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Archive for January 23, 2020

Holiday pay and carry over

adrian_fryer

The European Working Time Directive entitles workers to at least 4 weeks’ holiday per year. Many countries, including the UK, choose to give workers additional holiday entitlement over and above the minimum. The Working Time Regulations 1998 gives UK employees an additional 1.6 weeks of leave per year.

The Court of Justice of the European Union (ECJ) has looked at whether the right to carry over holiday due to sickness applies only to the 4 week entitlement under the Directive.

 

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Redundancy alternative employment and trial periods

adrian_fryer

A dismissal for redundancy is likely to be unfair unless the employer has considered whether there is suitable alternative employment within the business (or group). If suitable alternative employment is offered, it might be subject to a statutory 4 week trial period if the role, place of work or other terms and conditions are different from the previous job. A statutory trial period starts at the end of the employee’s employment under their old contract or within 4 weeks of it ending.

What happens if a role is deleted in a reorganisation and an employee works in another suitable role for more than four weeks – do they lose the right to a redundancy payment?

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Hangover Days

adrian_fryer

How many working days is your business losing to hangovers? This is particularly relevant after the festive season where Christmas parties and social events often fall on a school night. Did your business suffer a flurry of suspicious tummy bugs during Christmas party season?

Some businesses are choosing to accommodate hangovers in a different way, keen to avoid the extra absence which seems to occur around this time of year.

 

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Whistleblowing

adrian_fryer

A dismissal will be automatically unfair if the main reason for the dismissal is the fact that the employee has ‘blown the whistle’ on malpractice.

The Supreme Court has recently decided that an employer was liable for automatic unfair dismissal even though the decision maker was unaware of the protected disclosures.

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Philosophical belief discrimination

Adrian Fryer

Adrian Fryer

The Equality Act 2010 protects people from discrimination based on their philosophical beliefs. In order to be protected, the belief must be:

  • Genuinely held;
  • Be a belief not an opinion or viewpoint;
  • Concern a weighty or substantial aspect of human life;
  • Have attained a certain level of cogency, seriousness or importance (in a similar way to a religion);
  • And must be worthy of respect in a democratic society.
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Confidentiality agreements

adrian_fryer

Hot on the back of the #MeToo movement, the Equality and Human Rights Commission (EHRC) has published some non-statutory guidance on the use of confidentiality or non-disclosure agreements in discrimination cases. The guidance confirms that confidentiality clauses can be used in employment contracts to protect a business’s confidential information. However, they shouldn’t be used to stop a worker pursuing a discrimination claim in relation to future acts – those clauses will not be enforceable.

 

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Unfair Dismissal

adrian_fryer

Is a dismissal unfair if the employer changes an investigation report following advice from an in-house lawyer? Not in this case, said the Employment Appeal Tribunal in Dronsfield v The University of Reading. The employee was a professor who had a sexual relationship with a student. University rules said he could only be dismissed for immoral, scandalous or disgraceful conduct. The University investigated the allegations and produced a report. An in-house lawyer suggested some changes, including parts which were favourable to the employee.

 

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TUPE Transfers and ‘Workers’

Adrian Fryer

Adrian Fryer

The worker status debate leached into the TUPE sphere towards the end of 2019. A ‘worker’ is defined by section 230(3) of the Employment Rights Act 1996 (ERA) as:

An individual who…works under:

  1. A contract of employment, or
  2. Any other contract…where the individual undertakes to do or perform personally any work…for another party who…is not…a client or customer of…the individual.
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New ACAS guidance on menopause

adrian_fryer

This once taboo topic has been high profile lately. Half of the population will go through the menopause and yet it has historically been off limits as a discussion topic. Menopause is more important now than ever with older workers expected to stay in work for longer. ACAS have produced some practical guidance on handling menopause in the workplace.

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IR35 – Government announces review

Rob Maddocks

Rob Maddocks

In our Summer 2019 newsletter, we looked at the changes to IR35 that are due to be implemented in 2020 (IR35 changes). IR35 rules focus on those individuals who operate as independent self employed contractors but actually work like employees and the rules aim to ensure such individuals pay tax and NI in line with employees. Originally the onus was on the individual to decide if they were caught within the scope of IR35.

In 2017 the government, to combat what it believed to be widespread abuse of the rules, introduced changes in the public sector which put the onus on the organisations who contracted with the individuals to decide whether the individual was caught within the scope of IR35. These changes are set to be rolled out to the private sector in April 2020.

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