The Practical Lawyer


‘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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Holiday – summary dismissal

Many employment contracts say that an employee will not be entitled to accrued holiday pay if he or she is summarily dismissed (eg for gross misconduct).

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Notice period – holiday

Can an employer insist that an employee takes holidays as part of the notice period (which means that the employer will not have to pay him for the holiday in addition to the notice period)?

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Time off – parental leave

The EAT has held that the entitlement to parental leave because of unexpected disruption or termination of care arrangements for dependants is not limited to last-minute unavailability or emergencies.

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DDPs – ‘informal’ complaint

A Polish farm worker wrote to his employer saying that he was being treated less favourably on grounds of his race. But, he wrote that the complaint should be dealt with on an ‘informal’ base, but if the complaint was not properly dealt with he would then lodge a step 1 (formal) grievance notice.

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DDPs – constructive dismissal

The general rule is that an employee must raise a grievance with the employer under the statutory procedures (and, indeed, will not be able to pursue an unfair dismissal claim until such notice has been given, and then 28 days has lapsed).

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DDPs – redundancy

Redundancy is a potentially fair reason for dismissal. But, it should not be forgotten that the statutory dismissal and disciplinary procedures also apply. In summary, the DDPs require a step 1 letter to the employee; there must then be a step 2 meeting; that might then be followed by a step 3 appeal.

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Page 59 of 63

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