, compared to people who are not disabled, by:

  • A “provision, criterion or practice” (PCP) operated by the employer (this can be many things, such as the application of a particular policy or working practices).
  • A physical feature at the employer’s premises (such as access to a building).
  • A failure to provide an auxiliary aid (such as a special screen for the partially sighted).

When the duty arises, the employer is required to take such steps as are reasonable to alleviate the disadvantage (or provide the auxiliary aid where applicable).

What is a “reasonable” adjustment?

Not all adjustments are reasonable.  There are a variety of factors to take into account, including:

  • Will the adjustment alleviate the disadvantage?
  • Is the adjustment practicable?
  • What are the costs, and the financial situation of the business?
  • How will the adjustment disrupt the employer’s activities?
  • Is there any external funding available?
  • How big is the business?

In two recent cases, the Employment Appeal Tribunal (EAT) considered whether the adjustments already put in place by the employers were sufficient to offset the disadvantages suffered by the employee, and whether the adjustments the Claimant sought were reasonable.

In Martin -v- Swansea the Claimant was unable to perform her role by reason of a disability and went on long term sickness absence.  Despite being placed on the employer’s redeployment register for an extended time, the Claimant did not find a new role and was ultimately dismissed.

The application of the employer’s sickness absence policy placed Ms Martin as a substantial disadvantage (dismissal). The EAT considered whether the employer took reasonable steps to alleviate that disadvantage.  The Claimant contended that her employer should have made a reasonable adjustment by placing her in a different role.  The EAT disagreed, finding that the role would have to be suitable based on the Claimant’s skills, rather than simply giving her a job.

The EAT was also satisfied that the employer had already made reasonable adjustments, by placing the Claimant on its redeployment register for an extended period.  It concluded that extending the redeployment period further would not have led to a different result and would not have alleviated the disadvantage of being dismissed.

In Aleem -v- E-Act Academy, the Claimant was unable to continue in her role due to disability.  She was redeployed to a lower paid role as an alternative, with a three-month protected period on her original higher salary.  The period on the higher salary was extended to six months as the employer considered the Claimant’s grievance about reducing her pay.  After the grievance process concluded, the Claimant’s salary was reduced.  The Claimant brought a claim, that her employer had failed to make a reasonable adjustment by not retaining her on her full salary in the new role.

The EAT held that it was not a reasonable to require the employer to keep paying the Claimant at her higher salary indefinitely, for a lower graded role.


There are lots of factors to consider when it comes to making reasonable adjustments:

  • Is the individual disabled?
  • Is there something at work that is putting them at a substantial disadvantage?
  • What steps are reasonable for us to take to remove that disadvantage?

Each of these questions is fact sensitive and can be legally complex, as well as being delicate to deal with from a HR perspective.  If you want to find out more about this topic, or need advice on a similar situation with any of your staff, please do not hesitate to contact Paul, Neal, Vicky or Sarah on 0161 832 2500. 

Welcome to the second edition of our newsletter, where we focus on new developments, case law updates and hot topics in Employment Law.

Our first issue marked the anniversary of the first lockdown and we considered the impact of the pandemic.  The Government has just announced that all restrictions in place in England have been lifted as of Monday 19 July 2021.  The easing and lifting of lockdown measures will vary in the other home nations but it is hoped that a return to something that resembles the ‘pre-pandemic normal’ is on the horizon.  

The past 15 months have been a difficult and testing time for both employers and employees and with restrictions now lifting/easing many employers have been and will continue to take stock on how the past year has affected and may continue to impact their operations.  For some answers to the most common questions, we have faced from business owners in recent weeks please see our blog post  

Keeping with the theme of the pandemic here is a quick Covid-19 related update

Travel restrictions   there are currently conditions in place which are attached to foreign travel from England.  Foreign destinations are classified as Green, Amber or Red with the list being subject to frequent change. 

The latest government update is that unless individuals are fully vaccinated there is a mandatory requirement to quarantine for 10 days following foreign travel to Amber list countries, although the rule for fully vaccinated individuals will not apply to France (on the Amber list) and individuals returning from France must quarantine for 10 days upon arrival in England. For those returning from Red list countries, they must quarantine for 10 days in a managed hotel.   

The requirement for individuals to quarantine is likely to impact businesses and we recommend that employers are mindful of the mandatory requirements when authorising holiday requests.  Thought should be given to how operations will be affected if there is a reduced workforce due to quarantine.    Employers may want to consider adopting the following approach for employees returning from holiday who then need to quarantine.  This is subject to ongoing government guidance, and we would recommend any such requirements are confirmed to employees in writing;

i. If a role permits home working, employees may work from home for the duration of the  period of quarantine, however, all usual terms of employment will apply, including  usual hours of work. ii. If an employee has enough remaining annual leave they may choose to take a further period of leave to cover all or part of their quarantine period.

iii. If home working cannot be accommodated or the employee does not wish to take/does not have enough remaining annual leave, any period of quarantine must be taken as unpaid leave.  

Furlough – as of 1 July 2021 the Furlough Scheme has seen some changes which mean that employers are required to take on more of the costs relating to furloughed employees.  The below table sets out how the scheme has begun to, and will further taper down between June and September 2021.   





Government contribution: wages for hours not worked

80% up to £2,500

70% up to £2,187.50

60% up to £1,875

60% up to £1,875

Employer contribution: employer National Insurance contributions and pension contributions





Employer contribution wages for hours not worked


10% up to £312.50

20% up to £625

20% up to £625

For hours not worked employee receives

80% up to £2,500 per month

80% up to £2,500 per month

80% up to £2,500 per month

80% up to £2,500 per month


What else is and has been happening?

The new Employment Bill

The long-awaited Employment Bill, which was expected to come in to force following the Queen’s Speech in May 2021, has been put on hold.  Whilst the bill has been delayed it is expected to come in to force at a future date. Some reforms which are expected include; 

    • The introduction of a single labour market enforcement body to ensure that vulnerable workers are better informed of their rights, and to support businesses in compliance.
    • Plans to ensure that all tips and service charges go to workers in the hospitality, leisure and service sectors.  
    • Extending redundancy protection to cover pregnant employees, so that they are given priority for suitable alternative employment.
    • Extended leave for parents of children in neonatal care.

Some of these areas were subject to consultation, the outcome of which is still awaited. 

Gender pay gap reporting

Employers with 250 or more employees are required to publish their gender pay gap report by 4 April (30 March for public-sector employers).

Due to the impact of the pandemic, the Equality and Human Rights Commission (EHRC) have announced that employers will have an additional six months after the current deadline to report their gender pay gap information – therefore, 5 October 2021, meaning that no enforcement action would be taken before this date.  The EHRC is however encouraging employers to report their data before October 2021, if possible.

Right to Work

The EU Settlement Scheme, which allowed EEA nationals who were in the UK at the end 2020 to formalise their status, closed to most applications on 30 June 2021. On 18 June 2021 the Home Office released new guidance for employers on carrying out right to work checks.  Up until 30 June 2021, EEA nationals could present their passport or national ID card as evidence of their right to work in the UK, however, as of 1 July 2021 EEA citizens and their family members will need an immigration status in the UK and will no longer be able to rely on their passport/national ID card.

Due to COVID-19 restrictions the new guidance confirms that the temporary adjustments to right to work checks made to assist remote working arrangements and social distancing, will now be extended to 31 August 2021.  From 1 September 2021 employers will be required to either check their prospective employees’ original documents or check the prospective employees’ right to work status online.

Since our last update the following important increases have also come into force

As at 1 April 2021 

The national living wage increased £8.91 per hour and the age threshold for the national living wage was altered so it now applies to 23 and 24 year olds (previously it was only available only to those aged 25 and over).

  • Other national minimum wage rates increased as follows:
    • £8.36 per hour for workers aged 21 and 22;
    • £6.56 per hour for workers aged 18 to 20; 
    • £4.62 per hour for workers aged 16 and 17;
    • £4.30 per hour for apprentices under 19 and those in the first year of their apprenticeship.

As at 4 April 2021

  • The weekly rate of statutory maternity, paternity, adoption, shared parental and parental bereavement pay increased to £151.97.

As at 6 April 2021

  • The weekly rate of statutory sick pay increased to £96.35.

All employers should be mindful of the above increases and if any of your policies and documents refer to precise rates (such as a sickness absence procedure) this should be updated.

  • New limit on the weekly capped sum for statutory redundancy pay, this is now £544 per week.   

Where an employer dismisses an employee by reason of redundancy (if they have two years’ service) a sum is calculated based on the employee’s weekly pay, length of service and age. 

Case law update

Covid-19 related dismissal – this is an interesting case that has arisen as a result of the pandemic.

Accattatis v Fortuna Group (London) Ltd 

The Claimant made repeated requests during March and April 2020 to work from home or to be furloughed as he said that he felt uncomfortable commuting and attending the office during lockdown.  The Claimant was told that his job could not be done from home and that furlough was not possible due to how busy the employer was.  The Claimant was told that he could take holiday or unpaid leave. He declined these options, repeated his requests and was later dismissed.

Employees usually require 2 years continuous service in order to pursue a claim for unfair dismissal.  In this case the Claimant did not have the requisite length of service, however, he claimed automatic unfair dismissal under section 100(1)(e) of the Employment Rights Act 1996.  Section 100(1)(e) states that employees may refuse to work if they consider that there is “serious and imminent danger”.

The Employment Tribunal accepted that based on public health guidance available at the time, the Claimant had a reasonable believe that commuting during the lockdown could amount to serious and imminent danger. However, under section 100(1)(e) the Claimant was required to take appropriate steps to protect himself. The employer was unable to offer home working but did provide a possible alternative (holiday or unpaid leave), which the Claimant refused stating he wanted to be furloughed or to work at home on full pay. The Tribunal found that the Claimant’s requests were not appropriate steps to protect himself, and his claim failed.

Whilst the decision is not binding on other Tribunals it is a reminder that the pandemic may not on its own be a reasonable justification for an employee to refuse to attend work under section 100(1)(e), if an employer has tried to reasonably consider an employee’s concerns.   The case is also a helpful reminder that the Tribunal will consider the public health guidance that was available at the time, so as more and more people are vaccinated and restrictions are eased, claims of this nature will be less likely to succeed.

Protection from discrimination – gender-critical views 

Forstater v CGD Europe

The Employment Appeal Tribunal (EAT) has handed down a significant judgment which can protect individuals who hold gender critical beliefs from discrimination.

Ms Forstater worked as a consultant for CGD Europe. After expressing a number of gender critical beliefs via social media her consultancy contract with the business was not renewed.  Ms Forstater presented a claim for discrimination on the basis of her philosophical belief, which is one of the protected characteristics listed within the Equality Act.  The claim failed in the Employment Tribunal and the judgment stated that the way in which Ms Forstater expressed her gender critical beliefs was not “worthy of respect in a democratic society” and was therefore, not protected. 

The decision was appealed, and the appeal was upheld.  This outcome means that beliefs will be capable of protection even if they are expressed in a way that may offend or create a hostile and degrading environment, as such it is unlawful to discriminate on this basis. 

Employment Tribunal makes a record discrimination award

Barrow v Kellogg Brown and Root (UK) Ltd

An Employment Tribunal has given the second highest award ever made in an Employment Tribunal, amounting to over £2.5 million. 

After 36 years of service the Claimant presented claims against his former employer for unfair dismissal, direct disability discrimination, harassment related to a disability, discrimination arising from disability, failure to make reasonable adjustments and victimisation.

The Claimant was excluded from work following an email exchange with his manager. At this time the Claimant was taking steroids to assist his cancer symptoms, which at the time had not been diagnosed, and was suffering from adverse side effects which affected his mental health and behaviour.

The Claimant was called to a meeting and dismissed, without any formal procedure being followed and without being given any detail as to the reasons for his dismissal.   Following his dismissal, the Claimant was diagnosed with a rare form of cancer and he informed the employer of this.  The employer attempted to rectify the dismissal procedure followed and instigated a retrospective dismissal process.  The outcome was to dismiss due to a breakdown in the implied term of trust and confidence.  

The Employment Tribunal considered the original dismissal, and the later dismissal which was labelled a ‘sham’.  The Tribunal considered that the dismissal was predetermined, and faults/defects were found in the process. The Tribunal pointed criticism at the attempts made by the employer to make the decision to dismiss appear credible.  The Tribunal concluded that no reasonable employer would have acted in the way the employer did in dismissing an employee who had spent 36 years working for the company.

The claims of unfair dismissal, harassment and discrimination arising from disability succeeded.  The employee was awarded a career-long loss award, aggravated damages and a further £25,000 for pain, suffering and loss of amenity.

This case demonstrates that discrimination awards are not subject to a cap, unlike unfair dismissal claims, and it highlights the importance of employers following a fair dismissal process and not predetermining the outcome. 

Talk to us!

We want to encourage our clients to pick up the phone whenever they need help with employment law matters.  We offer a variety of services to our clients, including helplines, insurance backed products for Employment Tribunal claims and other fixed fee services.   If you would like to discuss how we can help you and your business deal with Employment Law matters, please contact either Paul Stedman, Vicky Beattie, Neal Mellor or Sarah O’Brien on 0161 832 2500.

BBS Law are delighted to congratulate our clients, the shareholders of Forge (We Are Forge) on its acquisition by Yardi. Dov Black advised together with Rebecca Mills in our corporate team.

Forge is a UK based provider of visitor management and access control solutions to the commercial real estate, retail and higher education industries.

Yardi develops and supports industry-leading investment and property management software for all types and sizes of real estate companies. Yardi is based in Santa Barbara, Calif., and serves clients worldwide from offices in Australia, Asia, the Middle East, Europe and North America.

Dov Black commented,

“this deal showcased the quality of our corporate team and our work was appreciated by clients and brokers alike. We are delighted to have played a part in an exciting move for the international Proptech sector”.

Should you require any further information or have a specific query you can contact BBS Law on 0161 832 2500.

By the BBS Employment Team, June 2021

It has been almost 15 months since the UK first went into a national lockdown and there is now some light at the end of the tunnel…the vaccine programme is being successfully rolled out and the government roadmap aims for all social distancing restrictions to be lifted from 21 June 2021.  Currently, the government guidance remains that people who can work from home should do so, and where working from home is not possible businesses should ensure that any return to the workplace is in line with Covid-secure workplace guidance.

“It is hoped that we can begin to return to some sort of pre-pandemic ‘normal’ in the coming weeks and with that in mind many businesses are now taking stock and considering how the past 12 months have impacted and will reshape their operations in the months ahead.”

Over the past year the majority of office-based businesses were forced to alter their working practices, with home/remote working becoming the norm.  With the correct checks and I.T infrastructure in place many of our clients have drawn positives from the new working style, including a better work/life balance, cost savings, more flexibility and agility.  However, along with the positives many clients also agree that working in a traditional office environment still has its advantages, including the collaborative nature of being with colleagues and the importance of social interaction, face to face and not via Zoom!  As the possibility of returning to the office is now on the horizon many of our clients have raised questions around their employees return, and we address some of the common queries here:

Can we introduce a hybrid policy (a mix of home and remote working) and do we need to change our employee’s contracts of employment?

Yes, you can introduce a hybrid working policy, this may include a structure of 3 days in the office and 2 days working remotely for example.   We would not advise making formal contractual changes to contracts of employment immediately as over the coming months the working world is likely to continue to change and businesses may need to make further adjustments in the short to medium term as they adapt.  We recommend that a hybrid way of working can be implemented with an initial trial period (for example 6 months), following which a business can reassess if the hybrid approach is working successfully, and if any alterations need to be made.

Can we insist that all our employees have the vaccine when it is made available to them?

Businesses should be mindful that making vaccinations compulsory is likely to give rise to arguments over human rights violations and potential litigation involving discrimination for employees with protected characteristics.  There are very few examples where an employer would be able to fairly dismiss an employee who refuses to be vaccinated.   We would advise against any policies making vaccinations mandatory and recommend that employers consider whether insisting on the vaccine is proportionate and necessary.

Do we need to provide employees with equipment to work from home and do we need to pay employee’s remote working expenses?

Generally, we would advise that a business should provide employees with the essential tools that they need to carry out their day-to-day duties. For office-based employees this would usually include a computer and or telephone. There is no legal requirement for a company to provide employees with equipment such as desks and chairs.  If a business opts to continue with home/remote working post 21 June 2021, business leaders should consider and discuss with employees their individual home set ups, in order to ensure that it is conducive to effective and safe working.  It is also recommended that risk assessments and Display Screen Equipment (DSE) assessments are carried out for employees in order to comply with health and safety legislation.

With regards to expenses, employers do not need to cover the costs of electricity and broadband for example, unless there is an express contractual provision for them to do so.  Employees can apply to HMRC to claim a tax allowance in circumstances where their employer requests that they work from home.

Can employees request to continue to work from home when the business wants a full return to the office?

Yes. Employees with 26 weeks’ service are entitled to make flexible working requests. This was the case pre-pandemic and remains the position.  If a business receives a flexible working request, it should consider the request fully and if it cannot be reasonably accommodated a business can refuse the request if it falls within one of the following 8 reasons;

  • extra costs that will damage the business
  • the work cannot be reorganised among other staff
  • people cannot be recruited to do the work
  • flexible working will affect quality and performance
  • the business will not be able to meet customer demand
  • there’s a lack of work to do during the proposed working times
  • the business is planning changes to the workforce

The difficulty that some businesses may face when considering flexible working requests following the pandemic will be that many of the reasons given for refusing a request historically, for example flexible/home working will affect quality and performance, could be challenged by an employee following a year of successful homeworking.  As such businesses should consider any requests carefully and seek specialist guidance on the correct process to follow.

We envisage that many businesses will choose to adopt a more flexible approach to working in the coming months, including hybrid working.  Moving forward all businesses will need to review their workplaces and operations and the employment team at BBS Law are available to discuss any questions that you may have in relation to returning to the office, including drafting and implementing new policies.

Should you require any further information or have a specific query you can contact Paul, Vicky, Neal or Sarah in the BBS Law Employment team on 0161 832 2500.

An employee ownership trust (commonly called an EOT) is an ownership structure for private companies introduced by legislation in 2014 which offers generous tax benefits where companies are owned by their employees.

As well as enabling the incentivisation and engagement of employees and providing the benefits of employee ownership not just for the employees but also for the business and the wider economy, EOTs also offer significant tax advantages both to employees and to existing shareholders.

How does an EOT structure work?

Under an EOT scheme, the existing shareholders of a company sell a controlling stake in the business (at least 51%) to a newly established trust (the employee ownership trust) which then holds the shares for the benefit of the company’s employees.

The employee ownership trust is often established with a sole corporate trustee which may be a subsidiary of the trading company with a mixture of independent and internal trustee directors, or it may be established with an independent professional trustee.

What are the tax advantages?

Whilst BBS Law are not tax advisers and would recommend that anyone interested in the detail of the tax advantages of an EOT seek specialist advice in this respect, we would note the following as a high-level summary:

  1. A sale of shares to an EOT is free from Capital Gains Tax so any consideration paid to the selling shareholders is receivable by them in full.
  2. Contributions from the trading company to the EOT once it holds the shares can be made on a tax-free basis.
  3. Employees of the company are entitled to receive annual bonus payments (up to a capped amount) from the EOT which will be free from Income Tax.

Who might benefit from using an EOT structure?

As well as businesses looking to incentivise their employees and keen to move to a shared-ownership structure, EOTs may also be attractive to controlling shareholders looking for an exit which does not involve a sale to a third party, and which also allows them to reward the existing employees of the company.

There are a number of criteria which need to be met for a company to utilise an EOT scheme and we would recommend that anyone interested in finding out more about this type of structure seek specialist advice in this respect.

How can BBS Law help?

Here at BBS Law, we have assisted a number of clients in the sale of their businesses to EOTs and have considerable experience in the legal issues which commonly arise on the implementation of an EOT structure, and the preparation of the legal documentation required in this respect.

We work in a collaborative manner with the tax advisers on the transaction to ensure that the scheme is implemented in accordance with the tax legislation and also offer practical commercial advice to clients in terms of the operation of the business once this is owned by the EOT.

We advise from the start to the finish of the transaction and offer a commercial and client-led service on a fixed fee basis.

Note: This guide is for general information purposes only. If you require any further information or have a specific query you can contact our Corporate team. Our Partner, Dov Black ( will be happy to assist.

The inclusion of a few words in a property contract can ensure that the buyer receives the benefit of implied covenants under the Law of Property (Miscellaneous Provisions) Act 1994. The phrase, ‘The Seller sells with a full title guarantee’ indicates that the Buyer will be able to rely on all the covenants implied under the Act. But if the Seller only offers “limited title guarantee’, the Buyer would get only a lesser level of assurance. In some cases, the Seller may state that it does not give any guarantee.


When you are selling your property, or someone is selling to you, with Full Title Guarantee the following is implied:

  1. That the person selling has the right to sell the
  2. That the Seller will, at their own cost, do all that they reasonably can do to ensure the buyer will acquire a good title to the
  3. If the property which is being sold is registered, then it is presumed that the whole of that property in the registered title is being disposed
  4. If the property being sold is a leasehold property additional covenants are implied, which are, that the lease is still in existence and the Seller has complied with all the terms of the
  5. If the property being sold is unregistered then it is presumed that the interest being sold is the freehold. If it is clear that the property being sold is leasehold then it is presumed that the interest being sold is the unexpired term of the
  6. The person is selling the property free from all mortgages and all other rights and interests which may be exercisable by a third party other than those which the seller does not and could not reasonably be expected to know


This is used where the Seller of the property has no personal knowledge of the property. This is most often used in the case of a sale by an Attorney, the Executor of an Estate, where the property has been repossessed or by a Trustees or a Personal Representative.

The person selling cannot guarantee that the property is not subject to any financial charges, nor can they guarantee whether there are any rights over the property or give information on what rights there could be. They are unable to confirm whether there are any covenants which may affect the property.


Receivers or mortgagees selling a property following repossession usually have little or no knowledge of the property being sold and it is normal for them to give no title guarantee. The danger is that there may be something that the Buyer cannot discover on an investigation of title that the Seller has not told him about (for example, an overriding interest). If this happens, the Buyer has no recourse against the Seller.

A thorough investigation of title is essential before an auction or private treaty purchase circumstances where only limited or no title guarantee is offered to decide whether the Buyer should take out defective title insurance or whether there are any incurable title defects.

Note: This guide is for general information purposes only. If you require any further information or have a specific query you can contact our Property Team. Our Partners, Daniel Berger ( and Avi Barr ( will be happy to assist.