The Summer update

Severance in restrictive covenants Earlier this year we ran a short seminar, 'Restrictive covenants in Employment Law: do you need them, making them work'. One topic was the blue pencil test, whereby courts remove offending words from a clause that would otherwise render it unenforceable. The Supreme Court has ruled on the correct test. In Tillman v Egon Zehnder Limited the Supreme Court held that a six-month non-compete clause was enforceable because the unenforceable part of the clause was...

Should you believe references?

Not without checking them. A recent survey into recruitment fraud audited the CVs of 5000 employees. Worryingly, 75% contained discrepancies, 20% had inflated job titles and 12% included false grades and qualifications. Some references were complete fiction. What should you do? Don't accept pre-written references. Always obtain references from referees directly and verify all academic and professional qualifications. If possible, only accept written references and avoid taking references by...

If you enhance maternity pay must you enhance shared parental pay?

If you enhance maternity pay must you enhance shared parental pay? The Court of Appeal said no in the latest instalment of Ali v Capita Customer Management Ltd; Chief Constable of Leicestershire Police v Hextall. When on paternity leave, Mr Ali was entitled to two weeks' full pay from Capita. Female employees could get 14 weeks' enhanced maternity pay. Mr Ali was eligible for shared parental leave, but he would only be paid at the statutory shared parental pay rate. Mr Ali clamed sex...

Should you always meet before issuing an improvement notice?

Yes said the EAT in Starling v Epsom & St Helier. Ms Starling, a nurse, was asked to switch on an incubator, but she became unwell and was taken to A and E before she could do so. She told a doctor about the incubator at the hospital the next day. The Trust issued an improvement notice, the equivalent of a first written warning, so she resigned. In upholding her claim of constructive unfair dismissal, the EAT criticised the Trust for not meeting Ms Starling and said, had they met her, she...

Summer wardobe in the workplace

Let's dress for summer At some point this year we will enjoy a week of good weather that we will call 'summer'. It will start at 9 am on a Monday and end whenever you take the barbecue out. You may want to relax your normal office dress code so that people are comfortable, but at the same time you don't want staff to appear as though they are auditioning for Love Island. Before summer arrives, remind people of your company's standards, for example, no beachwear, sheer clothing or flip flops....

June employment law updates

Are job applicants entitled to their interview notes? Yes, in this GDPR world, job applicants have the right to see notes of their interview if the notes are either transferred to computer or form part of a relevant filing system. For a manual system to be covered, there must be some structure to guide a searcher to specific information about a candidate. Interview notes filed in alphabetical order or chronologically would be covered by GDPR. So, what should you do? Decide how you will store...

Right to work in the UK and TUPE

If you employ someone who is subject to immigration control and lacks the right to work in the UK, you are liable for a civil penalty of up to £20,000 per worker. If you do it knowingly, you face an unlimited fine, up to six months in prison or both. I'm sure you already check the right to work for all prospective employees before they start, but what about people you acquire through TUPE? TUPE is silent on the obligations of the outgoing employer to carry out checks. The Home Office guidance...

Tribunal claims - what's the worst that could happen?

The number of employment tribunal claims continues to rise. According to the Ministry of Justice's statistics since fees were abolished two years ago, claims have gone up 150%. What's the worst that could happen? Occasionally, upon receiving a tribunal claim, a company may muse on the idea of ignoring it. 'What's the worst that could happen?' Now we have the answer. It could cost you around £3.5 million. Or £3,449,328,254 to be precise. That is the sum that the University of Southampton was...

Can diversity training cause discrimination rather than prevent it?

Can diversity training cause discrimination rather than prevent it? Yes, if not handled with care. As an employer you will generally be liable in law for any discriminatory actions perpetrated by your staff in the course of their employment. So, if a manager discriminates against one of their team, you may be left to foot the bill. You can minimise the risk of it happening and strengthen your defence against claims by implementing training on equality and diversity. In Georges v Pobl Group...

Is providing a car parking space a reasonable adjustment?

Yes in the case of Linsley v Commissioners for HM Revenue and Customs. In another defeat for HMRC, the EAT considered Mrs Linsley who joined the organisation in 2001. She had a disability, ulcerative colitis, which can manifest itself in an 'unpredictable, sudden and urgent need for a bowel movement'. Following medical advice, HMRC provided her with a dedicated car parking space but failed to do the same when Ms Linsley changed jobs and moved sites. A non-contractual policy gave priority to...

Lorraine Kelly is not employed by ITV

Your initial responses may be 'Yes she is' and 'So what?' Well, last month Ms Kelly defeated HMRC at an IR35 tax tribunal after successfully appealing a tax bill of £1.2 million. Yes, we raised an eyebrow too. HMRC claimed that despite ITV engaging with Albatel Ltd, a limited company owned by Ms Kelly and her husband, she was really an employee, who owed £900,000 income tax and £300,000 in National Insurance contributions. There are two Lorraines The court found that ITV did not engage...

February update: Brexit, free employee browsing and our upcoming seminar

Check your passports In the event of a ‘no deal’ Brexit on 29th March 2019, those with UK passports that expire in less than six months may run into difficulty when travelling between countries. The new rules state that after 29th March, you should have at least 6 months left on your passport from your date of arrival. If you have UK employees that travel to the EU for work, this could be problematic because they could be treated as ‘third country nationals’ after Brexit. If you leave it until...

Can you safely dismiss an employee who has permanent health insurance?

Many of you will operate schemes that provide long-term sickness or incapacity benefits, but what are the risks if you dismiss an employee for long-term incapacity where continued employment is required to remain in the scheme and use its benefits? In Awan v ICTS UK Ltd the EAT implied a term into a contract of employment that 'once an employee has become entitled to payment of disability income due under the long-term disability plan, the employer will not dismiss him on the grounds of his...

How to prevent people from pulling sickies

A recent study by Automatic Data Processing (ADP) revealed that 27% of UK employees thought it was acceptable to 'pull a sickie'; the European average is 21%. Fraudulent sickness absence is unacceptable. It costs you money by reducing your productivity and your profit. It also damages the morale of those left to pick up the slack. So, what should you do? Set clear rules Ensure that all your employees know when, how and to whom they should report their absence, what evidence they must provide...

What are the new employment law updates for this winter?

Regulations on executive pay ratio The Companies (Miscellaneous Reporting) Regulations 2018 (SI 2018/860) introduce new reporting requirements on certain companies. Quoted companies with more than 250 UK employees will be required to include certain pay ratios for the relevant financial year in the directors' remuneration report. The pay ratios compare the total annual remuneration of the CEO to UK employees whose pay and benefits are on the 25th, 50th and 75th percentiles. The reporting...

Winter Weather - what if your employees can't get to work?

Winter weather What should you do if an employee can't get to work? You could refuse to pay an employee who can't get to work because of severe weather, even if it's not their fault. However, what you can do and what you should do may differ. The cost of paying someone who can't make it in may be outweighed by the benefit in morale that you achieve by paying them for a snow day. Courts are increasingly willing to hold employers liable for acts by employees that are closely connected with the...

Will Employment tribunal fees return?

The number of single claims that employment tribunals received between April and June 2018 is up by 165% when compared with the same period in 2017, but there may be news that could reduce them. Will Employment tribunal fees return? The Ministry of Justice (MoJ) has announced that employment tribunal fees may be reintroduced. Permanent Secretary for the MoJ, Richard Heaton, predicted that the Government could strike a balance between increasing employment tribunal funding and ensuring that it...

Christmas is coming. Can you insist that people work overtime?

In the coming festive weeks, you’ll be enjoying your time off, entertaining your children, spending time with family and friends or just benefiting from the temporarily speedy daily commute.  But what about those who haven't booked holiday but need someone to look after their children.  Is it your problem as an employer? Dependants' leave during school holidays Childcare arrangements. All employees, regardless of their length of service, have a statutory right to take unpaid dependants' leave...

How should you deal with an employee who has been banned from driving?

A potentially fair reason to dismiss an employee is because you, the employer, would contravene the law if you continued to employ them.  The most common scenario in this category is where an employee has been disqualified from driving.  So, what should you consider?  How will it affect their work? Consider whether they could do their job effectively without driving.  Can they use public transport, or can their driving duties be allocated to another employee?  If driving is only an incidental...

Should voluntary overtime be included in holiday pay?

In principle, yes.  As we head off for our well-earned summer breaks, the Employment Appeal Tribunal (EAT) has taken its latest step towards settling what we should pay people when they take leave.  In  Flowers and others v East of England Ambulance Trust, it decided that voluntary overtime, when it is sufficiently regular and settled,  must be included in the calculation of holiday pay for ambulance workers.  The overarching principle is that holiday pay should correspond to a worker's normal...