The Practical Lawyer


TUPE – service provision

A change of service providers can result in a TUPE situation. However, if workers are taken over by two or more companies, then TUPE liability should not be apportioned between those various companies. Instead, it passes to the one company that takes on the activities of the particular employees (as with the rules on a transfer of undertakings).

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Statutory Procedures – delay

The Statutory Dismissal and Disciplinary Procedures say that ‘each step and action under the procedure must be taken without unreasonable delay’.

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Redundancy – age discrimination

It is important to ensure that redundancy selection criteria are not tainted by age discrimination. Obviously, selecting someone for redundancy because they are the oldest (or youngest) employee would be direct age discrimination.

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Garden leave – implied right?

It is advisable for employment contracts, especially those of senior employees, to contain an express power to place the employee on garden leave at any time during the employment relationship, or when notice of termination has been given. This will allow the employer to isolate the employee for a defined period following a breakdown in the employment relationship (eg if the employee wants to leave to work for a competitor).

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Discipline – right to lawyer?

All workers have the statutory right to be accompanied at disciplinary (or grievance) hearings by a trade union official or a work colleague. But, what about bringing along a lawyer?

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Suspension – Step 1 letter?

The statutory disciplinary procedures apply to suspensions without pay, even when these are to investigate misconduct (rather than as a sanction for misconduct).

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‘No-show’ clause – penalty?

A new employee agreed to a ‘no-show’ clause in his employment contract whereby a failure by the employee to take up the agreed job would result in the employer being paid compensation (50% of the employee’s net basic salary, plus 50% of the signing-on payment).

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Dismissal – EDT

An unfair dismissal claim must be brought within three months of the Effective Date of Termination (EDT).

As we noted last month (July/August 2009, p14) if summary dismissal is communicated to the employee by letter, the EDT will be the date when the employee reads the letter (or first has the opportunity to read it). That will normally be later than the date upon which the letter was sent (first-class post letters are usually deemed to take two days to arrive).

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Hearing – legal representation?

An employee attending a disciplinary or grievance hearing has a statutory right to be accompanied by a work colleague or by a trade union official. But, there is no statutory right to legal representation.

However, it is now clear that this is subject to Human Rights issues:

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Working time – on call

Does the time a worker spends on call count for the Working Time Regs, and also for the purpose of minimum pay? It would seem that it does.

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Page 55 of 59

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