It has been an incredibly busy period in the area of employment law over the past couple of years. Not only have we had the daily releases of judgments and decisions from the Tribunals and Courts, we have also seen changes brought in from the recommendations of The Good Work Plan 2020, and the impact of the pandemic. This in itself has brought in seismic changes to working arrangements, with the rise of flexible working arrangements, and even the future possibility of a four-day working week!
Contracts of Employment
In this ever changing environment it is an ideal time to have your employment contracts completely up to date. The benefit of doing so is that they set out agreed working arrangements but they can also protect a business by reducing the scope for disputes, and give the business a better basis for taking action if ever it is needed.
It is with this in mind that we are offering a FREE review of your employment contracts to identify any potential issues and if improvements to the contract are needed. If so, we can help with any alterations, and any work needed would be offered at a reduced rate as an existing client of Bermans.
The Women and Equalities Committee survey in 2021 found that that nearly a third of women (31%) had missed work because of menopausal symptoms.
According to the NHS, the menopause is “when a woman stops having periods and is no longer able to get pregnant naturally.”
Unfortunately for those affected several side effects can accompany the physical change, this can include hot flushes, fatigue, memory loss, difficulty in concentrating, headaches, night sweats, low mood/anxiety, and insomnia.
The Government has announced that it is committed to a long-term wholesale reform of the Consumer Credit regime.
Whilst welcoming this announcement, it is rather difficult to see how there was any alternative.
Much of the legislation and regulatory framework around Consumer Credit in the UK has intimate links with the European Consumer Credit regime, which goes some way to explaining the inordinate complexity of the current framework, which is comprised of numerous layers of primary and secondary legislation, including the Consumer Credit Act 1974 (“CCA”), detailed Regulations made under it and the FCA Handbook.
Normally in employment tribunal cases, the tribunal will only make decisions about issues that are raised in the pleadings (the ET1 and ET3) and/or those agreed between the parties during the case management process. The recent case of Osinuga v BPP University showed that there are exceptions to this general rule. The employee brought claims for unfair dismissal and discrimination. She said she had been targeted for redundancy due to complaints she had made about her pay. At a preliminary hearing, the tribunal identified various issues for the tribunal to decide, including the reason for dismissal. The list of issues did not include a complaint by the employee about the lack of any fair redundancy procedure (fair consultation, selection and a search for suitable alternative employment).
If an employee wins an unfair dismissal claim, the employment tribunal can award compensation that they consider to be ‘just and equitable’ bearing in mind the employee’s losses. In most cases, there is a statutory limit on the amount of compensation that can be awarded, currently £93,878 or 52 weeks’ pay, whichever is the lower. Section 124(5) Employment Rights Act 1996 says that the statutory cap should be applied after taking account of any payment made by the employer to the employee in respect of the claim. In Dafiaghor-Olomu v Community Integrated Care, the EAT has looked at how the statutory cap works in practice, with surprising consequences.
Discrimination arising from disability happens when an employer treats an employee unfavourably because of ‘something’ arising from their disability and the employer cannot justify the treatment as a proportionate way of achieving a legitimate business aim. In DWP v Boyers, the EAT examined a case where the employer had legitimate business aims but the actions they took to achieve them were found to be disproportionate.
Restrictive covenants are terms in contracts of employment which restrict the employee’s activities after employment has ended. They will be void – and unenforceable – for being in restraint of trade unless the employer can show it has a legitimate proprietary interest to protect and the clause goes no further than is reasonable to protect it. If an employer thinks that an employee has breached a restrictive covenant, they can apply for an interim injunction to stop the employee’s activities pending a full trial which will decide whether the clause is enforceable. The court will consider whether the employer has a strong case, whether damages (compensation) would be an adequate remedy, the ‘balance of convenience’ between the parties in relation to an injunction and whether the ‘status quo’ should be maintained pending a trial. In a recent case, the Court of Appeal has analysed the test which the court must apply when making decisions about interim injunctions.
An employee is constructively dismissed if the employer fundamentally breaches the contract of employment and the employee resigns in response. A breach of the implied term of trust and confidence will be a fundamental breach of contract. The test is an objective one – is the employer’s conduct likely to destroy or seriously damage the trust and confidence between employer and employee? A constructive dismissal can be created by a series of events as well as a one-off incident. If there is a series of incidents, which taken together amount to a breach of contract, the employee can resign in response to the last in the series, even if that in itself is not a fundamental breach of contract (though it cannot be utterly trivial). This is called the ‘last straw’ principle.
An employer should follow the Acas Code of Practice on disciplinary and grievance procedures when dealing with grievances or dismissing an employee for disciplinary reasons such as misconduct or poor performance. The Code does not apply to redundancy dismissals. If the employer unreasonably fails to follow the Acas Code, the employment tribunal can increase compensation by up to 25 per cent if it is ‘just and equitable’ to do so. In Rentplus v Coulson, the EAT looked at whether an uplift of 25 per cent could apply to a discriminatory dismissal that the employer had said was a redundancy dismissal.
Section 230(3)(b) ERA says that an individual will be a ‘worker’ if they work under a contract with the company and have agreed to personally perform some work. However, they won’t be a worker if they are running their own business and the company is a client or customer of that business. In Sejpal v Rodericks Dental, the EAT has looked at the worker status test and how it applies to a working relationship that is defined in the contractual paperwork as one of self-employment.
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It has been an incredibly busy period in the area of employment law over the past couple of years. Not only have we had the daily releases of judgments and decisions from the Tribunals and Courts, we have also seen changes brought in from the recommendations of The Good Work Plan 2020, and the impact of the pandemic. This in itself has brought in seismic changes to working arrangements, with the rise of flexible working arrangements, and even the future possibility of a four-day working week!
