Clarkslegal LLP - Solicitors in Reading and London

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Aug
21
2014

Illegal inducements to union members
#Employment

There are some relatively unknown and underused legal provisions which make it unlawful for employers to make any kind of offer directly to a unionised employee, for example a new bonus scheme, which could be construed as an attempt to induce the employee to give up collective bargaining rights. However, the fact that at least three cases were heard on this point last year could be an indication...

Aug
21
2014

TUPE: where there is a change of client and "tasks of short term duration"
#Employment

It is a rule that in relation to a TUPE service provision change that the client for whom the services are provided must be the same before and after the transfer. This rule derives from the Court of Appeal case of Hunter v McCarrick [2013] IRLR 26. In a further recent case on the issue, Horizon Security Services Limited v (1) Ndeze (2) The PCS Group, the client had changed when a management comp...

Aug
14
2014

Government may end £30,000 tax exemption on termination payments
#Employment

The Office of Tax Simplification (OTS) has recently published its final report which includes the taxation of termination payments as well as considering some other areas. Termination payments Currently, although payments and benefits received in connection with a termination of employment are taxable, the first £30,000 can be paid tax free, provided it is genuinely paid on account of redundanc...

Aug
14
2014

Shared parental leave
#Employment

In July 2014 the Government published the final Shared Parental leave Regulations. The new Regulations were introduced in order to offer greater flexibility for new parents in deciding who will take parental leave to look after the baby. (This topic was covered in a previous employment buddy blog at the end of November when the Government announced its commitment to introducing new regulations.)...

Aug
14
2014

OTS to review rules on employment status
#Employment

The OTS has also announced that it will be reviewing the current rules determining the divide between employment and self-employment, an uncertain and complex area for businesses, particularly in light of the increasing diversity of working practices. The OTS will consider whether existing rules create uncertainty and who this impacts, as well as trends in employment law, HMRC guidance and how ot...

Aug
07
2014

Buddy Quiz July - How did you do?
#Employment

Thank you to everyone who completed the last Buddy Quiz, posted throughout July. We have posted the answers to the questions below so you can check how you did. 1. The Queen`s Speech identified various employment law proposals which included higher penalties for    employers who fail to pay the minimum wage. However, what is the current minimum wage for those aged    21 and over? £6.31 per...

Aug
07
2014

Government plans to stop temp agencies recruiting exclusively abroad
#Employment

BIS has recently published a consultation that aims to tackle recruitment agencies that discriminate against workers in Great Britain by advertising exclusively overseas, as part of wider plans on illegal working and penalising unscrupulous employers. Currently, under the legislation governing the recruitment sector, there are two legally defined types of business - employment agencies (often re...

Aug
07
2014

Is obesity a disability?
#Employment

Mr Kaltoft worked as a childminder for 15 years before he was dismissed. Throughout his employment, Mr Kaltoft had a BMI of over 40, making him ‘severely obese` according to World Health Organisation rankings. His employer alleged that Mr Kaltoft`s obesity prevented him from performing his role fully, for example, by making it impossible for him to bend down to tie the shoelaces of the children in his care (although it also denied that it dismissed him because of his obesity). Mr Kaltoft believed that he had been dismissed because of his obesity and brought a discrimination claim in a Danish District Court....

Aug
06
2014

Landlord opposed lease renewal on the basis of substantial breach of the Lease
#Commercial Real Estate

The Court of Appeal has very recently considered circumstances where a Landlord was opposed to the renewal of the Lease protected by the Landlord and Tenant Act 1954 on the basis of disrepair and breaches of covenant. The case in question is Youssefi v Mussellwhite [2014] EXCA Civ 885....

Aug
06
2014

Google Spain v AEPD and Gonzalez: ECJ confirms "Right to be Forgotten" for Personal Data on the Internet
#Commercial

In a major recent court decision, the European Court of Justice (ECJ) has confirmed for the first time that search engine providers are to be regarded as data controllers in respect of the locating and making available information relating to individuals and that an individual`s data protection rights to rectify, erase or block access to personal data can, in certain circumstances, amount to "a right to be forgotten"...

Aug
04
2014

Recent Guidance from the Court of Appeal on how to calculate Compensation under Regulation 17 of the Commercial Agents Regulations 1993
#Dispute Resolution

For many years after the Commercial Agents Regulations came into force in 1994, there was uncertainty over how a commercial agent should calculate the value of the "compensation" they were owed under Regulation 17 following the termination of their agency agreement...

Aug
04
2014

Illegal immigrants can claim race discrimination against their employer
#Employment

In the rather harrowing case of Hounga v Allen, the Supreme Court has held that the fact that a domestic worker was working illegally in the UK was not a defence to her discrimination. Miss Hounga is a Nigerian national who came to the UK in 2007 aged 14 to work as an au pair for Mrs Allen under a visitor visa. This visa was obtained, with Miss Hounga`s permission, using a false passport and was...

Aug
01
2014

Public Registry
#Corporate

The UK Government confirmed in the Queens Speech the intention to introduce a publicly accessible register of a company`s beneficial ownership in the UK. This will apply to all corporate bodies currently registered at Companies House....

Jul
31
2014

Restrictive covenants: courts cannot give effect to commercial common sense
#Employment

The Court of Appeal has reaffirmed the well established principle that whilst a court can generally interpret an ambiguous clause it cannot rewrite a clause on the grounds that it does not make common sense and is contrary to the intention of the parties.  Restrictive covenants are often used in employment contracts in order to guard against unfair competition.  They allow an employer to protect...

Jul
31
2014

Freightliner holiday pay case settles but three other cases continue
#Employment

Neil v Freightliner, a key case on holiday pay, has settled in the Employment Appeal Tribunal. In this case the tribunal decided that Mr Neal`s holiday pay should have been calculated by reference to his normal earnings, which included overtime and shift pay. The case has been appealed and was expected that it would decide whether overtime should be included in the calculation of holiday pay. How...

Jul
29
2014

Tom Howell
#Clarkslegal

It is with great sadness that I have to announce the sudden death of Tom Howell on 25 July following a short illness. Tom was a partner in our real estate department from 1984-2007. Tom was an excellent property lawyer who both we and indeed his clients all had the highest regard for....

Jul
24
2014

Obesity can be a disability, European court says, relying on UN Convention
#Employment

We know that obesity is one of the most critical health issues facing the developed world, not least in Western Europe. The European Court of Justice now looks set to confirm, based on a preliminary opinion of the Court this week in a Danish case, that obesity, at least severe or "morbid" obesity can be a disability. In fact, leaving aside questions of European law, the Employment Appeal Tribuna...

Jul
24
2014

HR consultant`s costly drafting mistake put employees on higher band
#Employment

The EAT in the case of Hershaw and others v Sheffield City Council has held that an employer was bound by the rates of pay included in a grievance appeal letter that was written by a HR consultant. The Council had sought to reduce its patrol officers` pay following a pay review. The employees lodged a grievance so the Council engaged a HR consultant to investigate. Whilst the consultant had no a...

Jul
17
2014

Comet`s redundancy consultation failures result in £25 million potential protective award
#Employment

Last month the Leeds Employment Tribunal found that Deloitte, the administrators of Comet, had failed to consult with redundant employees.  The employees were entitled to awards of up to 90 days pay and it is expected that the total bill will be nearly £25 million. Background The Trade Union and Labour Relations (Consolidation) Act 1992 ("TULRCA") provides that employers proposing to dismiss mo...

Jul
17
2014

£18,600 a year minimum to sponsor foreign spouse or partner
#Immigration

On Friday 11 July 2014 the Court of appeal finally handed down its judgment in MM (Lebanon) and others v Secretary of State for the Home Department and another [2014] EWCA Civ 985. Background The appeals were originally heard four months ago in March and the case concerns one aspect of the Home Secretary`s controversial rules on family migration introduced in July 2012. Under the new rules...

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