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Companies Act 2006 - Articles of Association

From 1st October 2009, the Articles of Association (“articles”) will form the main constitutional document of a company. Please see the separate briefing note “Companies Act 2006: Memorandum of Association” for details regarding changes to the memorandum. All companies must

Companies Act 2006 - Memorandum of Association

From 1st October 2009, the Memorandum of Association (“memorandum”) of a company will no longer form part of a company’s constitution. The Companies Act 2006 (“2006 Act”) defines a company’s constitution as its Articles of Association and any resolutions and agre

Services for Business

Services for Business We examine the commercial rationale behind any transaction before drafting the necessary legal documents. We offer a comprehensive range of legal commercial services including: Company Documents – reviewing and drafting new Memorandum of Association, Articles of

The Companies Act 2006 - Shareholders Resolutions and Meetings

The Companies Act 2006 provides for private companies to pass resolutions:- at a meeting; or by written resolution. Please see the separate Briefing Note “Companies Act 2006: Written Resolutions” for further information on written resolutions. Where the Act requires a resolution

Companies Act 2006 - Synopsis of New Act

The new Companies Act 2006 represents the most fundamental reform of company law for more than fifty years and is said to be the longest Act ever passed by Parliament. Much of the previous law affecting companies will be repealed or amended by the Act. Some of the major changes include: Director

Companies Act 2006 - Electronic Communications with Shareholders

Provisions came into force on 20th January 2007 to enable companies and shareholders to communicate electronically. This briefing note gives general guidance on the new provisions. If a company wishes to use the electronic communication provisions legal advice should be sought to ensure that the cor

Companies Act 2006 - Board Minutes

A company’s articles normally contain provisions regarding board minutes, either expressly or by reference to keeping written records of decisions taken.  As one of the directors’ duties under the Companies Act 2006 is to act in accordance with the company’s constitution, each

Companies Act 2006 - Exercise of Members' Rights

The Companies Act 2006 provides that a company’s articles may provide for another person to be nominated to exercise some or all of the rights of the registered member. Such nominated rights can only be enforced by the registered member. Where a member holds shares on behalf of one or more p

Companies Act 2006 - Written Resolutions

The provisions in the Companies Act 2006 relating to written resolutions came into effect on 1 October 2007. Private companies are currently able and will still be able to pass shareholders resolutions by way of written resolutions rather than holding a general meeting. However from 1 October 2020 w

How to protect your business from interruptions (extract from the June 2012 edition of Commercial Law News)

Contracts usually contain future or ongoing performance obligations that could be affected by problems with business continuity  - such as terrorism, natural disasters or traffic nightmares caused by the Olympic Games.  Under English law a party that is unwilling or unable to perform its o

Companies Act 2006 - Company Names

Provisions of the Companies Act 2006 regarding a company’s name come into force on 1st October 2009. A name will not be registered if:- Its use would, in the opinion of the Secretary of State, constitute a criminal offence. It is offensive in the opinion of the Secretary of State.

Employment Law Country Comparison - July 2012

Please click on the below link to access the updated Employment Law Country Comparison        Employment Law Country Comparison - July 2012 If you have any questions regarding the above or require additional information or assistance, please contact Melanie Smi

Companies Act 2006 - Appointment of Auditors

Provisions of the Companies Act 2006 came into force on 1st October 2007 regarding the appointment of auditors for private companies whose financial statements need auditing. The appointment of auditors for a private company is to be made by the shareholders by an ordinary resolution, although the

Commercial Law News - October 2012

Companies Act fines increase Providing goods or services?  Age discrimination ban took effect  on 1 October 2020 Limitation of liability cap stuck down Contract negotiations Beware: an email chain can create an enforceable guarantee 1.    &n;

UK Company Law Reform

A SUMMARY OF UK COMPANY LAW REFORM UNDER THE COMPANIES ACT 2006 The constitution and formation of a company For some years, the UK Government had been intending to reform UK Company Law.  This resulted in the Companies Act 2006 (“the 2006 Act”). Why the need for reform? The prev

Commercial Law News - June 2012

Rights of termination in contracts Grace period for “Cookies” ended on 25th May 2012 How to protect your business from interruptions Are you ready for the Olympics?    SONNING EVENT - A Charity Evening is being held at The Mill at Sonning on Sat

COMMERCIAL LAW NEWS - APRIL 2013

1.         New Regulations on Late Payment of Commercial Debts; in force from 16th March 20132.         Proper execution of company documents3.         “Liquidated Damages&rd;

A Guide to the Role of Company Secretary

A          INTRODUCTION In conjunction with this Guide please also see the separate Briefing Notes “A Guide to Director’s Responsibilities”, particularly section C thereof. Private companies are no longer obliged to appoint a Company S

EMPLOYMENT LAW NEWS - MARCH 2013

That Poundland case Jarndyce redux Sticks and stones Flexible work requests and flexible parental leave Better redundancy deals for older workers? Unreasonable warnings can make a dismissal unfair Rag, tag and bobtail TUPE news galore (if you like that sort of thing) And finally... "What&r;

EMPLOYMENT LAW NEWS - APRIL 2013

Double jeopardy Post termination victimisation not covered by Equality Act 2010 Mind the perception reality gap Decisions, decisions You're out of time Revisiting old warnings Secret squirrel Temporary RTI reprieve for small businesses A can of worms, or a diet? Guide to current key facts

EMPLOYMENT LAW NEWS - MAY 2013

Welcome to the New World - fees in the Employment Tribunals & EAT But can we have our money back, please? Employee Shareholders: a game of Parliamentary ping-pong The Queen's Speech New Employment Tribunal Rules - but what, and when? Conscientious Objection to specific duties - just how w

Olympic Sundays (extract from June 2012 edition of Employment Law News)

In case you are overcome with excitement at the prospect of the Olympic torch appearing on a High Street near you, here is a quick reminder of the employment law impact of the suspension of the usual Sunday Trading laws from 22nd July to 9th September. Shop workers can opt out of Sunday workin

Increase in tribunal limits (extract from February 2012 edition of Employment Law News)

The limits for employment tribunal awards have increased.  Below is a list of the main changes which will apply to dismissals (or other events) taking place on or after 1st February 2012:  Maximum compensatory award for unfair dismissal - £72,300 (no maximum in discrimination

Joint Ventures - Tenders

Introduction Many small businesses would not be able to put in a tender bid based solely on their own resources.  Pooling resources with other businesses opens up a whole new area of work. This article discusses the main options available to businesses wishing to work with other businesses in

Employment Law News - January 2013

Political beliefs should be protected Short term and one off service provision changes When training schemes don’t add up Volunteers not covered by discrimination law Settling TUPE claims Clawback clause in a compromise agreement was enforceable You don’

EMPLOYMENT LAW NEWS - February 2013

  New tribunal limits - for now Religion in the workplace - a question of balance "You're fired!" (but not just yet) The inexorable march of employment law reform goes on and on Accentuate the negative... Poor investigation made dismissal unfair The chance a dismissal might have been

Whistle-blowers' protection for LLP members (extract from June 2012 edition of Employment Law News)

The decision of the EAT in Clyde & Co LLP v Winkelhof [2012] UKEAT 0568 holds that LLP members may be “workers” for the purposes of whistle-blowing protection, even if they are remunerated in part by a profit share.  The case concerned an equity member of an LLP who worked

Grace period for 'Cookies' ended on 25 May 2021 (extract from the June 2012 edition of Commercial Law News)

Last year the EU’s amended Privacy and Electronic Communications Directive came into effect in UK law in the form of the Privacy and Electronic Communications (EC Directive) Amendment Regulations 2011. This was intended to protect the privacy of internet users by implementing rules on how elec

TUPE anoraks this way (extract from the July 2012 edition of Employment Law News)

For sad TUPE anoraks, Landsorganisationen i Danmark v Ny Molle Kro and Daddy’s Dance Hall are classic cases, where transfers of leases of a bar and nightclub respectively were found to be transfers of undertakings. LOM Management Ltd v Sweeny (Transfer of Undertakings) [2012] UKEAT was a case

Enterprise & Regulatory Reform Act becomes law - and sweeps up a motley collection of employment law related matters

On 25th April 2013, the Enterprise & Regulatory Reform Act 2013 became law, on receiving Royal Assent. It is an enormous Act, but in Part 2 it brings into law a number of provisions which have been discussed by Emplaw Online and others over recent months, and which employment lawyers need to no

Rights of termination in contracts (extract from the June 2012 edition of Commercial Law News)

When seeking to terminate a contract care needs to be taken to avoid finding yourself in breach instead, as this could affect your entitlement to damages. There is a well-established rule in English law that if X terminates a contract with Y for a flawed reason but later discovers there was a better

Employment

Employment Morgan Russell is recognised for offering practical, expert advice to both employers and to senior employees. This area of law frequently changes and getting the right advice at the right time is vital. We provide sound employment law advice in a commercial context, guiding clients thr

Pension Summary

Leslie Sharpe of Clairville York Limited has kindly supplied the following summary on the pension reforms that are due between 2012 and 2016, which you may find very useful. PENSION REFORM INFORMATION SUMMARY Pension Reform is the Government’s way of ‘encouraging’ the millions of

Early retirement benefits transfer under TUPE (extract from June 2012 edition of Employment Law News)

In any business sale, the buyer and seller are concerned to be as sure as they can be that rights and obligations will transfer to the buyer under TUPE – and in areas where there is doubt, will usually provide for an indemnity by the seller for any rights not accounted for in the purchase pric

NATIONAL EMPLOYMENT SAVINGS TRUST AUTO ENROLMENT (Special Edition)

    Morgan Russell SolicitorsHillbrow HouseHillbrow RoadEsherSurrey  KT10 9NW Telephone:  +44 (0) 1372 461411Fax:  +4 (0) 1372 461401Email:  [email protected] Charlwood Leigh LimitedCameron HouseChurch StreetLeatherh

The Help III (extract from June 2012 edition of Employment Law News)

Not so long ago we reported the case of Zarkasi v Anindita and anor [2012] UKEAT in which a race discrimination claim by an au pair, who had entered the UK to work using falsified documents, failed because the unfavourable treatment related not to her race but to her lack of any right to live o

EMPLOYMENT LAW NEWS - JUNE 2013

Equal Pay Audits: reducing inequality or simply heralding a rise in settlements? Take your 'clean record' with you If in doubt, stick to the Code ET rules on Seldon To consult or not to consult... Justice and Security Act 2013 Contract, contract, contract Follow up to our May Newsletter &nd;

A Guide to Director's Responsibilities

A          INTRODUCTION 1.         Company Administration Company administration can be a time consuming nuisance for busy Directors.  However, it is an important part of managing a business and should no

The chance a dismissal might have been fair is no bar to reinstatement

Reinstatement and reengagement are remedies a tribunal must consider wherever a claimant indicates a desire for either of these remedies. Arriva London Ltd v Eleftheriou looks at the situation where a tribunal finds that a dismissal is unfair, but on the facts there is a chance that the claimant wou

Equality Act Guidance (extract from the September 2012 edition of Employment Law News)

Nearly two years after most of the Equality Act 2010 came into force, the Government Equalities Office has published a series of guides to the changes made by the Act.  Particularly useful to employers will be to the “quick start” guide to the restriction on asking about health que

A Guide to Agency Agreements

This guide will consider the following: The Nature of Agency Agreements; Types of Agency Agreements; Tax Issues; The Law and Agency Agreements; and Common Terms in Agency Agreements. 1.    THE NATURE OF AGENCY AGREEMENTS An agency occurs when one party (the agent) has aut

No compensation for manner of dismissal. Ever (extract from February 2012 edition of Employment Law News)

Arriva London South Ltd v Nicolaou concerned a bus driver who complained that his employers were imposing an unlawful detriment when they withdrew rest day overtime from him.  The decision was made under a policy of only giving overtime to those workers who had agreed to opt out of the 48 hour

A little nest egg (extract from the October 2012 edition of Employment Law News)

This is the month that auto-enrolment comes into force for the biggest employers, who must have in place a scheme enrolling employees aged 22 or older and earning over the tax threshold into a pension scheme. Minimum contributions will start at 1% of eligible earnings from each of employer and emplo

Rag, tag and bobtail

As the Enterprise and Regulatory Reform Bill wends its way through parliament, the government keeps adding miscellaneous bits & bobs to it. Two recent additions enhance the rights of whistle-blowers and extend protection to employees dismissed on the ground of political opinion. One set of ame

Employer entitled to refuse overtime to employee who refused to sign opt out from Working Time Regulations (extract from February 2012 edition of Employment Law News)

Arriva London South Ltd v Nicolaou concerned a bus driver who complained that his employers were imposing an unlawful detriment when they withdrew rest day overtime from him.  The decision was made under a policy of only giving overtime to those workers who had agreed to opt out of the 48 hour

The unsigned contract in the desk drawer bites back (extract from the November 2012 edition of Employment Law News)

It is a familiar scenario: after a promotion, an employee is sent a new contract to sign.  It includes some new benefits, but also there are some post termination restrictions in there.  The employee looks it over, perhaps, then tucks it away at the back of a drawer to deal with later, or

Beecroft redux (extract from the July 2012 edition of Employment Law News)

It seems we were hasty in our last Newsletter when we commented that the Government’s proposals on compromise agreements in the Enterprise and Regulatory Reform Bill amount to no more than a change of name.  A new clause has snuck into the bill at committee stage which looks, at first sig

When should the practicability of a return to work be considered? (extract from the November 2012 edition of Employment Law News)

With cuts on tribunal awards on the way, and it becoming increasingly difficult to find alternative employment, the remedies of reinstatement and re-engagement, which have rather fallen into disuse, are perhaps due a revival. Rembiszewski v Atkins Ltd is a decision on when the practicability of the

No guarantee payments for employees who agree a shorter week (extract from the November 2012 edition of Employment Law News)

In the continuing harsh economic climate, it is not uncommon for employers and employers to strike a deal whereby employees agree to work shorter hours, or take lower wages, to avoid being made redundant. Abercrombie & v AGA Rangemaster Ltd deals with just such a situation, and in it the EAT con

Which Business Structure?

Choice of business – Sole trader, partnership, limited company or LLP? When starting up your business one of the issues to think about is what sort of legal structure you might need.  There are four widely used forms of business structure used in the UK, as follows: sole trader a par

Unreasonable warnings can make a dismissal unfair

Where an employee is dismissed for misconduct and there was a live final warning on their disciplinary record which appears, on the evidence, to have been "manifestly inappropriate", then a tribunal should not just look at whether the employer has taken a reasonable approach to the event triggering

Jemma Thurlow LLB

Jemma Thurlow LLB - Solicitor      Jemma Thurlow LLB - [email protected] Tel: +44 (0)1372 461411Fax: +44 (0)1372 461401 Jemma qualified in 2010 as a Solicitor.  She trained with a regional legal 500 firm in Surrey having achieved a distinction in h

No time extension for litigant in person (extract from the July 2012 edition of Employment Law News)

A forensic accountant, who had won an earlier victimisation claim against one of her employers on the basis of an unfair reference, has had her appeal to the EAT  struck out because she filed it outside the 42-day time limit for appealing.  Whilst she was not a lawyer, the EAT ob

Compulsory retirement at 67 can be justified (extract from the September 2012 edition of Employment Law News)

Now that there is no default state retirement age, employers who have retained a compulsory retirement age must justify it.  Sweden has retained a rule allowing employers to compulsorily retire all workers at 67 - a rule that has been found to be justified by the ECJ in Hörnfeldt v Posten

Fees for tribunals - an afterthought (extract from February 2012 edition of Employment Law News)

Consultation has now opened on the proposal to charge fees for employment proceedings – not on the principle of charging a fee, but on the detail how much the fees will be and when they will be payable.  They will be far from nominal, with the lowest level suggested being £150, risi

Feeling left out? (extract from the November 2012 edition of Employment Law News)

Tamang v ACT is an illustration of the importance of careful drafting - and of the importance of not making assumptions.  The case arose after a pair of security guards claimed that they had been unfairly dismissed for a TUPE-related reason after a service provision change, and that they had no

Company records which must be kept

Company Records are defined in the Companies Act 2006 as being any register, index, accounting records, agreement, memorandum, minutes or other document required by the Companies Acts to be kept by a company and any register kept by a company of its debenture holders.  They may be kept in elect

Offshore workers can be required to take annual leave while onshore (extract from February 2012 edition of Employment Law News)

Offshore workers in the oil and gas industries generally work on a ”two weeks on, two weeks off” shift basis. In Russell & Ors v Transocean International Resources Ltd & Ors (Scotland) offshore workers, whose contracts required that they take their leave during periods

Revisiting old warnings

After we reported a case in last month’s newsletter (Simmonds v Milford Club) where it was thought appropriate to revisit previous warnings if they were “manifestly inappropriate” in considering the fairness of a misconduct dismissal, Davies v Sandwell Metropolitan Borough Council

Union recognition for employees working outside the UK (extract from the November 2012 edition of Employment Law News)

Netjets Management Ltd v CAC is a significant decision for multinational, unionised businesses, which applied the case of Ravat v Halliburton Manufacturing and Services Ltd to applications for union recognition and held that an application by a union for recognition for collective bargaining could s

Union did not victimse member by refusing to continue representation (extract from the July 2012 edition of Employment Law News)

Croad v UCU is a case concerning a university lecturer with disabilities who sought help from her union to bring a disability discrimination claim against her employers.  She became dissatisfied with how they were handling the matter for her and complained.  They eventually withdrew f

New Employment Tribunal Rules - but what, and when?

Back in the summer of 2012, Mr Justice Underhill presented the results of his fundamental review of the Employment Tribunal procedures. Following a consultation by BIS, it was announced that a new set of Rules of Procedure would come into force this year. A final version of the rules has still not b

Corporate Manslaughter

Update R v Lion Steel Equipment Ltd (20 July 2021): In 2011 a steel company (Lion Steel Equipment Ltd) was charged with corporate manslaughter following the death of an employee in May 2008 and a lengthy investigation.  Following the guilty plea, in July 2012 the company was sentenced to a fin

When is the reversal of burden of proof triggered? (extract from May 2012 edition of Employment Law News)

The provision of the Equality Act 2010 reversing the burden of proof in discrimination claims (section 136) means that if a claimant can show facts which could amount to discrimination, then a tribunal must find for him or her, unless the employer can show that there was another explanatio

Changing the EDT (extract from the July 2012 edition of Employment Law News)

It is a truth universally acknowledged that an employer and employee cannot agree between them to change the date on which employment is regarding as ending for the purposes of calculating time limits in tribunal cases.  This is known as the “EDT” or effective date of termination an

Time barred equal pay claims get a new lease of life (extract from the November 2012 edition of Employment Law News)

The Supreme Court’s decision in Birmingham City Council v Abdulla is a significant development in equal pay law, opening the way for many cases which would previously been time barred.  The time limit for bringing equal pay claims in the employment tribunal is 6 months and, unlike other t

Conversion of fixed-terms to permanent contracts - what changes in terms are permitted? (extract from April 2012 edition of Employment Law News)

Huet v Université de Bretagne Occidentale is a case referred to the ECJ from the administrative court in Rennes concerning the French equivalent of the Fixed-term Employees Regulations and makes an important practical point.  The background was that Mr Huet had a series of fixed term con

Tribunals must check patries' availability when listing hearings (extract from the October 2012 edition of Employment Law News)

Listing of tribunal hearings is a perennial problem for all concerned, particularly if many witnesses are required.   University Of East Anglia v Amaikwu was an appeal against the refusal of an application for an adjournment of a hearing of an unfair dismissal and discrimination claim by the

And finally... (extract from May 2012 edition of Employment Law News)

The EAT has considered the employment status of a lap dancer, Nadine Quashie, who worked at a Stringfellows club.  She had made a claim for unfair dismissal, which had been rejected by the Employment Tribunal on the ground that she was not an employee and, therefore, not entitled to claim. &nbs;

With extreme prejudice (extract from the October 2012 edition of Employment Law News)

In Gallop v Newport City Council the EAT have held that an inadvertent disclosure while giving evidence that there had been “without prejudice” negotiations did not waive privilege, and a tribunal should not have taken them into account when assessing an award of compensation. The point

When is a group not a 'grouping' (extract from March 2012 edition of Employment Law News)

Only organised groupings of employees, whose principal purpose is carrying out activities for a particular client, will be transferred under the service provision change (“SPC”) sections of TUPE, and Eddie Stobart v Moreman sheds useful light on what amounts to an “organised g

Domestic workers (extract from February 2012 edition of Employment Law News)

Domestic workers living as part of the family for whom they work can fall under the “au pair” exception to the right to be paid minimum wage.  This exception, and how to determine whether a person falls within it, was recently examined by the EAT in Jose v Julio (and

And finally (extract from February 2012 edition of Employment Law News)

When negotiating employment terms, or severance arrangements, senior managers frequently seek the protection of an indemnity from their employer from legal and other professional fees to cover the costs of being represented in proceedings arising from their actions whilst in post. Coulson v N

'Employee ownership' - full steam ahead (extract from the November 2012 edition of Employment Law News)

No review of recent employment law news would be complete without at least a passing reference to the new proposals to introduce a new "employee-owner" status, which after a very short consultation period, are being rushed through with what some might describe as unseemly haste in order to come into

Poor investigation made dismissal unfair

Employers should take care to investigate allegations of dishonesty involving breach of trust particularly carefully, suggests the EAT in Stuart v London City Airport. Mr Stuart was a ground services agent at London City Airport who was dismissed for gross misconduct. It was alleged that he had gon

Reasons for dismissal (extract from the October 2012 edition of Employment Law News)

Nejjary v Aramark Ltd is a reminder that a tribunal is only entitled to take into account the reasons given by an employer when deciding whether a dismissal is within the reasonable range of responses to misconduct, and should not take into account other matters disregarded by the employer. &nb;

When criticism becomes apparent bias (extract from the October 2012 edition of Employment Law News)

Tribunal Judges have the power, and are encouraged, to deal robustly with weak and vexatious claims (or, indeed defences – sauce for the goose…) and, in doing so, are likely to be critical of the conduct of the case by the party in question.  However, they must take care not to ove

Refusing a settlement offer (extract from June 2012 edition of Employment Law News)

Can a claimant be found to have failed to mitigate their loss if they refuse an offer of settlement during the course of tribunal proceedings? No says the EAT, unless the refusal is “wholly unreasonable”. In Konczak v BAE Systems (Operations) Ltd, an employer made a settlement offer of

It's not unusual... (extract from the November 2012 edition of Employment Law News)

It’s not unusual for there to be parallel proceedings in both the High Court and in the Employment Tribunal – for example, an unfair dismissal claim and a claim for breach of contract for a highly paid employee.  In such circumstances, it is usual for the tribunal case to be put on

What counts as suitable alternative employment? (extract from February 2012 edition of Employment Law News)

Readman v Devon Primary Care Trust is a reminder that, in a redundancy situation, the reasonableness of refusing a suitable alternative job should be judged from the perspective of the particular employee, rather than objectively. The case concerned a senior nurse, made

Discrimination on the grounds of marital status (extract from February 2012 edition of Employment Law News)

The Equality Act 2010, like its predecessors, protects those with the protected characteristic of marriage from discrimination on the ground of that characteristic.  Does this concept, originally introduced to deal with the out-moded practice of dismissing women as soon as they married, which s

'Something more' (extract from the October 2012 edition of Employment Law News)

In Madarassy v Nomura International the Court of Appeal remarked that: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that

Resignation 'with immediate effect' takes immediate effect (extract from May 2012 edition Employment Law News)

Horwood v Lincoln County Council is a useful reminder that although the parties to a contract can, between them, agree to change the end date of a contract, bringing it forward and/or putting it back, that cannot displace the effective date of termination as defined in the Employment Rights Act 1996

Slave labour in a modern context? (extract from the September 2012 edition of Employment Law News)

Earlier this summer, a case brought in the Administrative courts by two benefits claimants made the headlines when two schemes requiring claimants to join unpaid work experience schemes on pain of losing Jobseeker’s Allowance were challenged. In one, a geology graduate already working as a vol

Keep your hair on - are you or are you not a worker? It's a simple enough question, isn't it? (extract from the September 2012 edition of Employment Law News)

The difference between employee, self-employed and “worker” – a category somewhere between the two – is a crucial one, given that many employment protection rights depend on employment status – yet there is no single test to establish which is which. In Hospital Medica

A breach too far (extract from the October 2012 edition of Employment Law News)

In order to establish a claim for constructive dismissal, an employee has to show that he or she resigned in response to a fundamental breach of contract by the employer – and must do so promptly, to avoid being regarded as having waived that breach.  In Logan v Celyn House Ltd, the EAT h

Provisions, criteria and practices (2) (extract from March 2012 edition of Employment Law News)

The second of this month's two disability cases, Burke v The College of Law & Anor, was a decision of the Court of Appeal concerning a mature student at the College of Law who had multiple sclerosis.  He was seeking to qualify as a solicitor, and over the period of the legal practice course

Disciplinary sanctions - a caveat

Demotion and/or redeployment are relatively rare as potential outcomes of disciplinary procedures, not least because it would be a risky strategy to impose them without an express contractual power. Piper v Maidstone & Tunbridge NHS Trust demonstrates a pitfall for employers who do include these

Facebook folly costs employee dearly (extract from the January 2013 edition of Employment Law News)

Smith v Trafford Housing Trust was one of the most newsworthy cases of the back end of 2012, arising as it did from disciplinary action taken against an employee for posting comments on Facebook, which were critical of the idea of gay marriages in church.   The High Court found squarely t

Servant or serf? (extract from May 2012 edition of Employment Law News)

It does not seem so long ago that the concept of an automatic transfer of employees under TUPE evoked exclamations of incredulity and disbelief amongst non-lawyers (and some lawyers).  Now we have all got used to the idea, Gabriel v (1) Peninsula Business Services Ltd (2) Taxwise Services Ltd

Accentuate the negative...

Aderemi v London and South Eastern Railway Ltd gives some useful pointers about what sort of disability will be a protected characteristic under the Equality Act 2010. While an inability to carry out all your work duties does not equate to an inability to carry out day to day activities, it shoul

Provisions, criteria and practices (1) (extract from March 2012 edition of Employment Law News)

Two cases this month looked at the impact of the application of provisions, criteria or practices ("PCP"s) in the  workplace and employers’ duties to make reasonable adjustments.  The first, Roberts v North West Ambulance Service, related to an ambulance dispatcher who suffered

No unfairness in process for selecting candidates for alternative employment (extract from April 2012 edition of Employment Law News)

Consideration of alternative employment is a part of a fair redundancy procedure, and it is common practice for employees to be asked to interview for alternative jobs, competing against other internal and, sometimes, external applicants. In Samsung Electronics (UK) Ltd v Monte-D'Cruz the EAT overt

Not reasonable for employer to ignore medical report (extract from the July 2012 edition of Employment Law News)

BT v Daniels is a useful illustration of the impact of an employer’s size and administrative resources when looking at the fairness of a dismissal.  It concerned a BT engineer dismissed for three offences of dishonesty.  In the course of the disciplinary proceedings, a report was put

Organised groupings are not just a matter of happenstance (extract from June 2012 edition of Employment Law News)

Another TUPE case this month highlights the need for an “organised grouping of employees” in a service provision change case which has, as its principal purpose, the carrying out of the activities concerned on behalf of the client.  In Seawell Ltd v CEVA Freight (UK) Ltd & Anor

Rights to a hearing by an impartial and independent tribunal (extract from June 2012 edition of Employment Law News)

Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) is a useful case looking at the extent to which Article 6 rights will be engaged in NHS disciplinary procedures.  It concerns a consultant, dismissed for misconduct by the chief executive of the Trust

Establishing the pool for redundancy selection (extract from April 2012 edition of Employment Law News)

We recently reported on Capita Hartshead v Byard, which looked at a selection pool of one and found that a dismissal from such a restricted pool was unfair where an employer had not genuinely applied its mind to the question of what the pool for selection should be. Hard on the heels

How far can cost considerations be a justification for age discrimination? (extract from April 2012 edition of Employment Law News)

Woodcock v Cumbria Primary Care Trust is a decision of the Court of Appeal addressing the extent to which the cost factor can justify discrimination on the grounds of age.  It dealt with the case of an NHS chief executive, Mr Woodcock, whose post with a PCT disappeared during a reorganisat

Employee Shareholders: a game of Parliamentary ping-pong

Will it happen, won't it, will it, wont it...? Throughout the last couple of months this has summed up the position of the Governments proposed introduction of an new status of employee, the Employee Shareholder. As fast as the House of Commons approved the provisions set out in Growth & Infras

Brevity is the soul of an ET1 (extract from the July 2012 edition of Employment Law News)

ET claimants have a tendency to submit lengthy ET1 claims, effectively outlining the whole of their evidence.  This can be frustrating for respondents, and, it seems, employment judges, because it is necessary to sift through a lengthy document to identify what claims are being made and what ma

Rights of long term sick employees to paid sick leave are directly enforceable (extract from March 2012 edition of Employment Law News)

Dominguez v Centre Informatique du Centre Ouest Atlantique is a decision of the CJEC on the Working Time Directive which looked at whether a provision of French law imposing a rule that workers on sick leave must have actually worked for at least a month in a leave year before they could take,

Employee did not breach duty of fidelity when seeking business for himself (extract from the September 2012 edition of Employment Law News)

In Ranson v Customer Systems PLC the Court of Appeal has, this summer, been looking at a key issue for employees planning to move on to a new job, or to set up on their own, and their employers – the extent of their duties of fidelity, in the absence of express terms restricting competitive ac

The Help II (extract from March 2012 edition of Employment Law News)

This month sees a new case looking at the position of a domestic worker from overseas and the extent to which she could benefit from UK employment law rights.  The complications in Zarkasi v Anindita & Another  were that (i) this worker entered the UK using false documents obtaine

A Guide to the CRC Energy Efficiency Scheme

What is the CRC Scheme? The CRC Energy Efficiency Scheme (formerly known as the Carbon Reduction Commitment) is the UK's climate change and energy saving scheme. The scheme is mandatory for both private businesses and public sector organisations, and came into operation on 1 April 2010. Please note

New light on sick employees' holiday rights (extract from the September 2012 edition of Employment Law News)

Two important cases have come up on the vexed question of employee rights to holiday or payment in lieu of holiday when on sick leave. The first, Asociación Nacional de Grandes Empresas de Distribución (ANGED,  is an ECJ case which confirms that where an employee falls ill during

Indirect discrimination related to retirement is unlawful age discrimination (extract from May 2012 Employment Law News)

The second age discrimination case of the month, Homer v West Yorks Police, concerned a senior police officer who became a legal adviser at the Police National Legal Database after retiring from the police aged 51.  At the time he joined, there was no requirement for advisers to have a law degr

Discrimination on the grounds of marriage or civil partnership (extract from April 2012 edition of Employment Law News)

In February, we reported on Dunn v Institute of Cemetery and Crematorium Management, which suggested that it could be unlawful to discriminate because a person is married to a particular person, and not simply on the ground that he or she is married.  Hawkins v (1) Atex Group Ltd (2) Age Korsvo

Use of PILON scuppers attempt to rely on Boston Deep Sea Fishing case (extract from June 2012 edition of Employment Law News)

Cavenagh v William Evans Ltd sheds light on the impact on a clause giving the option to make a payment in lieu of notice (“PILON”) when an employer discovers gross misconduct after making a payment in lieu.  Mr Cavanagh was managing director of the firm of gunsmiths, Williams E

'South of the river? You must be joking, guv' (extract from April 2012 edition of Employment Law News)

In Abellio London Ltd (Formerly Travel London Ltd) v Musse & Ors the EAT gives us a useful reminder that the right of employees to resign in response to a detrimental change of terms on a transfer of an undertaking is not restricted to changes in to their contractual terms. When a transfer takes

Re-engagement for employees dismissed after TUPE transfer (extract from the October 2012 edition of Employment Law News)

Manchester College v Hazel & Anor looks at when a dismissal relating to harmonisation of terms after a TUPE transfer will be fair and, when it is not, the appropriate remedy.  The case arose after a contract for provision of education in the prison service was transferred under TUPE to a ne

Establishing the trigger point for employers' liability insurance (extract from April 2012 edition of Employment Law News)

The decision of the Supreme Court in BAI (Run Off) Ltd v Durham  & Ors is the most recent chapter in long running litigation on the liability of insurers under policies taken out by employers to cover them for industrial diseases contracted by employees.  The litigation arose over the

'Consultant' transferred under TUPE (extract from the July 2012 edition of Employment Law News)

Freedman gives us an example of the difference between a person being accepted as self-employed for the purposes of tax and national insurance but in fact being an employee. Dr Freedman operated a business as a sole trader, and in 2009 incorporated it as Career Energy Ltd (CEL). A new company, Caree

Tribunal changes in the offing (extract from the September 2012 edition of Employment Law News)

Governmental efforts to streamline, speed up, and cut costs in the tribunal system continue.  As part of that, Mr Justice Nicholas Underhill has led a comprehensive review of tribunal rules of procedure; apart from a very welcome rewrite to render them comprehensible to intelligent laymen and l

Complex redundancy selection criteria not always necessary (extract from the July 2012 edition of Employment Law News)

When advising on redundancy procedures, employment lawyers tend to emphasise that employers should take care to ensure that they use objective criteria when selecting from a pool of employees.  And very good advice it is too.  Mitchells v Tattersall, however, shows that this does not inevi

Termination of employees with less than one year's service

1.         INTRODUCTION This note has been prepared as a general guidance note only and specific legal advice should be sought for each matter as individual circumstances vary. It is only a brief note and is not intended to be comprehensive. Employers always

In place of discord (extract from the September 2012 edition of Employment Law News)

Over the summer we have had quite a few employment decisions in the higher courts.   The first of our Court of Appeal cases, Welsh National Opera Ltd v Johnston, looks at the interplay of two procedures following the dismissal of the principal oboist in the Company’s orchestra.  By

Guidance on costs orders (extract from May 2012 edition of Employment Law News)

Two cases this month look at the question of costs orders.  Rogers v Dorothy Barley School  was an unsuccessful breach of contract claim brought by a school caretaker.  Representing himself, he alleged that the school were in breach of contract when he received a water bill, in e

Rejected applicants have no right to disclosure of the successful candidate's details (extract from May 2012 edition of Employment Law News)

Do rejected applicants have the right to disclosure of documents relating to the successful candidate if they consider they have suffered unlawful discrimination in the recruitment process?  No, said the ECJ in Meister v Speech Design Carrier Systems GmbH which was a claim by an applicant

Dismissals for breakdown of trust must be for a substantial reason (extract from the September 2012 edition of Employment Law News)

Breach of the implied term of mutual trust and confidence is frequently relied upon by employees as the basis for resigning and claiming constructive dismissal.  From this perspective, breach of such a term will always be a fundamental one bringing the contract to an end (Morrow v Safeway Store

... And finally: Weighing up the employment status (extract from March 2012 edition of Employment Law News)

Employment status often falls to be considered by courts and tribunals, not least because so many important consequences flow from it – employment rights, for example, and tax and NI treatment.  Weight Watchers v HMRC is a decision of the Upper Tribunal (Tax and Chancery Chamber) concerni

Tribunals have no power to allocate liability between joint respondents (extract from May 2012 edition of Employment Law News)

Brennan & Others v (1) Sunderland City Council (2) GMB (3) Unison s a case arising from somewhat unusual circumstances, but the decision is one of relevance in many more situations.  It is part of the long-running Equal Pay saga arising from changes in NHS terms and conditions.  Briefl

Bully-boy tactics cut no ice with the Court of Appeal (extract from March 2012 edition of Employment Law News)

Heavy handed tactics by employers also came in for criticism in Caterpillar Logistics Services (UK) Ltd v de Crean, where the Court of Appeal upheld the refusal of an injunction application against a former employee.  Mrs de Crean had worked in a senior capacity and had a contract wh

A Guide to Buying or Selling a Company

This guide to buying or selling has been prepared to give an inexperienced seller or buyer a brief overview of the various stages of buying or selling a UK company. The Beginning The first stage that the parties to such a deal will usually go through simply involves the early negotiating for the m

Settlement agreements (extract from the October 2012 edition of Employment Law News)

Proposals regarding settlement agreements from earlier this year have been fleshed out in a new Government paper.  Avid readers will recall talk of “protected conversations” – these seem to have died a death for now.  The Government’s response to consultation seems

Justification for direct age discrimination must be related to the general public interest (extract from May 2012 edition of Employment Law News)

This month’s biggest employment law news stories have to be the Supreme Court’s two decisions on age discrimination in Seldon v Clarkson Wright & Jakes and Homer v West Yorks Police.  Both decisions give useful guidance about how cases on age discrimination will be consider

Business Rates Exemptions for Empty Non-Domestic Property

This checklist sets out the exemptions from business rates for non-domestic properties.  Retail property  100% relief for a continuous period of three months only. Changes of ownership during the three-month period do not trigger a fresh three-month exemption. The exemption applies to

Discipinary suspension should not be a 'knee-jerk' reaction (extract from March 2012 edition of Employment Law News)

The option to suspend employees suspected of misconduct pending investigation can be very useful, where it is feared that an employee may be a risk to the business if he or she continues to work while the investigation is going on.  However, as highlighted by Lord Justice Elias in Crawford

International commuters can be protected by UK employment law (extract from March 2012 edition of Employment Law News)

Commuting is no fun, unless you are fortunate enough to work from home, but imagine the plight of the international commuter.  Now at least they may have the comfort of knowing that they have employment law protection, as this case shows.  Since 1996, when the territorial restri

"You're fired!" (but not just yet)

Geys v Société Générale is an important case of the Supreme Court which rules on the question of whether a unilateral step by one party – say, a summary dismissal by an employer - can end a contract of employment without the other party accepting that repudiation, o

Key Labour Law issues in England and Wales

1.     GENERAL INTRODUCTION UK employment law makes a distinction between employees who work under a contract of employment and independent contractors who work under a contract for services. An employee enjoys more legal rights than an independent contractor. However, some rig

Termination of employees with less than the one/two qualifying years service for 'ordinary' unfair dismissal rights

1.         INTRODUCTION This note has been prepared as a general guidance note only and specific legal advice should be sought for each matter as individual circumstances vary. It is only a brief note and is not intended to be comprehensive. Employers always

After the Beecroft brouhaha (extract from June 2012 edition of Employment Law News)

The pace of change never gets any slower in employment law and we have quite a few consultations and proposals to report.  It remains to be seen how many of them will become law, and in what form, but after a couple of well publicised retreats over the budget, and the leaking of the Beecro

Discrimination in the Provision of Goods and Services

This checklist sets out the duties your business owes to members of the public when you provide them with goods, services or facilities. Since 1 October 2010, these rules are set out in the Equality Act 2010.  Who is a service provider? A service provider is any person who provides services,

Employment Law News - June 2012

After the Beecroft brouhaha Early retirement benefits transfer under TUPE Organised groupings are not just a matter of happenstance Whistle-blowers’ protection for LLP members Refusing a settlement offer The Help III Rights to a hearing by an impartial and ind

Religion in the workplace - a question of balance

The decision of the European Court of Human Rights in the cases of Eweida, Chaplin, Ladele, and McFarlane has unsurprisingly received a lot of attention this month, and it seems certain to have a big impact. All of the cases centred around the right to manifest a religious belief, and whether UK law

A TUPE miscellany (extract from February 2012 edition of Employment Law News)

We have four useful cases this month illustrating the impact of TUPE. Three out of the four, Enterprise, Pannu and Hunter, all deal with the scope of the rules applying TUPE to service provision changes (“SPC”s), which, you must remember, are not a matter of European law, but our ve

A Guide to Distribution Agreements

This guide will consider the following:  The Nature of Distributions Agreements; Types of Distribution Agreements; Tax Issues; The Law and Distributions Agreements; and Common Terms in Distribution Agreements. 1.            THE NA

Terms and Conditions

MORGAN RUSSELL TERMS AND CONDITIONS Your use of the Morgan Russell website (the Website) without informing us otherwise, indicates unconditional acceptance of these terms and conditions (the Terms). MODIFICATION OF THESE TERMS OF USE Morgan Russell reserves the right to change the Terms from time

Employment Law News - July 2012

Not reasonable for employer to ignore medical report Beecroft redux Brevity is the soul of an ET1 Union did not victimise member by refusing to continue representation Changing the EDT Complex redundancy selection criteria not always necessary TUPE anoraks this way

Employment Law News - February 2012

Increase in tribunal limits Domestic workers Offshore workers can be required to take annual leave while onshore Discrimination on the ground of marital status A TUPE miscellany What counts as suitable alternative employment? No compensation for manner of dismissal. Ever Employer entitled t

Age Discrimination

INDEX   1.         Introduction 2.         Scope of the Regulations 3.         A bit of legal jargon (only a bit!) / Key Concepts 3.1      

Employment Law News - November 2012

Time barred equal pay claims get a new lease of life Feeling left out? “Employee ownership” - full steam ahead It’s not unusual... Union recognition for employees working outside the UK No guarantee payments for employees who agree a shorter week When should the practicabil

Business Continuity

This briefing note sets out what the legal implications of business interruptions are and provides practical steps for consideration, particularly in light of the Olympic Games and Paralympic Games this year and other high profile matters. In recent years there have been a number of high profile th

Employment Law News - April 2012

How far can cost considerations be a justification for age discrimination? Establishing the trigger point for employers’ liability insurance No unfairness in process for selecting candidates for alternative employment Establishing the pool for redundancy selection &ldqu;

Employment Law News - October 2012

Re-engagement for employees dismissed after TUPE transfer Tribunals must check parties’ availability when listing hearings With extreme prejudice A breach too far Reasons for dismissal When criticism becomes apparent bias “Something more” Sett

Employment Law News - September 2012

In place of discord Tribunal changes in the offing Compulsory retirement at 67 can be justified Keep your hair on - are you or are you not a worker? It’s a simple enough question, isn’t it? Employee did not breach duty of fidelity when seeking business for himself

Employment Law News - May 2012

Justification for direct age discrimination must be related to the general public interest Indirect discrimination related to retirement is unlawful age discrimination Rejected applicants have no right to disclosure of the successful candidate’s details Servant or serf?

Employment Law News - March 2012

Disciplinary suspension should not be a “knee-jerk” reaction Bully-boy tactics cut no ice with the Court of Appeal When is a group not a “grouping” The Help II International commuters can be protected by UK employment law Rights of long term sick

Employment Contracts - Key Ingredients (Part 2 of 4)

As a preliminary point, it is worth briefly discussing what a contract is. A contract is an agreement which gives rise to legally enforceable obligations for the parties to it. A contract is formed when an offer containing the basic terms of the agreement is made by one party and in response the ot