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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.
The High Court ruled on 16 January 2014 that three individuals resident in England may bring a claim against Google Inc in the English courts for misuse of their private information and breach of the Data Protection Act 1998 ("DPA") arising from Google's use of the Double Click cookie to target marketing to web users. In deciding whether their claim could be heard in the English courts, the High Court's judgment provides interesting reading for privacy professionals across the UK in its discussion on whether there was an arguable case to be heard.
Happy New Year and welcome to the first edition of our International Employment Law Newsletter for 2014. This month Dina Maxwell of McCague Borlack (our Canadian associate firm) examines whether employees have a right to privacy when using a work-issued laptop for personal use. Carmen Torres from our Madrid office highlights the new legislative changes that aim to encourage recruitment and improve employability for workers in Spain. Jens Schack of Gorrissen Federspiel discusses a Danish Supreme Court case, which ruled that ADHD can constitute a disability triggering the same compensation as pregnancy discrimination. Barry Reynolds from our Dublin office explores jurisdictional issues where the contract does not contain an express governing law clause. Finally, John Stamper of Al Tamimi & Co provides a brief overview of the immigration process in the United Arab Emirates.
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.
Happy New Year and welcome to the first edition of our employment law update for 2014. We bring you a number of important cases, including two Court of Appeal decisions, the first regarding how an employer should assess whether an employee is disabled. The second case looks at religious discrimination where requiring a Christian to work on a Sunday was held to be objectively justified. In addition, we report on the Advocate General's opinion on how holiday pay should be calculated. We also summarise some of the changes to employment law expected early this year.
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.
Welcome to the October edition of the International Employment Newsletter. This month’s issue has a European flavour, with articles from our partner firms in France and Germany, as well as contributions from the DAC Beachcroft offices in Spain and Ireland. Mary-Daphné Fishelsen of La Garandarie & Associes provides an update on important new employment legislation in France, and Dr Julia Burkard-Pötter of Luther Rechtsanwaltsgesellschaft mbH summarises the immigration isssues around working in Germany. Barry Reynolds and Thomas O’Rourke from our Dublin office outline important new legislation on the equal pay rights of Agency Workers in Ireland, while Carmen Torres in our Spain office provides an update on collective bargaining developments in Spain.
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.
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.
The European Court of Justice ("ECJ") has decided that it is contrary to European law for collective agreements negotiated and adopted after a TUPE transfer to bind a transferee, where the transferee does not have the possibility of participating in the negotiation process.
For many years this issue has caused considerable uncertainly for employers involved with staff transfers out of the public sector. The ECJ's decision provides welcome confirmation of what, for many private sector employers, appeared to be the only workable position. The ECJ's decision is of particular surprise as it goes against the Advocate General's view (which is usually followed by the ECJ) given in February this year. The situation for transfers within the public sector remains more complex.
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.
Welcome to the July edition of the International Alerter. This month Barry Reynolds of our Dublin office outlines the approach of the Irish courts to employee rights on a business transfer, Pradeep Kumar Singh of Colin Ng & Partners LLP explains changes in Singapore that are expected to come into effect in the first half of 2014, Paula Cole highlights a very recent decision of the UK courts that has far reaching implications for employers consulting about collective redundancies in the UK and Maria Guzmán of our Spanish office provides an update on how joining insurers as co-defendants in litigation in the labour courts will affect proceedings. Finally, an article from PG Legal outlines the basic immigration options for foreigners wishing to work, or set up a company, in Italy.
Welcome to the June edition of the international alerter. This month Barry Reynolds from our Dublin office reviews a recent decision on dismissal procedures in 'open and shut' cases of misconduct, Carmen Torres from our Spanish office considers which factors that the courts are permitted to consider in cases of constructive dismissal, Italian firm PG Legal outlines how the courts have reacted to the introduction of new judicial procedures for certain claims, McCague Borlack LLP review entitlements to notice on terminations in Canada and Deacons provide an update on data privacy in direct marketing in China. Finally, in our immigration section, we have an overview of the immigration requirements for companies operating in Spain.
The Employment Appeal Tribunal has recently made a significant ruling affecting collective redundancy consultation, which means that employers will need to consult with appropriate representatives in many more situations than they do currently.
Although the decision has not yet been released, it is being reported in the media that USDAW (the Shopworker’s Union) acted successfully on behalf of former staff at Woolworths and Ethel Austin. The decision overturns a previous ruling that saw shopworkers employed in stores with fewer than 20 staff denied compensation when the Administrator failed to consult with the staff representatives. The staff from the smaller stores did not benefit from collective redundancy consultation in the same way as their colleagues in larger stores.
In this edition we look at a breach of contract case worth £44m; as well as cases regarding reinstatement after appeals and the application of the Acas code – with much less financial impact but equally important learning points. We also have some further cases on victimisation to keep us on our toes – after finding that post employment victimisation was not covered by the Equality Act a couple of months ago, the EAT has now decided that it is! The age discrimination case of Seldon v Clarkson Wright & Jakes (the long running saga of whether a law firm could justify requiring an equity partner to retire at the age of 65) has also finally reached a conclusion this month.
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