Last updateTue, 24 Feb 2015 5pm

Weightmans LLP

Weightmans LLP

Phil Allen and Louise Singh look at the implications of a recent Supreme Court decision on how much pay to deduct when employees go on strike for a day

If employees are on strike, an employer does not have to pay them for the periods when they are not working. In the recent case of Hartley v King Edward VI College [2017], the Supreme Court considered how much pay an employer was entitled to deduct when tutors at a sixth form college took part in a day of lawful strike action.

Shahida Jogi and Rachel Lim outline how private client and family lawyers can work together

Lawyers today must take a collaborative approach in conjunction with their peers and colleagues to provide rounded and holistic advice to their clients. Family lawyers must be prepared to identify and highlight salient issues, sometimes outside of their field of expertise, and keep abreast of developments in key areas such as property law and private client law. Likewise, a private client lawyer must be aware of when their advice may be complemented by – or conflict with – family law advice.

An employee’s contract will usually specify the period of notice they are entitled to receive if they are dismissed, but when does the notice period start to run? Phil Allen looks at a recent Court of Appeal judgment

In Newcastle upon Tyne NHS Foundation Trust v Haywood [2017], the Court of Appeal has confirmed that a notice period will only begin once it has actually been communicated to the employee. This provides legal certainty (at least to employees), but it does mean that employers must ensure an employee has received the notice of dismissal otherwise the dismissal may be delayed. The employer cannot just assume the employee has received correspondence sent to them.

Matthew Taylor looks at delay in financial proceedings and the more generous approach taken by the court in Briers v Briers

It seems that, much like buses, you wait an age for a delay case and then two come along at once. Hot on the heels of the judgment in the permission to appeal case of Waudby v Aldhouse [2016] came the Court of Appeal decision in Briers v Briers [2017].

Phil Allen looks at what employers can do about fraudulent or dishonest job applications

A senior NHS manager was recently given a two-year prison sentence for fraud and obtaining a pecuniary advantage by deception, after lying about his qualifications to get a job. He fabricated parts of his work history and falsely claimed on his CV to have numerous qualifications (including two mythical PhDs), obtaining roles such as chief executive and the chair of an NHS trust. So how can employers guard against being misled by a job applicant and how can they deal with an employee who they later find out lied to get their job?

A controversial judgment has reignited debate about the conflict between protection from discrimination and the values of organisations and their workers. Phil Allen explains

The judgment of the Northern Ireland Court of Appeal in Lee v Ashers Baking Company [2016], better known as the Bert and Ernie cake case, has led to considerable debate. On the one side was a family-run company that did not wish to make a product endorsing something with which the owners did not agree, based on their religious ethos. On the other was a customer who had the right to order what he wanted without discrimination on the grounds of his sexual orientation.

Lottie Tyler reviews how an adult child’s conduct can affect a claim brought under the Inheritance Act (Provision for Family and Dependants) 1975

The successful claims brought by independent, adult children under the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) can provoke strong reactions. It can be argued that a person should be free to leave their estate to whomever they choose, and if they have taken the time to make a will setting out their wishes it is unfair for those wishes to be undermined. Claims from independent, adult children under I(PFD)A 1975 attract further controversy as the applicant will not generally be in the position of losing an income or a home as a result of being excluded from the will, as is the case for an applicant who was financially dependent on the deceased. Equally, if an adult child was estranged from, or had an acrimonious relationship with, the deceased parent, it is objectively difficult to understand their sense of entitlement to a share of the estate. But, to quote Niccolo Machiavelli, sometimes it may be the case that:

Fiona Turner considers whether inherited wealth is more likely to result in a departure from equality than earned wealth

Parties on divorce usually have a strong claim to share in the matrimonial property that has been built up during their marriage. Since the House of Lords decision in White v White [2000] it has been recognised that, in some cases, a party may have a weaker or restricted claim to share in ‘non-matrimonial’ property.

Lottie Tyler focuses on the potential impact of the Brexit vote on international child relocation

Speculation regarding the impact on day-to-day life of leaving the EU has scarcely abated since the vote on 23 June. We have seen reports that institutions and companies that have to date based their European headquarters in London may opt to relocate a proportion of their workforces to other European cities. In terms of social ramifications, the media has reported incidents of racism/xenophobia attributed (fairly or not) to the outcome of the vote.

Fiona O’Sullivan examines the increase in divorce rates for older couples and the financial considerations that may apply in such cases

Figures published by the Office for National Statistics confirm that there were 126,716 divorces in the UK in 2013, a decrease of 2.9% when compared with 130,473 divorces in 2012. The statistics show that the overall number of divorces has decreased across almost all age groups with the exception of the over-50s where the rate of divorce has reached a 40-year high. The increasing number of couples aged 50 or over who are filing for divorce highlights a trend of ‘silver separations’ which has developed over the years and looks set to continue. The increase may have arisen quite simply because a bigger proportion of this age group are in fact married, rather than living together, or the increase may be fuelled by other factors.

The EAT has delivered its first decision on the rules making conversations about ending an employment relationship inadmissible in tribunal proceedings. Phil Allen investigates

It has always been difficult for employers and employees to raise the possibility of an agreed exit from employment in a way which the other party cannot later use against them. Since 2013, s111A of the Employment Rights Act 1996 has meant that evidence of pre-termination negotiations is inadmissible in unfair dismissal claims. Faithorn Farrell Timms LLP v Bailey [2016] is the first appeal decision on this issue. This article looks at the judgment and what it means in practice.

Paul McFarlane and Louise Singh comment on the education secretary’s recent attempt to have proposed industrial action ruled unlawful

In The Secretary of State for Education v National Union of Teachers [2016], the High Court recently considered two issues:

Phil Allen looks at a recent EAT case on when disciplinary action over an employee’s religious discussion can be lawful

Some employees will feel that they need to tell others about their faith, as part of their religious belief. This can cause considerable difficulty for employers, particularly where other employees object to such issues being raised with them. It can on occasion cause a clash between:

Fiona O’Sullivan, Mark Surguy and Gareth Griffiths compare and contrast the approaches to privacy and disclosure in family and commercial cases

There is a tension between the duties owed by commercial entrepreneurs, who are familiar with their legal obligations in the commercial world but face uncomfortable obligations when personal family matters overlap with their business interests. The recent decisions in Sharland v Sharland [2015] and Gohil v Gohil [2015] have highlighted the stringent duties on parties trying to secure financial settlement, within the context of divorce proceedings, in providing full and frank disclosure of their financial positions. It is a well-established principle also that in such proceedings there is an implied undertaking from both parties not to disclose that information outside the court arena. The obligation to provide full and frank disclosure can, however, cause significant practical problems for spouses who are bound by confidentiality obligations outside the family, for example in relation to their business interests.

Sandra Jones explains best practice for avoiding liability for flooding to another’s property

Flooding has been in the headlines again this winter with large parts of the UK being hit by devastating floods, following a series of storms and extended periods of extreme weather. Most projections suggest that such weather conditions are likely to become increasingly common. Property owners and their insurers are again counting the financial cost of such events, with current estimates indicating that the cost of recent floods is likely to reach £5bn.

Lottie Tyler considers whether a court-appointed receiver may be an overlooked method of enforcement, not an unjustifiable expense

The decisions in Sharland v Sharland [2015] and Gohil v Gohil [2015] may represent a victory against parties who hope to cheat the system, but they do not change the inherent problem highlighted in Young v Young [2013] and Prest v Prest [2015] that the rules of the court really only matter if they are respected. The family justice system needs to have the power to change the game, so that if a party does not play nicely, they cannot play at all. On that basis, might an application for a court-appointed receiver be an overlooked weapon in the family lawyer’s arsenal?

Phil Allen looks at three recent cases in which the claimants argued their dismissal was unfair because they were treated more harshly than a colleague involved in the same incident

When considering the fairness of a dismissal for misconduct, one thing an employment tribunal can take into account is inconsistency. A dismissal which would otherwise be perfectly fair can be rendered unfair if the employer has treated the person dismissed differently from another employee in comparable circumstances. An argument will often arise where two employees are involved in the same incident and one is dismissed but the other is not. Three recent cases have examined this issue and also raise the question of whether there is a consistent approach by employment tribunals to inconsistent treatment.

Fiona Turner sets out the steps to be taken when enforcing financial remedy orders in the EU

Enforcing an order is never entirely straightforward, and endeavouring to do so when the defaulting party and/or their assets and/or income are abroad is even less so. In this article, I will set out the options, routes and major considerations for family practitioners seeking to enforce an order made in England and Wales in another EU member state, ie an ‘outgoing order’.

Recent high-profile transport tragedies provide a reminder of the importance of pre-employment health questions and highlight the need to change current requirements, suggests Ross Hutchison

The tragic incident in Glasgow when a bin lorry ran out of control and into a building, killing six people in the process, rightly caught both the press and the public’s attention and has continued to do so throughout the subsequent Fatal Accident Inquiry (FAI) and ongoing disciplinary proceedings conducted by Glasgow City Council.

Stuart Jones and Louise Singh discuss the potential impact of the national living wage

As part of the Financial Statement (or ‘Summer Budget’) in July 2015, the Chancellor announced the introduction of a new statutory minimum pay requirement, described as a national living wage (NLW). The NLW will be:

Stuart Jones and David Miers investigate the trend for employees to relaunch employment claims in the civil courts

To the dismay and despair of many employers, it is not uncommon for an employment dispute, thought to be done and dusted, to raise its head some time later in a completely different forum.

The EAT seems to be making it harder than ever to advise employers on what amounts to unlawful disability discrimination, argues Phil Allen

A series of recent cases on disability discrimination has reminded me of what I was taught at university. As idealistic students, we would argue in tutorials that each case should be decided correctly on its facts, while our sage tutor would tell us that what people really wanted was certainty in the law.

A recent case highlights the importance of following proper procedures when amending employees’ contracts, writes Michael Ryley

The operational and financial pressures that businesses face frequently require them to be flexible in the way they deploy and remunerate their workforces. How easily they can achieve that flexibility will depend on factors such as workers’ employment status, the inherent flexibility of current employment terms and the threat of industrial action around plans for change.

A recent tribunal decision has given some clues on how to tackle the payment of employees on shared parental leave, reports Claire Hollins

A highly publicised and potentially significant employment tribunal decision has given some guidance to employers and their advisers on what to pay employees when they take additional paternity leave. The decision is also relevant for those employers considering what to pay employees taking shared parental leave when it comes into force next year.

Stuart Jones examines the risks that employers face if staff take part in campaigns like the ice bucket challenge at work

This summer, the ice bucket challenge has been the latest internet craze to sweep the globe in the name of charity. The phenomenon is not over yet and may give rise to copycat campaigns. Participants from every walk of life, from pop stars to politicians, have volunteered for a soaking. Even employment lawyers, badgered by their children, have taken part. I speak from experience!

Employees must have a disability themselves for the duty to make reasonable adjustments to apply, reports Phil Allen

A Court of Appeal judgment has placed a significant curb on the extent of the duty to make reasonable adjustments for those with disabilities. Hainsworth v the Ministry of Defence [2014] places an important limit on carers’ ability to argue associative discrimination because of their connection with a disabled person.

The forthcoming expansion in the right to request flexible working will create a new set of legal and practical challenges, warns Phil Allen

Today, flexible working arrangements are common in most workplaces and employment sectors. Employees can be engaged on an almost endless variety of patterns and terms. These include flexitime systems which allow employees broad variations in their working day and permanent individual arrangements allowing bespoke home-working or part-time working arrangements. With the forthcoming expansion of the right to request flexible working to all employees, we are likely to see even more requests for such arrangements and, almost inevitably, a greater proportion of employees will ultimately be engaged in a greater variety of ways.

Martin Vincent examines exemption from the Public Contracts Regulations

There is seemingly a lot of confusion out there regarding contracts between contracting authorities and whether they are exempt from the Public Contracts Regulations 2006. We are seeing many instances of ‘wishful thinking’ on the part of contracting authorities, when the legal position is somewhat different. A couple of recent cases have aided clarity and the new Directive codifies these requirements further.

Daniel Butler and James Whittaker discuss recent case law on case management

The Jackson reforms promised new robust procedures on costs and case management, so what has been the consequence of the reforms in practice six months on?

A recent case serves as a useful reminder to employment practitioners to be careful about how they phrase offers to settle employment disputes, warns Phil Allen

How careful are you in the way you word any settlement offer? If you are offering the heads of terms, but expect to flesh out the full detail of an agreement later, have you been clear enough? The High Court has delivered a stark warning to all those involved in settlement negotiations of the importance of what you say when you make an offer.

Martin Vincent examines the thorny issue of student loans and university funding

The current economic climate continues to place additional pressure on higher education providers, universities and students alike. Increasingly, governing boards are forced to make decisions in regard to the use, receipt and obtaining of funding from various sources. Compounded by the widespread reduction of government funding, governing boards are required to come up with alternative funding structures to meet such needs.

Damian Cadman-Jones considers what to look out for when terminating contracts

OFCOM’s proposed ban on contracts for landline and broadband providers that tie customers into repeated minimum contract periods unless they opt out is most welcome news. What does this mean and what (if anything) can you do in the meantime?

Peter Brewer looks at the liability of association members

You don’t have to try very hard to find unincorporated associations all around the country. Many sports clubs, social clubs, charities, alumni associations and miner’s welfare clubs were set up as unincorporated associations tens or even hundreds of years ago. They are often run informally by committees or management boards with a genuine interest in the association’s activities. Very often that activity is pursued as a hobby by the members. It is therefore perfectly understandable that those involved often forget about the good commercial practices that they would perhaps apply to their jobs and businesses.

In light of a recent EAT decision, Lee Rogers looks at how organisations can successfully make changes to workers’ contracts of employment by dismissing and re-employing them

In these times of austerity employers are looking to reduce costs.

Tom Collins looks at the impact of the Commercial Agents (Council Directive) Regulations 1993

The Commercial Agents (Council Directive) Regulations 1993 (the Regulations) came into force on 1 January 1994. They impose an alien concept into English law. While they seek to govern relations between a commercial agent (an agent) and his principal, they also give an agent the ability to claim compensation or an indemnity on termination of the agency agreement. This concept has caused much consternation. This article considers some of the effects of the Regulations and the impact of recent cases.

Most employees will not be entitled to a lawyer at disciplinary hearings following an important Supreme Court ruling, reports Laura Kearsley

Employees’ right to be accompanied at formal disciplinary and grievance meetings is well used. The law permits employees to bring a colleague or trade union representative to such meetings, regardless of whether the employee belongs to the union. Failure to reasonably permit an employee to be accompanied could result in them bringing a standalone employment tribunal claim for this worth two weeks’ pay.