Whilst much uncertainty remains as to the future arrangements for asset financiers doing business across Europe, we can now say that in terms of specific legislative requirements upon the operation of asset financiers within the UK, required changes would appear to be limited to the deletion of references to “standard European consumer credit information” (SECCI) from CCA regulated consumer credit agreements as reported in our last Briefing.
On 2 December 2020, the Consumer Credit (Enforcement, Default and Termination Notices) (Coronavirus) (Amendment) Regulations 2020 (SI 2020/1248) (“2020 Regulations”) came into force, amending the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) (“1983 Regulations”).
HMRC has confirmed that, in a significant change from its previous position, as from 1 February 2021 it will regard almost all payments made upon early termination of asset finance agreements as chargeable to VAT.
Employers and employees must follow the ACAS Code of Practice in relation to disciplinaries and dismissals. If either party fails to follow the Code, the tribunal can increase or decrease tribunal compensation by up to 25%. In Wardle v Credit Agricole Corporate and Investment Bank, the Court of Appeal said that a tribunal should only fix the rate of uplift once it has considered how much the uplift would equate to financially, to ensure it isn’t disproportionate.
An Employment Tribunal can ‘reconsider’ any judgment where it is necessary in the interests of justice. A tribunal can do this of its own initiative, at the request of the Employment Appeal Tribunal or if one of the parties makes an application for a reconsideration within 14 days of a judgment. The Employment Appeal Tribunal has recently looked at a case where an employer asked a judge to reconsider a case ‘of its own initiative’ in circumstances where they were out of time to make the application themselves.
One of the key differences between direct and indirect discrimination is that a claim for indirect discrimination can be defeated if the employer can show that the provision criterion or practice under challenge is a ‘proportionate means of achieving a legitimate aim’. The circumstances in which this defence of justification will succeed have been the subject of many years of case law. One principle that has emerged is that an employer cannot simply rely on cost savings as a legitimate aim – although it has generally been accepted that cost can be counted as one among several factors – a so called ‘costs plus’ approach.
A redundancy is a dismissal as a result of a workplace closing down or the employer needing fewer employees to do work of a particular kind. In Berkeley Catering Ltd v Jackson the question was whether the reason that an employer needed fewer employees made a difference to whether or not there was a redundancy situation.
An employee who is dismissed for making a public interest disclosure – whistleblowing – can claim unfair dismissal even without the two years’ continuous service that is normally required. What is more, there is no cap placed on the amount of compensation that can be awarded, so successful claims can be very expensive for employers.
An employer making an employee redundant will not normally be acting reasonably unless it considers whether there is any alternative work that may be offered. In Aramark (UK) Ltd v Fernandes however, the employee argued that the employer should also have considered placing him in a bank of casual workers after his redundancy had taken effect.
The government has accepted the recommendations of the Low Pay Commission and announced the National Minimum Wage and National Living Wage rates which will come into force from April 2021. Recognising the formidable task of recommending minimum wage rates in the middle of a global pandemic, the Low Pay Commission has sought to balance the needs of low paid workers – many of whom are doing critically important work – and the real solvency risks which small businesses are currently exposed to.
Employers across the country are being encouraged to accommodate the need for employees to self-isolate when required to do so because of Covid. According to widespread reports over Christmas, however, this message did not reach a newsagent in Lincolnshire who sacked a 15 year old paperboy for missing work after being told to self-isolate by his school. The boy’s father is reported to be considering legal action, but may face some difficulty.
| 
