Last updateTue, 24 Feb 2015 5pm

Shoosmiths LLP

Shoosmiths LLP

Paula Rome considers some tricky issues for legal advisers asked to draw up employment-related policies

HR teams will often contact legal advisers (both in-house and external) requesting standard precedents, policies or procedures on a specific issue. While some policies and procedures do lend themselves to standardisation, many require careful consideration to ensure that they are appropriate for your organisation and are introduced in a way which will not cause conflict with existing working practices.

Claire Helling of Shoosmiths examines the potential legal issues for employers when extreme weather or industrial action prevent employees from travelling to work

The long-running Southern rail strikes have caused severe disruption for those without any alternative travel options and there have even been reports of people losing their jobs because they have been unable to get to work. The industrial action has now spread to the Northern and Merseyside rail networks, with storms and lines blocked by a collapsed wall and derailed freight train having added to commuters’ woes in recent months.

Liz Parkin outlines a recent EAT decision which offers clear guidance on the obligation to provide workers with a rest break

The Working Time Directive (WTD) requires that all EU workers should have ‘adequate rest periods’. In particular, Art 4 provides that:

Charlie Barnes considers ways for employers to circumvent non-compete covenants when recruiting employees from a rival business

In today’s global economy, competition between employers to recruit the most talented people is growing. The meteoric rise of social media sites such as LinkedIn has made it easier than ever before for businesses to scout for new personnel.

After two decades, the law on disability discrimination continues to pose challenges for employers and their advisers, reflects Antonia Blackwell

Protection against discrimination on the grounds of disability has been in place in the UK for just over 20 years, yet the case law continues to develop, creating difficult practical issues for employers.

A recent decision highlights the lack of flexibility for employers who have contractual employment policies. Liz Parkin examines the case

Contractual terms governing the employment relationship are subject to the common law principle that a contract may only be amended with the agreement of the parties.

A recent Norwegian working time case shows how the UK could still be bound by employment directives even if it leaves the EU, explain Karen Harvie and Kenny Scott

The European Union (EU) is an economic and political partnership which works towards establishing a single market based on the free movement of goods, people, money and services. EU laws take precedence over national laws and are binding on national courts.

Charlie Rae reviews a recent case on whether an employer’s instruction to an employee not to speak her native language at work was unlawful

The UK’s labour force is highly diverse, with a wide range of cultures and nationalities now being represented. While the pros and cons of immigration to the UK continue to be something of a political hot potato, the economic reality for many employers is that they are ever more reliant on migrant workers from across the EU and beyond. Sectors such as agriculture, hospitality and manufacturing are increasingly dependent on workers whose first language is not English.

Anna Cartledge reviews some of the planning changes introduced this year

While the landslide result of 2015’s general election may have taken many by surprise, perhaps the steps taken since the Conservatives’ victory have not. The government is set on laying down what it sees as the key requirements for increasing housing numbers, focusing on promoting sustainable communities while doing its utmost to protect the green belt.

Will strategic regional planning ever return to the English planning system? Daniel Murphy investigates how the current planning system could be improved

One of the key themes arising from discussion at the 2015 Joint Planning Law Conference in Oxford was the absence of regional strategic planning policy and the difficulties that are being experienced by local government, legal and planning professionals and the wider industry in being able to drive forward development plan preparation and adoption.

Following the news that a loophole in the Top Gear presenters’ contracts is enabling them to front a rival show on an online TV service, Alex Newborough looks at how businesses can guard themselves against competition from exiting employees

When Jeremy Clarkson punched a colleague earlier this year, the BBC was forced to think carefully not only about whether to dismiss him but also about how to protect the Top Gear brand against competition from its front man if it did so.

Rebecca Mushing provides an update on recent developments in affordable housing and questions their long-term implications

The past couple of months have seen big changes for affordable housing. Firstly the extension to the right to buy, more recently the quashing of national planning policy guidance, and finally the budget announcement that affordable housing rents are to reduce by 1% a year over the next four years. Following the previous article on the right to buy principle (‘The right to buy social housing’ by Tim Willis and David Perry, PLJ333, July/August 2015, p19), this article looks at the more recent changes and how they may impact on developers, councils and registered providers alike.

Sarah Lovell considers the impact of two recent cases on the meaning of ‘unfavourable’ treatment and identifying the correct provision, criterion or practice

Two recent cases on disability discrimination have given guidance on the approach employment tribunals should take when deciding some tricky points. Trustees of Swansea University Pension & Assurance Scheme v Williams [2015] considered the meaning of ‘unfavourable’ when considering claims of discrimination arising from a disability and Secretary of State for Justice v Prospere [2015] looked at the scope of a provision, criterion or practice (PCP) in claims of failure to make reasonable adjustments.

Kara Bruce investigates how ecological and environmental questions have impacted on development in recent cases

Ecological and environmental considerations continue to play an important role in the determination of planning applications.

A series of recent decisions has widened the definition of ‘client’ for the purposes of claims under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), reports Gwynneth Tan

The Employment Appeal Tribunal has recently confirmed that a party that outsources a service which is then subcontracted may be the ‘client’ of the subcontractor for the purposes of a TUPE claim by the subcontractor’s employees. This is the case even where there is no direct contractual relationship between the two parties. Does this principle, set out in Jinks v London Borough of Havering [2015], take TUPE case law in a new direction?

Tim Willis and David Perry examine whether the manifesto commitment to extend the right to buy to social housing stock is the right idea at the wrong time

Despite some negative press coverage and warnings of potential judicial review, the new Conservative government has wasted little time in bringing forward its manifesto commitment to extend ‘right to buy’ legislation to social housing stock.

Harriet Campbell and Aisling Duffy report on a key judgment under the Data Protection Act

The Court of Appeal recently upheld the decision of the High Court in Google Inc v Vidal-Hall [2015] that three claimants resident in England could bring claims in England against US-based Google Inc for misuse of private information and breach of the Data Protection Act 1998 (DPA).

When should employers involve third-party organisations in workplace issues, ask Gwynneth Tan and Alex Newborough

Most employers have staff handbooks containing a range of employment policies which set out their internal procedures for dealing with workplace issues. Some organisations will also include guidelines on their approach to employees’ conduct outside the workplace and working hours where this is relevant to them. Generally, however, employment policies are inward looking and intended to regulate the relationship between employer and employee. As a result, employers are often troubled by the question of whether or when they need to involve third parties such as regulators or the police when certain conduct takes place, or come to light, in the work environment. Employers are often also unsure whether the nature or seriousness of a matter means that they must involve third-party organisations.

Matthew Stimson looks at changes to the planning system introduced shortly before the general election and predicts that the new government’s policies will continue in this direction

In the field of town and country planning at least, the election of the new Conservative government must surely mean that we carry on as before. The major innovations of the last government (neighbourhood planning, the National Planning Policy Framework (NPPF) and abolition of regional strategies) were largely a product of pledges contained in the 2010 Conservative manifesto. Even the community infrastructure levy (CIL), which was introduced under Labour before the 2010 general election, was retained and refined under the coalition and therefore looks set to remain under the new government. No major innovations were proposed by the Conservatives this time around.

Aaron Richardson reviews recent government attempts to limit the use of planning obligations

For years planning obligations have been used to secure mitigation to make development acceptable in planning terms. The government has identified the negotiation of planning obligations as one of the main causes of delay in the planning system. As a result, a number of measures have been introduced through legislation and guidance to limit their use and speed up their negotiation.

With immigration set to be a huge focus in this year’s general election, Sarah Lovell examines what the coalition government has done to try and tackle rising numbers of migrants and what the main parties propose to change after the election

Who can forget David Cameron’s pledge to reduce net migration from hundreds of thousands to tens of thousands, ‘no ifs, no buts’? That promise has spectacularly failed, with net migration increasing to 298,000 in the year to September 2014, which is 50,000 higher than when Mr Cameron came to power in 2010. With the rise of UKIP, as well as Labour promising tough action on immigration, this is likely to be a key issue in the forthcoming general election.

With an election looming and the political parties gearing up, Lisa Tye looks at what the main players are saying about planning and what we can expect on 8 May and beyond

The last 15 years have seen a number of significant legislative changes to the planning system in England, and the pace of change did not slow down under the coalition government. These changes, alongside more recent drastic cuts in public sector funding to address the country’s wider economic woes, have left local planning authorities (LPAs) feeling overworked and under-resourced, and as a consequence they are experiencing difficulties in fully implementing and seeing through the required changes.

The latest decision on employing workers who live overseas shows that there are no easy answers to whether they can bring a claim in the UK employment tribunal, warns Kevin McCavish

Technological advances are leading to the increased globalisation of workforces. Only ten years ago, an employee who wished to emigrate would hand in their notice, have a leaving party and, perhaps, keep in touch with old work colleagues through e-mail. More recently, there has been a trend for such employees to continue working for their UK employer while living abroad. Many of us can see the attraction of working this way, both for employers who retain key skills and experience and for employees who want to experience a new lifestyle.

How are planning applications for renewable energy projects dealt with, and why are such a high number the subject of intervention by the Secretary of State? Samantha Grange reports on the current state of play

In June 2008, following a review promised in the white paper ‘Planning for a Sustainable Future’ (May 2007), ‘proposals of major significance for the government’s climate change programme and energy policies’ were added to the Secretary of State’s policy on recovering planning appeals. Five years later, in June 2013, the Secretary of State announced his intention to issue new planning practice guidance for renewable and low-carbon energy projects and recovered nine projects at appeal in England.

Pamela Morris and Jo Joyce discuss the issues raised by the use of wearable technology in the workplace

Production of Google Glass was halted last month. Privacy concerns may have played a part in the decision, although the company has said it remains committed to developing a new version of its controversial smart glasses. Meanwhile, the use of other forms of wearable technology is rapidly expanding, which together with smart phones, could allow people’s personal data to be misused.

Anna Cartledge focuses on the use of neighbourhood plans as well as their potential significance

The concept of neighbourhood planning was introduced through the Localism Act 2011, giving communities the power to make:

In the second of his two articles, Gavin Le Chat examines the promoter’s obligations and costs, as well as how to protect its share of the proceeds of sale

Part 1 ('Planning promotion agreements', PLJ326)

The costs and expenses incurred by the promoter in promoting the landowner’s property for development and obtaining a satisfactory planning permission will usually be paid by the promoter out of its own pocket, and will be reimbursed to the promoter out of the proceeds of sale following any sale of the landowner’s property.

Graham Reid explores how Scottish law deals with terminal dilapidations claims

At Scottish common law, the tenant of a property is generally only liable for fair wear and tear, and for repairs that are required if the tenant fails to take reasonable care.

Planning promotion agreements are becoming increasingly popular with both developers and landowners as an alternative to option agreements. In the first of two articles, Gavin Le Chat examines their workings

A planning promotion agreement is really a type of joint venture agreement. Typically a planning/land promotion agreement will be between a landowner and a developer, or between a landowner and a planning consultant. The developer or planning consultant will agree to promote the landowner’s property for development, to apply for and use reasonable endeavours to obtain planning permission and, having secured planning permission, to market the property for sale in the open market. In return for providing these services, the developer or planning consultant will receive a fee or a proportion of all the net sale proceeds received by the landowner after various costs, such as planning costs, have been deducted and reimbursed to the developer/promoter.

Marcus Woody assesses ‘sustainable development’ in the National Planning Policy Framework in the context of some recent cases

In the words of the fictional barrister, Horace Rumpole (of the Bailey), paraphrasing Viscount Sankey LC:

Kathryn Jump explains the key aspects of the levy and its impact on development

On 12 June 2014 the government introduced new consolidated guidance on the use and effect of the community infrastructure levy (CIL). This new guidance brings together a number of recent changes to the levy system, and reinforces the government’s commitment to the tax.

There is a strong presumption against the grant of permission in cases where listed buildings or conservation areas are affected by proposals. Kirsten Hewson examines planning policy and case law

The Enterprise and Regulatory Reform Act (the ERRA) received Royal Assent on 25 April 2013 and has introduced a number of changes to how proposed development within conservation areas and/or affecting listed buildings is to be approached and determined.

As the World Cup reaches its climax, Kenny Scott looks at a recent ruling on whether a referee was an employee of the Scottish Football Association

Correctly establishing whether or not an individual is an employee is critical for clarifying their rights and the obligations associated with them. We consider the recent decision of the Employment Appeal Tribunal (EAT) in Conroy v Scottish Football Association [2014] and the tests for determining employment status.

The growing popularity of electronic cigarettes means that employers need to draw up a policy on their use at work, advises Siobhan Atkin

The charity Action on Smoking and Health estimates that 1.3 million people in the UK are currently using electronic cigarettes (also known as e-cigarettes). Although they could mean fewer smoking breaks and less health-related absence, many employers, including the House of Commons, have banned e-cigarettes in the workplace. This article reviews the use of e-cigarettes at work and considers what advice in-house lawyers and employment practitioners should give businesses in light of this growing phenomenon.

Understanding the planning process is vital if contracts conditional on planning permission are to accurately reflect the parties’ intentions. Tim Willis and Rebecca Bergin discuss the judicial review and statutory challenge process

The planning system, with its various rules and regulations, is a fast-moving and constantly changing beast.

Paul Weeks analyses whether the NPPF, two years after its introduction, has achieved its aims

The National Planning Policy Framework (NPPF) celebrated its second birthday on 27 March 2014.

Helen Burgess reviews a recent case on whether the termination of a fixed-term contract must inevitably be a redundancy dismissal

In a case that spells good news for employers using fixed-term contracts, the Court of Session has confirmed that the expiry of such contracts did not trigger a requirement to collectively consult with appropriate representatives.

Rosalind Andrews considers current planning policy on green belt protection, and the conflicting needs of meeting current housing shortages and protection of the countryside

On 7 March 2014 the Department for Communities and Local Government released their statistical report relating to the green belt in England for 2012/13.

Matthew Stimson examines the permitted development rights for office to residential conversions and some of the issues and unintended consequences to which they give rise

On 30 May 2013, an amendment was made to the Town and Country Planning (General Permitted Development) Order 1995 (GPDO), which made it possible to convert offices to residential use without having to apply for planning permission.

With government reforms making it more difficult for employees to bring tribunal claims, Kevin McCavish and Antonia Blackwell ask whether the civil courts could provide the answer

Employment tribunals are the main forum for dealing with disputes between employees and their employer or ex-employer. Historically, there has been little benefit in employment lawyers advising their clients to issue proceedings in other venues, since litigation in the civil courts attracts fees and an unsuccessful party bears the burden of the other party’s legal costs as well as their own. Such obstacles were, until recently, not present in the tribunal forum.

A recent case has highlighted the risks for employers of simply rubber stamping what their occupational health advisers tell them, reports Richard Barker

Employers managing employees on sickness absence often turn to their occupational health (OH) advisers for guidance on whether an employee comes within the legal definition of a disabled person. However, following the recent case of Gallop v Newport City Council [2013], employers need to be careful of unquestioningly relying on OH assessments of employees on long-term sickness absence.

Sarah Booth looks at how to ensure that zero-hours agreements are legally enforceable without exploiting workers

In recent months employment practitioners could not have failed to notice the numerous press reports about zero-hours contracts.

The updated guidance accompanying the Bribery Act was issued at the end of March. Ron Reid assesses whether it has adequately dealt with the complaints that arose out of the initial guidance

Following a spate of scare stories in the period leading up to the guidelines being finalised, the Ministry of Justice finally published the Guidance on Adequate Procedures, which businesses have been waiting for, at the end of March.

Ron Reid clarifies the key elements of the Act, and whether the delay in its introduction should mean a delay in compliance for commercial organisations

The Bribery Act 2010, which is described as the toughest anti-corruption measures in the world and is due to come into force in April, has been delayed. The Act will now come into force later in the year.