Archive for June, 2007
By Sarah - Friday, June 29th, 2007
The Court of Appeal has ruled on another case involving restrictive covenants. Again, the case is fact sensitive but the Court held that a 12 month non-dealing restriction was reasonable having regard to the nature of the business and the seniority of the employee involved. You can read the full Judgment here
Restrictive covenants are always a tricky subject to deal with, as it is a question of interpretation and different in every case. Employers need to consider whether the restrictive covenants are protecting a legitimate business interest and ensure that they are drafted wide enough to protect them and not too wide to render them unenforceable. This is particularly the case with non-competition clauses as the Courts are less keen to restrict an employee’s right to work in a given market. As always there are exceptions but if in doubt when drafting your contracts seek specialist advice.
Posted in Breach of Contract | 1 comment »
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By Liam - Thursday, June 28th, 2007
Readers of this blog will be aware that the Transfer of Undertakings (Protection of Employment) Regulations 1981 were replaced for transfers on or after 6 April 2006 by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (see our Podcast on the subject).
Cases on the new Regulations are now starting to filter through the Tribunal system and this week saw the handing down of the first EAT judgment on the new insolvency provisions contained in regulation 8 of TUPE 2006. As one might expect for a TUPE case, the case is not light bed time reading.
Regulation 8 makes provision for parts of TUPE (relating to Unfair Dismissal) not to apply in full in the case of an insolvent transferor. Different types of insolvency are treated slightly differently, depending on whether the insolvency is with a view to the liquidation of assets. However, the two sets of rules for the two different types of insolvency have one thing in common. For either of them to apply, the Transfer must occur after the insolvency practitioner is appointed to act in the capacity of insolvency practitioner (IP) (as distinct from being involved with a view to being appointed in the capacity of IP at a later date).
The transfer must also occur after insolvency proceedings are instituted. Proceedings are instituted for the purposes of TUPE at the same time as they are instituted for the purposes of the statutory insolvency procedures themselves.
If the Transfer pre-dates the appointment of the IP, or pre-dates the institution of insolvency proceedings, regulation 8 does not kick in and therefore TUPE applies in full. If TUPE applies in full, the Transferor takes on all liabilities post transfer and the Secretary of State is not responsible for any payments.
Posted in TUPE | 1 comment »
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By Sarah - Wednesday, June 27th, 2007
When training management of employer clients on discrimination, there are many things that come as a surprise to managers. One such thing is that an employee could join them as a Respondent since they were the perpretator of the discrimination as well as bringing the Claim against the Company who would be vicariously liable for their actions. In fact nothing guarantees a more alert audience than at that particular time!
Earlier this month I was carrying out this training for one client and was asked well does that really happen? I answered rarely and not frequently in the Claims I deal with. Often the Company is a better bet although it is still a risk for the employee and they shoudl modify their behaviour accordingly. I notice on the EAT website today there is one such case where a Fire Master employed by a Fire Board was joined by the Claimant to the Board in a claim for sex discrimination. The case is a Scottish one but shows this can happen.
At a pre-hearing review the Tribunal refused his motion to exclude him from the Claim as an individual respondent. He appealed but this was not upheld, as the Claimant had set out an arguable case for sex discrimination against him. You can read more here
Posted in Sex/Race Discrimination | No comments »
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By Sarah - Tuesday, June 26th, 2007
It is the countdown to stubbing out that cigarette for good. In 5 days time on the 1st July 2007 smoking will be banned from all public places. We have heard of reports from clients of bike shelters loosing two of their sides to turn them into smoking shelters and other clients who have gone for an outright ban.
If you have not already begun to plan for the ban - you need to act quickly. Free guidance is available from most local councils since they will be the ones enforcing the law next week. Employers may also want to consider making the offence of smoking on site Gross Misconduct in their policies given the penalties involved for a violation of the law. Employers may also want to consider whether they want to have a policy for helping staff kick the habit. This is in addition to the legal requirement concerning signs and any smoking roooms/shelters.
For those of us that do not smoke we cannot wait until Sunday when we can go to the pub without passive smoking. Smokers have one more Saturday night on the town and workers in pubs and restaurants, where smoking is still permitted, have only a few more days before the workers can be smoke free too! As the law comes into force on 1st July 2007 it will be interesting to see what will happen with venues that open beyond midnight. Will they implement it suddenly at 12.01am or will they allow smoking until they open for business on the 1st July?
Either way no doubt the news will be dominated next week with smoking ban stories. Have your say on the smoking ban and the effect on your workplace on this site.
Posted in Health and Safety | 6 comments »
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By Philip - Monday, June 25th, 2007
We had a number of comments last week following my post about cvs.
It really is very simple. It is a matter of integrity and honesty. If you lie on your cv, what else have you been dishonest about?
In my years advising employers, you usually find patterns of behaviour. An employee who has been found fiddling his expenses, will usually have been fiddling them on a regular basis and not been caught. Similarly if you check that person’s cv or application form, there are usually dishonest omissions or inaccuracies on it.
If you think the ends justify the means on your cv, you will not think twice about fiddling your expenses. That’s why each issue is gross misconduct. This case illustrates the point well. Dishonest on his application form, dishonest at work.
I believe in this particular case , the fact that he was caught led to him being severely stressed, although he was later acquitted of a murder charge. Obtaining a job using false information on an application form can amount to a criminal offence. It’s as simple as that.
Posted in Miscellaneous | No comments »
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By Liam - Monday, June 25th, 2007
Those who read regularly this blog, will know that PJH Law have developed an e-learning course called Dignity at Work, designed to train employees as to their legal (and moral) obligations towards equal opportunities and non-discrimination and help employers comply with their obligations to implement policies and provide training on this subject.
We have posted a couple of times recently about the BBC TV show “The Apprentice” (see Recruitment the Apprentice Style - What not to say and Sex Discrimination in Recruitment). It would now appear that we are not the only ones who have questioned some of the selection process (particularly selection taking in to account age and sex) employed by Sir Alan Sugar in the series. The observant folk at the Lawyer (believe it or not a publication aimed at Lawyers) have also made similar comments http://www.thelawyer.com/cgi-bin/item.cgi?id=126654&d=11&h=24&f=23.
Who thinks Sir Alan should sit the Dignity at Work course? Please post your views using the comments function below!
Posted in Age Discrimination, Sex/Race Discrimination | No comments »
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By Liam - Friday, June 22nd, 2007
The Court of Appeal has handed down its judgment in Charles Sandu v Jan De Rijk Transport Limited. Mr Sandu was called to a meeting, at which he was told “Your contract, we are going to finish it”. The rest of the meeting was spent discussing severance terms, which were agreed and Mr Sandu resigned. However, where the employer slipped up was in not getting Mr Sandu to sign a Compromise Agreement as Mr Sandu went on to present a complaint of Unfair Dismissal to an Employment Tribunal.
The Employment Tribunal and the EAT said that he had resigned and therefore could not claim unfair dismissal. The Court of Appeal overuled these decisions and held that he had been dismissed. The Court of Appeal indicated their conclusion may have been different had the employee been given more time to consider the matter and to take legal advice.
The lessons to be learned here are firstly, do not tell the employee he is going to be dismissed. Instead tell the employee that you have an issue (and explain whatever that issue is) and tell him you will either go through a procedure to address that issue, or alternatively, he can choose to part company on amicable terms with a severence package. Then give the employee a chance to consider the matter and seek advice if he wishes before resigning (or ideally sending him off with a compromise agreement) - don’t call him to a surprise meeting, tell him he is to be dismissed and get him to resign all in the same meeting!
Posted in Unfair Dismissal | No comments »
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By Liam - Thursday, June 21st, 2007
Readers may recall a case that hit the headlines in the news earlier this year concerning a teacher who was told she could not wear the hijab in school classrooms while teaching children as it inhibited non verbal communication. The case was decided at the EAT and the decision is on their website AZMI v KIRKLEES METROPOLITAN BOROUGH COUNCIL. In short, the EAT ruled that although banning garments that cover the face was indirect discrimination, the reason for the policy (not inhibiting non verbal communication) was a proportionate means of achieving a legitimate aim. The discrimination was therefore lawful due to the legitimate aim defence. It is also worth noting that the employer helped themselves by investigating in some detail whether the wearing of the hijab was a real issue and by allowing her to wear it when she was not working with children.
Aziz did however receive an award of £1,100.00 (£1000.00 increased by 10% because of the employer’s failure to deal with her grievance) because the Tribunal upheld her complaint about victimisation. This is a reminder that employees do not have to have to win their main tribunal claim to claim victimisation. Making a claim that they believe to be valid is sufficient even if the Tribunal on the day decides against the employee.
Posted in Religion or Belief Discrimination, Statutory Procedures | No comments »
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By Sarah - Wednesday, June 20th, 2007
What does Dignity at Work actually mean? Well it can mean a number of different things to different people. A couple of examples are treating others how you would like to be treated and treating others with respect. Most cases of a violation of someone’s dignity involve some form of bullying and harassment, which is often related to sex/race/age/religious belief or sexual orientation. By far the biggest cause we see in our day to day work is sex discrimination although age discrimination is now starting to creep into our work since the inception of the Age Discrimination laws last October 2006.
For those of you who missed our Podcast on the new laws this is still available on under Podcasts on our site. As a firm we value Dignity at Work and train our clients and their teams on Dignity at Work. Many companies have a Dignity at Work or Equal Opportunities policy but how many actually live and breathe Dignity at Work. To me the answer is not many.
When I am carrying out employment law training to clients and their teams the most controversal subject is always discrimination. Even where companies have a policy, many employees have no comprehension as to the fact that their “pet names” for people or their “jokes” could cause offence. It comes as even more of a shock to them when I tell them that not only can the Company be vicariously liable for their actions as employees, but they could also be personally liable for their actions. Another cause of shock is that it is the perception of the victim not the intentions of the perpetrator that are revelant.
The hope is that they come away from the training with a better understanding of employment law but also about the effects their actions can have on others. These clients understand that having a policy is not enough, their staff need training around the policy subject in order to promote a culture of “Dignity at Work”. Some clients opt for our group training which is bespoke to them and others (in increasing numbers) are turning to our e-learning package Dignity at Work. For more information on your options visit our training and e-learning sections to the right of the Blog.
The importance of the subject is shown by the formation of the Dignity at Work Partnership between the DTI and Amicus to try to tackle the problem of bullying and harassment. Organisations can sign up to the policy and follow in the footsteps of BT and Royal Mail who have already signed up. More information can be found here
Posted in Age Discrimination, Disability Discrimination, Religion or Belief Discrimination, Sex/Race Discrimination | No comments »
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By Liam - Tuesday, June 19th, 2007
Following the changes to Maternity rights in April (see our podcast here, and blog posts here), ACAS have now updated their guidance on the subject. The guidance can be found here.
Posted in Maternity | No comments »
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