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Oct
25
2013

Court of Appeal upholds post termination restriction that was for "only six months"
#Employment

In a refreshingly clear judgment in an area that is notoriously complex and hard for employers to get right, the Court of Appeal has confirmed that the length of a non solicitation clause is a "powerful factor" in assessing the overall reasonableness of the clause and that when the restriction was for "only six months", that was a "fundamental consideration of reasonableness". The Court suggested...

Oct
18
2013

Redeployment: misleading job description makes interview and redundancy unfair
#Employment

The EAT case of Somerset County Council v Chaloner (2013) highlights the importance of ensuring that when redundant employees are being considered for redeployment, they must be given a fair opportunity of understanding exactly the nature of the role being applied for. So, be careful when devising a new role in a restructure and ensure that the job description is properly finalised before conduct...

Oct
18
2013

Employer required to pay for depressed employee`s private counselling
#Employment

InCroft Vets Ltd and others v Butcher, the EAT has upheld a tribunal`s decision that an employer, in not paying for an employee with work-related stress and depression to have private psychiatric counselling and cognitive behavioural therapy, breached its duty to make reasonable adjustments under the Equality Act 2010. The adjustments, which were recommended by a consultant psychiatrist, were suf...

Oct
11
2013

Tribunal Penalty for Employers
#Employment

The Enterprise and Regulatory Reform Act 2013 received Royal Assent on 25 April 2013 and even though certain sections, such as changes to whistle blowing, came into effect on 25 June 2013 until now there has been no indication of when Section 16 would come into force.  Section 16 grants an employment tribunal the power to impose financial penalties on employers. However the Minister of Employmen...

Oct
11
2013

Clarity provided on effective cause in Constructive Dismissal cases
#Employment

The Employment Appeal Tribunal in the case of Wright v North Ayrshire Council has provided some clarity on the correct test for determining constructive dismissal claims, and the extent to which an employer`s contractual breach should contribute to a resignation.    The Claimant was employed as a Care Assistant at the Council from December 2003 until she resigned in November 2010.  She subsequen...

Oct
11
2013

New ICO Code of Practice for Subject Access Requests
#Employment

In March we blogged that the ICO had launched a consultation asking for feedback on a new code of practice for handling data subject access requests under the Data Protection Act 1998. The ICO received 86 responses in total and the new code was published in August this year. The ICO did make some changes to the code based on the responses it received.  For example, the code now includes secti...

Oct
10
2013

Employee voice is integral to all businesses so we can shape the culture of organisations for the future
#Employment

Over one hundred HR practitioners in the Thames Valley attended a joint celebration of both CIPD and Clarkslegal`s centenaries, at an evening reception that reflected on the development of HR throughout the past 100 years and its vision for the future...

Oct
04
2013

Working time: "Welcome aboard, this is your Captain sleeping!"
#Employment

The Civil Aviation Authority (CAA) has recently revealed that a 325 seat Airbus A330 belonging to a UK based carrier was discovered to be flying on autopilot when both the pilot and co-pilot had fallen asleep.  The two pilots involved blamed fatigue, pointing out that because of the long shifts which they had been putting in over the peak holiday season, they had only managed to have 5 hours slee...

Oct
04
2013

TUPE and contracting out: Government retains "service provision change" in definition of transfer
#Employment

Last month, the Government confirmed that there will be no repeal of the "service provision change" provisions of the TUPE Regulations, as was proposed in consultation. Many had been wondering how on earth we would return to the situation that existed prior to the TUPE Regulations 2006, which replaced the TUPE Regulations 1981. The position then was that a service provision change was treated no differently than a business acquisition and the test of whether TUPE applied was derived from a pure application of EC Directive and EC and UK case law....

Oct
04
2013

John McCririck age discrimination case: the final furlong
#Employment

The newspapers have reported keenly on racing pundit, John McCririck`s, employment tribunal hearing this week. The 73 year old racing pundit has brought an action for age discrimination against his former employers, Channel 4. Aside from being dropped from the Channel 4 presenting team; McCririck has also criticised the fact that he found out about his dismissal from sports editor at Channel 4,...

Sep
27
2013

Sugar loses £50k costs application in Apprentice case
#Employment

Lord`s Sugar has lost his bid to recover £50,000 worth of costs from a previous Apprentice winner, Stella English. Stella raised a claim for constructive dismissal which she lost at Tribunal in April .  The original tribunal said the case ‘should never have been brought` which was reiterated by Lord Sugar`s lawyers however, the East London Tribunal Service rejected the bid and ruled she should n...

Sep
20
2013

Do you include overtime when calculating holiday pay? Recent case says yes.
#Employment

The established legal position is that for  employees with no normal working hours, when calculating statutory holiday pay, employers do not have to include compulsory overtime when calculating holiday pay (under the Working Time Regulations). However, any overtime that is guaranteed to the employee under their contract of employment must be included in the calculation. Of course, it is open to t...

Sep
20
2013

Redundancy selection - when a shambles requires no further explanation
#Employment

In an age discrimination case (Osaba v Herfordshire Police), whilst conducting a staff reorganisation, the employer created a points-based matrix to determine which employees would be selected for redundancy. It was claimed that the employer had deliberately manipulated the matrix to ensure that he, by reason of his age, would be dismissed. The tribunal found that the employer`s handling of this...

Sep
13
2013

Employee data breaches: no compensation for injury to feelings
#Employment

As you may be aware compensation can be awarded for breaches of the Data Protection Act (DPA). How such compensation should be calculated has recently been considered by the Court of Appeal in Halliday v Creation Consumer Finance ([2013] EWCA Civ 333). In this case Mr Halliday purchased a television on a consumer credit agreement provided by Creation. Mr Halliday sued Creation in the County Co...

Sep
13
2013

Failure to provide impartial grievance appeal can amount to a constructive dismissal.
#Employment

The EAT has held that an employer`s failure to provide an impartial grievance appeal process can amount to a breach of the implied term of trust and confidence and form the basis of a constructive dismissal claim. In Blackburn v Aldi Stores Ltd UKEAT/0185/12,  the same manager who heard the grievance hearing, also heard the appeal, dismissing the appeal following a 20 minute hearing. The employee...

Sep
13
2013

Government gets permission to appeal Woolworths collective redundancy decision
#Employment

Further to our blog on 26 July 2013, the Department for Business, Innovation and Skills (BIS) has managed to get permission to appeal against the decision of the EAT in the Woolworths collective redundancy case. This is welcome news for employers, as it looked rather doubtful at one stage that BIS would be able to mount an appeal at all. The EAT`s decision in May of this year radically changed t...

Sep
11
2013

Strictly Come Dancing (or should that be Currys Come Dancing?)
#Employment

Two candidates who attended interviews at Currys have complained about being made to dance at their job interviews.  One apparently had to dance to Dizzie Rascal.  The other said he had to dance in a robotic-style to a Daft Punk song which he compared to a scene from BBC`s The Office and described the experience as "humiliating". Whilst using various recruitment assessment tools at interviews ca...

Sep
06
2013

Government abandons plan to repeal service provision change in definition of TUPE
#Employment

The Government consulted on reforming the Transfer of Undertakings (Protection of Employment) Regulations 2006 ("TUPE") earlier this year. Yesterday the Government published its response....

Sep
06
2013

Employee shareholder rules now in force, guidance issued
#Employment

Following on from the proposal for a new employee shareholder contract, which finally came into force in 1 September 2013, the Government has now produced guidance on employee shareholder status....

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