Mon04242017

Last updateTue, 24 Feb 2015 5pm

Mishcon de Reya

Mishcon de Reya

Although their ability to strike may be curtailed, the trade unions appear to be finding new ways to challenge employers, argue Laura Garner and Will Winch

Last month, key provisions of the Trade Union Act 2016 (TUA) took effect against a backdrop of long-running rail strikes and a flurry of court cases brought by the unions.

Peter Steen and Robert Hines examine firewall legislation and the tension between legal fairness and economic expediency

Asset protection, rather than legitimate tax mitigation, has become the principal driver for offshore asset structuring in recent decades. The choice of one particular jurisdiction over another for a would-be settlor can often be determined, or heavily influenced, by the relative robustness of the asset protection regime in the chosen jurisdiction. The economic imperative of supporting their highly lucrative fiduciary and financial service industries has led various offshore jurisdictions to introduce ‘firewall legislation’ to limit the extent to which foreign courts can interfere in the governance and administration of trusts and associated corporate vehicles governed by local offshore law.

Åsa Waring and Dominic Boon consider ways to curb growing discrimination against expectant mothers and women returning from maternity leave

The Equality and Human Rights Commission (EHRC) and the former Department for Business, Innovation and Skills commissioned a programme of research to investigate the prevalence of pregnancy and maternity discrimination in the workplace in 2015. The researchers might well have expected to find a reduction in discrimination compared to similar 2005 research conducted by the Equal Opportunities Commission. Yet the research in fact found an increase in such discrimination, with the following findings being particularly notable:

Peter Steen and Bethan Byrne consider firewall legislation and analyse the continued conflict with the English Family Division

The current buzzwords of the offshore worlds are ‘transparency’ and ‘accountability’. In that context, asset protection legislation, commonly known as ‘firewall’ legislation, can increasingly seem something of an anomaly. Firewall legislation seeks to defend and protect offshore trusts from attack – whether from creditors, spouses or heirs – and from pressure from the onshore world. Matters concerning trusts established in offshore jurisdictions are, instead, for the local court applying local law. The message from jurisdictions in which such legislation has been enacted is that local courts will not simply kowtow to orders made by onshore courts.

Laura Garner offers some tips for employers when dealing with sickness absence and reviews recent case law developments

There is no doubt that sickness absence is a headache for employers. Research published by Personnel Today in October 2015 showed that absenteeism costs UK businesses an astonishing £16bn per year, with British employees taking an average of 6.5 days’ sick leave a year.

Victoria Sara-Kennedy considers Al-Sadi v Al-Sadi a departure from the usual costs rule on discontinuance

What can a claimant do when their claim is undermined by evidence disclosed late in the day, the loss of a key witness or a change of mind by a key expert?

Sarah Keeble and Mark Stroud review three recent age discrimination cases

Since the abolition of the default retirement age on 6 April 2011, dismissing an individual who is at or approaching retirement amounts to direct age discrimination pursuant to s13(1) of the Equality Act 2013. However, unlike direct discrimination on the basis of the other protected characteristics, direct age discrimination can be objectively justified under s13(2). If an employer can demonstrate that the treatment was ‘a proportionate means of achieving a legitimate aim’, a claim will fail. This defence can therefore dramatically hamper an individual’s ability to bring a successful age discrimination claim under the UK regime. But how has the justification defence been interpreted by the courts?

Mark Keenan and Bethan Byrne examine changes to family provision claims

The Law Commission project ‘Intestacy and Family Provision Claims on Death’ began nearly six years ago and was subject to a lengthy period of consultation. The project considered the areas of intestacy and family provision where it was felt that the current statutes did not reflect the modern family, particularly as studies had shown that more than two thirds of the adult population did not have a will. Accompanying the report were two draft bills, the Inheritance and Trustees’ Powers Bill and the Inheritance (Cohabitants) Bill. Only the former was to come into effect. The Inheritance and Trustees’ Powers Act (ITPA) received Royal Assent on 14 May 2014 and the anticipated commencement date is 1 October 2014. The ITPA makes a number of changes to the current intestacy rules in relation to provision for a surviving spouse and the definition of chattels. For the purposes of this article we are focusing on the changes to the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) and we will consider what impact these changes will have for the would-be claimant.

Schomberg v Taylor demonstrates the high evidential burden of challenging a will under undue influence. Mark Keenan and David Hickott explain

There are various grounds upon which a challenge to the validity of a will can be based and often cases will be pleaded in the alternative. It is perhaps easy to see why clients, angry that a will makes unexpected provision for an opposing party, would be attracted to arguing undue influence if the facts indicate their involvement in the will making process. In the case of Schomberg v Taylor [2013], the first and second defendants who counterclaimed were able to meet the burden of proof, but the case highlights some of the difficulties that practitioners need to be aware of when dealing with allegations of undue influence.

The Jackson reforms to litigation cost management have been widely criticised, but Laura Odlind wonders if they could be of some benefit

Lord Justice Jackson was tasked with investigating the spiralling costs of litigation. His report led to the biggest shake-up to the civil justice system for over a decade. The Jackson reforms were introduced in April 2013 and have fuelled much debate among practitioners, even featuring in the tabloid press.

Jo Pairman analyses the potential impact of a new scheme requiring Acas to be involved before claims can be issued in the employment tribunal

The Advisory, Conciliation and Arbitration Service (Acas) has provided free, voluntary pre-claim conciliation on issues such as unfair dismissal, discrimination and redundancy since 2009. In the year to 31 March 2011, such pre-claim conciliation was successful in 74% of cases, increasing to 78% the following year.

Will Winch discusses recent rulings on how overtime and commission affect the calculation of annual leave payments

For employment lawyers, the idea of a holiday may be far from relaxing. Just as we begin to get used to the idea that the interaction between holidays and sick leave can be quite a complex area (see ‘Carry-over arguments carry on despite EAT decision’ by Chris Wellham, p12 of this issue), it turns out that calculating holiday pay may also prove more difficult than previously thought.

The government’s last-minute concessions have done little to allay concerns about the shares for rights legislation, contends Jennifer Millins

Despite substantial opposition in response to the government’s consultation at the end of 2012, and despite the battering sustained by the proposals as they ‘ping-ponged’ through parliament earlier this year, the amended shares for rights provisions have now been approved.

Will Winch studies the effect and extent of the UK’s new anti-corruption legislation

On 1 July 2011 the Bribery Act 2010 comes into force. The Act is designed to update some fairly archaic statutory provisions and to comply with the UK’s ratification of the OECD’s Anti-Corruption Convention.

Mark Levine and Laura Ford consider whether the tribunals are becoming more willing to accept claims that an employee’s beliefs have been infringed

In 2003 the Employment Equality (Religion or Belief) Regulations were introduced. The Regulations sought to protect against discrimination by reason of any religion, religious belief or (initially) similar philosophical belief.

Mark Levine and Jennifer Millins examine the new rights to which agency workers will be entitled from this October

The Agency Workers Regulations 2010 (AWR) will come into force on 1 October 2011, whether businesses like it or not. Under the AWR, which apply to the relationship between temporary workers (temps), the agency they use to find work and the end user for whom they work (the hirer), temps will be entitled to equal access to facilities at work and offers of permanent employment at the hirer from the first day of each assignment. They will also be entitled to basic working conditions that are no less favourable than those enjoyed by workers hired directly by the hirer after 12 weeks.