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Employment Law Journal: March 2014
Lewis Silkin

Rebecca Peedell examines the CIPD’s guidance and government consultation on zero-hours working

The winter of 2013 saw two welcome developments in the (hitherto rather confused) zero-hours contracts debate.

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.

Fieldfisher

The government’s attempt to stamp out intermediary arrangements to facilitate false self-employment could affect a wide range of legitimate business models, warns James Warren

Determining the employment status of individuals who hold themselves out as self-employed can be a vexed and complex issue for employment lawyers, let alone their clients. It has also troubled Her Majesty’s Revenue and Customs (HMRC), not just because of its difficulty, but because of a justified concern that in some instances the cloak of self-employment has been used to avoid the operation of PAYE for arrangements that would otherwise be identified as involving employment. HMRC’s attempts to minimise ‘false self-employment’ and to simplify the analysis for tax purposes have led to the creation of parallel regimes. An individual’s employment status for tax purposes may be different to their status for common law and other statutory purposes. This has only added to the unfortunate confusion and lack of clarity for all concerned.

Tom Flanagan considers the ramifications of PDAU’s battle to represent Boots’ pharmacists

The recent public spat between Boris Johnson and Bob Crow about potential changes to the law on industrial action led to both sides accusing the other of politicising industrial relations and making the subject overly legalistic.

Withers LLP

Employees cannot sign away their right to raise legitimate concerns – but employers’ advisers have found various ways to circumvent the law, argues Andrew Yule

Settlement agreements – and particularly ‘gagging’ clauses (covering confidentiality and non-disparagement) – are a hot topic. On 24 January 2014, the Public Accounts Committee (PAC) published its report into ‘Confidentiality clauses and special severance payments’, concluding that:

Matthew Towers discusses a recent case on what counts as ‘employment’ for the purposes of bringing a discrimination claim

In some industries, such as IT, it is relatively common for individuals to provide their services through their own limited liability companies – so-called personal service companies. Structuring work arrangements this way raises certain issues about employment status, which is an area of law that throws up a significant number of cases for two main reasons. First, establishing status as an employee rather than a worker is the gateway to claiming one of the more favourable statutory entitlements, such as unfair dismissal or a statutory redundancy payment. Secondly, although the legal principles are relatively settled, the determination of employment status heavily relies on the specific facts and circumstances of each claim and, as a result, it is often not difficult for either party to construct arguments on which to base its case.

A recent ruling has provided welcome clarification of when pre-termination negotiations should remain privileged, report Johanna Johnson and Ronan O’Reilly

The ‘without prejudice’ privilege applies to exclude all negotiations genuinely aimed at settlement from being given in evidence. The public policy underlying this privilege is to encourage parties to reach a settlement without resorting to litigation. In effect, the without prejudice rule encourages the parties to put their cards on the table without the fear that any concessions made by them could be used in a subsequent legal case.