The Practical Lawyer


Redundancy – no consultation

  It is well established that an employer must consult on redundancy.

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Lapsed warnings – relevance?

What is the status of a lapsed warning? ACAS advice is that normally a warning should have an expiry date, and should lapse after that date. But, there may be circumstances when it is still reasonable for an employer to take an expired warning into account.

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Final warning – inappropriate?

  It is now clearly established that there is a high bar for a claimant who wants to challenge (in a later unfair dismissal action) an employer’s warning that was still existing at the date of dismissal. The basic point is that such a challenge can only succeed if the claimant can show that the warning was ‘manifestly inappropriate’ (in which case it will be a nullity).

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Holiday pay – drafting

There is much complex case law on holiday pay entitlement under the Working Time Directive. This is a summary of current drafting tips for holiday pay clauses in employment contracts:

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Uber – immigration checks

Employers are generally aware that they have to carry out ‘right to work’ checks against ‘employees’. In practice, few will carry them out against ‘workers’ since they are not legally obliged to do so. However, one commentator has made the point that the immigration authorities are often reluctant to accept the subtle distinction between ‘employees’ and ‘workers’.

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Uber – ‘worker’

There has been much publicity about the tribunal decision that Uber drivers are ‘workers’. As such, they are entitled to paid annual leave, whistle-blower protection and the national minimum wage (but they do not get the rights of ‘employees’, such as unfair dismissal, redundancy, etc).

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Restrictive covenants – poaching

Suppose you are about to employ a new member of staff, but then discover there may be restrictive covenant issues with the former employer. What are the options?

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DPA – subject access request

To what extent can an employer refuse to comply with a ‘subject access request’ because the employee is making the request purely to help with litigation against the employer?

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Unfair dismissal – tainted by illegality?


A recent unfair dismissal case highlights the importance of ensuring that an employee’s claim is not based around illegality.

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Disability – ill health procedures

It is common for disabled employees to have higher absence levels than non-disabled employees. In practice, employers will be expected to tolerate this to some extent – but that does not mean that a disabled employee cannot be dismissed for excessive absence. What the employer will be expected to do, however, is to adapt existing absence management procedures by making ‘reasonable adjustments’.

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