United Kingdom
In the UK, a contractual term restricting an employee’s activities after termination of employment will be void for being in restraint of trade and contrary to public policy, unless the employer can show that:
Welcome to the first in a series of blogs covering global employment law issues. Each month we will be sending you information about key employment law topics from our offices across the globe. The first of our topics is:
Holiday Pay – What Are Your Minimum Legal Requirements?
United Kingdom
In the United Kingdom, all
Summary
Yesterday’s decision by the Employment Appeal Tribunal (“EAT”) in Bear Scotland Ltd v Fulton and ors (and conjoined cases) on holiday pay has the potential to affect any employer that requires its workers to work overtime. The EAT held that both guaranteed and non-guaranteed compulsory overtime worked by a worker should be included when
In the recent case of Prophet Plc – v- Huggett, the Court of Appeal reminded employers how vitally important it is to ensure that the drafting of restrictive covenants is accurate and well thought through. Overturning an earlier High Court judgment, the Court of Appeal refused to re-write an unambiguous, but commercially meaningless
As part of the government’s aim to reduce employment litigation, a mandatory Tribunal pre-claim conciliation process is about to be introduced.
This early conciliation process was introduced on a voluntary basis on the 6th April 2014, and will be mandatory for most Employment Tribunal claims from the 6th May 2014.
What is early conciliation?
Early conciliation requires employees to submit an early conciliation form (EC form) to ACAS before bringing a claim. The EC form sets out the employee’s details and the details of their employer; however no information is required about the nature of their claim.
Once the EC form has been submitted and the prospective claimant has confirmed that they wish to undertake early conciliation (the employee does not have to participate any further in the process), ACAS will appoint a conciliator to the case. The conciliator will contact the employer, and ascertain whether they wish to participate in early conciliation (participation on the employer’s part is not mandatory either). Where both parties consent to undertake early conciliation, the conciliator will have one month to promote a settlement between the parties. If the conciliator thinks there is a reasonable prospect of achieving settlement ACAS can, with the consent of both sides, extend discussions for a further 14 days beyond the end of this one month period.
For employers wanting to bring an employment relationship to an end, whether for disciplinary or performance related reasons or simply because it is not working out, it is often difficult to judge the right time to have a ‘without prejudice’ conversation with an employee. Get it wrong and the contents of that discussion may be used by an employee in a subsequent Tribunal claim as evidence of an admission of guilt or constructive dismissal. The recent EAT case of Portnykh v Nomura International Plc gives some useful guidance as to when the ‘without prejudice’ rule applies.
Continue Reading Settlement discussions – when can employers safely use the ‘without prejudice’ rule?
The UK Court of Appeal has ruled, in the case of NHS Manchester v Fecitt & Others, that an employer cannot be vicariously liable for acts of victimisation by its employees against whistleblowers. The Court also clarified the correct test for determining whether a worker has suffered a detriment on the ground of making a protected disclosure (ie. whistleblowing). The Court decided that to avoid liability under the whistleblowing legislation, the employer must show that the employee’s protected disclosure did not materially influence (i.e. more than trivially influence) the employer’s treatment of that employee.
The whistleblowing legislation provides protection in two ways. First, dismissal of an employee is automatically unfair if the principal reason for dismissal is that they have made a protected disclosure. Second, workers have a right not to be subjected to a detriment by their employer on the ground that they have made a protected disclosure. This case concerned the second of these protections.