The Practical Lawyer


Discipline – role of advisors

    It is important that any HR advisor (or other professional advisor) does not assume a decision-making role at a disciplinary hearing. Advice from the HR department should be limited to questions of law and procedure – it should not stray into whether the employee is guilty or not guilty.

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Working time – travel to work

The EU has made an important decision in the context of mobile workers. These might also be described as peripatetic workers, in that they have no fixed or habitual workplace, and spend time travelling between their home and the premises of the first and last customer. For employees who work in a number of different locations, but do not have a specific base, that travel time now forms part of ‘working time’.

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Cross-border – jurisdiction?

New rules on jurisdiction in employment cases came into force at the beginning of 2015, but they have received relatively little publicity. These rules are contained in the recast Brussels Regulation. It is important to note that these Regs apply to non-EU employers. 

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Strike – ‘day’s pay’?

   If a salaried employee goes on strike for a day, how much pay is forfeit? Is a ‘day’s pay’ calculated by the number of working days in the year (eg 1/260th of annual salary) or on a calendar year basis (1/365th)?

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Holiday – sickness

Under EU law, a sick worker can carry-forward holiday due. But, for how long?

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Restrictive covenant – 12 months?

There have been several cases in the last two years in which 12-month restrictive covenants have been enforced against employees. But, it would be wrong to misinterpret this run of decisions as meaning the courts have become more employer-friendly so that 12 months can be applied with confidence.

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Zero hours – exclusivity

There is now a ban on exclusivity clauses (ie only working for that one employer) in zero-hour contracts. 

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Trade unions – compulsory recognition

The provisions on compulsory trade union recognition are set out in TULRCA 1992. However, it is not always appreciated that this statutory ‘collective bargaining’ is limited to core contractual terms on pay, hours and

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Holiday pay – summary

There are two separate provisions governing the entitlement of ‘workers’ to holiday. Firstly, under the EU Working Time Directive, there is a right to have at least four weeks’ paid annual leave. Secondly, under our own domestic UK Working Time Regs 1998 there is an entitlement to a total 5.6 weeks annual leave (with pay being calculated at the rate of a ‘week’s pay’ under the provisions of ERA 1996). Under those Regs, a worker with ‘no normal working hours’ will have the ‘week’s pay’ calculated as an average of all money earned in the previous 12 weeks (including bonuses, commission, overtime pay, etc). 

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TUPE – services sub-contractor

TUPE applies to contractors who provide services for ‘clients’. For instance, if an LA sub-contracts the running of a park, but then terminates the sub-contractor’s contract, then employees of the sub-contractor may well be deemed to have transferred to the LA (if it keeps the park open, unchanged). 

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