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Employment

Misconduct – disability discrimination

The concept of ‘discrimination arising from disability’ is still evolving. It arises when the employee is treated unfavourably because of something arising in consequence of disability – where it cannot be shown that the treatment is a proportionate means of achieving a legitimate aim. Two ‘misconduct’ cases illustrate how difficult this can be:

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Confidential information – £2 damages!

Two employees of a large asset management firm systematically copied confidential files before they left. Subsequently, the employers sued for £15m but only recovered £2 (ie nominal damages)! The reason? The employees had made no use of the confidential information, and the employer had suffered no loss.

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Team moves – remedies?

The conventional remedy against members of a team who leave to join a competitor is to see whether there are enforceable restrictive covenants, post-termination restraints, and non-competes. Those covenants will be enforceable provided they protect a legitimate proprietary business interest, and go no further than it is reasonably necessary to do. If those legal hurdles can be overcome, then the restrictive covenant is likely to be enforceable.

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Notice – from when?

 

It is always advisable to have express provisions in a contract of employment specifying when notice will be effective. Otherwise, you are thrown back on common law principles – in which case, does contractual notice of termination take effect on (i) posting of the letter, (ii) delivery of the letter, or (iii) communication of the notice to the employee so they are aware of it?

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Apprenticeship – damages

A tiler entered into an apprenticeship contract in October 2014, with the contract of apprenticeship due to run until November 2018. But, in 2016 there was a downturn in business and he was made redundant.

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SAR – Data Protection request

Litigators are increasingly seeing subject access requests made under Data Protection Act 1998. As we noted in the April 2017 issue (p31), this use of SARs is a tactical ploy – using the 1998 Act as a way of putting pressure on the other side to disclose documents that would not otherwise be disclosable in litigation. There have been several cases on this topic recently but the following principles seem to emerge:

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Holiday pay – finality

The Supreme Court has refused to hear an appeal in the long-running Lock holiday pay litigation.

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Immigration – skills charge

Introduced in April 2017, the immigration skills charge will significantly increase the fees paid by employers when sponsoring skilled migrants. For Tier 2 migrants, employers will pay £1,000 pa (eg a five-year visa is £5,000). Reduced charges will apply to small companies and charities. The charge will not apply to Tier 2 migrants who are sponsored before 6 April 2017 and who are simply applying to extend their stay in the UK.

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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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Page 10 of 57

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