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Employment blog

A regularly updated employment blog covering the latest legal developments:

 

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Employment Law Seminars Spring 2019

Hempsons FREE employment law seminars in our London, Harrogate, Manchester and Newcastle offices this Spring. The seminars will cover current employment law issues that we know can cause headaches for HR professionals and are designed to offer sound legal guidance, as well as practical tips to help you manage these tricky areas.

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  • Being Paid to Sleep? Royal Mencap Society v Tomlinson-Blake

    In Royal Mencap Society v Tomlinson-Blake the Court of Appeal has determined that workers who “sleep in” at their workplace are not entitled to receive national minimum wage for periods when they are asleep. This is because time spent asleep in this way is properly characterised as time when an employee is ‘available for work’ rather than time when they are actually working.

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  • Can a disability account for bad behaviour?

    The recent Employment Tribunal decision of Wheeley v University Hospitals Birmingham NHS Foundation Trust serves as a timely reminder that where conduct issues are said to arise from an underlying mental health condition employers should be cautious of departing from medical opinion.

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  • Can an Investigation be Too Thorough?

    In NHS 24 v Pillar the Employment Appeal Tribunal (“EAT”) has overturned a Tribunal’s decision that a disciplinary investigation was too thorough and it was unfair to include details of prior incidents which had not resulted in disciplinary action.

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  • Care package retenders: TUPE or not to TUPE?

    The Employment Appeal Tribunal examined the transfer of care of an individual (CE) between two service providers to determine whether his carers TUPE transferred. They did not - they were found not to be part of a team whose “principal purpose” was CE’s care. What steps should you be taking in advance of potential transfers?

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  • Consideration of reasonable adjustments as part of a performance management process – a helpful reminder!

    The recent Employment Appeal Tribunal (‘EAT’) case of South Staffordshire & Shropshire Healthcare NHS Foundation Trust v Billingsley serves as a reminder to employers to make reasonable adjustments during a performance management process and also to give them a chance to work. It also neatly summarises the extent of the duty to make reasonable adjustments.

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  • Disciplinary hearings – should we go ahead without the employee?

    This is a regular and vexing question. It usually comes about after a convoluted experience of delays in arranging a disciplinary hearing. The EAT in Nabili v Norfolk Community Health & Care NHS Trust have considered the issue further. The question is partially answered by examining this: would the employee’s attendance be futile in understanding the disciplinary case.

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  • Does the recent ET Uber decision necessitate a U-turn on staffing arrangements for gig economy businesses?

    The recent Employment Tribunal case Aslam and others v Uber BV and others determined that Uber drivers were not self-employed contractors, as Uber claimed, but rather fell within the statutory definition of “worker” meaning that the drivers were entitled to:- paid holiday; the national minimum wage (£7.20 per hour) and protection against whistle-blowing detriment/dismissal (amongst other things).

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  • Dress codes and headscarves

    Dress codes and religious clothing have been considered by the European Court of Justice (CJEU) in two cases recently and unfortunately their guidance is not as clear as it could be. The French case of Achbita v G4S Secure Solutions was reported as supporting a ban on headscarves but the actual outcome was slightly more complicated than that. The Belgian case of Bougnaoui v Micropole SA reached a slightly different decision, refusing to uphold a ban, but the case emphasised just how hard it can be to enforce a supposedly neutral dress code.

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  • Drug driving – a new offence

    The new offence of driving under the influence of drugs came into force on the 2 March 2015. The offence states that it is illegal to drive or be in charge of a motor vehicle whilst under the influence of specific controlled drugs (including illegal, prescription and non-prescription) above a specified limit.

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  • Farewell to ET fees, but what next?

    For the last four years, an employee wanting to take a case to an employment tribunal has had to pay a fee of up to £1,200. For many lower paid employees – or where relatively little money was at stake – this fee may have been a deterrent to starting action...

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  • GDPR Your questions answered

    25 May 2018 marked the introduction of the new General Data Protection Regulation in the UK in the form of the Data Protection Act 2018 and we have been answering many clients’ HR-related questions on the new legislation.

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  • Healthcare newsbrief: Winter 2017 edition now available

    Welcome to the winter edition of Hempsons’ Healthcare Newsbrief. Many of you will be reading this at the NHS Providers conference where many of the issues we are writing about – from moving towards digital records to the issues around moving to an accountable care organisation – will be either discussed or on the minds of delegates...

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  • Hincks v Sense Network

    It is commonly accepted that when a person applies for a job, they will usually be asked to provide a reference from their previous employer. By the same token, employers are usually willing to provide a reference for an employee leaving their employment and doing so is standard practice.

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  • Holiday pay update

    Over the last few years the courts have increasingly ruled more types of payments ought to be included in holiday pay calculations. However, the prevailing view has been that only compulsory overtime need be included...

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  • In-depth investigations are key to fair disciplinary processes

    The recent case of Tykocki v Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust demonstrates the importance of a fair and thorough investigation process in disciplinary cases where the allegations are serious and could consequently have career limiting implications for the employee involved.

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  • Reilly v Sandwell Metropolitan Borough Council (2018)

    Would it be fair to dismiss an employee if they had failed to disclose a relationship with a person convicted of serious criminal offence (even if this was not necessarily a breach of an express term of the employee’s contract)? This question was addressed by the Supreme Court in the case of Reilly v Sandwell Metropolitan Borough Council (2018) UKSC 16. The Supreme Court also considered the standard approach to the reasonableness of a dismissal, the Burchell test.

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  • The National Minimum Wage, Sleep-In Shifts and the Social Care Sector – Update on HMRC Enforcement

    On 26 July 2017, HM Revenue and Customs (‘HMRC’) suspended enforcement action against employers in the social care sector in relation to the National Minimum Wage (‘NMW’)/National Living Wage (‘NLW’). This decision followed on from the decision in the Mencap case (Focus Care Agency Limited v Roberts, Frudd v The Partington Group Limited, and Royal Mencap Society v Tomlinson Blake, 2017). The decision that a care worker could be “working” whilst asleep highlighted a significant liability in the care sector, where workers traditionally have been paid a fixed sleep-in allowance, and were often paid below the NMW/NLW.

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  • Upcoming legislative changes

    With ongoing uncertainty surrounding the final terms under which the UK will leave the EU and whether this will take place on 29 March 2019 as planned or not, it is difficult to predict how Brexit may affect Employment Law. However, for practical purposes it seems likely that EU legislation will remain applicable in the UK (but perhaps on a different constitutional basis) unless or until it is amended by UK legislation. We are not expecting swift changes to Employment law and do not expect to see any significant changes prior to 31 December 2020 (the end of the proposed transition period).

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  • Update – Tax changes to termination payments

    Back in the 2016 Budget, the government announced that from April 2018, it would “reform and simplify” the taxation of termination payments. Following a technical consultation, the reforms expanded and now aim to "clarify and tighten" (i.e. increase) the taxation of such payments.

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  • Voluntary overtime v. right to holiday pay

    Regular voluntary overtime be taken into account when calculating holiday pay. The EAT has confirmed in Dudley Metropolitan Borough Council v Willetts and Others that “remuneration linked to overtime work that was performed on a voluntary basis could be included in normal remuneration for calculating holiday pay”.

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  • When does notice take effect?

    The Supreme Court handed down a judgment last week in the case of Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood confirming that where a contract is silent on when notice is deemed to be given, notice takes effect when it is actually received by the employee and they have read it, or had a reasonable opportunity to do so.

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  • Zero hours and annual leave

    Many employers choose to calculate holiday pay for their zero hours workers as 12.07% of their normal pay. A recent decision by the Employment Appeal Tribunal, Brazel -v- The Harpur Trust (2018), may lead to some employers rethinking this.

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