The last six months have presented significant challenges to business owners who have grappled with continuing their businesses in the face of restrictive lockdown rules imposed to combat the spread of Covid 19. Many business owners are now operating with a workforce of home workers and their typical working day differs significantly from their life pre-March 2020.
As face to face meetings, corporate events and travel have been stripped from the schedules, business owners may finally find some free time during their day to review the nuts and bolts of their business. That long-awaited review of the shareholding structure, the employee share scheme that has been in the offing for years, the review of key commercial contracts, for some there is now enough time in the working week to get around to these projects.
The High Court has recently held that a party who made contractual representations as to the validity of an aircraft lease was contractually estopped from subsequently alleging that the agreement was invalid.
In Wallis Trading Inc v Air Tanzania Company Limited [2020] EWHC 339 (Comm) the lessee (Air Tanzania) made certain representations including that the lease was legal and valid, and that it had obtained all required authorisations and consents to enable it to enter into and perform the lease. Air Tanzania later argued that the lease was invalid because (among other things) it had failed to comply with Tanzanian public procurement laws.
The Consumer Credit (Disclosure of Information) Regulations 2010 have been amended so that references to “SECCI” (the Standard European Consumer Credit Information) are deleted – the documents shall now simply be known as the Pre-Contract Credit Information.
However, there is no substantive change to the contents of the document.
The High Court has held in School Facility Management Ltd and others v Governing Body of Christ the King College [2020] EWHC 1118 (Comm), among other findings, that a contract between a school and a construction company constituted a finance lease and was void because of the school’s lack of capacity under the Education Act 2002.
A constructive dismissal takes place when an employee resigns in response to a fundamental breach of contract on the part of the employer. A fundamental breach may, if it is serious enough, consist of a single act. It may also be made up of a number of more minor incidents culminating a ‘final straw’.
In Williams v Aderman Davies Church in Wales Primary School a teacher resigned and claimed constructive dismissal over the way in which the employer had handled a complex disciplinary case against him. He was concerned that evidence had been withheld and that this was part of a pattern of unfair treatment towards him and a failure take account of his mental health condition.
Only employees with two years’ continuous service have the right not to be unfairly dismissed. This qualifying period is measured to the day – so it is important to be clear about precisely when an employee started work.
In O’Sullivan v DSM Demolition Ltd, Mr O’Sullivan claimed unfair dismissal from his role as a Demolition Safety Supervisor. He said that he had been employed from 19 October 2015 to 21 October 2017. In replying to his claim however the employer said that his start date was 2nd November 2015. That was the date given on his written statement of terms and conditions. It was also consistent with the employer’s payroll records.
An Employment Tribunal has dismissed a claim that an employer discriminated against the only female member of its leadership team by talking about football all the time. In Liebenberg v DS Smith Packaging Ltd the employee argued that she was regarded as ‘not being one of the lads’ because she could not take part in their sporting discussions over boozy dinners.
The Tribunal did point out that the gender imbalance in the leadership team was ‘unacceptable’ – although that is not the same thing as ‘unlawful’ – but it rejected her claim.
One of the least often claimed grounds of discrimination is marriage and civil partnership. Prejudice against married people is hardly widespread and there are few circumstances in which an employer might treat an employee less favourably because they were married. The case of Gould v St Johns Downshire Hill demonstrates how difficult it is for an employee to make a successful claim of direct discrimination on the grounds of marriage.
The Transfer of Undertakings Regulations (known as TUPE) provide that an employee’s terms and conditions cannot be changed because of the transfer of their employment from one employer to another. It has been argued in the past that this provision only applies to negative changes and that actual improvements in terms and conditions can be valid even though a strict reading of the Regulations themselves suggests otherwise. The issue was tested in Fergusen & ors v Astrea Asset Management Ltd in which an asset management company lost the contract to manage a high-value area of real estate in Kensington and Mayfair belonging to the Abu Dhabi Royal Family.
An employer must be careful to avoid employing someone who does not have the right to work in the UK. Doing so knowingly is a criminal offence and inadvertently employing someone who is working illegally can lead to a civil penalty of up to £20,000 for an employer who has not carried out a proper documentation check.
At the same time it is important not to react too hastily in assuming that an employee’s permission to work has expired. A genuine but mistaken belief that an employee is not entitled to work in the UK can be a fair reason for dismissal, but the employer still needs to behave reasonably. Tribunals will understand that an employer needs to behave promptly, but that will not excuse a failure to examine the situation calmly and make proper enquiries – as the case of Sanha v Facilicom Cleaning Services Ltd shows.
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