The Practical Lawyer


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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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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Page 55 of 57

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