The Practical Lawyer

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Employment

Gig economy – holiday pay

There has been an important opinion from the Advocate General which, if followed by the ECJ, could have important implications for gig economy employers.

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Data protection – GDPR

The General Data Protection Reg comes into force next year (25 May 2018). It is a major overhaul of the data protection rules. Key points:

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Immigration skills – charge

The immigration skills charge came into effect on 6 April 2017, and is levied on employers that employ migrants in skilled roles. It is designed to cut down on the number of businesses taking on migrant workers (with the justification being that the funds raised will be used to address the skills gap within the domestic work force).

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Misconduct dismissals – advice

The key points to consider in any misconduct dismissal:

There must be a thorough approach to disciplinary investigations and hearings. A failure to follow the designated procedure is one of the most common reasons why employers lose (even when the dismissal should be justifiable).

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Minimum wage – sleeping shifts

If a worker has to work a number of sleep-in shifts at the work premises, and be available in an emergency, does this night-shift constitute ‘working’ for the purposes of the national minimum wage? Alternatively, is the worker only ‘working’ when they are awake? Needless to say, this is an important issue in the care sector where sleep-in arrangements are common.

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Whistleblowers – malicious?

There is extensive protection for whistleblowers:

Dismissal because of whistleblowing will be automatically unfair dismissal. The normal financial cap on compensation does not apply.

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ET settlements – public record?

Judgments of ETs are now to be published online. But, note that ‘judgments’ will include the dismissal of proceedings on withdrawal, or on settlement via ACAS (using COT3).

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IR35 – public sector

IR35 is aimed at the abuse of personal service companies as a way of avoiding IT and NI (with the worker being classified as self-employed, rather than as an employee). Because the Revenue was concerned about the artificial use of personal service companies, and other intermediaries, it introduced a regime known as IR35.

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Misconduct – disability discrimination

The concept of ‘discrimination arising from disability’ is still evolving. It arises when the employee is treated unfavourably because of something arising in consequence of disability – where it cannot be shown that the treatment is a proportionate means of achieving a legitimate aim. Two ‘misconduct’ cases illustrate how difficult this can be:

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Confidential information – £2 damages!

Two employees of a large asset management firm systematically copied confidential files before they left. Subsequently, the employers sued for £15m but only recovered £2 (ie nominal damages)! The reason? The employees had made no use of the confidential information, and the employer had suffered no loss.

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Page 6 of 54

Most-read articles

Trustees – duty to beneficiaries
Wednesday, 11 July 2018
Trustees cannot simply ignore beneficiaries’ request for information about a trust, the High Court has held. In this case, the trust property was a farm outside Cardiff. Read more...
Conveyancing searches – disbursements?
Wednesday, 11 July 2018
Should electronic property searches be treated as disbursements for VAT purposes? Alternatively, are they part of the legal service provided, and so subject to VAT? Read more...
Professional – update
Wednesday, 11 July 2018
From December 2018 there will be new rules requiring firms to publish prices for conveyancing, probate, motoring offences and immigration, as well as the price for bringing ET claims.  Read more...
Service mistake – discretion?
Wednesday, 11 July 2018
To what extent do you have a duty to point out the other side’s procedural errors (as part of your obligation to comply with the ‘overriding objective’)? Read more...
Exiting the Portal – reasonable
Wednesday, 11 July 2018
Insurers should be very careful about making allegations (for instance, at Stage 2 of the EL/PL Protocol), especially if they could be interpreted as allegations of ‘dishonesty’. Read more...
Airbnb – breach of lease
Wednesday, 11 July 2018
It now seems clear that an Airbnb short let will be in breach of a typical long lease. Read more...
GDPR – data rooms
Wednesday, 11 July 2018
If L is planning to sell a property subject to leases, then almost certainly a data room will be set up containing all relevant documents. Read more...
Rights of way – public
Wednesday, 11 July 2018
There are four categories of public rights of way: Read more...
Financial remedies – company assets
Wednesday, 11 July 2018
A recent ruling illustrates when a court can treat a company-owned asset as as a matrimonial asset. Read more...
GDPR – references
Wednesday, 11 July 2018
GDPR impacts on the giving of references: Read more...

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