The Practical Lawyer


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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Income tax – termination payments

The government has published its plans of how termination payments should be taxed from April 2018:

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Fiduciary duty – joining rival

An employee was managing director and had a 49% shareholding. He resigned from the company (both as a director and employee, and sold his shares). Shortly afterwards he became a director of a rival company and it turned out that he had been doing preparatory work for a year before he handed in his resignation. Not surprisingly, his former employer argued that there was a breach of fiduciary duty and sought damages (repayment of salary; account of profits on the basis that the competitor was given a ‘head start’).

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Unfair dismissal – negotiations

Employer and employee may enter into pre-dismissal negotiations (eg to work out the terms of departure). Usually, an employer will try to make those discussions ‘without prejudice’ and then hope that they cannot be disclosed subsequently (eg if an unfair dismissal claim is brought). But, the problem with ‘without prejudice’ is that it only exists if there is an existing dispute. If there is no existing disagreement when the first proposal is put forward by the employer then the ‘without prejudice’ rule cannot apply. As a result, there is always a real risk that if the employer raises the idea of termination with the employee, that could then be said to breach the duty of trust and confidence (or that the proposal made amounts to discrimination or victimisation). Thus, the ‘without prejudice’ rule is of relatively little use in pre-termination negotiations.
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Contract – changing

It is a basic contractual principle that a contract cannot be changed unilaterally. Therefore, a contract of employment cannot be changed by the employer unless the employee agrees. In practice, this will often be decided by ‘conduct’.
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