Employment Law Blog

Employers frequently decide to open negotiations over the termination of employment. For instance, there may be a possible redundancy situation or a performance problem, and the employer may prefer agreeing the termination of employment on mutually acceptable terms to implementing formal procedure. However, such discussions are not without risk.

Many people incorrectly believe that all...

The Chancellor has recently announced that the Coronavirus Job Retention Scheme, as discussed in our previous article, will now be extended across the UK until 30 April 2021. Guidance on how the scheme would operate during this extension was published on 10 November.

What are the key changes?

• The new guidance confirms that employers are able to furlough employees who are unable to...

On 31 October 2020, the government announced the extension of the Coronavirus Job Retention Scheme, which was due to end that same day, as part of the new month-long lockdown in England set to start on 5 November 2020.

Who is eligible?

Employers of any size, whether charitable or non-charitable, will be eligible for the scheme which will continue for another month. Officials say...

Job Support Scheme – Open Scheme Update

On 22 October, the Chancellor announced that there had been changes to the new Job Support Scheme (JSS) in order to further help businesses keep on staff. The announcement has seen an increase in the amount of support available to employers compared to those discussed in our previous article.

What are the changes?

The changes are as follows:

• The...

On 24 September 2020, the Chancellor announced the new Job Support Scheme which will replace furlough, starting from 1 November 2020, and run for six months until April 2021.

The Scheme is designed to protect viable jobs in businesses facing lower demand due to COVID-19. The employer continues to pay its employee for the time they work, but the financial burden of hours not worked will be...

In February 2019, we published an article in relation to the Court of Appeal’s decision in the case of Wm Morrison Supermarkets plc (Morrisons) v Various Claimants addressing the liability of an employer for the acts of its employees. At the time, we commented that the appeal to the Supreme Court had much to commend it - that appeal has now been successful, providing some comfort for...

In addition to the various government schemes to protect existing businesses, employees and the self-employed during the coronavirus pandemic, the government has created a new loan scheme to support new ventures: the Future Fund. The Future Fund allows start-ups reliant on equity investment to obtain funding that they may not be able to achieve via a convertible loan from the government.

Who...

In a further effort to assist businesses and individuals to ‘weather the storm’ of coronavirus, the government has extended the Self-Employment Income Support Scheme (SEISS) to allow applicants to obtain a second grant in respect of a further three months of profits.

What is the Scheme?

The Scheme, generally seen as the self-employed equivalent to the Coronavirus Job Retention...

On 29 May 2020, the government announced changes to the Coronavirus Job Retention Scheme, which underpins the current practice of furloughing employees, and runs until 31 October 2020.

The Scheme will close to new entrants on 30 June 2020. Employers will only be able to furlough workers who they have furloughed under the scheme for a full three-week period at some time prior to 30 June 2020...

The changes required to accommodate employees returning to the workplace will in some cases mean changing their employment contracts, for example, shift patterns, working hours or place of work.

Simply pressing ahead with making these changes risks liability. An aggrieved employee can object, work under protest and claim breach of contract to recover any resulting loss, whilst action taken by...

Following updated advice given to the public in relation to COVID-19 on Sunday 10 May 2020, the government is encouraging people unable to work from home to return to work where possible. Supporting this, a “COVID-19 Secure” document has been produced by the government, providing guidance to employers, employees and the self-employed about how they can work safely.

There are guides...

Times are tough for employers. Many have used the government’s Job Retention Scheme to furlough employees, whilst others have found ways to continue operating, but often with reduced workloads and falling income.

The Job Retention Scheme was introduced to provide an alternative to redundancy where businesses cannot maintain their workforce due to the coronavirus.  It offers...

Coronavirus has presented many businesses with less or no work, leaving those businesses with the difficult decision of what to do with their employees. 

Two possible options are laying employees off  (providing them with no work and no pay for a period while retaining them as employees) or placing them on short-time work (providing them with less work and less pay for a period,...

The effects of COVID-19 on the workplace continue to be addressed. 

Holiday is one area that will be affected in some workplaces, especially those where holiday cannot be taken owing to the need to provide essential services or due to the workforce being reduced to critical levels through illness. The government has recognised this and made amendments to the Working Time Regulations 1998....

Coinciding with Veganuary at the beginning of 2020, the Employment Tribunal ruled that ethical veganism is a “philosophical belief” and protected under the Equality Act 2010.

Background to the case

Jordi Casamitjana was dismissed by the League Against Cruel Sports after raising concerns that its pension fund invested in pharmaceutical companies involved in animal testing. Mr...

The Supreme Court heard the appeal in Tillman v Egon Zehnder Limited at the end of January. The judgment has recently been handed down and has significant implications for the law of non-compete clauses in employment cases.

Non-compete clauses

In an employment context, a non-compete clause is a restriction prohibiting an individual from competing with their former employer’s business....

The Equality Act 2010 prevents discrimination on the grounds of protected characteristics – age; disability; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.

Employers must take particular care when handling redundancies because while seeking to avoid discrimination against one employee, it is easy inadvertently to...

Employment law constantly evolves. Established concepts often take on new significance as they are re-worked and developed. A draft statutory instrument illustrates this point well, expanding the scope of three separate legal provisions over the next 15 months. Although still in draft form, some of the changes are imminent and employers need to be aware of what is proposed.

The most immediate...

Wm Morrison Supermarkets v Various Claimants, Court of Appeal

A recent case has highlighted the importance of safeguarding personal data. Everyone responsible for holding or processing personal data should carefully evaluate their security processes and procedures in light of the findings in this case.

Data protection laws state that employers who collect personal data must take appropriate...

We are often asked to advise employers and employees about long term illness in the workplace.

Long term illness frequently qualifies for protection as a disability under the Equality Act 2010. This supplements any protection against unfair dismissal that an employee may have.

There is no minimum period of employment to qualify for protection under the Equality Act. Apart from protecting...

It is well known that, under the Equality Act 2010, individuals are protected from being discriminated against on the basis of their religion or religious belief. It may not be as well known, however, that there is a second branch of this protected characteristic - philosophical beliefs. It might be a further surprise to learn that lifestyle choices such as veganism may qualify for...

We regularly find ourselves advising both individuals and employers about appeals against dismissal. The implications of appealing are not widely known, but can have significant consequences. A string of cases in recent years have considered the effect and established some important principles.

It makes a lot of sense for employees to appeal against decisions to dismiss them, after all, it...

On 10 October 2018, the Supreme Court handed down judgment in Lee v Ashers Baking Company, better known as the ‘gay cake’ case. The case concerned the refusal by a bakery business with devout Christian values, Ashers, to ice a cake for a gay customer, Mr Lee, with the phrase ‘Support Gay Marriage’. Among other questions, the Court sought to answer whether this refusal...

In March, the High Court considered the existing law relating to negative opinions in employer references in Hincks v Sense Network. 

An obligation to give a reference?

Though it is uncommon for an employer to be unwilling to give any reference at all, there is no obligation at law to provide ex-employees with a reference. Giving a reference is not compulsory unless an obligation to give...

The tax treatment of monies paid by an employer to an employee in lieu of notice changed on 6 April this year. In doing so, an artifice much loved by employment lawyers will disappear. 

The pay/compensation distinction

Some employment contracts do not include a right for the employer to terminate the employee’s employment immediately and pay monies in lieu...

1. Legal background

Data Protection in the UK is currently governed by the Data Protection Act 1998. The statute implements the EU Data Protection directive of 1995.

The General Data Protection Regulations will come into force on 25 May 2018 and supersede the 1995 directive and the 1998 Act. They are regulations issued by the EU and have direct effect in all EU countries.  The aim is...

Reports of the harassment of female staff at the Presidents Club charity dinner – an all male dinner to which the great and good of the business and financial world attended - coincides with the report of the Fawcett Society into a review of sex discrimination law. The Society’s principal finding is that the laws together with the Courts and Tribunals are failing to protect...

Somewhat overtaken by other events during the summer, was the publication of the Taylor Report into working practices, with particular reference to the so-called “gig economy”. Whilst the report itself does not have direct legal effect, it was commissioned to make recommendations and the Prime Minister, at the time of publication, promised to consider it carefully. It may therefore...

General Data Protection Regulations (GDPR) take effect on 18 May 2018. The regulations will make significant changes to data protection rules and, in particular, will afford additional protection to individuals who are data subjects. Authorities will have the power to impose significant fines for breaches. Organisations that hold data need to begin preparation for the new regulations now.

The...

Yesterday, the Supreme Court held that the requirement for employees to pay a fee to bring a claim before an employment tribunal was unlawful. The reasoning behind this was that the imposition of the fee was an impediment to access to justice and indirectly discriminatory against women.

The judgment leaves the door slightly ajar for the Government to seek to reintroduce the requirement in an...

In December 2014 we reported that, despite the Employment Appeals Tribunal (“EAT”) finding that employees should be paid “normal remuneration” during leave, they would be limited in their ability to claim for historic underpayments (http://www.twmsolicitors.com/news-and-blogs/holiday-pay-update-3/). This was due to what is known as the “three month rule”. In...

We have previously reported Advocate General Kokott’s opinion that a dress code which prohibited an employee, A, from wearing a hijab at work did not amount to direct discrimination based on religion or belief. The A-G also considered that it would not be indirectly discriminatory, as it was objectively justified by the employer's legitimate commercial objective of religious and...

The recent case of the Pimlico Plumbers, following on from that concerning the Uber drivers, shines a spotlight on the new economic work models which operate very differently from those in the traditional workplace and how the Tribunals and Courts are dealing with this.

To avoid confusion, I refer to the parties seeking services as “the Company” and the party providing the services...

Does the fact that an employee is signed off work with stress for a prolonged period of time automatically render them disabled within the meaning of the Equality Act 2010 (“the EqA”)?  If so, this has serious practical consequences for employers keen to avoid claims of disability discrimination.

The Employment Appeal Tribunal (“EAT”) recently provided some useful...

Most employers are aware of the need to ensure that they do not subject a disabled employee to any unfavourable treatment due to their disability. However, the recent case of Grosset v City of York Council demonstrates that an employer can inadvertently discriminate against a disabled employee, even if they carry out an investigation and reasonably conclude that the unfavourable treatment (in...

A parliamentary report has concluded that women who are told to wear high heels, makeup or a specific nail polish colour at work require further protection against discrimination.

The report followed a petition set up by Nicola Thorp, after she was asked to leave accounting firm PwC without pay for wearing flat shoes. Thorp worked at PwC via the agency Portico, whose dress code specified:

• ...

On 6 December, after a long wait, the Government published the revised (and final) version of the draft Equality Act 2010 (Gender Pay Gap Information) Regulations 2017.

The revised Regulations, which are due to come into effect in April 2017, provide much needed clarity, as well as amending certain aspects of the previous draft Regulations which caused particular concern (for our article on...

The office Christmas party can provide the perfect opportunity for employees to relax, have fun, and celebrate the end of a long year. However it can also be a legal minefield for employers, especially when alcohol is involved.

The recent case of Bellman v Northampton Recruitment is one such example of this. On 17th September 2011, Mr Bellman attended his office Christmas party at a local golf...

Well known companies such as Uber and Deliveroo are examples of organisations which are part of the new ‘gig economy’. Growing numbers of people are working “gigs” where they are employed for a particular task or for a specified time, whether this be as their main occupation or as an additional job to earn extra income. People involved in the gig economy have little...

Chancellor Philip Hammond delivered his first Autumn Statement yesterday which included a number of announcements bound to affect both employers and employees.

Salary sacrifice schemes restricted

As anticipated, tax free employee benefits offered by salary sacrifice schemes are to be restricted from April 2017. Employees will no longer be able to opt to sacrifice some of their salary for...

A new report claims that new mothers are facing an increase in workplace discrimination following maternity leave.

The Citizens Advice Bureau report reveals that 3,307 women contacted the Bureau this year about maternity leave problems, compared to 2,099 last year. There has been an increase in the number of women who have experienced being moved to a zero hours contract, having their hours...

Whilst many people have been away enjoying the half term break, Judges have been busy! Two significant and interesting cases have been determined this week, both being very much in the public eye:

Firstly, on Monday the Northern Ireland Court of Appeal issued its judgment in the case concerning the bakers who refused to provide a cake to a gay man seeking it to be decorated with the words...

A whistleblowing charity, Public Concern at Work (PCaW) has released a review which has revealed the following findings:

• Four out of five ‘whistleblowers’ experience negative final outcomes and only 12% of whistleblowing claims brought in 2011 to 2013 were successful.

• Seeking advice at an early stage is the most effective action a whistle-blower can take - in fact positive...

For children the advent of the summer holidays promises a seemingly never-ending stretch of fun and freedom. For working parents it promises stress and a burning hole in the pocket. It is commonly known that childcare is becoming increasingly expensive. Alternatives such as holiday clubs and childminders are also costly. This leaves parents in a difficult position come the summer months and...

Following a judgment from the Employment Appeal Tribunal (“EAT”), the protection afforded by s.111A Employment Rights Act 1996 (“ERA”) has been extended. s.111A ERA provides that evidence of any settlement negotiations before termination is inadmissible in unfair dismissal proceedings. The purpose of this legislation is to encourage parties to reach an amicable...

The Immigration Act 2016 (Commencement No.1) Regulations 2016 (“the Regulations”) will introduce three new changes to the Immigration Act 2016 as of 12 July this year.

For employers, the most important of these changes is section 35. Currently it is a criminal offence to knowingly employ an illegal worker. The new amendment extends the offence to include where the employer has ...

After an Employment Tribunal claim progressed through the Belgian court system, the Belgian Appeal Court referred the following question to the ECJ: does EU discrimination law allow for the prohibition of a hijab where an employer has a blanket ban on all religious dress? The ECJ has yet to give a final decision on the matter but the Advocate General Kokott has opined yes.

The background to...

The Government have published draft regulations which will require large employers to publish details of the gap between male and female employee rates of pay. This gives delayed effect to section 78 of the Equality Act 2010 and whilst it is envisaged that the rules will take effect from 1 October 2016, there will be indirect effect from 1 May 2016.  Employers subject to the...

Contracts of Employment frequently include post termination restrictions designed to prevent an ex-employee from soliciting business, dealing with clients, poaching staff or operating a competing business.  This quite often raises the issue as to how effective they are.  Post termination restrictions in the employment context will only be enforceable by the Courts if they pass the...

Reports in the press recently would suggest that, in light of recent European Court of Human Rights decision in the case of Barbulecua v. Romania, employers have the absolute and unfettered rights to monitor and read private emails that have been sent or received by employees on the employer’s IT system.

This is not the case, and Employers should approach such issues with care.

...

The Government has announced that from April 2016, it intends to activate the financial penalty provisions contained in the Small Business, Enterprise and Employment Act 2015. The impact of this is that if an employer fails to pay an Employment Tribunal award to the claimant within the deadline, a penalty of 50% of the outstanding amount will be imposed. There is a minimum of £100 and...

The Department for Business and Innovation has announced a number of changes to its Small Business, Enterprise & Employment Act 2015. The key dates that businesses should now be aware of are: read here

Last month, HMRC published two discussion documents which will be of widespread interest to employers and employees or contractors alike. The first, published on 17th July 2015, concerns what is commonly known as IR35. The second, published a week later, concerns the taxation of payments made on termination of employment.

IR 35

The IR35 legislation was first introduced in 2000 to tackle the...

Newsflash

A recent European case has raised an interesting point about the interaction between travel time and “working time” for the purposes of the Working Time Directive.  The resulting opinion of the Advocate General is that the time an employee spends travelling to a customer from home and back to their home from their last customer may count as “working...

Employers can often be lulled into a false sense of security with the use of zero hours contracts and forget that those employees employed under such contracts are still protected by employment legislation. Employees on zero hours contracts can still bring claims in an Employment Tribunal and those claims can have significant value as a recent case demonstrates.

In the case of Southern v...

1. What is it?

Parents (see definition below) can take the 52 weeks Statutory Maternity Leave (SML) period which a mother currently enjoys and share this between them. The father can also add his two week Ordinary Paternity Leave (OPL) period and make a total of 54 weeks leave available.

A few points:

• the mother must take the two week period after the birth of the child either...

Holiday Pay

There have been a number of changes to the holiday pay regime recently following the cases of Williams, Lock and Bear Scotland. This article addresses some of the changes. For a more comprehensive review of the position see our article here.

What should now be included in holiday pay under the Working Time Directive?

Following the EAT’s decision in Bear Scotland, statutory...

There have been a number of changes to the holiday pay regime recently following the cases of Williams, Lock and Bear Scotland. This article addresses some of the changes. For a more comprehensive review of the position see our longer form article.

What should now be included in holiday pay under the Working Time Directive?

Following the EAT’s decision in Bear Scotland, statutory holiday...

As you may remember from our June 2014 Employment Bulletin there has recently been some uncertainty with respect to whether holiday pay can comprise of basic salary alone or whether overtime and commission should also be included.

These issues have far reaching consequences as they could mean that employers will need to increase the amount of holiday pay paid to...

Shared Parental Leave is a new right that will enable eligible mothers, fathers, partners and adopters to choose how to share time off work after their child is born or placed. This could mean that the mother or adopter shares some of the leave with her partner, perhaps returning to work for part of the time and then resuming leave at a later date.  The regulations are currently before...

Mr Kaltoft, was employed by the Municipality of Billund as a childminder. Mr Kaltoft was obese and the parties agreed that he had been obese for the entirety of his employment (some 15 years). Having been dismissed from his employment, Mr Kaltoft brought a claim in his home country (Denmark) framed on two principal arguments:

1 That obesity falls within a general prohibition in EU law covering...

Managing sickness absence is an important concern for employers, given its financial implications. It is perceived that the current system does not do enough to encourage employees to return to work once they have gone off sick, and the Government is seeking to address this.

This October, the Government’s new Health and Work Service will be introduced in selected areas (yet to be...

By Patrick Stewart, Head of Employment, TWM Solicitors.

Introduction

A Suffolk Golf Club has recently agreed to pay £50,000 to an employee that it wrongly sacked after she brought a successful Employment Tribunal claim. The case serves as a warning to Surrey’s 100+ golf clubs, that:

• not following proper procedures;

• not...

It is a sporting celebration and the world’s most popular game. Common sense is a good rule of thumb when it comes to managing staff during the next four weeks. But this needs underpinning with guidance and a reminder that policies exist to be fair and provide consistency for all staff.

Here are 5 goals for employers to aim for to ensure a trouble free World Cup in...

The deadline is looming …. Are your prepared?

 Rod Milne from pension specialist HFS Milbourne provides a snapshot of setting up an Auto-Enrolment scheme and suggests that going it alone without the benefit of expert advice is not for the faint hearted

The staging date of auto enrolment for firms with PAYE schemes supporting between...

 The Government has long been concerned about the £74 million annual cost of running the employment tribunals and the Employment Appeal Tribunal. In attempt to discourage potentially frivolous claims, it introduced fees with effect from 29th July 2013 for issuing a claim and for proceeding to a hearing. There are discounts and exemptions...

Francesca Wild, a lawyer in the employment team here at TWM was interviewed by Eagle Radio about the perils of social media in the workplace, including the dangers of badly worded tweets.  Below is the article in full:

Social media is a very powerful medium. It can help raise a company's profile as well as put them in touch with countless...

New Rates and Limits

 There is a lot of talk in the news at present about the Government’s new proposals to allow parents to share the maximum  leave available after the birth or adoption of a baby. First trailed some time ago, the proposal is that after the first 2 weeks’ compulsory Maternity Leave for a mother’s recovery, the remaining 50...

The High Court has partially upheld an application for summary judgment against a senior employee who tried to transplant his employer's business to a competitor. His plan included taking over the employer's premises, incorporating a company with a similar name and facilitating the recruitment by the competitor of a substantial section of the employer's workforce. Despite the absence of any...

We are delighted that for the first time our team is recommended in the newly-published Chambers guide to the UK legal profession.

The guide states that "...the team is known for representing claimants and respondents in Employment Tribunals, senior level executives, and advises on corporate transactions such as TUPE".

A particular strength of the team is responsiveness, with...

Why monitor third-party use of social media?

It is sensible to look for potentially damaging comments about a company and/or its products or services, plus any infringement of the company’s intellectual property.

Social media monitoring can also be an effective customer service tool, for example allowing you to respond to disgruntled customers.

Issues to consider when designing a...

The massive growth in the popularity of social media is creating issues, as well as opportunities, in the workplace. Employees regularly blog, tweet and access LinkedIn, blurring the interface between employees’ work and personal lives.

Employers will have a wide range of attitudes to the strategic importance of social media in their business and correspondingly, a wide range of...

Whilst the commentators debate whether the long awaited recovery has begun, on the ground, employers who we know are looking to recruit more staff to meet the rising demand. With this in mind we suggest that this is a good opportunity to ensure that your recruitment house is in order. This should include reviewing:

• Recruitment process- to ensure that you recruit the right candidate and avoid...

On 17 January 2013, the government issued a consultation on a number of proposed changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

The most significant was the repeal of the regulations relating to "Service Provision Changes".

Other proposals included:

 

• Removing the obligation to provide employee...

Peter Stevens, a Partner in our Business Law Department, recently took part in an interesting virtual round table discussion on International Joint Ventures.

To visit the discussion please click here http://goo.gl/UmDEUN

Protected Pre-Termination Negotiations

From Monday 29th July 2013, a new regime of protected conversations has come into force. The idea is that employers can have a straightforward discussion with employees, in which they can make an offer with a view to the employee’s employment being terminated on agreed terms, safe in the knowledge that the employee can’t refer to the...

Major changes come into force today in relation to claims that are filed on or after today's date.

As from today, fees will be payable by claimants upon issue of their claim, and again before a final hearing can take place. Fees will also be payable for applications made by either party along the way. Accordingly, claimants will not be able to commence proceedings without paying the fee. The...

Changes to the Whistleblowing Regime in force

The whistleblowing regime in the Public Interest Disclosure Act (“PIDA”) has long protected workers and employees who suffer a detriment or are dismissed for raising concerns about alleged wrongdoing by their employers or others. That protection has expanded since changes came into force on 25th June 2013.

PIDA relates to disclosures...

This morning saw another of our Employment Team's Mock Tribunals. Organised in conjunction with Hays Guildford HR Recruitment team and performed expertly by our Employment Team, the event proved to be very successful and informative.

The structure of the seminar followed a truncated Employment Tribunal Hearing and concerned an employee who had been dismissed following a series of repeated...

The Government's insistence on forcing through the Employer Shareholder Scheme (first referred to in our December blog) -against the opposition of all who have read and understand the proposal- is beginning to resemble a Whitehall farce. To placate the House of Lords who have consistently thrown the proposal out the Government have had to make the following...

There have been a number of Employment Appeals Tribunal (EAT) decisions recently on the issue of redundancy and, when looked at collectively, those decisions appear to suggest that the EAT is showing a more relaxed attitude to the redundancy process. It is possible that this potential shift is connected to the Tribunal’s awareness of the difficult commercial environment now faced by many...

Not coming from a background in HR, I found today's Employment Tribunal reconstruction by our employment law team provided a fascinating insight into resolving disputes between an employer and employee. The scenario concerned the dismissal of an administrative assistant from an electrical contractors with c.50 staff. The reason for dismissal was persistent short-term absence over an 18 month...

Generally an employee cannot bring a claim for unfair dismissal until he has at least 2 years service. It was 1 year but the current Government increased it to 2 years as part of their campaign to boost employment! There are exceptions to this; any employee dismissed by reason of maternity, paternity, for raising health and safety concerns or for...

Listeners to the Today Programme (15.2.13) on Radio 4, cannot have missed the story of the NHS manager who was relieved of his post and received a substantial pay off under a compromise agreement, but is now seeking to break the confidentiality provision in that Agreement to report the failings at his NHS Trust. It seems to me that a few...

To find out about the latest entitlements in employment, click Employment Entitlements January 2013