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Snow policies and working from home

Hello, we apologise for not sending a case law update this week. Unfortunately there have not been any judgments that easily transfer into practical advice yet this year

However, we would like to remind you about a piece we ran this time last year about severe weather policies. Last year it wasn’t needed however this year the weather has caused disruptions.

Transport systems and communication networks are often the worst hit sectors of infrastructure hit during severe weather so any employee who can work remotely should as they may be more productive owing to travel difficulties.

Finally, in such cold weathers employers should ensure the working environment is in keeping with the Health and Safety Executive guidelines of 16′C for sedentary roles and 13′C for more active work.

To compensate for no case law this week we have devised a simple song for snow policies -

Oh  the weather outside is frightful and remote access is so delightful. If all the roads are closed, work from home, work from home, work from home!

Posted: Jan 13, 2017 by admin in E Learning

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Snow Policy Advice

January is usually a month where snow disrupts business, the snow over Christmas may not be the only snow this winter and icy roads can often cause commuting difficulties, school and business closures and even disrupt phone and broadband signal.

If you are an employer that could be affected by heavy snow or have employees who may struggle to commute by train/car due to snow then it may be wise implementing a policy on what to do if attendance is difficult due to snow.

You never know hell might freeze over so having this policy will hopefully mean snow will cause as little disruption as possible. If you need or would like a snow policy please email us.

Posted: Jan 13, 2017 by admin in E Learning


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An Employment Law Review of 2016

Season’s greetings to you and welcome to our final newsletter of the year. Last week’s case law update was an ECJ case about fixed term contracts. We would also like to highlight our Christmas FAQs for anyone who hasn’t already read them. As it is the final update of 2016 we thought we would make it a bumper edition.

Review of the year 

Don’t worry this isn’t just some schedule filler with input from Z list celebs and narration by Robert Webb! This year has been awful(ly busy), between constitutional crisis, far right resurgence, Trump, Brexit, Harambe, problems in Syria and practically all the best celebrities dying it is easy to forget that some important things have happened in employment law too.


Pop culture may have lost half its influencers in this month, but, like most years, not an awful lot happened in terms of employment law in January. Employees gained the right to bring claims against exclusivity clauses in zero hours contracts and a key case on the role of HR in disciplinary proceedings settled. Elsewhere, future issues such as the junior doctors strike and Sports Direct working conditions began to surface.


In February, Mr Lock succeeded in his EAT holiday pay case against British Gas. It also saw Jeremy Hunt get a lot of bad press for his handling of the junior doctors strike. Finally, a settlement was reached in Jeremy Clarkson steakgate saga and there was also an interesting tax judgment for settlement agreements.


The Gender Pay regulations were published in March and we will look at the latest update on that in a separate feature. March was also the month where football and employment law crossed paths for all the wrong reasons, with Newcastle, Sunderland and Chelsea all having problems. Lastly, there was an important case involving childcare vouchers and salary sacrifice.


As always there were lots of changes in April, including the introduction of the Living Wage, freezing sick and maternity pay rates and the Immigration Bill. Shared Parental Leave celebrated its 1st birthday and take up was low, something that remains the same to this day.


The Trade Union Act 2016 was passed and in case law there seemed to be a relaxed attitude towards Early Conciliation. Elsewhere PwC got in trouble over some high heels and British Cycling made news for the wrong reasons following revelations about a culture of discrimination and bullying. Finally, the Man Utd bomb scare made us examine one off mistakes that were serious enough to warrant dismissal.


Brexit happened. Whilst we still have not triggered Art 50, there are some likely impacts for as and when we do leave the EU. In the meantime, avoid conflict on this topic by taking a leaf out of Basil Fawlty’s book – Don’t mention the Brexit, I mentioned it once, but I think I got away with it! In other but equally as depressing news Mike Ashley was in hot water due to conditions at Sport’s Direct and the victims of Modern Slavery could now be awarded compensation.


A fairly quiet month. The Sports Direct scandal was tip of the iceberg for the gig economy, which is now under review, and former employees of Uber began, and ultimately won, a case against the Taxi app.


A report into Muslim women in the workplace found that they often suffer a triple penalty due to their race, religion and gender. The gig economy unraveled even further as Deliveroo workers went on strike. Byron Burger divided opinion with its honey trap to catch illegal workers and in case law news there were two very interesting judgments about whether or not PCPs were discriminatory.


A fairly busy month. Modern Slavery statements for eligible businesses needed to be published, the Apprenticeship Levy was announced, ACAS released guidance for tattoos and there was a key case to decide how the without prejudice rule interacted with protected conversations.


Lock v British Gas had another judgment handed down from the Court of Appeal. There was a first ET case on Shared Parental Leave gender equality, whilst not binding it is indicative to any future cases.  In other news, Matching Models caused controversy with a rather bizarre job advert.


The Autumn Statement meant several changes to employment law, including raised sick pay rates, scrapping salary sacrifice and ending tax exemption status for employee shareholders. Uber lost its case on the employment status of its drivers and there was also an interesting case about employees taking rest breaks.


Hooray, you’ve reached the end, of sorts, as December’s news is below.

Posted: Dec 21, 2016 by admin in Unfair Dismissal

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Gender Pay Gap Reporting – Latest Timeline

The latest timeframe has been announced for gender pay gap reporting. From 6 April 2017 the Equality Act 2010 (Gender Pay Gap Information) Regulations will come into force which will require all private or voluntary sector employers with 250 or more employees to publish gender pay data on their website.

Companies of that size who pay bonuses should have already started collecting data from April 2016 as the 2017 bonus period will stretch back that far.

By 4 April 2018, eligible employers should publish the data on their website and onto the Governments reporting website. No commentary is required, however, we would recommend that employers do this as it will explain the data to both employees and the general public. It should also be an opportunity to blow your own trumpet about how your gap is non-existent in comparison to competitors.

In the meantime, we suggest doing a dummy test on your current gender pay data. This would allow time to address any gaps or investigate why there may be a legitimate gap in the pay structure. To do this we would advise that employers factor in other data such as the historical and current gender profile of the company. Anyone who needs advice on this should contact us.

Posted: Dec 21, 2016 by admin in Unfair Dismissal

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Shared Parental Leave – Latest Statistics

A survey by CIPD has found that just 5% of fathers and 8% of mothers have opted to take shared parental leave since it was introduced 18 months ago.  We previously discussed why take up was so low and this survey added it may also be because free childcare is only applicable to children aged 3 and over. The survey also found that over a quarter (27%) of employers felt extending SPL to grandparents was a good idea.

Posted: Dec 21, 2016 by admin in Unfair Dismissal

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JD Sports – Worse conditions than Sport’s Direct

Over the past 12 months Sports Direct has deserved all the flak it received for the atrocious conditions reported in its warehouses. However, unfortunately it seems it isn’t the only sportswear brand that treats its staff terribly.

In a recent newspaper report, it was found that staff at JD Sports were threatened with dismissal if they sat down once during a twelve-hour shift, shift patterns and waiting times meant staff were effectively paid less than the minimum wage and one worker was even quoted as saying she would rather work at Sports Direct!

This news comes at a time when the companies profit has risen by 66% and in light of several controversies surrounding companies that allow staff to work in inhumane conditions. Unfortunately, 2016 has been a year where poor working conditions have been common place. Hopefully the fact these issues have been uncovered means something can be done to address the issue in 2017.

Posted: Dec 21, 2016 by admin in Unfair Dismissal

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PJH Law News – Christmas Message

First of all, a bit of housekeeping. Over the Christmas period we will be shut between 5.00pm on Wednesday 21st December 2016 until 8.30 am on Tuesday 3rd January 2017. Although contact is available via mobile phones in the event of an emergency.

As it is the season of goodwill we would like to raise awareness for a good cause we have given to this Christmas, instead of client gifts. Stamford Foodbank is a local charity that provides essential food for those in desperate need. Anyone who would also like to donate can do so here.

Finally, from everyone at PJH Law we would like to take this opportunity to thank all of our clients, both old and new, for their business and loyalty. We would also like to wish all readers, clients, associates and colleagues a very Merry Christmas and a Happy New Year.

Posted: Dec 21, 2016 by admin in Unfair Dismissal

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Lόpez v Servicio Madrileño de Salud – Is an employer offering repeated fixed term contracts instead of a permanent contract in contravention with EU Law?

Good morning and welcome back to your weekly Case Law Update. Last week we looked at vicarious liability, Christmas parties and mitigation of losses. This week we will be looking at fixed term contracts.

To mix things up, today’s case is a European Court of Justice (ECJ) judgment. The ECJ decides cases bought by individuals of member states who want to challenge any UK judgment (or member state judgment) relating to domestic law emanating from an EU Directive. In this case the Claimant wanted to challenge the legality of Spanish legislation that allowed employers to renew fixed term contracts to cover a permanent position.

Fixed terms contracts are when an employee has an employment contract with the company they work for AND their contract ends on a particular date, or, after the completion of a specific project. In the UK fixed term contracts are partly governed by the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 which itself is an implantation of the EU Framework agreement on fixed-term contracts in 1999.

Under the regulations, employers must treat fixed term employees no less favourably than permanent staff and fixed term employees with more than two years’ service have the same redundancy rights as permanent staff. Finally, if a fixed term employee reaches four years’ service they are often entitled to a permanent contract.

Therefore, today’s question is:

Is an employer offering repeated fixed term contracts instead of a permanent contract in contravention with EU Law?

Ms Lopez, the Claimant, was employed as a Nurse by Servicio Madrileño de Salud, the Respondent. Her role was to provide services of a temporary and auxiliary nature and the initial fixed term contract was to last 6 months.

However, this contract was extended numerous times and she eventually had over four years of continuous service. The Spanish government imposed the termination of the employment of occasional staff at the end of the fixed term, including where the employee was reappointed. This would mean, amongst other things, fixed term staff would lose their continuous service.

The Claimant was told that her employment would be terminated and she would be re-appointed. The Claimant appealed to the Spanish court arguing that her successive contract renewals were not intended to meet a temporary or auxiliary role.

The Spanish Court referred the case to the ECJ to decide whether the legislation conflicted with the overriding objective of the Framework Agreement 1999. The ECJ agreed with the Claimant and held that the amount of renewals did not suggest the work was temporary. It added that renewing the contract so often created an unnecessary level of uncertainty for the Claimant.

The takeaway point:

Yes, the overall objective for fixed term contracts is; do not use fixed-term contracts for permanent needs. This judgment, whilst not hugely applicable to UK employers because of provisions in the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, is nonetheless a reminder, particularly for those involved in healthcare, not to overuse/abuse fixed term contracts.

Likewise, any employer that operates in other EU member states – such as Spain – needs to be aware that this judgment could result in the law towards fixed term contracts changing.

Posted: Dec 16, 2016 by admin in Employment Tribunal

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Bellman v Northampton Recruitment Ltd – Can an employer be vicariously liable for an assault committed by an employee after its Christmas party has finished?

Hello and welcome back to our weekly Case Law Update. Last week’s newsletter had numerous features, including a breakdown of the Autumn Statement which is worth a read.

This week, in the spirit of Christmas, we have decided to give you two cases (we will let you decide whether that spirit is generosity or forced bonhomie). The first of these will be the seasonal topic of Christmas parties and the second is a constructive dismissal and mitigation of losses case.

Last year we did a dedicated feature on regular problems Clients are faced with during Christmas Party season. However, this case covers an issue we did not really cover, vicarious liability.  We must warn you that this case, despite being about Christmas parties, is not at all festive and contains descriptions of horrific injuries.

In an employment context, vicarious liability is when an employer is liable for the acts or omissions of its employees provided the actions or omissions were during the course of employment. The test to prove liability is twofold:

1. Is the relationship between the primary wrongdoer and the party alleged to be liable capable of giving rise to vicarious liability?

2. Is there a sufficiently close connection between the actions/omissions and the employment insofar that it will be fair and just to hold the employer vicariously liable?

Instances when an employer can be vicariously liable include acts of bullying, harassment, discrimination, libel and violence. Furthermore, the employer can still be liable for the acts even if the employee has left since the act took place.

In light of that, today’s question is:

Can an employer be vicariously liable for an assault committed by an employee after its Christmas party has finished?

Mr Bellmen, the Claimant, was employed by Northampton Recruitment Ltd, the Respondent, as a Sales Manager. Mr Major, the Managing Director of the Respondent, had been friends with the Claimant since childhood.

The Respondent’s Christmas party was held at a local golf course. It was by all means an ordinary party with alcohol being consumed by many guests. After the party finished many guests, including the Claimant and Mr Major, went on to an impromptu after party at the Hilton Hotel, where many guests had planned to stay the night.

At 3am, well after the Christmas party had ended, Mr Major assaulted the Claimant following conversations about sport and then an alleged heated discussion about work. He punched him twice in the head and this caused the Claimant to fall and hit his head on the hotel’s marble floor.

The Claimant was taken to A&E and a scan revealed he had suffered a fractured skull, frontal lobe contusion, haemorrhaging and extradural bleeding! To relieve these injuries, he required two operations, including the squirm inducing decompressive craniectomy (thankfully there will not be a bespoke cartoon for this).

As a result of these injuries the Claimant is now brain damaged and suffers from deficits in verbal reasoning, verbal memory and word finding as well as speech and language impairments. He is a protected party who lacks the capacity to manage his affairs and due to these injuries is unlikely to ever return to any paid employment or his pre-injury levels of functioning.

The Claimant decided to sue the Respondent rather than Mr Major, partly due to not wanting to ruin Mr Major’s life, an act that unfortunately was not reciprocated by Mr Major when he decided to punch him.

The Judge however said the Respondent was not liable. Following the above test laid out, he held that the conversation was on social or sporting topics and no objective observer would have seen any connection at all between the Claimant, Mr Major and the Respondent. Furthermore, the assault took place at 3am, well after the original Christmas party had ended, and was attended completely voluntarily by the Claimant and Mr Major, meaning the incident was not connected to their employer.

The takeaway point:

No, in this case the Respondent was not liable because the incident took place long after the Respondent’s party had ended and it was an unplanned after-event. However, had this incident occurred at the party, or, a planned after party, then the Respondent would most likely have been liable. Likewise had signs of this incident become apparent during the Christmas party then the employer may also have been liable.

This case also serves as a reminder that serious injuries can occur when alcohol is flowing and therefore it may be wise to follow our previous advice about staff Christmas parties and issue a conduct statement about what you expect even when the booze is flowing. If you would like any further advice on this topic, please contact us.

Posted: Dec 9, 2016 by admin in Unfair Dismissal

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Wright v Silverline Care Caledonia Ltd – Can a Claimant who has been found to be unfairly constructively dismissed be denied compensation for declining an offer of re-employment from the Respondent?

Our next case is thankfully not as gruesome as the first and concerns constructive dismissal and mitigation of losses.

Under Section 123(4) Employment Rights Act 1996, Claimants have a duty to mitigate their losses in unfair dismissal claims and a failure to do so will reduce the compensatory award. This includes looking for work, not rejecting work opportunities offered, and, if no work is forthcoming, applying for relevant benefits.

Therefore, the question from this case is:

Can a Claimant who has been found to be unfairly constructively dismissed be denied compensation for declining an offer of re-employment from the Respondent?

Mr Wright, the Claimant, resigned from his position at Silverline Care Caledonia Ltd, the Respondent, due to a breach of the implied term of trust and confidence following the Respondent ignoring his concerns about, and, failing to consult him on, how management restructuring would impact patient care.

Upon his resignation, the Claimant also raised a grievance about this issue. The Respondent upheld the grievance, decided against the management restructuring and offered him his old job back. The Claimant rejected this because, despite having his grievance upheld, he still felt failing to consult him the restructuring, and, ignoring his concerns, meant the implied term of trust and confidence was still breached and he felt uncomfortable about working there again.

The Claimant initiated a constructive dismissal claim and at tribunal the ET held he had been constructively dismissed. However, the ET did not grant a compensatory award because he had failed to mitigate his losses by refusing an offer of re-employment from the Respondent. The Claimant appealed and the EAT allowed the appeal and remitted it to a fresh remedy hearing.

The takeaway point:

The EAT was unsure whether it was perverse to expect an employee whose term of implied trust and confidence had been breached to return to work for the employer who had breached it. Whilst it looks likely the Claimant will be awarded a compensatory award there is a chance the remedy hearing will agree with the ET.

However, it would seem that the Claimant here will be awarded money and if so it would therefore not be considered negligible mitigation of losses for a Claimant to reject an offer of re-employment.

Posted: Dec 9, 2016 by admin in Employment Tribunal, Unfair Dismissal

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