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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.
It's back to school this week, but the tribunals and courts have had a busy August, and there's plenty to cover in this month's update. The cases have covered a diverse range of issues including how to approach sickness absence management for disabled employees, the importance of making any offer "subject to contract" until all negotiations are finalised and guidance on when enhanced redundancy terms become contractual through custom and practice. We have also covered the key points from the new Code of Practice for dealing with subject access requests under the Data Protection Act.
Welcome to the First Edition of DAC Beachcroft's Adjudication Adviser. Surprisingly there seems to be no end to the number of adjudication enforcement decisions being issued by the Technology and Construction Court ("TCC") which may have something to do with the current economic climate.
In light of the current economic conditions, the TCC has sought to narrow the rules that they will apply when considering whether to grant the stay of enforcement of an adjudicator's decisions based on an alleged insolvency. It is seemingly becoming more and more difficult to resist enforcement on the basis of alleged insolvency alone. A number of the recent cases illustrate that credit reports and the failure to provide management accounts will not be sufficient evidence to resist enforcement. The question therefore remains what is sufficient evidence of "insolvency" for the Court? We also report on a rare stay on enforcement, primarily due to a mistake by the adjudicator involved. However it is worth noting the lengths to which the Court will go to enforce decisions.
A number of important employment law developments have hit the press this month. As we reported last week, various changes to employment law and practice went live on 29 July 2013, including the controversial introduction of fees to the employment tribunal system. As an update, UNISON has been granted permission to proceed with its judicial review application against the introduction of fees. A full hearing will take place in October; the new fee regime will continue in the meantime.
We have also reported on two other landmark cases this month. The first was the EAT decision in USDAW v Ethel Austin Ltd (in administration) and another which confirmed that the words “at one establishment” are to be disregarded for the purposes of any collective redundancy involving 20 or more employees. The Secretary of State, having refused to be involved in the proceedings to date, has now applied for permission to appeal this decision. The second was the welcome decision for employers in Alemo-Herron and ors v Parkwood Leisure Ltd in which the European Court of Justice decided that it is contrary to European law for collective agreements negotiated and adopted after a TUPE transfer to bind a transferee.
This month, we discuss the “Woolworths” case, which rewrites the law on collective redundancy consultation, is probably the most surprising of the year so far, and has huge ramifications for multi-site employers embarking on redundancy exercises. We also look at new case law on victimisation, the use of surveillance evidence in disciplinary hearings, and the Court of Session’s view of what constitutes an “organised grouping” when it comes to TUPE. We've summed up the recent changes to whistleblowing laws and done a quick round-up of other recent and imminent changes, including the new pre-termination settlement discussion regime which, it has just been announced, is to come into force on 29 July.
After what feels like a long wait the Enterprise and Regulatory Reform Bill has finally become law and we can give you some firm dates of when the key reforms will come into force. We also bring you two new cases on redundancy which re-affirm that so long as a genuine redundancy situation has occurred, complicating factors relating to conduct and/or capability will not make a dismissal unfair. In addition we bring you another redundancy case on using existing employee representative bodies for the purposes of collective consultation. Finally the Government is consulting on how the fees remissions system will work when fees in the employment tribunal come in during the summer and the new Acas guide to collective consultations has also been published.
Welcome to the April edition of our international alerter, we hope those of you that were celebrating had an enjoyable Easter break. This month we lead with a joint article from our UK and Spanish offices examining the right to strike in these jurisdictions and from an international perspective, our German partner firm Luther Rechtsanwaltsgesellschaft highlights a significant change for organisations preparing for 2014 works council elections and Barry Reynolds from our Dublin office highlights additional ways to protect proprietary interests. We also provide a summary of the changes to UK immigration law that came into effect on 6 April 2013 and feature the first of a two part article outlining the immigration rules applicable to businesses wishing to enter the burgeoning Indian market.
This month we report on a number of cases which bring home the importance of following appropriate dismissal procedures, including a redundancy case which highlights the dangers of over reliance on competency assessments when carrying out selection. We also look at a disability case which confirms that obesity is not, alone and of itself, a disability and the latest TUPE case on dismissals preparatory to a sale of a business.
Welcome to DAC Beachcroft's Budget 2013 Alert. Our analysis as to how today's budget affects the business community is below. The main game changer will be the introduction of the overarching general anti-tax abuse rule. The Annual Residential Property Tax will prove unpopular but brand new home owners will enjoy the boost of 20% free loans. There is quite a bit for SMEs, from the further SEIS and EMI advantages to the proposed abolition of stamp duty on AIM.
Welcome to the packed March edition of our international employment law newsletter. This month we feature a very topical Spanish case on IT monitoring and employee privacy, which has been brought to our attention by Carmen Torres. We have an update from our French "best friend" La Garanderie & Associés concerning the risks to group companies making redundancies and, with the help of Deacons, we outline the anticipated changes to paternity leave in Hong Kong. Our Chris Syder of our London office highlights the difficulties associated with balancing the employee’s right to freedom of expression with the employer’s restriction on the disclosure of confidential information and Barry Reynolds of our Dublin office highlights a recent decision on disciplinary proceedings and suspension. We also feature a recent case concerning the enforcement of restrictive covenants in employment contracts via our Canadian associated firm, McCague Borlack LLP. Finally, Jose Luis Arce Fernandez of our Mexico office outlines what you need to know, from an immigration perspective, to do business in Mexico.
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