The Practical Lawyer


Redundancy – LIFO

Many years ago, the standard way of selecting for redundancy was ‘last in, first out’ (LIFO). Since then, matters have become more complicated and most employers use a matrix approach. But, the length of service will often be an important part of that matrix.

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TUPE – new standard contracts?

If employees transfer to a new employer under TUPE, then the new employer inherits all rights, liabilities and obligations (other than a few pension liabilities).

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Insolvency – TUPE

The TUPE Regs were changed in 2006 in respect of insolvent transfers, to make it easier to sell insolvent businesses as going concerns:

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Insolvency – RPO

An employee who loses money because of an insolvent employer may be able to recover money from the RPO (Redundancy Payments Office). This covers:

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Employment – on insolvency?

If a business becomes insolvent, the employees will want to know whether they will lose their jobs. The answer will usually depend upon the type of insolvency proceedings:

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Self-employed – ‘worker’?

One of the key ingredients of any employment relationship is the need for there to be a personal obligation on the individual to carry out the work. If there is no such personal obligation then it is far more likely that the courts will find that it is a contract for services (ie self-employed, independent contractor).

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Discrimination – teasing

The CA has held that homophobic banter can be ‘harassment’, even when the victim is known not to be gay. This was in the context of an employee who had been subject to sexual innuendo by four colleagues at work (based on the fact that he had been to a boarding school and that he lived in Brighton).

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Insolvent business – TUPE?

Normally, if a business is transferred, then the buyer will assume obligations to previous employers’ staff. But, there is an exception on insolvency (when the transferring company is the subject of ‘bankruptcy proceedings or any analogous insolvency proceedings which have been instituted with a view to the liquidation of the assets of the transferor’).

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Resignation – cooling off

If an employee resigns, it is generally a good idea to allow a cooling-off period. This is particularly so with ‘heat of the moment’ resignations, and one to two days has generally been regarded as an appropriate cooling-off period. But, if the decision to resign is a considered one (rather than done on an impulse) then no such period will be required.

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Disciplinary hearing – lawyer?

An employee asked that he be allowed to attend a disciplinary hearing with his lawyer. The employer refused, pointing out that the contractual disciplinary policy expressly excluded a representative ‘acting in a legal capacity’. The employee argued that this was a breach of the implied term of trust and confidence, and also of his HRA 1998 rights. The court disagreed.

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