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Employment

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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Holiday pay – drafting

There is much complex case law on holiday pay entitlement under the Working Time Directive. This is a summary of current drafting tips for holiday pay clauses in employment contracts:

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Uber – immigration checks

Employers are generally aware that they have to carry out ‘right to work’ checks against ‘employees’. In practice, few will carry them out against ‘workers’ since they are not legally obliged to do so. However, one commentator has made the point that the immigration authorities are often reluctant to accept the subtle distinction between ‘employees’ and ‘workers’.

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Uber – ‘worker’

There has been much publicity about the tribunal decision that Uber drivers are ‘workers’. As such, they are entitled to paid annual leave, whistle-blower protection and the national minimum wage (but they do not get the rights of ‘employees’, such as unfair dismissal, redundancy, etc).

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Restrictive covenants – poaching

Suppose you are about to employ a new member of staff, but then discover there may be restrictive covenant issues with the former employer. What are the options?

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