The Practical Lawyer


DPA – subject access request

To what extent can an employer refuse to comply with a ‘subject access request’ because the employee is making the request purely to help with litigation against the employer?

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Unfair dismissal – tainted by illegality?


A recent unfair dismissal case highlights the importance of ensuring that an employee’s claim is not based around illegality.

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Disability – ill health procedures

It is common for disabled employees to have higher absence levels than non-disabled employees. In practice, employers will be expected to tolerate this to some extent – but that does not mean that a disabled employee cannot be dismissed for excessive absence. What the employer will be expected to do, however, is to adapt existing absence management procedures by making ‘reasonable adjustments’.

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Income tax – termination payments

The government has published its plans of how termination payments should be taxed from April 2018:

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Fiduciary duty – joining rival

An employee was managing director and had a 49% shareholding. He resigned from the company (both as a director and employee, and sold his shares). Shortly afterwards he became a director of a rival company and it turned out that he had been doing preparatory work for a year before he handed in his resignation. Not surprisingly, his former employer argued that there was a breach of fiduciary duty and sought damages (repayment of salary; account of profits on the basis that the competitor was given a ‘head start’).

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Unfair dismissal – negotiations

Employer and employee may enter into pre-dismissal negotiations (eg to work out the terms of departure). Usually, an employer will try to make those discussions ‘without prejudice’ and then hope that they cannot be disclosed subsequently (eg if an unfair dismissal claim is brought). But, the problem with ‘without prejudice’ is that it only exists if there is an existing dispute. If there is no existing disagreement when the first proposal is put forward by the employer then the ‘without prejudice’ rule cannot apply. As a result, there is always a real risk that if the employer raises the idea of termination with the employee, that could then be said to breach the duty of trust and confidence (or that the proposal made amounts to discrimination or victimisation). Thus, the ‘without prejudice’ rule is of relatively little use in pre-termination negotiations.
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Contract – changing

It is a basic contractual principle that a contract cannot be changed unilaterally. Therefore, a contract of employment cannot be changed by the employer unless the employee agrees. In practice, this will often be decided by ‘conduct’.
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Job applicant – discrimination

There have long been stories about individuals who apply for jobs in the expectation and hope that they will be rejected, and so can then claim discrimination. For instance, an older person might apply for a job that would normally be filled by a younger person, and then claim age discrimination. The ECJ has now confirmed that discrimination protection only applies to job applicants who are ‘genuine’ (in that they are properly ‘seeking employment’). This ECJ approach is similar to that already taken by the English courts.

Reasonable adjustments – protected pay?

If a disabled employee is moved into a less well paid job, should they still be entitled to their previous pay rate?
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Injury to feelings – increase

The EAT has held that tribunals can increase the guideline figures for injury to feelings awards to reflect inflation. At the same time, they should also apply the 10% uplift (which is applied to general damages in the civil courts since 2013, following the abolition of success fees and ATE premiums).
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Most-read articles

Trustees – duty to beneficiaries
Wednesday, 11 July 2018
Trustees cannot simply ignore beneficiaries’ request for information about a trust, the High Court has held. In this case, the trust property was a farm outside Cardiff. Read more...
Conveyancing searches – disbursements?
Wednesday, 11 July 2018
Should electronic property searches be treated as disbursements for VAT purposes? Alternatively, are they part of the legal service provided, and so subject to VAT? Read more...
Professional – update
Wednesday, 11 July 2018
From December 2018 there will be new rules requiring firms to publish prices for conveyancing, probate, motoring offences and immigration, as well as the price for bringing ET claims.  Read more...
Service mistake – discretion?
Wednesday, 11 July 2018
To what extent do you have a duty to point out the other side’s procedural errors (as part of your obligation to comply with the ‘overriding objective’)? Read more...
Exiting the Portal – reasonable
Wednesday, 11 July 2018
Insurers should be very careful about making allegations (for instance, at Stage 2 of the EL/PL Protocol), especially if they could be interpreted as allegations of ‘dishonesty’. Read more...
Airbnb – breach of lease
Wednesday, 11 July 2018
It now seems clear that an Airbnb short let will be in breach of a typical long lease. Read more...
GDPR – data rooms
Wednesday, 11 July 2018
If L is planning to sell a property subject to leases, then almost certainly a data room will be set up containing all relevant documents. Read more...
Rights of way – public
Wednesday, 11 July 2018
There are four categories of public rights of way: Read more...
Financial remedies – company assets
Wednesday, 11 July 2018
A recent ruling illustrates when a court can treat a company-owned asset as as a matrimonial asset. Read more...
GDPR – references
Wednesday, 11 July 2018
GDPR impacts on the giving of references:


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