Mon09252017

Last updateTue, 24 Feb 2015 5pm

Anthony Fincham and Rachel Easter consider the employment rights of interns, work experience students and temporary workers providing holiday cover or support during busy periods

Many employers will have offered work experience or internships to students over the summer holidays or taken on temporary workers as holiday cover. It is also common to bring in extra staff to provide support during busier periods, such as the lead-up to Christmas in the retail sector. This article answers some of the main questions organisations have about temporary seasonal and student workers.

Graeme Young highlights the revised rules for procurement challenges in England and Wales

The Technology and Construction Court (TCC) – the generally preferred forum for procurement challenges in England and Wales – has adopted a guidance note on the conduct of procurement challenges. The note was launched recently at a Procurement Lawyers’ Association event hosted by Coulson J at the TCC in London. Coulson J confirmed that parties will be expected to have regard to the note when litigating procurement disputes before the TCC. A pdf can be found at www.legalease.co.uk/tcc-guidance.

Emma Pinkerton and Sarah Moore explain how to best deal with occupation when a contracted-out lease comes to an end

Landlords often want leases to be contracted out of the protection of the Landlord and Tenant Act 1954.

Anthony Fincham and Val Dougan analyse two recent cases challenging employers’ failure to enhance shared parental pay rates for fathers

We have come a long way since maternity leave was first introduced by the Employment Protection Act 1975, with women now receiving 52 weeks’ leave and 39 weeks’ statutory maternity pay. But have we come far enough when it comes to dads?

A ‘licence’ can turn out to be a lease when put to judicial scrutiny. Emma Pinkerton and Sarah Moore explain how to make sure legal documentation delivers

Clients often ask their solicitors to put a licence in place, thinking that a licence will be easier and quicker to agree than a lease and that a licence must also be cheaper.

Graeme Young, Caroline Hobson and Ruth Derruau assess a potential Brexit pitfall

The Financial Times (FT) recently reported that (10 April 2017):

Sarah Ozanne discusses the forthcoming requirement for banks to share information on any impropriety committed by employees who are looking for a new, senior job in the sector

The new regime to improve individual accountability in the banking sector came into force on 7 March 2016. It originated from the recommendations of the Parliamentary Commission on Banking Standards following its review of the banking system after the financial crisis. The Commission found the Approved Persons Regime to be a ‘complex and confused mess’ and that it had failed as a means for the regulators to engage with individual bankers.

Omar Qureshi and Kushal Gandhi consider the use of covert recordings

In the recent case of Singh v Singh [2016] the High Court decided that covert recordings of conversations between business partners were admissible as evidence at trial but should be treated with caution. The claimant relied on recordings of meetings he had with the first defendant in private to prove that he was a co-owner of two businesses which he and the first defendant had set up together. No one else had been party to their discussions about ownership of those businesses and the evidence of the witnesses was contradictory.

Paul Smith examines the National Infrastructure Delivery Plan

On 23 March 2016 the government published a new National Infrastructure Delivery Plan (the NIDP) outlining the government’s infrastructure priorities for the next five years and beyond. Improving visibility for the investor community and the supply chain, the plan details the government’s infrastructure plans for £483bn worth of planned investment in all sectors across the UK, which for the first time also includes the delivery of social infrastructure. Around £300bn of the intended investment has been allocated to the delivery of infrastructure over the next five years.

Following two recent EAT cases, employers face the renewed prospect of workers receiving whistleblowing protection for disclosing breaches of their own employment contract, warns Sarah Ozanne

Protection for whistleblowers was introduced by the Public Interest Disclosure Act 1998, which amended the Employment Rights Act 1996. The law protects workers who have made a qualifying disclosure from both dismissal and detriment as a result of doing so. There is no qualifying period of service to obtain the benefit of such protection, any such dismissal will be automatically unfair and potential awards of compensation are uncapped.

Sarah Ozanne examines the vexed question of when the duty to consult in collective redundancy situations arises

Due to the economic downturn, collective redundancy situations have become a regular occurrence. Combined with uncertainty in the law and the sensitivities that accompany redundancies, this has led to cases in this area becoming more prevalent and high profile. This article takes a look at the current state of the case law on whether the UK legislation is consistent with the underlying directive, in particular when the obligation to collectively consult in redundancy situations is triggered.

Graeme Young looks at the recent consultation on the remedies regime

The European Commission recently concluded a public consultation on the effectiveness of the EU Directive 2006/77 (the 2007 Directive). The consultation is part of a now long-overdue review of the effectiveness of the EU procurement remedies regime. With the approach to review procedures for procurement challenges differing significantly from one EU country to another, the review is likely to put the spotlight on some of the deficiencies of the current remedies regime as it applies in the UK. This article looks at the review and its potential implications for the remedies system as currently provided for in the UK.

Graeme Young and Maria Ziprani assess the impact of the Public Contracts Regulations 2015 on variation and termination rights

Until recently, discussions on contract variations between contractors and authorities have invariably led to the parallel procurement universe of Pressetext. In its 2008 judgment in Pressetext, the European Court of Justice (ECJ) held that in order to ensure transparency of procedures and equal treatment of tenderers, amendments to the provisions of a public contract will constitute the award of a new contract for the purposes of the EU public procurement rules when (para 34):

Aidan Steensma considers claims for loss of profit by unsuccessful tenderers and whether termination for convenience clauses limit this liability

A recent decision of the Technology and Construction Court (TCC) has considered whether a termination for convenience clause limited the extent to which an unsuccessful tender could claim for loss of profit. Previous recent authority in the Commercial Court had found that such a clause would provide such a limit – no entitlement to loss of profit was said to arise beyond the period in which the contract breaker could have terminated for convenience. This view has now been challenged by the TCC.

Two recent decisions which have helped to clarify which employees have a sufficiently strong connection with Great Britain to qualify for unfair dismissal protection, explains Sarah Ozanne

The Employment Rights Act 1996 (ERA) contains many key statutory employment rights, including the right not to be unfairly dismissed, but is silent on the issue of territorial scope. Interpreting ERA literally, it applies to any individual who works under a contract of employment anywhere in the world, but this would give it a breadth of scope that it would not appear was ever intended. Originally, the ERA applied only to employees who ordinarily work in Great Britain. This position was, however, amended by the removal of the relevant provision in 1999. The ERA now contains no clarification on what connection, if any, the employee or their employment must have with Great Britain in order to benefit from its provisions. This left the issue to be determined by case law, with the key case in this area being Lawson v Serco [2006].

A recent Supreme Court ruling has finally laid to rest the difficult issue of whether an LLP member is a worker, explains Sarah Ozanne

The issue of employee and worker status has been a much vexed one, with considerable case law dedicated to discussion of the subject. Both of these terms are defined under s230 of the Employment Rights Act 1996 (ERA) but it is not always clear whom each category covers. One stream of case law on this topic has been on the status of partners in LLPs and whether they qualify as either employees or workers. In the most recent case in this area, Clyde & Co v Bates van Winkelhof [2014], the Supreme Court has determined that a former partner at Clyde & Co had been a worker for the purposes of the ERA. This entitled her to relevant protections, including under the whistleblowing provisions.

Maxine Cupitt, Simon Garrett and Barney Hearnden examine the lessons to be learned from Madoff

In the recent decision of Madoff Securities International Ltd (In Liquidation) v Raven [2013], the Commercial Court dismissed multimillion pound claims brought against five former directors of Madoff Securities International Ltd for breach of directors’ duties relating to payments made to, or for the benefit of, Bernard Madoff, its major shareholder and CEO. Now known to be the most spectacular fraudster of our times, Madoff was at the time of the transactions ‘a titan of Wall Street’ in terms of wealth, reputation and respectability.

A recent EAT case has revealed a gap in the protection for agency workers who work ‘indefinitely’ for the hirer, explains Sarah Ozanne

The Agency Workers Regulations 2010 (the regulations) came into force on 1 October 2011 and are designed to protect and grant rights to agency workers. Under the regulations, workers assigned to do temporary work for hirers through temporary work agencies are entitled to access to the hirer’s collective facilities and amenities and to information about its relevant job vacancies from day one of such assignment. In addition, after a 12-week qualifying period, agency workers are entitled to the same treatment in respect of basic employment conditions, including pay, duration of working time and annual leave, as equivalent workers recruited directly by the hirer.

Victoria Peckett and Ted Rhodes review the toolkit launched for UK companies bidding for Rio 2016 contracts

One year on from the London 2012 games, there has been renewed celebration of the success of those games – and also a growing sense of anticipation for the next games in Rio, which are now only three years away. UK businesses can of course participate in tender processes for contracts to be awarded in connection with the Rio 2016 Olympic and Paralympic Games. While undertaking such a task in a different jurisdiction with a different language can seem daunting, CMS (London and Rio offices), in conjunction with both UK Trade & Investment (UKTI) and the Law Society, have produced a toolkit to guide UK businesses though the various Brazilian procurement processes. The toolkit was launched at UKTI’s Global Sports Project Seminar: Rising to the Challenge – Delivering the London 2012 Business Legacy, held in London in July.

Guy Pendell and David Bridge report on a recent Supreme Court judgment dealing with anti-suit injunctions

In a judgment delivered on Wednesday, the Supreme Court unanimously held that the court has jurisdiction to grant a final anti-suit injunction restraining a party from commencing or continuing foreign court proceedings in breach of an arbitration agreement, even where there is no actual, proposed or intended arbitration. The court also confirmed that the source of its power to grant such an injunction derived from its broad discretion under s37 the Senior Courts Act 1981, and not s44 of the Arbitration Act 1996.

Sarah Ozanne examines two recent cases on employers’ obligations to inform and consult in redundancy and TUPE situations

The issue of collective consultation obligations when carrying out redundancies, business transfers or service provision changes seems never far from the news. In April, the timeframe for collective redundancy consultation where more than 100 redundancies are proposed was reduced from 90 to 45 days. And, more recently, an Employment Appeal Tribunal (EAT) decision seems to have fundamentally changed the definition of what constitutes an establishment for the purposes of collective consultation (although the written judgment on this case, USDAW v WW Realisation Ltd (In Administration), is still awaited).

The European Court of Human Rights has held that the UK must protect employees from dismissal on grounds of political affiliation or beliefs, write Liam Kerr and Abbie McCreath

In Redfearn v the United Kingdom [2012], the European Court of Human Rights held that the UK has breached Article 11 of the European Convention of Human Rights (ECHR) by failing to protect employees who are dismissed because of their political opinions or affiliations.

Ben Holland outlines the final chapter of the West Tankers case

Where parties have agreed that disputes should be arbitrated in London, and one party subsequently breaches this agreement, commencing court action in another EU member state, what should the cost consequences be? This was the question decided by the Commercial Court in West Tankers Inc v Allianz SpA [2012]. The case was an appeal on a point of law to the courts of the seat of arbitration under s69 the Arbitration Act 1996. The arbitrators had decided that they had no ability to award damages for costs against the party which had brought the court proceedings in breach of the arbitration agreement. The Commercial Court disagreed. In doing so, it reinforced English law’s respect for the principles of party autonomy and also its support for international arbitration.

Sarah Ozanne examines Underhill J’s proposals for improved employment tribunal case-management powers and for a revised procedural code

In November 2010 the government launched its Growth Review to look at what steps each department is taking to create the best conditions for economic growth. One area that the review focused on was the removal of barriers to starting, financing and growing a business, including through job creation and creating a more flexible workforce. As a result, the government introduced its Red Tape Challenge, including its Employment Law Review, looking at policies and regulation that place obligations on employers and assessing whether they can be simplified or better implemented and enforced. Through the Department for Business, Innovation and Skills (BIS), the government issued its consultation document, ‘Resolving Workplace Disputes’ in January 2011, in which it set out a number of potential measures to achieve early resolution of workplace disputes and to make the employment tribunal system work as effectively as possible if the parties do go to tribunal.

Ian Stevens considers the potential utility of the OSS toolkit

Open source software (OSS) has not been regularly used by the government, even though its OSS policy has been in place since 2004.

A Court of Appeal decision has reinforced the principle that employers should not be prevented from providing a negative reference for ex-employees as long as it is true, accurate and fair, explains Sarah Ozanne

The recent Court of Appeal case of Jackson v Liverpool City Council [2011] has provided some useful clarification, and quite possibly some comfort, to employers on the thorny issue of providing references for employees and ex-employees when there are outstanding performance or conduct issues. However, the legal issues surrounding the provision of references remain tricky. This article looks at the development in the law brought about by Jackson and places it in the context of the existing jurisprudence on this subject.

Ben Holland assesses the impact of Excalibur v Texas Keystone Inc

It is rare for the English courts to impose an injunction preventing parties from conducting an arbitration. This is rarer still where the parties have agreed to arbitration not in London, but in New York, and where none of the parties are domiciled in England and Wales. Excalibur v Texas Keystone Inc & ors [2011] provides an interesting example of when the English courts will determine that the circumstances are sufficiently ‘exceptional’ to justify their intervention in arbitration with a foreign seat.

Amy Bird assesses the government’s attempts to use its Modern Workplaces consultation to resolve holiday and sickness conundrums created by European case law

Ever since two 2009 European Court of Justice (ECJ) decisions, employment law practitioners and human resources departments have been struggling with the question: how do we apply the UK’s statutory provisions on holiday leave to workers who are or have been off sick? The government is hoping that the proposals announced in its current consultation paper, Modern Workplaces, will provide an answer.

It may not be the landmark case hoped for, but the conviction of Cotswold Geotechnical points the way to significant fines following workplace fatalities in the future, argues Jan Burgess

In February, Cotswold Geotechnical Holdings Ltd (Geotechnical) became the first company to be convicted under the Corporate Manslaughter and Corporate Homicide Act 2007 (the 2007 Act). It was fined £385,000 (a sum equivalent to 115% of its annual turnover), which it is being allowed to pay over 10 years on account of what the judge described as its ‘parlous’ financial position.

Ben Holland and Guy Pendell look at the judgment in Dallah and the tough line taken on the enforcement of New York Convention awards in England

The Supreme Court of the UK has now issued its first decision concerning the legal framework supporting international arbitration. The case under scrutiny, Dallah Real Estate and Tourism Holding Co v The Ministry of Religious Affairs, Government of Pakistan [2010] had created controversy amongst international arbitration users, even before the Supreme Court’s judgment was handed down. In Dallah, the Court of Appeal had upheld a first instance decision to refuse to enforce an ICC award made in France by a prominent three-member international arbitration tribunal composed of a former chief justice of Pakistan and a former English Law Lord. The Supreme Court unanimously upheld the judgment of the Court of Appeal. In doing so, it held that no arbitration agreement existed to which Pakistan was a party and that there were no other grounds for enforcing the award.

Tim Hardy investigates practical considerations in the light of the decision in Oceanbulk

The Supreme Court, in Oceanbulk Shipping & Trading SA v TMT Asia Ltd & ors [2010], has upheld yet another exception to the without prejudice rule holding that without prejudice negotiations, which form part of the factual matrix leading to a settlement agreement, will be admissible as evidence to assist in the interpretation of that settlement agreement. The reasoning of the court is impeccable but contradicts the long-established rule that without prejudice communications are not disclosable. This article considers the unintended consequences of the growing list of exceptions to the rule. It asks whether the logical conclusion is that lawyers about to commence without prejudice negotiations must begin by advising their clients of the circumstances in which those negotiations may be disclosable, and consider drafting an agreement to limit those circumstances where possible.