The Practical Lawyer

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Employment

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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Grievance procedures – abolition

Employment Act 2008 abolishes the statutory dispute and grievance procedures as from 6 April. They are replaced by a new ACAS Code of Practice which will be taken into account by ETs when reviewing procedures. The key points are that:

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Disability – non-disabled comparator

Last year it was held that when approaching claims of disability-related discrimination, you should compare the treatment of the disabled claimant with that of a non-disabled person who would otherwise be in the same circumstances.

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Sickness – holiday?

The ECJ has confirmed the impact of the Working Time Directive on the entitlement of employees to statutory holiday while off sick. In essence, workers are entitled to accrue their holiday entitlement throughout the sickness absence (however long that may be). So, staff must be allowed to take such holiday on return to work (or be paid in lieu of it if the employment terminates). Note in particular that the entitlement to holiday will roll over from year to year.

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Child birth – five-day return?

Much publicity was given to the French justice minister who returned to work just five days after giving birth.

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Unfair dismissal – incapacity benefit

Can you deduct incapacity benefit when working out the compensatory award (for lost earnings) in an unfair dismissal case?

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Insolvency – NIF

If a company goes into administration and employees are dismissed as a result, or where a company’s assets are liquidated, staff can claim limited sums from the National Insurance Fund:

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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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