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For an aggrieved unsuccessful bidder, bringing a procurement challenge requires fast action in circumstances where the bidder may not be able to point to each and every breach of the Public Contracts Regulations 2006, and is often acting with little more than a feeling that something was not quite right with the process.
This month we've had a couple of helpful judgments concerning whistleblowing. Both look at the topic of whether an employee had been subjected to a detriment because they had blown the whistle. Both of the cases highlight that employment tribunals can and should make distinctions between alleged protected disclosures themselves and the steps taken by the employer to deal with the disclosures and/or to manage the employee who has made them.
Voluntary ex-ante transparency (VEAT) notices can offer a big reduction in the timing of risk exposure in procurements, however a recent Advocate General's opinion on their use of to avoid the remedy of ineffectiveness has clarified the circumstances in which they will and will not have their intended effect.
Since our last update there have been a number of useful decisions providing guidance on the definitions found in the Housing Grants, Construction and Regeneration Act 1996 ("Construction Act") and how the Scheme for Construction Contracts ("Scheme") is to be interpreted. If nothing else this latest batch of cases illustrates the ways in which parties are continuing to seek to resist the enforcement of Decisions.
This edition reviews the Decisions that look at the procedural and technical aspects of adjudication.
Case law keeps coming thick and fast and this month has been no exception. One of the many interesting cases in this alert concerns covert recordings made by an employee of the private deliberations at her grievance and disciplinary hearings. The EAT decided that the evidence was admissible.
A number of legislative changes were made to employment law on 6 April 2014. One of these, ACAS early conciliation (EC), may turn out be nothing more than an administrative hurdle for prospective claimants, but where ACAS do get involved in negotiations a late change to the legislation means that prospective claimants will have to fill in a separate EC form in respect of each potential respondent. This means that if individuals are named as potential respondents in, for example, potential discrimination claims these individual employees will be called by ACAS about whether the claim can be settled. This late change makes it all the more important that all organisations put in place a structure for dealing with early conciliation and let their employees know what to do if they are called by ACAS. All the April changes are outlined below.
Welcome to DAC Beachcroft's Budget 2014 Alert.
Our analysis as to how today's budget affects the business community is below. We think the three changes which will make the most amount of splash are the helpful relaxation and extension of the ISA rules, the temporary doubling of the annual investment allowance and what according to George Osborne is "the most far-reaching reform to the taxation of pensions since the regime was introduced in 1921".
In December last year, the government issued a consultation on zero hours employment contracts. The consultation followed months of political debate concerning the extent of their use and possible abuse by employers.
Welcome to our Inaugural Newsletter! We are pleased to introduce our inaugural TMT Info Law Adviser Newsletter. This is a monthly review of information law updates and industry related news specific to the Telecoms, Media and Technology sector which we hope will be a valuable resource for your organisation.
Last week an early day motion sponsored by Ed Miliband was tabled in Parliament, calling for the annulment of the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014. The early day motion was tabled in Parliament the day before the Labour party's special conference to discuss its membership and its relationship with the unions.
The motion has been signed by 17 Members of Parliament. Very few early day motions are actually debated however - they tend to be a way of drawing attention to an event or cause. Additionally, since the Labour Party does not hold a majority in the House of Commons, the motion is unlikely to pass.
This month we have wide ranging cases to report on from illegal working to post TUPE harmonisation. One particularly interesting case concerns whether an employer could rely on its wording in a contract to dismiss summarily for theft, which was gross misconduct for unfair dismissal purposes. The EAT found they could not and the employee was wrongfully dismissed because the "theft" had not been deliberate. On the subject of contractual wording we've also had a case from the EAT where, because a contract was not sufficiently clear on what happened to accrued flexi-time on termination of employment, an employee ended up not being paid for over 1000 hours of work. We also set out some of the legislative changes happening on 6 April in order that you can plan ahead.
might be grey and dull outside but it's been lively in employment law this month. We've already alerted you to the fact that the Woolworths collective redundancy case, which looks at what constitutes an establishment for the purposes of collective consultation, has been referred to the ECJ. On the issue of restructuring, the new Collective Redundancies and TUPE Regulations largely came into force on Friday. While not as far reaching as we first thought there are some significant changes which we highlight below. Cases on protecting an employers business are coming thick and fast at the moment. We highlight one case below in which the High Court upheld the post termination restrictive covenants despite the fact that some of the information they were trying to protect was available on social media sites.
Welcome to 2014 and to the first edition of DAC Beachcroft's regular update on legal issues which affect Contractors. We intend to cover all areas of law which we consider to be relevant e.g. Contract, Tort, Employment, Health & Safety, Regulatory, Procurement, Insurance, Insolvency and Dispute Resolution.
Last summer the Employment Appeal Tribunal (EAT) decision in USDAW v Ethel Austin Ltd (in administration); USDAW and anor etc - the Woolworths case - sent shockwaves through the legal and HR professions when it decided that the words “at one establishment” are to be disregarded for the purposes of any collective redundancy involving 20 or more employees.
This case was appealed to the Court of Appeal who heard it yesterday. However, before making a decision on the substance of the appeal, the Court has decided to refer a point to the Court of Justice for the European Union (CJEU) on the interpretation of the European Directive which governs this area. The issue in the Woolworths case was when the duty to collectively consult was triggered. The employer said that it is triggered when 20 employees are at risk of redundancy in any single establishment operated by it. The employees said that the 20 employee trigger relates to the total number of at-risk employees in all the employer's establishments. The EAT agreed with the employees that the correct test was whether the 20 employee total was triggered by the cumulative total of all the establishments.
Immigration is high on the political agenda. As part of the Government's push to reduce net migration, new legislation is coming in which makes it harder for illegal workers to slip through the net and which places tougher measures on employers who flout the regulations.
Welcome to the Second Edition of DAC Beachcroft's Adjudication Adviser. As reported in our first edition there have been a number of useful decisions issued by the Technology and Construction Court ("TCC"). Importantly how insolvency events impact upon the adjudication process.
The Judgments below again illustrate the Court's willingness to enforce decisions, where arguably adjudicators have apparently overstepped the “mark” by deciding issues that allegedly were not presented to them by the parties. However it is notable from recent Judgments the various difficulties adjudicators may face when dealing with disputes within 28 days (as extended) and the fine line that they have to tread. It again illustrates that all parties in adjudications should try to keep the issues as simple and as well defined as possible. This edition looks again at insolvency issues and decisions relating to adjudicators jurisdiction.
In our final edition for this year we are pleased to be able to spread some pre-Christmas cheer. We include a number of cases which are helpful for employers, including the decision in John McCririck v Channel 4, which provides some guidance on how to successfully resist an age discrimination claim; and a case where the employer’s imposition of a period of 12 months' garden leave has been upheld by the court. We also bring you a case on unlawful deductions from wages – an employer has successfully defended the claim by showing that their overpayments recovery clause was not a penalty clause. Finally, we have a couple of TUPE cases, one on that old chestnut, service provision change, and another on what can constitute an "ETO" reason. If you haven't already done so we would also encourage you to check out our recent update on changes to TUPE.
The clocks may have gone back but this month we have some cases that we hope will shed some light on tricky issues for employers. We bring you two cases on age discrimination: one regarding benefits and the other on voluntary redundancy payments. There are two disability discrimination cases, the first an interesting decision regarding the frustration of an employee's contract of employment, the other on whether providing counselling to a disabled employee is a reasonable adjustment. We also bring you a case regarding the enforcement of a post employment non-solicitation clause. Finally, we look at a decision regarding a redundancy situation that reinforces the importance of ensuring up-to-date job descriptions are provided to all candidates for a new post following a reorganisation.
We pick up several important developments in this alert. We also consider a couple of cases which look at the importance of adhering to your internal procedures, as well as a case which looks at what will count as a reasonable refusal of alternative employment in a redundancy situation, and yet another case on holiday pay.
In this Alert we provide you with the details of the new RIBA Plan of Work and the updated NEC3 contracts, with the ongoing progress of Building Information Modelling featuring in both. We also cover a variety of news and topics that affect you as NHS procurers of construction work, including how The Construction Products Regulations 2013 will impact you and recent cases on whether the right to the swift adjudication of disputes applies to rights under collateral warranties and also on how good faith obligations are interpreted.
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