As part of The Sherrards Training Academy, we have asked our Legal Assistants and Trainee Solicitors to write articles to support their learning, and also to ensure they start to build on their own personal brand. This article has been fact-checked and proofread by Head of the Employment department, Mark Fellows.

On Monday the government issued a consultation paper which proposes re-introducing fees in Employment Tribunals and the Employment Appeals Tribunal, with the main aim ‘to contribute to the continuous improvement of His Majesty’s Courts and Tribunals Service and reduce the cost to the taxpayer to fund these services’. The new proposal comes nearly 7 years after the Supreme Court ruled the previous charging regime as unlawful when trade union Unison successfully argued that it prevented thousands of employees from securing justice.

The proposed fee is £55 to bring a claim in the Employment Tribunal, which is considerably modest in comparison to the previous fee regime This is a one-off fee which is £55 irrespective of the type of claim (but some limited claims will be exempted) or whether the claim is brought by a single claimant or multiple claimants. Unlike the 2013-2017 Tribunal fee regime, no hearing fee will be applied under the government’s most recent proposals.

To start an appeal in the Employment Appeals Tribunal, the same fee of £55 would also apply.

A system for remission from fees would be available for those who genuinely cannot afford to pay the fee (as defined by the government).

It is thought that the proposal may act as an incentive for parties to apply their mind to settlement and engage in negotiations early in the process through ACAS, without the need to proceed to issuing actual claims in the Tribunals, thereby helping to alleviate the huge pressures currently faced by the Tribunal service. It is questionable whether such a modest fee will actually have this impact, but at the same time, it was recognised that if the fee was too high, it might be open to further challenge from the Unions.

The consultation runs for 8 weeks and closes on 25 March 2024 – please stay tuned for further updates from the Employment Team.

Legal Entitlement and Calculation

All full-year workers, with the exception of the genuinely self-employed, are entitled to 5.6 weeks of paid statutory holiday per year. Four weeks of this entitlement must be paid at the worker’s ‘normal’ rate of pay, including regular payments like overtime, bonuses, and commissions, as specified by Regulation 13 of the Working Time Regulations. The remaining 1.6 weeks can be paid at the ‘basic’ rate of pay, that is, the worker’s basic remuneration (as specified by Regulation 13A).

Holiday pay is designed to ensure that workers do not suffer financially when taking time off. For those with regular hours and fixed pay, the holiday pay should mirror what they would have earned if they were at work. From 1^st January 2024, the regulations now specify that certain payments, such as commission payments and those related to professional or personal status, must be included in the calculation of the 4 weeks of normal holiday pay.

Irregular Hours and Part-Year Workers

For leave years starting on or after 1^st April 2024, part-year and irregular hours workers must have their statutory holiday entitlement calculated based on actual hours worked, using the 12.07% accrual method. Alternatively, employers can opt for rolled-up holiday pay, a method applicable exclusively to irregular hour and part-year workers.

Rolled-up Holiday Pay

Rolled-up holiday pay allows employers to include an additional amount with every payslip to cover a worker’s holiday pay, instead of paying it when the worker takes annual leave. The calculation involves 12.07% of the worker’s total pay, representing the proportion of statutory annual leave in relation to the working weeks of each year. If employers choose this method, the entire amount of leave for irregular hours and part-year workers is paid at the ‘normal’ rate of pay.

Considerations for Employers

Employers intending to implement rolled-up holiday pay should review workers’ contracts to ensure compliance and avoid unintentional variations. For those opting not to use rolled-up holiday pay, the existing 52-week reference period method can be employed to calculate holiday pay, considering the worker’s previous 52 paid weeks.

Payment in Lieu

If irregular hour or part-year workers do not utilise their accrued holiday entitlement upon leaving employment, they are entitled to a ‘payment in lieu.’ Employers should calculate this by determining the remaining holiday entitlement and computing the holiday pay for the period. Deductions should be made for any holiday taken during the employment period.

Conclusion

As the new Holiday Pay Calculation rules come into effect, employers must stay informed and adapt their practices accordingly. Compliance with these regulations not only safeguards against legal issues but also fosters a fair and transparent work environment. By understanding the nuances of holiday pay entitlement and calculation, employers can ensure that their workforce is compensated appropriately for their time away from work.

If you have any questions or wish to discuss holiday pay for your business, please contact the Employment Department.

 

In the circumstances, piecing together the chain of events and detailed history was essential before any further action could be taken or his case put forward to the Home Office which involved detailed instructions, and a forensic examination of the employment/funding and history of the matter.

Having extracted the evidence, Emma was able to write a compelling and cogent letter in support of a review of his application for the Global Talent visa, using the Immigration rules and caseworker guidance alongside the Dr’s own evidence and documentation evidence. Whilst pulling this together was necessary and speed essential, so too was clarity and ensuring a balanced response.

We are very pleased to report that the client’s application has been successful. Whilst good sense may prevail and one can see the sense in approving the Global Talent visa at a high level, that approval and good sense does not necessarily follow.

In addition, successful application does not always mean that the client’s position becomes regularised, i.e the application may be allowed, but they remain an ‘overstayer’ within the regulations, and experience issues further down the line on any application for further or indefinite leave to remain (FLR/ILR). Relevant experience in this area was essential to understanding that.

The case was successful and the client’s position thankfully regularised. Knowledge of both immigration and employment law was essential to the success of this. The end result is that the client is able to continue his good work in research and Emma is presently speaking to Imperial College London, about referrals, both assisting its future doctors in immigration applications and research scientists in Immigration and visa applications.

If you have any questions or wish to discuss further, please contact the Employment Department or Emma Peacock.

Moving job should be a straightforward matter, but more often than not employees either don’t have a copy of their most recent employment contract or, if they do have copy, don’t look at it for myriad reasons.

When an employee leaves, a good employer will typically arrange an exit interview with a leaver. This is an opportunity for the employer to run through a checklist of items that a leaver needs to deal with before they depart e.g. returning company property, handover of work. Employers should also use that meeting as an opportunity to remind a departing employee of their ongoing obligation of confidentiality and any restrictive covenants they are subject to. Collectively these obligations are commonly referred to as post-termination obligations.

However, so often when we are instructed, we discover that this has not happened, meaning that employee may be about to blithely embark on a new role with a direct competitor, may be setting up themselves in competition, may be contacting clients and contacts that are protected or contemplating poaching former colleagues. However, even if an exit interview does take place, an employee may have their own plans regardless.

Post-termination restrictions to watch out for

A well drafted employment contract will typically contain the following suite of post-termination restrictions:

• Non-compete – these clauses are inserted to prevent the employee from working for a direct competitor of their employer. A well drafted clause will normally home in what is meant by a direct competitor. These clauses may even go further and say that an employee cannot set up on their own and work in competition. (Check out the government website for more details) 
• Non-solicitation – a clause of this type will be included in the employment contract where the employer wishes to protect against its clients and contacts from being enticed away to work with the employee somewhere else.
• Non-poaching – this clause is designed to deter the employee from encouraging their former colleagues to leave their employment.
• Non-dealing – this restriction is sometimes inserted to widen the effect of the above covenants, so that a departing employee is prevented from soliciting or poaching, but also that they cannot even deal with / have contact with the people defined in those clauses.
• Confidentiality – this is an ongoing restriction that carries on in perpetuity. If well drafted, the clause will contain a concise list of information that is considered to be confidential and should not be utilised in any way by the employee.

Action points for employers and employees

If you’re an employer, ensure you have an exit interview/meeting with a departing employee. Make it clear to them what restrictions are going to apply to them after they leave and confirm it in writing to the employee.

Review your existing employment contracts and check that they contain appropriate and properly drafted post-termination obligations.

If you’re an employee, familiarise yourself with the terms of your contract and understand what you can and cannot do after leaving employment. If you are unsure, you could either take pre-emptive legal advice or seek clarification from your employer. Ensure that any clarification is in writing, so you can rely on it later if needs be.

If you’re an employer and you’ve discovered that an employee has left and is now acting in breach of their contract or you’re an employee that’s now being pursued by your former employer, please contact Aaron Heslop for a no obligation discussion.

Furthermore, if you’re looking to review your existing employment contracts, we would recommend a discussion with our Employment Team.

Pregnant employees and those returning from family leave to be given priority status in redundancy situations from April 2024

What does this mean?

From 6 April 2024, employees who are pregnant or returning from maternity, adoption or shared parental leave will all have the right to be offered a suitable alternative vacancy, if one is available, before being made redundant. This gives these employees priority access to redeployment opportunities over other redundant employees.

When does this priority status apply to pregnant women?           

Protection under the new legislation begins when the employer has been notified of pregnancy and 18 months from the child’s date of birth if notified to employer before the end of maternity leave (or 18 months from the Expected Week of Childbirth if not notified).

For women who suffer a miscarriage, the protection ends two weeks after the end of the pregnancy, for pregnancies ending before 24 weeks (as pregnancies ending after 24 weeks are classed as stillbirths and the employee would be entitled to statutory maternity leave).  

What about employees who adopt?

The protection begins at the beginning of adoption leave and ends 18 months from date of placement or date of entry into Great Britain (if overseas adoption).

Is it the same for shared parental leave (SPL)?

A parent needs to take only a minimum of 6 weeks’ consecutive shared parental leave before becoming eligible for 18 months of protection.

How does this affect your business?

You’ll need to bear the above in mind for any restructures taking place after April 2024. There will now be more employees who are potentially going to be given priority status, which may mean you’ll need to carry out a selection process amongst priority status employees at risk of redundancy where there aren’t enough vacancies. Careful consideration will need to be applied here to prevent claims of discrimination.

You may also see a take up of SPL because of the additional protections the employee will benefit from.

It’s important to comply with the law as an employee that isn’t offered a suitable alternative vacancy when they have priority status would have a claim for an automatic unfair dismissal, which would mean a compensatory award that is not capped. There’s also no requirement to have two years’ service to qualify for this type of claim. The employee may also have a claim for discrimination. Given the significant penalties, employers will need to exercise extreme caution and it’s strongly recommended to take legal advice before making redundancies.

 

The obvious theme being the ‘dismissal’, and the fact that employment is ending or has ended. However, in many cases, those concepts are used interchangeably as if they all represent the same claim, yet they are all very distinct and separate claims that have to be considered against the applicable legal principles. A bit like an Urban dictionary, we will tell you what they really mean…

Summary Dismissal

This one is easy – a summary dismissal is a dismissal of an employee without any notice (and without paying them any notice either). Thus, it is quite common in cases of gross misconduct for the employee to be summarily dismissed. 

 

Wrongful Dismissal

This is a breach of contract claim, namely that the employer has dismissed the employee in breach of the terms of the employment contract.

If the employment contract provides that the employee is entitled to 3 months’ notice on termination, but the employer only gives 2 months’ notice, then this will give rise to a wrongful dismissal claim. It is a contractual claim, and the employee will point to the fact that they have suffered loss – 1 month’s loss of salary and benefits.

Often this claim is pursued when the employer terminates without any notice (see summary dismissal above), but the employee contends that the employer did not have grounds to terminate without notice. This claim is not concerned with the fairness of the procedure followed; it is simply an anaylsis of whether the employer has breached the employment contract.

This claim can be pursued in the Employment Tribunal but a cap of £25,000 applies on the value of that claim. Thus, if the wrongful dismissal claim is worth more than £25,000, it may need to be pursued in the High Court.

 

Unfair Dismissal

To bring a standard unfair dismissal claim, the employee needs 2 years continuous service with their employer. No such service requirement exists for wrongful dismissal claims.

If an employee has more than 2 years of continuous service and is dismissed by their employer (irrespective of whether notice was given), they can claim that they have been unfairly dismissed.

The Employment Tribunal will consider three key issues. Firstly, did the employer have a potentially fair reason to dismiss the employee. There are currently 5 recognised potentially fair reasons – capability, conduct, redundancy, breach of a statutory duty or restriction, and some other substantial reason. The dismissal must be for one of those reasons. Secondly, the Tribunal has to be satisfied that the employer followed a fair procedure in reaching the decision to dismiss and thirdly, that the employer acted reasonably in treating that reason as sufficient to warrant dismissal.

Thus, this claim is not about notice; it is about the fairness of the dismissal and will involve an analysis of the reason for dismissal, the procedure followed and whether the decision to dismiss was reasonable. 

 

Constructive Dismissal

The fundamental principle of a constructive claim is that the employee has resigned, as opposed to the employer expressly dismissing them. Note that like an unfair dismissal claim, the employee needs 2 years of continuous service with their employer to pursue a constructive dismissal claim.

In many cases, the employee will resign without notice, but equally, claims can be pursued even if the employee works their notice following their resignation. The employee typically argues that they are resigning either in response to a repudiatory breach of their employment contract by the employer (an express or implied term) or that the employer has engaged in cumulative conduct over a period, resulting in a ‘final straw’ incident, leaving them no choice but to resign.

There is much case law on examples of successful constructive dismissal claims, which can include reductions to, or non-payment of, salary or where the employer has breached trust and confidence.

In essence, the employee has to prove that they have been dismissed ‘constructively’ by their employer. If they are able to overcome that burden, then the Employment Tribunal will consider the fairness of the ‘dismissal’. 

All clear…well, brace yourselves…it is possible for an employee to be summarily dismissed (for say gross misconduct), who then alleges that they were unfairly dismissed (because, for instance, they do not believe the employer followed a fair process in dismissing them) and also alleges that they were wrongfully dismissed (on the basis that the employer did not have grounds to terminate without notice)…

We like to keep things straightforward at Sherrards; we cannot say the same for the law.

 

First the controversy with skipping the queue for the Queen’s lying-in-state, then the conviction of his brother for child sex offences and now his resignation from ITV on the back of the disclosure of his affair with an employee. The most recent controversy regarding his affair raises a myriad of employment law issues, such that this scenario could very easily find its way into an employment law exam paper. The reality is that had Schofield not resigned, ITV would have had a legitimate basis to take disciplinary action:

• It is being suggested that when the affair was investigated by ITV bosses in 2020, Schofield denied that it had happened. Clearly that is a dishonesty issue, and one which is sufficient on its own to result in a breakdown in trust and confidence. Such a breakdown will very often result in dismissal. Clearly there may have been mitigating circumstances that would have influenced that denial, not least the fact that Schofield had only just divulged his sexual orientation publicly in early 2020. Nevertheless, he lied to his employer about a very serious issue, and those indiscretions are often irretrievable.  
• It also raises the question about whether his actions were contrary to any ITV policy on relationships at work, which are commonplace within many organisations. There can be numerous implications of colleagues engaging in personal relationships at work, and particularly so in this case where one of the employees has the public profile that Schofield does.
• It would appear that the issue resulted in a feud between Schofield and his co-presenter, Holly Willoughby. Clearly, the dynamic between them is crucial to the success of a breakfast show and if that relationship has also broken down, it is difficult to see any other outcome than him being removed from that role.
• You can also understand ITVs concern about the reputational damage associated with this fall out. There has been some suggestions that it might mark the end of This Morning but such is the concern about the damage to the brand, that ITV have engaged a barrister to review how the matter was handled in 2020. Most disciplinary policies will have a list of offences that constitute gross or serious misconduct and that will typically include actions of the employee that serve to bring the employer into disrepute. Putting aside the rights and wrongs of the treatment that Schofield is now receiving, the fact remains that his actions have created a situation where ITV and This Morning is under some unwanted scrutiny.

With all of the above in mind, you can understand Schofield’s decision to resign, as clearly his position had become untenable. In many employment situations, it can be better for the employee to resign if facing the inevitable dismissal or disciplinary action; the difference here that this situation is being aired so publicly that the damage has already been done for both parties.

Mark Fellows, Head of Employment at Sherrards solicitors.

Hot on the heels of the US Federal Trade Commission’s (“FTC”) proposal for a complete ban on non-competes, the UK Government has announced its intention to limit post termination non-compete clauses to just three months. This comes as part of a wider announcement of proposals which the government says have been made to help boost the economy, in this case by promoting competition and productivity in the workplace.

When will this happen?

It’s unclear at the moment when this restriction will come into force. Any reform to the rules on non-complete clauses will require primary legislation, which the government’s press release states it will be done “when parliamentary time allows”, so when that will be is anyone’s guess.

What’s the impact of this change?

At first glance, this will cause alarm for many employers, particularly those in recruitment or sales where the exposure of former employees joining a competitor or setting up in competition is a real concern. However, there’s long been criticism in the courts for non-compete clauses with judges seeing them as unreasonable restraint of trade, particularly where there are non-dealing and non-solicitation clauses which can arguably offer sufficient protections to a business’ legitimate interests, without there being a total ban on competition.

What we do know is that the government have confirmed that limiting non-compete clauses will not affect restrictions during garden leave or paid notice periods (the proposal relates to post-termination only), or change the position on confidentiality clauses or non-solicitation clauses (which prevent employees from contacting previous customers, clients or suppliers in an attempt to win their business).

However, amongst other things, the government’s press release was silent on:

• non-dealing clauses (which sit somewhere between non-solicitation and non-compete clauses and are generally, therefore, easier to enforce than non-compete clauses); and
• whether the proposals will have retrospective effect (it’s likely that they will so an employee who spends 3 months of garden leave would likely not be restricted after the end of their employment, regardless of whether the restriction is longer).

What should employers do now?

Until the proposal becomes law, there’s no legal requirement to amend any existing restrictions, however employers that currently have restrictions beyond 3 months, or who are considering introducing them, should think carefully about whether these are likely to be enforceable now, and in the future.

Restrictive covenants are a complicated area and for the best chance of them being enforceable, they should be regularly reviewed. This is particularly important because the courts will only consider whether a restriction is enforceable at the time it’s entered into, not at the time the employer seeks to enforce them (by which time the employee/former employee may have a far more senior position, making the restrictions even more important).

For advice and assistance with drafting enforceable restrictive covenants, contact the Employment Team at Sherrards.

Partner in Employment law at Sherrards Mark Fellows, answers some common questions ahead of another heatwave:

Do I have to pay employees who are unable to get into work due to travel difficulties?

Take a look at your employment contracts and Employee Handbook. These might specify whether an employee is entitled to be paid if they are unable to get in due to travel problems. If they are silent, however, then the default position is that the obligation is on the employee to get into work, regardless of any difficulties caused by the weather or otherwise. If they do not attend, they are on unauthorised absence and they are arguably not entitled to be paid.

Be careful, however, if you are going to take this approach. Firstly, there is a potential that the employee can argue that failure to make payment in these circumstances is an unauthorised deduction from wages (assuming this is not covered in the employment contract). The defence to this would be that there was no entitlement to pay as no work was done, but it may be an argument you would prefer to avoid. Secondly, you should assess whether the financial benefit of withholding pay is outweighed by the impact on staff morale and productivity. This is particularly so if the weather and travel conditions are extreme and, even with the best of intentions and efforts, employees are unable to get in.

Above all, you should ensure that your approach is consistent. Ideally, tell staff in advance (in written format, e.g. memo or email) what your approach is going to be or, even better, have an “Extreme Weather Policy”.

Consider whether employees are able to work from home, whether alternative travel arrangements can be made or whether there are other ways around the issues – e.g. travelling outside of peak times to avoid the worst of the heat. Otherwise, clearly explain to employees that either: (a) any time off will be unpaid; (b) time off will be paid but that they are expected to make up the time later; or (c) they can request the time off as paid annual leave or unpaid time off for dependant’s leave (see below). Prior notification is particularly important if you have made payments in the past in such circumstances.

As an aside, be careful if you are trying to insist on employees taking annual holiday retrospectively. Employees will need to agree to this unless the contract specifically allows for you to do this.

 

I have an employee who says they cannot come in because their child’s school has closed due to the heat. What shall I do?

Employees with responsibility for a dependant are entitled to emergency time off in circumstances in which there is an unexpected disruption to childcare. Unless the school closure was announced a reasonable time in advance, such that the employee had sufficient time to arrange alternative childcare, this would probably be an emergency situation and employees are entitled to take time off and not suffer any detriment for doing so.

Strictly speaking, the time off is unpaid (unless the contract of employment says otherwise) but employers may again want to consider the impact on morale that this approach would have. Again, it is important to be consistent in your approach. You should be especially careful where other employees who are unable to make it into the office due to travel are being paid.

 

One of my employees failed to come into work today, blaming the heatwave and travel issues. I think he is using it as an excuse and could have easily come in. Where do I stand?

If you believe that an employee is falsely using the weather conditions as an excuse for absence or lateness, this can be treated as a disciplinary matter. If you consider the matter to be serious enough (e.g. if it is a persistent or blatant case), you should investigate in line with your disciplinary policy and take action as appropriate.

However, in less serious or one-off cases, you may be better placed simply having a quiet word with the employee and letting them know that any further time off will have to be taken as holiday or will be unpaid. Bear in mind that it can often be difficult to prove or disprove an employee’s ability to come into work in these circumstances.

 

Our air conditioning isn’t great. Is there a maximum temperature above which I am obliged to shut the workplace?

In short, no, there is technically no maximum temperature above which people aren’t allowed to work. In offices or similar environments, the temperature should be “reasonable”. You should have thermometers around the workplace so that you can check the temperature – although temperature itself is not the sole issue, since humidity, radiant heat sources and clothing are also factors.

The TUC has lobbied for an upper limit on workplace temperature to be introduced – suggesting that employers be forced to take steps when the temperature inside hits 24˚C. Under the TUC’s proposals, staff could be sent home and employers prosecuted if temperatures reach 30˚C (or 27˚C for those whose work is physically demanding).  However, these proposals are currently not reflective of the law.

If your working environment is getting too hot to be considered “reasonable” then you could be putting your staff’s health and safety at risk. If, having taken steps to try to control those risks, the temperature is becoming dangerous enough to endanger health (e.g. through heatstroke etc) then you would be best advised to shut the workplace.

 

The above provides a general guide to issues that might arise. However, each situation is unique and different considerations may apply in your case. We would therefore recommend that you consult a solicitor, or another suitably qualified person, about your specific circumstances.

To find out more about employers responsibilities during a heatwave, click here to speak Employment Partner Mark Fellows. 

How often have we wandered into a bakery asking them to make a celebration cake, personalised to suit the occasion. Would you ever consider that such a request could give rise to 7 years of litigation, culminating in a recent decision by the European Court of Human Rights?

No, me neither.

But this is precisely what happened when Gareth Lee visited Ashers Bakery, a family run bakery in Belfast, with a request that they make him a cake with a picture of Bert and Ernie from Sesame Street and the slogan ‘Support Gay Marriage’. The bakery refused to fulfil the order because they felt it contravened their Christian beliefs.

Mr Lee, a gay rights activist, argued that by refusing to fulfil his order, the bakery had discriminated against him on grounds of his sexual orientation. Mr Lee, backed by the Equality Commission in Northern Ireland issued a claim for discrimination. He also argued that the refusal infringed his political beliefs because at the time he made the cake order, Northern Ireland did not legally recognise same sex marriages.

Ashers, backed by the Christian Institute in Northern Ireland, fought the case on the basis they maintained that they had not refused to fulfil the order because Mr Lee was gay, but because the order requested was contrary to their religious beliefs.

What followed was a series of hearings and appeals. At the initial hearing, the Court found in favour of Mr Lee and held that he had been discriminated against on the basis of his sexual orientation and his political beliefs. The Judge acknowledged that Ashers had “genuine and deeply held” religious views, but said their business was not above the law. The compensation to be paid to Mr Lee was £500.

Ashers appealed to the Court of Appeal but were unsuccessful.

They went one step further and appealed to the Supreme Court, the highest Court in the UK, in 2018. On this occasion, the Court ruled in favour of the bakery, effectively confirming that the owners of the bakery had to retain their rights to freedom of expression and religion.  

Mr Lee then took his case to the European Court of Human Rights, but they ruled his case inadmissible, suggesting that not all avenues have been exhausted in the UK. It remains to be seen if Mr Lee will pursue this further.

It is a case that has divided opinion. You can see the respective positions, as Mr Lee understandably felt his rights and beliefs have been infringed, but likewise, the bakery felt that their rights and beliefs would equally have been infringed had they fulfilled the order. In such a case, how do you decide whose rights and beliefs should be given preference over the other? Does one of set of rights and beliefs have greater value over the other? Possibly, a material factor in this dispute may have been the fact that the bakery always argued that they were not refusing to serve Mr Lee because of his sexual orientation; rather it was just a refusal to fulfil that specific order.

And, in case you were wondering, another bakery agreed to make the exact cake that Ashers refused to make, so despite the outcome of the latest instalment of the litigation, it could be said that Mr Lee was still able to have his cake and was able to eat it!

To find out more, please contact Mark Fellows.