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Mayer Brown International LLP

Mayer Brown International LLP

The Court of Appeal has failed to resolve uncertainty over whether a complaint about a breach of a worker’s own employment contract can amount to a protected disclosure, explain Christopher Fisher and Tanem Taskin

In Chesterton Global Ltd v Nurmohamed [2017], the Court of Appeal considered, for the first time, the requirement for a whistleblowing complaint to be made in the public interest. Disappointingly for employers, the court gave no clear answer but the case is nonetheless an important one.

In the second of two articles, Ian McDonald and Daniel Cook conclude their consideration of malicious prosecution

On 20 July 2016, a nine-member panel of the Supreme Court handed down its judgment in Willers v Joyce [2016]. The panel decided by a 5:4 majority that a claim for malicious prosecution of civil proceedings is sustainable in English law. The leading judgment was given by Lord Toulson, with whom Lady Hale, Lord Kerr and Lord Wilson agreed. Lord Clarke delivered a concurring judgment, and dissenting judgments were given by Lords Neuberger, Mance, Sumption and Reed.

In the first of two articles, Ian McDonald and Daniel Cook examine the possible expansion of malicious prosecution

On 7 March 2016, the Supreme Court heard Willers v Joyce & anor (as executors of Albert Gubay (deceased)). At time of writing, its judgment is expected in early June 2016.

Employers must provide employees with substantial consideration in exchange for signing up to new contract terms if they are to be effective, explains Stefan Martin

A recent High Court decision is an important reminder that even if an employee signs up to restrictions, they will not be binding unless the employer gives some form of consideration in return.

Stefan Martin and Lizzi Hodgkinson take a detailed look at the recent introduction of tribunal orders requiring employers to carry out equal pay audits

From 1 October 2014, an employer will be ordered to carry out an equal pay audit if it loses a claim for equal pay or sex discrimination related to pay. What exactly is an equal pay audit, why have they been introduced and what impact will they have? This article addresses these questions and explores whether employers should carry out their own audits to identify problems before they end up on the wrong side of such an order.

Calculating holiday pay has just become even harder, thanks to the latest in a line of ECJ cases on the issue, reports Stefan Martin

The Working Time Regulations 1998 continue to throw up cases which cause headaches for lawyers and employers alike. Previous decisions of the European Court of Justice (ECJ) on the legislation have looked at the impact of sickness on the accrual of holiday under the regulations and on whether becoming sick while on holiday creates a right to additional accrual of holiday entitlement. In the cases reviewed below, the ECJ has looked at the effect of an employee’s death on rights to holiday pay and also at the tricky issue of how holiday pay should be calculated when commission payments form part of an employee’s pay.

Michelle Last and Nicholas Robertson contemplate a recent High Court ruling on whether the deterrent effect of a repayment provision was so great that it prevented an employee from leaving the company

It is common to see benefit repayment provisions in employment contracts and sale and purchase agreements (SPAs). These provisions are usually designed to encourage the employee’s continued employment in return for some form of financial or other benefit provided by the employer. As a general rule, to be effective, repayment provisions should not be so harsh that they amount to a penalty or a restraint of trade. Provided a repayment provision does not fall foul of either of these grounds, it should normally be difficult to challenge. A recent High Court case has, however, suggested that consideration also needs to be given to the disincentive effect on the employee of any repayment provision. If it is strong enough to deter an employee from terminating their employment, it may amount to an unlawful restraint of trade (20:20London Ltd v Peter Riley [2012]), and so its enforceability may be open to challenge.

Employers need to take care if they alter the grounds for dismissing an employee part-way through the disciplinary process, warn Ann Robson and Imogen Bourke

When employers are considering dismissing an employee, it is generally clear what the alleged misconduct is and therefore what the potential reason for any dismissal would be. This reason should be made clear to the employee from the outset.

Philippa Charles discusses the recent Supreme Court judgment in Jivraj

The London arbitration community has warmly welcomed the judgment of the Supreme Court in the case of Nurdin Jivraj v Sadruddin Hashwani [2011]. The issues in the case and the decision of the Court of Appeal had carried what one advocate described as ‘chilling’ implications for London as a seat of arbitration. Had the Supreme Court held that arbitrator selection criteria were subject to the requirements of anti-discrimination legislation, many London arbitration agreements may have been held to be invalid in their entirety.

Rani Mina considers the impact of the new Practice Direction on costs budgets

Despite popular perception, lawyers are acutely conscious of the risk of costs becoming disproportionate in litigation and the importance to clients of understanding the likely amount and when costs will be incurred. Clients often request a costs budget for the delivery of legal services and require the engagement to be managed consistently with the budget. This is soon to be formalised in a new Practice Direction (PD51F) due to commence on 1 October 2011. It will take effect as a pilot in the Technology and Construction Court and Mercantile Court, and is likely to be rolled out to other courts in due course.

Old mistakes made when disciplining employees can come back to bite employers if they later decide to dismiss, caution Nicholas Robertson and Karen Stewart

Two recent Employment Appeal Tribunal (EAT) decisions, Davies v Sandwell Metropolitan Borough Council [2011] and Sakharkar v Northern Foods Grocery Group Ltd t/a Fox’s Biscuits [2011], have highlighted the dangers inherent in failing to ensure that disciplinary procedures are fairly and reasonably applied at all stages of the disciplinary process, not just at the dismissal stage. In circumstances where an employer gets it wrong along the way, it will not be saved in any subsequent unfair dismissal proceedings by an employee’s failure to appeal any sanction imposed. Prudent employers will review previous warnings where these are being relied upon to justify dismissal, while employees will have greater scope to challenge the fairness of some dismissals.