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Archive for May, 2014

Thursday 22 May 2014

Employment Law Bulletin May 2014


The big news that everyone is surely talking about this month is that ACAS early conciliation is now compulsory.

Anyone who wants to bring a claim in an employment tribunal must now first submit an early conciliation form alerting ACAS to the case. What follows will be a period of talking through the issues and trying to avoid getting the tribunal involved in the dispute.

There is one proviso – and it is a big one – in that both parties must agree to conciliate. Students of language might wonder how, given that the parties cannot be forced into conciliation, it can really be described as “compulsory”. Let’s hope that claimants play ball anyway. However, the compulsory aspect is really little more than the employee having to tell ACAS that he or she is planning to bring a claim and getting a certificate to this effect.

It is, of course, easy (and very tempting) to be cynical, but there is rarely anything to lose in attempting conciliation and it does give employers a chance to avoid litigation by settling cases before positions become (too) entrenched. The scheme’s success, though, will depend on everyone seeing it that way.

When whistleblowing is not the reason

Panayiotou v Kernaghan

The so-called “whistleblowing” laws protect people who make “protected disclosures” from being treated badly by their employer as a consequence. Where an employee is dismissed for having “blown the whistle”, that dismissal will be automatically unfair and there is no cap on the amount of compensation that can be awarded by a tribunal.

The issue in this case was whether the employee was dismissed because he had made protected disclosures, or because he had refused to let issues relating to those disclosures lie.

Court corrects glitch in restrictive covenant

Prophet plc v Huggett

It is easy to get hung up on the wording of contracts, but the courts do try hard to make contracts work in the real world, even when the wording has gone a bit … wrong. This means that sometimes the wording will be adjusted, just slightly, so that they make business sense.

That is what happened in Prophet v Huggett where the High Court allowed an employer to enforce a defective 12-month restrictive covenant.

TUPE change

Yet more change to the Transfer of Undertakings (Protection of Employment) Regulations 2006 a.k.a. “TUPE”. It used to be the case that a transferor (the outgoing employer) had to give a transferee employee liability information 14 days before the transfer. That information includes transferring employees including names, contractual terms, details of any disciplinary action taken against them or legal action they have brought.

Inspection of employees’ computers ordered

Warm Zones v Thurley and another

The courts recognise that commercial confidentiality is serious business. Judges dislike attempts by individuals to take and use information which does not belong to them.

Ms Thurley and Ms Buckley found themselves on the wrong end of a (fairly uncommon) injunction. They were employees of Warm Zones who left to work for a competitor. It transpired that while they were still working for Warm Zones, they had sent emails that suggested that they would share details of Warm Zones’ painstakingly and expensively compiled customer database with their new employer.

Prepare for new holiday pay rules

The law on holiday pay never gets any simpler. In Neal v Freightliner an employment tribunal held that non-guaranteed overtime should be included in holiday pay calculations. Mr Neal’s ‘voluntary’ overtime was intrinsically linked to the performance of his role and it was irrelevant whether he was contractually obliged to carry it out or not.

Employees blameworthy in constructive dismissals

Frith Accountants v Law

Sometimes things happen at work which make it impossible for employees to carry on in their job. Constructive dismissals generally cast employers in a bad light. But what about where an employee’s conduct in the lead-up to the dismissal was questionable? Can that be taken into account, as it can in unfair dismissal cases?

And finally….

News of the dramatic fall in the number of claims being issued at employment tribunals in the UK will have been welcomed by many employers, and the House of Commons may be no exception.

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