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Mar
08
2013

Response to ICO draft code of practice to handling Data Protection information requests
#Employment

Clarkslegal has submitted a response to the Information Commissioner`s consultation regarding subject access requests under the Data Protection Act 1998.  The consultation, which closed on 21st February 2013, sought views upon whether the Information Commissioner`s new draft code of conduct provided the correct level of guidance and practical examples to assist organisations to deal with access r...

Mar
06
2013

Can collective agreements justify a difference in pay between men and women?
#Employment

In the Irish case of Kenny v Minister for Justice, female civil servants carrying out clerical duties for the national police claimed that they were paid less than male employees carrying out the same work. These male employees were assigned to specific clerical posts reserved for members of the police, called ‘designated` posts, in an effort to reduce police numbers. The employees brought an eq...

Mar
05
2013

ACAS consultation on draft code of practice for flexible working requests
#Employment

In its response to its Consultation on Modern Workplaces the government has proposed extending the right to request flexible working to all employees with at least 26 weeks` continuous employment. The government has also proposed replacing the statutory procedure for considering requests with a new duty on employers to act reasonably within a reasonable period.  In response to these proposals, A...

Mar
01
2013

Redundancy consultation period due to be halved to 45 days from 6 April 2013
#Employment

Following consultation the government has decided that the 90 days consultation period is not usually required. Reducing the minimum consultation period from 90 days to 45 days will enable employers to be more flexible and aid them by saving administrative and salary costs. It was seen to be important to allow employers to restructure more quickly especially at a time when the future of the company could be at risk....

Mar
01
2013

When can an employer rely on a final warning in deciding to dismiss?
#Employment

Two recent cases have explored the circumstances in which a Tribunal can examine the validity of a previous warning, which formed part of the employer`s decision to dismiss an employee. The Court of Appeal confirmed in the case of Davies v Sandwell that only in limited circumstances will a tribunal be entitled to `re-open` an employer`s decision to issue a final warning, which the employer later...

Feb
28
2013

Whistleblowing must now be in public interest but need not be in good faith
#Employment

The government is intending to introduce a number of changes to whistleblowing law through the Enterprise and Regulatory Reform Bill ("ERRB") but whether this will prompt employers to encourage employees to blow the whistle remains to be seen. Whilst whistleblowers are protected against detriment and dismissal as a result of blowing the whistle, they often suffer in more subtle ways such as ostra...

Feb
22
2013

Unfair dismissal: Can a tribunal decide that an employee would have been dismissed in any event?
#Employment

In the case of Hill v Governing Body of Great Tey Primary School it was found that a Claimant`s dismissal was procedurally unfair. The tribunal calculated the remedy on the basis that the Claimant`s employment would have terminated in any event two months later (had a proper procedure been followed). An 80% reduction on account of contributory fault was also applied, leaving the claimant with the...

Feb
22
2013

Public sector pay deals may bind private sector says European Court
#Employment

Question: Would public sector employees who are subject to industry or sector wide negotiated terms continue to be entitled to benefit from increases in pay which are negotiated under those terms after they have transferred to the private sector? Background of the case: The Claimants were originally employed by London Borough of Lewisham. These Claimants had a contractual entitlement to pay i...

Feb
20
2013

Where`s the Pope?
#Employment

No, this is nothing to do with the Pope`s resignation last week. In Heafield v Times Newspaper Ltd, Mr Heafield pursued claims for harassment on the grounds of his religion on the basis that his line manager`s comment "can anyone tell me what`s happening to the f***ing pope", which was shouted in a pressured newsroom,  was intended to deride and insult his religion and in the alternative, the com...

Feb
14
2013

Religion and belief in the workplace: new guidance
#Employment

In response to recent European Court of Human Rights judgment about religious rights in the workplace, the Equality and Human Rights Commission has this week published good practice guidance for employers on how to comply with the Court`s judgment.   This guidance gives various examples of requests that might be made by employees and what it regards to be an appropriate response.  Two such exam...

Feb
14
2013

The proposed simplification of the Auto-Enrolment rules
#Employment

The DWP plans to consult in March 2013 on several changes to the auto-enrolment regime. The changes to be introduced are intended to simplify technical aspects of the legislation, reflecting the lessons learned so far from how the regime has operated in practice. Three specific areas have been singled out by the DWP: To simplifying the process of assessing the workforce. Making it easier fo...

Feb
13
2013

When can age discrimination be justified?
#Employment

Background The Employment Equality Age Regulations 2006 ("the Age Regulations") provide that a person will be directly discriminated against if they are treated less favourably than a comparator on the grounds of the person`s age and the treatment cannot be objectively justified.   The Age Regulations also provide that a person will be indirectly discriminated against if a provision, criterion o...

Feb
08
2013

Be careful about your staff working on the train and don`t make your disciplinary procedure contractual
#Employment

The recent case of West London Mental Health NHS Trust v Chhabra confirms the need to exercise great care to ensure that disciplinary procedures are not contractually binding on employers. If a court is able to construe a disciplinary procedure as having contractual effect, a breach of the procedure could lead to the employee seeking a court injunction preventing the disciplinary procedure going...

Feb
08
2013

Can policies in employment handbooks be contractual?
#Employment

Another recent case has dealt with the question of whether a redundancy policy can be contractual...

Feb
08
2013

Gross misconduct dismissal was not because of disability
#Employment

The Employment Appeal Tribunal has recently given its judgment on whether a Council had fairly dismissed a social worker (who was disabled) for failing to register with the General Social Care Council (GSCC): A -v- B (UKEAT/0383/11/DM).    On 1 April 2005 it became a legal requirement for all social workers to be registered with the GSCC and a criminal offence for someone to describe themselve...

Feb
01
2013

Legal advice privilege only protects advice from lawyers
#Employment

Legal advice privilege entitles a party to withhold evidence from production to a third party or the court where the evidence involves advice between a lawyer and client....

Feb
01
2013

Major Changes to TUPE Proposed
#Employment

BIS (the Government Department for Business, Innovation & Skills) has recently announced that it proposes to make fundamental changes to the TUPE 2006 Regulations. The key proposals include: Repealing entirely the ‘service change` provisions, (affecting outsourcing, retendering and bringing work back in house`) to align the definition of a transfer with the wording of European law....

Jan
25
2013

Swedish derogation applies to existing relationships with hirers
#Employment

Under the Agency Workers Regulations 2010 (in force from 1st October 2011) agency workers who work in the same role for the same hirer for a period of 12 continuous weeks are entitled to the same "basic working and employment conditions" as they would have received if they`d been hired directly by the hirer....

Jan
23
2013

Changes to come: Settlement Agreements
#Employment

The Government`s proposals for Settlement Agreements are due to come into force this Summer.   Under the proposals employers will potentially be able to negotiate settlements with employees pre-termination without fear of this being used in evidence against them in any unfair dismissal claims.  The exception to this is where the employer acts with impropriety - known as "improper behaviour"....

Jan
22
2013

The extremes of temperature
#Employment

Chris Stops, one of Forbury People`s HR Consultants, has written this blog for us: Given the cold snap we are currently experiencing, and the current run of seemingly unreliable and changeable weather I thought extremes of temperature would be a sensible topic to start the year on....

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