The Practical Lawyer


Disability – wide scope

The breadth of ‘disability’ is well illustrated by two recent cases:

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Industrial action – leverage campaigns?

Trade Union Act 2016 is not yet in force. It will make important changes to the rules on strike ballots, and require that employers be given 14 days’ (not seven days) notice of industrial action (see our June 2016 issue, p6).

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Director – employment status?

There can often be arguments about the employment status of a company director who holds shares in the company and thus receives dividend income. Normally, this is in the context of insolvency, with such directors arguing they are entitled to the usual employees’ rights.

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Sharing economy – ‘worker’

The expansion of the ‘sharing economy’ is challenging conventional definitions of ‘employee’ and ‘worker’. In particular, there is the argument that many of these people may be self-employed but are actually ‘workers’ and thus have statutory rights (eg national minimum wage, holiday pay, sick pay, part-time protection and auto-enrolment into pension schemes).

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Employment – workers

A traditional employment law model divides workers into employees and independent contractors. In simple terms, employees have rights, whereas independent contractors (self-employed) have none other than those stated in the contract.
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Constructive dismissal – ‘fair’?

Will a constructive dismissal always be an unfair dismissal?
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Sickness – pulling a ‘sickie’

If an employee is off sick – and is ‘pulling a sickie’ – how should that be treated by the employer? The answer is that it should be treated as ‘misconduct’ rather than ‘incapability’.
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Restrictive covenant – contract date?

We all know that a restrictive covenant is far more likely to be enforced if it is narrowly, rather than widely, drawn. Thus, a short period (6-12 months) is recommended; a restriction that applies only to customers that the employee individually dealt with (as opposed to all customers); and an appropriate geographical limitation (eg London, rather than worldwide). But, however well the covenant is drafted, there is one important issue that is often overlooked – namely, that its ‘reasonableness’ will be interpreted as at the date the employment contract was entered into.
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Whistleblowing – employees?

When the original whistleblowing legislation was introduced in 1988 there was no express requirement that the whistleblower needed to be acting in the ‘public interest’. Because the legislation extended to any ‘legal obligation’ on the employer, it was then argued that individual employees could use the whistleblowing legislation to seek redress for their individual employment grievances. As a result, the legislation was amended so that since 2013 a claimant must ‘reasonably believe’ that the disclosure is being made ‘in the public interest’.
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Obesity – disability?

Allowing staff to call a fellow employee ‘fat bastard’ could result in a claim for unlawful disability harassment.

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