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Employment

Dress code – religious and political

The ECJ has given guidance on the extent to which dress codes (whether formal or informal) can be imposed on those who want to wear religious or political signs. In essence, the guidance from the ECJ is that it will be potentially indirect discrimination unless the employer can objectively justify the dress code. That therefore means the employer must show a legitimate aim (eg showing neutrality to customers and clients), and demonstrate that their way of achieving that aim is both appropriate and proportionate.

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Gig economy – worker?

The Pimlico Plumbers case is the third well-publicised decision on the use of ‘self-employed’ workers by substantial businesses. As is well known, it has been decided in all three instances that these freelance operators were, in fact, ‘workers’. As such, they get some statutory protection – in particular, holiday pay, rest breaks, national minimum wage and disability protection. Since they are not ‘employees’ they cannot, however, claim for unfair dismissal or redundancy.

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Tribunals – online

At long last, employment tribunal decisions are going online. The new database includes some judgments dating back to 2015 and 2016, but it is understood that all new decisions will be added to the database. www.gov.uk/employment-tribunal-decisions.

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Apprenticeship – levy

A reminder that the apprenticeship levy comes into force on 6 April 2017. All UK employers with an annual wage bill of £3m or more will pay a levy of 0.5% of the annual wage bill. Each employee will receive an allowance of £15,000pa to off-set against the levy. Slightly different rules apply in Wales.

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Gross misconduct – gross negligence?

Gross misconduct justifies summary dismissal. Normally this will cover acts of intentional misconduct – but can it also include acts or omissions of gross negligence (ie when misconduct is unintentional)? The answer is that it can, but such cases will be rare.

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Redundancy – mobility clause

An employer can rely on an express contractual mobility clause to move an employee to a different workplace, rather than make that employee redundant. But, it would be unfair to dismiss the employee if they refused to move, if the employer exercises that mobility clause unreasonably (or if the employee’s refusal to move is reasonable).

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Financial services – references

Traditionally, references are vague and confined to straightforward facts, so as to avoid any possibility of a misrepresentation claim by the ex-employee.

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Redundancy – no consultation

  It is well established that an employer must consult on redundancy.

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Lapsed warnings – relevance?

What is the status of a lapsed warning? ACAS advice is that normally a warning should have an expiry date, and should lapse after that date. But, there may be circumstances when it is still reasonable for an employer to take an expired warning into account.

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Final warning – inappropriate?

  It is now clearly established that there is a high bar for a claimant who wants to challenge (in a later unfair dismissal action) an employer’s warning that was still existing at the date of dismissal. The basic point is that such a challenge can only succeed if the claimant can show that the warning was ‘manifestly inappropriate’ (in which case it will be a nullity).

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