The case of Meaker v Cyxtera Technology UK Limited serves as an important reminder to employers of the importance of ensuring that letters of dismissal are appropriately clear and unambiguous. The employer in this case wanted to rely on a letter it had sent to an employee referring to a termination date but which was marked “without prejudice” and enclosed a settlement agreement. The employee argued it could not be effective as a termination notice since he rejected the settlement offer.

The employee in the case was employed in a manual labour role. He suffered back injuries in 2018, resulting in an extended absence. In 2019, it was agreed that his injuries would likely permanently limit his ability to carry out his role and an application was made for income protection payments, but this was unsuccessful. On 7 January 2020, the employer first raised the possibility of dismissing the employee and asked him to sign a settlement agreement. Then, on 5 February 2020, the employer sent the employee a letter:

  • headed “without prejudice”, but did not include the words “subject to contract”;
  • stating that the employee’s employment would terminate by “mutual agreement” by reason of capability, and that his last day would be 7 February 2020.  It said he would receive payment in lieu of ten weeks’ notice (“PILON“) and payment for untaken holiday.  Despite the reference to mutual agreement, no agreement had been reached; and
  • enclosing a settlement agreement offering a severance payment in addition to the PILON, if the employee entered into the agreement.

The employee rejected the settlement offer in writing on 7 February 2020. On 14 February 2020, the employer paid the PILON and untaken holiday pay into the employee’s bank account.

The employer maintained that the letter terminated the employee’s employment with effect from 7 February 2020 – which was important because, if that was right, then the unfair dismissal claim which the employee subsequently submitted would be out of time.  The employee argued that the letter was merely a without prejudice offer of settlement, which he rejected, and so it could not have terminated his employment.

The court agreed that an employer would normally convey open and without prejudice communications in separate documents, but here they said that the dismissal wording and settlement agreement offer could be read as separate parts of the same document. Moreover, and although this point was more finely balanced, the reference to termination by “mutual agreement” did not invalidate the effect of the letter.  The court said that the letter itself was clear on the intended termination date and, if there had been any doubt, the subsequent actions of the employer (paying the PILON and accrued holiday pay) should have removed it. Some may find this a surprising conclusion, and it was clearly a finely balanced one.  The message for employers remains that it is far better to separate without prejudice offers of settlement from any intended open termination notice.  It will also be  helpful to include “subject to contract” wording, in addition to “‘without prejudice”, when issuing a draft settlement agreement, to avoid the risk of an employee thinking they have been terminated sooner than is intended.

There has been some debate in recent years as to whether or not the written terms between an alleged independent contractor and the recipient of their services hold any weight at all when determining the employment status of an individual.

In the past, it was always thought to be one factor to be weighed up when there was a degree of uncertainty over status, albeit that the reality of the situation behind the contractual terms has always been considered the most important element. More recently, the Uber BV v Aslam case led to speculation as to whether written terms would be relevant at all in such cases or whether they could be completely disregarded.

However, in the recent case of Ter-Berg v Simply Smile Manor House Ltd, the EAT has clarified that the terms of the contract do in fact matter, and can be the starting point for an assessment of employment status.

In this case, Dr Ter-Berg was a dentist who ostensibly worked as a self-employed contractor, but who claimed that he was unfairly dismissed when the engagement ended. It was his assertion that, over time, the relationship between the parties had evolved into one of employment due to integration, control and the requirement to provide services personally.

The Tribunal, as a starting point, looked at the terms of the contract between the parties to help ascertain the true nature of the relationship. The contract in question was a standard form provided by the British Dental Association, which stated that the dentist was not an employee and there was no employment relationship. It also included a ‘substitution’ clause requiring Dr Ter-Berg to find a locum where he was unable to provide his services for 20 days or more “through ill health or other cause”. The Tribunal concluded that the dentist was not an employee and placed particular weight on the existence of the substitution clause, which meant he did not have to provide his services personally.

On appeal to the EAT, Dr Ter-Berg argued that the Tribunal should not have used the contract as a starting point for its analysis of employment status because the Uber case had established that the test for status was a statutory one. The EAT, however,  agreed with the Tribunal’s approach and that it was acceptable to look at the broader picture, and that could include the terms of the contract as long as those terms were not included simply to defeat the statutory protections granted to workers and employees.

On the facts of the Ter-Berg case, the EAT said the Tribunal had interpreted the substitution clause incorrectly because they had found it was an unfettered clause, and it clearly was not.  It only allowed Dr Ter-Berg to provide a substitute if he was ill or due to some other (similar) cause, so there had to be some fault on his part.  He could not simply choose to provide a locum.

This is an interesting decision which perhaps reinstates the importance of the written contract after the Uber decision, i.e. it is permissible to consider the terms of the contract between the parties, and even to do that as a starting point.  But the fact remains that all the other factors must be considered, including the statutory test for employment status, and contract terms that do not reflect the reality of the position on the ground may still be disregarded.  

The Government is consulting on a draft Code of Practice that will regulate the practice of dismissal and re-engagement, or “fire and re-hire”, as it has become known more recently.  This is the practice that became particularly controversial following the dismissal by P&O of 800 staff in 2022, in order to replace them with lower-cost workers.  It is sometimes used by employers looking to make changes to terms and conditions across the workforce, where employee agreement cannot be obtained.  Instead of imposing the changes unilaterally, which is often not possible, the employees’ existing contracts are terminated and they are offered new ones containing the new terms.  

At the time of the P&O dismissals, there was a call from certain sectors for fire and re-hire to be made illegal, but the Government has not done that.  Instead, the new Code sets out various steps the employer must go through, in terms of informing and consulting with staff and re-assessing its plans, before it reaches the stage of dismissal, with that very much being a last resort.  It is true that much of what is in the Code is what is essentially already required in any large re-contracting exercise where the collective consultation law applies (20 or more employees at the same establishment).  But in times of crisis, e.g. the recent Covid-19 pandemic, employers may need to implement changes as quickly as possible and look for the shortest form of consultation it can achieve.  Under the new Code, that will be more difficult.  So in cases where the employer does have more time, it should be ready to begin its consultation process as soon as possible in order to allow time to meet the Code requirements.  If there is an unreasonable failure to comply with the Code, any employment tribunal award can be increased by 25%.

The consultation process closes on 18 April 2023, with the new Code coming into force some time after that, once the Government has considered the responses it receives.  See the full text of the draft Code and consultation paper here:  Draft Code of Practice on dismissal and re-engagement – GOV.UK (

In the case of Rodgers v Leeds Laser Cutting Ltd, the Court of Appeal has decided that an employee had not been automatically unfairly dismissed for refusing to come to work during the COVID-19 pandemic.  This is a notable decision as it is the first post-pandemic Court of Appeal claim considering s100(1)(d) of the Employment Rights Act (1996) (the “ERA”).  It is also a helpful decision for employers; finding that employees must reasonably believe that their actual workplace poses a serious or imminent danger for the special protections against dismissal in s100 to apply. Travel to and from work, and the risk of infection during a commute, will not be enough for an employee to show such danger.  

The facts of this claim are likely to be similar to those faced by many employers during lockdown and the pandemic.  The employer in the case was able to remain open during lockdown and had hired a third party to ensure that sufficient procedures were put in place to maintain safe working practices.  The Claimant was unable to work from home due to the nature of his role.  Despite the measures put in place at his workplace, the Claimant stated that he would not be attending work as he was concerned for the health of his vulnerable children.  Following a period of leave in accordance with NHS 111 guidance, the Respondent heard nothing further from the Claimant for a number of weeks and therefore dismissed him.

The Claimant, sought to argue that his dismissal was unfair under s100(1)(d) ERA, which states:

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—

(a)–(c) …

(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

By way of reminder, an employee does not need to have two years of service to bring this claim.

The claim was rejected by both the Employment Tribunal and the Employment Appeal Tribunal. Both courts found that while the pandemic could give rise to instances of serious and imminent danger, it did not in this case. Instead, the Claimant’s decision to stay away from his workplace related to his general fears regarding the pandemic and not to his concerns about the workplace itself.  The Claimant appealed to the Court of Appeal, which dismissed the claim.

The Court set out a five-stage test which Tribunals should adopt in cases where it is claimed that s100(1) ERA applies:

  • Did the employee believe that there were circumstances of serious and imminent danger at the workplace?
  • Was that belief reasonable?
  • Could they have reasonably averted that danger?
  • Did they leave, or propose to leave or refuse to return to the workplace because of the (perceived) serious and imminent danger?
  • Was that the reason (or the principal reason) for the dismissal?

The Court’s finding that the legislation is designed to cover dangers relating to use of equipment, the actual premises itself or systems in place at work rather than a more general risk of infection will be helpful to employers.  The findings in this case show a narrow application of s100(1) ERA, however, as ever, each application will depend on the facts of the case.  Here, the measures which the Respondent had put in place to allow safe working was looked on favourably by the Court and the Claimant’s own actions during the pandemic (refusing to wear a mask and working part time in a pub) did little to assist his argument.   

With 2022 now over, we look ahead to the key developments that look set to shape the UK employment legal landscape in 2023 and beyond.

New employment rights

Whilst the Government’s promised Employment Bill now looks unlikely to materialise, in 2022 the Government instead announced that it intended to support a raft of private members’ bills to implement the changes promised in the, now defunct, Employment Bill. 2023 therefore looks set to be a busy year on the legislative front, with a suite of six Government-backed private members’ bills currently making their way through Parliament and looking likely to enter the statute books during the course of 2023/2024. These include:

  1. Protection from Redundancy (Pregnancy and Family Leave) Bill 2022-23: once passed, this Bill will give the Secretary of State power to introduce regulations to extend the existing redundancy protections available to women on maternity leave, so that the same protections are also available to cover a woman’s pregnancy and for a six month period after returning to work. The same enhanced protections will also be available to those employees on adoption or shared parental leave.  You can track the progress of the bill here.
  1. Worker Protection (Amendment of Equality Act 2010) Bill 2022-23: once passed, this Bill will (i) place an obligation on employers to take reasonable steps to prevent employees from suffering harassment in the course of their employment from third parties (such as customers or clients); and (ii) create a new duty on employers to take all reasonable steps to prevent sexual harassment of employees in the course of their employment. If the latter duty is breached, an uplift of up to 25% of the compensation awarded in respect of the sexual harassment claim can be awarded.  You can track the progress of the bill here.
  1. Employment Relations (Flexible Working) Bill 2022-23: once passed, this Bill will enhance employees’ rights to request flexible working by (i) extending the number of flexible working requests an employee can make during a 12-month period from one to two; and (ii) require an employer to consult with an employee before refusing a flexible working request. You can track the progress of the bill here.
  1. Employment (Allocation of Tips) Bill 2022-23: once passed, this Bill will create a legal obligation on employers to allocate all qualifying tips, service charges and gratuities fairly between employees. Employers will also be required to implement a written policy setting out how it allocates qualifying tips amongst its employees and to keep, and share, if requested, records of any qualifying tips received and allocated between employees. However, the Bill will only apply to tips an employer receives or exercises control or significant influence over – the Bill will not catch tips paid directly to workers in cash. You can track the progress of the bill here.
  1. Neonatal Care (Leave and Pay) Bill 2022-23: once passed, this Bill will give parents of a child who is receiving, or has received, neonatal care a statutory entitlement to a minimum of one week’s neonatal care leave which can be taken up to 68 weeks from the child’s date of birth. This will be a day one right available to all employees irrespective of their length of service. The Bill will also provide employees with protection from dismissal or detriment due to having taken the leave. In addition, employees with at least 26 weeks’ service, will be entitled to be paid for the neonatal care leave at the prescribed rate. You can track the progress of the bill here.
  1. Carer’s Leave Bill 2022-23: once passed, this Bill will give the Secretary of State power to create new regulations setting out an employee’s right to carer’s leave. Eligible employees will be entitled to unpaid carer’s leave of at least one week within a 12-month period for caring for a dependent, such as a spouse, civil partner, child or parent, who has long-term care needs. Like neonatal care leave, the right to carer’s leave will be a day one right and will provide protection from dismissal or detriment as a result of taking the leave.  The Bill is expected to be passed in 2023, with the Regulations following in 2024. You can track the progress of the bill here.

Although the exact timetable for implementation of the Bills above is unknown, at the time of writing, each Bill is scheduled to begin its report stage by the end of February 2023. It is therefore anticipated that the Bills will likely receive Royal Assent in 2023, with any secondary legislation required to implement the provisions following in 2024.

‘Fire and re-hire’ practices

It is anticipated that a new statutory Code of Practice on the use of ‘fire and re-hire’ practices (which was originally announced in March 2022 in the wake of the mass redundancies at P&O Ferries) will be published in 2023. Although the exact timescale for its publication is currently unknown, Lord Callanan confirmed in a House of Lords debate in November 2022 that the new code would be published ‘in the near future’. Once in place, the new Code will require businesses to hold fair, transparent and meaningful consultations with employees with respect to proposed changes to their terms of employment. Courts and Employment Tribunals will also be required to have regard to the Code, and will be able to award an uplift of up to 25% in the event that an employer has unreasonably failed to follow the Code.

Consideration of fire and re-hire practices could also enter the courtroom again in 2023, after the Supreme Court, on 23 December 2022, granted permission for USDAW to challenge the Court of Appeal’s decision in USDAW v Tesco Stores Ltd, in which it over-turned a High Court injunction preventing Tesco from dismissing warehouse staff and then re-employing them on a lower rate of pay. The timing of the appeal is currently unknown.

Trade Unions

Following a turbulent year of strike action, in October 2022, the Government introduced new legislation in the form of the Transport Strikes (Minimum Service Levels) Bill 2022-23, which will continue to make its way through Parliament in 2023 (it is currently awaiting its second reading). If passed, the Bill will provide for minimum service levels for transport services affected by strike action by trade unions. You can track the progress of this bill here.

In the courtroom, the High Court has recently granted permission for the TUC (on behalf of 11 unions), Unison and NASUWT to launch a judicial review challenging the Conduct of Employment Agency and Employment Businesses (Amendment) Regulations. These Regulations came into force in July 2022 and allow employers to engage agency workers to cover for those employees who are taking part in industrial action. The Unions are challenging the Regulations on the basis that: (i) the Government failed to consult the unions prior to introducing the Regulations; and (ii) the regulations breach the fundamental trade union rights guaranteed under Article 11 of the European Convention on Human Rights. The hearing is expected to take place in March 2023.

Whatever the outcome of the hearing, with more strikes planned for 2023, the rights of workers during industrial action looks set to remain a key area of debate throughout 2023.

Retained EU Law

In 2022, the Government introduced to Parliament the Retained EU Law (Revocation and Reform Bill) 2022-23, which, under its sunset provision, provides that all EU-derived secondary and retained direct EU legislation will expire at the end of 2023 unless it is expressly retained. It also brings to an end the supremacy of EU Law paving the way for domestic Courts and Tribunals to depart from existing EU-derived domestic case law.

Little is known about which EU-derived laws the Government intends to retain, and there are significant concerns that a number of important employment-related protections, such as the Working Time Regulations 1998, the Agency Worker Regulations 2010, and the TUPE Regulations 2006, amongst others, could fall away at the end of the year unless expressly preserved by the Government. Only time will tell whether the Government intends to keep intact these key employment-related regulations, but one thing is for sure – this Bill remains one to watch in 2023. You can track the progress of the bill here.

In response to its ‘Making Flexible Working The Default’ Consultation (the “Consultation”) published on 5 December 2022, the government set out a raft of new measures designed to improve the existing framework for the right to request flexible working which it anticipates will extend the right to an additional 2.2 million people.

The current law

Under the existing statutory framework, all employees have the right to request flexible working provided they have 26 weeks’ continuous service, and only one request can be made in any 12 month period. Employers currently have three months in which to respond to a flexible working request and can refuse such a request for one of eight business reasons, for example if the flexible working arrangements requested would place an additional costs burden on the business or negatively affect its ability to meet customer demand.

New measures following the Consultation

Notable measures the government has committed to introduce include:

  1. the removal of the requirement for 26 weeks’ continuous service making the right to request flexible working a day one right;
  1. allowing employees to make two flexible working requests in any given 12-month period as opposed to one;
  1. reducing the time in which an employer has to respond to a flexible working request from three to two months;
  1. placing an obligation on an employer to consult with an employee to explore all alternative options before rejecting a flexible working request; and
  1. removing the requirement for employees to set out the business case for flexible working and making this a more collaborative process to be engaged in by both the employer and the employee.

Whilst the planned changes set out above are likely to be welcomed by business and individuals alike, given the broad support they received in the Consultation, interestingly, the government opted to retain the status quo with respect to the eight business reasons for refusing a flexible working request. This is perhaps surprising, given that 62% of respondents to the Consultation did not believe that the reasons for refusing flexible working remained valid. However, that figure masks a sharp divergence of opinion between the individual respondents and the business respondents. The individual respondents largely supported a reduction in the list of business reasons for refusing a flexible working request on the basis that the current list is too broad, making it too easy for employers to refuse flexible working requests. In contrast, the majority of business respondents felt that the reasons remained valid. Given the lack of consensus and the unclear picture this presents, the government has confirmed that it will retain the current list of business reasons for refusing a flexible working request.

It is also notable that the government emphasised in its response that this is a ‘right to request’ and not a ‘right to have’, which critics may argue does not go far enough to promote flexible working.  So, while the move to make this a day one right (to request) is significant, the retention of the various and broad grounds for an employer to refuse mean that it remains a right with limited teeth for employees.  Of course, where an employee has a protected characteristic ground for making the request (e.g. they are disabled or have child-care responsibilities), then refusal may constitute indirect discrimination (already a day one right) unless the employer can justify its refusal, and, to do that, they will need to go beyond simply identifying one of the eight statutory reasons under the flexible working regime.  


The current timetable for implementing the measures set out above is currently unknown, although the majority of the proposals (save for the day one right) are likely to receive a statutory footing in the Employment Relations (Flexible Working) Bill, which is currently making its way through Parliament.  The day one right, however, will be introduced by secondary legislation ‘when Parliamentary time allows’, so it remains to be seen when what is arguably the most significant new measure will be implemented.

As the year draws to a close, this is a quick reminder about our new series of short podcasts focused on diversity, equity and inclusion (DEI): OPEN Talks.

Our recent interviews cover the equal pay settlement for the US women’s national soccer team, DEI at Mayer Brown and QBE’s approach to diversity, inclusion and wellbeing. The episodes can be found here and on all major podcast platforms. If you would like to be notified of future OPEN Talks episodes, alongside our existing UK employment law podcast series, please contact us here.

What helping hand could the French State, traditionally a Welfare state, give to employees with the lowest income and therefore those most affected by inflation?

Only a large-scale measure, both attractive to employees and employers, would have had a chance of achieving the dual objective of increasing the purchasing power of employees without jeopardising the economic balance of the company.

The legislator has therefore provided a new method for employees to buy back rest days (known as “RTT days” for “working time reduction days”) which should benefit, in view of the eligibility criteria adopted, the fringe of employees most exposed to the effects of inflation.

So what does this buy-back scheme consist of? Over what period is it planned to apply and what are the eligibility criteria?

The French government outlines all the conditions to benefit from this temporary measure in the link below:

Link: For further information on this temporary measure, please contact Julien Haure or Marine Hamon.

In the latest episode of OPEN Talks, our new series of short podcasts focused on diversity, equity and inclusion (DEI), Christopher Fisher, Head of the London Employment Group at Mayer Brown, interviews Nikki Lees, People Director, Inclusion & Wellbeing, at QBE. They discuss QBE’s strategy and approach to diversity, inclusion and wellbeing.  Listen to this episode here. If you would like to be notified of future OPEN Talks episodes, alongside the existing UK employment law podcast series, please contact us here.

Reversing his predecessor’s pledge, the new Chancellor of the Exchequer, Jeremy Hunt, announced in an emergency statement on 17 October 2022 that the off payroll rules will not be scrapped after all.  See Government news story here. Pending any further announcements, employers should therefore ignore the previous Chancellor’s announcement and continue to follow the off payroll rules which have been in place since April 2021.