Mon12112017

Last updateTue, 24 Feb 2015 5pm

Charles Wynn-Evans investigates how the courts and tribunals assess the reasons for an employer’s actions in dismissal and discrimination claims

The employer’s reason or reasons for its actions can be crucial to the outcome of an employment-related claim. Is the employer’s knowledge just what the decision-maker knows or does it include relevant facts known to others in the organisation of which the decision-maker ought to have been aware? In both unfair dismissal and discrimination cases, a potentially challenging question is therefore whether the courts and tribunals should consider the knowledge or motivations of a person or persons other than the actual decision-maker which in some way have influenced the employer’s decision.

Charles Wynn-Evans reviews some recent TUPE developments

There has been much speculation about the fate of the UK’s employment legislation following the EU referendum – and that speculation naturally extends to the transfer of undertakings legislation. For now, however, those who may fall within the scope of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) continue to test out the boundaries of the law. This article reports on some recent decisions, as well as briefly considering what might happen to TUPE post-Brexit.

Charles Wynn-Evans reviews the use of subject access requests in light of a recent High Court decision

Under s7 of the Data Protection Act 1998 (DPA), individuals are entitled to ask their current or former employer to provide them with the ‘personal data’ which it holds on them. This is called a subject access request (SAR). To paraphrase, under the SAR regime, the employer (as a ‘data controller’ for the purposes of the DPA) can require a maximum fee of £10 for compliance with the request and has 40 days to provide the information. The employer can require the individual to provide evidence of their identity if it ‘reasonably requires further information’ on this, and is entitled to require clarification on the scope of the request. Time runs from receipt of that evidence or of the requisite fee (if required), whichever is later.

Jennifer McGrandle analyses a recent EAT decision on who the correct comparator is when seeking to demonstrate less favourable treatment

A recent case on direct age discrimination provides useful guidance on how to identify whether there are material differences between the claimant and the chosen comparators such that the comparators cannot be relied upon to establish less favourable treatment. The decision, Donkor v The Royal Bank of Scotland [2015], also acts as a reminder of the ‘but for’ test when assessing whether there has been less favourable treatment on the grounds of the relevant protected characteristic.

Charles Wynn-Evans reviews two important recent authorities on whether compensation for unlawful discrimination can be paid tax free

The correct tax treatment of a payment made by an employer to a current or former employee to settle a claim related to that individual’s employment can be of considerable significance. The extent to which a payment can be made without deduction of income tax can affect the level of settlement agreed between the parties. Applying an incorrect tax treatment can expose the employer not only to a liability for which it may not have budgeted, but also to costs and penalties for late payment of tax. There is also an increased risk of HM Revenue and Customs (HMRC) conducting a wider PAYE audit of the employer’s payroll compliance.

Charles Wynn-Evans examines a recent Supreme Court decision considering a challenge to an employer’s decision under provisions in an employment contract providing for the employer to determine a matter in its opinion

Employment lawyers will be familiar with the limitations that the common law places on employers’ exercise of contractual discretions in the employment relationship, particularly when making discretionary bonus awards. A well-known line of cases has implied a term into the contract of employment to the effect that an employer must not determine a contractual but discretionary bonus award irrationally, perversely, arbitrarily or otherwise than in good faith (Horkulak v Cantor Fitzgerald International [2004], Clark v Nomura International plc [2000] and Clark v BET plc [1997]).

Andrew Hearn looks at the availability of Norwich Pharmacal relief for claimants in international cases heard in England

A valuable remedy open to a party in English civil proceedings is the Norwich Pharmacal order. Such an order requires a respondent to disclose certain information or documents to the applicant. The respondent party need not necessarily be accused of wrongdoing itself but must be involved or mixed up in wrongdoing.

Charles Wynn-Evans rounds up recent case law on service provision changes and other thorny TUPE issues

Notwithstanding the reforms made in early 2014, the transfer of undertakings legislation continues to give rise to cases considering technical arguments about the law’s scope and requirements. Combined with the acute fact sensitivity of its application, this perhaps accounts for the legislation’s continued reputation for uncertainty and unpredictability. This article reports on some of the recent case law in this area.

Recent decisions highlight the need to consider carefully who is ‘in scope’ for the purposes of a TUPE transfer, warns Charles Wynn-Evans

A central issue to determine on the transfer of an undertaking or a service provision change is which individuals fall within the transfer’s scope. This determines not only who moves over to the new employer but is also essential to ensuring compliance with two key requirements of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). These are the obligation on the transferor to provide employee liability information (ELI) to the transferee (under reg 11) and the requirements on collective information and consultation (under reg 13).

Andrew Hearn assesses the process and pitfalls for international litigants in the Commercial Court

The international caseload of the English Commercial Court is enormous. A survey of 705 Commercial Court judgments handed down in the past five years showed that about 62% of the litigants involved were based outside England and Wales. In light of this trend – with a large proportion of the litigants emanating from Russia and the CIS – a number of questions arise. In particular:

Charles Wynn-Evans reviews the new edition of Monaghan on Equality Law

Charles Wynn-Evans reports on some new decisions on employment tribunal procedure

There has been plenty of coverage of the new employment tribunal procedure rules being introduced this summer. However, this article reports on various recent cases on tribunal procedure under the existing rules, addressing a variety of issues that will remain relevant after the introduction of the new rules.

Charles Wynn-Evans reviews the new edition of Corporate Insolvency: Employment and Pension Rights

One of the most rewarding – and sometimes challenging – aspects of employment law is its interdisciplinary nature. This is not just the case in the academic sphere, where labour and employment law scholarship can encompass consideration of issues of economics, politics, industrial relations, management and a variety of separate but related and relevant legal disciplines. It is also true for practising employment lawyers, who will from time to time need to know about a number of legal contexts wider than the substantive statutory and common law of employment. Such areas can be as wide ranging as employment tribunal and civil procedure, company law, human rights law, data protection legislation, taxation law and practice, financial services regulation and pensions.

Charles Wynn-Evans reports on some recent decisions on costs awards in the employment tribunal

The employment tribunal has the power to make a variety of orders relating to the costs, whether of their legal representatives or otherwise, incurred by the parties to tribunal proceedings (Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004). The current maximum award open to a tribunal in respect of costs or preparation time (without going through a County Court assessment) is £20,000, having been increased from £10,000 from 6 April 2012.

Charles Wynn-Evans commends a comprehensive account of the principles of conflict of laws in the context of employment contracts

Private international law, or what to this reviewer used to be known as conflict of laws, is no longer a subject that employment lawyers can leave behind as a part of their academic studies or ignore as irrelevant in practice. Globalisation and the increased mobility of multinational employers’ workforces have greatly increased the incidence and importance of disputes involving international employment issues.

A recent decision may provide some encouragement to employers seeking to resist compliance with subject access requests that they believe have been made for the purposes of actual or contemplated litigation, writes Charles Wynn-Evans

Many employers, and especially managers charged with dealing with such requests, must dread the receipt of a subject access request (SAR). In particular, the process of identifying the electronic material, which refers to the individual requesting the information and then analysing that material to assess whether it should be disclosed as personal data for the purposes of the Data Protection Act 1998 (DPA), can be remarkably time consuming. Moreover, an employer that receives such a request from a current or former employee, or from an unsuccessful job applicant, may be concerned that it is little more than a ‘fishing expedition’ intended to bolster an actual or intended claim or to seek out material that will be damaging to the employer, whether or not directly connected with any legal claim.

The claims by Andy Coulson and Glenn Mulcaire against the News of the World’s owners contain useful lessons for those negotiating, drafting and enforcing indemnities given by employers to their executives, explains Charles Wynn-Evans

Employees may seek indemnities from their employers in various situations. When an individual changes employers, particularly as part of a team move, the former employer may allege breach of fiduciary duty or restrictive covenants. The executive will wish to be covered for legal costs should litigation ensue, as well as for potentially significant additional liabilities for damages and adverse legal costs. An employee who is an additional respondent to discrimination proceedings brought against their employer may also seek an indemnity against any resulting compensation award, since liability for such awards is joint and several, and employment tribunals have no power to apportion liability between respondents ( London Borough of Hackney v Sivanandan & ors [2011]).

Gillian Baxter reflects on when an informally created easement is enforceable against a purchaser of the land over which it is exercised

A recent Court of Appeal decision, Chaudhary v Yavuz [2011], highlights the crucial importance of ensuring that rights over neighbouring property are properly documented and protected at the Land Registry. In Chaudhary, the failure to protect the right to use an external staircase resulted in the loss of the only means of access to a first-floor flat.

Charles Wynn-Evans examines the impact of recent decisions on business transfers and insolvency

This article discusses two important recent cases that are of considerable importance for those involved in handling transactions that potentially fall within the scope of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), whether involving an outsourcing or procurement exercise that could attract the application of the legislation either at the commencement or termination of the relevant procurement arrangements. Whether TUPE applies to a particular situation and whether those dismissed around the time of the transfer can claim the protection of the legislation is important for those structuring and documenting the relevant commercial arrangements, in terms of the transfer provisions, and any indemnities, in respect of associated employment liabilities.

Dan Hawthorne and Lydia Hutchinson explore the current UK REIT regime and the likely impact of the proposed changes introduced by the Budget

The 2011 Budget contained little in the way of real estate-related measures to get the pulse racing. However, the announcement of an informal consultation with the real estate industry on the UK’s Real Estate Investment Trust (REIT) regime has the potential to introduce groundbreaking changes that could transform the attractiveness of the UK REIT. The government stated that, subject to the responses to the consultation, it will:

Jon Bola considers when a contractual condition may be waived in light of recent case law

A party to a conditional contract may waive a condition that is solely for that party’s benefit provided it is severable from the remainder of the contract. However, as a recent case shows, the waiver of the condition cannot revive the contract if notice has already been given to terminate it.

Charles Wynn-Evans reports on some recent decisions that demonstrate the need for care in drawing up explicit bonus provisions

The Court of Appeal decision in Commerzbank Ag v Keen [2006] made it more difficult to challenge employers’ power to award discretionary bonuses. It was held in that decision that to argue successfully that a discretionary bonus award was in breach of contract because it was capricious or in breach of the implied duty to maintain trust and confidence, an executive would need to show an overwhelming case.