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Anna Denton-Jones Employment Law Video

A goodbye from Anna Denton-Jones

On 1 September 2025, I reached a milestone of 25 years qualified. So, 27 years of being a solicitor and 25 years practising employment law post-qualification. To make you laugh we were the first year in which trainees were given a computer of their own. The year before four people had to share one: can you imagine suggesting that to anyone now?

Having grown up in the days of ordering company information from Companies House on microfiche (obtain a cheque, send a letter by post, wait for the fiche to come in a little cardboard envelope, load it into a machine the size of a filing cabinet, scroll through very difficult to read data) whereas now it’s a two second search on an app, I thought it might be interesting to reflect on what has changed over that time and what I’d like to see us promote.

The biggest changes are of course the technology: email and the internet was an infant and we treated email very much like a formal letter whereas now people stream consciousness at you like they are tweeting.

We live in an age where you can buy something from Amazon in the morning and have it delivered by afternoon. This comes with a pressure to think and act very fast (I remember the days where we could acknowledge receipt of a letter with a letter saying we’d received it and would respond, buying us at least 7 days time).

The greatest piece of advice I’d give anyone is to not get caught up in the frenzy. Unless you are up against a court deadline, building in a pause is helpful: it can give everyone the time to reflect and think differently. It can be easy to cave in to the clamour coming ‘at’ you to feel like you need to react immediately. When you do that oftentimes you’ll react with an emotional response… pausing enables you to give a more measured and thought through approach. At the very least breathe deeply before you respond. Not reacting is often a valid response as much as reacting is: you don’t have to buy into deadlines set arbitrarily.

The internet has upskilled the recipients of anything we send; they have a much better knowledge of anything we are communicating about and will challenge us accordingly; we’ve had to up our game. This is a good thing; we have to do better.

Attention spans are smaller. I used to have a twenty page redundancy document. I can’t imagine sending that document to anyone now. That’s probably a good thing. My client can read that information on the internet. We can focus on adding value.

This technology has made it all to easy to not communicate or to communicate badly. I remember the days when lawyers would routinely call each other, explain who they were acting for and have a ‘how are we going to sort this one out?’ call. Now all too often I am imploring my opposition to speak to me but it is easier to hide behind email. Conversations enable you to get a better understanding of where someone is coming from: that is as important in litigation as in life.

The same goes of managers too: the more they actually speak to people the better chance they have of addressing issues early doors before they fester. Have meetings, look each other in the whites of their eyes. It is harder for someone to maintain a complaint if they are feeling heard and listened to. It is harder to be angry if you are meeting with the human involved. So when someone sends an email and you gauge things might be getting tense, call a meeting, face to face if you can, Teams if you really have to, rather than respond with another email. Promote phone calls and meetings instead of email. If things are challenging like performance needs to be managed: have the conversation don’t hide behind digital processes. In fact that would be my parting shot: HAVE THE CONVERSATION! Apply it to everything.

I’m retiring so this will be my last blog. It will be interesting for someone to write another one in another 27 years, telling us how AI has changed the world for the good and for the worse. I’ll leave that to you.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Case Law Employment Law Employment Tribunal Redundancy

Case law update — July 2025

Case: Hendy Group Ltd v Daniel Kennedy [2024] EAT 106

Background

Daniel Kennedy, a long-serving trainer at Hendy Group Ltd (a car dealership), was made redundant in 2020. He accepted both the need for redundancies and his selection. However, he claimed his employer failed to explore alternative roles for him.


What the employer did

The employer pointed Mr. Kennedy to its internal job board and expected him to apply, like any external candidate. He did apply and attended interviews but wasn’t successful. Instead, an internal candidate and an external candidate were appointed, neither of whom were at risk of redundancy.

Crucially, there was no HR or managerial support to help him find a suitable alternative. It is also important to note that one internal manager actively discouraged his applications, and the employer later confirmed in writing that any further applications made by Mr Kennedy would be rejected.


Tribunal finding

The Employment Tribunal (ET) ruled that the dismissal was unfair because the employer had failed in its obligation to the Claimant to assist him to find an alternative role. In summary that the mere signposting to vacancies, whereby the Claimant was in the same position as an external candidate was insufficient.


Appeal outcome

The employer appealed but the Employment Appeal Tribunal (EAT) upheld the ET’s decision.

The EAT rejected the appeal on all points, reinforcing that:

  1. Employers must actively assist employees in finding suitable alternative employment.
  2. Simply pointing employees to internal vacancies is not sufficient.
  3. The ET was entitled to conclude that Mr. Kennedy would likely have been redeployed with proper support, as there were a number of vacancies for which, on paper at least, Mr Kennedy may have been suitable. As a result, no reduction in compensation (Polkey) was required.

Take aways

  • Redundancy support must go beyond job postings. Active engagement is key — HR/line managers should help identify suitable roles, discuss interests, and offer guidance (even if this involves potential demotion).
  • Document support efforts clearly — failure to do so could lead to a finding of unfair dismissal.
  • Don’t block or discourage internal applications from employees at risk of redundancy.
  • Reasonableness remains central — but what is “reasonable” now includes taking steps beyond minimal signposting.
  • If you’re managing a redundancy process, ensure your HR team is prepared to offer real, practical support when considering suitable alternative roles.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Confidentiality Duty of Care Employment Law Fraud Procedural Fairness Video

Video | Breach of confidence and procedural fairness

Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch the video in which Anna discusses a recent case (Woodhead v WTTV Ltd) that raises issues around the employer’s duty of care and also procedural fairness in employment cases.

Anna Denton-Jones
Refreshing Law

 

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Anna Denton-Jones Data Protection Act 2018 Data Subject Access Requests Data Use and Access Act 2025 Employment Law GDPR

The Data Use and Access Act 2025 (DUAA) has passed – What does it mean for employers?

This new Act of Parliament updates existing data protection laws and paves the way for things like artificial intelligence. It is supposed to make things easier for organisations but still protect people and their rights.

The changes will be phased between June 2025 and June 2026 so there is nothing to do immediately.

I think it will change two things for employers:

The first is that it makes clear that when dealing with a Subject Access Request, you only have to make “reasonable and proportionate searches” when someone asks for access to their personal information.

The current guidance says “You should perform a reasonable search for the requested information”.

I hear you all saying ‘but what does a reasonable and proportionate search’ look like? Ultimately we don’t know until a court tells us, but the Information Commissioner’s office will be updating their guidance in due course, which will give us clues.

A reasonable search is likely to include using IT search tools to retrieve data. It probably isn’t reasonable to expect you to search archived data which would take you time and money to restore eg:- from tapes.

Is this likely to change much in real life? Probably not – we try our best to retrieve as much as we can when searching and if doing it properly are probably acting reasonably and proportionately already. If the request is ‘manifestly excessive’ we already have an existing pathway to charge a fee.

The second implication is that if you don’t already, you will need a data protection complaints process.

The DUAA requires you to take steps to help people who want to make complaints about how you use their personal data such as providing an electronic complaints form. You also have to acknowledge complaints within 30 days and respond to them ‘without undue delay’.   At the moment, we tend to bury information about how to complain in the small print of privacy notices and at the back of policies. We probably need to put this a bit more front and centre going forward.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Data Protection Act 2018 Data Subject Access Requests Employment Law GDPR Privacy

Updating your GDPR Privacy Notice

It’s hard to believe that it’s 7 years ago since the GDPR came into force on 1st May 2018. I’d hazard a guess that many of us haven’t given our privacy notices any thought since then and have just been wheeling them out.

Given that the world is moving at pace, you may need to update your recruitment candidate privacy notice to inform the candidate about any automated shortlisting software that you are using, or indeed that your recruitment agents are using on your behalf. The privacy notices would need to describe the software that you are using and what it does, and highlights to the candidate their right to have a human review the output.

You will recall that your privacy notice lists out the ways in which personal data of an employee might be used. There is also likely to be a section where you describe what third parties might have access to data and the purposes for which they do so. This probably covers things like accountants but you may not have covered off litigation. Clearly if somebody is suing the organisation then an individual’s personal data may be used, for example, in the disclosure documents for that case. This need not necessarily be the data subject themselves bringing the legal action because they could be being used as a comparator, for example, in an equal pay claim, or when showing consistency of treatment, for example in a disciplinary scenario.

Another legal use might be where a TUPE transfer is occurring or the organisation is, for example, undergoing a round of investment or a sale or merger process. Personal data might well be shared at some point with investors, potential buyers etc. At initial stages of such processes, employee spreadsheets for example are normally anonymised so there is nothing to worry about but further down the due diligence process, questions might be asked which would reveal personal data when answered.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Economic Crime & Corporate Transparency Act 2023 Employment Law Fraud Video

Video | Failure to prevent fraud

Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch the video in which Anna discusses a change in the law that is happening in September 2025, for large companies, in relation to failure to prevent fraud.

This link takes you to the Economic Crime & Corporate Transparency Act 2023: Guidance to organisations on the offence of failure to prevent fraud.

Anna Denton-Jones
Refreshing Law

 

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Anna Denton-Jones Employment Law Employment Rights Act 1996 Employment Rights Act 2025

Planning ahead for the Employment Rights Bill

In this blog I wanted to pick an area which will affect all employers when the new Act that is going through Parliament comes into force.

Sickness absence is a perennial issue that all employers have to manage.

From, likely April 2026, employees will receive Statutory Sick Pay from the very first day they are off work. At the time of writing this they would have to wait three ‘waiting days’ and not get paid until day four. For employers paying statutory sick pay only or perhaps small sums of company sick pay of a few days before employees revert to statutory sick pay, these ‘waiting days’ have acted as a deterrent to misusing sick leave, as the genuinely ill are not paid for short-term absences. This has deterred the odd day for ‘flu’ or a stomach upset. The Employment Rights Bill eliminates the three-day waiting period, removing the deterrent.

The Employment Rights Bill also removes the lower earnings threshold. This means everyone, no matter what hours they work – will now qualify for Statutory Sick Pay if they are sick. This captures more casual and part-time workers who historically may not have earnt enough to qualify. SSP will be calculated at 80% of their normal weekly earnings, subject to a cap of £118.75 which is the current rate of SSP for a week, and which increases each year, so is likely to be a few pounds greater by the time this change comes into force.

The combined effect of these two measures is more people qualifying for sick pay more often. Not only does that have a cost implication but it means you will need to review the measures you take to review absence and manage it.

Time to dust down your sickness absence policies, trigger points and monitoring of absence patterns. Often these are tools we have in our kit bag but aren’t using properly. A time-honoured method that yields the best results for managing absence is the return to work interview, yet often managers haven’t been trained how to do them with confidence.

Let us know if we can help you overhaul what methods you are using to manage sickness by contacting Anna at adenton@refreshinglawltd.co.uk.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Discrimination Law Diversity Employment Law Equality Act 2010 Gender Inclusivity Video

Video | ‘Sex’ under the Equality Act 2010

Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch Anna’s video which discusses the recent ruling from the Scottish case that went to the Supreme Court and has given us a ruling on the meaning of the protected characteristic of ‘sex’ under the Equality Act 2010. This video discusses the potential issues and implications arising from this ruling.

Anna Denton-Jones
Refreshing Law

 

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Anna Denton-Jones Duty of Care Employment Law Health and Safety

Have you revamped your substance misuse policy recently?

Hopefully this is one policy you don’t need to use regularly but it is worth checking it is up to date.

Firstly, you may cover alcohol and illegal drugs in your policy but does it extend to so called legal highs (these were actually made illegal by the Psychoactive Substances Act 2016) and misuse of legal/over the counter drugs? Clearly policies designed before the 2016 law will need updating.

Secondly, you may need to link your policy to your whistleblowing policy and make it clear that those who raise concerns about misuse by colleagues will not be subject to acts of victimisation, and to encourage people to come forward and raise concerns. Those who do, will be protected on numerous grounds (whistleblowing, health and safety).

It may not be appropriate for all employers to include a drug screening procedure (where they don’t have staff who drive or operate machinery or where working under the influence of drugs could cause injury to employees, colleagues or third parties, or could seriously damage the employer’s business). Where an employer chooses to, they will not be able to require staff to submit to drug testing without their consent. Provision can be included in contracts, and withholding consent should be stated to be a misconduct offence (just as a positive drugs test would be), either in the contract, or in a disciplinary procedure or other policy.

The Information Commissioner’s Office (ICO) states in its guidance, “Information about workers’ health: What if we use medical examinations and drugs and alcohol testing?” that drugs and alcohol testing should be designed to ensure safety at work (for example, due to the nature of a worker’s role rather than to reveal the illegal use of substances in workers’ private lives).

However, testing to detect illegal use may, exceptionally, be justified where such use would either breach the worker’s contract or the employer’s disciplinary rules, or where it would cause serious damage to the employer’s business.

The ICO provides the following guidelines:

  • Before it undertakes any drug or alcohol testing, the employer should carry out a data protection impact assessment (DPIA) to help document its purposes, justifications and safeguards in undertaking testing, and how it intends to comply with its data protection obligations.

  • Where performance or behavioural issues are potentially related to drug or alcohol use, it may be possible to address them through the employer’s other policies rather than through testing.

  • The employer should consider the efficacy of the testing technique it proposes to use and whether it can provide real evidence of impairment, or potential impairment, that would put the safety of others at risk. Testing should be limited to those substances, and the extent of exposure that would have a significant bearing on the purpose(s) for which testing is conducted. Have you taken advice on this from your testing provider?

  • Workers should be told what they are being tested for, the frequency of testing, and the consequences of the results.

  • Testing is more likely to be justified after an incident where the worker’s conduct gives rise to a reasonable suspicion of drug or alcohol use.

  • Other than in the most safety critical areas, regular drug testing is unlikely to be justified unless there is a reasonable suspicion of drug use that has an impact on safety.

  • Random testing should be limited to selecting from those workers who are involved in safety-critical roles that the employer considers require testing, rather than selecting from all workers.

  • The employer should ensure that random testing is carried out in a genuinely random way (it is generally unfair and deceptive to lead workers to believe that random testing is being carried out if the employer is, in fact, using other criteria).

  • Testing should be undertaken by a professional service, with qualified staff, that meets appropriate standards. Workers should have access to a duplicate of any sample taken, to enable them to have it independently analysed to check the accuracy of the results. The employer should not assume that the tests are infallible and should be prepared to deal properly with any disputes arising from their use.

  • If you discuss the result of tests – there is specific language you should use – rather than positive or negative result you should talk about ‘non-negative’ results.

We can link you with organisations that will organise fair testing processes for you. Please get in touch if you would like more details.

Anna Denton-Jones
Refreshing Law

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Acas Anna Denton-Jones COT3 Agreement Employment Law Employment Tribunal Video

Video | What is a COT3 Agreement?

Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch the video which discusses what a COT3 Agreement is.

Anna Denton-Jones
Refreshing Law